ENROLLED
2023 Legislature SB 1396
20231396er
1
2 An act relating to the Department of Elderly Affairs;
3 amending s. 400.0069, F.S.; revising the list of
4 individuals who may not be appointed as ombudsmen
5 under the State Long-Term Care Ombudsman Program;
6 amending s. 430.0402, F.S.; revising the definition of
7 the term “direct service provider”; deleting an
8 exemption from level 2 background screening
9 requirements for certain individuals; deleting
10 obsolete language; amending s. 744.2001, F.S.;
11 deleting obsolete language; providing additional
12 duties for the executive director of the Office of
13 Public and Professional Guardians; amending s.
14 744.2003, F.S.; revising continuing education
15 requirements for professional guardians; amending s.
16 744.2004, F.S.; requiring the office to notify
17 complainants within a specified timeframe after
18 determining that a complaint against a professional
19 guardian is not legally sufficient; reducing the
20 timeframe within which the office must complete and
21 provide its initial investigative findings and
22 recommendations, if any, to the professional guardian
23 who is the subject of the investigation and to the
24 complainant; requiring the office to provide a certain
25 written statement to the complainant and the
26 professional guardian within a specified timeframe
27 after completing an investigation; deleting obsolete
28 language; amending s. 744.3145, F.S.; providing an
29 additional method of complying with certain
30 instruction and education requirements for court
31 appointed guardians; amending s. 744.368, F.S.;
32 requiring clerks of the court to report to the office
33 within a specified timeframe after the court imposes
34 any sanctions on a professional guardian; providing an
35 effective date.
36
37 Be It Enacted by the Legislature of the State of Florida:
38
39 Section 1. Paragraph (b) of subsection (4) of section
40 400.0069, Florida Statutes, is amended to read:
41 400.0069 Long-term care ombudsman districts; local long
42 term care ombudsman councils; duties; appointment.—
43 (4) Each district and local council shall be composed of
44 ombudsmen whose primary residences are located within the
45 boundaries of the district.
46 (b) The following individuals may not be appointed as
47 ombudsmen:
48 1. The owner or representative of a long-term care
49 facility.
50 2. A provider or representative of a provider of long-term
51 care service.
52 3. An employee of the agency.
53 4. An employee of the department who is not employed in the
54 State Long-Term Care Ombudsman Program, except for staff
55 certified as ombudsmen in the district offices.
56 5. An employee of the Department of Children and Families.
57 6. An employee of the Agency for Persons with Disabilities.
58 Section 2. Paragraph (b) of subsection (1), paragraphs (a)
59 and (c) of subsection (2), and subsection (3) of section
60 430.0402, Florida Statutes, are amended to read:
61 430.0402 Screening of direct service providers.—
62 (1)
63 (b) For purposes of this section, the term “direct service
64 provider” means a person 18 years of age or older who, pursuant
65 to a program to provide services to the elderly, has direct,
66 face-to-face contact with a client while providing services to
67 the client and has access to the client’s living areas, funds,
68 personal property, or personal identification information as
69 defined in s. 817.568. The term also includes, but is not
70 limited to, the administrator or a similarly titled person who
71 is responsible for the day-to-day operations of the provider,
72 the financial officer or similarly titled person who is
73 responsible for the financial operations of the provider,
74 coordinators, managers, and supervisors of residential
75 facilities, and volunteers, and any other person seeking
76 employment with a provider who is expected to, or whose
77 responsibilities may require him or her to, provide personal
78 care or services directly to clients or have access to client
79 funds, financial matters, legal matters, personal property, or
80 living areas.
81 (2) Level 2 background screening pursuant to chapter 435
82 and this section is not required for the following direct
83 service providers:
84 (a)1. Licensed physicians, nurses, or other professionals
85 licensed by the Department of Health who have been fingerprinted
86 and undergone background screening as part of their licensure;
87 and
88 2. Attorneys in good standing with The Florida Bar;
89
90 if they are providing a service that is within the scope of
91 their licensed practice.
92 (c) Volunteers who assist on an intermittent basis for less
93 than 20 hours per month and who are not listed on the Department
94 of Law Enforcement Career Offender Search or the Dru Sjodin
95 National Sex Offender Public Website.
96 1. The program that provides services to the elderly is
97 responsible for verifying that the volunteer is not listed on
98 either database.
99 2. Once the department is participating as a specified
100 agency in the clearinghouse created under s. 435.12, The
101 provider shall forward the volunteer information to the
102 Department of Elderly Affairs if the volunteer is not listed in
103 either database specified in subparagraph 1. The department must
104 then perform a check of the clearinghouse. If a disqualification
105 is identified in the clearinghouse, the volunteer must undergo
106 level 2 background screening pursuant to chapter 435 and this
107 section.
108 (3) Until the department is participating as a specified
109 agency in the clearinghouse created under s. 435.12, the
110 department may not require additional level 2 screening if the
111 individual is qualified for licensure or employment by the
112 Agency for Health Care Administration pursuant to the agency’s
113 background screening standards under s. 408.809 and the
114 individual is providing a service that is within the scope of
115 his or her licensed practice or employment.
116 Section 3. Subsections (2) and (3) of section 744.2001,
117 Florida Statutes, are amended to read:
118 744.2001 Office of Public and Professional Guardians.—There
119 is created the Office of Public and Professional Guardians
120 within the Department of Elderly Affairs.
121 (2) The executive director shall, within available
122 resources:
123 (a) Have oversight responsibilities for all public and
124 professional guardians.
125 (b) Establish standards of practice for public and
126 professional guardians by rule, in consultation with
127 professional guardianship associations and other interested
128 stakeholders, no later than October 1, 2016. The executive
129 director shall provide a draft of the standards to the Governor,
130 the Legislature, and the secretary for review by August 1, 2016.
131 (c) Review and approve the standards and criteria for the
132 education, registration, and certification of public and
133 professional guardians in Florida.
134 (d) Offer and make available online an education course to
135 satisfy the requirements of s. 744.3145(2).
136 (e) Produce and make available information about
137 alternatives to and types of guardianship for dissemination by
138 area agencies on aging as defined in s. 430.203 and aging
139 resource centers as described in s. 430.2053.
140 (3) The executive director’s oversight responsibilities of
141 professional guardians must be finalized by October 1, 2016, and
142 shall include, but are not limited to:
143 (a) Developing and implementing a monitoring tool to ensure
144 compliance of professional guardians with the standards of
145 practice established by the Office of Public and Professional
146 Guardians. This monitoring tool may not include a financial
147 audit as required by the clerk of the circuit court under s.
148 744.368.
149 (b) Developing procedures, in consultation with
150 professional guardianship associations and other interested
151 stakeholders, for the review of an allegation that a
152 professional guardian has violated the standards of practice
153 established by the Office of Public and Professional Guardians
154 governing the conduct of professional guardians.
155 (c) Establishing disciplinary proceedings, conducting
156 hearings, and taking administrative action pursuant to chapter
157 120.
158 Section 4. Subsection (3) of section 744.2003, Florida
159 Statutes, is amended to read:
160 744.2003 Regulation of professional guardians; application;
161 bond required; educational requirements.—
162 (3) Each professional guardian as defined in s. 744.102(17)
163 and public guardian must receive a minimum of 40 hours of
164 instruction and training. Each professional guardian must
165 receive a minimum of 30 16 hours of continuing education every 2
166 calendar years after the year in which the initial 40-hour
167 educational requirement is met. The required continuing
168 education must include at least 2 hours on fiduciary
169 responsibilities; 2 hours on professional ethics; 1 hour on
170 advance directives; 3 hours on abuse, neglect, and exploitation;
171 and 4 hours on guardianship law. The instruction and education
172 must be completed through a course approved or offered by the
173 Office of Public and Professional Guardians. The expenses
174 incurred to satisfy the educational requirements prescribed in
175 this section may not be paid with the assets of any ward. This
176 subsection does not apply to any attorney who is licensed to
177 practice law in this state or an institution acting as guardian
178 under s. 744.2002(7).
179 Section 5. Subsections (1) and (6) of section 744.2004,
180 Florida Statutes, are amended to read:
181 744.2004 Complaints; disciplinary proceedings; penalties;
182 enforcement.—
183 (1) By October 1, 2016, The Office of Public and
184 Professional Guardians shall establish procedures to:
185 (a) Review and, if determined legally sufficient, initiate
186 an investigation within 10 business days after receipt of
187 investigate any complaint that a professional guardian has
188 violated the standards of practice established by the Office of
189 Public and Professional Guardians governing the conduct of
190 professional guardians. A complaint is legally sufficient if it
191 contains ultimate facts that show a violation of a standard of
192 practice by a professional guardian has occurred.
193 (b) Notify the complainant Initiate an investigation no
194 later than 10 business days after the Office of Public and
195 Professional Guardians determines that a complaint is not
196 legally sufficient receives a complaint.
197 (c) Complete and provide initial investigative findings and
198 recommendations, if any, to the professional guardian and the
199 person who filed the complaint within 45 60 days after receipt
200 of a complaint.
201 (d) Obtain supporting information or documentation to
202 determine the legal sufficiency of a complaint.
203 (e) Interview a ward, family member, or interested party to
204 determine the legal sufficiency of a complaint.
205 (f) Dismiss any complaint if, at any time after legal
206 sufficiency is determined, it is found there is insufficient
207 evidence to support the allegations contained in the complaint.
208 (g) Within 10 business days after completing an
209 investigation, provide to the complainant and the professional
210 guardian a written statement specifying any finding of a
211 violation of a standard of practice by the professional guardian
212 and any actions taken, or specifying that no such violation was
213 found, as applicable.
214 (h) Coordinate, to the greatest extent possible, with the
215 clerks of court to avoid duplication of duties with regard to
216 the financial audits prepared by the clerks pursuant to s.
217 744.368.
218 (6) By October 1, 2016, The Department of Elderly Affairs
219 shall adopt rules to implement the provisions of this section.
220 Section 6. Subsection (4) of section 744.3145, Florida
221 Statutes, is amended to read:
222 744.3145 Guardian education requirements.—
223 (4) Each person appointed by the court to be a guardian
224 must complete the required number of hours of instruction and
225 education within 4 months after his or her appointment as
226 guardian. The instruction and education must be completed
227 through a course approved by the chief judge of the circuit
228 court and taught by a court-approved organization or through a
229 course offered by the Office of Public and Professional
230 Guardians under s. 744.2001. Court-approved organizations may
231 include, but are not limited to, community or junior colleges,
232 guardianship organizations, and the local bar association or The
233 Florida Bar.
234 Section 7. Subsection (8) is added to section 744.368,
235 Florida Statutes, to read:
236 744.368 Responsibilities of the clerk of the circuit
237 court.—
238 (8) Within 10 business days after the court imposes any
239 sanctions on a professional guardian, including, but not limited
240 to, contempt of court or removal of the professional guardian,
241 the clerk shall report such actions to the Office of Public and
242 Professional Guardians.
243 Section 8. This act shall take effect July 1, 2023.