The Florida Senate
BILL ANALYSIS AND FISCAL IMPACT STATEMENT
(This document is based on the provisions contained in the legislation as of the latest date listed below.)
Prepared By: The Professional Staff of the Committee on Health Policy
BILL: CS/SB 238
INTRODUCER: Judiciary Committee and Senator Burton
SUBJECT: Claims Against Assisted Living Facilities
DATE: February 5, 2024 REVISED:
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. Collazo Cibula JU Fav/CS
2. Brown Brown HP Favorable
3. RC
Please see Section IX. for Additional Information:
COMMITTEE SUBSTITUTE - Substantial Changes
I. Summary:
CS/SB 238 amends the Assisted Living Facilities Act to extend assisted living facilities (ALFs)
the same substantive and procedural protections that apply to nursing homes.
The bill amends s. 429.29, F.S., which authorizes civil actions to enforce ALF residents’ rights,
to provide that actions brought for a residents’ rights violation or for negligence, which allege
direct or vicarious liability for the personal injury or death of a resident, and which seek damages
for such injury or death, may be brought only against:
 The licensee.
 The licensee’s management or active participant.
 The licensee’s managing employees.
 Any direct caregivers, whether employees or contractors.
Passive investors, as defined in the bill, may no longer be found liable. The bill also amends the
statute allowing legal actions resulting from the death of an ALF resident to specify the point in
the proceedings when the plaintiff must elect survival damages or wrongful death damages. As
specified, the election must occur between the rendition of the verdict and the rendition of the
judgment.
The bill also amends s. 429.297, F.S., which currently authorizes the award of punitive damages
under certain circumstances, to require courts to hold a hearing to determine whether there is
sufficient admissible evidence to ensure there is a reasonable basis for a punitive damages award.
BILL: CS/SB 238 Page 2
The bill defines the terms “licensee,” “management company or active participant,” and “passive
investor.” The bill’s provisions only apply to causes of action that accrue on or after July 1,
2024.
The bill provides an effective date of July 1, 2024.
II. Present Situation:
Assisted Living Facilities
According to the Assisted Living Facilities Act (the Act),1 an assisted living facility (ALF) is a
residential establishment, or part of a residential establishment, providing housing, meals, and
one or more personal services, for periods exceeding 24 hours, to one or more adults who are not
relatives of the owner or the administrator.2 “Personal service” means direct physical assistance
with, or supervision of, the activities of daily living and the self-administration of medication.3
“Activities of daily living” include ambulation, bathing, dressing, eating, grooming, toileting,
and other similar tasks.4
There are approximately 3,000 licensed ALFs in the state, having more than 106,000 beds. In
contrast, there are only about 700 licensed nursing homes in the state, having 84,000 beds.5
ALFs must have a standard license issued by the Agency for Health Care Administration
(AHCA) under part I of chapter 429, F.S., and part II of chapter 408, F.S. In addition to the
standard license, ALFs may have one or more specialty licenses allowing them to provide
additional care. Specialty licenses include limited nursing services,6 limited mental health,7 and
extended congregate care licenses.8
1
Chapter 429, part II, F.S. According to s. 429.01(2), F.S., the purpose of the Act is to:
 Promote the availability of appropriate services for elderly persons and adults with disabilities in the least restrictive
and most homelike environment.
 Encourage the development of facilities that promote the dignity, individuality, privacy, and decisionmaking ability of
such persons.
 Provide for the health, safety, and welfare of residents of assisted living facilities in the state.
 Promote continued improvement of such facilities.
 Encourage the development of innovative and affordable facilities, particularly for persons with low to moderate
incomes.
 Ensure that all agencies of the state cooperate in the protection of such residents.
 Ensure that needed economic, social, mental health, health, and leisure services are made available to residents of such
facilities through the efforts of the Agency for Health Care Administration, the Department of Elderly Affairs, the
Department of Children and Families, the Department of Health, assisted living facilities, and other community
agencies.
2
Section 429.02(5), F.S. An ALF does not include an adult family-care home or a non-transient public lodging establishment.
3
Section 429.02(17), F.S.
4
Section 429.02(1), F.S.
5
University of South Florida, School of Aging Studies, Florida Policy Exchange Center on Aging, Exploring Assisted Living
Communities in Florida, https://www.usf.edu/cbcs/aging-studies/fpeca/research/alf.aspx (last visited Jan. 24, 2024).
6
Section 429.07(3)(c), F.S.
7
Section 429.075, F.S.
8
Section 429.07(3)(b), F.S.
BILL: CS/SB 238 Page 3
ALFs are required to provide care and services appropriate to the needs of the residents accepted
for admission to the facility.9 The owner or facility administrator determines whether an
individual is appropriate for admission to the facility based on a number of criteria.10 If, as
determined by the facility administrator or the health care provider, a resident no longer meets
the criteria for continued residency, or the facility is unable to meet the resident’s needs, the
resident must be discharged in accordance with the Resident Bill of Rights.
The Resident Bill of Rights
The Act includes a “Resident Bill of Rights.”11 The Resident Bill of Rights provides that no
resident of a facility may be deprived of any civil or legal rights, benefits, or privileges
guaranteed by law, the State Constitution, or the U.S. Constitution.12
Under the Resident Bill of Rights, every resident of a facility has the right to:13
 Live in a safe and decent living environment, free from abuse and neglect.
 Be treated with consideration and respect and with due recognition of personal dignity,
individuality, and the need for privacy.
 Retain and use his or her own clothes and other personal property in his or her immediate
living quarters, so as to maintain individuality and personal dignity, except when the facility
can demonstrate that doing so would be unsafe, impractical, or an infringement upon the
rights of other residents.
 Unrestricted private communication, including receiving and sending unopened
correspondence, access to a telephone, and visiting with any person of his or her choice, at
any time between the hours of 9:00 a.m. and 9:00 p.m. at a minimum. Upon request, the
facility must make provisions to extend visiting hours for caregivers and out-of-town guests.
 Freedom to participate in, and benefit from, community services and activities, and to pursue
the highest possible level of independence, autonomy, and interaction within the community.
 Manage his or her financial affairs unless the resident or, if applicable, the resident’s
representative, designee, surrogate, guardian, or attorney in fact authorizes the administrator
of the facility to provide safekeeping for funds.14
 Share a room with his or her spouse, if both are residents of the facility.
 Reasonable opportunity for regular exercise several times a week, and to be outdoors at
regular and frequent intervals, except when prevented by inclement weather.
 Exercise civil and religious liberties, including the right to independent personal decisions.
No religious beliefs or practices, nor any attendance at religious services, may be imposed
upon any resident.
 Assistance with obtaining access to adequate and appropriate health care.
 At least 45 days’ notice of relocation or termination of residency from the facility unless, for
medical reasons, the resident is certified by a physician to require an emergency relocation to
a facility providing a more skilled level of care, or the resident engages in a pattern of
conduct that is harmful or offensive to other residents.
9
See Fla. Admin. Code R. 59A-36.007, F.A.C. (providing specific minimum standards).
10
Section 429.26, F.S., and Fla. Admin. Code R. 59A-36.006, F.A.C.
11
Section 429.28, F.S.
12
Section 429.28(1), F.S.
13
Id.
14
See s. 429.27, F.S.
BILL: CS/SB 238 Page 4
 Present grievances and recommend changes in policies, procedures, and services to the staff
of the facility, governing officials, or any other person without restraint, interference,
coercion, discrimination, or reprisal.15
Training
Administrators and other ALF staff must meet minimum training and education requirements
established by rule.16 These requirements are intended to assist ALFs in responding appropriately
to the needs of residents; maintaining resident care and facility standards; and meeting licensure
requirements.17
ALF core training requirements established by the AHCA currently consist of a minimum of 26
hours of training, and passing a competency test. Administrators and managers must successfully
complete the core training requirements within three months after becoming an ALF
administrator or manager. The minimum passing score for the competency test is 75 percent.18
Administrators and managers must participate in 12 hours of continuing education in assisted
living-related topics every two years.19 Newly-hired administrators or managers, who have
successfully completed the ALF core training and continuing education requirements, are not
required to retake the core training. Administrators or managers who have successfully
completed the core training, but have not maintained the continuing education requirements,
must retake both the ALF core training and the competency test.20
Facility administrators or managers are required to facilitate six hours of in-service training for
facility staff who provide direct care to residents. Generally, staff training requirements must be
completed within 30 days after staff begin employment at the facility; however, staff must have
at least one hour of infection control training before providing direct care to residents. Nurses,
certified nursing assistants, and home health aides who are on staff with an ALF are exempt from
many of the training requirements. In addition to the standard six hours of in-service training,
staff must complete one hour of elopement training and one hour of training on “do not
resuscitate” orders. Staff may be required to also complete training on special topics such as self-
administration of medication and Alzheimer’s disease, if applicable.21
Inspections and Surveys
The AHCA is required to conduct a survey, investigation, or monitoring visit of an ALF:
 Prior to the issuance of a license.
 Prior to biennial renewal of a license.
15
Id.
16
Fla. Admin. Code R. 59A-36.011, F.A.C.
17
Section 429.52(1), F.S.
18
Fla. Admin. Code R. 59A-36.011(1)(a)-(b). Administrators who have attended core training prior to July 1, 1997, and
managers who attended the core training program prior to April 20, 1998, are not required to take the competency test.
Administrators licensed as nursing home administrators in accordance with part II of ch. 468, F.S., are exempt from this
requirement. Id.
19
Fla. Admin. Code R. 59A-36.011(1)(c).
20
Fla. Admin. Code R. 59A-36.011(1)(d).
21
Fla. Admin. Code R. 59A-36.011(3), (10)-(11).
BILL: CS/SB 238 Page 5
 When there is a change of ownership.
 To monitor ALFs licensed to provide limited nursing services or extended congregate care
services.
 To monitor ALFs cited in the previous year for a class I or class II violation or for four or
more uncorrected class III violations.
 Upon receipt of an oral or written complaint of practices that threaten the health, safety, or
welfare of residents.
 If the AHCA has reason to believe an ALF is violating a provision of part III of
chapter 429, F.S., relating to adult day care centers, or an administrative rule.
 To determine if cited deficiencies have been corrected.
 To determine if an ALF is operating without a license.22
An applicant for licensure renewal is eligible for an abbreviated biennial survey by the AHCA if
the applicant does not have any:
 Class I, class II, or uncorrected class III violations.
 Confirmed complaints from the long-term care ombudsman program.23
 Confirmed licensing complaints within the two licensing periods immediately preceding the
current renewal date.24
Causes of Action under the Assisted Living Facilities Act
Generally
The Act authorizes any person or resident whose rights under the Act have been violated by a
licensee, person, or entity to bring a cause of action against them. The action may be brought by
the resident or his or her guardian, or by a person or organization acting on behalf of the resident,
with the resident’s consent, or the consent of his or her guardian or the personal representative of
the deceased resident’s estate, regardless of the cause of death.25
If the action alleges a claim for a resident’s rights violation or for negligence that caused the
death of the resident, the claimant must elect either survival damages26 or wrongful death
damages.27 If the action alleges a claim for a resident’s rights violation or for negligence that did
not cause the death of the resident, the personal representative of the estate may recover damages
for the negligence that caused injury to the resident.28
The action may be brought in any court of competent jurisdiction, to enforce such rights and to
recover actual, as well as punitive, damages, for violations of the resident’s rights or negligence.
22
See generally ss. 429.34 and 408.811, F.S.
23
Florida’s Long-Term Care Ombudsman Program was founded in 1975 as a result of the federal Older Americans Act,
which grants a special set of residents’ rights to individuals who live in long-term care facilities such as nursing homes,
assisted living facilities and adult family care homes. Volunteer ombudsmen seek to ensure the health, safety, welfare and
rights of these residents throughout Florida. Florida Department of Elder Affairs, Florida Long-Term Care Ombudsman
Program, http://ombudsman.myflorida.com/AboutUs.php (last visited on Jan. 24, 2024).
24
Fla. Admin. Code R. 59A-36.023(1)(a), F.A.C.
25
Section 429.29(1), F.S.
26
See s. 46.021, F.S.
27
See s. 768.21, F.S.
28
Section 429.29(1), F.S.
BILL: CS/SB 238 Page 6
Any resident who prevails in seeking injunctive relief or a claim for an administrative remedy, is
entitled to recover the costs of the action and reasonable attorneys’ fees up to $25,000. Fees may
be awarded only for the injunctive or administrative relief, and not for any claim or action for
damages, regardless of whether the claim or action is brought together with a request for an
injunction or administrative relief or as a separate action, except as otherwise provided under
state law.29
The resident, or the resident’s legal representative, must serve a copy of any complaint alleging a
violation of the Resident Bill of Rights to the AHCA at the time he or she files the initial
complaint. This requirement does not impair the resident’s legal rights or ability to seek relief for
his or her claim.30
The ALF civil enforcement statutes31 provide the exclusive remedy for the recovery of damages
due to the personal injury or death of a resident arising out of negligence or a violation of the
Resident Bill of Rights. The statute does not preclude theories of recovery not arising out of
negligence or violations of the Resident Bill of Rights that may be available to a resident or to
the agency. The provisions of chapter 766, F.S., which govern medical malpractice and related
matters, do not apply to ca