This docum ent does not reflect the intent or official position of the bill sponsor or House of Representatives.
STORAGE NAME: h1411a.CFS
DATE: 3/22/2023
HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: CS/HB 1411 Department of Elderly Affairs
SPONSOR(S): Children, Families & Seniors Subcommittee, Tramont
TIED BILLS: IDEN./SIM. BILLS:
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
1) Children, Families & Seniors Subcommittee 17 Y, 0 N, As CS Osborne Brazzell
2) Health & Human Services Committee
SUMMARY ANALYSIS
The Federal Older Americans Act (OAA) requires each state to create a Long-Term Care Ombudsman
Program (Ombudsman Program) to be eligible to receive funding associated with programs under the OAA. In
Florida, the program is administered by the Department of Elderly Affairs (DOEA). The program is a statewide,
volunteer-based system of district councils that protect, defend, and advocate on behalf of long-term care
facility residents. Ombudsmen investigate complaints regarding the welfare and rights of long-term care facility
residents and perform annual assessments of long-term care facilities. Current law excludes Ombudsman
Program employees in the state office from being appointed as ombudsmen, while employees in the district
offices are allowed to be appointed as ombudsmen.
Florida provides standard procedures for screening a prospective employee where the Legislature has
determined it is necessary to conduct a criminal history background check to protect vulnerable persons.
Current law requires that direct service providers undergo level 2 background screenings. Some licensed
professionals are exempt from the background screening requirement, including certain medical professionals
licensed by the Department of Health (DOH), and attorneys in good standing with the Florida Bar.
When an individual is unable to make legal decisions regarding his or her person or property, a guardian may
be appointed to act on his or her behalf. The Office of Public and Professional Guardians (OPPG) under DOEA
is responsible for the regulation of professional guardians.
CS/HB 1411 allows for any employee of DOEA employed in the Ombudsman Program to be appointed as an
ombudsman, regardless of whether that person is employed in the state or a district office.
CS/HB 1411 amends statute relating to DOEA’s background screening practices. The bill expands the
definition of direct service providers to account for more employees with access to clients or their personal
information. Under the bill, health care professionals providing services outside of the scope of their license
and all attorneys regardless of their standing with the Florida Bar would be required to undergo a level 2
background check.
The bill also deletes obsolete language relating to DOEA background screening processes prior to joining the
Care Provider Background Screening Clearinghouse.
The bill makes changes to the training and educational requirements for professional guardians and requires
that OPPG provide materials and training for non-professional guardians. The bill also establishes specific
timeframes for processing a complaint about a professional guardian, and requires that the clerk of court report
any sanctions imposed by a court on a professional guardian to OPPG within 10 business days.
The bill does not have a fiscal impact on state or local governments.
The bill provides an effective date of July 1, 2023. STORAGE NAME: h1411a.CFS PAGE: 2
DATE: 3/22/2023
FULL ANALYSIS
I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
Background
Florida Long-Term Care Ombudsman Program
The Federal Older Americans Act (OAA) requires each state to create a Long-Term Care Ombudsman
Program (Ombudsman Program) to be eligible to receive funding associated with programs under the
OAA.
1
In Florida, the program is a statewide, volunteer-based system of district councils that protect,
defend, and advocate on behalf of long-term care facility residents, including residents of nursing
homes, assisted living facilities (ALFs), and adult family-care homes.
2
The Ombudsman Program is
administratively housed in the Department of Elderly Affairs (DOEA) and is headed by the State Long-
Term Care Ombudsman (State Ombudsman), who is appointed by the DOEA Secretary.
3
Most functions of the Ombudsmen Program are administered by certified ombudsmen, who are
primarily volunteers. Certified ombudsmen must receive at least 20 hours of training addressing, at a
minimum, the following subjects: resident confidentiality, guardianships and powers of attorney,
medication administration, care and medication of residents with dementia and Alzheimer’s disease,
accounting for residents’ funds, discharge rights and responsibilities, and cultural sensitivity.
4
Certified
ombudsman are required complete 10 hours of continuing education annually.
5
The Ombudsman Program administers a statewide toll-free telephone number for receiving complaints
concerning matters adversely affecting the health, safety, welfare, or rights of residents of long-term
care facilities.
6
The Ombudsman Program is directed to investigate complaints relating to actions or
omissions by providers or representatives of providers of long-term care services, other public
agencies, guardians, or representative payees which may adversely affect the health, safety, welfare,
or rights of residents.
7
In addition to investigating and resolving complaints, ombudsmen conduct
annual administrative assessments, which are unannounced visits to assess the quality of care in long-
term care facilities.
8
The program has had challenges in recent years maintaining the cadre of volunteers serving the
program. During 2020, there was an 18% decline in its number of volunteers, and in 2021, there was a
10% decline.
9
In FFY 2020-21, the Ombudsman Program was served by 199 volunteers who
contributed a total of 25,684 hours. In Federal Fiscal Year 2021-22, the Ombudsman Program
conducted 4,119 complaint investigations and worked with 3,978 facilities.
10
Staff as Certified Ombudsmen
Under Florida law, a “Representative of the State Long-Term Care Ombudsman Program” includes the
State Ombudsman, an employee of the state or district office certified as an ombudsman, or an
individual certified as an ombudsman serving on the state or a local council.
11
However, current law
prohibits certain individuals from being appointed as ombudsmen including:
12
1
42 U.S.C. § 3058, see also s. 400.0061(1), F.S.
2
S. 400.0060(6), F.S.
3
S. 400.0063, F.S.
4
S. 400.0091, F.S.
5
Id.
6
S. 400.0078, F.S.
7
S. 400.0073, F.S.
8
S. 400.0074, F.S.
9
Department of Elder Affairs, Florida Ombudsman Program Annual Report 2020-21, p.3. Available at
https://ombudsman.elderaffairs.org/wp-content/uploads/Annual-Report-2020-2021.pdf (last visited March 18, 2023).
10
Department of Elder Affairs, 2022 Live Well & Age Well Department Overview, p. 29.
11
S. 400.0060(9), F.S.
12
S. 400.0069(4)(b), F.S. STORAGE NAME: h1411a.CFS PAGE: 3
DATE: 3/22/2023
Owners or representatives of a long-term care facility;
Provider or representatives of a provider of long-term care service;
Employees of the Agency for Health Care Administration, the Department of Children and
Families, or the Agency for Persons with Disabilities; and,
Employees of DOEA, except for staff certified as ombudsmen in the district offices.
DOEA has interpreted this statute to mean that staff in the Ombudsman Program’s district offices are
permitted to be appointed as ombudsmen, while staff in the Ombudsman Program’s state office are
prohibited from appointment as ombudsmen.
13
As a result, DOEA has been unable to certify and
appoint state office staff as ombudsmen.
14
Federal regulations do not preclude employees of the state
agency responsible for administering the Ombudsman Program from being certified ombudsmen.
15
Background Screening
Florida provides standard procedures for screening a prospective employee where the Legislature has
determined it is necessary to conduct a criminal history background check to protect vulnerable
persons.
16
Chapter 435, F.S., establishes procedures for criminal history background screening of
prospective employees and outlines the screening requirements.
There are two levels of background screening: level 1 and level 2. Level 1 screening includes, at a
minimum, employment history checks and statewide criminal correspondence checks through the
Florida Department of Law Enforcement (FDLE) and a check of the Dru Sjodin National Sex Offender
Public Website,
17
and may include criminal records checks through local law enforcement agencies. A
Level 1 screening may be paid for and conducted through FDLE’s website, which provides immediate
results.
18
A level 2 background screening includes, but is not limited to, fingerprinting for statewide
criminal history records checks through FDLE and national criminal history checks through the Federal
Bureau of Investigation (FBI), and may include local criminal records checks through local law
enforcement agencies.
19
Current law requires that direct service providers, meaning any person 18 years of age or older who,
pursuant to a program to provide services to the elderly, has direct, face-to-face contact with a client
while providing services to the client and has access to the client’s living areas, funds, personal
property, or personal identification information,
20
undergo level 2 background screenings.
21
Current law
includes only coordinators, managers, and supervisors of residential facilities and volunteers in the
definition of direct service provider.
22
Certain classes of service providers are exempt from the level 2
background screening requirement including licensed physicians, nurses and other professionals
licensed by the Department of Health (DOH) who have undergone background screening as a part of
their licensure, as well as attorneys in good standing with the Florida Bar.
23
While attorneys in good standing with the Florida Bar will have been screened through a background
investigation by the Florida Board of Bar Examiners prior to being admitted to the Florida Bar,
24
the
13
Department of Elderly Affairs, Agency Analysis for HB 1411: 2023, p. 2. On file with the Children, Families & Seniors Subcommittee.
14
Id.
15
See 45 C.F.R. § 1324.19
16
Ch. 435, F.S.
17
The Dru Sjodin National Sex Offender Public Website is a U.S. government website that links public state, territorial, and tribal sex
offender registries in one national search site. Available at www.nsopw.gov (last visited March 15, 2023).
18
Florida Department of Law Enforcement, State of Florida Criminal History Records Check. Available at
http://www.fdle.state.fl.us/Criminal-History-Records/Florida-Checks.aspx (last visited March 15, 2023).
19
S. 435.04, F.S.
20
“Personal identification information” means any name or number that may be used, alone or in conjunction with any other information,
to identify a specific person. See s. 817.568(1)(f), F.S., for the complete list of information that constitutes personal identification
information.
21
S. 430.0402(1), F.S.
22
Id.
23
S. 430.0402(2), F.S.
24
Florida Board of Bar Examiners, Admission Requirements. Available at
https://www.floridabarexam.org/web/website.nsf/52286AE9AD5D845185257C07005C3FE1/F8FE824E0EECACE885257C0B00672021
(last visited March 15, 2023). STORAGE NAME: h1411a.CFS PAGE: 4
DATE: 3/22/2023
Florida Bar does not have a mechanism for automatic notification for subsequent arrests. Attorneys are
only required to self-report to the Florida Bar if they have been convicted of a crime.
25
As such, an
attorney may be in good standing in spite of but have an arrest or conviction that has not been reported
to the Florida Bar.
Care Provider Background Screening Clearinghouse
In 2012, the Legislature created the Care Provider Background Screening Clearinghouse
(Clearinghouse) to create a single program of screening individuals and allow for the results of criminal
history checks of persons acting as covered care providers to be shared among the specified
agencies.
26
Specified agencies include DOEA, DOH, the Agency for Health Care Administration, the
Department of Children and Families, the Agency for Persons with Disabilities, and Vocational
Rehabilitation within the Department of Education.
27
Once a person’s screening record is in the
Clearinghouse, that person will avoid the need for any future state screens and related fees.
28
Full
implementation of the Clearinghouse by the designated state agencies was required by October 1,
2013.
29
Guardianship
When an individual is unable to make legal decisions regarding his or her person or property, a
guardian may be appointed to act on his or her behalf. A guardian is someone who is appointed by the
court to act on behalf of a ward (an individual who has been adjudicated incapacitated) regarding his or
her person or property or both.
30
Office of Public and Professional Guardians
In 1999, the Legislature created the “Public Guardianship Act” and established the Statewide Public
Guardianship Office (SPGO) within the Department of Elder Affairs (DOEA).
31
In 2016, the Legislature
renamed the Statewide Public Guardianship Office within the DOEA as the Office of Public and
Professional Guardians (OPPG) and required OPPG to regulate professional guardians. A professional
guardian is any guardian who has at any time rendered services to three or more wards as their
guardian; however, a person serving as a guardian for two or more relatives is not considered a
professional guardian.
32
The OPPG appoints local public guardian offices to provide guardianship
services to people who have neither adequate income nor assets to afford a private guardian, nor any
willing family or friend to serve.
33
There are 16 public guardian offices that serve all 67 counties.
The executive director of the OPPG is responsible for the oversight of all public and professional
guardians.
34
The executive director’s oversight responsibilities for professional guardians include but
are not limited to:
Establishing standards of practice for public and professional guardians;
Reviewing and approving the standards and criteria for the education, registration, and
certification of public and professional guardians;
Developing a guardianship training program curriculum that may be offered to all guardians;
25
The Florida Bar, Chapter 3: Rules of Discipline, Rule 3-7.2 Procedures on Criminal or Professional Misconduct; Discipline on
Determination or Judgement of Guilt of Criminal Misconduct; Discipline on Removal from Judicial Office. Available at https://www-
media.floridabar.org/uploads/2022/12/Ch-3-DEC-RRTFB-12-2-2022-3.pdf (last visited March 15, 2023).
26
Chapter 2012-73, L.O.F.
27
S. 435.02(5), F.S.
28
Agency for Health Care Administration, Clearinghouse Renewals,
https://ahca.myflorida.com/MCHQ/Central_Services/Background_Screening/Renewals.shtml (last visited March 15, 2023).
29
S. 435.12, F.S.
30
S. 744.102(9), F.S.
31
S. 744.701, F.S. (1999).
32
S. 744.102(17), F.S.
33
Department of Elder Affairs, Department Overview: Office of Public and Professional Guardians, pg. 43. Available at
https://elderaffairs.org/wp-content/uploads/2022-Department-Overview_WEB.pdf (last visited March 23, 2023).
34
S. 744.2001(2)(a), F.S. STORAGE NAME: h1411a.CFS PAGE: 5
DATE: 3/22/2023
Developing and implementing a monitoring tool to use for periodic monitoring activities of
professional guardians; however, this monitoring tool may not include a financial audit as
required to be performed by the clerk of the circuit court under s. 744.368, F.S.;
Developing procedures for the review of an allegation that a professional guardian has violated
an applicable statute, fiduciary duty, standard of practice, rule, regulation, or other requirement
governing the conduct of professional guardians; and
Establishing disciplinary proceedings, conducting hearings, and taking administrative action
under ch. 120, F.S.
Professional guardians are required to register annually with OPPG.
35
As part of the registration, the
professional guardian must:
36
Provide sufficient information to identify the professional guardian;
Complete a minimum of 40 hours of instruction and training through a course approved or
offered by the OPPG;
Successfully pass an examination approved by DOEA
37
to demonstrate competency to act as a
professional guardian;
Undergo a criminal background check by the Federal Bureau of Investigation and the Florida
Department of Law Enforcement;
Submit to a credit history check; and
Maintain a current blanket bond.
Under current law, professional guardians must complete a minimum of 16 hours of continuing
education every two calendar years.
38
The continuing education courses must be approved or offered
by OPPG, however, there are no specific content requirements under current law.
39
Complaints & Investigations
The relationship between the guardian and the ward is a fiduciary one; it may not be used for the
private gain of the guardian other than the remuneration for fees and expenses provided by law.
40
As
such, the guardian must act in the best interest of the ward and carry out his or her responsibilities in an
informed and considered manner. Should a guardian breach his or her fiduciary duty to the ward, the
court is obligated to intervene to protect the ward and the ward’s interests.
41
Guardians are also
obligated to adhere to the standards of practice established by OPPG;
42
guardians may be disciplined
for unethical or illegal actions taken in their role of guardian.
43
Due to a guardian’s significant position of influence in a ward’s life, there have been several high-profile
instances of guardians abusing their relationship with a ward. For example, reports of a professional
guardian signing an order not to resuscitate against her ward’s wishes, ultimately leading to the death
of the ward, prompted a series of changes to the state’s guardianship statute
44
regarding the
appointment of guardians, conflicts of interest, and the powers and duties of guardians.
45
35
S. 744.2002, F.S.
36
S. 744.2002(3), F.S.; S. 744.2003, F.S.; S. 744.3135, F.S.
37
The examination is currently administered by the University of South Florida’s College of Education. University of South Florida,
Florida Professional Guardian Examination, http://guardianship.usf.edu/index.html (last visited Jan. 13, 2020).
38
S. 744.2003(3), F.S.
39
Id.
40
S. 744.446, F.S.
41
S. 744.446(5), F.S.
42
See rule 58M-2.009, F.A.C.
43
S. 744.20041, F.S.
44
See also Ch. 744, F.S.
45
Greg Angel, Spectrum News 13, DeSantis Signs Florida Guardianship Bill Into Law, Expanding Oversight of Program (June 19,
2020). Available at https://www.mynews13.com/fl/orlando/news/2020/06/19/desantis-signs-florida-guardianship-bill-into-law (last visited
March 11, 2023). STORAGE NAME: h1411a.CFS PAGE: 6
DATE: 3/22/2023
Any person may submit a complaint against a professional guardian to OPPG. OPPG is required to
investigate allegations of suspected wrongdoing perpetrated by public and professional guardians.
Once OPPG receives a complaint, it is required to:
46
Review and, if determined legally sufficient,
47
investigate complaints against professional
guardians;
Initiate an investigation no later than 10 business days after OPPG receives a complaint;
Complete and provide initial investigative findings and recommendations, if any, to the
professional guardian and person filing the complaint within 60 days;
Obtain supporting information, including interviewing the ward, family member, or interested
party, or documentation to determine the legal sufficiency of a complaint;
Dismiss any complaint that is not legally sufficient; and
Coordinate with the clerks of the court to avoid duplication of duties.
Investigations which find substantiated allegations of violations by professional guardians may be
referred to law enforcement, the Office of the Attorney General, the Office of the State Attorney, or the
Florida Bar, as appropriate.
Effect of the Bill
Florida Long-Term Care Ombudsman Program
CS/HB 1411 allows for any employee of DOEA employed in the Long-Term Care Ombudsman
Program to be appointed as an ombudsman, regardless of whether they are employed in the state or a
district office.
Background Screening
CS/HB 1411 expands the definition of direct service providers to include, but not be limited to,
employees responsible for the daily and financial operations of the provider and any other person who
may provide personal care or services directly to clients, or have access to client funds, financial or
legal matters, personal property or living areas.
The bill amends the statute that exempts certain licensed professionals from the background screening
requirement. The bill would require that health care professionals licensed under DOH who are
providing services outside of the scope of their license undergo background screening. The bill also
deletes provisions exempting attorneys in good standing with the Florida Bar from background
screening. This would require all attorneys who are direct service providers to be background
screened, regardless of their standing with the Florida Bar.
The bill also deletes language relating to DOEA background screening processes prior to joining the
Clearinghouse. This language is obsolete as DOEA is participating in the Clearinghouse.
Office of Public and Professional Guardians
CS/HB 1411 requires OPPG to provide information relating to alternatives to and types of guardianship
to Area Agencies on Aging and Aging Resource Centers for dissemination to the populations they
serve. The bill requires the executive director of OPPG to produce an online education course for
guardians who are not professional guardians.
The bill also increases the number of continuing education hours required for professional guardians
from 16 to 30 hours. The bill specifies that the continuing education must include, at a minimum, the
following:
46
S. 744.2004, F.S.
47
S. 744.2004(1), F.S., states that a complaint is legally sufficient if it contains ultimate facts that show a violation of a standard of
practice by a professional guardian has occurred. STORAGE NAME: h1411a.CFS PAGE: 7
DATE: 3/22/2023
2 hours on fiduciary responsibilities;
2 hours on professional ethics;
1 hour on advance directives;
3 hours on abuse, neglect, and exploitation; and
4 hours on guardianship law.
The bill revises the process by which the OPPG is required to investigate complaints made against a
professional guardian and details timelines for providing information to the complainant and the
professional guardian who is subject to the complaint. Under the bill, OPPG must review complaints,
and if determined to be legally sufficient, initiate investigations within 10 business days of receiving a
complaint. The bill also requires OPPG to notify the complainant no later than 10 business days after
OPPG determines a complaint is not legally sufficient. The bill shortens the timeframe from 60 to 45
business days in which OPPG must complete and provide initial investigative findings and
recommendations, if any, to the professional guardian and complainant. The bill requires that within 10
business days of an investigation being completed, OPPG must provide the complainant and the
professional guardian with a written statement of findings.
CS/HB 1411 also requires that the clerk of court notify OPPG of any sanctions imposed on a guardian
within 10 business days.
The bill also removes obsolete language requiring OPPG to complete certain actions by various dates
in 2016.
The bill provides an effective date of July 1, 2023.
B. SECTION DIRECTORY:
Section 1: Amends s. 400.0069, F.S., relating to long-term care ombudsman districts; local long-
term care ombudsman councils; duties; appointment.
Section 2: Amends s. 430.0402, F.S., relating to screening of direct service providers.
Section 3: Amends s. 744.2002, F.S., relating to the Office of Public and Professional Guardians.
Section 4: Amends s. 744.2003, F.S., relating to regulation of professional guardians; application;
bond required; educational requirements.
Section 5: Amends s. 744.2004, F.S., relating to complaints; disciplinary proceedings; penalties;
enforcement.
Section 6: Amends s. 744.3145, F.S., relating to guardian education requirements.
Section 7: Amends s. 744.368, F.S., relating to responsibilities of the clerk of the circuit court.
Section 8: Provides an effective date of July 1, 2023.
II. FISCAL ANALYSIS & ECONOMIC IMPACT STATEMENT
A. FISCAL IMPACT ON STATE GOVERNMENT:
1. Revenues:
None.
2. Expenditures:
None.
B. FISCAL IMPACT ON LOCAL GOVERNMENTS:
1. Revenues:
None.
STORAGE NAME: h1411a.CFS PAGE: 8
DATE: 3/22/2023
2. Expenditures:
None.
C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR:
CS/HB 1411 expands the types of employees who are required to undergo level 2 background
screenings as a term of employment. As employers are responsible for paying the costs of background
screening,
48
there is likely to be an indeterminate, increased cost to private employers who employ
direct service providers as defined in the bill.
D. FISCAL COMMENTS:
None.
III. COMMENTS
A. CONSTITUTIONAL ISSUES:
1. Applicability of Municipality/County Mandates Provision:
Not Applicable. This bill does not appear to affect county or municipal governments.
2. Other:
None.
B. RULE-MAKING AUTHORITY:
The bill neither requires rulemaking nor confers or alters an agency’s rulemaking authority.
C. DRAFTING ISSUES OR OTHER COMMENTS:
None.
IV. AMENDMENTS/COMMITTEE SUBSTITUTE CHANGES
On March 21, 2023, the Children, Families, and Seniors Subcommittee adopted an amendment and
reported the bill favorably as a committee substitute. The amendment makes changes relating to the Office
of Public and Professional Guardians (OPPG) under DOEA. The amendment makes changes to the
training and educational requirements for professional guardians and requires that OPPG provide materials
and training for non-professional guardians. The amendment also establishes specific timeframes for
processing a complaint about a professional guardian, and requires that the clerk of court report any
sanctions imposed by a court on a professional guardian to OPPG within 10 business days.
The bill was reported favorably as amended. The analysis is drafted to the amended bill as passed by the
Children, Families & Seniors Subcommittee.
48
S. 435.08, F.S.