| (a) A local ombudsman entity must:
(1) ensure that a person is allowed to make a complaint
as follows:
(A) in writing, including by email;
(B) in person; and
(C) by telephone;
(2) initiate a complaint if the local ombudsman entity
becomes aware of circumstances that may adversely affect the health,
safety, welfare, or rights of a resident;
(3) respond to the complainant within two business
days after receipt of the complaint, except as provided in subsection
(c)(2) of this section regarding a complaint that is an allegation
of abuse, neglect, or exploitation of a resident; and
(4) ensure that a certified ombudsman initiates an
investigation of a complaint as soon as practicable after receipt
of the complaint.
(b) A local ombudsman entity must ensure that a certified
ombudsman investigates complaints in accordance with this subsection.
(1) If a certified ombudsman receives a complaint,
the certified ombudsman must:
(A) document the nature of the complaint;
(B) determine:
(i) whether the complaint is appropriate for the certified
ombudsman to investigate;
(ii) if any attempts have been made to resolve the
complaint; and
(iii) the outcome sought by the complainant;
(C) if the complainant is not the resident, inform
the complainant that the complaint will be investigated only if:
(i) the resident or legally authorized representative
communicates informed consent to the investigation;
(ii) in accordance with 45 CFR §1324.19(b)(2)(iii),
the resident is unable to communicate informed consent and has no
legally authorized representative; or
(iii) in accordance with 45 CFR §1324.19(b)(7),
the resident is unable to communicate informed consent to investigate
the complaint, has a legally authorized representative, and:
(I) the complaint relates to an action, inaction, or
decision of the legally authorized representative that may adversely
affect the health, safety, welfare, or rights of the resident;
(II) the certified ombudsman does not have evidence
that the resident would object to the complaint being investigated;
(III) the certified ombudsman has reasonable cause
to believe that it is in the best interest of the resident to investigate
the complaint; and
(IV) the State Ombudsman approves the request of the
certified ombudsman to investigate the complaint; and
(D) in accordance with the Ombudsman Policies and
Procedures Manual:
(i) seek the informed consent of the resident or legally
authorized representative to investigate the complaint;
(ii) determine if authority exists to investigate the
complaint because, in accordance with 45 CFR §1324.19(b)(2)(iii),
the resident is unable to communicate informed consent and has no
legally authorized representative;
(iii) request approval from the State Ombudsman for
the certified ombudsman to investigate the complaint by making a referral
to the appropriate agency for investigation in accordance with 45
CFR §1324.19(b)(7), if:
(I) the resident has a legally authorized representative;
(II) based on the reasonable belief of the certified
ombudsman, the complaint relates to an action, inaction or decision
by the legally authorized representative that may adversely affect
the health, safety, welfare, or rights of the resident;
(III) the resident is unable to communicate informed
consent to investigate the complaint;
(IV) the certified ombudsman does not have evidence
that the resident would object to the complaint being investigated;
and
(V) the certified ombudsman has reasonable cause to
believe that it is in the best interest of the resident to investigate
the complaint; and
(iv) document one of the following in the ombudsman
database:
(I) whether a resident who is able to communicate informed
consent communicated informed consent to investigate the complaint;
(II) whether the legally authorized representative
communicated informed consent to investigate the complaint;
(III) whether the certified ombudsman has authority
to investigate the complaint without consent because the resident
is unable to communicate informed consent and does not have a legally
authorized representative; or
(IV) whether the State Ombudsman has given approval
to investigate the complaint in accordance with clause (iii) of this
subparagraph.
(2) If the complainant is the resident and the certified
ombudsman has determined the complaint is appropriate for ombudsman
investigation and has obtained informed consent to investigate the
complaint or has authority to investigate the complaint in accordance
with 45 CFR §1324.19(b)(2)(iii), the certified ombudsman must:
(A) determine what, if any, federal or state law or
rule applies to the complaint;
(B) observe the environment of the resident and situations
in the LTC facility related to the complaint;
(C) interview relevant witnesses;
(D) review relevant records, if necessary, including
confidential information if consent or other authority is obtained
in accordance with the Ombudsman Policies and Procedures Manual;
(E) determine if disclosure of confidential information
is necessary to effectively investigate the complaint and if such
disclosure is necessary:
(i) identify the specific confidential information
that needs to be disclosed;
(ii) seek informed consent from the resident to disclose
the confidential information; and
(iii) if consent is given, only disclose the specific
information for which consent was obtained; or
(iv) if consent to disclose the confidential information
is not given
(I) explain to the resident or LAR that without disclosing
the confidential information, the effectiveness of the investigation
may be limited; and
(II) attempt to investigate the complaint without disclosing
the confidential information;
(v) document in the ombudsman database whether the
resident consented to the disclosure of confidential information.
(F) if the complaint relates to a regulatory violation,
inform the resident of the option to report the complaint to the appropriate
regulatory or law enforcement authority;
(G) work with the resident to develop a plan of action
for resolution of the complaint;
(H) encourage the resident to participate in the process
to resolve the complaint; and
(I) determine the resident's satisfaction with the
outcome of the investigation.
(3) If the complainant is not the resident and the
certified ombudsman has determined the complaint is appropriate for
ombudsman investigation and has obtained consent to investigate the
complaint, the certified ombudsman must:
(A) communicate with the resident about the complaint
and obtain the resident's perspective about the complaint, if the
resident is able to communicate;
(B) determine what, if any, federal or state law or
rule applies to the complaint;
(C) inform the resident or legally authorized representative
of the residents' rights and other law related to the complaint;
(D) observe the environment of the resident and situations
in the LTC facility related to the complaint;
(E) interview relevant witnesses;
(F) review relevant records, if necessary, including
confidential records if consent or other authority is obtained in
accordance with the Ombudsman Policies and Procedures Manual;
(G) determine if disclosure of confidential information
is necessary to effectively investigate the complaint and if such
disclosure is necessary:
(i) identify the specific confidential information
that needs to be disclosed;
(ii) seek informed consent from the resident or LAR
to disclose the confidential information; and
(iii) if informed consent is given, only disclosing
the specific information for which consent was obtained; or
(iv) if consent to disclose the confidential information
is not given
(I) explain to the resident or LAR that without disclosing
the confidential information, the effectiveness of the investigation
may be limited; and
Cont'd... |
