March 8, 2018

Sweeping Legislative Change for Florida Health Care Facilities

Holland & Knight Healthcare Blog
Eddie Williams III

The Florida Legislature passed a bill that makes significant changes to numerous provisions related to the regulation of various health care facilities by the Agency for Health Care Administration (AHCA). The following is a brief summary of some of the sweeping changes made by CS/CS/SB 62.

Clinical Laboratories

The bill eliminates the requirement that clinical laboratories obtain a license from AHCA. Clinical laboratories must continue to be certified by, or receive a certificate of waiver from, the Centers for Medicare and Medicaid Services (CMS) under the federal Clinical Laboratory Improvement Amendments (CLIA) program.

Nursing Homes

The bill requires all clinical laboratory tests to be performed by a laboratory certified by CMS under the CLIA program. In addition, it eliminates the requirement that a nursing home accept clinical laboratory tests performed by a laboratory prior to admission in lieu of routine examinations required upon admission and any clinical laboratory tests ordered by a physician for residents of the nursing home.

Home Health Agencies

The bill requires any home health license issued on or after July 1, 2018, to specify the services that the home health agency is authorized to perform. Any advertising or provision of services by the home health agency for which the agency is not licensed to perform constitutes unlicensed activity. The bill also creates a voluntary process for applying for a certificate of exemption from licensure for a person providing home health services who is exempt from licensure as a home health agency. The certificate of exemption will be valid for up to two (2) years, and AHCA may charge a fee or $100 or the actual cost of processing the certificate application.

Currently, a home health agency that is not Medicare or Medicaid certified and does not provide skilled care is exempt from providing proof of accreditation as part of the licensure requirements. The bill limits this exemption to only home health agencies that do not provide skilled care. Home health agencies that are required to be accredited must maintain such accreditation continuously in order to maintain licensure. The bill will also require home health agencies that provide skilled care to have a director of nursing as a part of the agency’s professional staff.

Home Medical Equipment Providers

The bill requires licensed home medical equipment providers to notify AHCA of a change in the general manager within 21 days, rather than the 45-day timeframe under the current law.

Health Care Clinics - Exemptions

The bill makes certificate of exemptions from licensure valid for up to two (2) years. Under current law, such exemption certificates are valid indefinitely. Although the certificate of exemption process is voluntary, health care providers apply for the certificate in order to submit the same to certain government healthcare programs and other third party payers as part of their reimbursement requirements.

Assisted Living Facilities

The bill will prohibit an assisted living facility (ALF) from operating more than 120 consecutive days without an administrator who has completed the core educational requirements. The bill also specifies that new services added to a resident’s contract for which the resident was not previously charged do not require a 30-day written notice of rate increase. ALFs should still review their contracts to determine if notice is required as part of the facility’s contractual obligations.

The bill revises the Resident Bill of Rights to specify that residents in an ALF have the right to “assistance with” obtaining access to adequate and appropriate health care. “Adequate and appropriate health care” means the management of medications, assistance in making appointments for health care services, the provision of or arrangement of transportation to health care appointments, and the performance of health care services in accordance with Section 429.255, governing the types of care that may be provided by various staff in an ALF.

The bill also revises Florida law to require ALFs to provide copies of a resident’s medical records to the requesting party within thirty (30) days. Current law requires the ALF to provide copies of such records to the requesting party within ten (10) days.

General Licensing Requirements

The bill will now require all controlling interests in a health care facility to undergo criminal background screening. Current law only requires background screening of controlling interests if AHCA has reasons to believe that such persons have been convicted of a prohibited offense. The bill will also require a licensee’s contractors to undergo background screening where the contractor will work for 20 hours or more per week and have access to a client’s funds, personal property, or living areas.

The bill will prohibit any person form holding an ownership interest, either directly or indirectly, in a licensee if such person has a disqualifying offense, or holds or has held any ownership interest, either directly or indirectly, in a provider that had a license revoked or an application denied pursuant to Section 408.815, Florida Statutes.

The bill has been presented to Governor Scott for his signature. Assuming it is not vetoed, the law becomes effective on July 1, 2018.

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