DAR File No. 42636

Human Services, Aging and Adult Services

Rule R510-200

Long-Term Care Ombudsman Program Policy

Notice of Proposed Rule

(Repeal and Reenact)

DAR File No.: 42636
Filed: 03/07/2018 10:42:47 AM

RULE ANALYSIS

Purpose of the rule or reason for the change:

The Older Americans Act (Act) is the federal statute that directs the work of the Division of Aging and Adult Services generally and the Long-Term Care Ombudsman Program specifically. The Act was recently reauthorized and changes were made to the Long-Term Care Ombudsman Program with the new authorization. There were a number of minor language updates, and a more significant change in making services available to all residents of facility based care who are 18 years old or older, rather than the previous client group of individuals aged 60 or older. As a result, this rule needs to be amended to reflect this change. The other minor clean up points are also included in this amendment.

Summary of the rule or change:

The updated rule is a combination of the old rule along with the ombudsman policy and procedures, new federal regulations, and the revised Older Americans Act. The primary reason for this change is to meet federal requirements. Items have become more detailed and provide further clarification including: qualifications of ombudsman certification; individual and organizational conflicts of interest; legal counsel; intake, investigation, and complaint processing; and confidentiality.

Statutory or constitutional authorization for this rule:

• Section 63G-3-702
• Subsection 63G-3-102(5)
• Section 63G-3-701

Anticipated cost or savings to:

the state budget:

The updates are to comply with federal statute and will not create new costs or savings.

local governments:

This change does not create new costs or savings to the local Long-Term Care Ombudsman Program.

small businesses:

The change does not impact small businesses.

persons other than small businesses, businesses, or local governmental entities:

No other organizations or individuals will be fiscally affected.

Compliance costs for affected persons:

There are no compliance costs for the clients served nor for the facilities where they reside.

Comments by the department head on the fiscal impact the rule may have on businesses:

After conducting a thorough analysis, it was determined that this proposed repeal and reenactment will not result in a fiscal impact to businesses.

Ann Williamson, Executive Director

The full text of this rule may be inspected, during regular business hours, at the Office of Administrative Rules, or at:

Human Services
Aging and Adult Services
195 N 1950 W
SALT LAKE CITY, UT 84116

Direct questions regarding this rule to:

• Nels Holmgren at the above address, by phone at 801-538-3921, by FAX at 801-538-4395, or by Internet E-mail at [email protected]
• Jonah Shaw at the above address, by phone at 801-538-4225, by FAX at 801-538-3942, or by Internet E-mail at [email protected]

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

05/01/2018

This rule may become effective on:

05/08/2018

Authorized by:

Ann Williamson, Executive Director

Appendix 1: Regulatory Impact Summary Table*

Fiscal Costs	FY 2018	FY 2019	FY 2020
State Government	$0	$0	$0
Local Government	$0	$0	$0
Small Businesses	$0	$0	$0
Non-Small Businesses	$0	$0	$0
Other Person	$0	$0	$0
Total Fiscal Costs:	$0	$0	$0
Fiscal Benefits
State Government	$0	$0	$0
Local Government	$0	$0	$0
Small Businesses	$0	$0	$0
Non-Small Businesses	$0	$0	$0
Other Persons	$0	$0	$0
Total Fiscal Benefits:	$0	$0	$0
Net Fiscal Benefits:	$0	$0	$0

 

*This table only includes fiscal impacts that could be measured. If there are inestimable fiscal impacts, they will not be included in this table. Inestimable impacts for State Government, Local Government, Small Businesses and Other Persons are described above. Inestimable impacts for Non-Small Businesses are described below.

 

Appendix 2: Regulatory Impact to Non - Small Businesses

The repeal and reenact of R510-200 is not expected to have any fiscal impacts on large businesses revenues or expenditures, because these updates are to comply with federal statute and will not create new costs or savings to the Long-term Care Ombudsman program. The head of the Department of Human Services, Ann Williamson, has reviewed and approved this fiscal analysis.

 

 

R510. Human Services, Aging and Adult Services.

R510-200. Long-Term Care Ombudsman Program Policy.

[R510-200-1. Purpose.

A. The Long-term Care Ombudsman (LTCO) Program is created for the purpose of promoting, advocating, and ensuring the adequacy of care received, and the quality of life experienced by elderly residents of long-term care facilities within the State.

B. Operation of the LTCO Program is a joint responsibility of the Division and local AAAs. Authority to administer the LTCO Program is derived from the Older Americans Act (OAA) Title VII: Allotments for Vulnerable Elder Rights Protection Activities and Section 62a-3-201 et seq.

C. The Division will establish a State Office of LTCO.

D. The State LTCO is responsible for:

(1) oversight of the statewide LTCO program;

(2) providing training to local LTCO staff and volunteers;

(3) provision of public information regarding the LTCO program;

(4) working with federal agencies, the State Legislature, other units of state government and other agencies to obtain funding and other resources;

(5) developing cooperative relationships among agencies involved in long-term care;

(6) resolving conflicts among agencies regarding long-term care;

(7) assuring consistent, statewide reporting of LTCO program activities:

(8) monitoring local LTCO programs;

(9) providing technical assistance to local LTCO programs;

(10) maintaining close communication and cooperation in the LTCO statewide network;

(11) recommending rules governing implementation of the LTCO program; and

(12) providing overall leadership for the Utah LTCO program.

E. The Division may employ Regional Ombudsmen to assist the State LTCO in meeting his or her responsibilities. In addition to assisting the State LTCO, Regional Ombudsmen are responsible to:

(1) Spend a majority of their time providing ombudsman services, including but not limited to, investigating and resolving complaints when local ombudsmen transfer a case, providing services to assist elderly residents of long-term care facilities, informing and educating elderly residents about their rights, providing administrative and technical assistance to local ombudsmen and volunteers, providing systemic advocacy, providing training to long-term care facilities, and assisting in the development of family and resident councils;

(2) Provide monitoring, oversight, assistance and leadership to local ombudsmen and volunteers in their region;

(3) Ensure that all ombudsmen in their region adhere to established policy and procedure; and

(4) Improve consistency and quality of Ombudsmen services in their region.

F. AAAs are responsible for daily operation of the program, either directly or by contract, as defined in these rules.

G. The Division, State LTCO and AAAs must work together to protect elderly residents, promote quality care in long term care facilities, and promote the LTCO program.

 

R510-200-2. Definitions.

A. "AAA" means area agency on aging as designated by the Division of Aging and Adult Services.

B. "APS" means adult protective services.

C. The Division means the Division of Aging and Adult Services within the Utah Department of Human Services.

D. "Elderly resident" means an adult 60 years of age or older who resides in a long-term care facility.

E. Long-term ombudsman is a person, operating within the guidelines of the Older American Act and the policies of the Division, who advocates for elderly residents of long-term care facilities to ensure the quality and adequacy of care received.

F. "Local LTCO" means the local program and personnel designated by the Division, through each AAA, to implement the (LTCO) Program within a defined geographic area.

G. "Responsible Agency" means the agency responsible to investigate or provide services on a particular case.

H. "State LTCO" means long-term care ombudsman personnel within the Division.

I. "Long-Term Care Facility" means any skilled nursing facility, intermediate care facility, nursing home, assisted living facility, adult foster care home, or any living arrangement in the community through which room and personal care services are provided for elderly residents.

 

R510-200-3. Local LTCO Program Administrative Standards.

A. AAAs shall operate the LTCO Program in accordance with the following standards:

(1) Supervision: All local LTCO shall have an identified supervisor. The person supervising the ombudsman shall meet all requirements for a supervisor as specified by the AAA and shall have at least a general knowledge of long-term care facilities.

B. Staffing: Each AAA shall recommend for certification one or more paid or volunteer staff members to serve as local LTCO.

(a) Persons assigned this responsibility shall have either education or experience in one or more of the following areas: gerontology, long-term care, health care, legal or human service programs, advocacy, complaint and dispute resolution, mediation or investigating.

(b) Assigned individuals shall be certified by the State LTCO within six months after assuming a local LTCO role.

B. The AAA shall have primary responsibility to provide for certified back-up to the local LTCO. AAAs may enter into cooperative agreements with other AAAs to provide for LTCO back-up. In emergency situations, AAAs may request back-up support from the State LTCO.

C. Local ombudsmen shall have no conflict of interest which would interfere with performing the function of this position, including:

(1) direct involvement in the licensing or certification of a long-term care facility or of a provider of a long-term care service;

(2) ownership or investment interest, represented by equity, debt, or other financial relationship in a long-term care facility or a long-term care service;

(3) employment by, or participation in the management of, a long-term care facility;

(4) receiving, or having the right to receive, directly or indirectly, remuneration in cash or in kind under a compensation arrangement with an owner or operator of a long-term care facility.

D. AAAs shall establish, and specify in writing, mechanisms to identify and remove conflicts of interest and to identify and eliminate relationships described in paragraph 3 including mechanisms such as:

(1) methods by which the AAA will examine individuals and immediate family members to identify conflicts; and

(2) actions the AAA will require individuals and family members to take in order to remove those conflicts.

E. Local LTCO shall have the ability to act in the best interests of residents of long-term care facilities, including taking public positions on policies or actions which affect residents. Local LTCO shall not be constrained by the local AAA or governing body from taking a stand in good-faith performance of their job.

(1) AAAs shall have on file a written description outlining the working relationship between the AAA and the ombudsman which spells out arrangements for assuring this ability.

(2) Grievance Procedure

(a) AAAs shall establish a grievance procedure to accept and hear complaints regarding an ombudsman's actions. The procedure shall allow for a final appeal to the Utah State Department of Human Services Office of Administrative Hearings.

(3) Records System

(a) AAAs shall maintain a records classification and retention program in accordance with Sections 63G-2-301 and 63A-12-101 and PL 89-73 42 USC 300-1 et seq.

 

R510-200-4. Local LTCO Classifications and Duties.

A. Ombudsman

An Ombudsman, who may be either a paid staff member or volunteer, may perform the following duties:

(1) investigate complaints and develop an action plan to resolve the complaint;

(2) provide supervision over the implementation of the action plan and any follow-up determined necessary;

(3) review complaints to set complaint response priorities;

(4) assign complaints to staff and volunteers;

(5) provide case consultation to long-term care facility staff; and

(6) perform duties of an assistant ombudsman.

B. Assistant Ombudsman

(1) An Assistant Ombudsman, who may be either a paid staff member or volunteer, may:

(a) provide outreach to residents, families, facilities, and other entities concerned about long-term care;

(b) observe actions and quality of care in long-term care facilities;

(c) perform complaint intake;

(d) provide residents, families, and the general public with information about the LTCO program and resident rights;

(e) provide public presentations;

(f) assist with resolution and follow-up on complaints while under the supervision of a Certified Ombudsman; and

(g) provide technical assistance to the general public and long-term care facility staff.

C. Ombudsman Program Director

(1) An Ombudsman Program Director, who may be the AAA director or his designee, may perform the duties of an Ombudsman, if certified as such, and shall:

(a) provide overall administration of the local ombudsman program;

(b) provide overall supervision of LTCO paid and volunteer staff;

(c) conduct quality assurance and complaint case record reviews;

(d) oversee the screening, hiring, and dismissal of LTCO staff and volunteers; and

(e) assess the need for regulatory changes to improve the quality of care and life for long-term care facility residents and advocate for the passage of those changes.

D. Non-certified Staff or Volunteers

Non-certified staff or volunteers may perform the following functions:

(a) complaint intake;

(b) provide public information and presentations regarding the LTCO program, long-term care in general, and other topics on which they may have expertise, as determined by the AAA;

(c) provide outreach to residents, families, facilities, and other entities concerned about long-term care;

(d) visit long-term care facilities and residents; and

(e) any other activity which does not expressly require certification and for which the AAA has determined the individual competent to engage in on behalf of the AAA or LTCO program.

 

R510-200-5. Certification Curriculum and Training Hours.

A. Assistant Ombudsman: Prior to applying for certification as an Assistant Ombudsman, an individual shall complete a minimum of 18 hours of required initial training and pass the post-test with a minimum score of 70%. This training shall cover the following areas:

(1) An introduction to the LTCO Program, including a discussion of the scope of work of the LTCO.

(2) An overview of the long-term care system, including a discussion of:

(a) the types of long-term care facilities and providers, their organization and operations;

(b) federal and state regulations applicable to long-term care facilities and providers, with an emphasis on resident rights;

(c) long-term care resident profiles and methods of payment for long-term care services;

(d) the aging process and attitudes of aging; and

(e) the Aging Network and the relationship between the AAAs, the State LTCO, and various regulatory agencies.

(3) Ombudsman skills, including:

(a) interpersonal communication, observation, and interviewing;

(b) building working relationships with providers; and

(c) complaint handling, with an emphasis on intake.

(4) An overview of complaint resolution skills, with an emphasis on advocacy, negotiating, empowering residents, and follow-up activities.

(5) LTCO Program policies and procedures, including:

(a) confidentiality;

(b) access to facilities and residents;

(c) complaint investigation and resolution;

(d) reporting; and

(e) ethics.

(6) Case record documentation.

(7) Mediation and negotiation between residents.

(8) Any additional topics deemed appropriate by the State LTCO in consultation with the Division, AAAs, long-term care regulatory agencies and local LTCO Program Directors.

B. Ombudsman: Prior to applying for certification as a local Ombudsman, an individual shall complete a minimum of 30 hours of required initial training and pass the post-test with a minimum score of 70%. This training shall include all training described in Section A plus an additional 12 hours of training covering the following areas:

(1) a more in-depth review of the content areas covered for candidates for certification as ombudsman representatives, including written exercises, case studies, role plays, research exercises, and analysis of systemic issues;

(2) development of a complaint resolution action plan;

(3) legal, administrative, and other remedies;

(4) actions regarding public disclosure of actions or inactions which affect residents of long-term care facilities, including appropriateness, confidentiality of certain information, and how to work with the media;

(5) review of client records;

(6) alternative dispute resolution options for use in complaint handling; and

(7) advocacy skills.

C. Post-tests: The post-tests referred to in Sections A and B shall be developed by the State LTCO and shall be structured in sections to correspond to major training topics. If an applicant does not receive a score of at least 70% on a post-test they shall be eligible to retake the test one time within 30 days. If they do not receive a minimum score of at least 70% on the retake test, they will need to complete the training pertaining to the test sections on which they did not receive a passing score. Upon completion, they will be allowed to take the test one additional time. If a passing score is not obtained, the applicant will be deemed by the State LTCO to not be appropriate for certification as an Assistant Ombudsman or Ombudsman.

D. Ongoing Training: To maintain certification, an assistant ombudsman must complete a minimum of 12 hours of training annually; an ombudsman must complete a minimum of 24 hours of training annually.

(1) The State LTCO will provide for at least 48 hours of LTCO specific training per year. Training shall be scheduled at various times throughout the year and in various locations throughout the State.

(2) During the first year in which a person functions as an assistant ombudsman or ombudsman the required initial training will count toward the annual training requirement;

(3) Relevant training offered in the community can serve to meet annual training requirements in lieu of state-sponsored LTCO training on an hour-for-hour basis. Documentation of attendance at a training, including a copy of the training agenda, shall be submitted to the State LTCO for approval.

 

R510-200-6. Registration and Certification of Ombudsmen and Assistant Ombudsmen.

A. Central Registry

(1) The State LTCO shall maintain a central registry of all local ombudsmen and assistant ombudsmen. The registry shall retain the following information on each:

(a) the ombudsman's or assistant ombudsman's name, address, and telephone number;

(b) a summary of the ombudsman's or assistant ombudsman's qualifications;

(c) the ombudsman's or assistant ombudsman's classification;

(d) the AAA with which the ombudsman or assistant ombudsman is associated;

(e) the most recent date of certification;

(f) a position description which contains any prohibitions applicable to the ombudsman or assistant ombudsman. Prohibitions may include limitation on the duties that may be performed, limitations on the providers the ombudsman or assistant ombudsman may investigate or attempt complaint resolution with, or any limitations due to a conflict of interest; and

(g) information pertaining to any decertification actions and the results of those actions.

(2) Local ombudsman and assistant ombudsman shall register with the State LTCO through the AAA within 30 days of accepting assignment as a local ombudsman or assistant ombudsman.

 

R510-200-7. Decertification of Ombudsmen and Assistant Ombudsmen.

Decertification of an ombudsman or assistant ombudsman may occur through voluntary resignation or decertification by the State LTCO or AAA or sponsoring agency which employs him. A person who has been decertified may not be assigned to ombudsman duties.

A. Involuntary Decertification With Cause:

(1) No ombudsman or assistant ombudsman shall be recommended for involuntary decertification without cause. Cause may include:

(a) failure to follow policies and procedures that conform to the LTCO statute and rules;

(b) performing a function not recognized or sanctioned by the LTCO Program;

(c) failure to meet the required qualifications for certification;

(d) failure to meet continuing education requirements;

(e) intentional failure to reveal a conflict of interest; or

(f) misrepresentation of the ombudsman's or assistant ombudsman's category of certification or the duties he is certified to perform.

(2) The State LTCO and AAAs shall establish, for their respective programs, policies and procedures for recommending decertification. Those policies and procedures shall require that the State LTCO or AAA attempt to help the LTCO or Assistant LTCO attain satisfactory job performance through professional development, supervision, or other remedial actions prior to recommending decertification.

(3) AAAs recommending decertification shall state their reasons in writing and shall provide any relevant documentation to support the recommendation to the State LTCO. Notice of the recommendation for decertification and the basis for the recommendation shall be provided to the local ombudsman or assistant ombudsman at the same time that information is submitted to the State LTCO.

(4) The State LTCO shall review the recommendation and provide written notification of his decision to the AAA and the local ombudsman or assistant ombudsman within ten working days. The AAA or local ombudsman or assistant ombudsman may appeal the State LTCO's decision in accordance with the Department of Human Services Rule R497-100.

(5) When the State LTCO initiates a decertification action against a local ombudsman or assistant ombudsman, the State LTCO shall provide written notification to the AAA and the local ombudsman or assistant ombudsman. The AAA or the local ombudsman or assistant ombudsman may appeal the decision in accordance with the Department of Human Services Rule R497-100.

(6) Upon completion of the decertification actions, the State LTCO shall record the actions and results in the central registry.

B. Voluntary Decertification Without Cause:

When a local ombudsman or assistant ombudsman voluntarily resigns due to personal reasons which would not otherwise affect certification, they shall surrender their LTCO identification card to the AAA. The AAA shall notify the State LTCO of the voluntary decertification. The State LTCO shall record the date of voluntary decertification in the central registry.

C. Voluntary Decertification With Cause:

When a local ombudsman or assistant ombudsman voluntarily resigns for reasons which would otherwise warrant involuntary decertification, they shall surrender their LTCO identification card to the AAA within seven days. The AAA shall notify the State LTCO of the voluntary decertification with cause and shall notify the local ombudsman or assistant ombudsman of the right to a hearing. The State LTCO shall record the date of voluntary decertification in the central registry.

D. Recertification:

(1) A certified local ombudsman or assistant ombudsman who voluntarily requests decertification may apply to have his certification reinstated when he becomes reemployed or accepted as a LTCO staff or volunteer. Any person seeking recertification shall apply in writing, through the AAA, to the State LTCO. The application shall include the date of the most recent decertification action and a summary of any professional development in or experience with ombudsman skills, long-term care services, problem resolution skills or any related skills the applicant may have received since his decertification.

(2) The State LTCO shall review the application and may require the applicant to receive additional professional development, and take an appropriate examination based upon the length of time since the applicant's most recent certification, and the experience or professional development the applicant has accumulated in the interim. The State LTCO shall make notify both the AAA and the applicant of the decision within ten working days.

 

R510-200-8. Operation of the Long-Term Care Ombudsman Program.

A. Intake: The local LTCO Program shall accept and screen referrals from residents, family, facility staff, agency staff and the general community. Ombudsmen and assistant ombudsmen may also serve as the complainant for situations they have personally observed.

(1) If the information indicates that the referral relates to abuse, neglect, or exploitation of a resident, the local LTCO shall refer the complaint to either the local Adult Protective Services (APS) office or local law enforcement. The local LTCO and the APS worker should collaborate on investigating and resolving the complaint whenever possible.

(2) If the information indicates that the referral relates to facilities or operations licensed or certified by the Department of Health Bureau of Medicare/Medicaid Program Certification and Resident Assessment, and the nature of the complaint is other than alleged abuse, neglect or exploitation of a resident, the LTCO shall refer the complaint to the Department of Health. The local LTCO and Department of Health staff should collaborate on investigating and resolving the complaint whenever possible.

(3) Referrals to other agencies shall be made immediately if the situation appears life threatening or, in other situations, within two working days. If a referral is made to another agency, the local LTCO shall complete the intake form, indicating the referral date and entity, and maintain the form as part of the record. The local LTCO shall follow up to see that action was taken by the referral agency.

(4) If the referral involves a resident who is under the age of 60, and the nature of the complaint is limited to impact only on that resident, the local LTCO shall refer the complaint as specified in paragraph (1) or (2) of this section and take no further action. If the referral involves a resident who is under the age of 60 who resides in a facility that has other residents over the age of 60 and the nature of the complaint is such that it impacts those residents, the local LTCO shall refer the complaint as specified in paragraph (1) or (2) of this section as applicable and initiate an investigation.

(5) If the complaint involves residents rights or other issues within the jurisdiction of the LTCO, an investigation shall be initiated to determine if the complaint is valid. Issues within the purview of the LTCO include issues of privacy, confidentiality of information, and other issues relating to the action, inaction, or decisions by providers or representatives of providers of long-term care services, public agencies, or health and human service agencies that may adversely affect the health, safety, welfare, or rights of residents.

B. Investigations:

(1) LTCO investigations shall be initiated within three working days. If the available information indicates serious threat to a resident's life, health or property, the response shall be immediate.

(2) The investigation may involve phone or in-person contacts with the resident and complainant, collateral agency or individual contacts or an on-site investigation. The local LTCO shall:

(a) do a preliminary screening to gather facts and details of the complaint;

(b) categorize the complaint, i.e. resident rights, education, abuse, neglect, technical assistance, etc.;

(c) identify all parties to the complaint;

(d) identify relevant agencies, as required by state and federal statutes;

(e) identify steps already taken by the complainant;

(f) identify information gaps that may require additional research;

(g) determine if an on-site investigation is needed. If it is determined that an on-site investigation is not necessary, the LTCO shall document the reasons in the case file;

(h) determine if the situation is an emergency; and

(i) make verbal or written follow-up with the complainant.

(3) The method and extent of the investigation depends on the circumstances reported. The local LTCO shall complete an intake form on each referral. A complaint consists of the initial referral or any additional contacts regarding the initial referral received during the period that the case is opened. A referral regarding a different matter made during the period the case is opened is considered a new complaint. A referral received after a case is closed is considered a new complaint.

(4) When an on-site investigation is determined to be necessary the local LTCO does not have to give prior notice to the agency or facility in question. The local LTCO may choose to give notice if deemed appropriate. In either case, the ombudsman shall:

(a) upon arrival at the facility or agency, present official identification to the administration or designated person in charge;

(b) identify any factors that may interfere with the investigation;

(c) start the investigatory process to establish as clearly as possible what has happened, why it has happened, who or what is responsible for resolving the complaint, and possible solutions to the problem;

(d) interview the resident, as well as other residents, staff, family, friends and physician as deemed necessary;

(e) make phone calls, on-site observation, review resident records, and make collateral contacts with other agencies and professionals; and

(f) take any other appropriate investigatory actions within the purview of the LTCO Program.

(g) During the course of the investigation, the local LTCO shall look for credible evidence which supports or refutes the complaint. Evidence may be directly observed by the LTCO or indirectly gathered from statements from reliable sources. The State LTCO shall provide consultation and technical assistance regarding the methods used in investigating complaints as requested by the local LTCO.

(h) Ombudsmen shall be provided privacy by the facility or agency during all aspects of the investigative process.

(5) Determining Validity of Complaint

(a) The local LTCO, having gathered evidence regarding the complaint, shall review the evidence to determine whether that evidence supports the allegations made in the complaint. If the local LTCO is uncertain as to whether the complaint is valid, he shall discuss the situation with his supervisor. If further consultation is necessary, contact should be made with the State LTCO, who may suggest additional activities or approaches to the problem. The local LTCO shall gather further evidence from interviews, collateral contacts, and records review, until the body of evidence enables the local LTCO to make a supportable decision regarding validity of the complaint.

(b) Upon determination of the validity of the complaint, the local LTCO shall document the determination and reasons for it in the case file.

(6) Resolution of Complaints

(a) Having determined that the complaint is valid, the local LTCO shall take appropriate steps to resolve the complaint, including:

(i) determining the scope of the problem. Does the problem affect just the residents mentioned in the complaint, or does it affect other residents?

(ii) determining what options exist to resolve the complaint. For example, can the complaint be resolved immediately, will the resolution require negotiation with the facility management, or has the facility already moved to resolve the situation.

(iii) discussing with the resident which of the options are acceptable to resolve the complaint. Determining an acceptable resolution may require negotiation between the parties to achieve an acceptable resolution to the situation.

(iv) developing with the resident and facility a plan to achieve the agreed-upon resolution. The plan may be very simple or may have several steps and involve other agencies. Once the plan is agreed upon, the local LTCO, facility, resident, and other parties shall take action to implement the plan.

(v) making referrals to other agencies if a referrals are required by the plan.

(a) If during the investigation process the local LTCO determines that the incident or activities should be referred to APS, Health Facility Licensure, or Health Facility Review, the LTCO shall immediately make the referral and involve all appropriate agencies.

(b) The local LTCO who has referred the complaint to another agency shall follow up to obtain final results and record the outcome of the other agency's investigation. If the other agency does not respond or if the response is inadequate, the local LTCO may:

(1) contact the agency; or

(2) contact the State LTCO for technical assistance or help in resolving the problem with the other agency; or

(3) collaborate with another advocacy agency, such as the Legal Center for People with Disabilities, the Senior Citizens Law Center, or the local office of Utah Legal Services to resolve the issue and clarify substantive legal rights of elderly residents; or

(4) track on-going problems with an agency or facility to build a body of credible evidence on which to base further action; or

(5) take any other appropriate action within the LTCO scope of authority, including filing legal action against the other agency if the AAA has the legal resources to bring legal action.

(6) compiling documentation of the validity of the complaint, of the agreed-upon outcome, and the steps taken to carry out the plan. The documentation may be summary in nature, but should clearly indicate the situation and its resolution.

(7) determining at what point the case is appropriately closed.

(8) notifying the complainant, verbally or in writing, that the investigation has been completed and the case is closed.

(7) Records

(a) The local LTCO shall maintain a set of records by resident, containing all required forms and relevant documentation, including:

(i) a completed intake form;

(ii) case recording consisting of: the nature of the complaint; validity of complaint and reasons for the determination; plan for resolution; implementation and outcome of plan; and dates and names of any collateral contacts.

(iii) consent forms; and

(iv) copies of any correspondence or written documents pertaining to the complaint, the investigation, the resolution plan, or implementation of the resolution plan.

(b) The local LTCO shall also maintain information by facility relating to all referrals.

(c) All actions, findings, conclusions, recommendations and follow-up shall be documented on the required state forms.

(8) Consent Forms

(a) In order to access resident files maintained in a facility, the local LTCO must attempt to obtain a signed release from the resident or the resident's legal representative. Signed releases shall be maintained in the case file and a copy shall be given to the facility or agency for inclusion in the residents record.

(b) If the local LTCO is unable to obtain written permission, he may get verbal approval from the resident or the resident's legal representative. The date and method of obtaining the verbal approval, e.g. phone contact with guardian, shall be documented in the case file. LTCO shall attempt to have a third-party witness the verbal consent and document it in the record.

(c) If a request for written or verbal consent is denied by the resident or their legal representative, the local LTCO shall not access the records.

(d) If the request for written or verbal consent is unsuccessful for any reason other than specific denial by the resident or legal representative, the local LTCO may proceed to access the records. The reasons for not obtaining consent shall be documented in the case file.

(9) Access to LTCO Records

(a) Records maintained by the local LTCO shall be available to the LTCO, their supervisor, the LTCO Program Director, the State LTCO, and any duly authorized agent of the AAA or the Division with program oversight responsibility. No other staff shall have access to these records.

(b) Residents have the right to read their LTCO records; however, the name of any complainants shall be withheld.

(c) LTCO records shall be released to other persons if the resident provides written consent. The consent form must be filed in the resident's file.

(d) State and federal auditors may have access to LTCO records as required for administration of the program.

(d) Statistical information and other data regarding the LTCO program which does not identify specific residents or complainants is available for public dissemination.

(10) Reporting Requirements to State LTCO

Local LTCO programs shall report to the State LTCO on the operation of the LTCO program. Reports shall include the data required to complete the State's report to the U.S. Department of Health and Human Services, Administration on Aging. Reports shall be submitted within time frames and in a format which shall be mutually agreed upon by the Division and AAAs.

(11) Legal Issues

(a) Legal representation: The Division is responsible for assuring that adequate legal representation is available for local LTCO Programs. AAAs and their governing authorities shall have the option to provide legal representation for their local LTCO Program. If an AAA, through their governing authority, opts not to provide this representation, the Division shall arrange for the representation through the attorney general or through contract. All AAA requests for legal consultation or representation shall be directed to the State LTCO for action. The Division is responsible to assure that no conflict of interest is present in the provision of legal representation to local LTCO Programs.

(b) Liability: The local LTCO must operate within the scope of the ombudsman job description and this policy. Actions such as transporting a client, acting as a guardian or payee, signing consent forms for survey, medication, restraints, etc., signing medical directives, receiving a client power of attorney, and similar actions are outside the scope of the LTCO responsibilities. In doubtful situations the ombudsman should consult with supervisors, legal counsel or the State LTCO.

(c) Guardianship:If a resident has a legal guardian, the local LTCO must work with the guardian. If the local LTCO identifies problems in the guardianship, they will discuss the situation with the local adult protective services staff to determine the advisability of investigating for abuse, neglect, or exploitation. They may also consult legal counsel or present issues to the court which oversees the guardianship.

(12) Volunteers

Local LTCO programs which use volunteers shall follow AAA policy with respect to applications, screening and approval, reference checks, personnel records, reimbursement, supervision, liability and all other relevant aspects of the volunteer program. In addition, volunteers must meet specific training and certification requirements contained in these rules if they are serving in the capacity of local ombudsman or assistant ombudsman.

(13) Public Education

In addition to receiving and investigating complaints, local LTCO Programs are mandated by federal and state statute to provide public education regarding long-term care issues. This may include activities such as frequent presence in facilities, community advocacy, attendance at family or resident councils, technical assistance and in service to long-term care facilities, community organizations, and public information presentations.

 

R510-200-9. Determination of the Responsible Agency for Investigating Particular Cases in Long-Term Care Facilities.

A. Pursuant to Utah Code Section 62A-3-106.5, to avoid duplication in responding to a report of alleged abuse, neglect, or financial exploitation in a long-term care facility, the Division hereby establishes procedures to determine whether Adult Protective Services or the Long-Term Care Ombudsman Program will be responsible to investigate or provide services in a particular case and determine whether, and under what circumstances, the agency that is not the responsible agency will provide assistance to the responsible agency in a particular case.

B. The Long-Term Care Ombudsman Program will be the responsible agency in responding to a report of alleged abuse, neglect, or exploitation of an elderly adult who resides in a long-term care facility in the following cases:

(1) When an allegation of abuse, neglect or exploitation occurs, the Long-Term Care Ombudsman will be the responsible agency in cases other than cases that allege sexual abuse or sexual exploitation;

(2) When an elderly resident of a long-term care facility has allegedly abused, neglected, or financially exploited another resident;

(3) When an employee of a long-term care facility has allegedly abused, neglected, or financially exploited an elderly resident and the facility has terminated the employee;

(4) When the police or local law enforcement have initiated an investigation of alleged abuse, neglect, or financial exploitation.

C. Adult Protective Services will be the responsible agency in responding to a report of alleged abuse, neglect, or exploitation of a vulnerable adult who resides in a long-term care facility in the following cases:

(1) When an allegation of sexual abuse or sexual exploitation of a vulnerable adult is received.

D. The agency that is not the responsible agency will provide assistance to the responsible agency in the following circumstances:

(1) When the responsible agency requests the assistance of the non-responsible agency; or

(2) When the responsible agency is the LTCO and there is evidence that the resident's protective need has not been met.]

R510-200-1. Authority.

(1) Operation of the State Long-Term Care Ombudsman Program is a joint responsibility of the State Long-Term Care Ombudsman, the Division, and local AAAs. Authority to administer the LTCOP is derived from the Older Americans Act (OAA) Title VII: Allotments for Vulnerable Elder Rights Protection Activities and UC 62A-3-201 et seq.

 

R510-200-2. Purpose.

(1) The State Long-Term Care Ombudsman Program is created for the purpose of promoting, advocating, and ensuring the adequacy of care received, and the quality of life experienced by residents of long-term care facilities within the State.

(2) This provision does not limit the authority of the State Long-Term Care Ombudsman Program to provide ombudsman services to populations other than residents of long-term care facilities so long as the appropriations under the Act are utilized to serve residents of long-term care facilities, as authorized by the Act.

 

R510-200-3. Definitions.

(1) "Area Agency on Aging" hereinafter "AAA" is as defined in UC 62A-3-101.

(2) "Direct Supervision" means a supervisor is present at all times, either physically or by telephone.

(3) "Division" is as defined in UC 62A-3-101.

(4) "Family Council" is the organized forum for families, as a group, to influence the quality of care for the residents.

(5) "Government Agency" is as defined in UC 62A-3-202.

(6) "Immediate Family" means a member of the household or a relative with whom there is a close personal or significant financial relationship.

(7) "Long-Term Care Ombudsman," hereinafter "LTCO" means the employees or volunteers designated by the State Long-Term Care Ombudsman to fulfill the duties of the State Long-Term Care Ombudsman Program. They are advocates for resident rights to help protect the quality of life and quality of care for anyone who resides in a long-term care facility.

(8) "Long-Term Care Ombudsman Program," hereinafter "LTCOP" means the Local LTCOP and includes its employees, officers, agents, and volunteers, which are designated by the Division to implement the LTCOP within the defined geographic area of the AAA or Provider Agency.

(9) "Long-Term Care Facility" is as defined in UC 62A-3-202.

(10) "Office of the State Long-Term Care Ombudsman," hereinafter "Office," means the organizational unit in a State or territory which is headed by a SLTCO.

(11) "Provider Agency" is defined as an entity designated by the SLTCO to provide ombudsman services in a particular area.

(12) "Resident" is defined as an individual who resides in a long-term care facility.

(13) "Resident Council" is an independent, organized group of residents living in a long-term care facility that meets on a regular basis to discuss concerns, develop suggestions on improving services, and plan social activities.

(14) "Resident Representative" means, excluding any intention to expand the scope of authority of any resident representative beyond that authority specifically authorized by the resident, State or Federal law, or a court of competent jurisdiction, any of the following:

(a) an individual chosen by the resident to act on behalf of the resident in order to support the resident in decision-making, access medical, social, or other personal information of the resident, manage financial matters, or receive notifications;

(b) a person authorized by State or Federal law (including agents under power of attorney, representative payees, and other fiduciaries) to act on behalf of the resident in order to support the resident in decision-making; access medical, social, or other personal information of the resident; manage financial matters; or receive notifications;

(c) legal representative; or

(d) the court-appointed guardian or conservator of a resident.

(15) "Resident Rights" means the basic human rights that residents of long-term care facilities are entitled to regardless of residency in such facilities.

(16) "State Long-Term Care Ombudsman," hereinafter "SLTCO," means the individual who heads the Office and is responsible to personally or through representatives of the Office, advocate for residents.

(17) "State Long-Term Care Ombudsman Program," hereinafter "SLTCOP," means the program through which the functions and duties of the Office are carried out, consisting of the ombudsman, the Office headed by the ombudsman, and the representatives of the Office.

(18) "Willful Interference" means actions or inactions taken by an individual in an attempt to intentionally prevent, interfere with, or attempt to impede the ombudsman from performing any of his or her responsibilities, or from performing any of the duties of the Office.

 

R510-200-4. Program Administration.

(1) Division.

(a) shall establish a State Office of Long-Term Care Ombudsman (Office). The Office is a distinct entity, separately identifiable, and located within or connected to the Division.

(b) shall require that the SLTCO serve on a full-time basis.

(c) shall not require or request the ombudsman to be responsible for leading, managing, or performing the work of non-ombudsman services or programs except on a time-limited, intermittent basis.

(d) shall ensure that the SLTCO meets minimum qualifications, including demonstrated expertise in:

(i) long-term services and supports or other direct services for older persons or other residents of long-term care facilities;

(ii) consumer-oriented public policy advocacy;

(iii) leadership and program management skills; and

(iv) negotiation and problem resolution skills.

(e) shall ensure that the SLTCO complies with the relevant provisions of the Older Americans Act (OAA) and this rule;

(f) shall ensure that the SLTCO has sufficient authority to fully perform all the functions, responsibilities, and duties of the Office;

(g) shall provide opportunities for training for the SLTCO in order to maintain expertise to serve as an effective advocate for residents;

(h) shall provide personal supervision and management of the SLTCO;

(i) shall integrate the goals and objectives of the Office into the State plan;

(j) shall provide elder rights leadership;

(k) ensure that mechanisms are in place to prohibit and investigate allegations of willful interference, retaliation, and reprisals:

(i) by a long-term care facility, other entity, or individual with respect to any resident, employee, or other person for filing a complaint with, providing information to, or otherwise cooperating with any representative of the Office; or

(ii) by a long-term care facility, other entity, or individual against the ombudsman or representatives of the Office for fulfillment of the functions, responsibilities, or duties enumerated in this rule.

(l) shall provide appropriate sanctions with respect to willful interference, retaliation and reprisals;

(m) shall not have or maintain personnel policies or practices which prohibit the ombudsman from performing the functions and responsibilities of the ombudsman; and

(n) may require that the SLTCO or other employees or volunteers of the Office adhere to the other personnel policies and procedures of the Division which are otherwise lawful.

(2) SLTCO.

(a) the SLTCO is responsible for:

(i) oversight of the statewide LTCOP;

(ii) providing training to local LTCO staff and volunteers;

(iii) provision of public information regarding the LTCOP;

(iv) working with Federal agencies, the State Legislature, other units of State government agency, and other agencies to obtain funding and other resources;

(v) developing cooperative relationships among agencies involved in long-term care;

(vi) resolving conflicts among agencies regarding long-term care;

(vii) assuring consistent, statewide reporting of LTCOP activities;

(viii) monitoring local LTCOPs on an annual basis, or as needed as determined by the SLTCO to ensure that LTCOP goals are being met;

(ix) providing technical assistance to local LTCOPs;

(x) maintaining close communication and cooperation in the LTCO statewide network;

(xi) recommending rules governing implementation of the LTCOP; and

(xii) providing overall leadership for the Utah LTCOP.

(b) the SLTCO shall propose to the State agency, hereinafter "Division" policies, procedures, and standards for administration of the ombudsman program including:

(i) leadership and personal oversight of the statewide LTCOP, including:

(A) final approval in hiring of local LTCO Representatives of the Office;

(B) final approval and/or determination in decertification of local LTCO Representatives;

(C) monitoring the performance of local Ombudsman entities; and

(D) evaluating statewide LTCOP performance.

(c) identify, investigate, and resolve complaints that:

(i) are made by, or on behalf of, residents; and

(ii) relate to action, inaction, or decisions, 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), of:

(A) providers, or representatives of providers, of long-term care services;

(B) public agencies; or

(C) health and social service agencies.

(d) provide services to assist the residents in protecting the health, safety, welfare, and rights of the residents;

(e) inform residents about means of obtaining services provided by the Ombudsman Program;

(f) ensure that residents have regular and timely access to the services provided through the Office and that the residents and complaints receive timely responses from the representatives of the Office to complaints;

(g) represent the interests of the residents before governmental agencies and seek administrative, legal, and other remedies to protect the health, safety, welfare, and rights of the residents;

(h) long-term care advocacy:

(i) prioritize abuse, gross neglect, exploitation, and time-sensitive complaints;

(ii) coordinate with statewide and national advocacy organizations involved in long-term care issues; and

(iii) maintain awareness of current issues and trends in long-term care.

(i) provide administrative and technical assistance to ombudsman entities to assist the entities in participating in the program;

(j) practice vigilance regarding laws and regulations that pertain to the Office by:

(i) analyze, facilitate public comment on, recommend any changes in, and monitor the development and implementation of Federal, State, and local laws, regulations, and other governmental agency policies and actions, that pertain to the health, safety, welfare, and rights of the residents;

(k) the SLTCO and representatives of the Office must be excluded from State lobbying prohibitions that conflict with OAA provisions. They must have the ability, without representing the positions of the State, Division or other entity housing the Office, to make independent determinations and establish positions and opinions of the office regarding:

(i) disclosure of information maintained by the LTCOP;

(ii) recommendations to changes in laws, regulations, policies, and actions; and

(iii) provision of information to public and private agencies, legislators, the media, and others, regarding the problems and concerns of residents and recommendations related to those problems and concerns.

(l) providing for the certification and training of local LTCO to carry out LTCOP services of investigating and resolving complaints, conducting consultations, and providing information about the LTCOP;

(m) through adoption of memoranda of understanding and other means, the SLTCO shall lead state-level coordination and support appropriate local ombudsman entity coordination, between the Ombudsman Program and other entities with responsibilities relevant to the health, safety, well-being, or rights of residents of long-term care facilities.

(3) Fiscal Management.

(a) the SLTCO shall determine the use of fiscal resources appropriated or otherwise available for the operation of the Office by:

(i) where local ombudsman entities are designated, the ombudsman shall approve the allocations of Federal and State funds provided to such entities, subject to applicable Federal and State laws and policies; and

(ii) the ombudsman shall determine that program budgets and expenditures of the Office and local ombudsman entities are consistent with laws, policies, and procedures governing the Ombudsman Program.

(4) Annual Report.

(a) the SLTCO shall independently develop and provide final approval of an annual report. Such report shall:

(i) describe the activities carried out by the Office in the year for which the report is prepared;

(ii) contain analysis of Ombudsman Program data;

(iii) describe evaluation of the problems experienced by, and the complaints made by, or on behalf of, residents of long-term care facilities;

(iv) contain policy, regulatory, and/or legislative recommendations for improving quality of the care and life of the residents; protecting the health, safety, welfare, and rights of the residents; and resolving resident complaints and identified problems or barriers;

(v) contain analysis of the success of the Ombudsman Program. Including success in providing services to residents of long-term care facilities (nursing homes and assisted living facilities);

(vi) describe barriers that prevent the optimal operation of the Ombudsman Program;

and

(vii) be provided to the following committees of the Utah State Legislature:

(A) House Health and Human Services Committee;

(B) Senate Health and Human Services Committee; and

(C) Social Services Appropriations Committee.

(b) in order to complete the required annual report, the SLTCO shall collect an annual report from each local ombudsman entity. Such report shall adhere to the guidelines set forth in this section.

(5) Information and Assistance.

(a) the SLTCO shall provide information and referrals regarding long-term care issues and the LTCOP to the general public, residents, community organizations, and other agencies.

(6) Technical Assistance.

(a) the SLTCO shall:

(i) provide specialized technical assistance, consultation, training, and resources to local LTCOs, provider agencies, and the Division related to the operation of the LTCOP;

(ii) provide statewide LTCOP data as available;

(iii) monitoring of the local LTCOP;

(iv) maintain activities and complaint data for the statewide LTCOP regarding Program components; and

(v) may make site visits or assign a designee to evaluate local LTCO Entities.

(7) Central Registry.

(a) the SLTCO shall maintain a central registry of all local ombudsmen. The registry shall retain the following information on each:

(i) the ombudsman's name, address, and telephone number;

(ii) a summary of the ombudsman's qualifications;

(iii) the AAA with which the ombudsman is associated;

(iv) the most recent date of certification;

(v) any conflict of interest; and

(vi) any information pertaining to any decertification actions and the results of those actions.

 

R510-200-5. Program Components.

(1) Program Components.

(a) each local LTCOP shall provide services to protect the health, safety, welfare and rights of residents.

(b) the following services, known as Program Components, shall be performed in accordance with the following procedures and standards and as directed by the Office of the SLTCO:

(i) intake, investigation, and complaint processing;

(ii) access to resident's records;

(iii) preparation and maintenance of records;

(iv) information and assistance;

(v) community education;

(vi) routine visits;

(vii) advocacy;

(viii) interagency coordination;

(ix) resident and family council activities;

(x) advisory council development;

(xi) volunteer management; and

(xii) consultations.

 

R510-200-6. Area Agency on Aging/Provider Agency Responsibilities.

(1) The AAA/Provider Agency shall:

(a) administer the contract for the daily operation of the local LTCOP in its service area, including:

(i) meet the criteria to administer the local LTCOP contract;

(ii) fiscal and Program monitoring of the local LTCOP in order to assess provision of LTCO services pursuant to the contract;

(iii) provide annually a fiscal report to the SLTCO;

(iv) provide an annual report to the SLTCO. Such report shall:

(A) describe the activities carried out by the AAA/Provider Agency for the year in which the report is prepared;

(B) contain analysis of the LTCOP data for the area covered by the AAA/Provider Agency;

(C) describe evaluation of the problems experienced by, and the complaints made by, or on behalf of, residents of long-term care facilities for the area covered by the AAA/Provider Agency;

(D) contain analysis of the successes and failures of the LTCOP for the area covered by the AAA/Provider Agency; and

(E) describe barriers that prevent the optimal operation of the LTCOP in the area covered by the AAA/Provider Agency.

(v) monitoring local LTCOP attainment of its goals and objectives as stated in the Local LTCOP Annual Plan; and

(vi) ensure that all long-term care facilities in the coverage area of the AAA/Provider Agency are visited at least quarterly for a non-complaint related walk-through.

(b) support the local LTCOP by:

(i) providing opportunities for the local LTCOP and other aging and social services organizations to collaborate to promote the health, safety, welfare and rights of residents;

(ii) making referrals to the local LTCOP;

(iii) promoting awareness of LTCO services to consumers and the general public within the service area; and

(iv) supporting the local LTCOP in systems advocacy on behalf of residents of long-term care facilities.

(c) assure that local LTCOP data is provided to the Office of the SLTCO in the format required;

(d) prohibit disclosure of the identity of any complainant or resident of a long-term care facility with respect to LTCO files or records;

(e) provide a transition plan to minimize disruption in LTCO services to residents of long-term care facilities when the contract for the local LTCOP is terminated or not renewed;

(f) perform each of its responsibilities in administering the local LTCOP in accordance with all applicable Federal and State laws, regulations, and rules, as directed by the SLTCO;

(g) act as the sole provider of LTCO services in the service area designated through contract;

(h) operate the local LTCOP in accordance with the provisions of the contract for LTCO services with the Division;

(i) provide LTCO staff in addition to the LTCO Supervisor if necessary in order to fulfill the program components and maintain or exceed the level of services provided in the service area during the previous fiscal year;

(j) restrict access to records located with the Provider Agency to certified LTCO staff only;

(k) assure LTCO attendance at certification training and all mandatory statewide LTCO trainings;

(l) provide professional development opportunities for LTCO staff;

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

(n) arrange, in consultation with the SLTCO, for temporary provision of LTCO services in the service area when the LTCO staff of the AAA/Provider Agency are unavailable or the staff position is vacant;

(o) request a temporary waiver from the SLTCO if, due to unusual circumstances, it anticipates it will be unable to comply with any of these responsibilities;

(p) shall not have or maintain personnel policies or practices which prohibit a representative of the LTCOP from performing the required duties; and

(q) may require that representatives of the LTCOP adhere to the other personnel policies and procedures of the AAA/Provider Agency, which are otherwise lawful.

 

R510-200-7. Long-Term Care Ombudsman Responsibilities.

(1) Certified Long-Term Care Ombudsman Responsibilities.

(a) the SLTCO and representatives of the Office shall be excluded from abuse reporting requirements including when the reporting would disclose identifying information of a resident or complainant without consent or court order, with the exception of:

(i) if the SLTCO or LTCO personally witnesses suspected abuse, gross neglect, or exploitation of a resident, the ombudsman shall seek communication of informed consent from such resident to disclose resident-identifying information to appropriate agencies; or

(ii) if resident is unable to communicate consent, the ombudsman shall follow the consent protocol outlined in section R510-200-20.

(b) providing LTCO services to protect the health, safety, welfare and rights of residents of long-term care facilities in accordance with the provisions of the Federal and State laws governing the LTCO and in accordance with the provisions of the Provider Agency contract for LTCO services;

(c) fulfilling the program components outlined in contractual agreement;

(d) documenting LTCO activities and case work as required by the rules, regulations, and requests by the SLTCO;

(e) visit all long-term care facilities in the coverage area of the AAA/Provider Agency at least quarterly for a non-compliant related walk through;

(f) prohibiting inappropriate access to LTCO records in the possession of the LTCOP;

(g) completing data entry into the ombudsman computer program by:

(i) including case information in all fields of:

(A) case management;

(B) activities;

(C) consultations; and

(D) other required information.

(h) assuring all data is updated, completed, and dispensed to the SLTCO for NORS and other reporting requests or requirements;

(i) performing each responsibility in accordance with all applicable Federal and State laws, regulations, and policies, and keeping the SLTCO informed of all critical issues as they arise; and

(j) follow complaint process procedures as follows:

(i) investigate complaints and develop an action plan to resolve the complaint;

(ii) provide supervision over the implementation of the action plan and any follow-up determined necessary;

(iii) set complaint response priorities;

(iv) assign complaints to staff, including volunteers; and

(v) provide case consultations as requested.

(k) actions that are outside the scope of authority of a LTCO and are not the responsibility of a LTCO include:

(i) transporting a client;

(ii) providing clients services that should be provided by the facility in which they reside;

(iii) acting as a guardian;

(iv) acting as a payee;

(v) signing consent forms for survey, medication, or restraints;

(vi) signing medical directives; and

(vii) receiving client power of attorney.

 

R510-200-8. Volunteer Management.

(1) This rule incorporates by reference UC 62A-3-203; UC 62A-3-204.

(2) AAA/Provider Agency Role.

(a) the local Provider Agency of the LTCOP shall develop written procedures for recruitment, training, and oversight of volunteers with the express approval of the SLTCO.

(b) the procedures shall be consistent with the Ombudsman Program including training and certification requirements as set forth by the SLTCO.

(3) SLTCO Role.

(a) the SLTCO shall provide technical assistance to assist each local LTCOP in developing and maintaining its volunteer program.

(4) LTCO Staff Role.

(a) LTCO staff must ensure direct supervision of the LTCO volunteer program; include all LTCO volunteers within their defined geographic area of the AAA or Provider Agency.

(5) LTCO Volunteer Role.

(a) a volunteer who has met the certification requirements shall:

(i) work under the direct supervision of a LTCO staff person as designated by the LTCO supervisor;

(ii) be qualified to perform ombudsman responsibilities including provision of the program components;

(iii) provide appropriate documentation and reporting requirements to the local LTCOP of all activities done on behalf of the LTCOP; and

(iv) perform his or her responsibilities in accordance with all applicable Federal and State laws, rules, regulations, policies, and procedures.

 

R510-200-9. Designation of Service Providers.

(1) This rule incorporates by reference UC 62A-3-204.

(2) Designation of Ombudsman Programs: the SLTCO may designate provider agencies to provide ombudsman services throughout Utah.

(3) Criteria for Designation as a Provider Agency: to be eligible for designation as a Provider Agency, an entity must:

(a) be a government agency or nonprofit entity;

(b) not have any organizational conflicts of interest identified in R510-200-14 without an appropriate remedy of conflict of interest approved by SLTCO.

(c) have demonstrated to the satisfaction of the SLTCO personally, or a representative of the Office with final approval from the SLTCO, the capability to carry out the responsibilities of the Office; and

(d) meet all requirements of this Rule.

(4) Process for Designation when the AAA Serves as the Provider Agency.

(a) the SLTCO may designate the AAA as the Provider Agency where:

(i) the AAA meets the criteria for designation;

(ii) the AAA is not otherwise prohibited from fulfilling the duties of the Provider Agency; and

(iii) the execution date (State fiscal year) of the AAA's contract with the Division to provide LTCOP services shall constitute the effective date of the designation.

(5) Process by which the AAA sub-contracts with and designates another entity as the Provider Agency.

(a) the AAA may enter into a contract with a Provider Agency for the provision of the LTCOP services in their designated geographical service area. Said contract must:

(i) specify the service area;

(ii) require the Provider Agency to adhere to all applicable Federal and State laws, regulations, and policies; and

(iii) provide that the contract automatically terminates if the AAA or the Provider Agency is de-designated by the SLTCO.

(b) the execution date (State fiscal year) of the Provider Agency's contract with the AAA to provide LTCOP Services shall constitute the effective date of the designation.

(c) should the contract between the Provider Agency and the AAA to provide LTCOP services not be renewed or be terminated for any reason, the AAA shall immediately notify the SLTCO.

(6) Process for designation of a Provider Agency, where the Division contracts directly with the Provider Agency.

(a) where the contract for the LTCOP services is not with or through the AAA, the SLTCO may designate a Provider Agency as follows:

(i) Division shall issue a Request for Proposal (RFP), approved by the SLTCO, seeking an entity to provide LTCOP services within a particular service area. The RFP shall identify the criteria for designation as a Provider Agency and shall request submission of documents supporting the entity's claim to meet these criteria; and

(ii) Division shall require that all responding entities develop an ombudsman services plan setting forth:

(A) the goals and objectives of such entity in providing LTCOP services;

(B) a description of how each Program Component, from section R510-200-5, SLTCOP Program Administration, shall be met including its staffing plan for the local LTCOP; and

(C) a description of the resources, which will be provided to assist in the operation of the local LTCOP.

(b) Division may contract with a Provider Agency to provide LTCOP services. Such contract must:

(i) specify the service area;

(ii) require the Provider Agency to adhere to all applicable Federal and State laws, regulations, and policies; and

(iii) state that the contract will be automatically terminated if the provider is de-designated by the SLTCO.

(c) the execution date of the Provider Agency's contract with the Division to provide ombudsman services shall be the effective date of the designation.

 

R510-200-10. De-Designation of Service Providers.

(1) Criteria for De-designation.

(a) the SLTCO may de-designate an entity, including an AAA, as a Provider Agency for one or more of the following reasons:

(i) failure to continue to meet the criteria for designation;

(ii) existence of a conflict of interest with the LTCOP as outlined in section R510-200-14, Conflicts of Interest;

(iii) failure to disclose any conflict of interest;

(iv) violation of SLTCO confidentiality requirements as outlined in section R510-200-24, Confidentiality;

(v) failure to provide adequate LTCO services;

(vi) failure to fill a vacant ombudsman position;

(vii) failure to use funds designated for the LTCOP for LTCO services or as directed by the SLTCO as outlined in section R510-200-4, Program Administration;

(viii) failure to adhere to the terms of the contract for the provision of ombudsman services; or

(iv) failure to adhere to applicable Federal and State laws and regulations.

(2) Process for De-designation of a Provider Agency.

(a) when an AAA serves as a Provider Agency, the process to de-designate the Provider Agency shall be as follows:

(i) the SLTCO shall send notice of the intent to de-designate to the AAA. Notice shall include the reason for de-designation;

(ii) the Provider Agency shall respond in writing to the notice within ten business days, outlining its plan to reach compliance; and

(iii) after ten business days have passed, and at its sole discretion, SLTCO may amend or terminate the contract between the AAA and the Division.

(b) when an AAA contracts with a Provider Agency, the process to de-designate the Provider Agency shall be as follows:

(i) the SLTCO shall send notice of the intent to de-designate to the AAA and the Provider Agency. Notice shall include the reason for de-designation;

(ii) the AAA and SLTCO shall provide for the continuation of ombudsman services by ensuring that either the SLTCO or the AAA are providing services to that specific area;

(iii) the Provider Agency shall respond within ten business days, outlining its plan to reach compliance; and

(iv) after ten business days have passed, and at the discretion of the AAA and the SLTCO, an AAA may terminate its contract for LTCO services with the Provider Agency.

(c) when a Provider Agency contracts directly with the Division, the process to de-designate the Provider Agency shall be as follows:

(i) the SLTCO shall send notice of the intent to de-designate to the Provider Agency. Notice shall include the reason for de-designation;

(ii) the SLTCO shall ensure the provision of continued ombudsman services;

(iii) the Provider Agency shall respond in writing to the notice within ten business days, outlining its plan to come into compliance;

(iv) after ten business days have passed, and at its sole discretion, the SLTCO may terminate the contract with the Provider Agency; and

(v) when immediate de-designation is deemed necessary, the Provider Agency shall respond in writing to the notice of immediate de-designation within five business days, outlining its plan to come into compliance.

(3) Voluntary Withdrawal of a Provider Agency.

(a) a Provider Agency may voluntarily relinquish its designation by:

(i) providing written notice 90 days in advance of the date of relinquishment of designation to the SLTCO and AAA; and

(ii) maintaining and performing program activities during the 90 days.

(4) Continuation of Ombudsman Services.

(a) when a Provider Agency is in the process of appealing its de-designation or has relinquished its designation:

(i) the SLTCO or the AAA, if applicable, may arrange for the provision of ombudsman services until a new Provider Agency is designated;

(ii) the Provider Agency shall, at the sole discretion of the SLTCO, surrender any equipment and supplies purchased with State or Federal funds designated for LTCO services; and

(iii) the Provider Agency shall surrender the balance of any advanced State or Federal monies to the AAA, or to the SLTCO where the AAA serves as the Provider Agency.

(5) Appeal Procedures of De-Designation.

(a) the Provider Agency may file an appeal with the Director of the Division to have complaints heard regarding any de-designation activities by:

(i) contacting the Director in writing within ten business days of the SLTCO final decision for de-designation; and

(ii) address directly:

(A) the stated reason for de-designation;

(B) how the Provider Agency has made corrections and come into compliance;

(C) how said corrections qualify the Provider Agency for re-designation; and

(D) sub-contracted agencies must use this process to appeal directly to the AAA.

(b) where the Director of the Division denies the appeal for re-designation, final appeal may be made to the State of Utah Department of Human Services Deputy Director by:

(i) contacting the Deputy Director in writing within ten business days of the Division Director's denial; and

(ii) address directly:

(A) the stated reason for de-designation;

(B) the stated reason for denial of appeal for re-designation;

(C) how the Provider Agency has made corrections and come into compliance; and

(D) how said corrections qualify the Provider Agency for re-designation.

 

R510-200-11. Certification of an Individual as an Ombudsman.

(1) Criteria for certification as an ombudsman.

(a) to be certified as a LTCO, an individual must:

(i) demonstrate ability to carry out the responsibilities of a LTCO;

(ii) ombudsman staff, with the exception of volunteers and staff hired prior to July 1, 2018, must have a bachelor's degree in social work or related field and/or three years of experience in a related field or approval from the SLTCO if the best candidate does not have the degree or experience;

(iii) have taken and passed a criminal background check through the Utah Department of Public Safety Bureau of Criminal Identification (BCI) paid for by the individual, or the corresponding AAA, or the contract provider;

(iv) be reviewed in the Adult Protective Services (APS) Perpetrator registry as incorporated by reference UC 62A-3-311 to ensure APS has not registered a supported finding against the individual for abuse, neglect, or exploitation;

(v) be free of conflicts of interest;

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

(vii) complete the certification training requirements;

(viii) complete the certification testing requirement as soon as possible, but no later than six months after beginning the certification training that is approved by the SLTCO; and

(ix) must have a general knowledge of long-term care facilities and/or gerontology, long-term care, health care, legal or human service programs, advocacy, complaint and dispute resolution, mediation, or investigation.

(2) Notification of Certification.

(a) provided that all certification requirements have been met, the SLTCO shall:

(i) send a State authorized certification badge to the individual being designated as a LTCO within 30 days of completion of certification requirements.

(3) Training and Certification Requirements for ombudsman.

(a) there is one tier of Ombudsmen, the following requirements apply for both paid staff and volunteers:

(i) to become a certified ombudsman, 40 hours of classroom training is required in addition to any previous classroom training and 20 hours of job shadowing. Appropriate training shall be established by and at the sole discretion of the SLTCO; and

(ii) the position of certified ombudsman requires multiple examinations. These exams:

(A) require scores of 70% or higher;

(B) failure to achieve 70% will result in the opportunity for the examinee to retake the exams once within 30 days;

(C) failure to achieve 70% on a second attempt will result in a requirement to receive further training; or

(D) failure to achieve 70% on a third attempt will result in the examinee's disqualification for certification.

(4) Recertification.

(a) the SLTCO will provide for a minimum of 24 hours LTCO specific training annually including:

(i) a two day annual mandatory training for all certified LTCO; or

(ii) an attendance exception may be granted by the SLTCO at his discretion.

(b) for first year LTCO, the required initial training will accrue toward the annual training requirement.

(c) with documentation of attendance, community training related to the long-term care population can serve to meet annual training requirements in lieu of State sponsored LTCO training.

(d) to be re-certified as a LTCO, an individual must:

(i) fulfill LTCO responsibilities as outlined in R510-200-7, Long-Term Care ombudsman Responsibilities;

(ii) renew certification each year by completing a minimum of 24 hours of continued education, as approved by SLTCO; and

(iii) pass a criminal background check through the Utah Department of Public Safety BCI every three years, or at the request of the SLTCO, paid for by the corresponding AAA or contract provider.

(e) after any absence of 12 months or more, the LTCO must complete the full required certified ombudsman training

 

R510-200-12. De-Certification of an Individual as an Ombudsman.

(1) Criteria for de-certifying an ombudsman.

(a) the SLTCO shall de-certify a LTCO for any of the following reasons:

(i) failure of the individual to meet and/or maintain the criteria for certification;

(ii) existence of a conflict of interest;

(iii) intentional failure of the individual to disclose any conflict of interest;

(iv) performing a function not recognized or sanctioned by the LTCOP;

(v) violation of the confidentiality requirements;

(vi) failure to fulfill LTCO responsibilities as outlined in R510-200-7, Long-Term Care Ombudsman Responsibilities;

(vii) falsifying records;

(viii) failure to follow the direction of the SLTCO, or designee, regarding LTCO procedures and practices;

(ix) a change in employment duties which is incompatible with LTCO duties; or

(x) separation from the LTCOP including:

(A) termination of employment by the Provider Agency;

(B) non-fulfillment of job responsibilities;

(C) termination or non-renewal of Provider Agency's contract for provision of LTCO services; or

(D) failure to act in accordance with applicable Federal and State laws and regulations.

(2) Process to de-certify an ombudsman.

(a) prior to de-certifying, the SLTCO shall:

(i) consult with the relevant AAA and/or Provider Agency to consider remedial actions that could be taken to avoid de-certification; and

(ii) discuss with the relevant AAA and/or Provider Agency the impact of the action which led to de-certification.

(b) the SLTCO shall provide written notice of intent to the LTCO to be de-certified and the Provider Agency. Such notice shall:

(i) specify the reasons for the intended de-certification; and

(ii) set for the effective date of the de-certification.

(3) Upon completion of the decertification actions, the SLTCO shall record the actions and results in the central registry.

 

R510-200-13. Refusal to Certify an Individual as an Ombudsman.

(1) Criteria for Refusal to Certify an Individual as an ombudsman.

(a) the SLTCO shall refuse to certify an individual as a LTCO for any of the following reasons:

(i) it is determined by the SLTCO that the individual does not exhibit the necessary skills for the position;

(ii) failure of the individual to meet and/or maintain the criteria for certification;

(iii) existence of a conflict of interest;

(iv) failure of the individual to disclose any conflict of interest; or

(v) falsifying records.

(2) Process for Refusal to Certify an Individual as an ombudsman.

(a) prior to refusing to certify, the SLTCO shall:

(i) consult with the relevant AAA and/or Provider Agency to consider remedial actions that could be taken to avoid refusal to certify.

(b) the SLTCO shall refuse to certify an individual as a LTCO by providing written notice of such refusal to the administrating agency supervisor. Such notice shall:

(i) specify the reasons for the refusal to certify; and

(ii) set forth the effective date of such refusal.

 

R510-200-14. Conflicts of Interest.

(1) A conflict of interest exists in the LTCOP when interests intrude upon, interfere with, or threaten to negate the ability of the LTCO to advocate without compromise on behalf of long-term care facility residents. The LTCO shall have no conflict of interest that would interfere with performing the function of this position.

(2) Organizational Conflicts.

(a) organization conflicts arise when the LTCOP is placed with a service provider that:

(i) is responsible for licensing, surveying, or certifying long-term care facilities (45 CFR 1324.21(a)(1));

(ii) is an association (or an affiliate of such an association) of long-term care facilities, or of any other residential facilities for older individuals or individuals with disabilities ((OAA Sec. 712(f)(2)(A)(ii)) and (45 CFR 1324.21(a)(2)); NOTE: OAA citation does not have "or individuals with disabilities");

(iii) is responsible for licensing, certifying, or surveying long-term care services in the State (OAA Sec. 712(f)(2)(A)(i));

(iv) has any ownership or investment interest (represented by equity, debt, or other financial relationship) in, or receives grants or donations from, a long-term care facility (45 CFR 1324.21(a)(3));

(v) has governing board members with any ownership, investment or employment interest in long-term care facilities (45 CFR 1324.21(a)(4));

(vi) provides long-term care to residents of long-term care facilities, including the provision of personnel for long-term care facilities or the operation of programs which control access to or services for long-term care facilities (45 CFR 1324.21(a)(5));

(vii) provides long-term care services, including programs carried out under a Medicaid waiver approved under section 1115 of the Social Security Act (42 U.S.C. 1315) or under subsection (b) or (c) of section 1915 of the Social Security Act (42 U.S.C. 1396n), or under a Medicaid State plan amendment under subsection (i), (j), or (k) of section 1915 of the Social Security Act (42 U.S.C. 1396n) (OAA Sec. 712(f)(2)(A)(iii));

(viii) provides long-term care case management (OAA Sec. 712(f)(2)(A)(iv));

(ix) provides long-term care coordination or case management for residents of long-term care facilities (45 CFR 1324.21(a)(6));

(x) sets reimbursement rates for long-term care facilities (45 CFR 1324.21(a)(7));

(xi) sets rates for long-term care services (OAA Sec. 712(f)(2)(A)(v));

(xii) provides adult protective services (OAA Sec. 712(f)(2)(A)(vi) and (45 CFR 1324.21(a)(8));

(xiii) is responsible for eligibility determinations for the Medicaid program carried out under title XIX of the Social Security Act (42 U.S.C. 1396 et seq.) (OAA Sec. 712(f)(2)(A)(vii));

(xiv) is responsible for eligibility determinations regarding Medicaid or other public benefits for residents of long-term care facilities (45 CFR 1324.21(a)(9));

(xv) conducts preadmission screening for placements in facilities described in clause (ii) (OAA Sec. 712(f)(2)(A)(viii); 45 CFR 1324.21(a)(10) language has essentially the same meaning;

(xvi) makes decisions regarding admission or discharge of individuals to or from such facilities (OAA Sec. 712(f)(2)(A)(ix); 45 CFR 1324.21(a)(11) language has essentially the same meaning);

(xvii) provides guardianship, conservatorship or other fiduciary or surrogate decision making services for residents of long-term care facilities (45 CFR 1324.21(a)(12));

(xviii) any other service (e.g., Name of Service) provided by the agency that could pose a potential or actual conflict of interest, including other work done by LTCOP employees;

(xix) any other perceived or actual conflicts of interest from the resident/consumer/general public perspective with the LTCOP; or

(xx) where there is a shared "front door" to the agency where the LTCOP is located, how the agency determines where to direct calls, emails, or other contacts that come in to the agency.

(3) Individual ombudsman conflicts.

(a) conflicts for a LTCO include the following:

(i) involvement in the licensing or certification of a long-term care facility or provision of a long-term care service, including solicitation of employment by LTCO or a member of his/her immediate family;

(ii) ownership, operational, or investment interest (represented by equity, debt, or other financial relationship) in an existing or proposed LTC facility or LTC service by LTCO or a member of his/her immediate family;

(iii) employment or solicitation of employment of LTCO or a member of his/her immediate family by a LTC facility; participation in the management of a LTC facility by LTCO or a member of his/her immediate family;

(iv) receipt of, or right to receive, directly or indirectly, remuneration (in cash or in kind) under a compensation arrangement with an owner or operator of a LTC facility by LTCO or a member of his/her immediate family;

(v) accepting any gifts or gratuities, including meals, from a LTC facility or resident or resident representative or being named as the beneficiary of an estate, will, or trust of resident, or resident representative;

(vi) accepting money or any other consideration from anyone other than the Provider Agency or other entity designated by the Office for the performance of an act in the regular course of LTC ombudsman duties;

(vii) 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 LTC residents in the service area;

(viii) participation in pre-admission screening or case management for LTC residents;

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

(x) participation in activities which negatively impact the LTCO's ability to serve residents, or are likely to create a perception that the LTCO's interest is other than as a resident advocate.

(b) under no circumstances shall a LTCO be appointed or employed who has been employed by or participating in the management of a long-term care facility within the previous twelve months.

(4) Completing a Conflict of Interest Agreement.

(a) to ensure compliance with conflict of interest standards:

(i) all staff and volunteers requesting ombudsman certification will update their conflict of interest information upon hiring and then annually at the beginning of the Federal Fiscal Year (FFY), and on an as needed basis as determined by the SLTCO, to affirm that they are in compliance; and

(ii) SLTCO will review conflict of interest with all LTCO annually at the beginning of FFY.

(5) Remedying Conflict.

(a) where an actual or potential conflict of interest within the LTCOP has been identified, all agents of the AAAs, provider agencies, and LTCOs have an affirmative duty to notify the SLTCO of said conflict.

(b) the SLTCO shall determine whether appropriate actions may be taken to sufficiently remedy the conflict.

(c) a conflict can be sufficiently remedied only:

(i) where the existence of the conflict does not and cannot interfere with any duties of the LTCOP; and

(ii) where the conflict is not likely to alter the perception of the LTCOP as an independent advocate for residents of long-term care facilities.

(6) Remedying Organizational Conflict.

(a) where organizational conflicts have been identified within an AAA, Provider Agency, or governing board, the following steps shall be taken to ensure the conflict can be sufficiently remedied:

(i) a written remedial plan shall be developed within ten business days of identification of the conflict to the SLTCO;

(ii) the remedial plan must identify the actual conflict and provide assurances, which shall mitigate the negative impact of the conflict on the LTCOP;

(iii) the AAA, Provider Agency, or governing board shall cease all LTCO activities during the remedial period; and

(iv) the remedial plan must be mutually agreed upon and signed by the agency in which the conflict exists and by the SLTCO.

(7) Remedying individual ombudsman conflicts.

(a) where individual conflicts have been identified, the following steps shall be taken to ensure the conflict can be sufficiently remedied:

(i) development of a written remedial plan:

(A) where the individual is an applicant for a position as a 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 volunteer ombudsman, a plan shall be developed before the individual is certified; or

(C) where the individual is a LTCO staff or volunteer, a plan shall be developed within ten business days of identification of the conflict to the SLTCO. No action shall be taken by the individual on behalf of the LTCOP until the plan is submitted to the SLTCO.

(ii) the remedial plan must:

(A) identify the actual conflict; and

(B) provide assurances, which shall mitigate the negative impact of the conflict on the LTCOP.

(iii) the remedial plan must be mutually agreed upon between the individual LTCO and the SLTCO; and

(iv) ombudsmen are not permitted to serve residents in facilities with which they have a conflict of interest except at the determination of the SLTCO.

(8) Failure to Identify or Remedy a Conflict of Interest.

(a) failure on the part of a LTCO or Provider Agency to identify and report to the SLTCO a conflict of interest may:

(i) be grounds for refusal to certify;

(ii) may result in the de-certification of the LTCO and/or the AAA/Provider Agency; or

(iii) may result in the termination of the LTCO or termination of the contract between the LTCOP and the AAA/Provider Agency.

(b) existence of an un-remedied conflict of interest could be grounds for:

(i) the de-certification of the LTCOP headed by the AAA/Provider Agency and termination of the contract between the AAA/Provider Agency and the LTCOP;

(ii) de-certification of an LTCO; or

(iii) termination of an LTCO.

(c) appeals may be made following the Grievance Procedure process found in part R510-200-16.

(9) Division, AAAs, and Provider Agencies.

(a) when considering the employment or appointment of an individual as the LTCO, Division, AAAs and Provider Agencies shall:

(i) take reasonable steps to avoid employing or appointing an individual who has an unremedied conflict of interest or who has a member of the immediate family with an unremedied conflict of interest;

(ii) take reasonable steps to avoid assigning an individual to perform duties which would constitute an unremedied conflict of interest;

(iii) establish a process for periodic review and identification of conflicts of the ombudsman and representatives of the Office; and

(iv) take steps, as outlined, to remove or remedy conflicts.

 

R510-200-15. Records.

(1) This rule incorporates by reference UC 62A-3-206.

(2) Access to resident/facility records:

(a) the SLTCOP is a Health Oversight Agency, thus the Health Insurance Portability and Accountability Act of 1996 (HIPAA) does not preclude release by covered entities of resident private health information or other resident identifying information to the Ombudsman program, including residents:

(i) medical records;

(ii) social records;

(iii) room numbers;

(iv) names;

(v) administrative records;

(vi) policies;

(vii) documents to which the resident or general public has access;

(viii) all long-term care facility licensing and certification records maintained by the State; and

(ix) other resident records.

(b) each LTCO has access to records of the local LTCOP for which he or she serves; and

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

(3) Division, AAA, and Provider Agency access to records:

(a) the Department of Human Services (DHS), Division, and the relevant AAA and/or Provider Agency may review records, which reflect the activities of the LTCOP;

(b) Division, AAA, or Provider Agency may not review records that disclose the identity of any resident or complainant, except for the SLTCO; and

(c) no State agency, AAA, or Provider Agency may require a LTCO to disclose the identity of a complainant or resident except as specifically provided by Federal or State law.

(4) Maintenance of LTCO records and the LTCO reporting system:

(a) maintaining records through an ombudsman computer program, a statewide uniform reporting system to collect and analyze data relating to complaints, cases, and activities in long-term care facilities;

(b) any paper documentation shall be scanned into the ombudsman computer program.

 

R510-200-16. Grievance Procedures.

(1) Concerns.

(a) all concerns that individuals may have regarding the LTCOP shall be documented and include:

(i) outcomes; and

(ii) relevant actions.

(2) Timeliness.

(a) all grievances shall be submitted in writing to the Division/AAA/Provider Agency administering the LTCOP.

(b) the procedure for submitting a grievance is as follows:

(i) LTCO:

(A) complaints about LTCO shall be directed to the local LTCOP Supervisor;

(B) program supervisor shall notify the SLTCO as soon as the complaint is made;

(C) program supervisor shall investigate the complaint within ten business days;

(D) nature of complaint and investigation shall be documented;

(E) response back to the complainant shall be given within ten business days following the completion of the initial complaint investigation;

(F) response shall include name and contact information of the SLTCO to ensure ease of appeal;

(G) all confidential information shall be withheld from the Director of the AAA/Provider Agency to ensure that the LTCOP operates independently of the AAA/Provider Agency;

(H) outcome shall be documented; and

(I) program supervisor shall notify the SLTCO of the outcome.

(ii) SLTCO:

(A) a complaint regarding the SLTCO shall be forwarded to the Director of the Division;

(B) the Director shall investigate the complaint within ten business days;

(C) the nature of the complaint and the investigation shall be promptly documented by the office of the Director of the Division;

(D) all confidential information shall be withheld from the Director of the Division to ensure that the LTCOP operates independently of the Division;

(E) response back to the complainant shall be given within ten business days following the completion of the initial complaint investigation;

(F) the outcome shall be documented.

 

R510-200-17. Legal Counsel.

(1) Provision of Adequate Legal Counsel.

(a) Division shall provide for the services of a Legal Services Developer.

(b) the Division hired Legal Services Developer shall not represent or provide legal advice to an AAA/Provider Agency or a local LTCO, or individual resident. However, the Legal Services Developer ensures legal representation for individuals using licensed attorneys, not employed by the Division, throughout the State.

(c) the State Attorney General's Office shall act as legal counsel to the SLTCOP and the SLTCO.

(d) the State Attorney General's Office shall not represent or provide legal advice to an AAA/Provider Agency or a local LTCOP.

(e) the AAA/Provider Agency is required to provide legal representation for their local LTCO for programmatic purposes.

(f) the SLTCOP shall not provide legal representation for residential matters.

 

R510-200-18. Guardianship.

(1) Long-Term Care Ombudsman Program Responsibilities to a Guardian.

(a) if a resident has a legal guardian, the LTCO must work with the guardian.

(b) if the LTCO believes that the guardian is not acting in the best interest of the resident, they will contact their immediate supervisor, AAA, or the SLTCO for assistance to advocate for resident rights.

 

R510-200-19. Emergency Preparedness.

(1) Emergency Preparedness Planning.

(a) the SLTCO together with the local LTCO throughout the State shall develop a plan to assist residents of long-term care facilities in the event of an emergency. Such a plan includes:

(i) coordinating activities and developing emergency preparedness plans relevant to the particular service areas;

(ii) supporting the local ombudsman entity with emergency preparedness including:

(A) information sharing;

(B) resource sharing;

(C) training;

(D) participation in exercises; and

(E) facilitation of relationships with local healthcare coalitions, public health agencies, and any other relevant agencies prior to, during, and after an emergency.

(iii) the SLTCO shall coordinate with representatives of the LTCOP to determine capacity and the support needed to plan and prepare for emergencies.

 

R510-200-20. Intake, Investigation, and Complaint Processing.

(1) This rule incorporates by reference UC 62A-3-206.

(2) General.

(a) the local LTCOP shall identify, investigate and attempt to resolve validated complaints made by or on behalf of residents of long-term care facilities.

(3) Response to the Complaint.

(a) when a LTCO receives information regarding a complaint, the LTCO shall determine:

(i) the type of complaint using the National Ombudsman Reporting System (NORS) complaint categories as provided in the ombudsman computer program;

(ii) what outcome the complainant or resident of the long-term care facility is seeking;

(iii) what attempts have already been made to resolve the complaint;

(iv) whether the complaint is appropriate for LTCO activity;

(v) examples of complaints which are not appropriate for LTCO activity include those which:

(A) do not directly impact a resident of a long-term care facility;

(B) are outside the scope of authority of the LTCOP; or

(C) would place the LTCOP in the position of having an actual or perceived conflict of interest with a resident or residents.

(vi) the LTCO may seek resolution of complaints in which the rights of one resident and the rights of another resident appear to be in conflict.

(b) determine/affirm the following with the complainant:

(i) alternatives for handling the complaint;

(ii) option of complainant to personally take appropriate action, with LTCO assistance if needed;

(iii) communicate that the LTCO role is to act in accordance with the long-term care facility resident's wishes; and

(iv) maintain the resident's confidentiality.

(c) source of complaint made directly to the LTCO:

(i) complaints may be filed with the LTCOP by residents of long-term care facilities, families or friends of residents, long-term care facility staff, or any other person or agency; and

(ii) complaints may be made anonymously to the LTCOP.

(d) ombudsman-generated complaints:

(i) 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, or rights of residents of long-term care facilities and no other person has made a complaint.

(e) timeliness of responses to complaints:

(i) LTCO investigations shall be initiated within three business days;

(ii) the LTCOP is not an emergency response system. Emergency situations should be referred to local law enforcement by calling 911.

(f) ombudsman advocacy is resident focused:

(i) the LTCO shall discuss the complaint with the resident of the long-term care facility in order to:

(A) determine the resident's perception of the complaint;

(B) determine the resident's wishes with respect to resolution of the complaint;

(C) advise the resident of his/her resident rights;

(D) work with the resident in developing a plan of action; and

(E) when resident consent is refused or withdrawn, the LTCO shall record the refusal or withdraw of consent.

(g) resident is unable to provide consent:

(i) the LTCO shall advocate for the wishes of a resident of a long-term care facility to the extent that the resident can express them, even if the resident has limited decision-making capacity; or

(ii) where a resident is unable to provide consent to a LTCO to work on a complaint directly involving the resident, the LTCO shall:

(A) seek advice from the resident's representative, guardian, POA, spouse, or family member; or

(B) if the LTCO determines that the resident's representative, guardian, POA, spouse, or family member is not acting in the resident's best interest, the LTCO shall seek evidence to indicate what the resident would have desired and, where such evidence is available, work to effectuate that desire.

(4) Investigation Procedures.

(a) the LTCO is not required to verify a complaint in order to seek a resolution on behalf of the resident of a long-term care facility. Resident perception is a sufficient basis upon which an LTCO can seek resolution.

(b) the LTCO investigates a complaint in order to verify the accuracy and truth of the complaint:

(i) a complaint is verified when the LTCO determines that the circumstances described in the complaint are substantiated or generally accurate; and

(ii) because a LTCO works on behalf of residents of long-term care facilities, the LTCO gives the benefit of the doubt to the resident's perspective.

(c) the LTCO shall seek any information required on an as needed basis to complete the investigation.

(d) to verify a complaint, the LTCO shall take one or more of the following steps, as appropriate given the nature of the complaint:

(i) research relevant laws, rules, regulations, and policies;

(ii) personally observe and analyze the evidence;

(iii) interview the resident and/or complainant;

(iv) interview staff, administration, other residents and families;

(v) identify relevant agencies and interview and/or obtain information from their staff; and

(vi) examine relevant records.

(e) facility visits can be unannounced, and occur at any hour provided the LTCO identifies him/herself upon entering the premises as a person authorized to investigate complaints.

(f) the local LTCO may choose to give notice if deemed appropriate, in either case the ombudsman shall:

(i) upon arrival at the facility or agency, present official identification to the administration or designated person in charge;

(ii) identify any factors that may interfere with the investigation;

(iii) start the investigatory process to establish as clearly as possible what has happened, why it has happened, who or what is responsible for resolving the complaint, and possible solutions to the problem;

(iv) interview the resident, as well as other residents, staff, family, friends and physicians as deemed necessary;

(v) make phone calls, on-site observation, review resident records, and make collateral contacts with other agencies and professionals;

(vi) take any other appropriate investigatory actions within the purview of the LTCOP;

(vii) during the course of the investigation, the local LTCO shall look for credible evidence, which supports or refutes the complaint. Evidence may be directly observed by the LTCO or indirectly gathered from statements from reliable sources; and

(viii) LTCO shall be provided privacy by the facility or agency during all aspects of the investigative process.

(5) Plan of Action.

(a) upon verifying a complaint, the LTCO shall determine a plan of action to resolve the complaint.

(b) the LTCO advocates on behalf of or with the resident in discussing the complaint with the appropriate facility, staff, or other relevant party and together, they develop an agreement that resolves the complaint.

(c) the LTCO shall attempt to resolve the dispute directly with the appropriate staff of the facility unless the LTCO and the resident determine that another strategy would be more advantageous.

(6) Complaint Referrals.

(a) a LTCO shall make a referral to another agency when:

(i) the resident gives permission, or, if resident is unable, responsible party gives permission, or, if the LTCO determines that the resident's representative, guardian, POA, spouse, or family member is not acting in the resident's best interest, the LTCO shall seek evidence to indicate what the resident would have desired and, where such evidence is available, work to effectuate that desire; and

(ii) one or more of the following applies:

(A) another agency has statutory responsibility to support or assist the resident (e.g. Adult Protective Services (APS) or Medicaid Fraud);

(B) the action to be taken in the complaint is outside of the LTCO's scope of authority (e.g. Department of Health, Licensing);

(C) the LTCO needs additional assistance in order to achieve resolution of the complaint; or

(D) if it is determined that additional expertise may benefit the resident (e.g. mental health or disability services, etc.).

(b) a LTCO may encourage resident or complainants to directly contact the appropriate regulatory agency to file a complaint and offer information and assistance to residents or complainants in making such contact.

(7) Closing a Complaint or Case.

(a) the complaint or case may be closed when any of the following occurs:

(i) the complaint has been resolved to the satisfaction of the resident of the long-term care facility;

(ii) the LTCO has determined, after investigation, that the complaint:

(A) cannot be verified; or

(B) was made in bad faith.

(iii) further activity by the LTCO is unlikely to produce satisfaction for the resident;

(iv) the complaint is not appropriate for LTCO activity;

(v) after referral the LTCO anticipates no further response regarding the complaint from the agency to which the referral was made;

(vi) the resident, who has capacity, requests that the LTCO close the case; or

(vii) when the resident lacks capacity and the LTCO determines that the resident's representative, guardian, POA, spouse, or family member is not acting in the resident's best interest, the LTCO shall seek evidence to indicate what the resident would have desired and, where such evidence is available, work to effectuate that desire.

(8) Abuse, Neglect, and Exploitation Complaints.

(a) upon receiving an abuse, neglect or exploitation complaint the LTCO shall inform the complainant that in order to meet the State of Utah mandated reporting requirement he/she must:

(i) directly call APS Intake; or

(ii) directly call local law enforcement.

(b) if the case also involves resident rights issues, the LTCO shall provide ombudsman services to the identified client.

(9) Documentation of Complaints.

(a) all LTCO complaints and documentation shall be entered into the ombudsman computer program.

(10) Consent.

(a) in order to access resident files maintained in a facility, the resident or resident representative must communicate informed consent orally, visually, written, or through auxiliary aids.

(b) the date and method of obtaining the verbal consent shall be documented in the case file.

(c) if a request for verbal consent is denied by the resident or their legal representative, the LTCO shall not access the records.

(d) if the request for verbal consent is unsuccessful for any reason other than specific denial by the resident or legal representative, the LTCO may proceed to access the records. The reasons for not obtaining consent shall be documented in the case file.

(e) if the request for verbal consent cannot be given by the resident and it is determined that the resident's legal representative is not acting in the resident's best interest, the LTCO may proceed to access the records. Such attempts shall be documented.

 

R510-200-21. Public Education.

(1) In addition to receiving and investigating complaints, local LTCOPs are mandated by Federal and State statute to provide public education regarding long-term care issues.

(2) Public education may include activities such as frequent presence in facilities, community advocacy, attendance at family or resident councils, technical assistance and in service to long-term care facilities, community organizations, and public information presentations.

 

R510-200-22. Resident and Family Councils.

(1) The LTCO shall offer assistance with the development of resident and family councils.

(2) The LTCO shall promote resident councils in each long-term care facility in the service area by ongoing education and trainings.

(3) Where a long-term care facility does not have an active resident council, the local LTCO shall assist the residents and the facility in developing said council.

(4) Where a long-term care facility does not have an active family council, the local LTCO shall assist family members in developing an active family council.

 

R510-200-23. Routine Visits.

(1) The LTCO shall monitor the condition of residents during routine visits.

(a) routine visits to facilities may, and occasionally should, be unannounced.

(b) timing of routine visits shall be staggered so that facilities have no basis to predict the timing of the visit.

(c) the LTCO shall provide information regarding services offered by the LTCOP during routine visits.

(2) LTCO observations of conditions in the facility which adversely affect the health, safety, welfare, or rights of residents of the long-term care facility shall be documented as ombudsman-generated complaints if no other person has lodged a complaint.

(3) The LTCO shall assure that the facility posts the LTCOP posters, provided by the SLTCO, in the facility so they are visible to all residents, family, and staff.

(4) The LTCO shall ensure resident access to an ombudsman.

(a) LTCO presence in facilities should be as frequent as possible to ensure that all residents have access to an ombudsman.

(b) LTCO presence should be increased in facilities with a history of serious and/or frequent complaints.

(c) the local LTCO shall visit every long-term care facility in their service area at least one time per quarter.

 

R510-200-24. Confidentiality.

(1) Disclosure of identifying information

(a) all record requests shall be processed in accordance with UC 62A-3-207.

(b) the SLTCO shall have the sole authority in making decisions concerning the disclosure of the files, records, and other information (physical, electronic, or other formats) maintained by the Ombudsman program (includes cases and activities of the LTCOP). No disclosure of such information shall be done without the prior approval of the SLTCO or his/her representative. This includes information maintained by local ombudsmen and volunteer ombudsmen. Such files, records and other information are the property of the Office

(c) disclosure of identifying information of any resident with respect to whom the ombudsman program maintains files, records, or information is strictly prohibited, unless:

(i) the resident or resident representative communicates informed consent orally, visually, written, or through auxiliary aids and such consent is documented contemporaneously by a LTCO; or

(ii) if the SLTCO determines that the resident's representative, guardian, POA, spouse, or family member is not acting in the resident's best interest, the LTCO shall seek evidence to indicate what the resident would have desired and, where such evidence is available, work to effectuate that desire; or

(iii) the disclosure is required by court order.

(2) Disclosure of complainant information

(a) this rule incorporates by reference UC 62A-3-207.

(b) disclosure of identifying information of any complainant with respect to whom the ombudsman program maintains files, records, or information is strictly prohibited, unless they provide approval of informed consent. Informed consent can be obtained either orally, visually, written, or through auxiliary aids and such consent is documented contemporaneously by a LTCO.

 

KEY: elderly, ombudsman, LTCO

Date of Enactment or Last Substantive Amendment: [October 23, 2006]2018

Notice of Continuation: June 30, 2017

Authorizing, and Implemented or Interpreted Law: 62A-3-201 to 20 8; 62A-3-104