| (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
consents to the investigation; or
(ii) in accordance with 45 CFR §1324.19(b)(2)(iii),
the resident is unable to consent and has no legally authorized representative;
and
(D) in accordance with the Ombudsman Policies and Procedures
Manual:
(i) seek the consent of the resident or legally authorized
representative to investigate the complaint; or
(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 consent and has no legally authorized representative.
(2) If the complainant is the resident and the certified
ombudsman has determined the complaint is appropriate for ombudsman
investigation and has obtained 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) 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;
(F) work with the resident to develop a plan of action
for resolution of the complaint;
(G) encourage the resident to participate in the process
to resolve the complaint; and
(H) 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) if the complaint relates to a regulatory violation,
inform the resident or the legally authorized representative of the
option to report the complaint to the appropriate regulatory or law
enforcement authority;
(H) work with the resident or legally authorized representative
to develop a plan of action for resolution of the complaint;
(I) encourage the resident or legally authorized representative
to participate in the process to resolve the complaint; and
(J) determine the resident’s or legally authorized
representative’s satisfaction with the outcome.
(4) If the complainant is not the resident and the
certified ombudsman has determined the complaint is appropriate for
ombudsman investigation and 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, regulation,
or rule applies to the complaint;
(B) determine how many residents are potentially affected
by the complaint;
(C) observe the environment of the resident and situations
in the LTC facility related to the complaint;
(D) interview relevant witnesses;
(E) review relevant records, if necessary, including
confidential records if consent or other authority is obtained in
accordance with the Ombudsman Policies and Procedures Manual; and
(F) determine whether the complaint is satisfactorily
resolved.
(5) If the resident or legally authorized representative
declines to consent to have the complaint investigated, the certified
ombudsman must:
(A) not investigate the complaint;
(B) inform the complainant that the complaint will
not be investigated because the resident or legally authorized representative
declined to consent; and
(C) advise the complainant of his or her options to
pursue resolution.
(6) If a certified ombudsman identifies a complaint
that affects a substantial number of residents in an LTC facility,
the certified ombudsman may investigate and work to resolve the complaint
without obtaining consent from each resident to investigate the complaint.
In investigating the complaint, a certified ombudsman may review confidential
records only if consent or other authority is obtained in accordance
with the Ombudsman Policies and Procedures Manual.
(7) A certified ombudsman must document the complaint
investigation in the ombudsman database in accordance with the Ombudsman
Policies and Procedures Manual.
(c) If a complaint is an allegation of abuse, neglect,
or exploitation of a resident, a certified ombudsman:
(1) must not investigate whether abuse, neglect, or
exploitation of a resident has occurred;
(2) within one business day after receipt of the complaint,
inform the complainant of the appropriate investigative authority
to report the allegation; and
(3) comply with the Ombudsman Policies and Procedures
Manual.
(d) In accordance with 45 CFR §1324.11(e)(3)(iv),
a representative of the Office must not, except as provided in §1324.19(b)(5)
- (8), report allegations of abuse, neglect, or exploitation under
state law, including Texas Human Resources Code, Chapter 48, without
appropriate consent or court order.
(e) Confidential information described in §88.304(a)
of this subchapter (relating to Disclosure of Confidential Information;
Exclusion from Reporting Requirements Regarding Abuse, Neglect, or
Exploitation; and Provision of Records to the Office) may only be
disclosed in accordance with §88.304 of this subchapter.
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