CEO 84-86 -- August 30, 1984

FINANCIAL DISCLOSURE

APPLICABILITY OF DISCLOSURE LAW TO MEMBERS OF DISTRICT NURSING HOME AND LONG-TERM CARE FACILITY OMBUDSMAN COUNCIL

To: Mr. Albert J. Hadeed, Member, District III Nursing Home and Long- Term Care Facility Ombudsman Council, Gainesville

SUMMARY:

The members of a district nursing home and long-term care facility ombudsman council, created under Section 400.307, Florida Statutes, are "local officers" subject to the requirement of filing statements of financial interests under Section 112.3145, Florida Statutes, as the council's powers and duties are not solely advisory. CEO 76-98 is referenced.

QUESTION:

Are you, a member of a district nursing home and long- term care facility ombudsman council, a "local officer" subject to the requirement of filing a statement of financial interests annually?

Your question is answered in the affirmative.

In your letter of inquiry you advise that you are a member of the District III Nursing Home and Long-Term Care Facility Ombudsman Council, an entity created under Section 400.307, Florida Statutes. The duties of these District Councils include discovering, investigating, and determining the existence of abuse and neglect in nursing homes and long-term care facilities, as well as eliciting, receiving, and responding to and resolving complaints made by or on behalf of nursing home and long-term care facility residents. Section 400.307(2), Florida Statutes.

In a previous opinion, CEO 76-98, we found that regional nursing home ombudsman committees (the predecessors to the present councils) with these powers and duties did not serve a solely advisory function. Therefore, we concluded that members of these committees were "local officers" subject to the requirement of filing statements of financial interests annually.

Upon further review of the powers and duties of the District Ombudsman Councils we adhere to that conclusion. Under Chapter 400, the Department of Health and Rehabilitative Services has the authority to determine whether any administrative sanctions will be imposed against a nursing home or long-term care facility. However, the ombudsman councils do not merely advise the Department, but rather perform an independent role in cooperation with the Department in seeking to correct deficiencies in these types of facilities. As found by the Legislature when it created the councils,

conditions in nursing homes in this State are such that the personal and health care needs of residents are not assured either by regulation of the Department of Health and Rehabilitative Services or the good faith of the nursing home industry. [Section 400.301(1), Florida Statutes (1983).]

The primary purpose of the councils is to resolve complaints. In order to do so, each council has the authority to investigate, to enter facilities without advance notice and without obtaining warrants, to review personal property and money accounts of medicaid residents, and to hold hearings. Sections 400.301, 400.307 and 400.314, Florida Statutes. In response to a complaint found valid by a council, the administrator of a facility is to set a target date for remedial action. If remedial action is not completed or forthcoming by the target date, the District Council is authorized, among other things, to make public the complaint, the Council's recommendations, and the facility's response. Section 400.317, Florida Statutes.

In our view, the Councils' function of resolving complaints and the authority they have been granted to perform that function independently of the Department are substantial and affect the substantive rights of nursing home and long-term care facility residents. Therefore, we conclude that the powers and duties of the councils are not solely advisory.

Accordingly, we find that as a member of the District III Nursing Home and Long-Term Care Facility Ombudsman Council you are a "local officer" and therefore are subject to the requirement of filing a statement of financial interests annually.