CHAPTER 400

400.0060 Definitions. When used in this part, unless the context clearly dictates otherwise, the term: (1) “Administrative assessment” means a review of conditions in a long-term care facility which impact the rights, health, safety, and welfare of residents with the purpose of noting needed improvement and making recommendations to enhance the quality of life for residents. (2) “Agency” means the Agency for Health Care Administration. (3) “Department” means the Department of Elderly Affairs. (4) “District” means a geographical area designated by the state ombudsman in which individuals certified as ombudsmen carry out the duties of the State Long-Term Care Ombudsman Program. A district may have one or more local councils. (5) “Local council” means a local long-term care ombudsman council designated by the ombudsman pursuant to s. 400.0069. Local councils are also known as district long-term care ombudsman councils or district councils. (6) “Long-term care facility” means a nursing home facility, assisted living facility, adult family-care home, board and care facility, or any other similar residential adult care facility. (7) “Office” means the Office of the State Long-Term Care Ombudsman Program created by s. 400.0063. (8) “Ombudsman” means an individual who has been certified by the state ombudsman as meeting the requirements of ss. 400.0069, 400.0070, and 400.0091. (9) “Representative of the State Long-Term Care Ombudsman Program” means 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. (10) “Resident” means an individual 18 years of age or older who resides in a long-term care facility. (11) “Secretary” means the Secretary of Elderly Affairs. (12) “State council” means the State Long-Term Care Ombudsman Council created by s. 400.0067. (13) “State ombudsman” means the State Long-Term Care Ombudsman, who is the individual appointed by the Secretary of Elderly Affairs to head the State Long-Term Care Ombudsman Program. (14) “State ombudsman program” means the State Long-Term Care Ombudsman Program operating under the direction of the State Long-Term Care Ombudsman. History. — ss. 1, 30, ch. 93-177; s. 4, ch. 95-210; s. 1, ch. 2006-121; s. 1, ch. 2015-31. 400.0061 Legislative findings and intent; long-term care facilities. (1) The Legislature finds that conditions in long-term care facilities in this state are such that the rights, health, safety, and welfare of residents are not fully ensured by rules of the Department of Elderly Affairs or the Agency for Health Care Administration or by the good faith of owners or operators of long-term care facilities. Furthermore, there is a need for a formal mechanism whereby a long-term care facility resident, a representative of a long-term care facility resident, or any other concerned citizen may make a complaint against the facility or its employees or against other persons who are in a position to restrict, interfere with, or threaten the rights, health, safety, or welfare of a long-term care facility resident. The Legislature finds that concerned citizens are often more effective advocates for the rights of others than governmental agencies. The Legislature further finds that in order to be eligible to receive an allotment of funds authorized and appropriated under the federal Older Americans Act, the state must establish and operate an Office of State Long-Term Care Ombudsman, to be headed by the State Long-Term Care Ombudsman, and carry out a long-term care ombudsman program. (2) It is the intent of the Legislature, therefore, to use voluntary citizen ombudsman councils under the leadership of the State Long-Term Care Ombudsman and, through them, to operate a state ombudsman program, which shall, without interference by any executive agency, undertake to discover, investigate, and determine the presence of conditions or individuals that constitute a threat to the rights, health, safety, or welfare of the residents of long-term care facilities. To ensure that the effectiveness and efficiency of such investigations are not impeded by advance notice or delay, the Legislature intends that the representatives of the State Long-Term Care Ombudsman Program not be required to obtain warrants in order to enter into or conduct investigations or onsite administrative assessments of long-term care facilities. It is the further intent of the Legislature that the environment in long-term care facilities be conducive to the dignity and independence of residents and that investigations by representatives of the State Long-Term Care Ombudsman Program shall further the enforcement of laws, rules, and regulations that safeguard the health, safety, and welfare of residents. History. — ss. 2, 30, ch. 93-177; s. 758, ch. 95-148; s. 111, ch. 99-8; s. 2, ch. 2006-121; s. 2, ch. 2015-31. 400.0063 Establishment of the State Long-Term Care Ombudsman Program; designation of ombudsman and legal advocate. (1) There is created the State Long-Term Care Ombudsman Program in the Department of Elderly Affairs. (2)(a) The State Long-Term Care Ombudsman Program shall be headed by the State Long-Term Care Ombudsman, who shall serve on a full-time basis and shall personally, or through representatives of the program, carry out its purposes and functions in accordance with state and federal law. (b) The state ombudsman shall be appointed by and shall serve at the pleasure of the Secretary of Elderly Affairs. The secretary shall appoint a person who has expertise and experience in the fields of long-term care and advocacy to serve as state ombudsman. (3)(a) There is created in the office the position of legal advocate, who shall be selected by and serve at the pleasure of the state ombudsman and shall be a member in good standing of The Florida Bar. (b) The duties of the legal advocate shall include, but not be limited to: 1. Assisting the state ombudsman in carrying out the duties of the office with respect to the abuse, neglect, exploitation, or violation of rights of residents of long-term care facilities. 2. Assisting the representatives of the State Long-Term Care Ombudsman Program in carrying out their responsibilities under this part. 3. Pursuing administrative, legal, and other appropriate remedies on behalf of residents. 4. Serving as legal counsel to the representatives of the State Long-Term Care Ombudsman Program in any suit or other legal action that is initiated in connection with the performance of the official duties of the representatives of the State Long-Term Care Ombudsman Program. History. — ss. 3, 30, ch. 93-177; s. 41, ch. 95-196; s. 121, ch. 2000-349; s. 41, ch. 2000-367; s. 20, ch. 2002-223; s. 3, ch. 2006-121; s. 20, ch. 2006-197; s. 3, ch. 2015-31. 400.0065 State Long-Term Care Ombudsman Program; duties and responsibilities. (1) The purpose of the State Long-Term Care Ombudsman Program is to: (a) Identify, investigate, and resolve complaints made by or on behalf of residents of long-term care facilities relating to actions or omissions by providers or representatives of providers of long-term care services, other public or private agencies, guardians, or representative payees that may adversely affect the health, safety, welfare, or rights of the residents. (b) Provide services that assist in protecting the health, safety, welfare, and rights of residents. (c) Inform residents, their representatives, and other citizens about obtaining the services of the State Long-Term Care Ombudsman Program and its representatives. (d) Ensure that residents have regular and timely access to the services provided through the State Long-Term Care Ombudsman Program and that residents and complainants receive timely responses from representatives of the State Long-Term Care Ombudsman Program to their complaints. (e) Represent the interests of residents before governmental agencies and seek administrative, legal, and other remedies to protect the health, safety, welfare, and rights of the residents. (f) Administer the state and local councils. (g) Analyze, comment on, and monitor the development and implementation of federal, state, and local laws, rules, and regulations, and other governmental policies and actions, that pertain to the health, safety, welfare, and rights of the residents, with respect to the adequacy of long-term care facilities and services in the state, and recommend any changes in such laws, rules, regulations, policies, and actions as the office determines to be appropriate and necessary. (h) Provide technical support for the development of resident and family councils to protect the well-being and rights of residents. (2) The State Long-Term Care Ombudsman has the duty and authority to: (a) Establish and coordinate districts and local councils throughout the state. (b) Perform the duties specified in state and federal law, rules, and regulations. (c) Within the limits of appropriated federal and state funding, employ such personnel necessary to perform adequately the functions of the office and provide or contract for legal services to assist the representatives of the State Long-Term Care Ombudsman Program in the performance of their duties. Staff positions established for the purpose of coordinating the activities of each local council and assisting its members may be filled by the ombudsman after approval by the secretary. Notwithstanding any other provision of this part, upon certification by the ombudsman that the staff member hired to fill any such position has completed the initial training required under s. 400.0091, such person shall be considered a representative of the State Long-Term Care Ombudsman Program for purposes of this part. (d) Contract for services necessary to carry out the activities of the office. (e) Apply for, receive, and accept grants, gifts, or other payments, including, but not limited to, real property, personal property, and services from a governmental entity or other public or private entity or person, and make arrangements for the use of such grants, gifts, or payments. (f) Coordinate, to the greatest extent possible, state and local ombudsman services with the protection and advocacy systems for individuals with developmental disabilities and mental illnesses and with legal assistance programs for the poor through adoption of memoranda of understanding and other means. (g) Enter into a cooperative agreement with the Medicaid Fraud Division as prescribed under s. 731(e)(2)(B) of the Older Americans Act. (h) Prepare an annual report describing the activities carried out by the office, the state council, the districts, and the local councils in the year for which the report is prepared. The state ombudsman shall submit the report to the secretary, the United States Assistant Secretary for Aging, the Governor, the President of the Senate, the Speaker of the House of Representatives, the Secretary of Children and Families, and the Secretary of the Agency for Health Care Administration at least 30 days before the convening of the regular session of the Legislature. The report must, at a minimum: 1. Contain and analyze data collected concerning complaints about and conditions in long-term care facilities and the disposition of such complaints. 2. Evaluate the problems experienced by residents. 3. Analyze the successes of the State Long-Term Care Ombudsman Program during the preceding year, including an assessment of how successfully the program has carried out its responsibilities under the Older Americans Act. 4. Provide recommendations for policy, regulatory, and statutory changes designed to solve identified problems; resolve residents’ complaints; improve residents’ lives and quality of care; protect residents’ rights, health, safety, and welfare; and remove any barriers to the optimal operation of the State Long-Term Care Ombudsman Program. 5. Contain recommendations from the State Long-Term Care Ombudsman Council regarding program functions and activities and recommendations for policy, regulatory, and statutory changes designed to protect residents’ rights, health, safety, and welfare. 6. Contain any relevant recommendations from the representatives of the State Long-Term Care Ombudsman Program regarding program functions and activities. History. — ss. 4, 30, ch. 93-177; s. 112, ch. 99-8; s. 122, ch. 2000-349; s. 42, ch. 2000-367; s. 21, ch. 2002-223; s. 4, ch. 2006-121; s. 120, ch. 2014-19; s. 4, ch. 2015-31; s. 44, ch. 2016-10. 400.0067 State Long-Term Care Ombudsman Council; duties; membership. (1) There is created within the State Long-Term Care Ombudsman Program, the State Long-Term Care Ombudsman Council. (2) The State Long-Term Care Ombudsman Council shall: (a) Serve as an advisory body to assist the state ombudsman in reaching a consensus among districts and local councils on issues affecting residents and impacting the optimal operation of the program. (b) Serve as an appellate body in receiving from the districts or local councils complaints not resolved at the district or local level. Any individual member or members of the state council may enter any long-term care facility involved in an appeal, pursuant to the conditions specified in s. 400.0074(2). (c) Assist the ombudsman to discover, investigate, and determine the existence of abuse or neglect in any long-term care facility, and work with the adult protective services program as required in ss. 415.101-415.113. (d) Assist the ombudsman in eliciting, receiving, responding to, and resolving complaints made by or on behalf of residents. (e) Elicit and coordinate state, district, local, and voluntary organizational assistance for the purpose of improving the care received by residents. (f) Assist the state ombudsman in preparing the annual report described in s. 400.0065. (3) The State Long-Term Care Ombudsman Council consists of one active certified ombudsman from each local council in a district plus three at-large members. (a) Each local council in a district must select a representative of its choice to serve on the state council. (b)1. The state ombudsman shall submit to the secretary a list of individuals recommended for appointment to the at-large positions on the state council. The list may not include the name of any individual who is currently serving in a district. 2. The secretary shall appoint three at-large members chosen from the list. (4)(a)1. State council members shall serve 3-year terms. 2. A member of the state council may not serve more than two consecutive terms. 3. A local council may recommend replacement of its selected representative from the state council. If the council votes to replace its representative, the local council chair shall immediately notify the state ombudsman. 4. The position of any member missing three state council meetings within a 1-year period without cause may be declared vacant by the state ombudsman. The findings of the state ombudsman regarding cause shall be final and binding. (b) Any vacancy on the state council shall be filled in the same manner as the original appointment. (c)1. The state council shall elect a chair to serve for a term of 1 year. A chair may not serve more than two consecutive terms. 2. The chair shall select a vice chair from among the members. The vice chair shall preside over the state council in the absence of the chair. 3. The chair may create additional executive positions as necessary to carry out the duties of the state council. Any person appointed to an executive position shall serve at the pleasure of the chair, and his or her term shall expire on the same day as the term of the chair. 4. A chair may be immediately removed from office before the expiration of his or her term by a vote of two-thirds of all state council members present at any meeting at which a quorum is present. If a chair is removed from office before the expiration of his or her term, a replacement chair shall be chosen during the same meeting in the same manner as described in this paragraph, and the term of the replacement chair shall begin immediately. The replacement chair shall serve for the remainder of the term and is eligible to serve two subsequent consecutive terms. (d)1. The state council shall meet upon the call of the chair or upon the call of the state ombudsman. The state council shall meet at least quarterly but may meet more frequently as needed. 2. A quorum shall be considered present if more than 50 percent of all active state council members are in attendance at the same meeting. 3. The state council may not vote on or otherwise make any decisions resulting in a recommendation that will directly impact the state council, the district, or any local council, outside of a publicly noticed meeting at which a quorum is present. (e) Members may not receive compensation for attendance at state council meetings but shall, with approval from the state ombudsman, be reimbursed for per diem and travel expenses as provided in s. 112.061. History. — ss. 5, 30, 31, ch. 93-177; s. 759, ch. 95-148; s. 113, ch. 99-8; s. 209, ch. 99-13; s. 15, ch. 2000-263; s. 11, ch. 2000-305; s. 124, ch. 2000-349; s. 44, ch. 2000-367; s. 22, ch. 2002-223; s. 6, ch. 2006-121; s. 5, ch. 2015-31. 400.0069 Long-term care ombudsman districts; local long-term care ombudsman councils; duties; appointment. (1)(a) The state ombudsman shall designate districts and each district shall designate local long-term care ombudsman councils to carry out the duties of the State Long-Term Care Ombudsman Program within local communities. Each district shall function under the direction of the state ombudsman. (b) The state ombudsman shall ensure that there is at least one employee of the department certified as a long-term care ombudsman and a least one local council operating in each district. The state ombudsman may create additional local councils as necessary to ensure that residents throughout the state have adequate access to State Long-Term Care Ombudsman Program services. (c) Each district shall convene a public meeting at least quarterly. (2) The duties of the representatives of the State Long-Term Care Ombudsman Program are to: (a) Provide services to assist in protecting the health, safety, welfare, and rights of residents. (b) Discover, investigate, and determine the existence of abuse, neglect, or exploitation in any long-term care facility and to use the procedures provided for in ss. 415.101-415.113 when applicable. (c) Identify, investigate, and resolve complaints made by or on behalf of residents relating to actions or omissions by 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. (d) Review and, if necessary, comment on all existing or proposed rules, regulations, and other governmental policies and actions relating to long-term care facilities that may potentially have an effect on the health, safety, welfare, and rights of residents. (e) Review personal property and money accounts of residents who are receiving assistance under the Medicaid program pursuant to an investigation to obtain information regarding a specific complaint. (f) Recommend that the state ombudsman and the legal advocate seek administrative, legal, and other remedies to protect the health, safety, welfare, and rights of residents. (g) Provide technical assistance for the development of resident and family councils at long-term care facilities. (h) Carry out other activities that the state ombudsman determines to be appropriate. (3) In order to carry out the duties specified in subsection (2), a representative of the State Long-Term Care Ombudsman Program or a member of a local council is authorized to enter any long-term care facility without notice or first obtaining a warrant; however, s. 400.0074(2) may apply regarding notice of a followup administrative assessment. (4) Each district and local council shall be composed of ombudsmen whose primary residences are located within the boundaries of the district. (a) Upon good cause shown and with the consent of the ombudsman, the state ombudsman may appoint an ombudsman to another district. The ombudsman shall strive to ensure that each local council include the following persons as members: 1. At least one medical or osteopathic physician whose practice includes or has included a substantial number of geriatric patients and who may practice in a long-term care facility; 2. At least one registered nurse who has geriatric experience; 3. At least one licensed pharmacist; 4. At least one registered dietitian; 5. At least six nursing home residents or representative consumer advocates for nursing home residents; 6. At least three residents of assisted living facilities or adult family-care homes or three representative consumer advocates for alternative long-term care facility residents; 7. At least one attorney; and 8. At least one professional social worker. (b) The following individuals may not be appointed as ombudsmen: 1. The owner or representative of a long-term care facility. 2. A provider or representative of a provider of long-term care service. 3. An employee of the agency. 4. An employee of the department who is not employed in the State Long-Term Care Ombudsman Program. 5. An employee of the Department of Children and Families. 6. An employee of the Agency for Persons with Disabilities. (5)(a) To be appointed as an ombudsman, an individual must: 1. Submit an application to the state ombudsman or his or her designee. 2. Successfully complete a level 2 background screening pursuant to s. 430.0402 and chapter 435. (b) The state ombudsman shall approve or deny the appointment of the individual as an ombudsman. If the state ombudsman rescinds the approval of a member on a local council, the state ombudsman shall ensure that the individual is immediately removed from the local council on which he or she serves and the individual may no longer represent the State Long-Term Care Ombudsman Program until the state ombudsman provides his or her approval. (c) Upon appointment as an ombudsman, the individual may participate in district activities, but may not represent the program or conduct any authorized program duties until the individual has completed the initial training specified in s. 400.0091(1) and has been certified by the state ombudsman. (d) The state ombudsman may rescind the appointment of an individual as an ombudsman for good cause shown, such as development of a conflict of interest, failure to adhere to the policies and procedures established by the State Long-Term Care Ombudsman Program, or demonstrated inability to carry out the responsibilities of the program. After the appointment is rescinded, the individual may not conduct any duties as an ombudsman and may not represent the State Long-Term Care Ombudsman Program. (e) A local council may recommend the removal of one or more of its members by submitting to the state ombudsman a resolution adopted by a two-thirds vote of the members of the council stating the name of the member or members recommended for removal and the reasons for the recommendation. If such a recommendation is adopted by a local council, the local council chair or district manager shall immediately report the council’s recommendation to the state ombudsman. The state ombudsman shall review the recommendation of the local council and advise the district manager and local council chair of his or her decision regarding removal of the council member or members. (6)(a) Each local council shall elect a chair for a term of 1 year. There shall be no limitation on the number of terms that an approved member of a local council may serve as chair. (b) The chair shall select a vice chair from among the members of the council. The vice chair shall preside over the council in the absence of the chair. (c) The chair may create additional executive positions as necessary to carry out the duties of the local council. Any person appointed to an executive position shall serve at the pleasure of the chair, and his or her term shall expire on the same day as the term of the chair. (d) A chair may be immediately removed from office prior to the expiration of his or her term by a vote of two-thirds of the members of the local council. If any chair is removed from office before the expiration of his or her term, a replacement chair shall be elected during the same meeting, and the term of the replacement chair shall begin immediately. The replacement chair shall serve for the remainder of the term of the person he or she replaced. (7) Each local council shall meet upon the call of its chair or upon the call of the ombudsman. Each local council shall meet at least once a month but may meet more frequently if necessary. (8) An ombudsman may not receive compensation but shall, with approval from the state ombudsman, be reimbursed for travel expenses in accordance with the provisions of s. 112.061. (9) A representative of the State Long-Term Care Ombudsman Program may call upon appropriate state agencies for professional assistance as needed in the discharge of his or her duties, and such state agencies shall cooperate in providing requested information and agency representation. History. — s. 27, ch. 75-233; s. 3, ch. 76-168; s. 136, ch. 77-104; s. 8, ch. 77-401; s. 1, ch. 77-457; s. 4, ch. 78-323; s. 2, ch. 78-393; ss. 6, 12, ch. 80-198; ss. 2, 3, 5, ch. 81-184; ss. 2, 3, ch. 81-318; ss. 1, 4, ch. 82-46; ss. 15, 19, ch. 82-148; ss. 35, 79, 80, 83, 84, ch. 83-181; s. 39, ch. 86-220; s. 2, ch. 87-396; s. 7, ch. 89-294; s. 3, ch. 91-115; s. 27, ch. 92-33; ss. 6, 29, 30, 31, ch. 93-177; s. 49, ch. 93-217; s. 760, ch. 95-148; s. 5, ch. 95-210; s. 114, ch. 99-8; s. 125, ch. 2000-349; s. 45, ch. 2000-367; s. 23, ch. 2002-223; s. 7, ch. 2006-121; s. 21, ch. 2006-197; s. 121, ch. 2014-19; s. 6, ch. 2015-31; s. 1, ch. 2023-259. Note. — Former s. 400.307. 400.0070 Conflicts of interest. (1) A representative of the State Long-Term Care Ombudsman Program may not: (a) Have a direct involvement in the licensing or certification of, or an ownership or investment interest in, a long-term care facility or a provider of a long-term care service. (b) Be employed by, or participate in the management of, a long-term care facility. (c) Receive, or have a right to receive, directly or indirectly, remuneration, in cash or in kind, under a compensation agreement with the owner or operator of a long-term care facility. (2) Each representative of the State Long-Term Care Ombudsman Program shall certify that he or she does not have a conflict of interest. (3) The department, in consultation with the state ombudsman, shall define by rule: (a) Situations that constitute a conflict of interest which could materially affect the objectivity or capacity of an individual to serve as a representative of the State Long-Term Care Ombudsman Program while carrying out the purposes of the State Long-Term Care Ombudsman Program as specified in this part. (b) The procedure by which an individual listed in subsection (2) must certify that he or she does not have a conflict of interest. History. — s. 8, ch. 2006-121; s. 7, ch. 2015-31; s. 45, ch. 2016-10. 400.0071 State Long-Term Care Ombudsman Program complaint procedures. The department, in consultation with the state ombudsman, shall adopt rules implementing state and local complaint procedures. The rules must include procedures for receiving, investigating, identifying, and resolving complaints concerning the health, safety, welfare, and rights of residents. History. — s. 28, ch. 75-233; s. 3, ch. 76-168; s. 9, ch. 77-401; s. 1, ch. 77-457; ss. 7, 12, ch. 80-198; ss. 4, 6, ch. 81-184; ss. 2, 3, ch. 81-318; s. 4, ch. 82-46; ss. 36, 79, 83, ch. 83-181; ss. 16, 29, 30, ch. 93-177; s. 49, ch. 93-217; s. 126, ch. 2000-349; s. 46, ch. 2000-367; s. 24, ch. 2002-223; s. 9, ch. 2006-121; s. 8, ch. 2015-31. Note. — Former s. 400.311. 400.0073 State and local ombudsman council investigations. (1) A representative of the State Long-Term Care Ombudsman Program shall identify and investigate, within a reasonable time after a complaint is made, by or on behalf of a resident 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. (2) Subsequent to an appeal from a local council, the state council may investigate any complaint received by the local council involving a long-term care facility or a resident. (3) If a representative of the State Long-Term Care Ombudsman Program is not allowed to enter a long-term care facility, the administrator of the facility shall be considered to have interfered with a representative of the State Long-Term Care Ombudsman Program in the performance of official duties as described in s. 400.0083(1) and to have violated this part. The representative of the State Long-Term Care Ombudsman Program shall report a facility’s refusal to allow entry to the state ombudsman or his or her designee, who shall report the incident to the agency, and the agency shall record the report and take it into consideration when determining actions allowable under s. 400.102, s. 400.121, s. 429.14, s. 429.19, s. 429.69, or s. 429.71. History. — s. 29, ch. 75-233; s. 3, ch. 76-168; s. 10, ch. 77-401; s. 1, ch. 77-457; ss. 8, 12, ch. 80-198; ss. 4, 6, ch. 81-184; ss. 2, 3, ch. 81-318; s. 4, ch. 82-46; ss. 16, 19, ch. 82-148; ss. 37, 79, 83, ch. 83-181; ss. 7, 29, 30, ch. 93-177; s. 49, ch. 93-217; s. 761, ch. 95-148; s. 127, ch. 2000-349; s. 47, ch. 2000-367; s. 1, ch. 2001-45; s. 10, ch. 2006-121; s. 22, ch. 2006-197; s. 76, ch. 2007-5; s. 53, ch. 2007-230; s. 9, ch. 2015-31. Note. — Former s. 400.314. 400.0074 Local ombudsman council onsite administrative assessments. (1) A representative of the State Long-Term Care Ombudsman Program shall conduct, at least annually, an onsite administrative assessment of each nursing home, assisted living facility, and adult family-care home. This administrative assessment must be comprehensive in nature, must be resident-centered, and must focus on factors affecting residents’ rights, health, safety, and welfare. Each local council is encouraged to conduct a similar onsite administrative assessment of each additional long-term care facility within its jurisdiction. (2) An onsite administrative assessment conducted by a local council shall be subject to the following conditions: (a) To the extent possible and reasonable, the administrative assessment may not duplicate the efforts of surveys and inspections of long-term care facilities conducted by state agencies. (b) An administrative assessment shall be conducted at a time and for a duration necessary to produce the information required to complete the assessment. (c) Advance notice of an administrative assessment may not be provided to a long-term care facility, except that notice of followup assessments on specific problems may be provided. (d) A representative of the State Long-Term Care Ombudsman Program present for the administrative assessment must identify himself or herself to the administrator of the facility or his or her designee. (e) An administrative assessment may not unreasonably interfere with the programs and activities of residents. (f) A representative of the State Long-Term Care Ombudsman Program may not enter a single-family residential unit within a long-term care facility during an administrative assessment without the permission of the resident or the representative of the resident. (g) An administrative assessment must be conducted in a manner that does not impose an unreasonable burden on a long-term care facility. (h) Upon completion of an administrative assessment, the local council shall conduct an exit consultation with the facility administrator or a designee representing the facility to discuss issues and concerns in areas affecting residents’ rights, health, safety, and welfare and, if needed, make recommendations for improvement. (3) Regardless of jurisdiction, the state ombudsman may authorize a state or local council member to assist another local council to perform the administrative assessments described in this section. (4) An onsite administrative assessment may not be accomplished by forcible entry. However, if a representative of the State Long-Term Care Ombudsman Program is not allowed to enter a long-term care facility, the administrator of the facility shall be considered to have interfered with a representative of the State Long-Term Care Ombudsman Program in the performance of official duties as described in s. 400.0083(1) and to have committed a violation of this part. The representative of the State Long-Term Care Ombudsman Program shall report the refusal by a facility to allow entry to the state ombudsman or his or her designee, who shall report the incident to the agency, and the agency shall record the report and take it into consideration when determining actions allowable under s. 400.102, s. 400.121, s. 429.14, s. 429.19, s. 429.69, or s. 429.71. (5) The department, in consultation with the state ombudsman, may adopt rules implementing procedures for conducting onsite administrative assessments of long-term care facilities. History. — s. 11, ch. 2006-121; s. 77, ch. 2007-5; s. 54, ch. 2007-230; s. 10, ch. 2015-31; s. 2, ch. 2015-126. 400.0075 Complaint notification and resolution procedures. (1)(a) Any complaint verified by a representative of the State Long-Term Care Ombudsman Program as a result of an investigation which is determined by the local council to require remedial action may be identified and brought to the attention of the long-term care facility administrator subject to the confidentiality provisions of s. 400.0077. Upon receipt of the information, the administrator, with the concurrence of the representative of the State Long-Term Care Ombudsman Program, shall establish target dates for taking appropriate remedial action. If, by the target date, the remedial action is not completed or forthcoming, the representative of the State Long-Term Care Ombudsman Program may extend the target date if there is reason to believe such action would facilitate the resolution of the complaint, or the representative of the State Long-Term Care Ombudsman Program may refer the complaint to the district manager, who may refer the complaint to the state council. (b) If the representative of the State Long-Term Care Ombudsman Program determines that the health, safety, welfare, or rights of a resident are in imminent danger, the representative of the State Long-Term Care Ombudsman Program must immediately notify the district manager and local council chair. The district manager or local council chair, after verifying that such imminent danger exists, must notify the appropriate state agencies, including law enforcement agencies, the state ombudsman, and the legal advocate to ensure the protection of the resident. (c) If the state ombudsman or legal advocate has reason to believe that the long-term care facility or an employee of the facility has committed a criminal act, the state ombudsman or legal advocate shall provide the local law enforcement agency with the relevant information to initiate an investigation of the case. (2) Upon referral from a district or local council, the state ombudsman or his or her designee shall assume the responsibility for the disposition of the complaint. If a long-term care facility fails to take action to resolve or remedy the complaint, the state ombudsman may: (a) In accordance with s. 400.0077, publicize the complaint, the recommendations of the local or state council, and the response of the long-term care facility. (b) Recommend to the department and the agency a series of facility reviews pursuant to s. 400.19, s. 429.34, or s. 429.67 to ensure correction and nonrecurrence of the conditions that gave rise to the complaint against the long-term care facility. (c) Recommend to the department and the agency that the long-term care facility no longer receive payments under any state assistance program, including Medicaid. (d) Recommend to the department and the agency that procedures be initiated for action against the long-term care facility’s license in accordance with chapter 120. (3) If the state ombudsman, after consultation with the legal advocate, has reason to believe that the long-term care facility or an employee of the facility has committed a criminal act, the state ombudsman shall provide the local law enforcement agency with the relevant information to initiate an investigation of the case. History. — s. 30, ch. 75-233; s. 3, ch. 76-168; s. 244, ch. 77-147; s. 11, ch. 77-401; s. 1, ch. 77-457; s. 19, ch. 78-95; ss. 14, 18, ch. 80-186; ss. 9, 12, ch. 80-198; ss. 4, 6, ch. 81-184; ss. 2, 3, ch. 81-318; s. 4, ch. 82-46; ss. 17, 19, ch. 82-148; ss. 38, 79, 83, ch. 83-181; s. 17, ch. 90-347; ss. 8, 29, 30, ch. 93-177; s. 49, ch. 93-217; s. 762, ch. 95-148; s. 42, ch. 95-196; s. 115, ch. 99-8; s. 128, ch. 2000-349; s. 48, ch. 2000-367; s. 44, ch. 2004-5; s. 12, ch. 2006-121; s. 78, ch. 2007-5; s. 11, ch. 2015-31. Note. — Former s. 400.317. 400.0077 Confidentiality. (1) The following are confidential and exempt from the provisions of s. 119.07(1): (a) Resident records held by the ombudsman or by the state or a local ombudsman council. (b) The names or identities of the complainants or residents involved in a complaint, including any problem identified by an ombudsman council as a result of an investigation, unless: 1. The complainant or resident, or the legal representative of the complainant or resident, consents to the disclosure in writing; 2. The complainant or resident consents orally and the consent is documented contemporaneously in writing by the ombudsman council requesting such consent; or 3. The disclosure is required by court order. (c) Any other information about a complaint, including any problem identified by an ombudsman council as a result of an investigation, unless an ombudsman council determines that the information does not meet any of the criteria specified in 1 s. 119.14(4)(b); or unless the information is to collect data for submission to those entities specified in s. 712(c) of the federal Older Americans Act for the purpose of identifying and resolving significant problems. (2) That portion of an ombudsman council meeting in which an ombudsman council discusses information that is confidential and exempt from the provisions of s. 119.07(1) is closed to the public and exempt from the provisions of s. 286.011. (3) All other matters before the council shall be open to the public and subject to chapter 119 and s. 286.011. (4) Members of any state or local ombudsman council shall not be required to testify in any court with respect to matters held to be confidential under s. 429.14 except as may be necessary to enforce the provisions of this act. (5) Subject to the provisions of this section, the Office of State Long-Term Care Ombudsman shall adopt rules for the disclosure by the ombudsman or local ombudsman councils of files maintained by the program. (6) This section does not limit the subpoena power of the Attorney General pursuant to s. 409.920(10)(b). History. — ss. 31, 32, ch. 75-233; s. 3, ch. 76-168; s. 12, ch. 77-401; s. 1, ch. 77-457; ss. 10, 12, ch. 80-198; ss. 4, 6, ch. 81-184; ss. 2, 3, ch. 81-318; s. 4, ch. 82-46; ss. 39, 79, 83, ch. 83-181; s. 18, ch. 90-347; ss. 9, 29, 30, ch. 93-177; s. 49, ch. 93-217; s. 225, ch. 96-406; s. 3, ch. 2000-163; s. 129, ch. 2000-349; s. 49, ch. 2000-367; s. 18, ch. 2004-344; s. 23, ch. 2006-197; s. 33, ch. 2009-223. 1 Note. — Repealed by s. 1, ch. 95-217. Note. — Former s. 400.321. 400.0078 Citizen access to State Long-Term Care Ombudsman Program services. (1) The office shall establish a statewide toll-free telephone number and e-mail address for receiving complaints concerning matters adversely affecting the health, safety, welfare, or rights of residents. (2) Upon admission to a long-term care facility, each resident or representative of a resident must receive information regarding: (a) The purpose of the State Long-Term Care Ombudsman Program. (b) The statewide toll-free telephone number and e-mail address for receiving complaints. (c) Information that retaliatory action cannot be taken against a resident for presenting grievances or for exercising any other resident right. (d) Other relevant information regarding how to contact representatives of the State Long-Term Care Ombudsman Program. Each resident or his or her representative must be furnished additional copies of this information upon request. History. — s. 4, ch. 99-394; s. 13, ch. 2006-121; s. 12, ch. 2015-31; s. 3, ch. 2015-126. 400.0079 Immunity. (1) Any person making a complaint pursuant to this part who does so in good faith shall be immune from any liability, civil or criminal, that otherwise might be incurred or imposed as a direct or indirect result of making the complaint. (2) Representatives of the State Long-Term Care Ombudsman Program are immune from any liability, civil or criminal, that otherwise might be incurred or imposed during the good faith performance of official duties. History. — s. 33, ch. 75-233; s. 3, ch. 76-168; s. 1, ch. 77-457; ss. 2, 3, ch. 81-318; ss. 79, 83, ch. 83-181; ss. 10, 29, 30, ch. 93-177; s. 49, ch. 93-217; s. 130, ch. 2000-349; s. 50, ch. 2000-367; s. 14, ch. 2006-121; s. 13, ch. 2015-31. Note. — Former s. 400.324. 400.0081 Access to facilities, residents, and records. (1) A long-term care facility shall provide representatives of the State Long-Term Care Ombudsman Program with access to: (a) The long-term care facility and its residents. (b) Where appropriate, medical and social records of a resident for review if: 1. The representative of the State Long-Term Care Ombudsman Program has the permission of the resident or the legal representative of the resident; or 2. The resident is unable to consent to the review and does not have a legal representative. (c) Medical and social records of a resident as necessary to investigate a complaint, if: 1. A legal representative or guardian of the resident refuses to give permission; 2. The representative of the State Long-Term Care Ombudsman Program has reasonable cause to believe that the legal representative or guardian is not acting in the best interests of the resident; and 3. The representative of the State Long-Term Care Ombudsman Program obtains the approval of the state ombudsman. (d) Administrative records, policies, and documents to which residents or the general public have access. (e) Upon request, copies of all licensing and certification records maintained by the state with respect to a long-term care facility. (2) The department, in consultation with the state ombudsman, may adopt rules to establish procedures to ensure access to facilities, residents, and records as described in this section. History. — ss. 11, 30, ch. 93-177; s. 131, ch. 2000-349; s. 51, ch. 2000-367; s. 15, ch. 2006-121; s. 14, ch. 2015-31; s. 46, ch. 2016-10. 400.0083 Interference; retaliation; penalties. (1) A person, long-term care facility, or other entity may not willfully interfere with a representative of the State Long-Term Care Ombudsman Program in the performance of official duties. (2) A person, long-term care facility, or other entity may not knowingly or willfully take action or retaliate against any resident, employee, or other person for filing a complaint with, providing information to, or otherwise cooperating with any representative of the State Long-Term Care Ombudsman Program. (3) A person, long-term care facility, or other entity that violates this section: (a) Is liable for damages and equitable relief as determined by law. (b) Commits a misdemeanor of the second degree, punishable as provided in s. 775.083. History. — ss. 12, 30, ch. 93-177; s. 132, ch. 2000-349; s. 52, ch. 2000-367; s. 16, ch. 2006-121; s. 15, ch. 2015-31. 400.0087 Department oversight; funding. (1) The department shall meet the costs associated with the State Long-Term Care Ombudsman Program from funds appropriated to it. (a) The department shall include the costs associated with support of the State Long-Term Care Ombudsman Program when developing its budget requests for consideration by the Governor and submittal to the Legislature. (b) The department may divert from the federal ombudsman appropriation an amount equal to the department’s administrative cost ratio to cover the costs associated with administering the State Long-Term Care Ombudsman Program. The remaining allotment from the Older Americans Act program shall be expended on direct ombudsman activities. (2) The department shall monitor the State Long-Term Care Ombudsman Program, the state council, and the local councils to ensure that each is carrying out the duties delegated to it by state and federal law. (3) The department is responsible for ensuring that the State Long-Term Care Ombudsman Program: (a) Has the objectivity and independence required to qualify it for funding under the federal Older Americans Act. (b) Provides information to public and private agencies, legislators, and others. (c) Provides appropriate training to representatives of the State Long-Term Care Ombudsman Program. (d) Coordinates ombudsman services with Disability Rights Florida, the Advocacy Center for Persons with Disabilities and with providers of legal services to residents of long-term care facilities in compliance with state and federal laws. (4) The department shall also: (a) Receive and disburse state and federal funds for purposes that the state ombudsman has formulated in accordance with the Older Americans Act. (b) Whenever necessary, act as liaison between agencies and branches of the federal and state governments and the State Long-Term Care Ombudsman Program. History. — ss. 13, 30, ch. 93-177; s. 43, ch. 95-196; s. 133, ch. 2000-349; s. 53, ch. 2000-367; s. 25, ch. 2002-223; s. 18, ch. 2006-121; s. 16, ch. 2015-31; s. 47, ch. 2016-10. 400.0089 Complaint data reports. The State Long-Term Care Ombudsman Program shall maintain a statewide uniform reporting system to collect and analyze data relating to complaints and conditions in long-term care facilities and to residents for the purpose of identifying and resolving complaints. Information pertaining to the number and types of complaints received by the State Long-Term Care Ombudsman Program shall be published quarterly and made readily available and shall include such information in the annual report required under s. 400.0065. History. — ss. 14, 30, ch. 93-177; s. 44, ch. 95-196; s. 116, ch. 99-8; s. 16, ch. 2000-263; s. 134, ch. 2000-349; s. 54, ch. 2000-367; s. 26, ch. 2002-223; s. 37, ch. 2003-1; s. 19, ch. 2006-121; s. 17, ch. 2015-31. 400.0091 Training. The state ombudsman shall ensure that appropriate training is provided to all representatives of the State Long-Term Care Ombudsman Program. (1) All representatives of the State Long-Term Care Ombudsman Program shall be given a minimum of 20 hours of training upon employment with the State Long-Term Care Ombudsman Program or appointment as an ombudsman. Ten hours of training in the form of continuing education is required annually thereafter. (2) The state ombudsman shall approve the curriculum for the initial and continuing education training, which must, at a minimum, address: (a) Resident confidentiality. (b) Guardianships and powers of attorney. (c) Medication administration. (d) Care and medication of residents with dementia and Alzheimer’s disease. (e) Accounting for residents’ funds. (f) Discharge rights and responsibilities. (g) Cultural sensitivity. (h) Any other topic related to residency in a long-term care facility. (3) An individual other than the state ombudsman may not hold himself or herself out as a representative of the State Long-Term Care Ombudsman Program or conduct any authorized program duty described in this part unless the individual has received the training required by this section and has been certified by the state ombudsman as qualified to carry out ombudsman activities on behalf of the office or the state or local councils. History. — ss. 15, 30, ch. 93-177; s. 135, ch. 2000-349; s. 55, ch. 2000-367; s. 32, ch. 2001-62; s. 27, ch. 2002-223; s. 20, ch. 2006-121; s. 18, ch. 2015-31. PART II NURSING HOMES 400.011 Purpose. 400.021 Definitions. 400.022 Residents’ rights. 400.0225 Consumer satisfaction surveys. 400.023 Civil enforcement. 400.0233 Presuit notice; investigation; notification of violation of resident’s rights or alleged negligence; claims evaluation procedure; informal discovery; review; settlement offer; mediation. 400.0234 Availability of facility records for investigation of resident’s rights violations and defenses; penalty. 400.0235 Certain provisions not applicable to actions under this part. 400.0236 Statute of limitations. 400.0237 Punitive damages; pleading; burden of proof. 400.0238 Punitive damages; limitation. 400.0239 Quality of Long-Term Care Facility Improvement Trust Fund. 400.024 Failure to satisfy a judgment or settlement agreement; required notification to claimants. 400.0255 Resident transfer or discharge; requirements and procedures; hearings. 400.051 Homes or institutions exempt from the provisions of this part. 400.062 License required; fee; disposition. 400.0625 Minimum standards for clinical laboratory test results and diagnostic X-ray results. 400.063 Resident protection. 400.071 Application for license. 400.0712 Application for inactive license. 400.102 Action by agency against licensee; grounds. 400.111 Disclosure of controlling interest. 400.118 Quality assurance; early warning system; monitoring; rapid response teams. 400.1183 Resident grievance procedures. 400.119 Confidentiality of records and meetings of risk management and quality assurance committees. 400.121 Denial, suspension, revocation of license; administrative fines; procedure; order to increase staffing. 400.126 Receivership proceedings. 400.141 Administration and management of nursing home facilities. 400.1413 Volunteers in nursing homes. 400.1415 Patient records; penalties for alteration. 400.142 Emergency medication kits; orders not to resuscitate. 400.143 Institutional formularies established by nursing home facilities. 400.145 Copies of records of care and treatment of resident. 400.147 Internal risk management and quality assurance program. 400.148 Medicaid “Up-or-Out” Quality of Care Contract Management Program. 400.151 Contracts. 400.162 Property and personal affairs of residents. 400.165 Itemized resident billing, form and content prescribed by the agency. 400.17 Bribes, kickbacks, certain solicitations prohibited. 400.172 Respite care provided in nursing home facilities. 400.175 Patients with Alzheimer’s disease or other related disorders; certain disclosures. 400.1755 Care for persons with Alzheimer’s disease or related disorders; staff training requirements. 400.176 Rebates prohibited; penalties. 400.179 Liability for Medicaid underpayments and overpayments. 400.18 Closing of nursing facility. 400.19 Right of entry and inspection. 400.191 Availability, distribution, and posting of reports and records. 400.20 Licensed nursing home administrator required. 400.211 Persons employed as nursing assistants; certification requirement; qualified medication aide designation and requirements. 400.215 Personnel screening requirement. 400.23 Rules; evaluation and deficiencies; licensure status. 400.232 Review and approval of plans; fees and costs. 400.235 Nursing home quality and licensure status; Gold Seal Program. 400.241 Prohibited acts; penalties for violations. 400.25 Educational program authorized. 400.275 Agency duties. 400.33 Legislative intent; community-based care for the elderly. 400.332 Funds received not revenues for purpose of Medicaid program. 400.334 Activity relating to unions by nursing home employees. 400.011 Purpose. The purpose of this part is to provide for the development, establishment, and enforcement of basic standards for: (1) The health, care, and treatment of persons in nursing homes and related health care facilities; and (2) The maintenance and operation of such institutions that will ensure safe, adequate, and appropriate care, treatment, and health of persons in such facilities. History. — s. 1, ch. 69-309; s. 1, ch. 70-361; s. 3, ch. 76-168; s. 1, ch. 77-457; ss. 2, 3, ch. 81-318; ss. 3, 79, 83, ch. 83-181; s. 30, ch. 93-177; ss. 1, 49, ch. 93-217; s. 28, ch. 2000-141; s. 34, ch. 2001-186; s. 3, ch. 2001-372. 400.021 Definitions. When used in this part, unless the context otherwise requires, the term: (1) “Administrator” means the licensed individual who has the general administrative charge of a facility. (2) “Agency” means the Agency for Health Care Administration, which is the licensing agency under this part. (3) “Bed reservation policy” means the number of consecutive days and the number of days per year that a resident may leave the nursing home facility for overnight therapeutic visits with family or friends or for hospitalization for an acute condition before the licensee may discharge the resident due to his or her absence from the facility. (4) “Board” means the Board of Nursing Home Administrators. (5) “Custodial service” means care for a person which entails observation of diet and sleeping habits and maintenance of a watchfulness over the general health, safety, and well-being of the aged or infirm. (6) “Department” means the Department of Children and Families. (7) “Facility” means any institution, building, residence, private home, or other place, whether operated for profit or not, including a place operated by a county or municipality, which undertakes through its ownership or management to provide for a period exceeding 24-hour nursing care, personal care, or custodial care for three or more persons not related to the owner or manager by blood or marriage, who by reason of illness, physical infirmity, or advanced age require such services, but does not include any place providing care and treatment primarily for the acutely ill. A facility offering services for fewer than three persons is within the meaning of this definition if it holds itself out to the public to be an establishment which regularly provides such services. (8) “Geriatric outpatient clinic” means a site for providing outpatient health care to persons 60 years of age or older, which is staffed by a registered nurse, a physician assistant, or a licensed practical nurse under the direct supervision of a registered nurse, advanced practice registered nurse, physician assistant, or physician. (9) “Geriatric patient” means any patient who is 60 years of age or older. (10) “Local ombudsman council” means a local long-term care ombudsman council established pursuant to s. 400.0069, located within the Older Americans Act planning and service areas. (11) “Nursing home bed” means an accommodation which is ready for immediate occupancy, or is capable of being made ready for occupancy within 48 hours, excluding provision of staffing; and which conforms to minimum space requirements, including the availability of appropriate equipment and furnishings within the 48 hours, as specified by rule of the agency, for the provision of services specified in this part to a single resident. (12) “Nursing home facility” means any facility which provides nursing services as defined in part I of chapter 464 and which is licensed according to this part. (13) “Nursing service” means such services or acts as may be rendered, directly or indirectly, to and in behalf of a person by individuals as defined in s. 464.003. (14) “Office” has the same meaning as in s. 400.0060. (15) “Planning and service area” means the geographic area in which the Older Americans Act programs are administered and services are delivered by the Department of Elderly Affairs. (16) “Representative of the State Long-Term Care Ombudsman Program” has the same meaning as in s. 400.0060. (17) “Respite care” means admission to a nursing home for the purpose of providing a short period of rest or relief or emergency alternative care for the primary caregiver of an individual receiving care at home who, without home-based care, would otherwise require institutional care. (18) “Resident care plan” means a written comprehensive person-centered care plan developed in accordance with 42 C.F.R. s. 483.21(b) by an interdisciplinary team within 7 days after completion of a comprehensive assessment and with participation by the resident or the resident’s designee. The resident care plan must be reviewed and revised after each comprehensive assessment which may be a new admission assessment, an annual assessment, or an assessment after a significant change in status and after a quarterly review assessment. A resident care plan includes measurable objectives and timeframes to meet the resident’s medical, nursing, mental, and psychosocial needs and preferences and must describe the services to be furnished to attain or maintain the resident’s highest practicable physical, mental, and psychosocial well-being. (19) “Resident designee” means a person, other than the owner, administrator, or employee of the facility, designated in writing by a resident or a resident’s guardian, if the resident is adjudicated incompetent, to be the resident’s representative for a specific, limited purpose. (20) “State Long-Term Care Ombudsman Program” has the same meaning as in s. 400.0060. (21) “Therapeutic spa services” means bathing, nail, and hair care services and other similar services related to personal hygiene. History. — s. 2, ch. 69-309; ss. 19, 35, ch. 69-106; s. 2, ch. 70-361; s. 1, ch. 70-439; ss. 21, 25, ch. 75-233; s. 3, ch. 76-168; s. 234, ch. 77-147; s. 1, ch. 77-457; ss. 1, 18, ch. 80-186; ss. 1, 12, ch. 80-198; s. 249, ch. 81-259; ss. 2, 3, ch. 81-318; ss. 4, 79, 83, ch. 83-181; s. 1, ch. 90-330; ss. 20, 30, ch. 93-177; ss. 2, 49, ch. 93-217; s. 763, ch. 95-148; s. 117, ch. 99-8; s. 94, ch. 2000-318; s. 136, ch. 2000-349; s. 1, ch. 2000-350; s. 56, ch. 2000-367; s. 2, ch. 2001-45; s. 3, ch. 2004-298; s. 55, ch. 2007-230; s. 4, ch. 2012-160; s. 122, ch. 2014-19; s. 20, ch. 2015-31; s. 29, ch. 2018-106; s. 1, ch. 2022-61. 400.022 Residents’ rights. (1) All licensees of nursing home facilities shall adopt and make public a statement of the rights and responsibilities of the residents of such facilities and shall treat such residents in accordance with the provisions of that statement. The statement shall assure each resident the following: (a) The right to civil and religious liberties, including knowledge of available choices and the right to independent personal decision, which will not be infringed upon, and the right to encouragement and assistance from the staff of the facility in the fullest possible exercise of these rights. (b) The right to private and uncensored communication, including, but not limited to, receiving and sending unopened correspondence, access to a telephone, visiting with any person of the resident’s choice during visiting hours, and overnight visitation outside the facility with family and friends in accordance with facility policies, physician orders, and Title XVIII (Medicare) and Title XIX (Medicaid) of the Social Security Act regulations, without the resident’s losing his or her bed. Facility visiting hours shall be flexible, taking into consideration special circumstances such as, but not limited to, out-of-town visitors and working relatives or