18 Miss. Code. R. 26-2-C
Consent
The LTCOP is first and foremost a resident driven advocacy program. The resident is the client, regardless of the complainant. Unless adjudicated incapacitated, a resident speaks for him/herself. The Ombudsman is to obtain resident informed consent. This is necessary for investigation and/or disclosure of information. If the resident is unable to provide informed consent, then the ombudsman needs to obtain informed consent from the resident representative.
Documentation of consent is required. The Consent Form documents the resident or legal representative's "written" or "oral" consent. The consent form may also be used to document a complainant's consent to release his or her identity. Written consent is advisable under certain conditions, but is not always practical. When a resident is unable to consent, document using the phrase "Resident is unable to consent." A facility staff person may speculate about the identity of a resident or complainant. Without consent of the resident or complainant, an Ombudsman must not confirm such speculation. Instead redirect the conversation to information that is relevant and not confidential. If necessary, inform the staff of the Ombudsman Program's confidentiality rules. Consent should also be required to access a resident's record or other confidential information.
If the complainant is not the resident, the Ombudsman must seek an agreement from the resident to work on the issue. If the resident declines consent, the resident's wishes supersede the complainant's. One can then advise the non-resident complainant of alternate resolution strategies such as self-advocacy, working through a family council or contacting the Health Department if it involves a regulatory matter. The Ombudsman may also determine that the concern impacts other residents and move on with the complaint, but be sure to inform the resident that their identity will not be revealed.
The resident's lack of capacity must be supported by documentation or ombudsman observation. Documented oral consent is sufficient documentation. In obtaining consent, the ombudsman must first determine if the resident has the capacity to provide consent. It should be an "informed consent." The ombudsman is an advocate and will need to make sure that the resident appears to understand what he or she is doing/consenting.
An Order of Guardianship provides prima facie evidence of incapacity. Review and obtain the documents to determine the scope of the guardian's authority. When a resident is unable to communicate informed consent, the ombudsman must discuss the complaint with the resident's guardian or other legal representative. If a resident has been adjudicated incompetent under the laws of a State by a court of competent jurisdiction, the rights of the resident are thereby exercised by the person appointed under State law to act on their behalf. If a Representative of the Office believes the guardian is not acting in an incapacitated person's interest, contact the State Ombudsman for approval to access the record or take other action on behalf of the resident.
MS Courts and the legislature have not agreed on precise or consistent meanings of "incompetence" or "incapacity". Usually a guardian looks over the person of the ward while a conservator looks over the estate, unless the Court decides otherwise. The Ombudsman should check the Court's order to see what power the guardian/conservator has been given by the Court. If there is a question, the ombudsman should consult legal counsel for clarification through the State Ombudsman. Even residents who have been adjudicated incapacitated and to whom a guardian has been appointed retain some rights. These residents need to have their desires and preferences considered even if the guardian has the legal responsibility over that decision.
Conservatorship was intended to encompass a broader class of people than just the incompetent (physical incapacity and mental weakness). A conservator has priority over the power of attorney agent. See §9313-251 through § 93-13-267 of the MS Code.
An individual who has been given authority to act on behalf of the resident under a Power of Attorney (POA) may provide consent to conduct an investigation depending on the validity of the authority given. The resident must have capacity at the time of appointment for a power of attorney document to be valid. If the resident becomes incapacitated, the "agent" loses the authority to act unless it is a "durable" power of attorney. Depending on how the document is written, the durable POA agent may exercise authority when the resident is able to make decisions, when the resident is incapacitated or both. The resident's primary physician has to make a written evaluation of lack of capacity. Also, look at the specific grants of authority to determine if financial or health care decisions can be determined by the agent.
The Advanced Health-Care Directive (AHCD) is a combination of a power of attorney for health care and a living will. Mississippi has the Uniform Health-Care Decisions Act in § 41-41-201 through § 41-41-229 of the MS Code. An example of an advanced health-care directive is provided in § 41-41-209.
Disclosure for Complaint Investigating Purposes
Any Resident's identifying information and/or medical, social or other records relating to a resident shall not be disclosed by the State Ombudsman Program unless (a) the resident or the resident representative communicates informed consent in writing or through other means such as orally, visually or through the use of an auxiliary aid and such consent is recorded contemporaneously by a Representative of the Office of the State Long-Term Care Facilities Ombudsman or (b) disclosure is necessary in order to investigate a complaint in accordance with complaint handling procedures and the resident representative refuses to consent and the resident is not able to give consent and the State Ombudsman Program has a reasonable belief that the resident representative is not acting in the best interest of the resident.
The Older Americans Act specifies that state agency procedures must ensure that ombudsman files and records may be disclosed only at the discretion of the state ombudsman and prohibits disclosure of the identity of any complainant or resident without consent of the complainant or resident, legal representative or upon a court order. Any records relating to residents, complainants and any other identifying information shall be confidential. The State Long-Term Care Facilities Ombudsman (SLTCO) has the SOLE authority concerning the disclosure of files, records and other physical or electronic information held and maintained by the Ombudsman Program. The files, records and information are the property of the Office of the State Long-Term Care Facilities Ombudsman. No disclosure of such information shall be made without the prior approval of the SLTCO. This includes information maintained by the district, local and volunteer ombudsmen. The SLTCO or his/her designee has access to all LTCOP records at all times and for any purpose.
Individuals wanting a release of information will need to send a written request to the SLTCO that includes the need for the information, how it will be used and who will be given access to the information. Ombudsmen may not disclose whether a complaint has ever been received by or about an individual, the content of a complaint or investigation, or the outcome of a complaint or investigation without the appropriate consent. The SLTCO (or his/her representative) is required to give approval or disapproval of the disclosure within five working days of such a request. However, there may be portions redacted or "blacked out" to protect privacy of residents, complainants or for other purposes. Each LTCO has access to records of the district Long-Term Care Ombudsman Program for which he or she serves. For purposes of providing temporary coverage for another district Long-Term Care Ombudsman Program, a LTCO may have access to the LTCO records of another district LTCOP to the extent necessary to provide such coverage.
Disclosure of the identity of any resident or identifying information is prohibited unless:
Disclosure of the identity of any complainant or any complainant identifying information is prohibited unless:
If a resident is unable to communicate informed consent, the ombudsman may accept communication of informed consent from the resident representative if there is no reasonable cause to believe the resident representative is not acting in the best interests of the resident.
If a resident is unable to communicate informed consent and has no resident representative, resident identifying information may be disclosed and referrals made in the following situations:
The State Ombudsman Program is excluded from the abuse reporting requirements in Section 43-47-7 and 43-47-37 without appropriate resident informed consent or a court order.
Disclosure of Ombudsman Program Records
For purposes of monitoring and supervising the long-term care ombudsman program, the relevant AAA or provider agency may review records which reflect the activities of the LTCOP such the monthly activity reports and any aggregate data. Such records shall not disclose the identity of any resident or complainant. The relevant AAA or provider agency may not review records or files which disclose or imply the identity of any resident or complainant. Neither the Ombudsman nor a designee shall disclose resident identifying information of any complaint or long-term care facility resident to individuals outside the Ombudsman Program without consent or a court order.
For purposes of monitoring and supervising the long-term care ombudsman program, the Mississippi Department of Human Services, Division of Aging and Adult Services (DAAS) may review records which reflect the activities of the LTCOP such the monthly activity reports. Such records shall not disclose the identity of any resident or complainant. The DAAS may not review records or files which disclose or imply the identity of any resident or complainant. No state agency, AAA or other provider agency may require a long-term care ombudsman to disclose the identity of a complainant or resident except as provided by these procedures. Furthermore, designated employees are prohibited from discussing confidential information with undesignated staff within their agencies.
Where a request is made by any party for LTCOP records or files, the State Long-Term Care Ombudsman (SLTCO) should be contacted. Records maintained by the LTCOP may not be released, disclosed, duplicated, or removed by anyone who is not a Long-Term Care Ombudsman staff without written permission of the SLTCO.
The SLTCO may require that the request be made in writing 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 whom consent was communicated in order to meet this requirement. The SLTCO will review the request with the relevant district 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) and determine whether it will have any negative impact on the Ombudsman Program. The SLTCO will 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 should not be revealed. Such consent must be in writing or made orally and documented immediately and filed as an LTCO record by the Long-Term Care Ombudsman to whom consent was communicated.
The Ombudsman Program should release information to the state survey agency from the ombudsman records only if:
The SLTCO shall consult with the Legal Counsel to respond to a request for Ombudsman records by a resident, complainant, legal representative, an open records act request, subpoena or court order. Both the SLTCO and the Legal Counsel should consider how the release could impact the credibility or effectiveness of the program.
Access to Facilities
Ombudsmen shall have access to long-term care facilities during reasonable hours. If an investigation calls for an ombudsman to access the long-term care facility during non-business hours, consult with the State Ombudsman. Access should include private communication with residents and their spouses. Ombudsman should also have the right to tour the long-care facility unescorted.
Access to Resident Records
The State Ombudsman Program should have access to the name and contact information of the resident representative and access to review the medical, social or other records relating to a resident if (a) the resident communicates informed consent in writing or through other means such as orally, visually or through the use of an auxiliary aid and such consent is recorded contemporaneously by a Representative of the Office of the State Long-Term Care Facilities Ombudsman (b) access is necessary in order to investigate a complaint and the resident representative refuses to consent and the State Ombudsman Program has a reasonable belief that the resident representative is not acting in the best interest of the resident.
The State Ombudsman Program should have access to (a) the administrative records, policies or other documents that the resident or the general public would have access of the long-term care facilities (b) upon request, copies of all licensing and certification records maintained by the State Department of Health and (c) all medical, social or other records of residents in the course of a State or Federal survey or inspection process.
Mail, e-Mail and Photographs
All mail addressed to the ombudsman or the LTCOP should be delivered to the ombudsman unopened. The resident or complainant's name should never be included in the subject line of an e-mail.
The SLTCO or representatives of the Office shall not take any pictures of the residents without written consent and shall not share such picture or any resident information through any form of social media.
Safeguarding of Notes and Documentation
The content of all written notes regarding contacts made in the course of the ombudsman's work should be entered into WellSky and the originals should be shredded in such a way to ensure that no one else has access to view them. All documentation and notes shall be in a locked cabinet (secure location) when not in possession of the ombudsman. Any emails or written documentation concerning a resident, complainant, and complaint investigation should be scanned into WellSky and then shredded. The Ombudsman service provider/AAA client case record is the property of the State Long-Term Care Ombudsman and it shall include:
* Legible documentation of the complaint, verification of the complaint, the solution and/or outcome of the complaint, ombudsman name, date and time of visit(s);
* Referral form, where appropriate;
* Follow-up on complaint;
* Authorization releases; and
* Notice of termination of services, if applicable.
18 Miss. Code. R. 26-2-C