218 R.I. Code R. 218-RICR-40-00-1.4

Current through December 3, 2024

Section 218-RICR-40-00-1.4 - Powers and Duties of the Long Term Care Ombudsperson

1.4.1 Powers

A. The ombudsperson shall, personally or through employees of the Office:

1. Identify, investigate, and resolve complaints that

a. are made by, or on behalf of, residents; and

b. relate to action, inaction, or decisions by

(1) providers, or representatives of providers, of long term care services,

(2) public agencies, or

(3) health and social service agencies that may adversely affect the health, safety, welfare, or rights of the residents (including the welfare and rights of the residents with respect to the appointment and activities of guardians and representative payees and health care and financial powers of attorney);

2. Provide referral services to assist residents in protecting their health, safety, welfare and rights;

3. Inform residents of their rights and advocate on their behalf to improve their quality of life and live with dignity and respect;

4. Advocate on behalf of long term care facility residents, home care and hospice care recipients;

5. Formulate written policies and procedures to identify, investigate, and resolve complaints;

6. Make appropriate referrals of investigations to other state agencies, including, but not limited to, the Rhode Island Department of Health, Department of Human Services, Department of Behavioral Healthcare, Developmental Disabilities, and Hospitals, and Department of Attorney General, provided that the resident(s) or the legal representative(s) of the resident(s), as appropriate, who initiated the complaint consent(s) to such referral (unless such referral is required by order of a court of competent jurisdiction or by statute without such consent) and in accordance with §16 herein and Sub-Section 712(d) of The Older Americans Act, 42 U.S.C. § 3058g;

7. Offer assistance and training to public and private organizations on long term care of elders and individuals with disabilities;

8. Represent the interests of residents of facilities before government agencies and seek administrative, legal, and other remedies to protect the health, safety, welfare, and rights of the residents including, but not limited to, rights with respect to the appointment or removal of guardians and representative payees powers of attorney;

9. Review and, if necessary, comment on any existing and proposed laws, regulations, and other government policies and actions that pertain to the rights and well-being of residents of facilities.

10. Have such other powers as are provided to the Office in §712 of The Older Americans Act, 42 U.S.C. § 3058g, as the same may be amended from time to time.

1.4.2Duties

A. The ombudsperson shall cause the Office to comply with all of the requirements cited herein. The ombudsperson also shall perform all ombudsman duties set forth in §712 of The Older Americans Act, 42 U.S.C. § 3058g, as the same may be amended from time to time.

B. The Office shall develop, in writing, implement, and provide to the Division (upon request) the following:

1. A statement of philosophy and goals and objectives of the Office;

2. A statement of the procedures to be used to recruit and support any volunteer representative of the Office;

3. A statement of methods to evaluate the attainment of the Office's goals and objectives;

4. Assurance that the Office will comply with all requirements of the Division, including training of all representatives of the Office, confidentiality of records, and reporting;

5. Assurance that no person shall investigate any complaint filed with the Office, unless such person is acting as an employee or agent of the Office;

6. Assurance that the Office has the ability to pursue appropriate remedies to resolve complaints, including but not limited to:

a. Ensuring adequate legal counsel is available, and is able, without conflict of interest, to provide advice and consultation needed to protect the health, safety, welfare, and rights of residents; and to assist the ombudsperson and representatives of the Office in the performance of the official duties of the ombudsperson and representatives; and that legal representation is provided to any representative of the Office against whom suit or other legal action is brought or threatened to be brought in connection with the performance of the official duties of the ombudsperson or such a representative; and the Office pursues administrative, legal, and other appropriate remedies on behalf of residents.

b. Making referrals and recommendations about specific courses of action, referring situations to public and private agencies such as the Department of Human Services, the Attorney General's office, state and federal courts, and other agencies, as necessary;

c. Serving as an advocate for residents in negotiations with long term care facilities, public and private agencies, family members, and other individuals and agencies to the extent permitted by state and federal law.

7. The Office shall develop a written statement which shall provide a short summary of the Long Term Care Ombudsperson program, residents' rights thereunder, and the Office's role as advocate for residents. This statement shall be subject to the prior written approval of the Division and shall be provided to every resident, as well as the resident's guardian or family member, as applicable, with whom representatives of the Office interact.

C. If the ombudsperson has knowledge of or has reasonable cause to believe that a resident has been abused, mistreated or neglected as defined by R.I. Gen. Laws Chapter 23-17.8, the ombudsperson shall immediately report such determination to the Rhode Island Department of Health, in accordance with R.I. Gen. Laws Chapter 23-17.8. The Ombudsman must disclose the identity of a resident where the Ombudsman or representative of the Office personally witnesses abuse, neglect or exploitation of a resident, as long as

1. the resident at issue does not request the Ombudsman or representative not to make a report of the activity witnessed by the Ombudsman or representative and

2. the Ombudsman determines it to be in the best interest of the resident. Such reports shall be confidential in accordance with §1.5.2 of this Part herein and §712(d) of The Older Americans Act, 42 U.S.C. § 3058g, and all applicable federal and state laws.

D. If the ombudsperson has knowledge of or has reasonable cause to believe that a resident has been abused, exploited or neglected, as defined by R.I. Gen. Laws Chapter 42-66, and such abuse, exploitation or neglect is not required to be reported to the Rhode Island Department of Health in accordance with R.I. Gen. Laws Chapter 23-17.8, then the ombudsperson shall immediately report such determination to the Division, in accordance with R.I. Gen. Laws Chapter 42-66.

1. Such reports shall be confidential in accordance with §1.5.2 of this Part herein and §712(d) of The Older Americans Act, 42 U.S.C. § 3058g, and all applicable federal and state laws.

E. All policies and procedures of the Office shall be subject to the review and approval of the director or his/her designee.

1.4.3Governing body

A. The Office shall have an organized governing body ultimately responsible for:

1. the management, fiscal affairs and operation of the Office and of the organization within which the Office is located;

2. the assurance of quality services; and

3. compliance with all federal, state and local laws and regulations pertaining to long term care ombudsperson agencies and the rules and regulations herein.

B. The governing body shall provide appropriate personnel, physical resources and equipment to facilitate the delivery of prescribed services and shall furthermore:

1. Appoint a chief operating officer, executive director (or equivalent position), however named, and the individual who shall serve as the ombudsperson;

2. Identify the range of services to be provided which must include no less than those services required herein;

3. Define the geographic areas to be served; and

4. Carry out such other functions as may be relevant to the organization and operation of the agency.

C. The governing body shall adopt and maintain by-laws or acceptable equivalent which defines responsibilities for the operation and performance of the organization, and shall identify purposes and means of fulfilling same. The governing body shall establish administrative policies pertaining to no less than the following (and copies of the same shall be provided to the Division upon request):

1. Responsibilities of the ombudsperson;

2. The mechanism for disclosure that ensures that no individual, or member of the Immediate family of an individual, involved in the designation of the ombudsperson (whether by appointment or otherwise) is subject to a conflict of interest; and that no member of the governing body, officer or employee of the ombudsperson or member of the immediate family of the governing body member, officer, employee, or representative, is subject to a conflict of interest;

3. The methods for identifying, and specifying in writing, mechanisms to remove conflicts of interest referred to herein;

4. The manner in which services are to be provided;

5. Circumstances under which ombudsperson services cannot be provided and procedures for referral;

6. Policies and procedures to identify, receive, investigate, and resolve complaints;

7. Policies and procedures regarding persons employed by the Office. Said policies shall include, but not be limited to, the following:

a. timely completion of the bureau of criminal identification (BCI) check;

b. mechanism for credentialing and/or verifying any professional licensure requirements in accordance with state statutes and regulations.

8. Such other matters as may be relevant to the organization and operation of the Office.

1.4.4Personnel

A. The Office shall employ a sufficient number of qualified personnel to provide effective services.

B. A job description for each classification of position shall be established, clearly delineating qualifications, duties, authority and responsibilities required for each position.

C. The Office shall have written personnel policies and procedures for hiring and selection, compensation, evaluation, disciplinary action and grievance, and supervision and training of employees, contractors, volunteers, students and/or interns. The personnel policies and procedures shall include, at a minimum, the following provisions:

1. No known conflict of interest which would interfere with objective performance as an ombudsperson representative.

2. Understanding of an agreement to follow the ombudsperson rules of confidentiality in accordance with all applicable state and federal statutes and regulations;

3. Agreement to follow any policies and procedures of the Division and the Office and accept the direction of the ombudsperson;

4. Compliance with the Office's reporting needs to collect and analyze data relating to complaints and conditions in facilities;

5. At a minimum, training shall meet the requirements set forth in §712 of The Older Americans Act, 42 U.S.C. § 3058g, as the same may be amended from time to time.

D. Written personnel policies supporting sound personnel practices shall be made available to all personnel, including volunteers, and to the Division.

E. Personnel files shall be maintained for each employee, including volunteers. Such files shall include no less than the following documentation:

1. Information pertaining to qualifications for employment which shall include but not be limited to experience with long term care issues and/or experience in the fields of aging, long term care and health care; and good verbal, listening, and writing skills, as appropriate;

2. Records of completion of required training and educational programs;

3. Evidence of current licensure or certification as may be required by law;

4. Employment application or resume of previous employment;

5. Evidence of no conflicts of interest.

1.4.5Conflict of Interest

A. No employee or representative of the Office, no individual involved in designating, hiring, evaluating, or terminating the ombudsperson or any other employee or representative of the Office, no organization within which the office is located and no governing body members may have an unremedied conflict of interest.

1. Conflicts of interest shall include, but shall not be limited to, being employed by a facility at any time within the two (2) years prior to being employed by or affiliated with the Office; or being affiliated with, or having a financial interest in, a facility or a membership organization of long term care providers or other facilities; or

2. standing to gain financially through an action brought on behalf of individuals whom the Office serves; or,

3. in the case of a non-profit organization where the Office is situated, receipt of donations or other funds from a facility.

4. Absent a waiver granted by the Division, no representative of the Office shall be assigned to investigate a complaint concerning a facility with which the representative was formerly employed, with which the representative was formerly or is currently affiliated or associated, from which a relative receives long term care services, or that poses any other conflict of interest.

B. The agency within which the Office is located shall develop procedures to screen potential and existing employees of the program, potential candidates and existing representatives of the Office, individuals involved in designating, hiring, evaluating, or terminating the ombudsperson, and potential and existing governing body members for conflicts of interest.

1. The procedures shall be applied upon initial screening and annually thereafter.

2. When completed, the individual who conducted the screen and the individual screened shall acknowledge the completion of the screen in writing. The completed screening instrument shall be made a record of the program and shall be subject to review by the Division.

C. Prior to offering a position within the Office to an applicant or training a volunteer, the agency within which the Office is situated shall report any identified conflict of interest to, and may propose a remedy to, the Director.

1. Within forty-five (45) days of receiving a proposed remedy, the Director shall review the nature, scope, and extent of the conflict and shall determine whether or not to allow the proposed remedy.

a. While the decision is pending, the agency shall assign any individual with a conflict of interest to duties that do not pose a conflict.

2. The proposed remedy shall be submitted in writing and shall reveal the nature, extent, and potential impact of the conflict of interest, and shall be a remedy which will neutralize the conflict of interest.

a. Current employment with any type of facility is a conflict of interest that cannot be remedied.

3. Any remedy granted shall remain in effect for as long as the conflict continues to exist to the same extent as reported and for as long as the remedy continues to work.

1.4.6Complaints Resolution

A. Upon receipt of a complaint, a representative of the Office shall:

1. inform the resident and/or complainant (if not the affected resident) that his/her identity shall not be disclosed unless such complainant or resident, or a legal representative of either, consents in writing to such disclosure and specifies to whom their identity may be disclosed. Such disclosure shall be made without the complainant or resident's consent if ordered by a court of competent jurisdiction or when disclosure is mandated by statute;

2. Review the complaint and consult with the complainant regarding possible methods of resolution:

a. If consent to proceed is not obtained, the resident, or complainant, if not the affected resident, shall be provided with information and/or referral sources appropriate to enable them to advocate on their own behalf.

B. After an investigation, if the ombudsperson determines in the ombudsman's judgment that the complaint does not warrant further action, the situation shall be explained fully to the complainant, and the Office shall educate the complainant as to his rights and responsibilities.

1. After an investigation, if the complaint is fully or partially verified, the ombudsperson shall seek to resolve the problem.

C. Complaint resolution responsibilities shall include but not be limited to:

1. Development of a plan for corrective action through discussions with the complainant, resident, and appropriate officials and staff of the related institution;

2. Establishment, on a case-by-case basis, of appropriate timetable(s) for resolution;

3. Follow-up within thirty (30) days to determine if the problem giving rise to the complaint has been resolved.

D. Complaints of conditions, which in the judgment of the ombudsperson, could adversely affect residents that cannot be resolved shall be referred within seven (7) days by the ombudsperson to the appropriate governmental agency, provided that the resident(s) or the legal representative(s) of the resident(s), as appropriate, who initiated the complaint consent(s) to such referral.

E. The Office may initiate its own investigation of any facility independent of the receipt of a specific complaint or problem.

1. A representative of the Office may observe acts, practices or omissions regarding a facility which generally may affect the health, safety, welfare, rights or quality of life of all or a substantial number of the residents in the facility.

2. If in the discretion of the ombudsperson, such observations constitute a complaint situation (s)he may cause the Office to investigate and attempt to resolve these complaints without the consent of an individual resident.

1.4.7Resident Records

A. Accurate and complete files, records and other information shall be maintained in accordance with accepted professional standards and in accordance with all applicable state and federal legal requirements.

1. Files, records and other information shall be maintained for each resident, and shall be filed in an accessible location within the Office.

2. The ombudsperson shall cause the Office to store complaint files, records and other information in a secure manner.

a. Access to these files, records and other information shall be limited to agency staff authorized by the ombudsperson.

b. In monitoring of the program, access to these files, records and other information minus the identity of any complainant or resident of a facility, shall be available to the Director and to one other senior manager of the Division as shall be designated by the Director from time to time.

B. The Office shall maintain files, records and other information related to complaints received by or on behalf of residents which shall include:

1. Name, address, and phone number of the complainant;

2. Name of the resident;

3. Relationship of the complainant to the resident;

4. Name of the facility;

5. Nature of the complaint;

6. Steps taken to investigate the compliant;

7. All notes, correspondence, complaint forms, background materials, assessments, and medical and incident reports related to the complaint;

8. Outcome of the Investigation;

9. Resolution and follow-up.

C. If the complainant refuses to identify himself or the resident, it should be so indicated in the record.

D. The Office shall comply with R.I. Gen. Laws Chapter 38-3, also known as the Public Records Administration Act.

1. This Act requires any executive, legislative, judicial, regulatory, administrative body of the State, or any political subdivision thereof (including but not limited to any department, division, agency, commission, board, office, bureau, authority, any school, fire, or water district, or other agency of state or local government which exercises governmental functions, or any other public or private agency, person, partnership, corporation or business entity acting on behalf of any public agency) to comply with records management practices and procedures for the maintenance, retention, and destruction of files, records and other information.

2. The Office shall follow the Division's records retention schedule.

3. All costs associated with complying with R.I. Gen. Laws Chapter 38-3 shall be the sole responsibility of the agency or organization within which the Office is located.

4. The Office shall provide to the Division a copy of all correspondence, certifications and other documents provided to or from the Secretary of State relating to compliance with §1.4.7(D) of this Part and the retention and destruction of records.

a. Where destruction of records is authorized by the secretary of state, the Office shall furnish to the Division a copy of said authorization certification from the secretary of state prior to destruction of the records.

b. The Office shall shred all documents being destroyed and properly and fully destroy all materials to protect the privacy of all individuals.

E. The Office shall have written policies and procedures to govern the use and removal of files, records and other information and determine the conditions for release of information in accordance with statutory provisions pertaining to confidentiality (see also §1.5.1 and §1.5.2 of this Part).

218 R.I. Code R. 218-RICR-40-00-1.4