A Message of Change Agency for Health Care

A Message of Change Agency for Health Care Administration 2001 Legislation Affecting Florida Nursing Homes and Assisted Living Facilities

Senate Bill 1202 - Initiatives • Quality Enhancements • Enhanced Enforcement • Tort Reform • Signed May 15, 2001

SB 1202 Implementation Status Initiative Implementation Date (GAA/Legislation) Status Nursing Home Risk Management and Internal Quality Assurance Program 5/16/01 Complete Nursing Home and Assisted Living Facility Adverse Incident Reporting 5/16/01 Complete Nursing Home 6 Month Survey Cycles 5/16/01 Complete Quality of Care Monitor Visits to Nursing Homes and Assisted Living Facilities 5/16/01 Complete Bed Vacancy Report 5/16/01 Complete Monthly Liability Claim Report 5/16/01 Complete Surveyor Guidelines for SB 1202 7/17/01 Complete Increased Staffing 1/1/02 On-going Long Term Care Reimbursement Plan 1/1/02 On-going Nursing Home and Assisted Living Facility Liability Insurance 1/1/02 On-going

Adverse Incident Statistics As of 8/24/01 • Total 2675 adverse incidents • 1975 (74%) nursing homes • 700 (26%) assisted living facilities • 21 investigated

Increased Monitoring SB 1202 pages 42 & 115 (sections 18 & 46) Nursing Homes • Quality of Care Monitors • Quarterly Visits • Focus on Risk Management • 209 Quarterly Visits Conducted to Date Assisted Living Facilities • Registered Nurse Monitors • Extended Congregate Care Quarterly Visits • Limited Nursing Services Semiannual Visits • 107 Visits Conducted to Date

Liability Insurance SB 1202 pages 52 & 140 (sections 22 & 66) Nursing Homes • Liability Insurance Required • AHCA Action Delayed Until January 1, 2002 Assisted Living Facilities • Existing Requirement Remains • AHCA Action Delayed Until January 1, 2002

Medicaid Nursing Home Reimbursement • AHCA directed to modify the nursing home reimbursement plan to split patient care into direct and indirect • Eliminate an increase in the Medicaid nursing home reimbursement rate due to a change of ownership to an unrelated party - Effective September 1, 2001 • AHCA annual report of direct and indirect care costs and staff salaries each July 1 st • AHCA to request federal waiver to use Medicaid per diem to fund risk retention group for self-insurance

Additional Provisions in SB 1202 • Medicaid Up or Out • Study of Electronic Monitoring Devices in Nursing Homes • Moratorium on CON for Nursing Home Beds • SB 1202 Applies Only to Nursing Homes and Assisted Living Facilities Licensed Under Chapter 400

NEW Medicaid Up or Out • Improve the quality of care for Medicaid residents in poor performing nursing homes and assisted living facilities • Develop a pilot to demonstrate the affect of assigning skilled and trained medical personnel to ensure the quality of care, safety, and continuity of care for long-term Medicaid recipients in the consistently poor performing facilities

NEW Medicaid Up or Out Strategy • Maximize the capacity of Medicare HMOs to manage the medical and supportive care needs of long term residents • Contract for programs which would assign skilled geriatric nurses to the poor performing facilities

Certificate of Need Moratorium Nursing Home Beds • Five Year Moratorium Until July 1, 2006 • Excludes Sheltered Beds • Low Nursing Home Bed Occupancy • Intended to Promote Development of Home and Community-Based Alternatives

Electronic Monitoring Devices • Joint Project Between AHCA and the Attorney General’s Office • Initial Research Completed • Public Meeting Scheduled in October • Report Due January, 2002

Additional 2001 Legislation • Immunization Requirements HB 1003 -Mailed to Nursing Homes 8/24/01 • Additional Funding for the Teaching Nursing Home - Geri U Web Site - Dementia Training Modules • Center on Nursing • DOEA Promulgating ALF Rules and Nursing Home Alzheimer’s Training • AHCA Nursing Home Rule Revisions Workshop August 17, 2001

Update on Legislation • Medical Director Requirements 59 A -4. 1075, Effective August 2, 2001 • Nursing Home Gold Seal Rule 59 A 4. 200, Effective August 17, 2001 • Nursing Home Guide Beta Testing for Internet • Consumer Satisfaction Survey

Medical Director Criteria • Designate One Physician to Serve as Medical Director • Must Have Hospital Privileges or be Certified or Credentialed • Principle Office within 60 Miles (Exceptions for Rural Locations) • Maximum of Ten Facilities • Visit Facility at least Once a Month • Review all Policies, Incident Reports, and Grievance Logs for Clinical Issues

Gold Seal Award Criteria Nursing Home Must Be Licensed For 30 Months Quality of Care Standards • Consider Past 30 Months • Top 25% In Quality of Care Rank • No Conditional Licenses • No Class I or II Deficiencies

Gold Seal Award Criteria Financial Standards • Free of Bankruptcy Proceedings For Past 30 Months • Meet Two of Three Financial Thresholds Over 30 Months or All Three Thresholds For Past Six. Months: - Positive Current Ratio of At Least One - Positive Tangible Net Worth - Time Interest Earned Ratio of At Least 115%

Gold Seal Award Criteria Staff Stability • Turnover Rate of Not More Than 85% • A Stability Rate of At Least 50% • Evidence of Efforts To Maintain Stable Workforce

Gold Seal Award Criteria • Outstanding Ombudsman Complaint History • Evidence of Family And Community Involvement • Targeted In-Service Training Programs

Gold Seal Review • Governor’s Panel on Excellence in Long Term Care will Review Applications at Meetings (Locations Vary) • Opportunity to Present Before the Governor’s Panel on Excellence in Long Term Care • Facility Site Visit by Panel Members • Recommendations to Governor

Gold Seal Application

Nursing Home Guide

Information AHCA Web Site: www. fdhc. state. fl. us See Nursing Home Guide Button Elizabeth Dudek, Deputy Secretary Managed Care and Health Quality (850) 487 -2528

Journey Through Chapter 400 Changes 2001 Senate Bill 1202 Regulatory Impact on Florida Nursing Homes

Relevant Materials • Bill on Page 15 of Handouts • New 2001 Statutes Available: www. myflorida. com • ASPEN State Regulation Set for Nursing Home Licensure - Survey Guidance - Available AHCA (850) 488 -5861

Public Records • All Records at AHCA are Public Record • Unless Specifically Exempt from Public Review (Adverse Incidents) - Each Letter Received - Each Survey Report - Each Application Submitted • Hundreds of Requests Each Month • Accuracy of Information Submitted is Critical, Including Resident Census 672

Quality Measures • Nursing Home Risk Management • Assisted Living Adverse Incident Reporting • Increased Monitor Visits by the Agency • Nursing Home Staffing Requirements • Staff Training • Discharge & Transfer • Liability Insurance • Care Plan Signed by DON and Resident • Physician Referral for Signs of Dementia or Cognitive Impairment • Daily ADL Charting

Risk Management SB 1202 pages 53 (section 24) Nursing Homes • Risk Manager • Program & Committee • Monthly Meetings • Adverse Incident Investigation & Report

AHCA Risk Management Forms • 1 -Day Adverse Incident Report • 15 -Day Adverse Incident Report • Monthly Report of Liability Claim Information

Nursing Home Risk Manager Question – Must a nursing home risk manager be licensed or credentialed? Answer - Section 400. 147(1)(a) does not require that the risk manager have particular credentials, only that the facility have a risk manager designated who is responsible for the implementation and oversight of the facility’s risk management and quality assurance program.

Adverse Incident Reports SB 1202 page 55 (sections 24) Nursing Home • Initial Report • 3 Days to Risk Manager • 1 Day from Risk Manager to Agency • Complete Report 15 Days to Agency

Adverse Incidents Defined Facility Responsibility Nursing Homes An event over which facility personnel could exercise control and which is associated in whole or in part with the facility's intervention, rather than the condition for which such intervention occurred, and which results in one of the following:

Adverse Incidents Defined Facility Responsibility • • Death Brain or spinal damage Permanent disfigurement Fracture or dislocation of bones or joints A limitation of neurological, physical, or sensory function Any condition that required medical attention to which the resident has not given his or her consent, including failure to honor advanced directives Any condition that required the transfer of the resident, within or outside the facility, to a unit providing a more acute level of care due to the adverse incident, rather than the resident's condition prior to the adverse incident

Adverse Incidents Defined Facility Responsibility is Not Considered for: • Abuse, neglect, or exploitation as defined in s. 415. 102 • Abuse, neglect and harm as defined in s. 39. 01 • Resident elopement • An event that is reported to law enforcement

Resident Elopement Question: How is “elopement” defined for the purposes of adverse incident reporting? Answer: Elopement is when a resident leaves the facility without following facility policy and procedure.

Adverse Incident Reporting Question – If, prior to the required report date, facility staff determine that an incident does not meet the definition of an adverse incident as specified in statute, is a report to the Agency still required? Answer – Only those incidents that meet the definition of an Adverse Incident must be reported to the Agency. If the facility is able to determine that the incident does not meet the definition, prior to the required report date, then a report is not required. However, if the facility has not yet determined if the incident meets the definition the incident must be reported on the 1 -Day report. After the facility investigation is complete and if it is determined that the incident does not meet the definition of an adverse incident, then the facility staff may report on the 15 -Day report that the incident was determined not to be an adverse incident.

Confidential Nursing Home Initial Adverse Incident Report – 1 Day

Confidential Nursing Home Complete Adverse Incident Report – 15 Day

AHCA Adverse Incident Review 1 - Day Reports are reviewed by a clinician to determine necessary AHCA involvement. Possible outcomes: • Decision to wait for 15 – Day Report (facility investigation) • For situations that rise to level of threat to resident health and safety: *On-site review by Field Office surveyors *Review of report for possible practitioner involvement • Additional information requested

AHCA Adverse Incident Review 15 - Day Reports are reviewed by a clinician to determine necessary AHCA involvement. Possible outcomes: • On-site review by surveyors for situations that rise to level of threat to resident health and safety • Review of report for possible practitioner involvement • No action necessary • Reports will be used for surveyor offsite preparation

Adverse Incident Reports When completing a report, providing answers to basic questions allows AHCA reviewers to determine appropriate action. Basic Questions: Who, What, Where, When, Why

AHCA Annual Adverse Incident Reports AHCA Annual Reports to Legislature detailing: • Total number of adverse incidents by county • Categories of incidents and type of staff involved • Types and number of injuries by categories • Types of liability claims filed based on adverse incidents • Disciplinary action taken against staff

Nursing Home Monthly Liability Claim Information

Nursing Home Monthly Liability Claim Information Form Completion • Include the Facility Name on Each Form • Do Not Use the Monthly Liability Claim Information Form to Report Adverse Incidents

Nursing Home Staffing SB 1202 page 72 (section 30) Hours of Direct Care per Resident per Day Certified Nursing Assistants • 1/1/02 - 2. 3 Hours Never Below 1: 20 • 1/1/03 - 2. 6 Hours • 1/1/04 - 2. 9 Hours Licensed Nurses • Effective 1/1/02 • 1. 0 Hours • Never Below 1: 40 Never Below 1: 20 CNA and 1: 40 Licensed Nurse is an Alternative to Per Shift Ratios

Staff Counted Toward Ratio SB 1202 page 72 (section 30) • Nursing Assistants (awaiting certification – see definition 400. 211) may be counted toward CNA ratio if providing nursing assistance services to residents on a full-time basis • 4 -Month Window - in an approved (by Dept of Education) training program or awaiting reciprocity • CNAs and Licensed Nurses – time spent providing direct care to residents • Nurse Managers – can count time spent providing direct care if part of their duties

Report Staffing Information SB 1202 page 50 (section 22) • 400. 141(15) Requires minimum of semiannual reporting of staff ratios, turnover and stability to AHCA • Gold Seal criteria • Ratio in categories specified in 400. 23(3)(a) and rules – average for the most recent calendar quarter • Turnover for most recent 12 -month period • Staff stability – employees employed for more than 12 months

Report Staffing Information Question - When will providers have to begin submitting staff information to the Agency? Will the format for reporting be specified by the Agency? Answer – The Agency will request the first report in October 2001 for the period ending September 30, 2001. The report format will be provided by the Agency.

Moratorium for Insufficient Staff SB 1202 page 51 (section 22) • Self-Imposed Moratorium • No New Admissions if Fail to Meet Staffing Minimums for 2 Consecutive Days • Moratorium Stands Until Staffing Minimums are Achieved for 6 Consecutive Days • Class II Deficiency for Failure to Comply

Alzheimer’s Training & Information for Nursing Homes SB 1202 page 62 (section 26) • Alzheimer’s Information Provided to All Staff • For Staff Hired After July 1, 2001: – 1 - Hour Training for Direct Contact Staff – 3 - Hours Training for Direct Care Staff

Alzheimer’s Training Direct Contact Question - For the purpose of the required 1 -hour training, how is "direct contact" defined? Would this definition include housekeeping and dietary personnel? Answer – Guidance to surveyors defines direct contact as person to person contact whether the contact be physical, verbal, or within the resident’s surroundings. Staff meeting this definition include but are not limited to nursing staff, dietary staff, activity staff, social service staff, housekeeping staff and maintenance staff.

Alzheimer’s Training Direct Care Question - For the purposes of the required 3 -hour training, how is "direct care" defined? Would this definition include only nursing staff or therapists and others? Answer – Direct care would include providing personal or health care services to residents.

Efforts to Develop Training • Department of Elder Affairs Final Criteria Not Yet Approved • Teaching Nursing Home • Alzheimer's Resource Center

Alzheimer’s Training Affected Staff / CNA Inservice Question - Are all existing direct care staff required to have 3 hours of Alzheimer’s training by July 1, 2002 or only those hired after July 1, 2001? Answer - Only those hired after July 1, 2001. However, all staff are required to have the skills and education to provide the necessary care and services to residents. Question - Can the Alzheimer’s training requirement count toward the 18 hours of CNA training required annually? Answer – Yes.

Certified Nursing Assistants SB 1202 pages 68 &124 (sections 29 & 50) Nursing Homes CNA In-service 400. 211(4) • Requires 18 Hours of In-service Annually • In-service Must Address Areas of Weakness As Determined by CNA Performance Review Certification of All CNAs 464. 203 • Requires Work in a 24 Month Period to Maintain Certification • Requires 18 Hours of In-service Each Calendar Year

Discharge & Transfer SB 1202 pages 36 (sections 13) Nursing Homes • AHCA Notice only Required if Facility Initiated • Notice Not Required if Initiated by Resident or Resident’s Physician • Consistent with Federal Notice Requirements

Revised Discharge/Transfer Forms English & Spanish

Nursing Home Discharge & Transfer Question – If the resident’s physician signs for the resident’s discharge is the AHCA Discharge and Transfer Notice required? Answer – 400. 0255 requires the notice only for discharge initiated by the facility, not the resident or resident’s physician. Question – Does a Baker Act transfer require use of the AHCA Discharge and Transfer Notice? Answer – 400. 0255 requires the notice only for discharge initiated by the facility, not the resident or resident’s physician.

Nursing Home Care Plan Definition SB 1202 page 14 (section 2) • Director of Nursing • Resident, Resident’s Designee or Resident’s Legal Representative

Nursing Home Care Plan DON Signature Delegation Question - Can anyone else sign care plans in case of DON incapacity or unavailability? Answer – Guidance to Surveyors (N 0076) details delegation of the DON signature to the Assistant DON in accordance with 59 A-4. 108(1) or to another nurse (registered) through formal delegation of institutional responsibilities demonstrates compliance. Such delegation should be documented and remain on file.

Nursing Home Care Plan DON Signature Question – How often must the Director of Nursing (DON) sign the care plan? Answer – The care plan must be signed by the DON each time it is completed, i. e. quarterly or when a significant change has occurred. Question - Where does the DON sign the care plan? Answer - The law does not specify where the DON should sign on the actual care plan. Each facility should develop a policy and procedure on the signature requirement. Question – By what date must the DON must sign the care plan? Answer – Guidance to Surveyors (N 0076) indicates signature within 7 days of the comprehensive assessment as the care plans must be completed within 7 days.

Nursing Home Care Plan Resident Signature Question – What is the facility’s responsibility if the resident or resident representative will not sign the care plan? Answer – The facility staff should document and retain on file, efforts to obtain the resident signature.

Referral for Evaluation of Dementia or Cognitive Impairment SB 1202 pages 51 (sections 22) Nursing Homes Question - When a facility notifies a physician that a resident exhibits signs of dementia or cognitive impairment, what is the facility responsibility after that notification? Answer - Facilities already have the obligation to implement appropriate interventions for a change in condition.

Daily ADL Charting SB 1202 page 50 (section 22) 400. 141(21) • Resident medical record must include a daily chart of certified nursing assistant services. • The certified nursing assistant who is caring for the resident must complete this record by the end of his or her shift. • This record must indicate assistance with activities of daily living, assistance with eating, and assistance with drinking, and must record each offering of nutrition and hydration for those residents whose plan of care or assessment indicates a risk for malnutrition or dehydration.

Enhanced Enforcement • Controlling Interest Information Disclosure • Six-Month Survey Cycle for Nursing Homes • Classification of Deficiencies • Fines for Violations • Enhanced Grounds for Agency Action • Required Nursing Home Revocation or Denial for Certain Violations

Nursing Home Controlling Interest SB 1202 page 12 (section 2) AHCA May Deny Application Based on Adverse Action Defined as: • Applicant • Licensee • Management Company • Interest in Above: - 5% or Greater Ownership Interest - Officer - Board of Directors (Excludes Voluntary Board Members) Disclosure Required at: • Initial Application • Change of Licensed Operator (CHOW) • Renewal Application • Change in Management Company AHCA Form for Required Disclosure

Controlling Interest Disclosure Form

Six-Month Survey Cycle 400. 19 - SB 1202 page 65 (section 27) Requires 6 -month survey cycle for 2 years for a nursing home that has • been: Cited for a Class I deficiency, • Cited for two or more Class II deficiencies arising from separate surveys or investigations within a 60 day period, OR • Three or more substantiated complaints within a 6 month period, each resulting in at least one Class I or II deficiency • Cited for last deficiency after 5/15/01 • Seven facilities qualify as of 8/23/01

Six-Month Survey Fine • $6, 000 fines for the 2 -year period ($3, 000 per extra survey) • Half ($3, 000) paid at the completion of each survey • Agency may adjust the fine by consumer price index • Fine to be assessed by administrative complaint

Deficiencies SB 1202 pages 77 (sections 30) Nursing Homes • Create Definition of “Scope” in State Law • Create Class IV • Align State Classification with Federal Assignment of Scope and Severity

Scope of Deficiencies 400. 23(8) SB 1202 page 76 (section 33) The scope shall be cited as isolated, patterned, or widespread. An isolated deficiency is a deficiency affecting one or a very limited number of residents, or involving one or a very limited number of staff, or a situation that occurred only occasionally or in a very limited number of locations. A patterned deficiency is a deficiency where more than a very limited number of residents are affected, or more than a very limited number of staff are involved, or the situation has occurred in several locations, or the same resident or residents have been affected by repeated occurrences of the same deficient practice but the effect of the deficient practice is not found to be pervasive throughout the facility. A widespread deficiency is a deficiency in which the problems causing the deficiency are pervasive in the facility or represent systemic failure that has affected or has the potential to affect a large portion of the facility's residents.

Class IV Deficiency 400. 23(8)(d) SB 1202 page 79 (section 33) • A deficiency that the agency determines has the potential for causing no more than a minor negative impact on the resident. • If the Class IV deficiency is isolated, no plan of correction is required. • Correlates to A, B, or C level deficiency

State & Federal Correlation Class I Isolated = J Pattern = K Widespread = L Class III Isolated = D Pattern = E Widespread = F Class II Isolated = G Pattern = H Widespread = I Class IV Isolated = A Pattern = B Widespread = C Conditional License Issued for Citation of a Class I, Class II or Uncorrected Class III

Enforcement Matrix

LONG TERM CARE FACILITIES ENFORCEMENT MATRIX

Fines SB 1202 pages 77 (sections 30) Nursing Homes • Required Fine Amounts • Fines for Class II Regardless of Correction • Based on Classification and Scope of Deficiency • Effect for Surveys Completed 5/16/01 • Six-month Survey Fine

Nursing Home Fine Amounts 400. 23(8) - SB 1202 page 77 (section 30) Class I Isolated (J) 10, 000 / 20, 000* Pattern (K) 12, 500 / 25, 000* Widespread (L) 15, 000 / 30, 000* Class II Isolated (G) 2, 500 / 5, 000* Pattern (H) 5, 000 / 10, 000* Widespread (I) 7, 500 / 15, 000* Class III (uncorrected) Isolated (D) 1, 000 / 2, 000* Pattern (E) 2, 000 / 4, 000* Widespread (F) 3, 000 / 6, 000* * The fine amount shall be doubled for each deficiency if the facility was previously cited for one or more class I or class II deficiencies during the last annual inspection or any inspection or complaint investigation since the last annual inspection.

Nursing Home Fines • Uncorrected deficiencies are finable as independent deficiencies • If a deficiency is uncorrected upon revisit as Class III, it is finable as an uncorrected Class III even if it was previously cited at a higher level (Class I or II) • No fine is imposed for a Class IV deficiency

Fine Process • Initial Notice by: Administrative Complaint (Deficiencies) or Intent to Impose Letter (Late Application Fines) - Elect to Pay or Challenge - 21 Days to Request Hearing • Final Order Imposes Fine with 30 Days to Pay • If Not Paid, License May be Denied or Revoked

Nursing Homes Required Denial & Revocation 400. 121(3) SB 1202 page 45 (section 20) • The Agency shall revoke or deny a nursing home license if the licensee or controlling interest operates a facility in the state that has: • Two moratoria for substandard quality of care in a 30 month period, • Conditional license for 180 consecutive days, • Two class I deficiencies on separate surveys in a 30 month period, OR • Two class I deficiencies on same survey for unrelated circumstances. • Licensee may present factors in mitigation of the action.

Enhanced Grounds for Action Nursing Home • Unpaid Fines • Alteration of Records

Additional Licensure Requirements in SB 1202 Nursing Homes • Report Management Company Renewal and Change • Vacant Bed Reporting • Report Bankruptcy, Corporate Reorganization, or Transfer of Assets

Additional Licensure Requirements in SB 1202 • Resident Grievance Procedure • Post Watch List • Dining & Hospitality Attendant Program

Vacant Bed Reporting

Assistance with Eating Question – Who can assist a resident with eating? Answer – The Health Care Financing Administration (now CMS) defines assistance with eating, such as feeding a resident, as a nursing related service. The only staff who can provide nursing and nursing related services are nurses aides, licensed health professionals, registered dietitians or licensed dietitian/nutritionists and volunteers. Licensed health professionals are defined [42 CFR 483. 75(e)(1)] as a physician, physician assistant, nurse practitioner, physical therapist, speech therapist, occupational therapist, physical or occupational therapy assistant, registered professional nurse, license practical nurse or licensed or certified social worker. Accompanying a resident during meal-time or queuing a resident to eat are not considered nursing related services. Feeding or hand-over-hand assistance are nursing related services.

AHCA Duties Nursing Home Survey Staff SB 1202 page 80 (section 32) • New Surveyors Spend Two Days in a Nursing Home • Joint Training for Surveyors and Providers • 50% of Surveyor Training in Geriatric Care • Geriatric Experienced Physician or Nurse Participation in Informal Dispute Resolution for Substandard Quality of Care

Resources * Forms * Information AHCA Web Site: www. fdhc. state. fl. us Long-Term Care Unit (850) 488 -5861

Presentation Materials This presentation was made during State-wide Provider Training September, 2001 Material must be reviewed in conjunction with applicable statues and rules