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 develop two new rules for complaint ...

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
58L-1.008: Administrative Assessment
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 develop two new rules for complaint procedures and administrative assessments, including two forms incorporated by reference.
SUBJECT AREA TO BE ADDRESSED: The proposed rule amendments and new rules address confidentiality and disclosure of information, access to information, conflict of interest, complaint procedures, and administrative assessments, including two forms incorporated by reference.
SPECIFIC AUTHORITY: 400.0071, 400.0077(5), 400.0081(2) FS.
LAW IMPLEMENTED: 400.0071, 400.0073, 400.0075, 400.0077, 400.0081 FS.
A RULE DEVELOPMENT WORKSHOP WILL BE HELD AT THE DATE, TIME AND PLACE SHOWN BELOW:
DATE AND TIME: September 10, 2008, 9:00 a.m. – 1:00 p.m. EST.
PLACE: Department of Elder Affairs, 4040 Esplanade Way, Conference Room 225F, Tallahassee, Florida 32399-7000
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, Office of the General Counsel, 4040 Esplanade Way, Tallahassee, Florida 32399-7000; Telephone Number: [phone]; 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, Office of the General Counsel, 4040 Esplanade Way, Tallahassee, Florida 32399-7000; Telephone Number: [phone]; Email address: [e-mail]

THE PRELIMINARY TEXT OF THE PROPOSED RULE DEVELOPMENT IS:

(Substantial rewording of Rule 58L-1.001 follows. See Florida Administrative Code for present text).

58L-1.001 Confidentiality and Disclosure.

(1) Policy and Procedure.

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, hereby adopts, and incorporates by reference, the following as policy and procedure for the confidentiality and disclosure of information by an ombudsman and ombudsman council members:

(a) Section 400.0077(1) through (4), F.S., (2007); and

(b) Title VII, Chapter 2, Section 712(D) of the Older Americans Act of 1965, as amended in 2006, 42 USC 3058g.

(2) Applicability.

The confidentiality and disclosure of information procedure applies to the files maintained by the following entities established under Chapter 400, Part I, F.S.:

(a) The staff of the Office of the State Long-Term Care Ombudsman;

(b) Members of the State Long-Term Care Ombudsman Council, representatives and employees; and

(c) Members of the long-term care ombudsman district councils, representatives and employees.

(3) Complaint Case Files.

Case files involving complaints cannot be released by the Long-Term Care Ombudsman Program until the case is closed as defined in subsection (1) of Rule 58L-1.007, F.A.C.

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

 

(Substantial rewording of Rule 58L-1.005 follows. See Florida Administrative Code for present text).

58L-1.005 Access.

(1) Definitions:

In addition to the terms defined in Section 400, Part 1, F.S., the following term are defined in this rule:

(a) Access: The ability to investigate complaints pursuant to Section 400.0073, F.S. 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: Records maintained by the facility which includes information about the resident’s health, safety, or welfare.

(2) Policy and Procedure.

(a) Pursuant to Section 400.0081(2), F.S., the Department of Elder Affairs, in consultation with the Office of the State Long-Term Care Ombudsman, hereby adopts, and incorporates by reference, the following as policy and procedure to ensure access to long-term care facilities:

1. Section 400.0081(1), F.S., (2007); and

2. Title VII, Chapter 2, Section 712(D) of the Older Americans Act of 1965, as amended in 2006, 42 USC 3058g.

(b) The policy and procedure is intended to ensure access by:

1. The Office of the State Long-Term Care Ombudsman;

2. The State Long-Term Care Ombudsman Council;

3. The district long-term councils; and

4. Representatives of the entities outlined in subparagraphs 1. through 3. of this paragraph.

(c) This policy and procedure ensures access to:

1. Long-term care facilities as defined in subsection (1) of Rule 58L-1.006, F.A.C.;

2. Facility residents;

3. Facility records;

4. Resident records as defined in subsection (1) of this rule; and

5. Facility licensure and certification records maintained by the state.

Specific Authority 400.0081(2) FS. Law Implemented 400.0081 FS. History–New 7-31-95, Formerly 58L-3.001, Amended_______.

 

58L-1.006 Conflict of Interest.

This rule incorporates conflict of interest language that was formerly included under Rule Chapter 58L-2, F.A.C, Long-Term Care Ombudsman Conflict of Interest, F.A.C., specifically Rules 58L-2.001, 58L-2.003, 58L-2.005, and 58L-2.007, F.A.C. These rules have been repealed.

(1) Definitions.

In addition to the terms defined in Chapter 400, Part I, Florida Statutes, the following terms are defined in this rule:

(a) Conflict of Interest:

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

2. 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 provider;

3. Having employment with, or participating in the management of, a long-term care facility in the state of Florida; or

4. 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: The Department of Elder Affairs.

(c) District: A geographic area in which the ombudsman program is administered and services are delivered.

(d) Immediate family: Father, mother, husband, wife, son, daughter, brother, sister, or any other individual residing in the household.

(e) Indirectly: Receiving remuneration from a company providing a service to a long-term care facility, such as a consulting pharmacist.

(f) Long-term care facility: A nursing home facility, assisted living facility, or an adult family-care home as those terms are defined in Chapters 400 and 429, F.S.

(g) Long-term care services: 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 Chapters 400 and 429, F.S. Long-term care services also include services provided to residents by geriatric care managers, guardians or representative payees who are not immediate family members.

(h) Program: The Office of the State Long-Term Care Ombudsman, its representatives and employees, the State Long-Term Care Ombudsman Council, and the district long-term care ombudsman councils as established in Chapter 400, Part I, Florida Statutes.

(2) Purpose.

The purpose of this rule is to ensure that every effort is made to minimize any perception of conflicts of interest affecting the ombudsman program, including the public perception of the program’s independence. It is promulgated to further the ability of ombudsmen to independently and fully carry out their functions. The department shall monitor the program in this regard to ensure that the program and its representatives have the objectivity and independence required to qualify for federal funding under the Older Americans Act of 1965, as amended in 2006, and to comply with 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 pursuant to Section 400.070, F.S., and this rule.

(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 the medical director of a long-term care facility shall be a member of the State Long-Term Care Ombudsman Council or district councils.

(4) Procedures.

(a) Upon approval, recertification, employment or affiliation with the program, each appointee, officer, employee or representative shall sign and date a conflict of interest statement that includes the following:

1. Acknowledgement that the individual has reviewed Section 400.070, F.S., and this rule;

2. Acknowledgement that the individual understands the prohibitions defined in Section 400.070, F.S., and this rule; and

2. A statement that the individual has no conflict of interest as defined in Section 400.070, F.S., and this rule.

(b) All acknowledgements referenced in paragraph (a) of this subsection must be submitted to the Office of the State Long-Term Care Ombudsman at the following address: Department of Elder Affairs, Office of the Long-Term Care Ombudsman, 4040 Esplanade Way, Tallahassee, Florida 32399-7000. The Office of the State Long-Term Care Ombudsman must keep the statements on file.

(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 individual be removed from the council; or

2. Request that the individual remove the conflict of interest.

(d) If the individual does not comply with the recommendation to remove the conflict of interest pursuant to paragraph (c) of this rule, the State Long-Term Care Ombudsman shall disqualify the individual from carrying out any authorized ombudsman duty or responsibility, or shall terminate for cause any such employee.

(e) Deliberate failure to disclose any conflict of interest, either upon affiliation with the program or which subsequently develops, or the violation of any prohibition set forth in Section 400.070, F.S., or this rule, shall be considered sufficient grounds for disqualifying the individual from carrying out any authorized ombudsman duty or responsibility, or terminating for cause such employee.

Specific Authority 400.070 FS. Law Implemented 400.070 FS. History–New________.

 

58L-1.007 Complaint Procedures.

This rule outlines the procedures for conducting complaints against a long-term care facility or facility employee.

(1) Definitions. The following definitions apply to this rule:

(a) Case: An allegation consisting of one or more complaints brought to the attention of, or initiated by, the Long-Term Care Ombudsman Program on behalf of a long-term care facility resident or residents, which requires conducting an investigation.

(b) Closed Case: A situation where each complaint in a case requires no further action on the part of the ombudsman, each complaint has been assigned the appropriate disposition code, and each complaint has been reviewed by the local ombudsman council.

(c) Complaint: An allegation of a problem with resident care, rights, health, safety, or welfare that is made by a long-term care facility resident or someone on behalf of a resident. One or more complaints constitute a case as defined in paragraph (a) of this subsection.

(d) Resolved: The resolution of the complaint has been addressed to the satisfaction of the resident or the resident’s legal representative pursuant the National Ombudsman Reporting System published by the U.S. Department of Health and Human Services, Administration on Aging.

(e) Visit: The onsite presence of the ombudsman at a facility to listen to, observe, and interact with residents.

(2) Receiving Complaints.

(a) Any person may make a written or verbal complaint to the Office of State Long-Term Care Ombudsman or its representatives (hereafter referred to as “ombudsman program” or “program”).

1. A complaint may also be generated by a representative of the ombudsman program.

2. A complaint may be anonymous.

(b) All complaints made to the program will be directed to the ombudsman manager in the district where the facility involved in the complaint is located. The receipt of a complaint by the district ombudsman manager triggers the opening of a case.

1. The district ombudsman manager, or designee, must code complaints based on federal standards included in the National Ombudsman Reporting System published by the U.S. Department of Health and Human Services, Administration on Aging.

2. The district ombudsman manager, or designee, must initiate and submit DOEA Form LTCOP-001 to the ombudsman conducting the investigation. DOEA Form LTCOP-001, Case Investigation,________2008, is hereby incorporated by reference and available from the Department of Elder Affairs, Office of the State Long-Term Care Ombudsman, 4040 Esplanade Way, Tallahassee, Florida 32399-7000. The form may also be obtained at the following Web site: (Web site TBA),

(3) Investigative Protocol.

(a) An investigation is initiated when an ombudsman makes contact with the complainant or resident. The investigation shall be initiated within 5 business days after the district ombudsman manager receives the complaint.

(b) The ombudsman must visit the resident or residents on whose behalf the complaint was filed.

(c) The complaint investigation must focus on the rights, health, safety and welfare of the resident or residents and may include direct observation, interviews with residents and other individuals, and record reviews.

(d) Investigations must be closed within 90 calendar days after receiving the complaint. The local council may grant a request for extension if it determines that 90 calendar days is not sufficient time to close the case.

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

1. Complete DOEA Form LTCOP-0001, using disposition codes referenced in subparagraph (2)(b)1. of this rule.

2. Contact the resident or the resident’s legal representative, if possible, to inform him or her of the disposition.

3. Conduct an exit interview with the facility administrator or his or her designee to present the findings.

(f) The quality assurance review team of the local council must review the investigative process and the case information upon completion of the investigation.

(g) Within 20 business days after the case investigation closure, the district ombudsman manager must submit a written summary of the case disposition to the resident or the resident’s legal representative.

(h) If the ombudsman determines that an issue is resolvable but the issue remains 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, F.S., in consultation with the State Ombudsman, or designee.

Specific Authority 400.0071 FS. Law Implemented 400.0071, 400.0073, 400.0075 FS. History–New________.

 

58L-1.008 Administrative Assessments.

This rule outlines procedures for conducting administrative assessments of long-term care facilities.

(1) All long-term care facilities must have at least one onsite administrative assessment conducted during each federal reporting year, which is October 1 through September 30.

(2) In addition to the administrative assessment, the ombudsman program must conduct at least 3 additional onsite visits for long-term care facilities during the federal reporting year pursuant to the minimum requirements as detailed in the National Ombudsman Reporting System published by the U.S. Department of Health and Human Services, Administration on Aging.

(3) By October 1 of each year, the district ombudsman manager must assign all facilities within his or her district to individual members of the local council for administrative assessments to be completed by September 30 of the following year.

(4) Prior to the onsite administrative assessment, the ombudsman must review available Agency for Health Care Administration facility survey records.

(5) Administrative assessments may include observations, interviews with residents and other individuals, and review of facility records. The assessment must focus on issues from the resident’s perspective, including:

(a) Resident rights;

(b) Resident care;

(c) Quality of life;

(d) Administration of the facility; and

(e) Disaster preparedness.

(6) At the conclusion of the assessment, the ombudsman must conduct an exit interview with the facility administrator or his or her designee to discuss the assessment findings.

(7) Problems identified during the administrative assessment must be provided in writing to the facility administrator. The district ombudsman manager may decide to code assessment findings as complaints and assign them to an ombudsman for further investigation and disposition pursuant to Rule 58L-1.007, F.A.C.

(8) The results of an administrative assessment must be recorded on the DOEA Form LTCOP-0002,_______2008, Administrative Assessment, which is incorporated by reference and available from the Department of Elder Affairs, Office of the State Long-Term Care Ombudsman, 4040 Esplanade Way, Tallahassee, Florida 32399-7000. The form may also be obtained from the following Website: (Web site TBA).

(9) The district ombudsman manager must keep original assessment forms in the district office and forward copies to the facility administrator and the local Agency for Health Care Administration field office within 30 business days after receipt.

(10) If issues discovered during an assessment 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, 400.0073 FS. History–New________.