CEO 84-87 -- August 30, 1984

FINANCIAL DISCLOSURE

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

To: Ms. Margaret H. Jacks, Chairman, State Nursing Home and Long-Term Care Facility Ombudsman Council, Tallahassee

SUMMARY:

Members of the State Nursing Home and Long-Term Care Facility Ombudsman Council, created under Section 400.304, Florida Statutes, are "state officers" subject to the requirement of filing statements of financial interests annually, as the Council's powers and duties are not solely advisory. CEO 76-9 is referenced.

QUESTION:

Are you, a member and chairman of the State Nursing Home and Long-Term Care Facility Ombudsman Council, a "state 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 serve as Chairman of the State Nursing Home and Long-Term Care Facility Ombudsman Council. The duties of the Council include helping to establish and coordinate the District Ombudsman Councils, serving as an appellate body to attempt to resolve complaints not resolved by the District Ombudsman Councils, and developing procedures for handling complaints by nursing home and long-term care facility residents. Section 400.304(2), Florida Statutes.

In a previous opinion, CEO 76-9, we found that the State Nursing Home Ombudsman Committee (the predecessor to the Council), which had the same responsibilities, did not serve a solely advisory function. Therefore, we concluded that the members of the committee were "state officers" subject to the requirement of filing statements of financial interests annually.

Upon further review of the powers and duties of the State Ombudsman Council, 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 Council does not merely advise the Department, but rather performs 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 ombudsman 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 Council is to resolve complaints. In order to do so, the Council has the authority to investigate, to enter facilities without advance notice and without obtaining warrants, to develop procedures to determine the existence of abuse and neglect and to resolve complaints, to review personal property and money accounts of medicaid residents, and to hold hearings. Sections 400.301, 400.304 and 400.314, Florida Statutes. In response to a complaint referred from a district council, the State Council assumes responsibility for disposition of the complaint. If a facility fails to take action on a complaint found valid by the State Council, the 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 Council's function of resolving complaints and the authority it has 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 Council are not solely advisory.

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