The purpose of the proposed rule amendments is to add additional language; incorporate conflict of interest language into this rule chapter, which is currently included in Rule Chapter 58L-2, F.A.C.; and add a new rule for complaint procedures, ...

DEPARTMENT OF ELDER AFFAIRS
Long-Term Care Ombudsman Program

RULE NO: RULE TITLE
58L-1.001: Confidentiality and Disclosure
58L-1.005: Access.
58L-1.006: Conflict of Interest
58L-1.007: Complaint Procedures
PURPOSE AND EFFECT: The purpose of the proposed rule amendments is to add additional language; incorporate conflict of interest language into this rule chapter, which is currently included in Rule Chapter 58L-2, F.A.C.; and add a new rule for complaint procedures, including two forms incorporated by reference.
SUBJECT AREA TO BE ADDRESSED: Confidentiality and disclosure of information; access to information; conflict of interest; and complaint procedures, including two forms incorporated by reference.
SPECIFIC AUTHORITY: 400.0065(3), 400.0067(4), 400.0069(10), 400.0071, 400.0077(5), 400.0081(3), 400.0087 FS.
LAW IMPLEMENTED: 400.0077, 400.0081, 400.0065(1)(a), (3), 400.0067, 400.0069(4), (10), 400.0071, 400.0087, 400.0091 FS.
IF REQUESTED IN WRITING AND NOT DEEMED UNNECESSARY BY THE AGENCY HEAD, A RULE DEVELOPMENT WORKSHOP WILL BE HELD AT THE DATE, TIME AND PLACE SHOWN BELOW:
TIME AND DATE: August 8, 2007, 9:00 a.m. – 12:00 Noon
PLACE: Department of Elder Affairs, 4040 Esplanade Way, Conference Room 225F, Tallahassee, Florida 32399-7000
IF NOT REQUESTED IN WRITING, THE WORKSHOP WILL NOT BE HELD.
Pursuant to the provisions of the Americans with Disabilities Act, any person requiring special accommodations to participate in this workshop/meeting is asked to advise the agency at least 72 hours before the workshop/meeting by contacting: Jim Crochet, Department of Elder Affairs, 4040 Esplanade Way, Tallahassee, Florida 32399-7000; Telephone Number: [phone], SunCom 994-2000; Email address: [e-mail]. If you are hearing or speech impaired, please contact the agency using the Florida Relay Service, 1(800)955-8771 (TDD) or 1(800)955-8770 (Voice).
THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE DEVELOPMENT AND A COPY OF THE PRELIMINARY DRAFT, IF AVAILABLE, IS: Jim Crochet, Department of Elder Affairs, 4040 Esplanade Way, Tallahassee, Florida 32399-7000, Telephone Number: [phone], SunCom 994-2000; Email address: [e-mail].
A COPY OF THE PRELIMINARY TEXT OF THE PROPOSED RULE (also listed below) AND THE FORMS REFERENCE IN RULE 58L-1.007, F.A.C., COMPLAINT PROCEDURES, MAY BE OBTAINED FROM THE DEPARTMENT'S WEB SITE AT: http://elderaffairs.state.fl.us under the title "DOEA RULEMAKING, OMBUDSMAN.”

THE PRELIMINARY TEXT OF THE PROPOSED RULE DEVELOPMENT IS:

58L-1.001 Confidentiality and Disclosure.

(1) Pursuant to Section 400.0077(5), F.S., the Department of Elder Affairs, in consultation with the Office of the State Long-Term Care Ombudsman and the State Long-Term Care Ombudsman Council, hereby adopt and incorporate by reference herein Sections 400.0077(1)-(4), F.S., Confidentiality, and Section 712(d) of Section 201 of the Older Americans Act of 1965, 42 USC 3058g, Disclosure, as policy and procedure for the confidentiality of and the disclosure by any ombudsman and all ombudsman councils of files maintained by the Office of the State Long-Term Care Ombudsman, the State Long-Term Care Ombudsman Council, their representatives and their employees, and their district or area councils, representatives and employees as established in Chapter 400, Part I, F.S.

(2) Case records will not be released by the Long-Term Care Ombudsman Program until the case is closed as defined in subsection 58L-1.007(1), F.A.C.

Specific Authority 400.0077(5) FS. Law Implemented 400.0077 FS. History–New 7-25-95, Amended________.

 

58L-1.005 Access.

(1) Pursuant to Section 400.0081(2)(3), F.S., the Department of Elder Affairs, in consultation with the Office of the State Long-Term Care Ombudsman and the State Long-Term Care Ombudsman Council, hereby adopts and incorporates by reference herein Section subsection 400.0081(1) and (2), F.S., Access to facilities, residents and records, and Section 712(b) of Section 201 of the Older Americans Act of 1965, 42 USC 3058g, Procedures for Access, as policy and procedure to ensure access by the Office of the State Long-Term Care Ombudsman, the State Long-Term Care Ombudsman Council, the district or area long-term care councils, and their representatives as established in Chapter 400, Part I, F.S., to long-term care facilities, facility records, facility licensure and certification records maintained by the state, residents, and resident records.

(2) The following terms within the above-incorporated statutory references are defined as follows:

(a) “Access” means the ability pursuant to Section 400.0073, F.S., to investigate. The denial of access constitutes an interference in the performance of official duties and is a violation of Section 400.0083, F.S.

(b) “Administrative records, policies, and documents to which the residents, or the general public, have access” means records maintained by the facility which concern, involve, or pertain to the residents’ medications, diet, comfort, health, safety, or welfare.

(c) “Social records” means non-medical resident records and includes resident financial records.

Specific Authority 400.0081(3) FS. Law Implemented 400.0081 FS. History–New 7-31-95, Formerly 58L-3.001, Amended________.

 

58L-1.006 Conflict of Interest.

(1) Definitions. All terms used in this rule and not defined herein are derived from and defined in Chapter 400, Part I, Florida Statutes, Long-Term Care Facilities; Ombudsman Program.

(a) “Conflict of Interest” means:

1. Having a direct involvement in the licensing or certification of a long-term care facility or of a provider of a long-term care service;

2. Having a direct involvement in the licensing or certification of a long-term care facility or of a provider of a long-term care service;

3. Having an ownership or investment interest (represented by equity, debt, or other financial relationship) in a long-term care facility or a long-term care service;

4. Employed by, or participating in the management of, a long-term care facility in the state of Florida; or

5, Receiving, or having the right to receive, directly or indirectly, remuneration (in cash or in kind) under a compensation arrangement with an owner or operator of a long-term care facility.

(b) “Department” means the Department of Elder Affairs.

(c) “District” means a geographic area in which the programs of the department are administered and services are delivered.

(d) “Immediate family” means father, mother, husband, wife, son, daughter, brother, sister, or an individual residing in the household.

(e) “Indirectly” means receiving remuneration from a company providing a service to a long-term care facility, such as a consulting pharmacist.

(f) “Long-term care facility” means a nursing home facility, assisted living facility, or an adult family care home as those terms are defined in Chapter 400 and Chapter 429, Florida Statutes.

(g) “Long-term care services” means services provided by a long-term care facility, home health agency, adult day care center, hospice, intermediate care facility, home for special services, or transitional living facility as those terms are defined in Chapter 400 and Chapter 429, Florida Statutes. Long term care services also includes services provided to residents of long term care facilities by geriatric care managers, guardians or representative payees who are not immediate family members.

(h) “Program” refers to the Office of the State Long-Term Care Ombudsman, its representatives and employees, the State Long-Term Care Ombudsman Council, and the district or local Long-Term Care Ombudsman councils as established in Chapter 400, Part I, Florida Statutes.

(2) Purpose. The purpose of this chapter is to ensure that every effort is made to minimize any perception of conflicts of interest affecting the ombudsman program. It is promulgated to further the ability of ombudsmen to independently and fully carry out their functions, including the public perception of the program’s independence. The Department shall vigorously monitor the program in this regard to ensure that the program and its representatives have the objectivity and independence required to qualify it for federal funding under the Older Americans Act of 1965, as amended, and to comply with and implement all state laws, rules and regulations relating to the program.

(3) Prohibitions.

(a) No officer, employee or representative of the Office of State Long-Term Care Ombudsman or of the State or District Long-Term Care Ombudsman Councils, nor any member of the immediate family of such officer, employee, or representative, may have a conflict of interest.

(b) No employee of the Agency for Health Care Administration, the Department of Business and Professional Regulation, the Department of Children and Family Services, the Department of Health, the Department of Elder Affairs, or medical director of a long-term care facility shall be a member of a District or State Long-Term Care Ombudsman Council.

(4) Procedures.

(a) Upon approval recertification, employment or affiliation with the program, each appointee, officer, employee or representative shall sign a conflict of interest certification form that:

1. Acknowledges receipt and understanding of these rules, and

2. States that such individual has no conflict of interest as defined by these rules. The Office of the State Long-Term Care Ombudsman will keep the statements on file at its headquarters.

(b) Deliberate failure to disclose any conflict of interest, whether upon affiliation with the program or which subsequently develops, or the violation of any prohibition set forth in this chapter shall be considered sufficient grounds for:

1. A recommendation to the State Long-Term Care Ombudsman that the representative be immediately disqualified pursuant to Section 400.0091, Florida Statutes, to carry out ombudsman activities on behalf of the office of the State Long Term Care Ombudsman;

2. Termination for cause of any such employee.

(c) The State Long-Term Care Ombudsman shall receive and review all violations and allegations of conflict of interest and if appropriate shall,

1. Request that the person resign from the council; or

2. Request that the person remove the conflict.

If the person does not resign from the council or remove the conflict, the State Long-Term Care Ombudsman shall disqualify the employee, or representative of the Office of the State Long Term Care Ombudsman from carrying out any authorized ombudsman duty or responsibility.

Specific Authority 400.0065(3), 400.0067(4), 400.0069(10), 400.0087(1) FS. Law Implemented 400.0065(3), 400.0067(4), 400.0069(10), 400.0087(1), 400.0091 FS. History–New________.

 

58L-1.007 Complaint Procedures.

(1) Definitions.

(a) “Case” means an inquiry or allegation brought to, or initiated by, the Long-Term Care Ombudsman Program on behalf of a long-term care facility resident or group of residents involving one or more complaints or problems which requires opening a case file and which includes ombudsman investigation, fact gathering, development and implementation of a resolution strategy.

(b) “Closed Case” means a case where the complaints within the case do not require further action on the part of the ombudsman, every complaint has been assigned the appropriate resolution code, and the case has been peer- reviewed by the local council.

(c) “Complaint” means an allegation, made by a long-term care facility resident or someone on behalf of a resident, of a problem with resident care or a problem affecting the rights, health, safety, and/or welfare of the residents of a long-term care facility. One or more complaints constitute a case.

(d) “Resolved” means the complaint or problem was addressed to the satisfaction of the resident or the resident’s legal representative.

(e) “Visit” means going to a facility to listen to, observe, and interact with residents.

(2) Receiving complaints against a long-term care facility or an employee of a long-term care facility.

(a) A complaint may be made by any person and may be received by the Office of State Long-Term Care Ombudsman or its representatives through written or oral communication. A complaint generated by a representative of the Office of State Long-Term Care Ombudsman shall be considered a complaint. A complaint may be anonymous.

(b) All complaints made to the program will be directed to the district ombudsman manager for the district in which the facility involved in the complaint is located. Receipt of the complaint by the district ombudsman manager initiates the opening of an investigation.

(c) The district ombudsman manager will code complaints based on federal standards of the National Ombudsman Reporting System by the Administration on Aging, U.S. Department of Health and Human Services.

(d) After entering the complaint information into the database, the district ombudsman manager will print the DOEA Form LTCOP-001, (effective date), 2007, Case Investigation Form, which is incorporated herein by reference, and mail it to the ombudsman who will be investigating the case.

(3) Conducting investigations of a long-term care facility or an employee of a long-term care facility subsequent to receiving a complaint.

(a) An investigation is initiated when an ombudsman makes contact with the complainant or resident; which shall happen within five (5) business days after receipt of the complaint by the district ombudsman manager.

(b) At the beginning of the investigation, the ombudsman investigating the case must visit the resident or residents on whose behalf the case was filed.

(c) The case investigation shall focus on the rights, health, safety and welfare of the resident and may include direct observation, interviews with residents and other individuals, and review of records.

(d) Investigations shall be closed within 90 calendar days of receipt. The local council may grant a request for extension if 90 days is not sufficient time to close the case.

(e) At the conclusion of a case investigation, the ombudsman investigating the case will:

1. Complete DOEA Form LTCOP-0001 using resolution codes developed for the National Ombudsman Reporting System by the Administration on Aging, U.S. Department of Health and Human Services.

2. Contact the resident or the resident’s legal representative if possible, to inform them of the resolution.

3. Have an exit interview with the administrator or their designee to present the ombudsman’s findings.

(f) After the investigation is complete, the investigation process and the case information will be reviewed by the Quality Assurance Review Team of the local council.

(g) Within ten (10) business days of the closing of the case investigation, the district ombudsman manager will send a written summary of the case disposition to the resident or the resident’s legal representative.

(h) If issues remain unresolved at the conclusion of the investigation, the ombudsman, the local council and the state council will proceed with actions pursuant to Section 400.0075, Florida Statutes in consultation with the State Ombudsman.

(4) Conducting onsite administrative assessments of long-term care facilities.

(a) All long-term care facilities shall receive at least one onsite administrative assessment during each federal reporting year, beginning October 1 and ending September 30 of the following year.

(b) Consistent with minimum requirements by the U.S. Administration on Aging as detailed in the National Ombudsman Reporting System program instructions, each long-term care facility shall receive three visits during the federal reporting year in addition to the administrative assessment.

(c) Within 30 calendar days prior to the beginning of the federal reporting year, the district ombudsman manager will assign all facilities within the district to individual members of the local council for assessment.

(d) The ombudsman conducting an assessment shall review available facility surveys conducted by Agency for Health Care Administration prior to the onsite administrative assessment.

(e) Administrative assessments shall include interviews with residents and shall focus on issues from the residents’ perspective, including but not limited to; posting of required brochures and licenses, physical plant, residents’ physical space, residents’ rights, staffing levels, medical care and services, food service, activities, and disaster preparedness.

(f) At the conclusion of the assessment, the ombudsman will have a brief exit interview with the facility administrator or his/her designee to discuss assessment findings.

(g) Problems identified during the administrative assessment shall be provided to the facility administrator in writing and may be coded as complaints by the district ombudsman manager and assigned to an ombudsman for investigation and resolution.

(h) The results of an administrative assessment shall be recorded on the DOEA Form LTCOP-0002, (effective date), 2007, Annual Assessment Form, which is incorporated herein by reference.

(i) The district ombudsman manager will keep the original completed Annual Assessment Forms in the district office and forward copies to Agency for Health Care Administration within 30 business days after receipt.

(j) If there are issues discovered during an assessment that remain unresolved, the ombudsman, the local council and the state council will proceed with actions pursuant to Section 400.0075, Florida Statutes in consultation with the State Ombudsman.

Specific Authority 400.0071 FS. Law Implemented 400.0071 FS. History–New________.