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, 205.204
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 equivalent" means:
(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 contracted entity.
(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 available;
(c) Development and implementation of policies and procedures for operation of the program, including those related to:
1. Receipt, investigation, and resolution of complaints;
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, including:
1. Designation of district programs through:
a. Reviewing applications for designation of district ombudsman contained in their plans for operating either directly or under subcontract;
b. Providing written confirmation of the designation; and
c. Administration of certification and training requirements;
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 education concerning:
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 program;
(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 complaints;
(j) Review of complaint, case, and issue data submitted by the district programs and analysis for trends, pattern, and issue identification;
(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 volunteers;
(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 facilities; and
(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 responsibilities:
(1) Receive, investigate, and resolve complaints;
(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 following personnel:
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 documentation system;
(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 files;
(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.
(3) Designated 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 skills;
(d) New staff shall receive an orientation and shall be trained and certified prior to assuming responsibilities;
(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 program by:
(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 volunteer program;
(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 issues; and
(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 directed;
(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 investigation;
(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 leadership; 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 following:
1. A violent crime as defined by KRS 439.3401;
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 university with:
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 administrative regulation.
(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 registry; and
(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 439.3401;
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 facilities including:
1. Numbers of beds;
2. Levels of care;
3. Services; and
(d) The long-term care reimbursement system including:
3. SSI; and
4. State supplementation;
(e) The regulation of facilities and the enforcement of regulations;
(f) Complaint investigation and resolution;
(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 criteria:
(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 follows:
(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 residents; and
(c) To observe the operation of the facility as it affects the patient.
(2) Volunteer ombudsmen shall have access to the:
(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 each violation;
(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 administrative regulation;
(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 the:
(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 perpetrator; and
(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, or reprisal;
(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 Services.
(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 resident; and
(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 generally; or
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 districts.
(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 services assistance.
(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 facility;
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 and:
(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.[
(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 report.
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 to:
(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. 7-6-2015.)