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Lake Cumberland Area Agency on Aging & Independent Living Policies and Procedure Manual

Section XIII Long Term Care Ombudsman Program Page 1

SECTION XIII

LONG TERM CARE OMBUDSMAN PROGRAM

INTRODUCTION

Reference: OAA.§ 712 (U.S.C. 3058g)

The Long-Term Care Ombudsman Program (LTCOP) is a resident-centered advocacy program. The resident of or applicant to a long-term care facility is the client, regardless of the source of the complaint or request for service. The long-term care ombudsman will make every reasonable effort to assist, represent, and intervene on behalf of the resident.

The LTCOP protects and improves the quality of care and quality of life for residents of long-term care facilities through advocacy for and on behalf of residents and through the promotion of community involvement in long-term care facilities.

The Older Americans Act required all state agencies on aging to establish an ombudsman program that would carry out the following activities:

Investigate and resolve long-term care facility residents’ complaints;

Promote the development of citizens’ organizations and train volunteers;

Identify significant problems by establishing a statewide reporting system for complaints, and work to resolve these problems by bringing them to the attention of appropriate public agencies;

Monitor the development and implementation of federal, state, and local long-term care laws and policies;

Gain access to long-term care facilities and to residents’ records; and

Protect the confidentiality of residents’ records, complainants’ identities, and ombudsman files.

PURPOSESTATEMENT

The Long-Term Care Ombudsman Program ensures good quality of life for residents of long term care facilities. The Program strives to empower and educate residents, families and raise public awareness for getting quality care in long term care facilities.

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DEFINITIONS

1) Access - the right to enter a long term care facility, meet with the residents and review the records of a resident.

2) Administrator - any person charged with the general administration or supervision of a long term care facility without regard to whether the person has an ownership interest in the facility or to whether the person's functions and duties are shared with one (1) or more other persons.

3) Certification - the official notification by the Kentucky long-term care ombudsman that local long term care ombudsman individual staff are qualified and acceptable to function in that capacity.

4) Complaint - an allegation filed by residents or on behalf of residents relating to the health, safety, welfare and rights of a resident.

5) Complaint resolution - either corrective action taken in regard to an allegation or a determination as to the validity of the allegation.

6) Complaint verification - a determination through investigative means that allegations relating to the health, safety, welfare and rights of a patient are valid.

7) Designation - formal notification by the long term care ombudsman that a district program meets requirements, and shall be considered a subdivision of the state office.

8) District ombudsman - the individual certified by the Kentucky long-term care ombudsman to implement the ombudsman provisions of the approved area agency on aging plan.

9) Evaluation - periodic analysis and review conducted by the long-term care ombudsman of district, regional and state ombudsman programs, including quality assurance and outcome measures pertaining to individual and programmatic performance.

10) Investigation - the formal response by a long term care ombudsman to complaints of issues involving the health, safety, welfare and rights of a resident.

11) Kentucky long term care ombudsman - the individual charged with the administration of the Kentucky Long Term Care Ombudsman Program under the provisions of the Older Americans Act of 1965, as amended.

12) Monitoring - periodic review conducted by the Department of Aging and Independent Living (DAIL) and the Area Agency on Aging and Independent Living (AAAIL) measuring ombudsman program's adherence to approved plans, including analysis of non-client specific data relating to program performance.

13) Primary client group - residents of long term care facilities and those persons making application for admission to long term care facilities and their families.

14) Referral - the appropriate channeling of information so as to affect a desired outcome of a complaint.

15) Regional long term care ombudsman - ombudsmen who operate directly from the Kentucky Long Term Care

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Ombudsman Program and whose responsibilities include coordination of a multi-area development district area.

16) Unduplicated client - counting each individual served by the ombudsman program one (1) time within each fiscal year.

17) Unit of service – A unit of service is one-half (1/2) hour of staff time, paid or volunteer, provided to or on behalf of a client or a group of clients.

18) Volunteer ombudsman - a non-salaried individual serving within a district program to assist a district ombudsman.

Lake Cumberland Area Agency on Aging & Independent Living Policies and Procedure Manual

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PROGRAMSTRUCTURE

References OAA.§ 712 (a)(1).

Department for Aging and Independent Living:

The Department for Aging and Independent Living (DAIL) of the Cabinet for Health and Family Services shall establish and operate, directly or by contract/memorandum of understanding, the State Long-Term Care Ombudsman Program (SLTCOP).

State Ombudsman Role:

The State Long-Term Care Ombudsman (SLTCO) shall assure that all residents of long-term care facilities in the State have access to the services of the Kentucky Long-Term Care Ombudsman Program (LTCOP) and that each area development district in the State has a designated LTCOP.

The District LTCOP in the Lake Cumberland Area Development District is operated through a contract with the Department on Aging and Independent Living directly by the Area Agency on Aging and Independent Living.

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CERTIFICATION OF LONG-TERM CAREOMBUDSMAN BY THE STATE OMBUDSMAN

References OAA § 712 (a) (5).

Policy:

The State Ombudsman certifies individuals as ombudsman to represent and carry out the responsibilities of the Office of the State Long-Term Care Ombudsman.

Procedures:

Criteria for Certification as an Ombudsman:

To be designated as a LTCO, an individual must:

(1) have demonstrated capability to carry out the responsibilities of a LTCO;

(2) be free of un-remedied conflicts of interest;

(3) meet the minimum qualifications for the applicable LTCO position;

(4) satisfactorily complete and maintain the applicable certification training requirements as specified in 910 KAR 1:210 Section 8For District LTCO and staff, the certification training requirements shall be completed within two (2) months after attending the classroom training provided by the STLCO.

(5) Be awarded a certificate, signed by the SLTCO;

(6) satisfactorily fulfill LTCO responsibilities; and

(7) receive notice from the SLTCO of his or her renewed certification every two (2) years

(8) In order to continue to carry out his/her duties, each certified ombudsman must be re-certified every two years by the SLTCO "as continuing to meet the Programs standards as a certified ombudsman." Certification and re-certification records are maintained by the SLTCO. Upon re-certification, the SLTCO issues a new certification certificate.

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MINIMUMQUALIFICATIONS FOR DISTRICT LONG-TERM CAREOMBUDSMAN

Policy:

The District Long Term Care Ombudsman shall meet the experience and educational requirements set forth by the Department of Aging and Independent Living

Procedures:

(1) In order to qualify as a District LTCO, an individual must have:

(a) an undergraduate degree from an accredited four-year college or university; or

(b) equivalent years of experience in assessing and dealing with long-term care needs of the elderly, substituted at the discretion of the SLTCO

Requests for Substitutions or Variances:

Requests for substitutions or variances related to minimum requirements must be made in writing and approved prior to the hiring or promotion of the employee in question.

Notification of Certification:

The SLTCO shall send written notification of an individual’s certification as a LTCO to the being certified, once the District Ombudsman mails a copy of the individual’s certification exam, date of certification and address. The SLTCO notifies the Regional Ombudsman of completion who inputs the certified individual into the ombudsman reporting system. The Regional Ombudsman notifies the District Ombudsman and the state office upon completion via email.

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MINIMUMQUALIFICATIONS FOR VOLUNTEERCERTIFIEDOMBUDSMAN:

Policy:

The Volunteer Certified Ombudsman shall meet the experience and educational requirements set forth by the Department of Aging and Independent Living

(1) In order to qualify for a LTCO volunteer position, an individual must have:

(a) completed two years of undergraduate education; or

(b) equivalent years of experience in assessing and dealing with long-term care needs of the elderly, substituted at the discretion of the District LTCO

Notification of Certification:

The SLTCO shall send written notification of an individual’s certification as a LTCO to the being certified, once the District Ombudsman mails a copy of the individual’s certification exam, date of certification and address. The SLTCO notifies the Regional Ombudsman of completion who inputs the certified individual into the ombudsman reporting system. The Regional Ombudsman notifies the District Ombudsman and the state office upon completion via email.

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RESPONSIBILITIES OF THE KENTUCKY LONG TERM CAREOMBUDSMAN PROGRAM

Policy: The Kentucky Long Term Care Ombudsman Program shall be administered by a full time ombudsman who shall be assigned to the Cabinet for Health and Family Services, Department for Aging and Independent Living (DAIL). Responsibilities of the Kentucky Long Term Care Ombudsman Program are outlined as follows:

Procedures:

A. Design, implementation and management of a statewide uniform system for receiving, investigating, resolving and reporting complaints on behalf of residents in long term care facilities and provide ongoing support to assist in the resolution of those complaints;

B. Investigation of complaints made by or on behalf of residents in long term care facilities from areas of the state temporarily without local ombudsman programs;

C. Development and implementation of policies and procedures for operation of the program, including those related to: 1. Receipt, investigation and resolution of complaints;

2. Protecting confidentiality of records and identity of complainants;

D. Establishing the right of public access to information regarding conditions in long term care facilities; and

E. Securing ombudsman access to long term care facilities, residents and residents' personal and medical records;

F. Development and management of a system for the operation of a statewide network of district programs, including: 1. Designation of district programs;

2. Development of district program operating procedures and reporting requirements; and

3. Establishment of a communications link between the state and district programs;

G. Establishment and maintenance of program official files and adoption of procedures to protect the confidentiality of those files;

H. Provision of information and education regarding program activities, the long term care system and the rights and concerns of residents and potential residents of long term care facilities;

I. Provision of assistance to citizen organizations, consumer groups and other interested community organizations to enhance the rights of residents in long term care facilities;

J. Promotion of the development of citizen organizations at the state and local level to participate in the program;

K. Use of publicity and outreach efforts directed at long-term care residents and families, network staff and the general public about the availability of the program to receive and investigate complaints;

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L. Review of complaint, case and issue data submitted by the district programs and analysis for trends, pattern and issue identification;

M. Annual report to the state licensing and certifying agency, the Governor, the federal Administration on Aging and the public, including: 1. Operation of the Kentucky Long Term Care Ombudsman Program;

2. Status of complaints and resolutions;

3. Conditions in long term care facilities;

4. Serious issues of widespread concern; and

5. Proposals for corrective action at relevant levels of government.

N. Preparation of progress reports and other required program reports;

O. Assistance to the area agencies on aging and independent Living and district programs to establish, develop and coordinate ombudsman activities;

P. Development of agreements and working relationships with relevant agencies to encourage their cooperation and assistance with the program at the state and local levels;

Q. Development, in cooperation with the legal services developer, of agreements and working relationships with legal services programs, particularly those funded by the Older Americans Act of 1965, as amended;

R. Development and provision of training on an ongoing basis for state and local program staff and volunteers;

S. Identification and development of additional funding and staffing resources for the program;

T. Support and promotion of the formation of resident councils in long term care facilities;

U. Development and provision of testimony and comment on proposed legislation, regulations, policies and rule changes affecting the institutionalized elderly;

V. Conduction of other activities related to the protection and dignity of residents of long term care facilities; and

W. Performance of other activities required by the Commissioner on Aging, federal Administration on Aging.

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RESPONSIBILITIES OF THE REGIONALOMBUDSMAN

Policy:

The regional ombudsman shall be a full-time staff member of and report directly to the Kentucky long term care ombudsman and shall have the following responsibilities:

Procedures:

A. Receive, investigate and resolve complaints;

B. Technical assistance and coordination of district programs within the geographic area assigned;

C. Assist in training of volunteers and local program personnel;

D. Provide information to public agencies regarding problems of long term care residents;

E. Abide by established procedures related to reporting and confidentiality;

F. Perform other job duties as required by the Kentucky long term care ombudsman.

Lake Cumberland Area Agency on Aging & Independent Living Policies and Procedure Manual

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LTCOPROVIDERAGENCY RESPONSIBILITIES

References OAA §§ 306: 712(a) (4), (5) (A).

Lake Cumberland Area Agency on Aging and Independent Living has been designated by the State Ombudsman to house the local long-term care ombudsman program .

Procedures:

Lake Cumberland Area Agency on Aging and Independent Living shall:

(1) Operate the District LTCOP in accordance with State and Federal laws, regulations and policies

(2) Assure that the District LTCOP performs the Program Components;

(3) Provide a full-time District Ombudsman, who: (a) meets the applicable minimum qualifications;

(b) must fulfill the duties outlined for the District Ombudsman

(4) Provide LTCO staff in addition to the District Ombudsman if necessary in order to: (a) fulfill the Program Components; and

(b) maintain or exceed the level of services provided in the area development district during the previous fiscal year;

(5) Assure that District LTCOP data is provided to the Office of the State Long-Term Care Ombudsman in the format required by DAIL in a timely manner;

(6) Prohibit inappropriate access to LTCO records located with the LTCO provider agency;

(7) Assure LTCO attendance at certification training and all mandatory statewide LTCO trainings;

(8) Provide professional development opportunities for LTCO staff;

(9) Provide staff support as needed for the operation of the LTCOP such as custodial, fiscal management, clerical, and telephone coverage;

(10) Arrange, in consultation with the SLTCO and the AAAIL, if applicable, for temporary provisions of LTCO services in the area development district when LTCO staff of the LTCO provider agency are unavailable or the staff position is vacant;

(11) Perform each of its responsibilities in administering the District LTCOP in accordance with all applicable federal and state law, regulations and policies

(12) Minutes from quarterly Advisory Council meetings are to be sent to the Regional Ombudsman.

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CONFLICTS OF INTEREST

References: OAA § 712 (a) (5) (C) (ii), (f); proposed rule 45 CFR § 1327.27

The Lake Cumberland Long-Term Care Ombudsman Program (LTCOP) and the individuals who carry out the duties of the Program must be free from conflicts of interest.

Procedures:

Definition of conflict of interest:

(1) A conflict of interest exists in the LTCOP when other interests intrude upon, interfere with, or threaten to negate the ability of the LTCOP to advocate without compromise on behalf of long-term care facility residents. Types of conflict of interest include:

(a) conflicts of loyalty – incentives, often related to financial or employment considerations, that shape ones judgment or behavior in ways that are contrary to the interest of residents;

(b) conflicts of commitment – goals or obligations that direct ones time and/or attention away from the interest of residents; and

(c) conflicts of control – limitations or restrictions that effectively foreclose ones’ ability to take actions to advocate for the interest of residents

Individual Ombudsman Conflicts:

Conflicts for a long-term care ombudsman (LTCO) include, but are not limited to, the following:

(1) employment of an individual or a member of his/her immediate family within the previous two years by a long- term care facility in the area development district or by the owner or operator of any long-term care facility in the area development district;

(2) participation in the management of a long-term care facility by an individual or a member of his/her immediate family;

(3) ownership or investment interest (represented by equity, debt, or other financial relationship) in an existing or proposed long-term care facility or long-term care service by an individual or a member of his/her immediate family;

(4) involvement in the licensing or certification of a long-term care facility or provision of a long-term care service by an individual or a member of his/her immediate family;

(5) receipt of remuneration (in cash or in kind) under a compensation arrangement with an owner or operator of a long-term care facility by an individual or a member of his/her immediate family;

(6) accepting any gifts or gratuities from a long-term care facility or resident or resident representative;

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(7) NOTE: A LTCO should adequately compensate a facility for food provided by the facility with the exception of sample portions of food tested as part of an investigative process.

(8) accepting money or any other consideration from anyone other than the LTCO provider agency or other entity designated by the Office of the State Long-Term Care Ombudsman (SLTCO) for the performance of an act in the regular course of a LTCO’s duties;

(9) provision of services with conflicting responsibilities while serving as a LTCO, such as adult protective services; discharge planning; serving as guardian, agent under power of attorney or other surrogate decision- maker for a long-term care resident in the area development district; pre-admission screening or case management for long-term care residents; LTCO notarizing documents for residents;

(10) serving residents of a facility in which an immediate family member resides; or

(11) participating in activities which:

(a) negatively impact on the ability of the LTCO to serve residents, or

(b) are likely to create a perception that the LTCO’s primary interest is other than as a resident advocate

Remedying Conflict:

General

(1) Where an actual or potential conflict of interest within the LTCOP has been identified, the SLTCO shall be notified. All agents of the Cabinet for Health and Family Services, AAAIL ,and LTCO’s have a duty to notify the SLTCO of any actual or potential conflict of interest of which they have knowledge.

(2) The SLTCO shall determine whether appropriate actions may be taken to sufficiently remedy the conflict. A conflict can be sufficiently remedied only where the existence of the conflict does not interfere with any duties of the LTCOP and where the conflict is not likely to alter the perception of the LTCOP as an independent advocate for residents.

Remedying individual ombudsman conflicts

Where individual conflicts have been identified, the following steps shall be taken where the conflict can be sufficiently remedied:

(1) Development of a written remedial plan (a) Where the individual is an applicant for a position as a District LTCO, a plan shall be developed before the individual is hired for the position.

(b) Where the individual is an applicant for certification as a LTCO volunteer, a plan shall be developed before the individual takes any actions on behalf of the LTCOP.

(c) Where the individual is a LTCO staff or volunteer, a plan shall be developed within thirty (30) calendar days of identification of the conflict to the SLTCO.

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(2) The remedial plan must identify the conflict and provide assurances which shall minimize to the greatest extent possible the negative impact of the conflict on the LTCOP. An example of such an assurance could include:

(a) Prohibiting the LTCO with a conflict of interest from serving the residents of the facility with which he/she has a conflict and arranging for another staff LTCO to serve those residents. Where appropriate, this arrangement could be time-limited.

(b) The remedial plan must be mutually agreed upon and signed by the LTCO provider agency, the LTCO or applicant with the conflict of interest, the LTCO Coordinator, if applicable, and the SLTCO.

(3) Volunteer Ombudsmen are not permitted to serve residents in facilities with which they have a conflict of interest. The SLTCO may delegate to an District Ombudsman the authority to:

(a) Consider the conflicts of interest of an individual who wishes to serve as a Certified Ombudsman or Friendly Visitor; and

(b) Determine whether conflicts exist which may impede the ability of the Certified Ombudsman or Friendly Visitor to fulfill the duties of that position or may alter the perception of the LTCOP as an independent advocate for residents; if such a conflict exists, the individual cannot serve as a Certified Ombudsman and/or Friendly Visitor

Procedures to Avoid Conflicts of Interest:

Persons seeking certification as ombudsman and friendly visitors

(1) The LTCO provider agency shall screen all persons seeking certification as LTCO staff or volunteers to identify any actual or potential individual conflicts of interest. Upon request by the SLTCO, the LTCO provider agency shall submit evidence of such screen to the SLTCO. The SLTCO may periodically request the LTCO provider agency to perform a conflict of interest screen of currently certified LTCO staff or volunteers.

(2) All persons seeking employment or certification as a LTCO staff or volunteer shall disclose to the LTCO provider agency all information relevant to past employment, membership, or interests that may affect, or could reasonably be expected to affect, that individual’s ability to carry out duties of a LTCO without conflicting interest.

Ombudsman involvement in activities

In determining whether LTCO participation in local groups, professional associations, or other activities constitutes a conflict of interest, the following questions shall be considered:

(1) Will the LTCO benefit from LTCO involvement in this activity?

(2) Will the LTCO be able to represent and assert the views of long-term care residents in this activity?

(3) Will the role of the LTCO in the activity benefit residents?

(4) How will participating in the activity affect the public perception and the resident’s perspective of the LTCOP?

(5) Will the LTCO be in a position of participating in a decision about a resident without the resident’s involvement

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or permission?

Failure to Identify or Remedy a Conflict of Interest:

(1) Failure on the part of a LTCO, LTCO provider agency, to identify and report to the SLTCO a known conflict of interest shall be sufficient grounds for refusal to designate or de-designate of a LTCOP and/or certify or de- certify of a LTCO.

(2) Existence of an unresolved conflict of interest shall be sufficient grounds for the de-designation of the LTCOP.

Failure on the part of a LTCO to identify and report to the SLTCO a known conflict of interest shall be sufficient grounds for the withdrawal of the certification of the LTCO.

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LONG TERM CAREOMBUDSMAN RECORDS

Reference OAA § 712 (d)

Policy:

Records of the Long-Term Care Ombudsman Program shall be confidential and shall be disclosed only in limited circumstances specifically provided by applicable law and these procedures.

Procedures:

Access to Long-Term Care Ombudsman Records:

All LTCOP client records are the property of the Office of the State Long-Term Care Ombudsman. The SLTCO or designee has access to all LTCOP records at all times for any purpose.

Ombudsman Access:

(1) Each LTCO has access to records of the District LTCOP for which he or she serves.

(2) For the purpose of providing temporary coverage for another District LTCOP, a LTCO may have access to the LTCO records of the other District LTCOP to the extent necessary to provide such coverage.

Department for Aging and Independent Living, Area Agencies on Aging:

(1) For the purposes of monitoring and supervising the LTCOP, DAIL, AAA and/or LTCO provider agency may review records, which reflect the activities of the LTCOP, including activity reports and complaint summary reports. DAIL, AAA, or LTCO provider agency may not review records that disclose or imply the identity of any resident or complainant.

(2) No state agency, AAA or LTCO provider agency may require a LTCO to disclose the identity of a complainant or resident except as specifically provided by these procedures.

Response to Requests for Long-Term Care Ombudsman Records:

(1) Where a request is made to any party for LTCO records, the SLTCO or designee shall be contacted. Records maintained by the LTCOP may not be released, disclosed, duplicated or removed to anyone who is not a LTCO staff or volunteer without the written permission of the SLTCO.

(2) The SLTCO or designee shall determine whether to disclose all or part of the records as follows:

(a) The SLTCO shall require that the request be made in writing and may require a copy of the request before determining the appropriate response. Where the request is made orally by a resident, complainant, or legal representative of the resident or complainant, the request must be documented immediately and filed as a LTCO record by the LTCO to who consent was

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communicated in order to meet this requirement.

(b) The SLTCO shall review the request with the relevant local LTCOP to determine whether the release of all or part of the records would be consistent with the wishes or interest of the relevant resident(s).

(c) The SLTCO shall determine whether any part of the records should be redacted (i.e. all identifying information removed). The identities of residents or complainants who have not provided express consent for the release of their names shall not be revealed. Such consent must be in writing or made orally documented immediately and filed as a LTCO record by the LTCO to which consent was communicated.

(d) The SLTCO or designee shall consider the source of the request as follows:

If the request for LTCO records is Made by: Then the SLTCO or designee shall:

A resident,

Release any records generated by the LTCO which are directly relevant to that resident provided that the identity of other residents or complainants is redacted.

A complainant or be the legal representative of a complainant or resident,

Release any records generated by the LTCO which are directly relevant to that resident or complainant provided that:

•The SLTCO has no reason to believe that the release shall be in conflict with the wishes or interest of the relevant resident, and

The identity of other residents or complainants is redacted.

Another agency or program

Release the records only if:

•The resident has provided consent (If the resident is unable to provide consent, the resident’s legal representative may provide consent.) and

•The identities of residents or complainants who have not provided consent for the release of their names are not revealed.

NOTE: where federal requirements conflict with Kentucky law, the federal requirements take precedence.

A judge

•Release any records directly responsive to a court order, and

Provide an explanation to the court regarding the importance of not revealing the identity of residents and complainants and/or requesting court to seal the LTCO records where the SLTCO determines that the release of records would be inconsistent with the wishes or interest of the resident.

Any other party

Release the records only if:

•The resident has provided consent (If the resident is unable to provide consent, the resident’s legal representative may provide consent.) and

The identities of residents or complainants who have not provided consent for the release of their names are not revealed.

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ACCESS TO THE KENTUCKYOMBUDSMAN DOCUMENTATION&INFORMATION SYSTEM

References 910 KAR 1:210

DAIL, through the Office of the State Long-Term Care Ombudsman will ensure the integrity and security of all data recorded in the Kentucky Data System in a manner that maintains confidentiality of all individuals. Information in the required data system may only be recorded and accessed by those persons in possession of their own user identification and password. Access shall be limited to information pertinent to the certification level of the user. Use of Kentucky data system is limited to SLTCO, SLTCO staff, District Ombudsman and Certified LTCO.

Procedures:

(1) The Lake Cumberland District Ombudsman shall by the 15th of each month, complete data entry into Ombudsmanager for the previous months cases and program activities. The Area Agency on Aging is responsible to ensure all data is entered and approved by the Commissioner of DAIL, accurately, and by the 15th of each month.

(2) At the discretion of the SLTCO, non-representative state staff may have access to Ombudsmanager to obtain statistical, case study and other data or perform technical changes. The SLTCO shall determine access limitations within Ombudsmanager. Non-representative state staff must adhere to all confidentiality provisions of the Office of the State Long-Term Care Ombudsman Program as provided by 910 KAR 1:210 Section 9 (3).

For audit purposes, the Commissioner of the State Unit on Aging or one designated senior staff member may review but shall not alter ombudsman records or disclose the identity of residents or complainants, as provided by 910 KAR 1:210 Section 9 (3).

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LIABILITY

References OAA § 712(i); proposed rule 45 C.F.R. §1327.28

Policy:

The Lake Cumberland District Ombudsman is immune from liability for the good faith performance of his or her official duties.

Procedure:

Immunity from Liability:

The Lake Cumberland District long-term care ombudsman (LTCO) shall not incur any civil or criminal liability for performing his or her official duties in good faith.

(1) Official duties are those duties of a LTCO set forth in applicable federal and state law and these policies and these procedures. They shall include, but not be limited to, making a statement or communication relevant to receiving a complaint or conducting investigative activity.

(2) Evidence of performing duties in good faith includes, but is not limited to:

(a) making every reasonable effort to follow procedures set forth in applicable laws and these procedures;

(b) seeking, and making reasonable efforts to follow, direction from the Office of the State Long-Term Care Ombudsman (SLTCO) and;

(c) seeking, and making reasonable efforts to follow, direction from the District Ombudsman

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INTERFERENCE ANDRETALIATION

References OAA § 712(j)

Policy:

(1) No person shall willfully interfere with a long-term care ombudsman (LTCO) in the performance of official duties. "Interference" includes any inappropriate or improper influence from any individual or entity, regardless of the source, which will in any way compromise, decrease or negatively impact on:

(a) the objectivity of the investigation or outcome of complaints;

(b) the LTCO’s role as advocate for the rights and interests of the resident;

(c) the LTCO’s work to resolve issues related to the rights, quality of care and quality of life of residents of long-term care facilities; or

(d) the LTCO’s statutory responsibility to provide such information as DAIL and the Office of the State Long-Term Care Ombudsman determines necessary to public and private agencies, legislators and other persons regarding the problems and concerns of residents and recommendations related to residents problems and concerns

(2) No person shall discriminate or retaliate in any manner against any resident, or relative or guardian of a resident, any employee of a long-term care facility, or any other person due to filing a complaint with, providing information to, or otherwise cooperating in good faith with a LTCO.

Procedures for Reporting Interference or Retaliation:

(1) Any person who has knowledge of such interference or retaliation may report such information to the SLTCO.

(2) The SLTCO shall review the information provided, and conduct further investigation if necessary to confirm the occurrence of the interference or retaliation.

(3) If the SLTCO, based on such review, determines that enforcement action is warranted, the SLTCO shall pursue the following course of action:

(a) Where the entity which has interfered or retaliated is a long-term care facility or its staff or agents: 1. The SLTCO shall submit a written report of such interference or retaliation to the Office of Inspector General (OIG); OIG investigates the report and if confirms the occurrence has the authority to impose penalties. Per 910 KAR 1:210 Section 13 (9)(a) a fine of $100 to $500 will be imposed for each violation;

(d) Where the entity which has interfered or retaliated is an entity other than a long-term care facility or its staff or agents: 1. Such interference by an individual who is an official or employee of the Cabinet for Health and Family Services, an area agency on aging or a LTCO provider agency shall be deemed to be a violation of OAA § 705(a) and the SLTCO shall report such interference or retaliation to the Cabinet for Health and Family Services, Department for Aging and Independent Living Commissioner; appropriate sanctions will be determined and implemented.

Lake Cumberland Area Agency on Aging & Independent Living Policies and Procedure Manual

Section XIII Long Term Care Ombudsman Program Page 21

ADVISORYCOUNCILS

References OAA § 712(e); 910 KAR 1:210 Section 7

Policy:

The Long Term Care District Ombudsman Program shall have an advisory council whose function is to advise and assist in operation within the community.

Procedure:

(1) The Lake Cumberland Long Term Care Ombudsman Program LTCOP may design its advisory council to perform one or more of the following functions:

(a) provide advice regarding the planning and operation of the District LTCOP;

(b) enhance community understanding of LTCOP purpose and services;

(c) act as a multidisciplinary team to assist the District LTCO or SLTCO in obtaining resources to benefit long-term care facility residents;

(d) develop an understanding of long-term care issues and assist the LTCOP in issues advocacy efforts; and/or

(e) assist the District LTCOP in special projects

(2) Composition of the advisory council

(a) The council shall be made up of persons with a strong interest in improving the quality of life and protecting the rights of residents in long-term care facilities.

(b) Group size and composition shall be individualized to the needs of the District LTCOP but shall not be less than seven.

(c) One third of the members shall be consumers or family members of consumers.

(d) Members shall not:

A.Be responsible for certifying or licensing long term care facilities;

B.Be a provider of long-term care services or part of an association of such providers;

C.Have any interest or association which may impair the ability of the Ombudsman to objectively and independently investigate and resolve complaints;

D. Gain economically or receive any compensation for a long-term care facility provider or association.

Lake Cumberland Area Agency on Aging & Independent Living Policies and Procedure Manual

Section XIII Long Term Care Ombudsman Program Page 22

COMPLAINT INVESTIGATION

Reference 910 KAR 1:210 Section 12; Section13

The Lake Cumberland Long-Term Care Ombudsman Program shall investigate and resolve complaints made by or on behalf of residents in long-term care facilities.

Procedure:

(1) Complaint intake (a) When the LTCOP receives information regarding a complaint, the LTCO shall determine 1. the type of complaint as presented by the complainant;

2. what attempts, if any, have been made to resolve the complaint; and

3. what outcome the complainant is seeking

(b) Ombudsman-generated complaint 1. A LTCO shall file a complaint when the LTCO has personal knowledge of an action, inaction or decision that may adversely affect the health, safety, welfare, or rights of residents and no other person has made a complaint on such action, inaction or decision.

(2) The Lake Cumberland District LTCO shall seek the following information during the investigation of the complaint and document the findings in the case record: (a) what has occurred or is occurring;

(b) when it occurred and whether the occurrence is on-going;

(c) where it occurred;

(d) who was involved;

(e) effect of the occurrence on resident(s);

(f) reason for occurrence; and

(g) what, if anything, the facility or other interested parties have done in response to the occurrence

(3) Timelines of investigation

Complaints with care issues, Respond within two (2) business days not to exceed three(3) calendar days

Other types of complaints, Within seven (7) calendar days

Actual or threatened transfer or discharge from a facility,

Whichever occurs first:

i) five (5) working days,

ii) ) the last day of bed-hold period if resident is hospitalized), or last day for filing an appeal for an administrative hearing

Lake Cumberland Area Agency on Aging & Independent Living Policies and Procedure Manual

Section XIII Long Term Care Ombudsman Program Page 23

COMPLAINTRESOLUTION

Reference: 910 KAR 1:210 Section 13

The resolution status of a complaint shall be determined when any of the following occurs:

(1) The complaint has been resolved to the resident’s satisfaction. If the resident cannot communicate his/her satisfaction, the ombudsman may seek resolution to the satisfaction of the resident’s representative or complainant, if consistent with the rights and interests of the resident.

(2) The DLTCOP has determined, after investigation, that the complaint: (a) cannot be verified; or

(b) was not made in good faith

(3) The resident requests that DLTCO activity end on the complaint.

Monitoring Complaint Resolutions:

The resolution process shall include follow up and ongoing monitoring, as appropriate, of the situation after a reasonable period of time through contact with the complainant or resident, or otherwise where appropriate, for the purpose of determining that the causes giving rise to the complaint have not been repeated and have not recurred. Such follow up shall be documented.

Closing a Complaint and Case:

DLTCO activity on a complaint is complete, and therefore, the complaint may be closed, when follow-up steps have indicated the need for no further action or change in the resolution of the complaint.

A case is closed when all of the complaints related to that case have been closed.

Lake Cumberland Area Agency on Aging & Independent Living Policies and Procedure Manual

Section XIII Long Term Care Ombudsman Program Page 24

CONFIDENTIALITY

Reference OAA Section 307(12) (B) (D); 910 KAR 1:210 Section 9

Policy:

All investigatory files, complaints, responses to complaints and all other information related to any complaint or investigation maintained by the LTCOP shall be considered confidential information.

Procedure:

No person who gains access to residents’ records shall discuss or disclose information in the records or disclose a resident’s identity outside of the program without written consent of such resident or complainant, or upon court order.

Information or records maintained by the DLTCOP shall be disclosed only at the discretion of the SLTCO. The identity or identifying information of any complainant or resident shall not be disclosed by the SLTCO except:

(1) The resident, complainant or legal representative consents in writing to the disclosure; or

(2) A court orders the disclosure. Maintaining Records:

(1) All complaint/discharge and transfer files maintained by the program are to be in a locked file cabinet.

(2) Computer data systems shall have secure access codes.

(3) Computer data software shall be stored in a secured file cabinet.

Lake Cumberland Area Agency on Aging & Independent Living Policies and Procedure Manual

Section XIII Long Term Care Ombudsman Program Page 25

DOCUMENTATION OF INVESTIGATION

Policy:

The Lake Cumberland District Long Term Care Ombudsman shall maintain the proper documentation required for each complaint received.

Procedure:

Regarding each complaint, the LTCO shall document as follows:

(1) complaint intake information, including

A) complainant name,

B) telephone number and/or address of complainant,

C) complainant role

D) Problem as presented by complainant

E) Date/time/shift problem occurred

F) Prior action (if any) taken by complainant

G) Consent to investigate

H) Facility name

I) Resident

J) Legal Representative (if applicable), address, telephone number

K) Complaint code, verification

L) Notes/Journal entries

M) Case notes

N) Referrals made to (if applicable) Case records shall be maintained for five years.

Lake Cumberland Area Agency on Aging & Independent Living Policies and Procedure Manual

Section XIII Long Term Care Ombudsman Program Page 26

REFERRALS

Policy:

The Lake Cumberland District LTCO shall refer reports of abuse, neglect, exploitation or spouse abuse to the Department of Community Based Services and if appropriate, Office of Inspector General.

Procedure:

A. Referrals under this subsection shall not affect the continuing duty, full freedom and independence of the ombudsman to: 1. Insure the continued adequacy and responsiveness of complaint investigation and resolution, monitoring and data collection systems consistent with the Older Americans Act;

2. Maintain an independent capacity to investigate and resolve complaints, as governed by Section 13 of the administrative regulation;

3. Receive and process, on a regular basis, information related to the number, type and source of complaints, facilities involved, and the manner of complaint resolution; and

4. Maintain by specific agreement the power, ability and right to monitor the agency's complaint processing performance and take action necessary to correct and improve deficiencies.

B. District ombudsmen shall address concerns regarding the investigation or resolution of complaints referred under subsection (A.1) of this section to the Kentucky long term care ombudsman.

C. District ombudsmen shall make referrals to county attorneys, legal aid agencies and legal assistance offices. Referrals to the Office of the Attorney General and the Cabinet for Health and Family Services' Office of Counsel shall be made through the Kentucky long term care ombudsman.

Lake Cumberland Area Agency on Aging & Independent Living Policies and Procedure Manual

Section XIII Long Term Care Ombudsman Program Page 27

RECEIVINGREPORTS

Policy: The Kentucky long term care ombudsman, regional ombudsmen, district ombudsmen and persons identified and approved by these ombudsmen shall have the authority to provide intake of a complaint.

Procedure:

A. The person receiving a report shall obtain as much information as possible, making a reasonable effort to obtain the: 1. Name and location of the long term care facility involved;

2. Name and location of the resident;

3. Name, address and telephone number of the person responsible for the resident;

4. Nature of the complaint as specifically as possible;

5. Name and location of alleged perpetrator; and

6. Identity of the reporting source. Reports may be made anonymously.

B. The person receiving the report may contact other agencies or individuals to secure additional information relevant to the investigation.

Lake Cumberland Area Agency on Aging & Independent Living Policies and Procedure Manual

Section XIII Long Term Care Ombudsman Program Page 28

COMPLAINT INVESTIGATION

Policy:

Long term care facility residents shall have the right to complaint investigation.

Procedures:

1) The resident may voice grievances and recommend changes in policies and services to facility staff and outside representatives of their choice, free from restraint, interference, coercion, discrimination or reprisal;

2) Associate and communicate privately with persons of their choice; and

3) Private meetings with the appropriate long term care facility inspectors from the Cabinet for Health and Family Services.

Policy:

Long term care ombudsmen shall investigate and resolve complaints.

Procedures:

1) Made by or on behalf of elderly individuals who are residents of long term care facilities relating to action which may adversely affect the health, safety, welfare and rights of the resident;

2) Made by or on behalf of non-elderly long term care facility residents if actions will: a. Benefit elderly residents of that long term care facility or elderly residents of long term care facilities generally; or

b. Be the only viable avenue of assistance available to the resident; and

c. Not significantly diminish the Long Term Care Ombudsman Program's efforts on behalf of elderly persons.

Policy:

District and volunteer ombudsmen shall not investigate complaints unless the ombudsmen are certified by the Kentucky Long Term Care Ombudsman Program.

Procedures:

Certification shall be extended after completion of minimum training requirements and attendance at an ombudsman competency conference conducted by the Kentucky Long Term Care Ombudsman Program or, in the case of volunteer ombudsmen, by the district Long Term Care Ombudsman Program.

Policy:

The Kentucky and regional ombudsmen shall inform the district ombudsmen of on-site investigations conducted in their districts.

Procedures:

The investigation shall be conducted according to the following criteria:

Lake Cumberland Area Agency on Aging & Independent Living Policies and Procedure Manual

Section XIII Long Term Care Ombudsman Program Page 29

1. Investigation may include contact with the resident, staff of the long term care facility and collateral contacts.

2.Representatives of the program shall, upon entering the facility, promptly notify the administrator or his designated representative of their presence.

3.Representatives of the program shall not enter the living area of residents without identifying themselves to the resident.

Policy:

The investigating ombudsman shall take immediate steps to resolve a substantiated complaint. The ombudsman shall consider the resident’s choice of remedy. Reasonable avenues of assistance to the complainant, directly or by referral, shall be addressed, and if efforts are unsuccessful, the ombudsman shall so advise the complainant and provide information explaining how to proceed independently.

Procedures:

Resolution may include:

1. Persuading or negotiating at nursing home administrative level to change particular nursing home behavior, pattern or practice affecting the resident;

2. Consulting with a resident, relative or nursing home staff member to resolve a problem;

3. Effecting positive enforcement action by a regulatory agency;

4. Proposing regulatory or statutory changes or additions;

5. Communicating with community groups and professional organizations; and

6. Encouraging the utilization of legal services assistance by the complainant.

Lake Cumberland Area Agency on Aging & Independent Living Policies and Procedure Manual

Section XIII Long Term Care Ombudsman Program Page 30

TRAINING

Policy:

The Long Term Care Ombudsman including unpaid volunteers shall be provided training as follows:

Procedure:

Initial Certification Training:

Persons seeking certification in the Long-Term Care Ombudsman Program will complete a minimum of twenty-four

(24) hours of training in the following areas:

(1) History and Role of the Long-Term Care Ombudsman Program

(2) The Aging Process

(3) Residents’ Rights

(4) The Problem-Solving Process Investigation

(5) The Problem-Solving Process Resolution

(6) Long-Term Care Setting Characteristics

(7) Legal Issues

(8) Long-Term Care Reimbursement System

(9) Kentucky Data Reporting System

(10) The Older Americans Act of 1965, as amended, and the aging network;

(11) Characteristics, special needs and problems of the long-term care resident

(12) The regulation of facilities and the enforcement of regulations

(13) Guardianship

(14) Development of Resident Councils

(15) Recruiting, screening, selecting, training, placing and supporting volunteers; and

(16) Use of Public

Lake Cumberland Area Agency on Aging & Independent Living Policies and Procedure Manual

Section XIII Long Term Care Ombudsman Program Page 31

Funds Continuing Education:

Per 910 KAR 1:210, Section 8 (4) District Ombudsman shall attend as provided quarterly trainings.

LCADD Contact Info

Lake Cumberland Area Development District
P.O. Box 1570
(mailing address)
2384 Lakeway Dr.
(street address)
Russell Springs, KY 42642
Phone: 270-866-4200
Toll Free: 800-264-7093
TDD: 800-648-6056
Fax: 270-866-2044
info@lcadd.org

LCADD Calendar

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