400.23 Rules; evaluation and deficiencies; licensure status.—
(1) It is the intent of the Legislature that rules published and enforced pursuant to this part and part II of chapter 408 shall include criteria by which a reasonable and consistent quality of resident care may be ensured and the results of such resident care can be demonstrated and by which safe and sanitary nursing homes can be provided. It is further intended that reasonable efforts be made to accommodate the needs and preferences of residents to enhance the quality of life in a nursing home. In addition, efforts shall be made to minimize the paperwork associated with the reporting and documentation requirements of these rules.
(2) Pursuant to the intention of the Legislature, the agency, in consultation with the Department of Health and the Department of Elderly Affairs, shall adopt and enforce rules to implement this part and part II of chapter 408, which shall include reasonable and fair criteria in relation to:
(a) The location of the facility and housing conditions that will ensure the health, safety, and comfort of residents, including an adequate call system. In making such rules, the agency shall be guided by criteria recommended by nationally recognized reputable professional groups and associations with knowledge of such subject matters. The agency shall update or revise such criteria as the need arises. The agency may require alterations to a building if it determines that an existing condition constitutes a distinct hazard to life, health, or safety. In performing any inspections of facilities authorized by this part or part II of chapter 408, the agency may enforce the special-occupancy provisions of the Florida Building Code and the Florida Fire Prevention Code which apply to nursing homes. Residents or their representatives shall be able to request a change in the placement of the bed in their room, provided that at admission they are presented with a room that meets requirements of the Florida Building Code. The location of a bed may be changed if the requested placement does not infringe on the resident’s roommate or interfere with the resident’s care or safety as determined by the care planning team in accordance with facility policies and procedures. In addition, the bed placement may not be used as a restraint. Each facility shall maintain a log of resident rooms with beds that are not in strict compliance with the Florida Building Code in order for such log to be used by surveyors and nurse monitors during inspections and visits. A resident or resident representative who requests that a bed be moved shall sign a statement indicating that he or she understands the room will not be in compliance with the Florida Building Code, but they would prefer to exercise their right to self-determination. The statement must be retained as part of the resident’s care plan. Any facility that offers this option must submit a letter signed by the nursing home administrator of record to the agency notifying it of this practice with a copy of the policies and procedures of the facility. The agency is directed to provide assistance to the Florida Building Commission in updating the construction standards of the code relative to nursing homes.
(b) The number and qualifications of all personnel, including management, medical, nursing, and other professional personnel, and nursing assistants, orderlies, and support personnel, having responsibility for any part of the care given residents.
(c) All sanitary conditions within the facility and its surroundings, including water supply, sewage disposal, food handling, and general hygiene which will ensure the health and comfort of residents.
(d) The equipment essential to the health and welfare of the residents.
(e) A uniform accounting system.
(f) The care, treatment, and maintenance of residents and measurement of the quality and adequacy thereof, based on rules developed under this chapter and the Omnibus Budget Reconciliation Act of 1987 (Pub. L. No. 100-203) (December 22, 1987), Title IV (Medicare, Medicaid, and Other Health-Related Programs), Subtitle C (Nursing Home Reform), as amended.
(g) The preparation and annual update of a comprehensive emergency management plan. The agency shall adopt rules establishing minimum criteria for the plan after consultation with the Division of Emergency Management. At a minimum, the rules must provide for plan components that address emergency evacuation transportation; adequate sheltering arrangements; postdisaster activities, including emergency power, food, and water; postdisaster transportation; supplies; staffing; emergency equipment; individual identification of residents and transfer of records; and responding to family inquiries. The comprehensive emergency management plan is subject to review and approval by the local emergency management agency. During its review, the local emergency management agency shall ensure that the following agencies, at a minimum, are given the opportunity to review the plan: the Department of Elderly Affairs, the Department of Health, the Agency for Health Care Administration, and the Division of Emergency Management. Also, appropriate volunteer organizations must be given the opportunity to review the plan. The local emergency management agency shall complete its review within 60 days and either approve the plan or advise the facility of necessary revisions.
(h) The availability, distribution, and posting of reports and records pursuant to s. 400.191 and the Gold Seal Program pursuant to s. 400.235.
(3)(a)1. As used in this subsection, the term:
a. “Direct care staff” means persons who, through interpersonal contact with residents or resident care management, provide care and services to allow residents to attain or maintain the highest practicable physical, mental, and psychosocial well-being, including, but not limited to, disciplines and professions that must be reported in accordance with 42 C.F.R. s. 483.70(q) in the categories of direct care services of nursing, dietary, therapeutic, and mental health. The term does not include a person whose primary duty is maintaining the physical environment of the facility, including, but not limited to, food preparation, laundry, and housekeeping.
b. “Facility assessment” means a process to determine the staff competencies necessary to provide the level and types of care needed for the facility’s resident population, considering the types of diseases, conditions, physical and cognitive disabilities, overall acuity, and other facts pertinent to that resident population, and performed in accordance with 42 C.F.R. s. 483.70(e).
2. For purposes of this subsection, direct care staffing hours do not include time spent on nursing administration, activities program administration, staff development, staffing coordination, and the administrative portion of the minimum data set and care plan coordination for Medicaid.
(b)1. Each facility must determine its direct care staffing needs based on the facility assessment and the individual needs of a resident based on the resident’s care plan. At a minimum, staffing must include, for each facility, the following requirements:
a. A minimum weekly average of 3.6 hours of care by direct care staff per resident per day. As used in this sub-subparagraph, a week is defined as Sunday through Saturday.
b. A minimum of 2.0 hours of direct care by a certified nursing assistant per resident per day. A facility may not staff below one certified nursing assistant per 20 residents.
c. A minimum of 1.0 hour of direct care by a licensed nurse per resident per day. A facility may not staff below one licensed nurse per 40 residents.
2. Nursing assistants employed under s. 400.211(2) may be included in computing the hours of direct care provided by certified nursing assistants and may be included in computing the staffing ratio for certified nursing assistants if their job responsibilities include only nursing-assistant-related duties.
3. Certified nursing assistants performing the duties of a qualified medication aide under s. 400.211(5) may not be included in computing the hours of direct care provided by, or the staffing ratios for, certified nursing assistants or licensed nurses under sub-subparagraph 1.b. or sub-subparagraph 1.c., respectively.
4. Each nursing home facility must document compliance with staffing standards as required under this paragraph and post daily the names of licensed nurses and certified nursing assistants on duty for the benefit of facility residents and the public. Facilities must maintain the records documenting compliance with minimum staffing standards for a period of 5 years and must report staffing in accordance with 42 C.F.R. s. 483.70(q).
5. The agency must recognize the use of licensed nurses for compliance with minimum staffing requirements for certified nursing assistants if the nursing home facility otherwise meets the minimum staffing requirements for licensed nurses and the licensed nurses are performing the duties of a certified nursing assistant. Unless otherwise approved by the agency, licensed nurses counted toward the minimum staffing requirements for certified nursing assistants must exclusively perform the duties of a certified nursing assistant for the entire shift and not also be counted toward the minimum staffing requirements for licensed nurses. If the agency approved a facility’s request to use a licensed nurse to perform both licensed nursing and certified nursing assistant duties, the facility must allocate the amount of staff time specifically spent on certified nursing assistant duties for the purpose of documenting compliance with minimum staffing requirements for certified and licensed nursing staff. The hours of a licensed nurse with dual job responsibilities may not be counted twice.
6. Evidence that a facility complied with the minimum direct care staffing requirements under subparagraph 1. is not admissible as evidence of compliance with the nursing services requirements under 42 C.F.R. s. 483.35 or s. 483.70.
(c) Paid feeding assistants and direct care staff, other than certified nursing assistants and licensed nurses, who have successfully completed the feeding assistant training program under s. 400.141(1)(v) and who provide eating assistance to residents shall count toward compliance with overall direct care minimum staffing hours but not the hours of direct care required for certified nursing assistants or licensed nurses. Time spent by certified nursing assistants or licensed nurses on providing eating assistance to residents shall count toward the hours of direct care required for certified nursing assistants or licensed nurses.
(d) Licensed practical nurses licensed under chapter 464 who provide nursing services in nursing home facilities under this part may supervise the activities of other licensed practical nurses, certified nursing assistants, and other unlicensed personnel providing services in such facilities in accordance with rules adopted by the Board of Nursing.
(e) The agency may adopt rules to implement this subsection.
(4) Rules developed pursuant to this section shall not restrict the use of shared staffing and shared programming in facilities which are part of retirement communities that provide multiple levels of care and otherwise meet the requirement of law or rule.
(5) The agency, in collaboration with the Division of Children’s Medical Services of the Department of Health, must adopt rules for:
(a) Minimum standards of care for persons under 21 years of age who reside in nursing home facilities. A facility may be exempted from these standards for specific persons between 18 and 21 years of age, if the person’s physician agrees that minimum standards of care based on age are not necessary.
(b) Minimum staffing requirements for persons under 21 years of age who reside in nursing home facilities, which apply in lieu of the requirements contained in subsection (3).
1. For persons under 21 years of age who require skilled care:
a. A minimum combined average of 3.9 hours of direct care per resident per day must be provided by licensed nurses, respiratory therapists, respiratory care practitioners, and certified nursing assistants.
b. A minimum licensed nursing staffing of 1.0 hour of direct care per resident per day must be provided.
c. No more than 1.5 hours of certified nursing assistant care per resident per day may be counted in determining the minimum direct care hours required.
d. One registered nurse must be on duty on the site 24 hours per day on the unit where children reside.
2. For persons under 21 years of age who are medically fragile:
a. A minimum combined average of 5.0 hours of direct care per resident per day must be provided by licensed nurses, respiratory therapists, respiratory care practitioners, and certified nursing assistants.
b. A minimum licensed nursing staffing of 1.7 hours of direct care per resident per day must be provided.
c. No more than 1.5 hours of certified nursing assistant care per resident per day may be counted in determining the minimum direct care hours required.
d. One registered nurse must be on duty on the site 24 hours per day on the unit where children reside.
(6) Before conducting a survey of the facility, the survey team shall obtain a copy of the local long-term care ombudsman council report on the facility. Problems noted in the report shall be incorporated into and followed up through the agency’s inspection process. This procedure does not preclude the State Long-Term Care Ombudsman Program or local long-term care ombudsman council from requesting the agency to conduct a followup visit to the facility.
(7) The agency shall, at least every 15 months, evaluate all nursing home facilities and make a determination as to the degree of compliance by each licensee with the established rules adopted under this part as a basis for assigning a licensure status to that facility. The agency shall base its evaluation on the most recent inspection report, taking into consideration findings from other official reports, surveys, interviews, investigations, and inspections. In addition to license categories authorized under part II of chapter 408, the agency shall assign a licensure status of standard or conditional to each nursing home.
(a) A standard licensure status means that a facility has no class I or class II deficiencies and has corrected all class III deficiencies within the time established by the agency.
(b) A conditional licensure status means that a facility, due to the presence of one or more class I or class II deficiencies, or class III deficiencies not corrected within the time established by the agency, is not in substantial compliance at the time of the survey with criteria established under this part or with rules adopted by the agency. If the facility has no class I, class II, or class III deficiencies at the time of the followup survey, a standard licensure status may be assigned.
(c) In evaluating the overall quality of care and services and determining whether the facility will receive a conditional or standard license, the agency shall consider the needs and limitations of residents in the facility and the results of interviews and surveys of a representative sampling of residents, families of residents, representatives of the State Long-Term Care Ombudsman Program, guardians of residents, and staff of the nursing home facility.
(d) The current licensure status of each facility must be indicated in bold print on the face of the license. A list of the deficiencies of the facility shall be posted in a prominent place that is in clear and unobstructed public view at or near the place where residents are being admitted to that facility. Licensees receiving a conditional licensure status for a facility shall prepare, within 10 working days after receiving notice of deficiencies, a plan for correction of all deficiencies and shall submit the plan to the agency for approval.
(e) The agency shall adopt rules that:
1. Establish uniform procedures for the evaluation of facilities.
2. Provide criteria in the areas referenced in paragraph (c).
3. Address other areas necessary for carrying out the intent of this section.
(8) The agency shall adopt rules pursuant to this part and part II of chapter 408 to provide that, when the criteria established under subsection (2) are not met, such deficiencies shall be classified according to the nature and the scope of the deficiency. 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. The agency shall indicate the classification on the face of the notice of deficiencies as follows:
(a) A class I deficiency is a deficiency that the agency determines presents a situation in which immediate corrective action is necessary because the facility’s noncompliance has caused, or is likely to cause, serious injury, harm, impairment, or death to a resident receiving care in a facility. The condition or practice constituting a class I violation shall be abated or eliminated immediately, unless a fixed period of time, as determined by the agency, is required for correction. A class I deficiency is subject to a civil penalty of $10,000 for an isolated deficiency, $12,500 for a patterned deficiency, and $15,000 for a widespread deficiency. 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 licensure inspection or any inspection or complaint investigation since the last licensure inspection. A fine must be levied notwithstanding the correction of the deficiency.
(b) A class II deficiency is a deficiency that the agency determines has compromised the resident’s ability to maintain or reach his or her highest practicable physical, mental, and psychosocial well-being, as defined by an accurate and comprehensive resident assessment, plan of care, and provision of services. A class II deficiency is subject to a civil penalty of $2,500 for an isolated deficiency, $5,000 for a patterned deficiency, and $7,500 for a widespread deficiency. 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 licensure inspection or any inspection or complaint investigation since the last licensure inspection. A fine shall be levied notwithstanding the correction of the deficiency.
(c) A class III deficiency is a deficiency that the agency determines will result in no more than minimal physical, mental, or psychosocial discomfort to the resident or has the potential to compromise the resident’s ability to maintain or reach his or her highest practical physical, mental, or psychosocial well-being, as defined by an accurate and comprehensive resident assessment, plan of care, and provision of services. A class III deficiency is subject to a civil penalty of $1,000 for an isolated deficiency, $2,000 for a patterned deficiency, and $3,000 for a widespread deficiency. 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 licensure inspection or any inspection or complaint investigation since the last licensure inspection. A citation for a class III deficiency must specify the time within which the deficiency is required to be corrected. If a class III deficiency is corrected within the time specified, a civil penalty may not be imposed.
(d) A class IV deficiency is 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.
(9) Civil penalties paid by any licensee under subsection (8) shall be deposited in the Health Care Trust Fund and expended as provided in s. 400.063.
(10) Agency records, reports, ranking systems, Internet information, and publications must be promptly updated to reflect the most current agency actions.
Cited 41 times | Published | Florida 4th District Court of Appeal | 2005 WL 1226070
...GUNTHER, STONE, WARNER, POLEN, KLEIN, STEVENSON, SHAHOOD, GROSS, TAYLOR, HAZOURI and MAY, JJ., concur. FARMER, C.J., concurs specially with opinion. I concur with the court's holding that a health care proxy is not authorized to agree to arbitration of a patient's claim against a nursing home under section 400.23....
Cited 16 times | Published | Florida 5th District Court of Appeal | 1995 WL 570434
...So this bill would simply amend the statute to provide that the personal representative of the estate of a deceased nursing home resident would also be able to bring an action under Chapter 400 to redress the rights of a deceased nursing home resident. [Bill passes]. Ultimately, Senate Bill No. 128, amending section 400.23 to provide for actions being brought by the decedent's personal representative, became law on June 9, 1986....
...hority, that the act is not vague, and that it relates to a single subject matter. Appellants appealed, and this Court has granted a constitutional stay writ staying implementation of the rating system as provided for in Section 7 of Chapter 76-201, Section 400.23(3) and (4), Florida Statutes (Supp. 1976). The sole question presented for our review by appellants is the constitutionality vel non of Section 7, Chapter 76-201, Laws of Florida, Section 400.23, Florida Statutes (Supp....
...ble to attain an "AA" rating, or whether there will be a Bell curve or flat percentage of homes in each group. Without objective guidelines for the rating of licensed nursing homes as "AA," "A," "B," "C" and "F," the rating system, as established in Section 400.23(3) and (4), cannot withstand constitutional attack. Since we find that subsections (3) and (4) of Section 400.23, Florida Statutes (Supp. 1976), are unconstitutional in that they constitute an unlawful delegation of authority, this Court must further determine whether these subsections are severable from Section 400.23, Florida Statutes (Supp....
...Presbyterian Homes of Synod of Florida v. Wood, 297 So.2d 556 (Fla. 1974); Small v. Sun Oil Company, 222 So.2d 196 (Fla. 1969); Cramp v. Board of Public Instruction of Orange County, 137 So.2d 828 (Fla. 1962). *381 Obviously, the intent and purpose of the Legislature in enacting Section 400.23, Florida Statutes (Supp....
...dless of those subsections which we have herein determined to be invalid. Accordingly, we find that subsections (3) and (4) constitute an unlawful delegation of legislative authority and that these subsections may be eliminated without striking down Section 400.23, Florida Statutes (Supp....
...BOYD and HATCHETT, JJ., dissent. NOTES [1] After oral argument of this cause, pending disposition by this Court, the Florida Legislature enacted Ch. 77-401, Laws of Florida, with an effective date of July 1, 1977. Ch. 77-401, Laws of Florida, amends subsection 3 of § 400.23, Fla....
Cited 7 times | Published | Florida 2nd District Court of Appeal | 1998 WL 66958
...for further deliberations. Counsel for Beverly Health explained that the verdict was consistent because the jury could have found that Beverly Health's violation of Mr. Freeman's rights was not the legal cause of any actual or punitive damages. See § 400.23(1), Fla....
Cited 7 times | Published | Florida 3rd District Court of Appeal | 2005 WL 3479850
...For these reasons, we conclude that the agreement is substantively unconscionable. *534 We reverse the order compelling arbitration and remand for further proceedings in the circuit court. NOTES [1] Appellee would have us distinguish Romano solely because the attorney's fee provision of Chapter 400 has been repealed. See § 400.23, Fla....
Cited 5 times | Published | Florida 1st District Court of Appeal | 2005 WL 700953
...An intracranial bleed was discovered, and, because she had given a do-not-resuscitate order, she was allowed to expire. The estate brought an action for damages under three claims, two of which are pertinent to this appeal. [1] The estate alleged (1) deprivation or infringement of a nursing-home resident's rights under section 400.23, Florida Statutes (2000), of the RRA, authorizing the recovery of "actual and punitive damages," and (2) wrongful death under section 768.21, Florida Statutes (2000), permitting awards for medical and funeral expenses, and noneconomic damages for certain designated beneficiaries....
...The issuance of Federal Form 2567 caused a number of statutorily mandated events to occur. Menorah Manor was required to post this report "in a prominent place that is in clear and unobstructed public view at or near the place where residents are being admitted to the facility." § 400.23(7)(d), Fla....
Cited 3 times | Published | Florida 4th District Court of Appeal | 2004 WL 1196637
...f argued that the provision should not be enforced. In particular, he argued that under the contract the arbitration was conducted by NHLA, whose discovery and evidence rules conflict the civil remedies of chapter 400, part II, Florida Statutes. See § 400.23, Fla....
...upon the statutory rights of the resident. First, the resident may only recover damages, actual or punitive, upon a showing of intentional or reckless conduct by clear and convincing evidence. This severely limits the remedies afforded by Fla. Stat. § 400.23, and mandates a higher burden of proof....
...award arbitration fees, expenses and compensation to the prevailing party, the expenses shall be equally divided among the parties. This limits the resident's right to recover prevailing *390 plaintiff attorneys fees and costs pursuant to Fla. Stat. § 400.23." Noting that the specific issue appears to be one of first impression, the trial judge drew an analogy with arbitration provisions in the context of employment discrimination and truth-in-lending cases, citing several federal decisions....
...[except claims which could be pursued in small claims court]. Following Vrastil’s death, Gill, as personal representative of Vrastil’s estate (“Appellee”), sued Appellants for negligence and wrongful death based on alleged violations of sections 400.22 and 400.23, Florida Statutes (2010), breach of fiduciary duty, and violations of section 415.1111, Florida Statutes (2010)....
Cited 2 times | Published | Florida 4th District Court of Appeal | 2003 WL 289415
...[4] Florida Administrative Code Rule 59A4-103(4)(a) provides that "[t]he licensee of each nursing home shall have full legal authority and responsibility for the operation of the facility." Such duty is a nondelegable duty such that NME cannot avoid liability by hiring an independent contractor to perform certain tasks. Section 400.23(1), Florida Statutes (1995), provides a cause of action against any licensee responsible for the violation of a resident's rights, including the failure to provide a resident with appropriate observations, assessment, nursing diagnosis, planning, intervention, and evaluation of care by nursing staff. See also § 400.23(3), Fla....
...Briefly, we note on cross-appeal that under Beverly Enterprises-Florida v. Knowles, 766 So.2d 335 (Fla. 4th DCA 2000)( en banc) , review granted, 789 So.2d 346 (Fla.2001), the trial court was required to direct a verdict on count I, a violation of Revitz's statutory rights under section 400.23, not resulting in death....
...*210 The basic difference that exists between the ALJ's conclusion and that of the Agency is the classification of three deficiencies found by the Agency's surveyors during a routine inspection and the follow-up inspection of Beverly's nursing home conducted pursuant to section 400.23, Florida Statutes (2001)....
...The third deficiency was found during the follow-up visit. In fact, only the third deficiency is actually relevant as it was the sole deficiency noted in the follow-up inspection, and it is because of this "uncorrected Class III deficiency" that the facility lost its standard license rating. See § 400.23(7)(b), Fla....
...e care plan was not followed consistently, will not support imposition of a conditional license. Rather *211 than perfect compliance with a care plan, Beverly asserts that substantial compliance is the applicable standard. We agree with Beverly that section 400.23 implicitly requires only "substantial compliance." Although the statutory provision does not directly state it in that manner, section 400.23(7)(b) allows a conditional license to be given when the facility is not in substantial compliance with the statutory criteria or the rules adopted by the Agency....
...cy found in the follow-up survey was, as the ALJ found, more properly labeled a Class IV deficiency, not a Class III deficiency. Had a Class IV rank been assigned, just as the ALJ recommended, Beverly would have received the standard license rating. Section 400.23(8)(c) defines a Class III deficiency, with which Beverly was charged, as a deficiency that the agency determines will result in no more than minimal physical, mental, or psychosocial discomfort to the resident or has the potential to compromise the resident's ability to maintain or reach his or her highest practical physical, mental, or psychosocial well-being, as defined by an accurate and comprehensive resident assessment, plan of care, and provision of services. *212 § 400.23(8)(c), Fla. Stat. (2001). Section 400.23(8)(d), on the other hand, defines a Class IV deficiency as "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." [2] § 400.23(8)(d), Fla....
...s not followed. We disagree with the Agency's analysis. The entire statutory scheme is based on a classification of deficiencies, with the deficiencies being classified according to the level of harm that might or did result from the deficiency. See § 400.23(8), Fla....
...antial compliance."). However, there is some concern that the state standards may be higher than the federal standards and thus reliance on federal statutory definitions may be suspect. [2] We note that before the follow-up inspection was conducted, section 400.23 was amended to add Class IV designations for the first time and that classification was available to the surveyors when they performed the follow-up inspection....
...an action filed by a nursing home patient, Clara B. Jones, alleging common law negligence and violations of the Nursing Home Residents' Act, which is a fitting sobriquet recently coined by the judiciary to specifically reference sections 400.22 and 400.23, Florida Statutes....
...Section 400.28(9), Florida Statutes (Supp.1998) classifies deficiencies in nursing homes into several different categories with a Class I being the most serious. A Class I deficiency “has caused, or is likely to cause, serious injury” and must be eliminated immediately. § 400.23(9)(a). The present ease involved a Class II deficiency, described in section 400.23(9)(b): Class II deficiencies are those which the agency determines have a direct or immediate relationship to the health, safety, or security of the nursing home facility residents, other than class I deficiencies....
...The Agency held on review that this finding was not determinative because Pinehurst had been verbally informed of the deficiencies and a date for correction. The Agency admits there was no written notice of a deadline for correcting the deficiencies, but argues that written notice is not required by the statute. Section 400.23(9) provides, in part: “The Agency shall indicate the classification [of deficiency] on the face of the notice of deficiencies.” Section 400.23(9)(b) requires that the “citation” specify the time in which a Class II deficiency must be corrected....
...s (1999). Like Hamilton , the basis of the negligence was the violation of statutorily established rights belonging to the decedent under chapter 400. We find the plaintiffs original complaint validly alleged negligence based on rights enumerated in section 400.23, Florida Statutes (1999), and sought statutorily authorized damages under section 768.21, Florida Statutes (1999)....
...finition, the second inspection did not yield any “uneor-rected” deficiencies. A class II deficiency is one which the agency determines to have a direct or *1136 immediate relationship to the health, safety or security of nursing home residents. § 400.23(9)(b), Fla. Stat. (1995). A single class II deficiency is a sufficient basis to warrant issuance of a conditional license. § 400.23(8), Fla. Stat. A class III deficiency is a deficiency which the agency determines to have an indirect or potential relationship to the health, safety, or security of the nursing home residents, section 400.23(9) (c), and when it goes without correction within the time frame set by the agency, it may also serve as the basis for issuance of a conditional rating, section 400.23(8)....
Published | Florida 1st District Court of Appeal | 2008 Fla. App. LEXIS 5088, 33 Fla. L. Weekly Fed. D 959
...The instant case is on point with Menorah Manor. In Menorah Manor, AHCA prepared a report that included findings that Menorah Manor, Inc. (“Menorah Manor”), a nursing home, was deficient in the area of food preparation. This report was prepared on Federal Form 2567. Under section 400.23(7)(d), Florida Statutes (2003), Menorah Manor was required to post the report “in a prominent place that is in clear and unobstructed public view at *342 or near the place where residents are being admitted to the facility.” Menorah Manor, 908 So.2d at 1102 ....
...ing its deficiency finding in the same way that it did in the dispute underlying Menorah Manor. However, as in Menorah Manor, AHCA’s preparation of a Statement of Deficiencies in this case is a reflection of the duties required of the agency under section 400.23....
...The judge had ruled that the deficiency was a violation of section 400.102(1), Florida Statutes (1995), which warranted a fine not exceeding $500 pursuant to section 400.121(1). The director declared that the CNA staffing shortage was a Class III deficiency under section 400.23(9)(c), and subject to a fine of $500 for *108 each violation....
This Florida statute resource is curated by Graham W. Syfert, Esq., a Jacksonville, Florida personal injury and workers' compensation attorney. Attorney Syfert regularly works with Chapter 400 in the context of nursing home negligence and represents clients throughout Northeast Florida. For legal consultation, call 904-383-7448.
