910 KAR 1:210. Kentucky Long-term Care Ombudsman Program.
RELATES TO: KRS 205.201, 209.030(5),
216.535, 216.540-216.543, 42 U.S.C. 3001 et seq.
STATUTORY AUTHORITY: KRS 194A.050,
NECESSITY, FUNCTION, AND CONFORMITY: 42 U.S.C.
3001 et seq., the Older Americans Act of 1965, as amended, requires states to
establish and operate, either directly or by contract, a long-term care
ombudsman program to protect the rights of older individuals. KRS 194A.050 requires
the secretary for the Cabinet for Health and Family Services to promulgate
administrative regulations necessary to implement programs mandated by federal
law. KRS 205.204 designates the Cabinet for Health and Family Services as the
state agency to administer the Older Americans Act in Kentucky. This administrative
regulation establishes a statewide Long-term Care Ombudsman Program.
Section 1. Definitions. (1)
"Access" means the right to enter a long-term care facility, meet
with the residents, and review the records of a resident.
(2) "Administrator" means any
person charged with the general administration or supervision of a long-term
care facility without regard to whether the person has an ownership interest in
the facility or to whether the person's functions and duties are shared with
one (1) or more other persons.
(3) "Case" means each inquiry
brought to, or initiated by, the ombudsman on behalf of a resident or group of
residents involving one (1) or more complaints and includes an ombudsman
investigation or strategy to resolve and follow-up.
(4) "Certification" means the
official notification by the Kentucky long-term care ombudsman that local
long-term care ombudsman individual staff are qualified and acceptable to
function in that capacity.
(5) "Complaint" means an
allegation filed by residents or on behalf of residents relating to the health,
safety, welfare, and rights of a resident.
(6) "Complaint resolution"
means either corrective action taken in regard to an allegation or a
determination as to the validity of the allegation.
(7) "Complaint verification"
means a determination through investigative means that allegations relating to
the health, safety, welfare, and rights of a patient are generally accurate.
(8) "DAIL" means the Department
for Aging and Independent Living.
(9) "Designation" means formal
notification by the Kentucky long-term care ombudsman that a district program
meets requirements and shall be considered a subdivision of the state office.
(10) "District ombudsman" means
that individual certified by the Kentucky long-term care ombudsman to implement
the ombudsman provisions of the approved contract agency plan.
(11) "Educational or experiential
(a) Two (2) semesters totaling at least
twenty-four (24) hours of course work; and
(b) At least 400 documented hours of
experience assisting aging or disabled individuals through:
1. Practicum placement;
2. Clinicals; or
(12) "Evaluation" means
periodic analysis and review conducted by the Kentucky long-term care ombudsman
of district, regional, and state ombudsman programs, including quality
assurance and outcome measures pertaining to individual and programmatic performance.
(13) "Friendly visitor" means a
trained non-certified volunteer who visits residents in long-term care facilities
to assist the district long-term care ombudsman program.
(14) "Investigation" means the
formal response by a long-term care ombudsman to complaints of issues involving
the health, safety, welfare, and rights of a resident.
(15) "Kentucky long-term care
ombudsman" means the individual charged with the administration of the
Kentucky Long-term Care Ombudsman Program under the provisions of the Older Americans
Act of 1965, as amended.
(16) "Long term care facility"
is defined by KRS 216.510(1).
(17) "Monitoring" means
periodic review measuring ombudsman program's adherence to approved plans,
including analysis of non-client specific data relating to program performance.
(18) "Primary client group"
means residents of long-term care facilities and those persons making
application for admission to long-term care facilities and their families.
(19) "Referral" means the
appropriate channeling of information so as to effect a desired outcome.
(20) "Regional long-term care
ombudsman" means ombudsmen who operate directly from the Kentucky
Long-term Care Ombudsman Program and whose responsibilities include coordination
of a multi-area development district area.
(21) "Volunteer ombudsman"
means a certified unpaid individual serving within a district program to assist
a district ombudsman.
Section 2. Responsibilities of Kentucky
Long-term Care Ombudsman. (1) The Kentucky Long-term Care Ombudsman Program
shall be administered by a full time ombudsman operated by DAIL or through a
(2) The Kentucky Long-term Care Ombudsman
shall be responsible for the:
(a) Design, implementation and management
of a statewide uniform system for receiving, investigating, resolving, and
reporting complaints on behalf of residents in long-term care facilities and
provide ongoing support to assist in the resolution of those complaints;
(b) Investigation of complaints made by
or on behalf of residents in long-term care facilities from areas of the state
temporarily without local ombudsman programs if a local backup ombudsman is not
(c) Development and implementation of
policies and procedures for operation of the program, including those related
1. Receipt, investigation, and resolution
2. Protecting confidentiality of records
and identity of complainants;
3. Establishing the right of public
access to information regarding conditions in long-term care facilities; and
4. Securing ombudsman access to long-term
care facilities, residents, and residents' personal and medical records;
(d) Development and management of a
system for the operation of a statewide network of district programs,
1. Designation of district programs
a. Reviewing applications for designation
of district ombudsman contained in their plans for operating either directly or
b. Providing written confirmation of the
c. Administration of certification and
2. Development of district program
operating procedures and reporting requirements; and
3. Establishment of a communications link
between the Kentucky long-term care ombudsman and district programs;
(e) Establishment and maintenance of
program official files and adoption of procedures to protect the
confidentiality of those files;
(f) Provision of information and
1. Program activities;
2. The long-term care system; and
3. The rights and concerns of residents
and potential residents of long-term care facilities;
(g) Provision of assistance to citizen
organizations, consumer groups, and other interested community organizations to
enhance the rights of residents in long-term care facilities;
(h) Promotion of the development of
citizen organizations at the state and local level to participate in the
(i) Use of publicity and outreach efforts
directed at long-term care residents and families, network staff, and the
general public about the availability of the program to receive and investigate
(j) Review of complaint, case, and issue
data submitted by the district programs and analysis for trends, pattern, and
(k) Annual National Ombudsman Reporting
System (NORS) report to the Administration on Community Living;
(l) Assistance to the district ombudsman
to establish, develop, and coordinate ombudsman activities;
(m) Development of agreements and working
relationships with relevant agencies to encourage their cooperation and assistance
with the program at the state and local levels;
(n) Development of agreements and working
relationships with legal services programs, particularly those funded by the
Older Americans Act of 1965, as amended;
(o) Development and provision of training
on an ongoing basis for regional and district ombudsman program staff and
(p) Identification and development of
additional funding and staffing resources for the long-term care ombudsman program;
(q) Support and promotion of the
formation of resident councils in long-term care facilities;
(r) Development and provision of
testimony and comment on proposed legislation, administrative regulations,
policies, and rule changes affecting the institutionalized elderly;
(s) Conduction of other activities
related to the protection and dignity of residents of long-term care
(t) Performance of other activities
required by the Administration on Community Living.
Section 3. Responsibilities of the
Regional Ombudsman. The regional ombudsman shall be staff of, and report
directly to, the Kentucky long-term care ombudsman and shall have the following
(1) Receive, investigate, and resolve
(2) Provide technical assistance and
coordination of district programs;
(3) Assist in training of volunteers and
local program personnel;
(4) Provide information to public
agencies regarding problems of long-term care residents;
(5) Abide by established procedures
related to reporting and confidentiality; and
(6) Perform other job duties as required
by the Kentucky long-term care ombudsman.
Section 4. Designation of District
Programs. (1) The Kentucky long-term care ombudsman shall designate district
entities throughout the state to operate the long term care ombudsman program.
(2) The district ombudsman program entity
shall submit a plan which shall serve as the application for designation of a
district ombudsman. The application shall include:
(a) Definition of program in terms of the
1. Program supervisor;
2. Ombudsman advisory council;
3. District ombudsman;
4. Friendly visitors; and
5. Volunteer ombudsman;
(b) Agency to conduct the program;
(c) Ability to receive, investigate, and
resolve complaints on behalf of long-term care residents;
(d) Maintenance of a complaint
(e) Ability to monitor the development and
implementation of laws, policies, and regulations which apply to residential
long- term care;
(f) Ability to recruit and provide
standardized training for volunteers;
(g) Ability to respond in a timely
fashion to requests from the Kentucky Long-term Care Ombudsman Program for
statistical data and other information;
(h) Ability to receive training and
continuing education from the Kentucky Long-term Care Ombudsman Program;
(i) Ability to assure confidentiality of
(j) Ability to inform and educate
residents, sponsors, organizations, the long-term care industry, and the
general public relative to issues affecting the long-term care system, the
ombudsman program, and resident rights and concerns;
(k) Provision that no individual involved
in the appointment of a subdivision of the office and that no officer, employee,
or other representative of the office is subject to a conflict of interest; and
(l) Provision that representatives of the
Kentucky Long-term Care Ombudsman Program shall not be liable under state law
for the good faith performance of official duties.
ombudsmen shall be representatives of the Kentucky Long-term Care Ombudsman
Program and shall be accorded rights and privileges of that office.
Section 5. Responsibilities of the
District Ombudsman. The district ombudsman shall:
(1) Provide services as follows:
(a) There shall be a staff person,
qualified by training and experience, responsible for administering each
service and supervising assigned staff;
(b) There shall be designated staff who
are trained and skilled in assessing and dealing with the needs of the elderly
and in the delivery of each service;
(c) Volunteers and paid staff with the
same responsibilities shall meet comparable requirements for training and
(d) New staff shall receive an
orientation and shall be trained and certified prior to assuming
(e) Staff shall attend required training
and provide in-service training for staff and volunteers of local programs;
(f) Staff shall not accept personal gifts
or money from participants or vendors; and
(g) Staff shall not pay bills or cash
checks for clients or participants;
(2) Assure services are accessible to
older persons by telephone, correspondence, or person-to-person contact;
(3) Represent residents residing in
long-term care facilities within the assigned geographical areas;
(4) Assure residents' rights are upheld
and promote quality care in long-term care facilities;
(5) Investigate and work to resolve
complaints on behalf of long-term care residents;
(6) Promote community involvement in the
(a) Publicizing the existence and
function of the local and state programs;
(b) Advising the public about the
availability of current state, local, and federal inspection reports,
statements of deficiency, and plans for correction for individual long-term
care facilities in the service area;
(c) Organizing and implementing an active
(d) Assisting in the development of
resident or family and friends councils;
(e) Sponsoring community education and
training programs for long-term care facilities, human service workers,
families, and the general public about long-term care and residents' rights
(f) Promoting citizen involvement in
order to ensure regular visitations, especially for those residents without
available family or friends; and
(7) Implement accurate recordkeeping
procedures to assure that:
(a) An accurate record shall be
maintained on each participant which documents:
1. Participant identification data;
2. Requests for service;
3. Eligibility for services provided;
4. Follow-up; and
(b) Reports for the Kentucky long-term
care ombudsman are prepared and submitted in a format and time frame as
(c) Procedures are followed to protect
the identity, confidentiality, and privacy of clients; and
(d) Nonclient-specific statistical and
financial data is submitted as required.
Section 6. Responsibilities of the
Volunteer Ombudsman. The volunteer ombudsman shall:
(1) Complete required training, including
training and certification requirements for those involved in complaint
(2) Provide regular visitation of
residents in long-term care facilities;
(3) Adhere to guidelines provided by the
Kentucky long-term care ombudsman and district ombudsmen; and
(4) Complete required paperwork.
Section 7. Ombudsman Advisory Council. (1)
The designated district ombudsman program shall have an advisory council whose
functions are to:
(a) Review and advise programs on
policies and procedures;
(b) Provide ongoing support and
(c) Identify and generate funding
resources for program viability.
(2) The advisory council shall be
comprised as follows:
(a) Members shall be persons with a
strong interest in improving the quality of life for the institutionalized
elderly and for protecting their rights;
(b) Group size and composition shall be
individualized to the needs of the local program but shall not be less than
seven (7); and
(c) One-third (1/3) of the members shall
be consumers or family members of consumers.
(3) Advisory council members shall not:
(a) Be responsible for certifying or
licensing long-term care facilities;
(b) Be a provider of long-term care
services or part of an association of providers;
(c) Have any interest or association
which may impair the ability of the ombudsman to objectively and independently
investigate and resolve complaints;
(d) Gain economically or receive any
compensation from a long-term care facility or association;
(e) Be on the Adult Protective Services
Caregiver Misconduct Registry or the Kentucky Nurse Aid Abuse registry; or
(f) Have been found guilty of the
1. A violent crime as defined by KRS
2. Abuse, neglect, or exploitation of
another person, including assault;
3. Felony theft offense; or
4. Felony drug offense.
Section 8. Qualifications, Certification,
and Training of Long-Term Care Ombudsmen. (1)The Kentucky long-term care ombudsman,
regional ombudsman, and district long-term care ombudsman shall:
(a) Possess a minimum of a bachelor’s
degree in a health or human services profession from an accredited college or
1. One (1) year experience in health or
human services; or
2. The educational or experiential
equivalent in the field of aging or physical disabilities; or
(b) Be a certified regional or district
ombudsman with no lapse in certification prior to the effective date of this
(2) A district, regional, or volunteer ombudsman,
and friendly visitor shall have a completed background check conducted prior to
hire for the following:
(a) The Adult Protective Services
Caregiver Misconduct Registry;
(b) The Kentucky Nurse Aid Abuse
(c) A criminal record check utilizing the
Kentucky Administrative Office of the Courts or the Kentucky Justice Cabinet
and not have been found guilty of the following:
1. A violent crime as defined by KRS
2. Abuse, neglect, or exploitation of
another person, including assault;
3. Felony theft offense; or
4. Felony drug offense.
(3) Program sponsors, sub-contract agency
directors, and directors of other sponsoring agencies shall receive basic
training whenever possible.
(4) The long-term care ombudsman, program
staff, and volunteers shall receive a minimum of twenty-four (24) hours of
training, including at least the following areas:
(a) The Older Americans Act of 1965, as
amended, and the aging network;
(b) Characteristics, special needs, and
problems of the long-term care resident;
(c) Characteristics of long-term care
1. Numbers of beds;
2. Levels of care;
3. Services; and
(d) The long-term care reimbursement
3. SSI; and
4. State supplementation;
(e) The regulation of facilities and the
enforcement of regulations;
(f) Complaint investigation and
(h) Residents' rights;
(i) Development of residents' councils;
(j) Recruiting, screening, selecting, training,
placing, and supporting volunteers; and
(k) Use of public funds.
(5) District ombudsmen shall attend training
meetings as established by the Kentucky long-term care ombudsman.
(6) All long-term care ombudsmen and
volunteers shall be:
(a) Certified within thirty (30) days of
hire or prior to providing services; and
(b) Re-certified every two (2) years
prior to the expiration of the current certification.
(7) Certification shall be awarded after
submitting certification documentation of:
(a) Verification of completion of minimum
training requirements; and
(b) A score of at least eighty (80)
percent on the certification examination.
Section 9. Confidentiality. Investigatory
files, complaints, responses to complaints and other information related to
complaints or investigations maintained by the ombudsman program shall be considered
confidential information in accordance with the Older Americans Act of 1965, 42
U.S.C. 3027(a)(12)(C). Confidentiality shall be maintained using the following
(1) Persons who gain access to a
resident’s records shall not discuss or disclose information in the records or
disclose a resident's identity outside of the program.
(2) The Kentucky long-term care ombudsman
shall release information only with:
(a) Written consent of the resident; or
(b) A court order to disclose.
(3) Information shall be secured as
(a) Complaint files shall be contained in
a locked file cabinet;
(b) Computerized systems shall have
secured access codes; and
(c) Computer software containing
confidential information shall be stored in a locked file.
(4) The confidentiality and disclosure
criteria shall not preclude the ombudsman's use of otherwise confidential
information in the files for preparation and disclosure of statistical, case
study, and other data if the ombudsman does not disclose the identity of persons
otherwise protected in this section.
Section 10. Rights of Access. (1)
Kentucky, regional, volunteer, and district ombudsmen shall have unrestricted
access to long-term care facilities:
(a) Without prior notice;
(b) To meet with one (1) or more
(c) To observe the operation of the
facility as it affects the patient.
(2) Volunteer ombudsmen shall have access
(a) Residents' dining area;
(b) Residents' living area;
(c) Residents' recreational area;
(d) Lounges; and
(e) Areas open to the general public.
(3) Certified representatives of the
Kentucky Long-term Care Ombudsman Program shall have access to a resident's
medical and social records:
(a) With permission of the resident or
his legal guardian, except as provided for under KRS 209.030(7); or
(b) By court order.
(4) Access shall not include the right to
examine the financial records of the facility without the consent of the administrator.
(5) If the ombudsman is denied entry to a
long-term care facility, the administrator or operator shall be informed of the
statutory authority for access. If entry is still denied, the ombudsman shall
inform the Kentucky long-term care ombudsman, the Office of Inspector General, Division
of Health Care, and secure assistance from local law enforcement officials.
(6) Willful interference, as governed by
KRS 216.541(3), with representatives of the Kentucky Long-term Care Ombudsman
Program in the performance of official duties shall be unlawful and:
(a) Result in a fine of $100 to $500 for
(b) Each day the violation continues
shall constitute a separate offense.
Section 11. Referrals. (1) The district
long-term care ombudsman shall refer reports of abuse, neglect, exploitation,
or spouse abuse to the Department for Community Based Services, Division of
Protection and Permanency, and, if appropriate, the Office of Inspector
General, Division of Health Care, for investigation. Referrals under this
subsection shall not affect the continuing duty, full freedom, and independence
of the ombudsman to:
(a) Insure the continued adequacy and
responsiveness of complaint investigation and resolution, monitoring, and data
collection systems consistent with the Older Americans Act;
(b) Maintain an independent capacity to
investigate and resolve complaints as governed by Section 13 of this
(c) Receive and process, on a regular
basis, information related to the number, type, and source of complaints,
facilities involved, and the manner of complaint resolution; and
(d) Maintain by specific agreement the
power, ability, and right to monitor the agency's complaint processing
performance and take action necessary to correct and improve deficiencies.
(2) District ombudsmen shall address
concerns regarding the investigation or resolution of complaints referred under
subsection (1) of this section to the Kentucky long-term care ombudsman.
(3) District ombudsmen shall make referrals
to county attorneys, legal aid agencies, and legal assistance offices.
(4) District ombudsman shall report to
the Kentucky long-term care ombudsman a referral to the Office of the Attorney
General or any federal agency.
Section 12. Receiving Reports. (1) The
Kentucky long-term care ombudsman, regional ombudsmen, district ombudsmen, and
persons identified and approved by these ombudsmen shall have the authority to
provide intake of a complaint.
(2) The person receiving a report shall
obtain as much information as possible, making a reasonable effort to obtain
(a) Name and location of the long-term
care facility involved;
(b) Name and location of the resident;
(c) Name, address, and telephone number
of the person responsible for the resident;
(d) Nature of the complaint as
specifically as possible;
(e) Name and location of the alleged
(f) Identity of the reporting source,
though reports may be made anonymously.
(3) The person receiving the report may
contact other agencies or individuals to secure additional information relevant
to the investigation.
Section 13. Complaint Investigation. (1) A
long-term care facility resident shall have the right to:
(a) Voice grievances and recommend
changes in policies and services to facility staff and outside representatives
of their choice, free from restraint, interference, coercion, discrimination,
(b) Associate and communicate privately
with persons of their choice; and
(c) Private meetings with the appropriate
long-term care facility inspectors from the Cabinet for Health and Family
(2) A long-term care ombudsman shall
investigate and resolve complaints:
(a) Made by or on behalf of an elderly
individual who is a resident of a long-term care facility relating to action
which may adversely affect the health, safety, welfare, and rights of the
(b) Made by or on behalf of a nonelderly
long-term care facility resident if actions will:
1.a. Benefit an elderly resident of that
long-term care facility or elderly residents of long-term care facilities
b. Be the only viable avenue of
assistance available to the resident; and
2. Not significantly diminish the
Long-term Care Ombudsman Program's efforts on behalf of elderly persons.
(3) District and volunteer ombudsmen
shall not investigate complaints unless certified by the Kentucky Long-term
Care Ombudsman Program.
(4) The Kentucky and regional ombudsmen
shall inform the district ombudsmen of on-site investigations conducted in their
(5) The investigation shall be conducted
according to the criteria established in this subsection.
(a) Investigation shall include contact with the resident, staff of the
long-term care facility, and collateral contacts.
(b) A representative of the program
shall, upon entering the facility, promptly notify the administrator or his
designated representative of his presence.
(c) A representative of the program shall
not enter the living area of a resident without identifying himself to the resident.
(6) The investigating ombudsman, with
permission of the resident or legal representative, shall take steps to
investigate a complaint and attempt to resolve the complaint to the resident’s
satisfaction. Resolution may include:
(a) Collaborating or negotiating at the
nursing home administrative level to change particular nursing home behavior,
pattern, or practice affecting the resident;
(b) Consulting with a resident, relative,
or nursing home staff member to resolve a problem;
(c) Effecting positive enforcement action
by a regulatory agency;
(d) Proposing regulatory or statutory
changes or additions;
(e) Communicating with community groups
and professional organizations; and
(f) Encouraging the utilization of legal
(7) Documentation shall be completed on
complaint investigations and incorporated into the ombudsman data system as follows:
(a) The documentation entered into the
data system shall be entered by the fifteenth (15th) of the month for all cases
completed the prior month; and
(b) Documentation of the investigation
shall include the:
1. Identity of the resident on whom the
report is made;
2. Date the face-to-face visit with the
resident was completed;
3. Identity of the long-term care
5. Identity of persons interviewed and
records or documents reviewed during the course of the investigation;
6. Factual information used to support
findings and conclusions; and
7. Actions taken and services provided.
(8) Resolution shall include documented
follow-up and ongoing monitoring of the situation for a reasonable period of
time, depending on the complexity of the situation, through
contact with the complainant or resident or, if appropriate, for the purpose of
determining that the causes giving rise to the complaint have not been repeated
and have not recurred.
(9) In accordance with KRS 216.541(2) and
(3), retaliation and reprisals by a long-term care facility or other entity
against an employee or resident for having filed a complaint or having provided
information to the Kentucky Long-term Care Ombudsman Program shall be unlawful
(a) Shall result in a fine of $100 to
$500 for each violation; and
(b) Each day a violation continues shall
constitute a separate offense.
Section 14. Reporting Requirements. The
Kentucky long- term care ombudsman program shall maintain a statewide uniform
reporting system to collect and analyze information on complaints and conditions
in long-term care facilities for the purpose of identifying and resolving
significant problems. (1) The contracted agency providing the district
long-term care program shall submit quarterly reports to the Kentucky long-term
care ombudsman according to the contractual agreement.[following schedule:
Oct 1 – Dec 31
Due January 15
Jan 1 – Mar 31
Due April 15
Apr 1 – Jun 30
Due July 15
Jul 1 – Sep 30
Due October 15]
(2) The district ombudsman shall submit
an annual report to the Kentucky long-term care ombudsman no later than determined
in the contractual agreement for inclusion in the annual state ombudsman
Section 15. Monitoring and Evaluation. (1)
District long-term care ombudsman programs shall be monitored annually by the
contract agency or the Kentucky long-term care ombudsman according to contract
or, if services are provided directly by the Kentucky long-term care ombudsman,
by the DAIL.
(2) Formal evaluations of the district
ombudsman program shall be conducted at regular intervals, at least annually,
by the Kentucky long-term care ombudsman.
(3) The results of the evaluation,
omitting client identifying information, shall be made available to the district
long-term care ombudsman contracting agency to be used to plan and implement program
changes to meet participant needs.
(4) The Kentucky long-term care ombudsman
and district long-term care ombudsman contracting agency shall permit staff of
the Cabinet for Health and Family Services, persons acting for the Cabinet for
Health and Family Services, or staff designated by appropriate federal agencies
(a) Monitor and evaluate programs and
activities initiated under the Older Americans Act and other programs for which
the department has administrative responsibility; and
(b) Interview clients by persons and agencies
listed in this subsection, except if confidentiality requirements are applicable. (18 Ky.R. 2077; Am. 2577; eff. 3-7-92; Recodified from
905 KAR 8:210, 10-30-98; Recodified from 923 KAR 1:210, 7-8-99; 41 Ky.R. 2150;
2578; eff. 6-17-2015.)