FHCA 2012 Annual Conference

Hilton Hotel • Orlando, FL

Wednesday, August 1, 2012 - 10:45 am - 11:45 am

LEARNER OBJECTIVES

CE Session #27

Legislative Update Upon completion of this presentation, the learner will be able to:

Comprehend what happened during the 2012 Legislative Session; Understand the impact of July 1 regulatory changes; and Hear how you can play a role in the political process.

PRESENTER(S):

Scott J. Allen, NHA is the Vice President of Government Relations for Health Care Navigator. A 2008 graduate of the American Health Care Association (AHCA) Future Leaders, he is the current Senior Vice President of the Florida Health Care Association and a member of the AHCA Political Action and Involvement Committee (PAIC/PAC) & Political Involvement Committees. He also chairs the FHCA Legislative Committee. He is a 1994 graduate of the State University of New York at Utica/Rome and has worked for Cypress Health Group for sixteen years. Emmett Reed, CAE, is the Executive Director of Florida Health Care Association. He is responsible for overall operations and directing Association staff to implement the goals and objectives set forth by the Board of Directors. Emmett served previously as the CEO of the Florida Home Builders Association, where he achieved a number of professional accomplishments during his 11-year tenure. In 2008 he was named New Executive of the Year by the National Association of Home Builders. Tony Marshall serves as Senior Director of Reimbursement for Florida Health Care Association. On behalf of FHCA, he serves as primary liaison to the Florida Legislature, Agency for Health Care Administration, Department of Elder Affairs, Centers for Medicare and Medicaid Services, American Health Care Association, FHCA Reimbursement Committee, and other relevant state and federal entities regarding issues of reimbursement and healthcare finance policy. Bob Asztalos, FHCA’s Chief Lobbyist and owner of the lobbying firm of Asztalos & Associates, lobbies on long term care issues at both the State and Federal levels. Prior experience includes the Director of Legislative Affairs for Florida Health Care Association and the Senior Congressional Affairs Representative for American Health Care Association in Washington, DC. Peggy Rigsby serves as Director of Government Services for Florida Health Care Association. She is responsible for tracking state and federal laws and rules, and assisting members in complying with requirements. She tracks legislation that affects nursing homes, works with legislators, staff, members, and lobbyists to implement FHCA’s Legislative agenda. Peggy liaisons with the FHCA Legislative Committee and the FHCA Rules and Regulations Committee to coordinate and prioritize issues important to FHCA members, as well as reviewing and modifying new and existing rules and laws.

2012 Legislative Session Wrap Up Report | March 13, 2012

It was just past midnight Friday when the 2012 legislative session came to an end. Overall

highlights include the Legislature's approval of the 2012-13 budget, which amounts to just

over $70 billion. The budget adds more than $1 billion in state funding to public education,

reduces university reserves by $300 million and cuts some health care services to help

alleviate the budget shortfall. Major issues failing to pass the 2012 session included

regulatory reforms for assisted living facilities, prison privatization and malpractice lawsuits.

Significant legislation that did pass included Personal Injury Protection (PIP) reforms, tax

reforms and reorganization of the Department of Health.

Your FHCA legislative staff and lobby team members worked vigorously through the end to

advocate on members’ behalf for important long term care priorities. Preserving Medicaid

funding, addressing efficiencies to help put patients ahead of paperwork and preventing

unfriendly legislation from advancing were the primary focus this year. Below is a wrap-up

of how long term care providers fared this session.

Budget

Leading up to the start of the 2012 legislative session, Governor Rick Scott released a

budget which contained a zero (0) cut to nursing home funding. In January, the House

released its initial proposed budget with a 2.5 percent ($76 million) funding cut for nursing

home care, followed shortly after by the Senate, which also held nursing homes harmless

with a zero (0) funding cut. Given the state’s $2 billion budget shortfall and ongoing press

reports that health care cuts would need to be made to close the budget gap, it was

imperative that FHCA work tirelessly to mitigate significant Medicaid funding cuts until the

final budget vote was cast. In the end, the collective work of FHCA staff, its lobby team and

FHCA members paid off with lawmakers agreeing to move from the originally-proposed 2.5

percent cut to a lower, 1.25 percent reduction.

The budget (HB 5001) provides $2.77 billion for nursing home care, which reflects full

funding of price level increases (inflation) and a 1.25 percent cut ($35.2 million) to nursing

home rates. Additionally, the budget increases the nursing home quality assessment by

approximately $30 million to a total of $411.6 million and increases the rate from $21.15 to

approximately $22.85 per non-Medicare patient day. The quality assessment provides for

rate “buyback” of approximately $540 million compared to $465 million in the current year

– an increase in the amount of prior year rates to be restored of approximately $75

million.*

*These estimates are based on the modeling done in early January and will vary based upon cost-reports

submitted for the July rate setting.

Also included in the budget are $26.2 million for the Assistive Care Services, $37.3 million

for the Assisted Living Facility Waiver, $359 million for the Capitated Nursing Home

Diversion Waiver and $26.6 million for the Program of All-Inclusive Care for the Elderly

(PACE). Nursing home funding for case load growth was utilized to fund 1,896 additional

Diversion Waiver slots, and 250 additional PACE slots. The Assisted Living Facility Waiver

received $2.2 million in additional funding to provide services to additional elders, with first

priority to those individuals on the waitlist who are assessed at a priority score of four or

higher.

Life Insurance Option

FHCA has always been proactive in offering suggestions to legislators that would help the

state with its growing Medicaid budget. A member-driven priority for FHCA this session was

the concept of allowing life insurance policies to be used for payment of long term care

services. FHCA commissioned Florida State University's Center for Economic Forecasting and

Analysis to examine the use of life insurance policy assets as a means of private funding in

order to pay for long-term health care needs. The study found that annually there are

approximately 4,272 to 4,486 residents with the potential to convert their life insurance

policies into long-term health care benefit plans. According to the study, that would

represent a net savings to the state's total Medicaid budget of approximately $138.3 -

$157.4 million.

This concept was the premise behind SB 1756 by Sen. Joe Negron (R-28) and HB 1055 by

Rep. Rachel Burgin (R-56), which received positive feedback in both chambers this session.

However, given that it involves two very complicated issues – Medicaid eligibility and

insurance – Rep. Burgin recommended that further study on this issue be conducted.

FHCA is pleased to report that proviso language to the budget (HB 5001) was a requirement

that the Agency for Health Care Administration, in coordination with the Department of

Children and Families and the Office of Insurance Regulation, shall establish a technical

advisory workgroup to examine methods to allow an insured under a life insurance policy or

the contract holder of an annuity, to convert the policy or annuity to a long term care

benefit. The workgroup shall also examine the feasibility and benefits of mandating life

insurance companies to include an offer of accelerated death benefits as a means to fund

long term care institutional services in their standard policies. The advisory workgroup must

include, but is not limited to, representatives from nursing home providers, life insurance

companies, and life insurance agents. The agency shall submit a report of findings and

activities of the workgroup, including recommendations and proposed legislation, no later

than January 15, 2013.

FHCA will keep members apprised of the outcomes of the workgroup, which will be

important to helping address any technical issues before legislation is reintroduced next

session.

Putting Patients Ahead of Paperwork

Once again, FHCA asked legislators to support legislation which would result in efficient

nursing home care delivery. SB 482 by Sen. Jack Latvala (R-16) and HB 621 by Rep. Jim

Frishe (R-54) contained provisions that would “Put Patients Ahead of Paperwork” by

eliminating duplicative paperwork and outdated reports and allow caregivers working in

nursing homes more time to focus on providing resident quality care.

Both SB 482 and HB 621 moved cleanly through the committee process; however, while

HB 621 bill was able to pass out of the House, SB 482 remained stuck in the Senate Budget

Subcommittee on Health and Human Services.

Given this was the fifth year the Association was working to advance this important

legislation, FHCA staff and lobby team members had to identify other vehicles to help these

provisions pass. FHCA enlisted the support of Sen. Gary Siplin (D-19) and, together with bill

sponsors Sen. Jack Latvala and Rep. Jim Frishe, were able have the majority of the

provisions significant to our members placed on HB 787 by Rep. Carlos Trujillo (R-116).

This bill, according to one reporter, had become known as the “nursing home train,” and

FHCA’s ability to take command of the situation in such a short period of time and engage

the support of legislators so as to have this last-minute amendment included was no small

feat. HB 787 was the very LAST bill to pass the Florida House at 11:54 p.m. Friday night,

just before the final minutes of the 2012 session ticked away.

Provisions in HB 787 include the following:

• Elimination of the 24-hour Adverse Incident report;

• Elimination of the quarterly staffing report;

• Clarification of eviction and nursing home discharge laws;

• Implementation of requirements to allow nursing homes to provide respite care;

• Placement of pediatric staffing standards into statute;

• Allowance of home-office audited financial records in the CON process; and

• Care plan and medical records revisions, as well as other regulatory fixes.

These provisions have a July 1, 2012 effective date, and FHCA will provide members with a

more detailed summary of these changes soon.

Enhancing Facility Operations

Background Screening Fixes

HB 943 by Rep. Doug Holder (R-70), which makes several fixes to the background

screening law enacted in 2010, passed and is on its way to the Governor's desk for

signature. FHCA took an active role in this issue, providing initial recommendations to the

Governor's Interagency Background Screening Workgroup in December and supporting

important legislative amendments to address several fixes as the bill made its way through

the process.

HB 943 will fix the "volunteer" issue that caused Gov. Scott's veto last year, as well as the

redundant background screening issue that affects DOEA direct-service providers and many

of FHCA's ALF members. The bill also allows employers to hire a person for training and

orientation prior to having a screening complete with certain caveats and reduces

duplicative screenings for CNAs. It also clears the way for sharing background screening

information across agencies through AHCA's new clearinghouse and sets up a new

requirement for employers to report employment status changes to the clearinghouse.

LiveScan fingerprint vendors will now be asked to meet certain practice thresholds and will

be approved by the Florida Department of Law Enforcement (FDLE).

The Legislature also passed HB 653 by Rep. Janet Cruz (D-58), which also fixes an

unintended consequence related to the background screening law that was negatively

affecting some of the nurses in our member facilities. That bill is on its way to the

Governor's desk for signature.

FHCA will be updating its Background Screening Guide for members-only and will provide

additional details about these provisions prior to the bill taking effect.

Physical Therapist Workforce Support

The Legislature passed HB 799 by Rep. Tom Goodson (R-29) which would allow physical

therapists to work in their field under a temporary permit until they receive their license.

The bill is on its way to the Governor's desk for signature.

Unemployment Compensation Tax Relief

Another bill FHCA tracked in conjunction with the Florida Chamber was HB 7027 by Rep.

Doug Holder (R-70), which has passed and is on its way to the Governor's desk for

signature. This bill will help businesses see a much smaller increase in their unemployment

compensation tax. The tax paid by businesses for unemployment benefits was scheduled to

go up to about $171 per employee, but the bill now reduces that to about $121 per worker.

It also reduces the wage base for calculating the unemployment tax from $8,500 to $8,000

per worker.

Medicaid Reform

SB 730 by Sen. Anitere Flores (R-38) has passed and is on its way to the Governor's desk

for signature. The final legislation was amended to modify residents' automatic enrollment

in a Medicaid managed care plan when a choice is not made. It also allows Florida's

Medicaid program to use what is known as a "medical loss ratio" to help ensure that HMOs

spend enough money on patient care. It includes a caveat that would allow Medicaid HMOs

to comply with the ratio by contributing money to medical-residency programs or to a state

Medicaid fund.

Preventing Harmful Legislation

Accessing resident’s medical records

HB 1419 by Rep. Jason Brodeur (R-33) was the Agency for Health Care Administration-

supported bill which would eliminate some duplicate and unnecessary reporting

requirements for nursing homes. In the final hours, FHCA was able to stave off a trial-bar

supported amendment to HB 1419 which would have eliminated the residents’ choice as to

who would have access to their private medical records. FHCA staff, together with

members, connected with key legislators, including Sens. Joe Negron (R-28), Rene' Garcia

(R-40) and Don Gaetz (R-4), and helped them understand how this amendment could have

unintended consequences by giving individuals access to information that could be used

for personal gain and against the resident’s wishes. In the end, the sponsor agreed not to

run the amendment. And while the bill ultimately failed to advance, the ability to prevent

this amendment from making the floor shows the importance of fostering relationships with

legislators and educating them about these types of complex issues which could affect your

facility operations.

Certificate of Need

Another failed amendment was a proposal to HB 787 by Rep. Carlos Trujillo (R-116) which

would have allowed construction of a 150-bed teaching nursing home affiliated with an

accredited university's nursing school. While this amendment was stripped out, it was

certainly a primer for a larger debate that can be expected again next session. Both the

Governor and the Legislature have indicated they favor an overall open-market philosophy,

not one just pertaining to nursing homes.

FHCA will convene a work group this summer to study the CON issue to assist with

gathering data and developing a position and strategy in preparation for 2013.

Medicaid Fraud – Unintended Consequences

SB 1316, the Medicaid fraud bill by Sen. Don Gaetz (R-4), contained several controversial

provisions related to Medical malpractice and the authority for optometrists to prescribe

certain oral medications. It failed to advance this year; however, as it made its way through

the process, FHCA made a priority of working in cooperation with the Florida Hospital

Association to prevent certain unintended consequences that would have negatively

impacted members, including, for example, allowing Medicaid provider agreements to be

terminated for a simple rules violation.

Compensation of Employees

SB 596 by Sen. Ronda Storms (R-10) contained provisions to cap salaries of non-profit

entities at $129,972 if the group receives more than two-thirds of its funding from state

appropriations, including federal funds. FHCA identified unintended consequences in the bill

which would have negatively impacted non-profit nursing homes and asked the bill sponsor

to consider an exemption for non-profit facilities licensed under Chapter 400, given that the

Medicaid cost reporting system already has checks and balances in place related to salaries

within the payment rate system. In the end, the bill failed to advance.

LTC Ombudsman Program

Also failing to advance this session was SB 1054 by Sen. Eleanor Sobel (D-31), which

proposed to restructure the Office of the Long Term Care Ombudsman.

Assisted Living Facilities

After a series of controversial articles in the Miami Herald last year, ALF regulatory reform

was expected to be a priority for the Legislature this year. Several bills were filed, including

SB 2074 by Sen. Rene Garcia (R-40) and SB 2050 by Sen. Ronda Storms (R-10), which

were eventually combined, with HB 7133 by Rep. Eduardo Gonzalez (R-102) serving as the

House companion. Along the way, FHCA was able to educate lawmakers about the

differences between nursing homes and assisted living facilities, with a particular emphasis

on the negative impacts that electronic monitoring devices ("granny cams") have on

resident privacy. The reform goals differed between both chambers and amendments

bounced back and forth on the last day of session. Ultimately, the bills stalemated with

legislators unable to reach an agreement before time ran out. The end result was no

statutory changes for ALFs this year.

The Agency for Health Care Administration, however, has ramped up their regulatory

oversight under existing authority, modifying the survey process. It is likely this issue will

be revisited by legislators in 2013.

In the meantime, Gov. Rick Scott said in a statement that he’ll ask members of the Assisted

Living Work Group to convene again this year to examine issues related to the state’s ALFs.

The group was expected to expire without the Governor's action.

HB 787 by Rep. Carlos Trujillo (R-116) did offer some relief to assisted living facilities.

Provisions in this bill clarify that referral and marketing services, which help consumers find

appropriate care and housing options, do not violate statutes as long as the referred

consumers are not Medicaid recipients. The bill also gives the green light for monetary

rewards to be given to facility residents who may refer a friend. As reported above, the bill

passed the Legislature and is on its way to the Governor for signature.

Other Tracked Bills

Pain management

Concerns were raised this session by the Florida Medical Directors Association and other

groups as to the effect the new “pill mill” law is having on physicians prescribing controlled

substances in the nursing home setting to help manage residents’ pain. Early on, FHCA

added its name to an FMDA letter that addressed the "risks the 'pill mill' requirements may

be having on residents' pain management treatment in the skilled nursing facility setting

due to the regulations." House leadership, however, indicated that it had no interest in

opening up the “pill mill” statute this year.

When HB 1175, a bath salts bill, was expanded to include new derivatives along with some

minor pain clinic provisions, it appeared to be a good vehicle to address those physician

challenges. Despite a last-minute valiant effort by Sen. Ellyn Bogdanoff (R-25) who

amended the bill at FHCA’s request to exempt physicians “who treat a patient who is

admitted in a nursing home or related health care facility or receiving hospice services as

defined in chapter 400,” at the request of the Attorney General, the final bill was stripped of

any pill mill-related provisions before it passed, including those related to the Medical

Directors’ exemption.

FHCA will continue working with members and related organizations to educate lawmakers

about the challenges physicians are having in prescribing controlled substances in the

nursing home setting.

Alzheimer’s Disease Purple Ribbon Task Force

FHCA supported HB 473 by Rep. Matt Hudson (R-101), which establishes a taskforce within

the Department of Elder Affairs to study state trends with respect to individuals having

Alzheimer's disease, which is of particular importance as the state's baby boomers continue

to age. This bill passed and is on its way to the Governor.

Baker Act

FHCA supported SB 1750 by Sen. Gary Siplin (D-19) and HB 1195 by Rep. Daphne

Campbell (D-108), which authorizes ARNPs to initiate voluntary exams under the Baker Act

of persons believed to have mental illness, as it would ensure appropriate care placement

for individuals. While the bill passed in the House, it failed to advance the Senate this year.

Thank You

FHCA is extremely grateful to each of you for your ongoing support both before and during

the 2012 legislative session. Time and again you rose to the call and the voices of long term

care were heard. We had over 500 long term care professionals with us for Lobby

Wednesdays this session, sharing stories with lawmakers that resonated, as was made

evident by the budget outcome. FHCA was also able to help pass important provisions that

will offer you regulatory relief and was able to prevent legislation harmful to the long term

care profession. No doubt this stemmed from the FHCA and Our Florida

Promise collaborative partnership that resulted in a combined effort by members, staff and

lobby team in fostering legislator relationships, building a strong and comprehensive

strategy and taking a proactive and unified approach to convey our key messages.

Whatever the role you played this session, we want to thank you for standing with us and

speaking up for long term care. As we move forward, however, we cannot let up in our

efforts to educate legislators and legislative candidates. We can expect the 2013 legislative

session to bring even greater challenges for long term care providers, and now is the time

to prepare for what lies ahead.

Our 2013 legislative priorities will likely include protecting Medicaid funding and advancing

tort reform and the life insurance option. We can expect the Legislature to revisit the

Certificate of Need and consider reforming our payment methodologies, while at the same

time, Medicaid managed care implementation will be set to begin.

Please take advantage of the upcoming months to invite lawmakers into your facilities and

help them better understand the important work you do in caring for our state’s frail elders.

FHCA is available to assist you with these efforts by accompanying you during these tours

and providing you with helpful talking points and resource tools. We will be compiling our

2012 Legislative Scorecard in the coming weeks to measure lawmakers’ support for the

Association’s priorities, which will serve as a useful grassroots advocacy tool. In the

meantime, on behalf of all of us at FHCA, thank you for your ongoing support. If you have

any questions, feel free to contact a member of FHCA's legislative team.

2012 Legislative Scorecard

A comprehensive report on FHCA’s legislative priorities and lawmakers’

support of long term care issues

The Florida Health Care Association (FHCA) is Florida’s first and largest

advocacy organization for long term care providers and the elderly they

serve. We are a federation which represents nearly 1,000 members and

over 500 facilities that provide skilled nursing, post-acute and sub-acute

care, short-term rehab, assisted living and other services to the frail elderly

and individuals with disabilities in Florida.

2012 LegisLative sCOReCaRd 3

Dear Florida Health Care Association Members,On behalf of Florida Health Care Association, I am pleased to share our 2012 Legislative Scorecard, which provides an informative overview of the Association’s legislative priorities. The Scorecard also measures, on a five-star rating scale, how Florida’s Senators and Representatives listened to our voices and responded to the issues that impact the long term care profession.

In 2011, nursing homes experienced deep cuts in state Medicaid and federal Medicare funding. Given the state’s $2 billion budget shortfall going in to the 2012 legislative session, FHCA’s top legislative priority was to prevent significant reductions to Medicaid funding

for high-quality nursing home care. The collective advocacy efforts of FHCA members, staff and its lobby team resulted in the nursing home Medicaid reimbursement cut being lowered by more than $35 million when the originally-proposed 2.5 percent cut was reduced to 1.25 percent.

FHCA has always been proactive in offering suggestions to legislators that would help the state with its growing Medicaid budget. FHCA is pleased to report that the final budget includes proviso language to establish a technical advisory workgroup that would include nursing home provider representatives, among others, to study the option of allowing individual policyholders to convert life-insurance policies to a long-term health care benefit plan. This will ensure technical issues surrounding Medicaid eligibility and insurance can be worked out in anticipation of legislation being introduced next session.

Nursing homes will also see relief from duplicative requirements with a number of FHCA-supported regulatory changes that were passed as part of HB 787 by Rep. Carlos Trujillo (R-116). These changes will have a positive impact on residents, as caregivers will have more time to focus on care rather than redundant paperwork.

Although the Legislature was unable to reach an agreement on assisted living facility reforms this year, FHCA was able to educate lawmakers about the differences between nursing homes and assisted living facilities, with a particular emphasis on the negative impacts that electronic monitoring devices (“granny cams”) have on resident privacy.

Florida’s long term care providers play a significant role in the health care continuum. Together, Florida Health Care Association and its advocacy partner, Our Florida Promise, have come a long way in educating the Legislature about nursing homes and how dynamic we have become in serving seniors’ short-term rehabilitative and long term care needs. We have worked diligently to foster legislator relationships, built strong and comprehensive session strategies and taken a proactive and unified approach to convey our key messages. FHCA is extremely grateful to all of those who joined us in advocating for our long term care priorities both before and during the 2012 legislative session. Your support of our efforts are instrumental to helping us advance our advocacy agenda and ensure providers maintain the resources needed to offer the highest quality of care and quality of life to Florida’s long term care residents.

Sincerely,

J. Emmett Reed, CAE FHCA Executive Director

Given the state’s $2 billion budget shortfall going in to the 2012 legislative session, FHCA’s top legislative priority was to prevent significant reductions to Medicaid funding for high-quality nursing home care.

Florida HealtH Care assoCiation4

Medicaid ReimbursementPrior to the start of the 2012 session, the state of Florida was facing a $2 billion budget deficit, and legislators had indicated that cuts to health care services would once again have to be made to help alleviate the budget shortfall. Nursing homes were already struggling under the July 1, 2011 Medicaid reimbursement reductions of $187.5 million, coupled with the October 1 Medicare reductions of $332 million. Thus, preventing further reductions topped FHCA’s legislative priorities list.

In the initial weeks of session, the House released its budget with a 2.5 percent ($70 million) funding cut to nursing home care, while the Senate held nursing homes harmless with a zero (0) cut in its budget. The 2012 session ended with the final State budget (HB 5001) reducing the originally-proposed 2.5 percent cut ($70 million) to nursing home Medicaid funding to a lower cut of 1.25 percent ($35.2 million). The budget also reflects full funding of price level increases (inflation) and expands the Nursing Home Quality Assessment, which allows for some “buyback” of previous Medicaid reductions.

Florida’s long term care facilities need resources to deliver high-quality care to Florida’s frail elders who rely on government funding as their health care safety net. FHCA is pleased that legislators recognized the challenges that have come with significant reductions in Medicaid and Medicare reimbursements and were able to minimize the impact on nursing homes in the final budget.

Life Insurance: An Alternative Funding ResourceFHCA has always been proactive in offering suggestions to legislators that would help the state with its growing Medicaid budget. A member-driven priority for FHCA this session was the concept of allowing life insurance policies to be used for payment of long term care services. FHCA commissioned Florida State University’s Center for Economic Forecasting and Analysis to examine the use of life insurance policy assets as a means of private funding in order to pay for long-term health care needs. The study found that annually there are approximately 4,272 to 4,486 residents with the potential to convert their life insurance policies into long-term health care benefit plans. According to the study, that would represent a net savings to the state’s total Medicaid budget of approximately $138.3 - $157.4 million. This concept was the premise behind SB 1756 by Sen. Joe Negron (R-28) and HB 1055 by Rep. Rachel Burgin (R-56), which received positive feedback in both chambers this session. However, given that it involves two very complicated issues — Medicaid eligibility and insurance — Rep. Burgin recommended that further study on this issue be conducted. FHCA is pleased to report that the budget also included proviso language to establish a technical advisory workgroup to examine methods to allow an insured

2012 LegisLative sCOReCaRd 5

under a life insurance policy, or the contract holder of an annuity, to convert the policy or annuity to a long term care benefit. The workgroup will include, but is not limited to, representatives from nursing home providers, life insurance companies, and life insurance agents. FHCA will keep members apprised of the outcomes of the workgroup, which will be important to helping address any technical issues before legislation is reintroduced next session.

Putting Patients Ahead of PaperworkLandmark elder care reform passed in 2001 by the Florida Legislature (SB 1202) has resulted in tougher regulations, increased staffing requirements and quality improvement and risk management programs, all of which are enforced through a combined state and federal survey process of the Agency for Health Care Administration. Nursing home care has steadily improved as a result.

The benefits of improved oversight, however, have resulted in several outdated requirements and regulations. Nursing homes will see relief from those duplicative requirements with a number of FHCA-supported regulatory changes that were passed as part of HB 787 by Rep. Carlos Trujillo (R-116).

Provisions in HB 787 include the elimination of the 24-hour Adverse Incident Report and the quarterly staffing report; clarification of eviction and nursing home discharge laws; implementation of requirements to allow nursing homes to provide respite care; placement of pediatric staffing standards into statute; allowance of home-office audited financial records in the Certificate of Need process; and care plan and medical records revisions, as well as other regulatory fixes.

FHCA applauds lawmakers for passing this important legislation which will have a positive impact on residents, as caregivers will have more time to focus on care rather than duplicative paperwork requirements.

Florida HealtH Care assoCiation6

Enhancing Facility Operations Background screening law enacted in 2010 contained several glitches that were limiting nursing home providers’ access to a qualified workforce. Prior to the session, the Association made initial recommendations to the Governor’s Interagency Background Screening Workgroup. When legislation was introduced, FHCA advocated for its passage and supported important amendments that would address several fixes to the legislation.

HB 943 by Rep. Doug Holder (R-70) passed with provisions that will fix redundant background screening issues that affect Department of Elder Affairs direct-service providers, including many of FHCA’s assisted living facility members. The bill allows for an individual to begin training and orientation prior to having a screening completed, with certain caveats, and it reduces duplicative screenings for certified nursing assistants. It also clears the way for sharing background screening information across agencies through the Agency for Health Care Administration’s (AHCA) new clearinghouse and sets up a new requirement for employers to report employment status changes to that clearinghouse. LiveScan fingerprint vendors will now be asked to meet certain practice thresholds and will be approved by the Florida Department of Law Enforcement (FDLE).

The Legislature also passed HB 653 by Rep. Janet Cruz (D-58), which also fixes an unintended consequence related to the background screening law that was negatively affecting some of the nurses in long term care facilities.

Other Supported BillsIn addition to FHCA’s 2012 legislative priorities, the Association successfully lobbied for other issues of interest to our members.

Alzheimer’s Disease Purple Ribbon Task Force HB 473 by Rep. Matt Hudson (R-101) will establish a taskforce within the Department of Elder Affairs to study state trends with respect to individuals having Alzheimer’s disease, which is of particular importance as the state’s baby boomers continue to age.

Physical Therapist Workforce Support HB 799 by Rep. Tom Goodson (R-29) will allow physical therapists to work in their field under a temporary permit until they receive their license.

Assisted Living FacilitiesAlthough the Legislature was unable to reach an agreement on assisted living facility (ALF) reforms this year, FHCA was able to educate lawmakers about the differences between nursing homes and assisted living facilities, with a particular emphasis on the negative impacts that electronic monitoring devices (“granny cams”) have on resident privacy.

2012 LegisLative sCOReCaRd 7

ALFs will benefit from a provision included in HB 787 by Rep. Carlos Trujillo (R-116), which clarifies that referral and marketing services, which help consumers find appropriate care and housing options, do not violate statues as long as the referred consumers are not Medicaid recipients. The bill also gives the green light for monetary rewards to be given to facility residents who may refer a friend.

Unemployment Compensation Tax Relief HB 7027 by Rep. Doug Holder (R-70) will help businesses see a much smaller increase in their unemployment compensation tax. The tax paid by businesses for unemployment benefits was scheduled to go up to approximately $171 per employee; however, this legislation will now reduce that amount to approximately $121 per worker. It also reduces the wage base for calculating the unemployment tax from $8,500 to $8,000 per worker.

“Hundreds of nursing home owners, administrators, frontline caregivers and family members joined us this session to advocate for our issues. Their presence throughout the Capitol and the stories they shared about the high-quality care we provide to our residents made a difference.”

— Scott Allen, FHCA Senior Vice President/Legislative Committee Chair

Florida HealtH Care assoCiation8

★ ★ ★ ★ ★

2012 Legislative Scorecard Overview

Florida Health Care Association’s Legislative Scorecard reports on lawmakers’ support for the Association’s priorities over a two-year period, factoring in their combined voting records for both the 2011 and 2012 legislative sessions.Legislators are scored on a five-star rating system, with five being the highest level of support, one being the lowest and three representing an average rating. The five-star system is symbolic of the ranking system by which nursing homes are rated for the quality of care they provide to their residents (Centers for Medicare & Medicaid Services Five Star Quality Rating System).

“FHCA members understand the importance of actively engaging in our grassroots advocacy. Doing so helps to educate lawmakers about the important work we do and how their decisions impact our residents, our staff and our profession.”

— Nina Willingham, FHCA President

BOLD indicates “5 star” designation

2012 LegisLative sCOReCaRd 9

★ ★ ★ ★ ★

SENATE

Senator Party Dist. Score

Alexander, JD R 17 ★★★★

Altman, Thad R 24 ★★★★

Benacquisto, Lizbeth R 27 ★★★½

Bennett, Mike R 21 ★★★★

Bogdanoff, Ellyn R 25 ★★★★★

Braynon, Oscar D 33 ★★½

Bullard, Larcenia D 39 ★★★

Dean, Charles R 3 ★★★½

Detert, Nancy R 23 ★★★★

Diaz de la Portilla, Miguel R 36 ★★½

Dockery, Paula R 15 ★★½

Evers, Greg R 2 ★★★½

Fasano, Mike R 11 ★★

Flores, Anitere R 38 ★★★★

Gaetz, Don R 4 ★★★★★

Garcia, René R 40 ★★★★★

Gardiner, Andy R 9 ★★★★

Gibson, Audrey D 1 ★★★½

Haridopolos, Mike R 26 ★★★★

Hays, Alan R 20 ★★★½

Senator Party Dist. Score

Jones, Dennis R 13 ★★

Joyner, Arthenia D 18 ★★

Latvala, Jack R 16 ★★★★

Lynn, Evelyn R 7 ★★★½

Margolis, Gwen D 35 ★★½

Montford, Bill D 6 ★★★

Negron, Joe R 28 ★★★★★

Norman, Jim R 12 ★

Oelrich, Steve R 14 ★★★½

Rich, Nan D 34 ★★★

Richter, Garrett R 37 ★★★½

Ring, Jeremy D 32 ★★

Sachs, Maria D 30 ★★½

Simmons, David R 22 ★★★½

Siplin, Gary D 19 ★★★★★

Smith, Chris D 29 ★★★

Sobel, Eleanor D 31 ★★

Storms, Ronda R 10 ½

Thrasher, John R 8 ★★★

Wise, Stephen R 5 ★★★★

BOLD indicates “5 star” designation

Florida HealtH Care assoCiation10

★ ★ ★ ★ ★

HOUSERepresentative Party Dist. Score

Abruzzo, Joseph D 85 ★★½

Adkins, Janet R 12 ★★★★

Ahern, Larry R 51 ★★★★

Albritton, Ben R 66 ★★★★

Artiles, Frank R 119 ★★★½

Aubuchon, Gary R 74 ★★★½

Baxley, Dennis R 24 ★★★★

Bembry, Leonard D 10 ★★½

Berman, Lori D 86 ★★½

Bernard, Mack D 84 ★★

Bileca, Michael R 117 ★★★½

Boyd, Jim R 68 ★★★½

Brandes, Jeff R 52 ★★

Brodeur, Jason R 33 ★★★★

Broxson, Doug R 1 ★★★½

Bullard, Dwight D 118 ★★★

Burgin, Rachel R 56 ★★★★★

Caldwell, Matt R 73 ★★★½

Campbell, Daphne D 108 ★★★½

Cannon, Dean R 35 ★★★★

Chestnut, Charles D 23 ★★½

Clarke-Reed, Gwyndolen D 92 ★★½

Clemens, Jeff D 89 ★★½

Coley, Marti R 7 ★★★½

Corcoran, Richard R 45 ★★★★

Costello, Fred R 26 ★★★½

Crisafulli, Steve R 32 ★★★½

Cruz, Janet D 58 ★★★★★

Davis, Daniel R 13 ★★★★½

Diaz, Jose Felix R 115 ★★★½

Representative Party Dist. Score

Dorworth, Chris R 34 ★★★★

Drake, Brad R 5 ★★★½

Eisnaugle, Eric R 40 ★★★★

Ford, Clay R 3 ★★★★

Fresen, Erik R 111 ★★★½

Frishe, Jim R 54 ★★★★★

Fullwood, Reggie D 15 ★★½

Gaetz, Matt R 4 ★★★★★

Garcia, Luis D 107 ★★★

Gibbons, Joe D 105 ★★½

Glorioso, Rich R 62 ★★★½

Gonzalez, Eddy R 102 ★★★★

Goodson, Tom R 29 ★★★½

Grant, J.W. R 47 ★★

Grimsley, Denise R 77 ★★★★½

Hager, Bill R 87 ★★★★½

Harrell, Gayle R 81 ★★★★

Harrison, Shawn R 60 ★★★★

Holder, Doug R 70 ★★★★

Hooper, Ed R 50 ★★★½

Horner, Mike R 79 ★★★★

Hudson, Matt R 101 ★★★★½

Hukill, Dorothy R 28 ★★

Ingram, Clay R 2 ★★★½

Jenne, Evan D 100 ★★½

Jones, Mia D 14 ★

Julien, John Patrick D 104 ★★½

Kiar, Martin D 97 ★★

Kreegel, Paige R 72 ★★★½

Kriseman, Rick D 53 ★★

BOLD indicates “5 star” designation

2012 LegisLative sCOReCaRd 11

★ ★ ★ ★ ★

Representative Party Dist. Score

Legg, John R 46 ★★★½

Logan, Ana Rivas R 114 ★★★½

Lopez-Cantera, Carlos R 113 ★★½

Mayfield, Debbie R 80 ★★★½

McBurney, Charles R 16 ★★★½

McKeel, Seth R 63 ★★★½

Metz, Larry R 25 ★★★★

Moraitis, George R 91 ★★★½

Nehr, Peter R 48 ★★★½

Nelson, Bryan R 38 ★★★½

Nuñez, Jeanette R 112 ★★★★

Oliva, José R 110 ★★★

O’Toole, Marlene R 42 ★★★½

Pafford, Mark D 88 ★★

Passidomo, Kathleen R 76 ★★★½

Patronis, Jimmy R 6 ★★★★

Perman, Steve D 78 ★★

Perry, Keith R 22 ★★★½

Pilon, Ray R 69 ★★

Plakon, Scott R 37 ★★★½

Porter, Elizabeth R 11 ★★★½

Porth, Ari D 96 ★★½

Precourt, Steve R 41 ★★★½

Proctor, Bill R 20 ★★★½

Randolph, Scott D 36 ★★

Ray, Lake R 17 ★★★½

Reed, Betty D 59 ★★

Rehwinkel Vasilinda, Michelle D 9 ★★

Renuart, Doc R 18 ★★★★

Roberson, Kenneth R 71 ★★★★

Representative Party Dist. Score

Rogers, Hazelle D 94 ★★½

Rooney, Patrick R 83 ★★★½

Rouson, Darryl D 55 ★★½

Sands, Franklin D 98 ★★★

Saunders, Ron D 120 ★★★

Schenck, Robert R 44 ★★★★

Schwartz, Elaine D 99 ★★★

Slosberg, Irv D 90 ★★½

Smith, Jimmie R 43 ★★★½

Snyder, William R 82 ★★★½

Soto, Darren D 49 ★★★

Stafford, Cynthia D 109 ★★½

Stargel, Kelli R 64 ★★★½

Steube, Greg R 67 ★★★★

Taylor, Dwayne D 27 ★★½

Thompson, Geraldine D 39 ★★½

Thurston, Perry D 93 ★★½

Tobia, John R 31 ★★★½

Trujillo, Carlos R 116 ★★★★

Van Zant, Charles R 21 ★★★½

Waldman, Jim D 95 ★★½

Watson, Barbara D 103 ★★½

Weatherford, Will R 61 ★★★★★

Weinstein, Mike R 19 ★★★★

Williams, Alan D 8 ★★½

Williams, Trudi R 75 ★★★½

Wood, John R 65 ★★★

Workman, Ritch R 30 ★★★½

Young, Dana R 57 ★★★½

3 0 7 W. P a r k A v e . | Ta l l a h a s s e e , F L 3 2 3 0 1 | ( 8 5 0 ) 2 2 4 - 3 9 0 7 | w w w . f h c a . o r g

FHCA Lobby TeamLegislators, their staff and interested parties are encouraged to contact the Florida Health Care

Association to learn more about the Association’s position on issues impacting Florida’s long term care provider community and the frail elders they serve.

FHCA LobbyistsIn addition to our internal team, FHCA works with some of the most experienced contract lobbyists in Florida. They include:

J. Emmett Reed, CAEExecutive Director

Peggy RigsbyDirector of

Government Services

Tony MarshallSenior Director of Reimbursement

Bob AsztalosFHCA Chief Lobbyist

LuMarie Polivka-WestSenior Director

of Policy

Lee Ann GriffinDirector of Quality & Regulatory Services

Teresa HamlinGovernment Affairs

Support Administrator

Kristen Knapp, APR, CAE Director of

Communications

Travis Blanton, Johnson & Blanton, LLCMatt Bryan, Smith, Bryan & Myers

Amy Christian, Johnson & Blanton, LLCCarlos Cruz, Infinity Global Solutions, LLC

Jeff Hartley, Smith, Bryan & MyersBrian Jogerst, BH & Associates, Inc.

Jon Johnson, Johnson & Blanton, LLCDoug Mannheimer, Broad & CasselJoe McCann, Smith & BallardJulie Myers, Smith, Bryan & MyersSean Pittman, The Pittman Law GroupMelanie Phister, Johnson & Blanton, LLC

July 1, 2012 Law Changes That Affect Nursing

Homes and Assisted Living Facilities

83.42 Exclusions

Language is added to subsection (1) to state that for residents of a licensed nursing home, “the

provisions of s. 400.0255 are the exclusive procedures for all transfers and discharges”. This

change was needed to ensure that the provisions of Chapter 83, F.S., and governing public

evictions do not apply to nursing home residents.

400.021 Definitions

The definition of a “Geriatric outpatient clinic” (8) is amended to allow “a licensed practical nurse

under the direct supervision of a registered nurse, an advanced registered nurse practitioner or a

physician assistant” to staff the clinic. The existing law only allowed a registered nurse or a

physician to staff the clinic.

The definition of “Resident care plan” (16) is amended to remove the requirement for the care

plan to be signed by the “Director of Nursing or another registered nurse employed by the facility

to whom institutional responsibilities have been delegated and by the resident, the resident’s

designee, or the resident’s legal representative”. This change removes those additional signatures

and means the facility should use the federal requirements under F279-F280 for involving the

resident and legal representative, etc., in the care planning process.

A new definition (19) for “Therapeutic spa services” is added to the law. This term means

“bathing, nail, and hair care services and other similar services related to personal hygiene”. The

use of this term is explained under 400.141 later in this document.

400.1183 Resident Grievance Procedures

Subsection (2) is amended to require the facility to maintain records of all grievances and “a

report, subject to agency inspection of the total number of grievances handled, a categorization

of the cases underlying the grievances, and the final disposition of the grievances”. This change

means the facility will no longer submit grievance information at the time of facility re-licensure,

but will keep the same general information, that had been required as part of re-licensure,

available for the surveyor during visits to the facility.

400.141 Administration and Management of Nursing Home Facilities

Subsection (1) (f) encourages certain facilities to provide other services and that language now

includes “therapeutic spa services to nonresidents of the facility”. Such services are explained

above. In addition, respite care is now governed by new statutory language and no longer needs

rule making by the agency. Finally, providers of adult day services must comply with the

requirements of s. 429.905(2) which specify that a nursing home must be licensed as an adult

day care center if it holds itself out to the public as an adult day care center.

Subsection (1)(j) adds new language requiring the nursing home licensee to “maintain clinical

records on each resident in accordance with adopted professional standards and practices, which

must be complete, accurately documented, readily accessible, and systematically organized”. This

language is taken directly from the federal regulations at F514. It is expected that the agency will

be repealing medical records information, including the requirement for a medical records

consultant, in 59A-4.118, Florida Administrative Code.

Subsection (1)(n) is deleted from the law. This subsection eliminates management company

information as it is specified in Chapter 408, the general licensing statute.

Subsection (o) is deleted in part from the law. Gone are the requirements for the quarterly

reports of staffing rations, staff turnover and staff stability. Language that was retained was in

subsections (1) (o) d. e. and f. These are the subsections that address the requirements for a

facility to self-impose an admissions moratorium when the facility has failed to comply with the

minimum staffing requirements for two consecutive days. That requirement remains intact,

however the penalty for failure to self impose is changed from a Class II deficiency to a $1,000

fine.

Subsection (r) is deleted because the requirement to report bankruptcy is being added to s.

408.810—see below.

400.142 Emergency Medication Kits; Orders Not to Resuscitate

Subsection (3) is modified to remove rule making authority for the agency. The Department of

Health, long ago, developed a rule and form to implement do-not-resuscitate orders in Florida so

this rule making by the agency is not needed. There is no direct effect on facilities.

400.147 Internal Risk Management and Quality Assurance Program

Subsection (7) is amended to remove the requirements to notify the agency, within 1 business

day, of an adverse incident. The language also clarifies that the facility investigation and the 15

day report must be completed within 15 calendar days after the adverse incident occurred.

Subsection (8) is deleted from law. This is the 15 day requirement moved to (7) and other

information that is no longer going to be processed by the agency.

Subsection (10) which requires submission of notices and complaints filed with the clerk to be

submitted to the agency is deleted from law. This information is not used by the agency for any

regulatory action.

400.172 Respite Services

This new section added to chapter 400, sets out the law regarding respite care in nursing homes.

Until now facilities that want to provide respite care have not had any official guidelines on the

process and so this new section in law will be most helpful. If you wish to provide respite care be

sure to review this entire section.

400.23 Rules

Due to requirements from the state’s rule making oversight agency, it was necessary to amend

this section of the law to specify staffing requirements for persons under 21 years of age who

reside in nursing homes. The language used is taken directly from the administrative rule, 59A-

4.1295, F.A.C., so there is no net effect to facilities.

400.275 Agency Duties

Newly hired nursing home surveyors are no longer required to work in a nursing home as part of

their training. In addition the 5 year ban from surveying a facility where the surveyor worked is

changed to 2 years. Both of these provisions were requested by the agency.

408.037 Application Content

Subsection (c) is modified to allow a certificate of need application to include an audited financial

statement of “the applicant’s parent corporation if audited financial statements of the applicant

do not exist”. This language will be very helpful to many of FHCA’s member facilities.

408.804 License Required

Chapter 408 is called the “core licensing statute” because it contains all the general licensing

requirements that apply to all the providers licensed and regulated by the Agency for Health Care

Administration.

New language added to subsection (3) specifies that anyone who knowingly alters, defaces, or

falsifies a license commits a misdemeanor of the second degree.

408.806 License Application Process

Language in (2)(d) is amended to state that the agency shall provide a courtesy notice to

licensees at least 90 days before the expiration of a license, however failure to receive this notice

does not relieve the licensee of the obligation to timely file the renewal application. In (2)(c) the

late fee must be paid before an application can be processed.

408.810 Minimum Licensure Requirements

New language added to subsection (9) requires that “a controlling interest shall notify the agency

within 10 days after a court action to initiate bankruptcy, foreclosure, or eviction proceedings

concerning the provider in which the controlling interest is a petitioner or defendant”.

408.813 Administrative Fines

New subsection (3) is created which adds additional authority for the agency to impose

administratives fines for certain violations that are not designated as a class I, class II, class III

or class IV violation, with a fine not to exceed $500 for each violation, unless specified otherwise

in law. Unclassified violations include violating any term of the license, violating any provision of

law or rule, exceeding licensed capacity, provides services beyond the scope of the license and

violating an agency imposed moratorium.

429.195 Rebates Prohibited

The statute presently prohibits ALFs from contracting to pay or receive any commission, bonus,

kickback, or rebate with any person for resident referrals. These actions are considered patient

brokering and are punishable as a third degree felony as provided in s. 817.505, F.S.

Subsections (1) and (2) are amended to allow rebates in certain instances in the assisted living

facility setting. An exception is provided to prohibited kickbacks or payments for referrals to

authorize assisted living facilities to use employees or persons under contract with the facility, to

provide payments for referrals, and to compensate residents for referrals of friends. Specifically,

s. 429.195(3), F.S., is amended, providing that the following activities are not prohibited patient

brokering by ALFs and are not punishable as third degree felonies: employing or contracting for

marketing services; referral services which provide information, consultation, or referrals to

persons who are not Medicaid recipients; or referrals to an ALF by residents of the ALF.

468.1695 Licensure by Examination

A few words added to subsection (2) (a) 1. may open the door a little for applicants for nursing

home administrator licensure. In addition to a major in health care administration, the Board will

also now be able to consider an applicant who has a degree in health services administration, or

an equivalent major.

651.118 Agency for Health Care Administration

Subsection (8) is amended to change all references to using sheltered beds as extended

congregate care beds to using sheltered beds as assisted living beds.