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 three new rules for definitions, ...

DEPARTMENT OF ELDER AFFAIRS
Long-Term Care Ombudsman Program

RULE NO: RULE TITLE
58L-1.001: Confidentiality and Disclosure
58L-1.0011: Definitions.
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 three new rules for definitions, complaint procedures and administrative assessments, including three 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, definitions, complaint procedures, and administrative assessments, including three 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: February 26, 2009, 9:30 a.m. – 12:30 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) Sections 400.0077(1) through (4), F.S. (2007); and

(b) Title VII, Chapter 2 of the Older Americans Act of 1965, as amended in 2006, 42 U.S.C., Sections 3058f-h.

(2) APPLICABILITY.

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

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

2. Members of the State Long-Term Care Ombudsman Council; and

3. Members of the district long-term care ombudsman councils.

(b) Complaint case files cannot be released by the Long-Term Care Ombudsman Program until the case is closed as defined in Rule 58L-1.0011, F.A.C.

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

 

58L-1.0011 Definitions.

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

(1) CASE: Each inquiry brought to, or initiated by, the ombudsman on behalf of a resident or group of residents involving one or more complaints which requires opening a case and includes ombudsman investigation, strategy to resolve, and follow-up.

(2) CLOSED CASE: A case where none of the complaints within the case require any further action on the part of the ombudsman and every complaint has been assigned the appropriate disposition code, and each complaint has been reviewed and accepted by the district long-term care ombudsman council.

(3) COMPLAINT: A concern brought to, or initiated by, the ombudsman for investigation and action by or on behalf of one or more residents of a long-term care facility relating to residents’ health, safety, welfare or rights. One or more complaints constitute a case as defined in subsection (1) of this rule.

(4) COMPLAINANT: An individual or a party, who files with the ombudsman program, one or more complaints made by, or on behalf of, residents in a long-term care facility as defined in subsection (9) of this rule.

(5) DEPARTMENT: The Department of Elder Affairs.

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

(7) IMMEDIATE FAMILY: Father, mother, husband, wife, son, daughter, brother, sister, or any other individual residing in the household.

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

(9) 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.

(10) 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, F.S.

(11) RESOLVED: The resolution of the complaint has been addressed to the satisfaction of the resident or the resident’s legal representative.

(12) VERIFIED: It is determined after (interviews, record inspection, and observation, etc.) that the circumstances described in the complaint are generally accurate.

Specific Authority 400.0070, 400.0071 FS. Law Implemented 400.0070, 400.0071, 400.0073, 400.0075 FS. History– New_________.

 

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

58L-1.005 Access.

The Department of Elder Affairs, in consultation with the Office of the State Long-Term Care Ombudsman, hereby adopts, and incorporates by reference, Title VII Chapter 2 of the Older Americans Act of 1965, as amended in 2006, 42 U.S.C. § 3058g(b) and Section 400.0081, F.S. (2007), as policy and procedure to ensure access to long-term care facilities.

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, Long-Term Care Ombudsman Conflict of Interest, Rules 58L-2.001, 58L-2.003, 58L-2.005, and 58L-2.007, F.A.C., are repealed.

(1) PURPOSE.

The purpose of this rule is to ensure that every effort is made to minimize any perception of individual or organizational conflicts of interest affecting the ombudsman program, including conflicts that affect the public perception of the program’s independence. It is promulgated to define situations that constitute a person having a conflict of interest and to further the ability of ombudsmen to independently and fully perform their duties pursuant to the Older Americans Act of 1965, as amended in 2006, and Chapter 400, Part I, Florida Statutes. The department shall monitor the program to ensure that it 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.

(2) CONFLICT OF INTEREST DEFINED.

A conflict of interest is a competing interest, obligation, or duty which compromises, influences, interferes with (or gives the appearance of compromising, influencing or interfering with) the integrity, the activities or the conduct of the program’s representatives, including the State Long-Term Care Ombudsman, in faithfully and effectively fulfilling his or her official duties. Types of conflicts include:

(a) Conflicts of loyalty involve issues of judgment and objectivity, including, but not limited to, financial incentives that shape an individual’s judgment or behavior in such a way that is contrary to residents’ interest.

(b) Conflicts of commitment involve issues of time and attention that direct an individual's time and attention away from the residents’ interests.

(c) Conflicts of control involve issues of independence, including limitations or restrictions that effectively foreclose an individual’s ability to advocate for residents’ interests.

(3) PROHIBITIONS.

(a) The Department of Elder Affairs, in consultation with the Office of the State Long-Term Care Ombudsman, hereby adopts and incorporates by reference, the prohibited conduct specified in Section 400.0070(1), F.S. (2007), and Title VII, Chapter 2 of the Older Americans Act of 1965, as amended in 2006, 42 U.S.C. § 3058g(f). In addition, the following situations constitute a prohibited conflict of interest involving an ombudsman; an ombudsman’s immediate family member; an officer, employee or representative of the Office of State Long-Term Care Ombudsman or of the state or district long-term care ombudsman councils:

1 Having an ownership or investment interest, represented by equity, debt or other financial relationship, in a long-term care facility or long-term care service as defined in Rule 58L-1.0011, F.A.C.;

2. Providing long-term care services, including the provision of personnel for long-term care facilities or the operation of programs which control access to, or services for, long-term care facilities;

3. Participating in the management of a long-term care facility or serving as the medical director of a long-term care facility; or having an immediate family member who participates in the management of a long-term care facility or serves as a medical director of a long-term care facility;

4. Being involved in the licensing and certification of a long-term care facility or provision of a long-term care service to a facility or its residents; or a having an immediate family member involved in the licensing or certification of such facility or providing a long-term care service to the facility or its residents;

5. Receiving direct or indirect remuneration under a compensation arrangement with an owner or operator of a long-term care facility or having an immediate family member who receives such compensation;

6. Accepting substantial or consequential gifts or gratuities from a long-term care facility, facility owner, administrator, resident or resident’s representative;

7. Performing ombudsman duties in a facility in which an immediate family member resides;

8. Standing to gain financially through an action or potential action brought on behalf of residents by ombudsman services;

9. Participating in activities which compromise the ability of the Long-Term Care Ombudsman Program to serve residents or are likely to create an appearance that the Long-Term Care Ombudsman Program's primary interest is other than as a resident advocate.

10. Being an employee of the Agency for Health Care Administration, the Department of Business and Professional Regulation, the Department of Children and Family Services and the Department of Health.

(b) Past employment in a long-term care facility or being related to a long-term care facility resident shall not, in an and of itself, be construed as an impermissible conflict of interest.

(4) PROCEDURES.

(a) Upon approval, 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 Title VII, Chapter 2 of the Older Americans Act of 1965, as amended in 2006, 42 U.S.C., Section 3058g(f), Section 400.0070, F.S. (2007), and this rule;

2. Acknowledgement that the individual understands the prohibitions contained in subsection (3) of this rule; and

3. A statement that the individual has no conflict of interest as defined in subsection (2) of this rule.

(b) All acknowledgements referenced in 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 State 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 allegations of conflict of interest and, if appropriate, shall 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, the State Long-Term Care Ombudsman shall de-designate the representative from the Office of the State Long-Term Care Ombudsman, or shall terminate for cause any such employee.

(e) Deliberate failure to disclose any conflict of interest, or the violation of any prohibition set forth in subsection (3) of this rule, shall be considered sufficient grounds for de-designating the representative of the Office of the State Long-Term Care Ombudsman from performing any authorized ombudsman duty or responsibility, or terminating for cause such an employee.

Specific Authority 400.0070 FS. Law Implemented 400.0070 FS. History–New_______.

 

58L-1.007 Complaint Procedures.

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

(1) RECEIVING COMPLAINTS.

(a) Any person may make a written or verbal complaint to the Office of State Long-Term Care Ombudsman or its representatives. A complaint may be anonymous.

(b) The receipt of a complaint by the district ombudsman manager or his/her designee triggers the opening of a case as defined in Rule 58L-1.0011, F.A.C.

1. The district ombudsman manager, or designee, must code complaints based on the requirements of 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 complete and provide DOEA Form LTCOP-001 to the ombudsman conducting the investigation. DOEA Form LTCOP-001, Case Investigation,______2009, 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: (Website TBA),

(2) INVESTIGATIVE PROTOCOL.

(a) An investigation is initiated when an ombudsman makes contact with the complainant or resident. The investigation shall be initiated within five 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, as permitted in 42 U.S.C., Section 3058g(b) and Section 400.0081, F.S.

(d) Investigations must be closed within 90 calendar days after receiving the complaint unless additional time is requested by the ombudsman and granted by the local council.

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

1. Complete DOEA Form LTCOP-0001, using disposition codes referenced in subparagraph (1)(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 discuss the investigation and provide an opportunity for comment. All comments must be documented and become part of the complaint record.

(f) The local council must review and accept the complaint investigation, the investigative process and the case documentation upon completion of the case.

(g) Within 20 business days after case closure as defined in Rule 58L-1.0011, F.A.C., the district ombudsman manager must submit a written summary of the case disposition to the resident or the resident’s legal representative and the facility as required by Section 400.0075(1)(a), F.S.

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) MINIMUM ASSESSMENT REQUIREMENT.

All long-term care facilities must have at least one onsite administrative assessment conducted in accordance with Section 400.0074, F.S., during each federal reporting year, which is October 1 through September 30.

(2) DISTRICT OMBUDSMAN MANAGER RESPONSIBILITY.

(a) 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.

(b) The district ombudsman manager must keep original completed 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 council approval.

(3) ADMINISTRATIVE ASSESSMENT PROCESS AND FOCUS.

Administrative assessments may include observations, interviews with residents and other individuals, and review of facility records as permitted in 42 U.S.C. § 3058g(b) and Section 400.0081, F.S. The assessment must focus on issues affecting residents’ rights, health, safety, and welfare from their perspective.

(4) ADMINISTRATIVE ASSESSMENT FORMS.

(a) The results of an administrative assessment must be recorded on the DOEA Form LTCOP-0002,______2009, 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: (Website TBA).

(b) The administrative assessment should be conducted using DOEA Form LTCOP-003, Long-Term Care Ombudsman Program Administrative Assessment Guidelines,_______, 2009, which is incorporated by reference and available from the department at the address indicated in paragraph (a) of this subsection. The guidelines may also be obtained from the following Website: (Website TBA).

(5) EXIT INTERVIEW.

(a) 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 and provide an opportunity for the administrator or his or her designee to comment. All comments must be documented and become part of the assessment record.

(b) Pursuant to Section 400.0075, F.S., if any problems are identified during the assessment, the ombudsman must document the steps agreed upon for remedial action and the agreed target dates for completion of these steps. Identified problems and target dates must be recorded on the assessment form referenced in paragraph (a) of subsection (4) of this rule and provided in writing to the facility administrator during the exit interview.

(6) UNRESOLVED PROBLEMS.

If problems identified during an assessment remain unresolved, the ombudsman, the district long-term care ombudsman council and the State Long-Term Ombudsman Council, in consultation with the State Ombudsman, shall proceed with actions pursuant to Section 400.0075, F.S.

Specific Authority 400.0071 FS. Law Implemented 400.0071, 400.0073 FS. History–New_______.

 

The text of the proposed rule development and FORMS INCORPORATED BY REFERENCE can be found at the following web address under LTC Ombudsman Rules: http://elderaffairs.state.fl.us/english/rulemaking.php