As elder law attorneys, many of us are already familiar with the Florida Long Term Care Ombudsman Program. As a quick summary: the ombudsman program is funded through the Department of Elder Affairs and its purpose is to be an advocate for the health, safety, welfare and rights of residents in adult family care homes, assisted living facilities and nursing homes.
I was really interested to learn how that practically plays out in real-world scenarios. I had a chance to interview the Florida State Ombudsman (appointed by the Secretary of Elderly Affairs) who is in charge of the Florida Long Term Care Ombudsman Program.
Background of Florida Long Term Care State Ombudsman Micheal Milliken
Ombudsman Milliken spent 21 years in the Coast Guard. After leaving the military he became a middle school teacher and left teaching to become a regional, and then district, manager of the Florida long-term care ombudsman program. In 2016, the Florida Secretary of Elderly Affairs appointed him to the state ombudsman position.
I asked Ombudsman Milliken to discuss the policies and procedures he changed or enacted of which he is particularly proud. He was insistent that his success in implementing his priorities have only been possible due to his highly capable team that make up the long term care ombudsman program.
“To give one example, I instituted live webinar training programs for our volunteer ombudsman, to discuss issues beyond the basics such as: overuse of antibiotics in nursing homes, where we bring in speakers from other Florida agencies such as the Department of Health. This live video-training format allows our volunteer ombudsman to ask live questions to the presenters. All of these live videos are closed captioned and available for review. My team also rewrote/updated tracking systems and their underlying procedures for tracking cases. This makes it easier to pull reports to see how all matters are progressing.”
He continued, “I am proud to report that multiple Florida volunteer ombudsman have been given “Presidential volunteer awards.“ A total of 152 ombudsman have received either the bronze, silver or gold presidential awards.
Volunteer Florida Long Term Care Ombudsman - By the Numbers
There are roughly 308 volunteer ombudsman (as of the date of the interview in May, 2019). The number of volunteers obviously ebbs and flows. As of May, 2019, there were:
- 91 with less than one year of experience;
- 56 with 1-2 years;
- 35 with 2-3 years;
- 32 with 3-4 years;
- 14 with 4-5 years; and
- 83 with five or more years’ of experience.
Volunteer ombudsman come from a wide array of backgrounds, Ombudsman Milliken indicated that his volunteers are lawyers, doctors, nurses, therapists, corporate retirees, homemakers, “anyone with a passion for helping others.”
Volunteer ombudsman go though 20 hours if initial training and then follow up with 10 additional hours per year thereafter. Ombudsman Milliken explained that there are eight modules of online training, then there is a live classroom training that will go for one or two days depending on the size of the class. Finally, volunteer ombudsman have to complete three field cases and conduct three assessments with certified ombudsman before they’ll become certified themselves.
What does the Florida Long Term Care Ombudsman Do?
Every adult residential facility gets an unannounced visit at least once a year. Ombudsman Milliken indicated that they try to get to the facilities at the beginning of their fiscal year because it then gives the ombudsman program a better idea of which facilities should require additional unannounced visits. Problem facilities get an unannounced visit once a quarter until any discovered issues are resolved.
During the surprise visits, the volunteer ombudsman will investigate the quality of the food, medication delivery schedules, social activities and try to determine that all residents are being treated with dignity and respect.
During surprise visits, Ombudsman Milliken explained that they will interview a significant portion of the long term care residents. Depending on the size of the facility (e.g. 15 beds or less), they might interact with every resident who agrees to speak with the ombudsman. He continued, “As we visit larger facilities, our volunteers will try to speak with about 10% of the residents.” If a resident doesn’t want to speak, the volunteer ombudsman will honor their wishes.
Jason: Do they investigate general issues of cleanliness or food quality during the visit?
Ombudsman: Yes. If a resident mentions, for example, an issue with the temperature or quality of the food, then the volunteer ombudsman will look at menus, see how often food choices differ or rotate, and speak with the kitchen manager.
Jason: How long do these unannounced visits take?
Ombudsman: It really depends on the size of the facility. A 5 bed facility can take 20 minutes, while a 280 bed facility might take 3-4 hours. If we start to see a pattern of complaints among residents we interview (e.g. not getting correct medication or not getting it on time); we’ll launch our own investigation.
Jason: Can you give me an example of how a complaint, such as the one you mentioned, gets resolved?
Ombudsman: Sure, let’s use the example of someone complaining that they don’t get their medication on-time. A resident's doctor might verbally tell their patient to take a prescription four times per day starting at 9:00am (but the pharmacist wont necessarily indicate that specific of a directive on the bottle). The nursing home fills the prescription and might deliver the first dose at 8:00am, which prompts the complaint.
The resident would give consent for our volunteer ombudsman to look at the prescription and medication delivery chart. First, we’ll verify its being given, then check delivery times. If its 8:00am and resident prefers 9:00am, the ombudsman will work to make the resident happy. But the facility may not be able to deliver the medication at precisely 8:00am, so we may try to set reasonable expectations, such as to expect the medicine between 8:30 to 9:30am. Even if the Ombudsman determines that the nursing home did nothing wrong, we’ll still work to make the residents happy. We’re certainly stricter if we determine that the resident is not receiving their medication at all, or receiving meds that have been discontinued, or receiving someone else’s medication.
State Ombudsman Milliken explained that his program receives a number of complaints where residents lose clothing/small personal items. The volunteer long-term care ombudsman will look at the resident’s property inventory. If the personal property cannot be located, but is documented that it should be there, the ombudsman will get facility to replace such items. “Especially in a nursing home setting, where many residents are on medicaid, we recognize that the $130 monthly personal needs allowance is not a lot of money and a pair of pants can be a huge portion of that monthly allowance.”
Jason: How often is the volunteer long-term care ombudsman able to resolve each matter directly with the facility vs. having to refer out to outside agencies (AHCA, code enforcement, Department of Health, police, etc…)?
Ombudsman: Last year our top complaints involved: hygiene, medication, dignity/respect, failure to respond and discharge/eviction. The majority of cases are resolved to the satisfaction of residents. About 2% of cases are referred out to outside agencies.
Jason: I’m interested to hear more about how you investigate the more subjective complaints such as “I’m not being treated respectfully by nursing home staff.”
Ombudsman: We always recognize that the adult residence, ALF or nursing facility is their home and they deserve to be treated as such. If we interviewed 15 people and only one complains that this is a problem, we won't dismiss the complaint because of the possibility that staff is, in fact, treating this particular person differently. Even in a case such as this, we’ll ask the nursing home or ALF administrators to do a training.
Its also important to know that follow up visits can also be unannounced. For example, we had a resident complain that, at 2:00am, all staff were outside and essentially unavailable to assist the residents. In that case we had staff make a visit at around that late hour (Florida law requires that a volunteer ombudsman be provided with 24/7 access to any facility under the long-term care ombudsman program jurisdiction). In that particular case, the administrators started doing their own spot visits and the resident report to us that the problem was resolved. We always follow up with residents to make that they are satisfied with the outcome. There are, of course, cases where the resident is still not satisfied, but the facility is in compliance with the law. Even in that case, our volunteers ombudsman will still try to help.
Ombudsman Milliken explained how every complaint results in an in-person visit. Florida Statutes provides seven working days to respond, but if its a serious allegation of physical abuse, they respond within 24 hours (usually same day or next day). Third parties (including elder law attorneys) may make a complaint on behalf of a resident. However, the long-term care ombudsman will not report back to that third party (unless that 3rd party is the resident’s guardian or agent under a durable power of attorney - if there is incapacity letter in file).
Ombudsman Milliken explained, “We work for the resident. If resident has capacity then they are the only one ombudsman will deal with.”
Odd or Atypical Cases Presented to the Florida Long Term Care Ombudsman Program
I asked Ombudsman Milliken to discuss several real-life atypical, or perhaps, serious complaints the program has handled.
Long-Term Care Complaint #1: facility was rationing toilet paper (i.e. residents were being forced to purchase additional toilet paper when their allotment ran out). This complaint was immediately resolved as all residents need to live in a clean and decent environment.
Long-Term Care Complaint #2: involved a married couple in the same facility that would not allow a queen bed placed in one room. In an example of a compromise for the resident’s benefit and satisfaction, the state volunteer long-term care ombudsman was able to resolve the matter by convincing the facility to place two twin-beds together.
Long-Term Care Complaint #3: this concerned an issue with improper discharge where a resident with dementia was Baker Acted and the facility refused to allow the resident to return. In this case the ombudsman referred the matter out to AHCA because the law was broken. Nursing home residents must be allowed back after a hospital stay.
Finally, Long-term care complaint #4: a facility was found to have let multiple chickens roam through the building. According to Ombudsman Milliken, “Long-story short…. The residents now live in a chicken-free zone.”
What is the Long Term Care Ombudsman Legal Advocate Position?
As I read though Florida Statutes Section 400, I noticed that the ombudsman program has a legal-advocate position. Ombudman Milliken explained that they will assist his volunteers with the review of powers of attorney or guardianship documents to advise what the volunteer long-term care ombudsman can or cannot do / who they can speak with. In addition they do public records requests, redacts confidential information and lobby the Florida legislature.
I also asked State Ombudsman Milliken if his program’s legal advocate does anything that more directly benefits long-term care facility residents? He explained that the legal advocate has arranged for residents to receive services from legal aid to assist with fighting a discharge.
With respect to the Long-Term Care Ombudsman Program’s legislative goals, Ombudsman Milliken explained that he wants the records-request section of chapter 400 changed to match the more resident-friendly federal records-request laws (which require a facility to arrange for records viewing within 24 hours and provide a copy within 48 hours). In addition, ALF currently have to give 45 days notice when evicting a resident. Ombudsman Milliken wants the law amended to include mandatory reporting of the 45 day notice to the ombudsman’s office as well so they can assist with premature or improper discharges.
Furthermore, Ombudsman Milliken says he would like to see funds set aside for residents to establish their own advocacy groups.
The Long Term Care Ombudsman Programs Position on Non-Attorney Medicaid Planners
I discussed this issue with Ombudsman Milliken by asking if he was aware that more nursing homes are referring families to non-attorney Medicaid planners resulting in denials and issues (such as threats of discharge for failure to pay) that could have been avoided if they were instead referred to an elder law attorney. His program doesn’t have a position on the matter but he indicated that the ombudsman would sit with the resident and try to resolve the payment and discharge issue with the facility depending on the circumstances.
How to Contact the Florida Ombudsman Program
The Florida Ombudsman Program investigates complaints made by or on behalf of residents. All investigations are confidential and provided at no charge.
Call 1-888-831-0404 (toll-free) or 1-850-414-2323
Mail: Long Term Care Ombudsman Program | 4040 Esplanade Way, Suite 380, Tallahassee, FL 32399-7000