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
PURPOSE AND EFFECT: The purpose of the proposed rule amendments is to clarify 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 definitions and complaint procedures, including a complaint investigation form incorporated by reference.
SUMMARY: The proposed rule amendments and new rules address confidentiality and disclosure of information, access to information, conflict of interest, definitions and complaint procedures, including a complaint investigation form incorporated by reference.
SUMMARY OF STATEMENT OF ESTIMATED REGULATORY COSTS: This proposed rule will not have an impact on small employers as defined in Section 288.703, F.S.; therefore a statement of estimated regulatory costs has not been prepared. This proposed rule will not have an impact on small cities or counties as defined in Section 120.52, F.S.; therefore a statement of estimated regulatory costs has not been prepared.
Any person who wishes to provide information regarding a statement of estimated regulatory costs, or provide a proposal for a lower cost regulatory alternative must do so in writing within 21 days of this notice.
SPECIFIC AUTHORITY: 400.0070, 400.0071, 400.0077(5), 400.0081(2) FS.
LAW IMPLEMENTED: 400.0070, 400.0071, 400.0073, 400.0075, 400.0077, 400.0081 FS.
IF REQUESTED WITHIN 21 DAYS OF THE DATE OF THIS NOTICE, A HEARING WILL BE HELD AT THE DATE,TIME AND PLACE SHOWN BELOW(IF NOT REQUESTED, THIS HEARING WILL NOT BE HELD):
DATE AND TIME: November 10, 2009, 2:00 p.m. – 3:30 p.m. EST
PLACE: Department of Elder Affairs, 4040 Esplanade Way, Conference Room 301, Tallahassee, Florida 32399-7000
THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE IS: Jim Crochet, Department of Elder Affairs, Office of the General Counsel, 4040 Esplanade Way, Tallahassee, Florida 32399-7000; telephone: (850)414-2000; Email address: crochethj@elderaffairs.org
THE TEXT OF THE PROPOSED RULE IS ALSO AVAILABLE ON THE WEBSITE LISTED BELOW, ALONG WITH THE COMPLAINT INVESTIGATION FORM INCORPORATED BY REFERENCE (DOEA FORM LTCOP-001), 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 FULL TEXT OF THE PROPOSED RULE 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) Staff members 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 Chapter 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) 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.
(d) COMPLAINANT: An individual or a party 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) REFFERED, AGENCY DID NOT SUBSTANTIATE: The complaint/problem was referred to an agency having jurisdiction over the complaint/problem, but the complaint/problem was not substantiated.
(e) 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.
(f) REFFERRED, NO REPORT: The complaint/problem was referred to an agency having jurisdiction over the complaint/problem, but no report of final outcome by the agency was obtained.
(g) REQUIRES GOVERNMENT POLICY, REGULATORY OR LEGISLATIVE CHANGE TO RESOLVE: The complaint/ problem may be resolved only by governmental order or enactment of changes in law, regulation or policy.
(h) RESOLVED: The complaint/problem was addressed to the satisfaction of the resident or complainant.
(i) WITHDRAWN: The complaint was withdrawn by the complainant or resident, the case was discontinued at the option of the ombudsman, or the resident or complainant died before final disposition of the complaint investigation.
(3) COMPLAINT INVESTIGATION VERIFICATION CODES.
(a) NOT VERIFIED: It is determined after work (interviews, record inspection, and observation, etc.) that the circumstances described in the complaint are not accurate.
(b) VERIFIED: It is determined after work (interviews, record inspection, and observation, etc.) that the circumstances described in the complaint are 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, which 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, which involve issues of time and attention that direct an individual’s time and attention away from the residents’ interests.
3. Conflicts of control, which 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, husband, wife, son, daughter, brother, sister, or any other individual residing in the household.
(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 non-immediate family members who are geriatric care managers, guardians or representative payees.
(3) OTHER DEFINITIONS:
(a) DISTRICT: A geographic area in which the ombudsman program is administered and services are delivered.
(b) DOM: Abbreviation for the Long-Term Care Program’s 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 prior to conducting any ombudsman activities.
(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. The DOM must 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.
(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 regulation 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.
(b) Past employment in a long-term care facility or being related to a long-term care facility resident shall not, in an 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 and conducting complaint investigations on behalf of residents in long-term care facilities.
(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: http://elderaffairs.state.fl.us/english/ruleform/LTCOP-001.doc.
(2) INVESTIGATIVE PROTOCOL.
(a) An investigation is initiated when an ombudsman makes contact with the complainant or resident. The investigation must be initiated no later than 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 warrants an extension; or
4. Any other circumstance that warrants 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 preliminary complaint findings, if any; agree upon preliminary remedial action to be taken, if any; agree upon preliminary target dates for the remedial action to be corrected, if warranted; and provide an opportunity for the administrator, or designee, to submit written comments within 3 calendar days after the exit interview in order to be part of the complaint record.
4. 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.
5. Submit the complaint investigation form and documentation to the DOM, or designee, within 14 calendar days after the exit interview.
(f) The DOM, or designee, must review and approve the complaint investigation.
1. Within 14 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. The summary must include any changes to the preliminary agreed upon complaint findings, remedial actions to be taken and target dates.
2. The facility may submit written comments regarding the summary to the DOM, or designee, within 7 calendar days from the date on the summary letter in order to be considered as part of the complaint record.
Rulemaking Authority 400.0071 FS. Law Implemented 400.0071, 400.0073, 400.0075 FS. History–New_________.