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RULE §85.401 Long-Term Care Ombudsman Program


Published: 2015

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(a) Purpose. This section establishes the requirements of the Long-Term Care Ombudsman Program, a program established under the Older Americans Act, §712 and funded, in whole or in part, by DADS. (b) Designation.   (1) DADS designates AAAs as local ombudsman entities.   (2) A AAA may contract with a nonprofit organization to perform the duties of the local ombudsman entity, as described in this section, in the AAA's planning and service area.   (3) The requirements of this section apply to a AAA in its role as the local ombudsman entity. (c) Description of program. The Long-Term Care Ombudsman Program provides services to protect the health, safety, welfare, and rights of residents. Such services include investigating and resolving complaints made by or on behalf of such residents, providing assistance and information to persons in choosing an LTC facility, and promoting a variety of means to ensure that residents' rights are protected, including conducting training programs and supporting the development of resident and family councils that advise LTC facilities. (d) Eligibility.   (1) Except as provided in paragraph (2) of this subsection, a AAA must ensure that a program participant who receives services from the Long-Term Care Ombudsman Program is a resident and 60 years of age or older.   (2) A AAA may respond to a complaint of a resident who is under 60 years of age if such response:     (A) benefits the residents of that facility or residents of other LTC facilities who are 60 years of age or older; and     (B) will not significantly diminish the effectiveness of the Long-Term Care Ombudsman Program in assisting residents who are 60 years of age or older. (e) Managing local ombudsman. A AAA must appoint a certified staff ombudsman to act as a managing local ombudsman. The managing local ombudsman must:   (1) oversee the administration of the Long-Term Care Ombudsman Program in the AAA's planning and service area; and   (2) be the primary contact for the local ombudsman entity. (f) Adequate number of certified ombudsman. In order to implement the Long-Term Care Ombudsman Program as described in this section, a AAA:   (1) must have an adequate number of certified ombudsmen; and   (2) may have friendly visitors. (g) Qualifications for certified ombudsmen and friendly visitors.   (1) A person may be a certified ombudsman only if:     (A) the person has not been convicted of an offense listed under Texas Health and Safety Code, §250.006;     (B) the person successfully completes a certification training provided by the AAA in accordance with DADS Ombudsman Certification Training Manual;     (C) for a certified volunteer ombudsman, the person successfully completes an internship in accordance with DADS Ombudsman Policies and Procedures Manual;     (D) the AAA recommends to the Office, in writing, using DADS Certified Ombudsman Application, that the person be approved as a certified ombudsman;     (E) the Office signs the DADS Certified Ombudsman Application approving the person to be a certified ombudsman; and     (F) the person completes continuing education provided by the AAA in accordance with DADS Ombudsman Policies and Procedures Manual.   (2) A person may be a friendly visitor only if the person successfully completes an orientation provided by the AAA in accordance with DADS Ombudsman Policies and Procedures Manual. (h) Access to residents and records.   (1) In accordance with §19.413 of this title (relating to Access and Visitation Rights) and §92.801 of this title (relating to Access to Residents and Records by the Long-Term Care Ombudsman Program), a representative of the Office, as described in subsection (r) of this section, is entitled to immediate access to a resident.   (2) In accordance with §19.413 of this title and §92.801 of this title a certified ombudsman and a staff person of the Office are entitled to access:     (A) the medical and social records of a resident, if the certified ombudsman or staff person of the Office has the consent of the resident or the legally authorized representative of the resident;     (B) the medical and social records of a resident 60 years of age or older, if such access is necessary to investigate a complaint made to the Long-Term Care Ombudsman Program and:       (i) the resident is unable to consent to access and has no legally authorized representative; or       (ii) the following circumstances occur:         (I) the legal guardian of the resident refuses to give consent for access to the records;         (II) the certified ombudsman or staff person of the Office has reasonable cause to believe that the guardian is not acting in the best interest of the resident; and         (III) the certified ombudsman or staff person of the Office obtains the approval of the State Long-Term Care Ombudsman to access the records without the guardian's consent; and     (C) to the administrative records, policies and documents of the LTC facility to which the residents or general public have access. (i) Conflict of interest and identity of certain relationships.   (1) A AAA must ensure that a certified ombudsman, an ombudsman intern, and a member of the immediate family of the managing local ombudsman are not subject to a conflict of interest.   (2) A conflict of interest includes the following:     (A) having a direct involvement in the licensing or certification of an LTC facility or of a home and community support services agency (HCSSA) licensed to provide home health services or hospice services in accordance with Chapter 97 of this title (relating to Licensing Standards for Home and Community Support Services Agencies);     (B) having an ownership or investment interest (represented by equity, debt, or other financial relationship) in an LTC facility or a HCSSA licensed to provide home health services or hospice services in accordance with Chapter 97 of this title;     (C) being employed by, or participating in the management of, an LTC facility or a HCSSA licensed to provide home health services or hospice services in accordance with Chapter 97 of this title;     (D) 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 an LTC facility or a HCSSA licensed to provide home health services or hospice services in accordance with Chapter 97 of this title; and     (E) a certified ombudsman or ombudsman intern having a relative who is a resident in or an employee of an LTC facility in which the certified ombudsman or ombudsman intern provides Long-Term Care Ombudsman Program services.   (3) a conflict of interest described in paragraph (2)(A) - (D) of this subsection exists only if an LTC facility is in a AAA's planning and service area or a HCSSA is providing services to an LTC facility in a AAA's planning and service area.   (4) A AAA must specify, in writing, the mechanisms to:     (A) identify and remove conflicts of interest; and     (B) identify and address, if necessary, a familial or personal relationship that a certified ombudsman or ombudsman intern has with:       (i) a staff person of an LTC facility in the AAA's planning and service area; or       (ii) a staff person of DADS. (j) Complaints. A AAA must:   (1) ensure that a person is allowed to make a complaint about circumstances that may adversely affect the health, safety, welfare, or rights of a resident in the following ways:     (A) in writing, including by electronic mail;     (B) in person; and     (C) by telephone, either by:       (i) a toll-free telephone number established by the AAA; or       (ii) acceptance by the AAA of a collect telephone call;   (2) initiate a complaint if the AAA becomes aware of circumstances that may adversely affect the health, safety, welfare, or rights of a resident;   (3) unless a complaint is initiated by the AAA in accordance with paragraph (2) of this subsection, respond to the person who makes a complaint, within two business days after receipt of the complaint or sooner, if possible, if the complaint presents an emergency situation;   (4) require a certified ombudsman to initiate an investigation of a complaint as soon as practicable after receipt of the complaint;   (5) require a certified ombudsman to investigate and resolve a complaint in a fair and objective manner; and   (6) report information about complaints to DADS in accordance with instructions promulgated by the Office. (k) Disclosure of information.   (1) For a resident for whom a AAA maintains files or records, the AAA may disclose confidential information, including the identity of the resident or information from the files or records, only if:     (A) the resident or legally authorized representative consents to the disclosure in writing;     (B) the resident or legally authorized representative consents to the disclosure orally and the consent is documented by a certified ombudsman, in writing, at the time the oral consent is given; or     (C) the disclosure is required by court order.   (2) A AAA may disclose the identity of a person who files a complaint only if:     (A) the complainant, or legally authorized representative of the complainant, consents to the disclosure in writing;     (B) the complainant, or legally authorized representative, consents to the disclosure orally and the consent is documented by a certified ombudsman, in writing, at the time the oral consent is given; or     (C) the disclosure is required by court order.   (3) A AAA must disclose Long-Term Care Ombudsman Program information, other than the information described in paragraphs (1) and (2) of this subsection, in accordance with Texas Government Code, Chapter 552 (the Public Information Act). (l) Representation of residents. A AAA may represent the interests of a resident before government agencies and seek administrative, legal, and other remedies to protect the health, safety, welfare, and rights of the resident, if requested by a resident or another person on behalf of the resident. (m) Review of proposed laws, regulations, and policies. A AAA may review and comment on existing and proposed laws, regulations, and other government policies and actions that pertain to the rights and well-being of a resident; and facilitate the ability of the public to comment on the laws, regulations, policies, and actions. (n) Community relations. A AAA must:   (1) ensure that the local Ombudsman entity is visible within a AAA's planning and service area;   (2) coordinate with public and private organizations to involve residents in the community;   (3) be a knowledgeable resource about:     (A) community services and supports for residents;     (B) LTC facilities (including having information about facility operations and Ombudsman complaint history) without recommending a specific facility;     (C) DADS regulatory system regarding LTC facilities; and     (D) resident-centered care (that is, care based on a resident's needs, choices, and preferences);   (4) provide training to LTC facility staff regarding quality of care provided to residents as requested by a facility;   (5) support the development of resident and family councils in LTC facilities; and   (6) coordinate with DADS Regulatory Services, at least quarterly, and the Department of Family and Protective Services, as needed, to resolve issues regarding LTC facility operations and the quality of care for and the quality of life of residents. (o) Recruitment, supervision, and retention of certified volunteer ombudsmen. If a AAA determines that certified volunteer ombudsmen are needed, the AAA must:   (1) determine the number of certified volunteer ombudsmen needed to comply with DADS performance measures;   (2) make a good faith effort to recruit the number of certified volunteer ombudsmen needed;   (3) ensure that a certified volunteer ombudsman meets the qualifications described in subsection (g) of this section and is not subject to a conflict of interest as described in subsection (i) of this section;   (4) supervise and routinely communicate with a certified volunteer ombudsman to:     (A) monitor performance;     (B) support effective volunteer conduct; and     (C) identify training needs; and   (5) promote retention of a certified volunteer ombudsman by:     (A) providing continuing education in accordance with subsection (g)(1)(F) of this section;     (B) providing recognition and motivational activities;     (C) conducting annual evaluations; and Cont'd...