1. Recommendation:  Maintain the minimum staffing standards contained in statute without changes of any kind.

Discussion: For the three years prior to the passage of SB1202, Florida had led the nation in staffing deficiencies.  Adequate staffing, as the Centers for Medicare and Medicaid outlined in their 2000 report, is central to improving the quality of care in nursing homes.  SB 1202 provided incremental increases in the minimum staffing requirements and when the final increase in implemented in January 2004, Florida will be the first state in the country to staff nursing homes at the level recommended to Congress in the August 2000 staffing report prepared by Health Care Financing Administration.  Please resist attempts by the nursing home industry to complicate the minimum standards with confusing formulas allowing 95% compliance, or waivers or exemptions of any kind.  A daily minimum is a minimum.  Residents need care every day, not 95% of the time. They need care at night and on weekends, not just Monday through Friday. Staffing standards should be easy to calculate and clear.  SB1202 does this, and if for whatever reason a facility cannot meet the staffing requirements, SB1202 provided the appropriate remedy-- stop admitting new residents

2. Recommendation:  Require Criminal background checks be conducted before CNAs are granted certification status and listed on the CNA registry;

3. Recommendation:  Require Certified Nursing Assistants (CNAs) to renew their certificates biennially

4. Recommendation:  To be eligible for renewal the CNA must have worked a minimum of 40 hours for monetary compensation in a health care setting or role during the last 24-month period; 

5. Recommendation:  Authorize the CNA Registry to charge a renewal fee to support the recertification process;

6. Recommendation:  Require literacy in order to receive state certification as a CNA.  At a minimum, CNA’s should be able to read and write, and communicate in English; 

7. Recommendation:  Include penalties for CNAs who falsely chart in the care records of residents in institutions or long term care facilities including but not limited to loss of their certification.

Discussion: CNAs are the backbone of the LTC delivery system representing approximately 80-90% of the care the residents receive.  Florida’ s CNA Registry currently contains names of CNAs who have moved or died, and needs a complete overhaul. Criminal background checks are currently required at the time of employment, after the CNA has already been listed on the Registry.  We should conduct criminal background checks prior to certification, not at time of employment.  We should require recertification every two years, to keep the registry current.  We should require that CNAs be able to read, write and communicate in English.  We should require that they complete the State approved training course, and not allow individuals to become CNAs merely by passing the test, as is currently done. This lack of training endangers our residents.

COMMUNICATIONS AND TECHNOLOGY

1. Recommendation:  Give nursing home residents and their families the right to install electric monitoring devices if they choose to, at their own expense.  

2. Recommendation:  Develop specific consequences for a facility or employee who attempts retaliatory action against a resident or their family members for installing a monitoring device at their own expense, or allowing it to be a barrier to admission or reason for discharge.

Discussion: Currently, Nursing home residents are prevented from using Internet and video monitoring equipment (provided at their own expense), not by law but by prohibitions written into facility admission agreements, and by the retaliation suffered at the hands of nursing facilities. Two years ago, the legislature, in its wisdom, charged the Attorney General and AHCA to study this issue, and issue a report. The report, concluded that the likely deterrent effect on resident abuse and neglect would work well in Florida and Legislation should allow Floridians to make this choice but that legislation was necessary to ensure the right and protect residents who choose to exercise it.

3. Recommendation:  Require nursing homes to maintain photographic records of stage II or higher wounds.

Discussion: Many, many of the nursing home lawsuits involve issues with hideous, painful and preventable bedsores or pressure sores. Sometimes these wounds are as big as grapefruits and open clear down to the bone.   In past years it was a common industry practice to regularly photograph these wounds so the doctor would have this information as well as the nursing information available to him to determine the appropriate course of treatment.  Few nursing homes bother to photograph these wounds any longer.

4. Recommendation:  Correct glitches in SB 1202 by requiring charting of Activities of Daily Living (ADL) charting in assisted living facilities if requested by the resident, their legal representative, or the payer of the care.

Discussion:  SB 1202 contained language assigning penalties for failure to chart ADLs in ALFs, but the language which required that the charting be done was amended out of the bill. Since Assisted Living Facility residents pay different amounts for different levels of care, the residents and their families should have a way to measure the care that is being provided against the charges for those services.  Without care charting (a the initials of an aide indicting a service was performed) the resident and families have no way of determining if the care paid for was provided.

5. Recommendation:  Require that at least weekly nursing notes/summaries be included in the medical record of long term care residents.

Discussion:  Nurses notes are currently not required to be part of the resident’s medical record for other than Medicare skilled residents.

6. Recommendation:  Require state surveyor’s to notify the Attorney General’s Medicaid Fraud Control Unit if there is any suspicion on the part of the AHCA surveyors that medical records or charts have been incorrectly, falsely, or fraudulently recorded, including MDS coding.

Discussion:  False charting is a common practice in many nursing homes.  Currently there are penalties for false charting, but there is no requirement that suspicion of false charting by AHCA surveyors be reported to the AG’s office so that those penalties can be imposed.

CONSUMER PROTECTIONS

1. Recommendation:  Allow nursing home residents who are victims of “adverse incidents” or their responsible party, to obtain a copy of the adverse incident report sent to AHCA, and the results of AHCA’s investigation.

Discussion:  These reports are currently exempt from section 119.07(1), F.S. and section 24(a) of Article 1 of the State constitution.  Victims and their families should not be deprived of this information. The legislature passed SB 1200 which provided an exemption for the individual accused on the misdeed, but the victim does not have the right to the same information.

2. Recommendation:  Amend Ch. 400 to define a “Family Council” as a group that includes a family member, friend, or representative of 2 or more residents or former residents of a nursing facility which is led by residents and their families, not by the facility, and works to protect residents’ rights and improve residents’ quality of life.

Discussion:  Current law does not define family councils, and facilities often try to control the meetings.  We need to clarify that representatives of former residents may attend the meetings.  

3. Recommendation:  Each nursing home must comply with federal law and regulations, including the Nursing Home Reform Act of 1987, that protect the rights of residents and their families and representatives to associate and to participate in resident and family groups, such as a family council. This requirement applies even if the nursing home is not otherwise subject to the federal law. 

Discussion: Facilities that accept private pay only residents are not subject to federal requirements.  We need to clarify that they must allow the formation of independent family councils.

4. Recommendation:  Each nursing home must consider and respond in writing to any written grievance or other written communication from a family council within 10 days after receiving the communication. 

Discussion:  this recommendation ensures that family council concerns are addressed by the facility.

5. Recommendation:  If a nursing home resident files a complaint with the Ombudsman Program alleging theft of their personal property and the Ombudsman Program conducts a full investigation and confirms the complaint, require the nursing home to replace the resident’s property.

Discussion:  Resident theft is an ongoing problem, and this recommendation requires facilities to be responsible for replacing stolen articles if an Ombudsman confirms the complaint.

6. Recommendation:  Prohibit nursing homes from using guardianships, trespass warrants and restraining orders to control families who actively advocate on behalf of nursing home residents.

Discussion: Nursing Homes have begun the despicable practice of using restraining orders, trespass warrants and guardianships to prohibit concerned family members from being allowed in the nursing home.  Family members are most important first line of defense against abuse, neglect and exploitation of nursing home residents, and must not be silenced by facilities using these tactics.

CONSUMER INFORMATION

1.  Recommendation:  Revise the Agency’s “Guide to Nursing Homes in Florida” by adding the following information for each nursing facility:

• The number and type of substantiated Ombudsman complaints, verdicts from courts of competent jurisdiction, investigations by the Attorney General’s office and the outcome; 
• Each nursing home’s owner/management/chain affiliation including a history of ownership changes and all previous names; 
• A list of any enforcement actions taken against the facility over the past 36 months, including moratoriums and fines.
• Each facility’s staffing ratio and turnover ratio,
• A notification of whether the facility has a viable Family Council, and the contact information

2. Recommendation:  Require nursing facilities to provide AHCA a copy of their price list for all resident required fees for services and submit updates whenever their prices change, and require AHCA to publish the information on an annual basis the current private pay rates and a list which includes what the facilities charge for extra items such as diapers ensure, etc.  This information should be filed annually with their licensure renewal.

Discussion:  There are no restrictions on how much Nursing Facilities are allowed to charge private pay residents, or what they can charge for items and services not covered by Medicare and Medicaid.  This recommendation merely requires that they disclose their prices.

3. Recommendation:  Require the Agency to publish, in print format as well as on the Agency’s Internet website a quarterly report on Federal and State Civil Money Penalties imposed and collected. 
 
Discussion:   This information is currently collected by the Agency, and should be made available to the public.

REGULATORY REFORM

1.  Recommendation:  Require the County Medical Examiner’s Office to examine bodies of any person who dies in a nursing home or within five days of being a resident of a nursing home.

Discussion:  This requirement would assist in identifying cases of abuse or neglect of nursing home residents.  This was recently passed in Arkansas without additional funding.  

2.  Recommendation:  Require nursing homes to report all observations and allegations of a crime or suspicious injuries or death to the local police for prompt investigation. Willful delay by a staff member or supervisor in making the report required by this section shall be a misdemeanor punishable by a fine of from $100 to $10,000; When reporting a crime to the local police, nursing facilities shall be required to protect the crime scene and preserve all evidence.

Discussion:  Often incidents that would be considered a crime in any other setting often go undetected and unpunished when they occur in nursing homes.  This recommendation requires that all suspected crimes be reported immediately to law enforcement for investigation, and prohibits the nursing home from cleaning up the crime scene before the police arrive, thereby destroying evidence.

3.Recommendation:  Police Training. Require that AHCA, the Attorney General’s office and FDLE design a training program in investigation and resolution of alleged crimes against nursing home patients which shall be included in required training for all police recruits or at least made available to law enforcement agencies in Florida.

Discussion:  If above recommendations are adopted, local police will require appropriate training.

4.  Recommendation:  Require mandatory notification to ABUSE hotline, AHCA and local law enforcement by Emergency Room personnel and Funeral Home staff of suspected abuse of nursing home residents including but not limited to bruising, rape, wounds and pressure sores.

Discussion:  Same rationale as above.

5.  Recommendation: Protect employees of the nursing home who report fraud, mistreatment of residents or gross waste of public funds.
 
Discussion:  The majority of nursing home care in Florida is paid for by a combination of Medicare, Medicaid or VA funds.  The original 2001 legislation contained a whistle blowers provision to protect employees of the nursing home who report fraud, mistreatment of residents or gross waste of public funds.  This whistleblower protection does not burden the state treasury and may, in fact, assist in making sure the taxpayers’ funds are appropriately used.

6.  Recommendation: Change the current Medicaid bed hold policy from 8 days to 16 days of bed hold for Medicaid recipients admitted to a hospital.  Instead of reimbursing facilities 100% of the per diem rate as is currently done, reimburse at 50% of the Medicaid nursing home per diem rate.  Require hospitals to notify the Agency if a nursing facility refuses to readmit a resident upon discharge from the hospital.

Discussion: Currently, Medicaid reimburses nursing homes 100% of the per diem rate when a resident is in the hospital – essentially an empty bed.  Often after the hospitalization, they refuse to take the resident back.  This recommendation reduces reimbursement for the empty bed to 50%, but increases the length of time the bed can remain empty to 16 days.  It further requires the facility that collects the reimbursement to re-admit the resident.

7. Recommendation:  Gold Seal facilities should lose their Gold Seal if the facility or owner is convicted of Medicaid or Medicare fraud, convicted of a crime, or if their Quality Indicators fall below the National Average, as determined by the Centers for Medicaid and Medicare Services (CMS).

Discussion:  Current law does not specify the conditions under which a gold Seal facility should lose the designation.

8.  Recommendation:  Require the Gold Seal panel to make site visits to potential Gold Seal Facilities prior to making a recommendation to the Governor.

Discussion:  Current law does not require site visits which should be a requisite component of evaluating the “best” nursing homes by the Gold Seal panel.

9.  Recommendation:  Allow  CCRC’s to use liquid reserve to demonstrate financial soundness for the purpose of applying for the Gold Seal.

Discussion:  Currently, all applicants for the Gold Seal are required to submit an audited financial statement.  CCRCS should be permitted to demonstrate financial soundness by the same means required by the Department of Insurance which is their regulatory agency.

10. Recommendation:   Impose a requirement of a two-year hiatus before regulators could be employed by or serve as a consultant or lobbyist for the industry they were regulating.  Likewise, make it a hiring practice for state government that industry personnel not be placed in regulatory or senior management positions for the industry in which they have just been employed for a period of at least 2 years.

Discussion:  This recommendation addresses the conflicts of interest that arise when former regulators go to work for the industry they were regulating, and former industry representatives go to work regulating an industry where they continue to have friends and personal relationships.

FINANCIAL AND OPERATIONAL

1. Recommendation:  A) Require the state to adopt a universal nursing home admissions contract.  The contract should be developed and approved by AHCA and the Attorney General’s office and be required to be used for all admissions to licensed nursing facilities in Florida.  B) Require the state to adopt a universal Assisted Living Facility (ALF) admissions contract.  The contract should be developed and approved by AHCA and the Attorney General’s office and be required to be used for all admissions to ALFs in Florida.

Discussion:  Currently nursing facilities and ALFs develop their own admission contracts.  A recent study by Bet Tzdek Legal Services in California demonstrated that most of these admission contracts contain misleading and illegal provisions. Nursing home residents are generally not capable of navigating the complexities of legal documents; therefore a state approved contract would provide essential protections.

2. Recommendation:  Require nursing homes to provide financial restitution to the Medicaid program if the contracted services are not provided in accordance with their Medicaid provider agreement and applicable regulations and standards of care.  Give AHCA rule writing authority to implement this requirement.

Discussion:  This recommendation enables AHCA to recover funds from providers who fail to provide the contracted services without requiring the state to cancel the provider agreement in its entirety.

3. Recommendation:  Medicaid Savings: A.) Enforce swift payment of amounts due to the state by requiring that all fines, penalties, and cost overpayments owed by Nursing Facilities be paid via automatic deductions (offset) from Medicaid payments due to the Nursing Facility.  B.) Cap the salaries of nursing home employees/owners/home office executives or consultants at $100,000 of Medicare/Medicaid reimbursable costs; Limit the Medicaid reimbursable dues of nursing home professional associations to $5 per bed; C.) Limit the allowable Medicaid reimbursement for home office, management, consulting and or administrative fees to 3% of the allowable costs; Limit the allowable Medicaid reimbursement for  “agency” or “pool” staff to 1% of a facility’s direct care nursing staff budget, or only allow them to charge the starting hourly rate for the classification of employee being engaged though the direct patient care component and any differential in the rate be added to the indirect care subcomponent.

Discussion:  This recommendation enables AHCA to collect fines and penalties, and also ensures that Medicaid funds are not used to pay exorbitant administrative costs. Additionally, the use of agency staff at nursing homes is the most expensive and least efficient use of manpower.  Limitations on either the amount or the reimbursement should disincline the use of agency in favor of facility employees.

4. Recommendation:  Require all nursing facilities to file a final cost report when there is a change of ownership, even if the cost report is for a partial year; Require facilities to pay a $100 per day fine for late cost reports.

Discussion:  This recommendation is intended to prevent facilities that change ownership from draining the bank accounts prior to turning over the facility to the new owners and reaping a benefit by not using Medicaid per diem dollars for the care of residents It also addresses the existing problem of late filing of cost reports.

5. Recommendation:  Require at the time of nursing home license renewal, that facilities provide documentation of a positive equity position and that renewal not be granted unless the facility demonstrates sufficient financial viability.

Discussion:  This recommendation is intended to ensure that facilities are financially sound and empowers AHCA to deny licensure to facilities that are not financially viable.  It also helps protect the community from sham transactions.