January 24, 2012

Assisted Living Facilities Under the Microscope in Florida

Holland & Knight Alert
Mia L. McKown

Beginning on April 30, 2011, The Miami Herald published a three-part series of articles on severe abuse and neglect taking place in Florida assisted living facilities (ALFs). The articles detailed horrific incidents and conditions in certain homes, and reported that Florida regulators have, in some cases, taken few actions to address situations where residents have been harmed. In response to The Miami Herald’s investigative series, various Florida officials conducted reviews, which resulted in numerous recommendations on how to improve the state’s ability to monitor quality and safety in ALFs and ensure the well-being of ALF residents.

Task Force Makes Recommendations

On June 27, 2011, Governor Rick Scott vetoed House Bill 4045, which removed many reporting and filing requirements for ALFs.1 Governor Scott advised that until a deliberate examination of the regulation and oversight of ALFs was conducted, he would not approve legislation that relaxed any requirements for ALFs even though he recognized that these Florida facilities “provide safe, high quality housing for their residents.”2 He then formed a task force, the Assisted Living Workgroup,3 and assigned it the responsibility of developing recommendations to improve the state’s ability to monitor quality and safety in ALFs and ensure the well-being of ALF residents. The task force held meetings for purposes of receiving public testimony and presentations and conducted a focused review of ALF regulations, consumer protection and choice, and long-term care services and access. Ultimately, the task force made several recommendations including:

  • increased qualifications and training for administrators and staff
  • increased survey and inspection activity with a focus on facilities with poor track records
  • a systematic appeal process for residents who contest a notice of eviction
  • increased reporting of resident data by facilities
  • enhanced enforcement capacity by state agencies
  • creation of a permanent policy review and oversight council with members representing all stakeholder groups
  • requiring all facilities with at least one resident receiving mental health care to be licensed as a limited mental health facility
  • providing greater integration of information from all agencies involved in ALF regulation in order to identify potential problems sooner

The Senate Health Regulation Committee also conducted a review of the regulatory oversight of ALFs in Florida. In order to better protect residents from abuse, neglect, or otherwise harmful conditions in ALFs, the committee submitted many recommendation for the Legislature to consider to improve the regulatory oversight of ALFs.4 On December 8, 2011, a Miami-Dade grand jury issued a final report criticizing Florida’s Agency for Health Care Administration (AHCA) for lax enforcement. The report described a recent “explosion” in the number of licensed ALFs in Florida. The report did note that there will be an increased need for these types of homes as members of the baby boomer generation age. The report included numerous recommendations to address perceived problems of abuse and neglect in ALFs. These recommendations included:

  • making AHCA the lead agency responsible for tracking an investigating complaints
  • requiring all complaints of abuse and neglect called into Adult Protective Services be referred to the attorney general’s office for possible criminal investigation
  • increasing the state’s focus on resident welfare, rather than focusing primarily on regulatory compliance

The report commanded AHCA to “Revoke the licenses. Impose the fines. Hit the offenders where it will hurt most, in their pockets.” The report stated, “By failing to take action, or even by taking action in an untimely manner, AHCA may be unwittingly putting other residents at risk of harm.”

In a press release issued January 12, 2012, AHCA indicated that, in the last six months of 2011, it issued $667,626 in fines against ALFs. Additionally, 13 facilities had their licenses denied or revoked, and “26 assisted living facilities closed during litigation or because of legal or regulatory pressure.” AHCA terminated 13 ALFs from the Medicaid program. AHCA Secretary Liz Dudek stated:

The Agency takes seriously our role as the regulator of health care facilities and we continue to take action in cases of significant regulatory violations. The Agency has a comprehensive approach that includes reviewing licensure status and Medicaid eligibility when violations occur.

Two ALF Senate Bills Under Consideration

Although nursing homes and ALFs in Florida both serve elderly and vulnerable residents, there are almost twice as many statutes governing nursing homes. Based upon the recommendations from the recent studies, examinations and reviews, Florida lawmakers are currently considering several bills that would increase ALF regulation. In particular, there are two bills that promote substantial revisions to state law regarding ALFs.

1. Senate Health Regulation Committee Bill 7174

The Senate Health Regulation Committee has submitted a bill that increases ALF regulation in order to improve the safety of persons living in ALFs by requiring:

  • an ALF to obtain a limited mental health license if any mental health resident resides in the facility; the bill also revises the eligibility requirements for licensure of a facility seeking to be a limited mental health licensee
  • ALFs to provide notice to residents of the confidential nature of complaints to the Office of State Long-Term Care Ombudsman
  • state and local agency employees to report abuse, neglect and exploitation of residents to the Department of Children and Families (DCF) central abuse hotline
  • that certain facility licensure fees for ALFs with a history of certain violations be increased
  • an increase in certain administrative and criminal penalties and reducing AHCA’s discretion to impose certain penalties
  • all ALF staff to complete at least two hours of pre-service orientation; require an ALF to operate under the management of a licensed administrator
  • that the Board of Assisted Living Facility Administration (the “board”) be created to issue licenses to administrators who meet delineated eligibility requirements, including age, education, training and examination requirements; the board is to develop training curricula for ALF staff; approve and certify training and testing centers; and certify and discipline core training providers; further, if funding is available, the board is to develop and maintain a database of core training providers and attendees of core training
  • AHCA to serve as the central agency for receiving and tracking complaints against ALFs
  • agencies, if funding is available, to develop or modify electronic systems to ensure the transfer of information between agencies pertaining to ALFs
  • task forces be created to look at streamlining agency regulatory oversight of ALFs and to review AHCA inspection forms to ensure ALFs are being assessed appropriately for resident needs and safety
  • AHCA to monitor a certain number of ALF elopement drills
  • AHCA to have lead surveyors in each field office, who specialize in assessing ALFs, to train other surveyors of ALFs and facilitate consistent inspections
  • a task force be created to review AHCA inspection forms to ensure ALFs are being assessed appropriately for resident needs and safety
  • Department of Elder Affairs (DOEA) to have additional staffing in ALFs, depending on the number of residents receiving special care and the type of special care being provided
  • ALFs to semiannually report to the AHCA information relating to occupancy rates and residents’ acuity and demographics in order for the AHCA to track the information
  • AHCA to develop a user-friendly rating system of ALFs
  • that community living support plans be updated more frequently
  • case managers to record interaction with residents
  • consistent and adequate monitoring of community living support plans and cooperative agreements by DOEA.

2. Senate Bill 2050

The Senate Children, Families, Elder Affairs Committee has submitted Senate Bill 2050, which provides additional licensure under certain circumstances, raises the qualifications for ALF administrators, increases the training of administrators and staff, and grants residents and their families specific rights to utilize electronic monitoring devices in their rooms. More specifically, the bill requires:

  • case managers to maintain records of face-to-face interaction with a mental health resident
  • adequate and consistent monitoring and enforcement of community living support plans and cooperative agreements
  • ALFs to provide notice to residents of the confidentiality of certain information when making a complaint to the long-term care ombudsman
  • an employee or agent of an agency that has regulatory responsibilities concerning persons in state-licensed facilities to be a mandatory reporter of abuse, neglect, or exploitation of the elderly
  • an assisted living facility that serves any mental health resident to obtain a limited mental health license
  • a facility to follow specific rules when relocating or terminating the residency of a resident
  • a process for a resident to challenge a facility’s notice to relocate or terminate the residency of the resident
  • a pre-service orientation for all employees or administrators hired on or after July 1, 2012
  • every ALF to be under the management of a licensed administrator by July 1, 2013, and provides educational and training requirements for an applicant to become an ALF administrator (applicant)
  • a provisional license and inactive status in certain circumstances
  • DOEA, in conjunction with other agencies, to develop a standardized curriculum for core training and competency tests related to the core training, and to develop curricula for continuing education
  • applicants to have 40 hours of core training and successfully pass the competency test with a minimum score of 80
  • applicants to complete 10 hours of supplemental training on certain topics
  • staff members of an ALF who provide regular or direct care to residents to have 20 hours of core training and successfully pass the competency test with a minimum score of 70
  • administrators and certain staff members of a limited mental health ALF to complete eight hours of mental health training within 30 days after employment and pass a competency test;
  • administrators to have 18 hours every two years of continuing education and certain staff members to have 10 hours every two years of continuing education
  • a certification process for trainers using a third-party credentialing entity approved by DOEA
  • ALFs to allow a resident to submit a request to a facility to have electronic monitoring devices in the resident’s room and requires certain notices and consents to be given

While the two Senate bills differ on issues such as the training and regulatory oversight, the bills clearly have the same goal ? to better protect residents from abuse, neglect, or otherwise harmful conditions in ALFs. There is no word yet on which bill or provisions will be supported by Senate Leadership, but we note SB 2050 has been referred to the Children, Families and Elder Affairs, Health Regulation and Budget committees. Also, given the resistance of the Florida House to any legislation that increases governmental regulation, it is uncertain what measures, if any, will be approved during the 2012 legislative session. We will continue to keep you updated as these bills move through the legislative process.

1 In particular, HB 4045 repealed a requirement for the annual dissemination of a list of ALFs that had been sanctioned or fined, a requirement for an ALF to report monthly any liability claims filed against it, a requirement to disseminate the results of the inspection of each ALF, provisions concerning rule promulgation for ALFs by the Florida Department of Elder Affairs ("DOEA"), provisions concerning the collection of information regarding the cost of care in ALFs and the authority for local governments or organizations to contribute to the cost of care of local facility residents.

2 The veto message for HB 4045 (2011) is available at: http://www.flgov.com/wp-content/uploads/2011/06/hb4045.pdf

3 Members represented the following entities: Florida Association of Homes and Services for the Aging; Eastside Care, Inc.; Palm Breeze Assisted Living Facility; Long Term Care Ombudsman; Florida House of Representatives; Lenderman and Associates; The Florida Bar, Elder Law Section; Florida State University, the Pepper Center; The Villa at Carpenters; Florida Council for Community Mental Health; Florida Assisted Living Association; Villa Serena I-V; Florida Senate; and Florida Health Care Association.

4 See Senate Interim Report 212-128

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