Florida Senate - 2013 SENATOR AMENDMENT
Bill No. CS for CS for SB 966
Barcode 349184
LEGISLATIVE ACTION
Senate . House
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Senator Soto moved the following:
1 Senate Amendment (with title amendment)
2
3 Delete lines 1114 - 1150
4 and insert:
5 Section 24. Section 400.0060, Florida Statutes, is amended
6 to read:
7 400.0060 Definitions.—When used in this part, unless the
8 context clearly dictates otherwise, the term:
9 (1) “Administrative assessment” means a review of
10 conditions in a long-term care facility which impact the rights,
11 health, safety, and welfare of residents with the purpose of
12 noting needed improvement and making recommendations to enhance
13 the quality of life for residents.
14 (2) “Agency” means the Agency for Health Care
15 Administration.
16 (3) “Department” means the Department of Elderly Affairs.
17 (4) “District” means a geographical area designated by the
18 state ombudsman in which individuals certified as ombudsmen
19 carry out the duties of the state ombudsman program “Local
20 council” means a local long-term care ombudsman council
21 designated by the ombudsman pursuant to s. 400.0069. Local
22 councils are also known as district long-term care ombudsman
23 councils or district councils.
24 (5) “Long-term care facility” means a nursing home
25 facility, assisted living facility, adult family-care home,
26 board and care facility, facility where continuing long-term
27 care is provided, or any other similar residential adult care
28 facility.
29 (6) “Office” means the Office of State Long-Term Care
30 Ombudsman created by s. 400.0063.
31 (7) “Ombudsman” means an individual who has been certified
32 by the state ombudsman as meeting the requirements of ss.
33 400.0069, 400.0070, and 400.0091 the individual appointed by the
34 Secretary of Elderly Affairs to head the Office of State Long
35 Term Care Ombudsman.
36 (8) “Representative of the office” means the state
37 ombudsman, an employee of the office, or an individual certified
38 as an ombudsman.
39 (9)(8) “Resident” means an individual 18 60 years of age or
40 older who resides in a long-term care facility.
41 (10)(9) “Secretary” means the Secretary of Elderly Affairs.
42 (11)(10) “State council” means the State Long-Term Care
43 Ombudsman Council created by s. 400.0067.
44 (12) “State ombudsman” means the individual appointed by
45 the Secretary of Elderly Affairs to head the Office of State
46 Long-Term Care Ombudsman.
47 (13) “State ombudsman program” means the program operating
48 under the direction of the office.
49 Section 25. Section 400.0061, Florida Statutes, is amended
50 to read:
51 400.0061 Legislative findings and intent; long-term care
52 facilities.—
53 (1) The Legislature finds that conditions in long-term care
54 facilities in this state are such that the rights, health,
55 safety, and welfare of residents are not fully ensured by rules
56 of the Department of Elderly Affairs or the Agency for Health
57 Care Administration or by the good faith of owners or operators
58 of long-term care facilities. Furthermore, there is a need for a
59 formal mechanism whereby a long-term care facility resident, a
60 representative of a long-term care facility resident, or any
61 other concerned citizen may make a complaint against the
62 facility or its employees, or against other persons who are in a
63 position to restrict, interfere with, or threaten the rights,
64 health, safety, or welfare of a long-term care facility
65 resident. The Legislature finds that concerned citizens are
66 often more effective advocates for the rights of others than
67 governmental agencies. The Legislature further finds that in
68 order to be eligible to receive an allotment of funds authorized
69 and appropriated under the federal Older Americans Act, the
70 state must establish and operate an Office of State Long-Term
71 Care Ombudsman, to be headed by the state Long-Term Care
72 ombudsman, and carry out a state long-term care ombudsman
73 program.
74 (2) It is the intent of the Legislature, therefore, to
75 utilize voluntary citizen ombudsmen ombudsman councils under the
76 leadership of the state ombudsman, and, through them, to operate
77 a state an ombudsman program, which shall, without interference
78 by any executive agency, undertake to discover, investigate, and
79 determine the presence of conditions or individuals who which
80 constitute a threat to the rights, health, safety, or welfare of
81 the residents of long-term care facilities. To ensure that the
82 effectiveness and efficiency of such investigations are not
83 impeded by advance notice or delay, the Legislature intends that
84 representatives of the office ombudsman and ombudsman councils
85 and their designated representatives not be required to obtain
86 warrants in order to enter into or conduct investigations or
87 onsite administrative assessments of long-term care facilities.
88 It is the further intent of the Legislature that the environment
89 in long-term care facilities be conducive to the dignity and
90 independence of residents and that investigations by
91 representatives of the office ombudsman councils shall further
92 the enforcement of laws, rules, and regulations that safeguard
93 the health, safety, and welfare of residents.
94 Section 26. Section 400.0063, Florida Statutes, is amended
95 to read:
96 400.0063 Establishment of Office of State Long-Term Care
97 Ombudsman; designation of ombudsman and legal advocate.—
98 (1) There is created an Office of State Long-Term Care
99 Ombudsman in the Department of Elderly Affairs.
100 (2)(a) The Office of State Long-Term Care Ombudsman shall
101 be headed by the state Long-Term Care ombudsman, who shall serve
102 on a full-time basis and shall personally, or through
103 representatives of the office, carry out the purposes and
104 functions of the state ombudsman program office in accordance
105 with state and federal law.
106 (b) The state ombudsman shall be appointed by and shall
107 serve at the pleasure of the Secretary of Elderly Affairs. The
108 secretary shall appoint a person who has expertise and
109 experience in the fields of long-term care and advocacy to serve
110 as state ombudsman.
111 (3)(a) There is created in the office the position of legal
112 advocate, who shall be selected by and serve at the pleasure of
113 the state ombudsman and shall be a member in good standing of
114 The Florida Bar.
115 (b) The duties of the legal advocate shall include, but not
116 be limited to:
117 1. Assisting the state ombudsman in carrying out the duties
118 of the office with respect to the abuse, neglect, exploitation,
119 or violation of rights of residents of long-term care
120 facilities.
121 2. Assisting the state council and representatives of the
122 office local councils in carrying out their responsibilities
123 under this part.
124 3. Pursuing administrative, legal, and other appropriate
125 remedies on behalf of residents.
126 4. Serving as legal counsel to the state council and
127 representatives of the office local councils, or individual
128 members thereof, against whom any suit or other legal action is
129 initiated in connection with the performance of the official
130 duties of the state ombudsman program councils or an individual
131 member.
132 Section 27. Section 400.0065, Florida Statutes, is amended
133 to read:
134 400.0065 Office of State Long-Term Care Ombudsman; duties
135 and responsibilities.—
136 (1) The purpose of the Office of State Long-Term Care
137 Ombudsman is shall be to:
138 (a) Identify, investigate, and resolve complaints made by
139 or on behalf of residents of long-term care facilities relating
140 to actions or omissions by providers or representatives of
141 providers of long-term care services, other public or private
142 agencies, guardians, or representative payees that may adversely
143 affect the health, safety, welfare, or rights of the residents.
144 (b) Provide services that assist in protecting the health,
145 safety, welfare, and rights of residents.
146 (c) Inform residents, their representatives, and other
147 citizens about obtaining the services of the state Long-Term
148 Care ombudsman program and its representatives.
149 (d) Ensure that residents have regular and timely access to
150 the services provided through the office and that residents and
151 complainants receive timely responses from representatives of
152 the office to their complaints.
153 (e) Represent the interests of residents before
154 governmental agencies and seek administrative, legal, and other
155 remedies to protect the health, safety, welfare, and rights of
156 the residents.
157 (f) Administer the state council and local councils.
158 (g) Analyze, comment on, and monitor the development and
159 implementation of federal, state, and local laws, rules, and
160 regulations, and other governmental policies and actions, that
161 pertain to the health, safety, welfare, and rights of the
162 residents, with respect to the adequacy of long-term care
163 facilities and services in the state, and recommend any changes
164 in such laws, rules, regulations, policies, and actions as the
165 office determines to be appropriate and necessary.
166 (h) Provide technical support for the development of
167 resident and family councils to protect the well-being and
168 rights of residents.
169 (2) The state Long-Term Care ombudsman has shall have the
170 duty and authority to:
171 (a) Establish and coordinate districts local councils
172 throughout the state.
173 (b) Perform the duties specified in state and federal law,
174 rules, and regulations.
175 (c) Within the limits of appropriated federal and state
176 funding, employ such personnel as are necessary to perform
177 adequately the functions of the office and provide or contract
178 for legal services to assist the state council and
179 representatives of the office local councils in the performance
180 of their duties. Staff positions established for the purpose of
181 coordinating the activities of each local council and assisting
182 its members may be filled by the ombudsman after approval by the
183 secretary. Notwithstanding any other provision of this part,
184 upon certification by the ombudsman that the staff member hired
185 to fill any such position has completed the initial training
186 required under s. 400.0091, such person shall be considered a
187 representative of the State Long-Term Care Ombudsman Program for
188 purposes of this part.
189 (d) Contract for services necessary to carry out the
190 activities of the office.
191 (e) Apply for, receive, and accept grants, gifts, or other
192 payments, including, but not limited to, real property, personal
193 property, and services from a governmental entity or other
194 public or private entity or person, and make arrangements for
195 the use of such grants, gifts, or payments.
196 (f) Coordinate, to the greatest extent possible, state and
197 local ombudsman services with the protection and advocacy
198 systems for individuals with developmental disabilities and
199 mental illnesses and with legal assistance programs for the poor
200 through adoption of memoranda of understanding and other means.
201 (g) Enter into a cooperative agreement with the Statewide
202 Advocacy Council for the purpose of coordinating and avoiding
203 duplication of advocacy services provided to residents.
204 (g)(h) Enter into a cooperative agreement with the Medicaid
205 Fraud Division as prescribed under s. 731(e)(2)(B) of the Older
206 Americans Act.
207 (h)(i) Prepare an annual report describing the activities
208 carried out by the office, the state council, and the districts
209 local councils in the year for which the report is prepared. The
210 state ombudsman shall submit the report to the secretary, the
211 United States Assistant Secretary for Aging, the Governor, the
212 President of the Senate, the Speaker of the House of
213 Representatives, the Secretary of Children and Families, and the
214 Secretary of Health Care Administration at least 30 days before
215 the convening of the regular session of the Legislature. The
216 secretary shall in turn submit the report to the United States
217 Assistant Secretary for Aging, the Governor, the President of
218 the Senate, the Speaker of the House of Representatives, the
219 Secretary of Children and Family Services, and the Secretary of
220 Health Care Administration. The report shall, at a minimum:
221 1. Contain and analyze data collected concerning complaints
222 about and conditions in long-term care facilities and the
223 disposition of such complaints.
224 2. Evaluate the problems experienced by residents.
225 3. Analyze the successes of the state ombudsman program
226 during the preceding year, including an assessment of how
227 successfully the office program has carried out its
228 responsibilities under the Older Americans Act.
229 4. Provide recommendations for policy, regulatory, and
230 statutory changes designed to solve identified problems; resolve
231 residents’ complaints; improve residents’ lives and quality of
232 care; protect residents’ rights, health, safety, and welfare;
233 and remove any barriers to the optimal operation of the state
234 Long-Term Care ombudsman program.
235 5. Contain recommendations from the state Long-Term Care
236 Ombudsman council regarding program functions and activities and
237 recommendations for policy, regulatory, and statutory changes
238 designed to protect residents’ rights, health, safety, and
239 welfare.
240 6. Contain any relevant recommendations from
241 representatives of the office local councils regarding program
242 functions and activities.
243 Section 28. Section 400.0067, Florida Statutes, is amended
244 to read:
245 400.0067 State Long-Term Care Ombudsman Council; duties;
246 membership.—
247 (1) There is created, within the Office of State Long-Term
248 Care Ombudsman, the State Long-Term Care Ombudsman Council.
249 (2) The state Long-Term Care Ombudsman council shall:
250 (a) Serve as an advisory body to assist the state ombudsman
251 in reaching a consensus among districts local councils on issues
252 affecting residents and impacting the optimal operation of the
253 program.
254 (b) Serve as an appellate body in receiving from the
255 districts local councils complaints not resolved at the district
256 local level. Any individual member or members of the state
257 council may enter any long-term care facility involved in an
258 appeal, pursuant to the conditions specified in s. 400.0074(2).
259 (c) Assist the state ombudsman to discover, investigate,
260 and determine the existence of abuse or neglect in any long-term
261 care facility, and work with the adult protective services
262 program as required in ss. 415.101-415.113.
263 (d) Assist the state ombudsman in eliciting, receiving,
264 responding to, and resolving complaints made by or on behalf of
265 residents.
266 (e) Elicit and coordinate state, district local, and
267 voluntary organizational assistance for the purpose of improving
268 the care received by residents.
269 (f) Assist the state ombudsman in preparing the annual
270 report described in s. 400.0065.
271 (3) The state Long-Term Care Ombudsman council shall be
272 composed of one active certified ombudsman from each district
273 local council member elected by each local council plus three
274 at-large members appointed by the secretary Governor.
275 (a) Each district manager, in consultation with the
276 district ombudsmen, shall select a district ombudsman local
277 council shall elect by majority vote a representative from among
278 the council members to represent the interests of the district
279 local council on the state council. A local council chair may
280 not serve as the representative of the local council on the
281 state council.
282 (b)1. The state ombudsman secretary, after consulting with
283 the ombudsman, shall submit to the secretary Governor a list of
284 individuals persons recommended for appointment to the at-large
285 positions on the state council. The list may shall not include
286 the name of any individual person who is currently serving in a
287 district on a local council.
288 2. The secretary Governor shall appoint three at-large
289 members chosen from the list.
290 3. If the secretary Governor does not appoint an at-large
291 member to fill a vacant position within 60 days after the list
292 is submitted, the state secretary, after consulting with the
293 ombudsman, shall appoint an at-large member to fill that vacant
294 position.
295 (4)(a)(c)1. All State council members shall serve 3-year
296 terms.
297 2. A member of the state council may not serve more than
298 two consecutive terms.
299 (b)3. A district manager, in consultation with the district
300 ombudsmen, local council may recommend replacement removal of
301 its selected ombudsman on elected representative from the state
302 council by a majority vote. If the district manager, in
303 consultation with the district ombudsmen, selects a replacement
304 ombudsman, council votes to remove its representative, the local
305 council chair shall immediately notify the state ombudsman must
306 be notified. The secretary shall advise the Governor of the
307 local council’s vote upon receiving notice from the ombudsman.
308 (c)4. The position of any member missing three state
309 council meetings within a 1-year period without cause may be
310 declared vacant by the state ombudsman. The findings of the
311 state ombudsman regarding cause shall be final and binding.
312 (d)5. Any vacancy on the state council shall be filled in
313 the same manner as the original appointment.
314 (e)(d)1. The state council shall elect a chair to serve for
315 a term of 1 year. A chair may not serve more than two
316 consecutive terms.
317 2. The chair shall select a vice chair from among the
318 members. The vice chair shall preside over the state council in
319 the absence of the chair.
320 3. The chair may create additional executive positions as
321 necessary to carry out the duties of the state council. Any
322 person appointed to an executive position shall serve at the
323 pleasure of the chair, and his or her term shall expire on the
324 same day as the term of the chair.
325 4. A chair may be immediately removed from office before
326 prior to the expiration of his or her term by a vote of two
327 thirds of all state council members present at any meeting at
328 which a quorum is present. If a chair is removed from office
329 before prior to the expiration of his or her term, a replacement
330 chair shall be chosen during the same meeting in the same manner
331 as described in this paragraph, and the term of the replacement
332 chair shall begin immediately. The replacement chair shall serve
333 for the remainder of the term and is eligible to serve two
334 subsequent consecutive terms.
335 (f)(e)1. The state council shall meet upon the call of the
336 chair or upon the call of the state ombudsman. The state council
337 shall meet at least quarterly but may meet more frequently as
338 needed.
339 2. A quorum shall be considered present if more than 50
340 percent of all active state council members are in attendance at
341 the same meeting.
342 3. The state council may not vote on or otherwise make any
343 decisions resulting in a recommendation that will directly
344 impact the state council or any district local council, outside
345 of a publicly noticed meeting at which a quorum is present.
346 (g)(f) Members shall receive no compensation but shall,
347 with approval from the state ombudsman, be reimbursed for per
348 diem and travel expenses as provided in s. 112.061.
349 Section 29. Section 400.0069, Florida Statutes, is amended
350 to read:
351 400.0069 Local Long-term care ombudsman districts councils;
352 duties; appointment membership.—
353 (1)(a) The state ombudsman shall designate districts local
354 long-term care ombudsman councils to carry out the duties of the
355 state Long-Term Care ombudsman program within local communities.
356 Each district local council shall function under the direction
357 of the state ombudsman.
358 (b) The state ombudsman shall ensure that there are
359 representatives of the office is at least one local council
360 operating in each district of the department’s planning and
361 service areas. The ombudsman may create additional local
362 councils as necessary to ensure that residents throughout the
363 state have adequate access to state Long-Term Care ombudsman
364 program services. The ombudsman, after approval from the
365 secretary, shall designate the jurisdictional boundaries of each
366 local council.
367 (2) The duties of the representatives of the office in the
368 districts local councils are to:
369 (a) Provide services to assist in Serve as a third-party
370 mechanism for protecting the health, safety, welfare, and civil
371 and human rights of residents.
372 (b) Discover, investigate, and determine the existence of
373 abuse, or neglect, or exploitation using in any long-term care
374 facility and to use the procedures provided for in ss. 415.101
375 415.113 when applicable.
376 (c) Identify Elicit, receive, investigate, respond to, and
377 resolve complaints made by or on behalf of residents relating to
378 actions or omissions by providers or representatives of
379 providers of long-term care services, other public or private
380 agencies, guardians, or representative payees that may adversely
381 affect the health, safety, welfare, or rights of residents.
382 (d) Review and, if necessary, comment on all existing or
383 proposed rules, regulations, and other governmental policies and
384 actions relating to long-term care facilities that may
385 potentially have an effect on the rights, health, safety, and
386 welfare of residents.
387 (e) Review personal property and money accounts of
388 residents who are receiving assistance under the Medicaid
389 program pursuant to an investigation to obtain information
390 regarding a specific complaint or problem.
391 (f) Recommend that the state ombudsman and the legal
392 advocate seek administrative, legal, and other remedies to
393 protect the health, safety, welfare, and rights of the
394 residents.
395 (g) Provide technical assistance for the development of
396 resident and family councils within long-term care facilities.
397 (h)(g) Carry out other activities that the state ombudsman
398 determines to be appropriate.
399 (3) In order to carry out the duties specified in
400 subsection (2), a representative of the office may member of a
401 local council is authorized to enter any long-term care facility
402 without notice or without first obtaining a warrant; however,
403 subject to the provisions of s. 400.0074(2) may apply regarding
404 notice of a followup administrative assessment.
405 (4) Each district local council shall be composed of
406 ombudsmen members whose primary residences are residence is
407 located within the boundaries of the district local council’s
408 jurisdiction.
409 (a) Upon good cause shown, the state ombudsman, in his or
410 her sole discretion, may appoint an ombudsman to another
411 district The ombudsman shall strive to ensure that each local
412 council include the following persons as members:
413 1. At least one medical or osteopathic physician whose
414 practice includes or has included a substantial number of
415 geriatric patients and who may practice in a long-term care
416 facility;
417 2. At least one registered nurse who has geriatric
418 experience;
419 3. At least one licensed pharmacist;
420 4. At least one registered dietitian;
421 5. At least six nursing home residents or representative
422 consumer advocates for nursing home residents;
423 6. At least three residents of assisted living facilities
424 or adult family-care homes or three representative consumer
425 advocates for alternative long-term care facility residents;
426 7. At least one attorney; and
427 8. At least one professional social worker.
428 (b) The following individuals may not be appointed as
429 ombudsmen:
430 1. The owner or representative of a long-term care
431 facility.
432 2. A provider or representative of a provider of long-term
433 care services.
434 3. An employee of the agency.
435 4. An employee of the department, except for a
436 representative of the office.
437 5. An employee of the Department of Children and Families.
438 6. An employee of the Agency for Persons with Disabilities
439 In no case shall the medical director of a long-term care
440 facility or an employee of the agency, the department, the
441 Department of Children and Family Services, or the Agency for
442 Persons with Disabilities serve as a member or as an ex officio
443 member of a council.
444 (5)(a) To be appointed as an ombudsman, an individual must:
445 1. Individuals wishing to join a local council shall Submit
446 an application to the state ombudsman or his or her designee.
447 2. Successfully complete level 2 background screening
448 pursuant to s. 430.0402 and chapter 435 The ombudsman shall
449 review the individual’s application and advise the secretary of
450 his or her recommendation for approval or disapproval of the
451 candidate’s membership on the local council. If the secretary
452 approves of the individual’s membership, the individual shall be
453 appointed as a member of the local council.
454 (b) The state ombudsman shall approve or deny the
455 appointment of the individual as an ombudsman The secretary may
456 rescind the ombudsman’s approval of a member on a local council
457 at any time. If the secretary rescinds the approval of a member
458 on a local council, the ombudsman shall ensure that the
459 individual is immediately removed from the local council on
460 which he or she serves and the individual may no longer
461 represent the State Long-Term Care Ombudsman Program until the
462 secretary provides his or her approval.
463 (c) Upon appointment as an ombudsman, the individual may
464 participate in district activities but may not represent the
465 office or conduct any authorized program duties until the
466 individual has completed the initial training specified in s.
467 400.0091(1) and has been certified by the state ombudsman.
468 (d) The state ombudsman, for good cause shown, such as
469 development of a conflict of interest, failure to adhere to the
470 policies and procedures established by the office, or
471 demonstrated inability to carry out the responsibilities of the
472 office, may rescind the appointment of an individual as an
473 ombudsman. After the appointment is rescinded, the individual
474 may not conduct any duties as an ombudsman and may not represent
475 the office or the state ombudsman program A local council may
476 recommend the removal of one or more of its members by
477 submitting to the ombudsman a resolution adopted by a two-thirds
478 vote of the members of the council stating the name of the
479 member or members recommended for removal and the reasons for
480 the recommendation. If such a recommendation is adopted by a
481 local council, the local council chair or district coordinator
482 shall immediately report the council’s recommendation to the
483 ombudsman. The ombudsman shall review the recommendation of the
484 local council and advise the secretary of his or her
485 recommendation regarding removal of the council member or
486 members.
487 (6)(a) Each local council shall elect a chair for a term of
488 1 year. There shall be no limitation on the number of terms that
489 an approved member of a local council may serve as chair.
490 (b) The chair shall select a vice chair from among the
491 members of the council. The vice chair shall preside over the
492 council in the absence of the chair.
493 (c) The chair may create additional executive positions as
494 necessary to carry out the duties of the local council. Any
495 person appointed to an executive position shall serve at the
496 pleasure of the chair, and his or her term shall expire on the
497 same day as the term of the chair.
498 (d) A chair may be immediately removed from office prior to
499 the expiration of his or her term by a vote of two-thirds of the
500 members of the local council. If any chair is removed from
501 office prior to the expiration of his or her term, a replacement
502 chair shall be elected during the same meeting, and the term of
503 the replacement chair shall begin immediately. The replacement
504 chair shall serve for the remainder of the term of the person he
505 or she replaced.
506 (7) Each local council shall meet upon the call of its
507 chair or upon the call of the ombudsman. Each local council
508 shall meet at least once a month but may meet more frequently if
509 necessary.
510 (6)(8) An ombudsman may not A member of a local council
511 shall receive no compensation but shall, with approval from the
512 state ombudsman, be reimbursed for travel expenses both within
513 and outside the jurisdiction of the local council in accordance
514 with the provisions of s. 112.061.
515 (7)(9) The representatives of the office local councils are
516 authorized to call upon appropriate state agencies of state
517 government for such professional assistance as may be needed in
518 the discharge of their duties, and such. All state agencies
519 shall cooperate with the local councils in providing requested
520 information and agency representation at council meetings.
521 Section 30. Section 400.0070, Florida Statutes, is amended
522 to read:
523 400.0070 Conflicts of interest.—
524 (1) A representative of the office The ombudsman shall not:
525 (a) Have a direct involvement in the licensing or
526 certification of, or an ownership or investment interest in, a
527 long-term care facility or a provider of a long-term care
528 service.
529 (b) Be employed by, or participate in the management of, a
530 long-term care facility.
531 (c) Receive, or have a right to receive, directly or
532 indirectly, remuneration, in cash or in kind, under a
533 compensation agreement with the owner or operator of a long-term
534 care facility.
535 (2) Each representative employee of the office, each state
536 council member, and each local council member shall certify that
537 he or she has no conflict of interest.
538 (3) The department, in consultation with the state
539 ombudsman, shall define by rule:
540 (a) Situations that constitute an individual’s a person
541 having a conflict of interest that could materially affect the
542 objectivity or capacity of the individual a person to serve as a
543 representative on an ombudsman council, or as an employee of the
544 office, while carrying out the purposes of the State Long-Term
545 Care Ombudsman Program as specified in this part.
546 (b) The procedure by which an individual a person listed in
547 subsection (2) shall certify that he or she has no conflict of
548 interest.
549 Section 31. Section 400.0071, Florida Statutes, is amended
550 to read:
551 400.0071 State Long-Term Care ombudsman program complaint
552 procedures.—The department, in consultation with the state
553 ombudsman, shall adopt rules implementing state and local
554 complaint procedures. The rules must include procedures for
555 receiving, investigating, identifying, and resolving complaints
556 concerning the health, safety, welfare, and rights of residents:
557 (1) Receiving complaints against a long-term care facility
558 or an employee of a long-term care facility.
559 (2) Conducting investigations of a long-term care facility
560 or an employee of a long-term care facility subsequent to
561 receiving a complaint.
562 (3) Conducting onsite administrative assessments of long
563 term care facilities.
564 Section 32. Section 400.0073, Florida Statutes, is amended
565 to read:
566 400.0073 Complaint State and local ombudsman council
567 investigations.—
568 (1) A representative of the office local council shall
569 identify and investigate, within a reasonable time after a
570 complaint is made, any complaint made by or on behalf of a
571 resident that, a representative of a resident, or any other
572 credible source based on an action or omission by an
573 administrator, an employee, or a representative of a long-term
574 care facility which might be:
575 (a) Contrary to law;
576 (b) Unreasonable, unfair, oppressive, or unnecessarily
577 discriminatory, even though in accordance with law;
578 (c) Based on a mistake of fact;
579 (d) Based on improper or irrelevant grounds;
580 (e) Unaccompanied by an adequate statement of reasons;
581 (f) Performed in an inefficient manner; or
582 (g) Otherwise adversely affecting the health, safety,
583 welfare, or rights of a resident.
584 (2) In an investigation, both the state and local councils
585 have the authority to hold public hearings.
586 (3) Subsequent to an appeal from a local council, the state
587 council may investigate any complaint received by the local
588 council involving a long-term care facility or a resident.
589 (2)(4) If a representative of the office the ombudsman or
590 any state or local council member is not allowed to enter a
591 long-term care facility, the administrator of the facility shall
592 be considered to have interfered with a representative of the
593 office, the state council, or the local council in the
594 performance of official duties as described in s. 400.0083(1)
595 and to have committed a violation of this part. The
596 representative of the office ombudsman shall report a facility’s
597 refusal to allow entry to the facility to the state ombudsman or
598 his or her designee, who shall then report the incident to the
599 agency, and the agency shall record the report and take it into
600 consideration when determining actions allowable under s.
601 400.102, s. 400.121, s. 429.14, s. 429.19, s. 429.69, or s.
602 429.71.
603 Section 33. Section 400.0074, Florida Statutes, is amended
604 to read:
605 400.0074 Local ombudsman council Onsite administrative
606 assessments.—
607 (1) A representative of the office must In addition to any
608 specific investigation conducted pursuant to a complaint, the
609 local council shall conduct, at least annually, an onsite
610 administrative assessment of each nursing home, assisted living
611 facility, and adult family-care home within its jurisdiction.
612 This administrative assessment must be resident-centered and
613 shall focus on factors affecting the rights, health, safety, and
614 welfare of the residents. Each local council is encouraged to
615 conduct a similar onsite administrative assessment of each
616 additional long-term care facility within its jurisdiction.
617 (2) An onsite administrative assessment is conducted by a
618 local council shall be subject to the following conditions:
619 (a) To the extent possible and reasonable, the
620 administrative assessment assessments shall not duplicate the
621 efforts of the agency surveys and inspections conducted by state
622 agencies of long-term care facilities under part II of this
623 chapter and parts I and II of chapter 429.
624 (b) An administrative assessment shall be conducted at a
625 time and for a duration necessary to produce the information
626 required to complete the assessment carry out the duties of the
627 local council.
628 (c) Advance notice of an administrative assessment may not
629 be provided to a long-term care facility, except that notice of
630 followup assessments on specific problems may be provided.
631 (d) A representative of the office local council member
632 physically present for the administrative assessment must shall
633 identify himself or herself to the administrator and cite the
634 specific statutory authority for his or her assessment of the
635 facility or his or her designee.
636 (e) An administrative assessment may not unreasonably
637 interfere with the programs and activities of residents.
638 (f) A representative of the office local council member may
639 not enter a single-family residential unit within a long-term
640 care facility during an administrative assessment without the
641 permission of the resident or the representative of the
642 resident.
643 (g) An administrative assessment must be conducted in a
644 manner that will impose no unreasonable burden on a long-term
645 care facility.
646 (3) Regardless of jurisdiction, the ombudsman may authorize
647 a state or local council member to assist another local council
648 to perform the administrative assessments described in this
649 section.
650 (3)(4) An onsite administrative assessment may not be
651 accomplished by forcible entry. However, if a representative of
652 the office ombudsman or a state or local council member is not
653 allowed to enter a long-term care facility, the administrator of
654 the facility shall be considered to have interfered with a
655 representative of the office, the state council, or the local
656 council in the performance of official duties as described in s.
657 400.0083(1) and to have committed a violation of this part. The
658 representative of the office ombudsman shall report the refusal
659 by a facility to allow entry to the state ombudsman or his or
660 her designee, who shall then report the incident to the agency,
661 and the agency shall record the report and take it into
662 consideration when determining actions allowable under s.
663 400.102, s. 400.121, s. 429.14, s. 429.19, s. 429.69, or s.
664 429.71.
665 (4) The department, in consultation with the state
666 ombudsman, may adopt rules implementing procedures for
667 conducting onsite administrative assessments of long-term care
668 facilities.
669 Section 34. Section 400.0075, Florida Statutes, is amended
670 to read:
671 400.0075 Complaint notification and resolution procedures.—
672 (1)(a) Any complaint or problem verified by a
673 representative of the office an ombudsman council as a result of
674 an investigation may or onsite administrative assessment, which
675 complaint or problem is determined to require remedial action by
676 the local council, shall be identified and brought to the
677 attention of the long-term care facility administrator subject
678 to the confidentiality provisions of s. 400.0077 in writing.
679 Upon receipt of the information such document, the
680 administrator, with the concurrence of the representative of the
681 office local council chair, shall establish target dates for
682 taking appropriate remedial action. If, by the target date, the
683 remedial action is not completed or forthcoming, the
684 representative may extend the target date if there is reason to
685 believe such action would facilitate the resolution of the
686 complaint, or the representative may refer the complaint to the
687 district manager local council chair may, after obtaining
688 approval from the ombudsman and a majority of the members of the
689 local council:
690 1. Extend the target date if the chair has reason to
691 believe such action would facilitate the resolution of the
692 complaint.
693 2. In accordance with s. 400.0077, publicize the complaint,
694 the recommendations of the council, and the response of the
695 long-term care facility.
696 3. Refer the complaint to the state council.
697 (b) If an ombudsman determines the local council chair
698 believes that the health, safety, welfare, or rights of a the
699 resident are in imminent danger, the ombudsman must immediately
700 notify the district manager. The district manager chair shall
701 notify the ombudsman or legal advocate, who, after verifying
702 that such imminent danger exists, must notify the appropriate
703 state agencies, including law enforcement, the state ombudsman,
704 and the legal advocate to ensure the protection of shall seek
705 immediate legal or administrative remedies to protect the
706 resident.
707 (c) If the state ombudsman or legal advocate has reason to
708 believe that the long-term care facility or an employee of the
709 facility has committed a criminal act, the state ombudsman or
710 legal advocate shall provide the local law enforcement agency
711 with the relevant information to initiate an investigation of
712 the case.
713 (2)(a) Upon referral from a district local council, the
714 state ombudsman or his or her designee council shall assume the
715 responsibility for the disposition of the complaint. If a long
716 term care facility fails to take action to resolve or remedy the
717 on a complaint by the state council, the state ombudsman council
718 may, after obtaining approval from the ombudsman and a majority
719 of the state council members:
720 (a)1. In accordance with s. 400.0077, publicize the
721 complaint, the recommendations of the representatives of the
722 office local or state council, and the response of the long-term
723 care facility.
724 (b)2. Recommend to the department and the agency a series
725 of facility reviews pursuant to s. 400.19, s. 429.34, or s.
726 429.67 to ensure correction and nonrecurrence of the conditions
727 that gave give rise to the complaint complaints against the a
728 long-term care facility.
729 (c)3. Recommend to the department and the agency that the
730 long-term care facility no longer receive payments under any
731 state assistance program, including Medicaid.
732 (d)4. Recommend to the department and the agency that
733 procedures be initiated for action against revocation of the
734 long-term care facility’s license in accordance with chapter
735 120.
736 (b) If the state council chair believes that the health,
737 safety, welfare, or rights of the resident are in imminent
738 danger, the chair shall notify the ombudsman or legal advocate,
739 who, after verifying that such imminent danger exists, shall
740 seek immediate legal or administrative remedies to protect the
741 resident.
742 (3)(c) If the state ombudsman, after consultation with the
743 legal advocate, has reason to believe that the long-term care
744 facility or an employee of the facility has committed a criminal
745 act, the office ombudsman shall provide local law enforcement
746 with the relevant information to initiate an investigation of
747 the case.
748 Section 35. Section 400.0078, Florida Statutes, is amended
749 to read:
750 400.0078 Citizen access to state Long-Term Care ombudsman
751 program services.—
752 (1) The office shall establish a statewide toll-free
753 telephone number and e-mail address for receiving complaints
754 concerning matters adversely affecting the health, safety,
755 welfare, or rights of residents.
756 (2) Every resident or representative of a resident shall
757 receive, Upon admission to a long-term care facility, each
758 resident or representative of a resident must receive
759 information regarding:
760 (a) The purpose of the state Long-Term Care ombudsman
761 program.,
762 (b) The statewide toll-free telephone number and e-mail
763 address for receiving complaints., and
764 (c) Information that retaliatory action cannot be taken
765 against a resident for presenting grievances or for exercising
766 any other resident rights.
767 (d) Other relevant information regarding how to contact
768 representatives of the office program.
769
770 Residents or their representatives must be furnished additional
771 copies of this information upon request.
772 Section 36. Section 400.0079, Florida Statutes, is amended
773 to read:
774 400.0079 Immunity.—
775 (1) Any person making a complaint pursuant to this part who
776 does so in good faith shall be immune from any liability, civil
777 or criminal, that otherwise might be incurred or imposed as a
778 direct or indirect result of making the complaint.
779 (2) Representatives of the office and The ombudsman or any
780 person authorized by the ombudsman to act on behalf of the
781 office, as well as all members of the state council and local
782 councils, shall be immune from any liability, civil or criminal,
783 that otherwise might be incurred or imposed during the good
784 faith performance of official duties.
785 Section 37. Section 400.0081, Florida Statutes, is amended
786 to read:
787 400.0081 Access to facilities, residents, and records.—
788 (1) A long-term care facility shall provide representatives
789 of the office with, the state council and its members, and the
790 local councils and their members access to:
791 (a) Access to Any portion of the long-term care facility
792 and residents any resident as necessary to investigate or
793 resolve a complaint.
794 (b) Appropriate access to medical and social records of a
795 resident for review as necessary to investigate or resolve a
796 complaint, if:
797 1. The representative of the office has the permission of
798 the resident or the legal representative of the resident; or
799 2. The resident is unable to consent to the review and has
800 no legal representative.
801 (c) Access to medical and social records of a the resident
802 as necessary to investigate or resolve a complaint, if:
803 1. A legal representative or guardian of the resident
804 refuses to give permission;
805 2. A representative of the office has reasonable cause to
806 believe that the legal representative or guardian is not acting
807 in the best interests of the resident; and
808 3. The representative of the office state or local council
809 member obtains the approval of the state ombudsman.
810 (d) Access to the administrative records, policies, and
811 documents to which residents or the general public have access.
812 (e) Upon request, copies of all licensing and certification
813 records maintained by the state with respect to a long-term care
814 facility.
815 (2) The department, in consultation with the state
816 ombudsman and the state council, may adopt rules to establish
817 procedures to ensure access to facilities, residents, and
818 records as described in this section.
819 Section 38. Section 400.0083, Florida Statutes, is amended
820 to read:
821 400.0083 Interference; retaliation; penalties.—
822 (1) It shall be unlawful for any person, long-term care
823 facility, or other entity to willfully interfere with a
824 representative of the office or, the state council, or a local
825 council in the performance of official duties.
826 (2) It shall be unlawful for any person, long-term care
827 facility, or other entity to knowingly or willfully take action
828 or retaliate against any resident, employee, or other person for
829 filing a complaint with, providing information to, or otherwise
830 cooperating with any representative of the office or, the state
831 council, or a local council.
832 (3) Any person, long-term care facility, or other entity
833 that violates this section:
834 (a) Shall be liable for damages and equitable relief as
835 determined by law.
836 (b) Commits a misdemeanor of the second degree, punishable
837 as provided in s. 775.083.
838 Section 39. Section 400.0087, Florida Statutes, is amended
839 to read:
840 400.0087 Department oversight; funding.—
841 (1) The department shall meet the costs associated with the
842 state Long-Term Care ombudsman program from funds appropriated
843 to it.
844 (a) The department shall include the costs associated with
845 support of the state Long-Term Care ombudsman program when
846 developing its budget requests for consideration by the Governor
847 and submittal to the Legislature.
848 (b) The department may divert from the federal ombudsman
849 appropriation an amount equal to the department’s administrative
850 cost ratio to cover the costs associated with administering the
851 state ombudsman program. The remaining allotment from the Older
852 Americans Act program shall be expended on direct ombudsman
853 activities.
854 (2) The department shall monitor the office and, the state
855 council, and the local councils to ensure that each is carrying
856 out the duties delegated to it by state and federal law.
857 (3) The department is responsible for ensuring that the
858 office:
859 (a) Has the objectivity and independence required to
860 qualify it for funding under the federal Older Americans Act.
861 (b) Provides information to public and private agencies,
862 legislators, and others.
863 (c) Provides appropriate training to representatives of the
864 office or of the state or local councils.
865 (d) Coordinates ombudsman services with Disability Rights
866 Florida the Advocacy Center for Persons with Disabilities and
867 with providers of legal services to residents of long-term care
868 facilities in compliance with state and federal laws.
869 (4) The department shall also:
870 (a) Receive and disburse state and federal funds for
871 purposes that the state ombudsman has formulated in accordance
872 with the Older Americans Act.
873 (b) Whenever necessary, act as liaison between agencies and
874 branches of the federal and state governments and the office
875 State Long-Term Care Ombudsman Program.
876 Section 40. Section 400.0089, Florida Statutes, is amended
877 to read:
878 400.0089 Complaint data reports.—The office shall maintain
879 a statewide uniform reporting system to collect and analyze data
880 relating to complaints and conditions in long-term care
881 facilities and to residents for the purpose of identifying and
882 resolving significant complaints problems. The office shall
883 publish quarterly and make readily available information
884 pertaining to the number and types of complaints received by the
885 state Long-Term Care ombudsman program and shall include such
886 information in the annual report required under s. 400.0065.
887 Section 41. Section 400.0091, Florida Statutes, is amended
888 to read:
889 400.0091 Training.—The state ombudsman shall ensure that
890 appropriate training is provided to all representatives
891 employees of the office and to the members of the state and
892 local councils.
893 (1) All representatives state and local council members and
894 employees of the office shall be given a minimum of 20 hours of
895 training upon employment with the office or appointment as an
896 ombudsman. Ten approval as a state or local council member and
897 10 hours of continuing education are required annually
898 thereafter.
899 (2) The state ombudsman shall approve the curriculum for
900 the initial and continuing education training, which must, at a
901 minimum, address:
902 (a) Resident confidentiality.
903 (b) Guardianships and powers of attorney.
904 (c) Medication administration.
905 (d) Care and medication of residents with dementia and
906 Alzheimer’s disease.
907 (e) Accounting for residents’ funds.
908 (f) Discharge rights and responsibilities.
909 (g) Cultural sensitivity.
910 (h) Any other topic related to residency within a long-term
911 care facility recommended by the secretary.
912 (3) An individual No employee, officer, or representative
913 of the office or of the state or local councils, other than the
914 state ombudsman, may not hold himself or herself out as a
915 representative of the office State Long-Term Care Ombudsman
916 Program or conduct any authorized program duty described in this
917 part unless the individual person has received the training
918 required by this section and has been certified by the state
919 ombudsman as qualified to carry out ombudsman activities on
920 behalf of the office or the state or local councils.
921
922 ================= T I T L E A M E N D M E N T ================
923 And the title is amended as follows:
924 Delete lines 90 - 106
925 and insert:
926 amending s. 397.403, F.S.; revising references to
927 certain accrediting agencies to changes made by the
928 act; amending s. 400.0060, F.S.; revising and
929 providing definitions; amending s. 400.0061, F.S.;
930 revising legislative intent with respect to citizen
931 ombudsmen; deleting references to ombudsman councils
932 and transferring their responsibilities to
933 representatives of the Office of State Long-Term Care
934 Ombudsman; amending s. 400.0063, F.S.; revising duties
935 of the office; amending s. 400.0065, F.S.; revising
936 the purpose of the Office of State Long-Term Care
937 Ombudsman; establishing districts; requiring the state
938 ombudsman to submit an annual report to the Governor,
939 the Legislature, and specified agencies and entities;
940 amending s. 400.0067, F.S.; revising duties and
941 membership of the State Long-Term Care Ombudsman
942 Council; amending s. 400.0069, F.S.; requiring the
943 state ombudsman to designate and direct program
944 districts; providing duties of representatives of the
945 office in the districts; providing for appointment and
946 qualifications of district ombudsmen; prohibiting
947 certain individuals from serving as ombudsmen;
948 providing for appointment of ombudsmen; amending s.
949 400.0070, F.S.; providing conditions under which a
950 representative of the office could be found to have a
951 conflict of interest; amending s. 400.0071, F.S.;
952 requiring the Department of Elderly Affairs to consult
953 with the state ombudsman before adopting rules
954 pertaining to complaint resolution; amending s.
955 400.0073, F.S.; providing procedures for investigation
956 of complaints; amending s. 400.0074, F.S.; revising
957 procedures for conducting onsite administrative
958 assessments; authorizing the department to adopt
959 rules; amending s. 400.0075, F.S.; revising complaint
960 notification and resolution procedures; amending s.
961 400.0078, F.S.; providing for a resident or
962 representative of a resident to receive additional
963 information regarding resident rights; amending s.
964 400.0079, F.S.; providing immunity from liability for
965 a representative of the office under certain
966 circumstances; amending s. 400.0081, F.S.; requiring
967 long-term care facilities to provide representatives
968 of the office with access to facilities, residents,
969 and records for certain purposes; amending s.
970 400.0083, F.S.; conforming provisions to changes made
971 by the act; amending s. 400.0087, F.S.; providing for
972 the office to coordinate ombudsman services with
973 Disability Rights Florida; amending s. 400.0089, F.S.;
974 conforming provisions to changes made by the act;
975 amending s. 400.0091, F.S.; revising training
976 requirements for representatives of the office and
977 ombudsmen; amending s. 400.462, F.S.; defining