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 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, definitions, 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 15, 2009, 9:30 a.m. – 1:30 p.m. EDT
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: [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: [phone]; Email address: [e-mail]
THE TEXT OF THE PROPOSED RULE DEVELOPMENT IS ALSO AVAILABLE ON THE WEBSITE LISTED BELOW, ALONG WITH THE 2 FORMS INCORPORATED BY REFERENCE, UNDER THE HEADING ENTITLED “LONG-TERM CARE OMBUDSMAN PROGRAM, RULE CHAPTER 58L-1, F.A.C. http://elderaffairs.state.fl.us/english/rulemaking.php

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) APPLICABILITY.

The confidentiality and disclosure of information requirement applies to the complaint files maintained by the entities below, which are 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; and

(c) Members of the district long-term care ombudsman councils.

(2) REQUIREMENTS.

(a) Individuals specified in subsection (1) of this rule must follow the requirements in this subsection regarding the confidentiality and disclosure of information involving complaint files in the performance of their duties:

1. Section 400.0077, F.S.; and

2. Title VII, Chapter 2, of the Older Americans Act of 1965, as amended in 2006, 42 U.S.C., Section 3058g(d).

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

Rulemaking 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) COMPLAINT INVESTIGATION DEFINITIONS.

(a) 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.

(b) CASE CLOSED: 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. For purposes of this rule, each complaint must be reviewed and approved by the long-term care district ombudsman manager, or designee, before it meets this definition.

(c) CLOSED CASE: Same as case closed.

(d) 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 health, safety, welfare or rights of a resident. One or more complaints constitute a case.

(e) COMPLAINANT: An individual or a party, (i.e., husband and wife; siblings), who files one or more complaints made by, or on behalf of, residents with the ombudsman program.

(2) COMPLAINT INVESTIGATION DISPOSITION CODES.

(a) NO ACTION NEEDED: The complaint/problem required no action.

(b) NOT RESOLVED: The complaint/problem was not addressed to the satisfaction of the resident or complainant.

(c) PARTIALLY RESOLVED: The complaint/problem has been addressed to some degree to the satisfaction of the resident or complainant, but not completely.

(d) REFERRED, AGENCY FAILED TO ACT: The complaint/problem was referred to an agency having jurisdiction over the complaint/problem, but the agency failed to act.

(e) REFFERRED, NO REPORT: The complaint/problem was referred to an agency having jurisdiction over the complaint/problem, but no report was filed.

(f) REQUIRES POLICY, REGULATORY or LEGISLATIVE CHANGE TO RESOLVE: The complaint/ problem cannot be addressed to the satisfaction of the resident or complainant without a policy, regulatory or statutory change.

(3) COMPLAINT INVESTIGATION VERIFICATION CODES.

(a) RESOLVED: The complaint/problem was addressed to the satisfaction of the resident or complainant.

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

(4) CONFLICT OF INTEREST DEFINITIONS.

(a) CONFLICT OF INTEREST: 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:

1. 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’ interests.

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

3. Conflicts of control involve issues of independence, including limitations or restrictions that effectively prevent an individual's ability to advocate for residents’ interests.

(b) IMMEDIATE FAMILY: Father, mother, stepfather, stepmother, husband, wife, son, daughter, brother, sister, grandmother, grandfather, great-grandmother, great- grandfather, grandson, granddaughter, uncle, aunt, first cousin, nephew, niece, husband, wife, father-in-law, mother-in-law, son-in-law, daughter-in-law, brother-in-law, sister-in-law, stepson, stepdaughter, stepbrother, stepsister, half brother, or half sister.

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

(d) 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.

(3) OTHER DEFINITIONS:

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

(b) DOM: Abbreviation for long-term care district ombudsman manager.

(c) 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.

Rulemaking 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.

(1) Long-term care facilities must follow the provisions below regarding an ombudsman’s access to the facility, residents and records:

(a) Section 400.0081, F.S.; and

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

(2) Upon entering a long-term care facility, the ombudsman must identify himself or herself to the administrator or designee.

(3) In the event that a facility should deny an ombudsman access as outlined in subsection (1) of this rule, the ombudsman must report the incident to the DOM, who must immediately contact the Office of the Long-Term Care Ombudsman.

Rulemaking 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, F.A.C.

(1) PROHIBITIONS.

(a) In addition to the conflict of interest prohibitions set forth in Section 400.0070(1), F.S., and Title VII, Chapter 2 of the Older Americans Act of 1965, as amended in 2006, 42 U.S.C. § 3058g(f), the following situations constitute prohibited conflicts 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, or an immediate family member 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, or having an immediate family member 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, or having an immediate family member participating, in the management of a long-term care facility or serving as the medical director of a long-term care facility;

4. Being involved, or having an immediate family member 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;

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

6. Accepting, or having an immediate family member 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 a current 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.

(2) 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(1), F.S., and this rule;

2. Acknowledgement that the individual understands the prohibitions contained in subsection (1) of this rule; and

3. A statement that the individual has no conflict of interest as defined in 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 remove the conflict of interest, the State Long-Term Care Ombudsman shall de-designate the representative from performing any authorized ombudsman duty or responsibility, 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 this rule, shall be considered sufficient grounds for de-designating the representative from performing any authorized ombudsman duty or responsibility, or terminating for cause such an employee.

Rulemaking 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 on behalf of residents in long-term care facilities or involving facility employees.

(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 DOM, or designee, triggers the opening of a case as defined in Rule 58L-1.0011, F.A.C.

1. The DOM, 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 DOM, 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: (TBA),

(2) INVESTIGATIVE PROTOCOL.

(a) An investigation is initiated when an ombudsman makes contact with the complainant or resident. The investigation must be initiated within 7 calendar days after the district ombudsman manager receives the complaint.

(b) To the extent possible, the ombudsman must make every effort to visit the resident, or representative or immediate family member on whose behalf the complaint was filed. If unable to do so, the ombudsman must document the reason why he or she was unable to visit the resident, or representative or immediate family member.

(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 DOM, or designee. The DOM, or designee, may grant an extension of the 90-calendar day period when the ombudsman is unable to complete the investigation due to circumstances beyond his or her control. Such circumstances may be:

1. The investigation is undergoing legal or administrative proceedings;

2. One of the parties is ill and cannot participate in the investigation;

3. There is an act of God or a designated threat to public safety that would warrant an extension; or

4. Any other circumstance that would warrant an extension in the opinion of the DOM, or designee.

(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 representative, to inform him or her of the preliminary disposition, pending the review and final approval of the DOM, or designee, pursuant to paragraph (f) of this subsection.

3. Conduct an exit interview with the facility administrator, or designee, to discuss the preliminary complaint findings and provide an opportunity for comment. All comments must be documented and become part of the complaint record. The ombudsman must inform the administrator, or designee, that an official report of the findings will be submitted after review and final approval by the DOM, or designee, pursuant to paragraph (f) of this subsection.

4. Submit the complaint investigation form to the DOM, or designee, within 7 calendar days.

(f) The DOM, or designee, must review and approve the complaint investigation.

1. Within 21 calendar days after case closure as defined in Rule 58L-1.0011, F.A.C., the DOM, or designee, must submit a written summary of the case disposition to the resident or representative, and the facility.

2. The facility may submit written comments regarding the summary to the DOM, or designee, within 21 calendar days from the date on the summary letter. If timely received, the DOM, or designee, must include the facility’s written comments as part of the official complaint record.

Rulemaking 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.

Pursuant to Section 400.0074, F.S., all long-term care facilities must have at least one onsite administrative assessment conducted annually. For purposes of this rule, the annual period shall be the federal reporting year, which is October 1 through September 30.

(2) ASSESSMENT ASSIGNMENTS.

(a) By October 1 of each year, the DOM, or designee, 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 DOM, or designee, 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 calendar days after review and approval.

(3) ADMINISTRATIVE ASSESSMENT PROCESS.

Administrative assessments may include observations, interviews with residents and other individuals, and review of facility records as permitted in Section 400.0081, F.S. The assessment must focus on issues affecting residents’ rights, health, safety, quality of life, quality of care and welfare from their perspective.

(4) ADMINISTRATIVE ASSESSMENT FORM.

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: (TBA).

(5) OMBUDSMAN RESPONSIBILITY.

At the conclusion of the assessment, the ombudsman must do the following:

(a) Conduct an exit interview with the facility administrator, or designee, to discuss the preliminary assessment findings and provide an opportunity for the administrator, or designee, to comment . All comments must be documented and become part of the assessment record. The ombudsman must inform the administrator, or designee, that an official report of the findings will be submitted after review and approval by the DOM, or designee, pursuant to subsection (6) of this rule.

(b) Document the preliminary steps and target dates agreed upon for remedial action if any problems are identified during the assessment.

1. Preliminary identified problems and preliminary target dates must be recorded on the assessment form referenced in subsection (4) of this rule, a copy of which must be provided to the facility administrator, or designee, during the exit interview.

2. The ombudsman must inform the administrator, or designee, that an official report of the identified problems and target dates will be submitted after review and final approval by the DOM, or designee, pursuant to subsection (6) of this rule.

(c) Submit the administrative assessment form to the DOM, or designee, within 7 calendar days.

(6) DOM RESPONSIBILITY.

(a) The DOM, or designee, must review and approve the administrative assessment after the ombudsman completes the form.

1. As required by Section 400.0075(1)(a), F.S., within 21 calendar days after the DOM, or designee, receives the assessment form from the ombudsman, he or she must submit a written summary of the assessment to the facility, including any changes to the preliminarily agreed upon actions and target dates at the exit conference.

2. The written summary shall be the official administrative assessment.

3. The facility may submit written comments regarding the summary to the DOM, or designee, within 21 calendar days from the date on the summary letter. If timely received, the DOM, or designee, must include the facility’s written comments as part of the official administrative assessment.

(7) 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.

Rulemaking Authority 400.0071 FS. Law Implemented 400.0071, 400.0073 FS. History–New_________.