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, 205.204

      NECESSITY, FUNCTION, AND CONFORMITY: 42 USC 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 authorizes the Cabinet for Health Services to adopt regulations as necessary to implement programs mandated by federal law. KRS 205.204 designates the Cabinet for Health Services as the state agency to administer the Older Americans Act in Kentucky. The function of this administrative regulation is to implement a statewide Long-term Care Ombudsman Program as required by federal law, and in compliance with the statutory requirement of KRS 13A.221 that requires a separate administrative regulation for each topic of general subject matter. This administrative regulation contains the substance of 905 KAR 8:070 which is repealed.

 

      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) "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.

      (4) "Complaint" means an allegation filed by residents or on behalf of residents relating to the health, safety, welfare and rights of a resident.

      (5) "Complaint resolution" means either corrective action taken in regard to an allegation or a determination as to the validity of the allegation.

      (6) "Complaint verification" means a determination through investigative means that allegations relating to the health, safety, welfare and rights of a patient are valid.

      (7) "Designation" means formal notification by the long-term care ombudsman that a district program meets requirements, and shall be considered a subdivision of the state office.

      (8) "District ombudsman" means that individual certified by the long-term care ombudsman to implement the ombudsman provisions of the approved area agency on aging plan.

      (9) "Evaluation" means periodic analysis and review conducted by the long-term care ombudsman, of district, regional and state ombudsman programs, including quality assurance and outcome measures pertaining to individual and programmatic performance.

      (10) "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.

      (11) "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.

      (12) "Monitoring" means periodic review conducted by the Office of Aging Services and the area agency on aging measuring ombudsman program's adherence to approved plans, including analysis of nonclient specific data relating to program performance.

      (13) "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.

      (14) "Referral" means the appropriate channeling of information so as to effect a desired outcome of a complaint.

      (15) "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 multiarea development district area.

      (16) "Unit of service" means one-half (1/2) hour of staff time, paid or volunteer, provided to or on behalf of a client or a group of clients.

      (17) "Unduplicated client" means counting each individual served by the ombudsman program one (1) time within each fiscal year.

      (18) "Volunteer ombudsman" means a nonsalaried individual serving within a district program to assist a district ombudsman.

 

      Section 2. Responsibilities of Kentucky Long-term Care Ombudsman Program. (1) The Kentucky Long-term Care Ombudsman Program shall be administered by a full time ombudsman who shall be assigned to the Office of the Executive Director, Office of Aging Services, Cabinet for Health Services.

      (2) The Kentucky Long-term Care Ombudsman Program 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;

      (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;

      2. Development of district program operating procedures and reporting requirements; and

      3. Establishment of a communications link between the state 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 regarding program activities, the long-term care system and 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 report to the state licensing and certifying agency, the Governor, the federal Administration on Aging and the public including:

      1. Operation of the Kentucky Long-term Care Ombudsman Program;

      2. Status of complaints and resolutions;

      3. Conditions in long-term care facilities;

      4. Serious issues of widespread concern; and

      5. Proposals for corrective action at relevant levels of government.

      (l) Preparation of progress reports and other required program reports;

      (m) Assistance to the area agencies on aging and district programs to establish, develop and coordinate ombudsman activities;

      (n) Development of agreements and working relationships with relevant agencies to encourage their cooperation and assistance with the program at the state and local levels;

      (o) Development, in cooperation with the legal services developer, of agreements and working relationships with legal services programs, particularly those funded by the Older Americans Act of 1965, as amended;

      (p) Development and provision of training on an ongoing basis for state and local program staff and volunteers;

      (q) Identification and development of additional funding and staffing resources for the program;

      (r) Support and promotion of the formation of resident councils in long-term care facilities;

      (s) Development and provision of testimony and comment on proposed legislation, regulations, policies and rule changes affecting the institutionalized elderly;

      (t) Conduction of other activities related to the protection and dignity of residents of long-term care facilities; and

      (u) Performance of other activities required by the Commissioner on Aging, federal Administration on Aging.

 

      Section 3. Responsibilities of the Regional Ombudsman. The regional ombudsman shall be a full-time staff member of, and report directly to the Kentucky long-term care ombudsman and shall have the following responsibilities:

      (1) Receive, investigate and resolve complaints;

      (2) Technical assistance and coordination of district programs within the geographic area assigned;

      (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 longterm care ombudsman.

 

      Section 4. Designation of District Programs. (1) The area agency on aging plan shall contain an ombudsman portion which shall serve as the application for designation of a district ombudsman. Information contained shall include:

      (a) Definition of program in terms of the following personnel:

      1. Program supervisor;

      2. Area development district monitor;

      3. Ombudsman advisory council;

      4. District ombudsman; 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; and

      (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.

      (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.

      (2) The Kentucky Long-term Care Ombudsman Program shall:

      (a) Review applications for designation by area agencies on aging contained in their area plans for operating programs either directly or under subcontract;

      (b) Review applications for designation received independently of the area agency if independently operated ombudsman services are indicated in the area plan; and

      (c) Provide written confirmation of the designation.

      (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 Program. The district ombudsman program shall:

      (1) Provide services under the supervision of qualified personnel 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 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, without prior approval of the supervisor, 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.

      (7) Implement accurate recordkeeping procedures to assure:

      (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; and

      4. Follow-up.

      (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 to the area agency on aging 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 nursing homes;

      (3) Adhere to guidelines provided by state 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; or

      (d) Gain economically or receive any compensation from a long-term care facility or association.

 

      Section 8. Training. The Kentucky long-term care ombudsman shall provide training as follows:

      (1) Staff and volunteers shall participate in a basic training program designed to give trainees a working knowledge of the ombudsman program and the long-term care system.

      (2) Program sponsors, area agency on aging directors and directors of other sponsoring agencies shall receive basic training whenever possible.

      (3) The district long-term care ombudsman 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 nursing homes including:

      1. Numbers of beds;

      2. Levels of care;

      3. Services; and

      4. Costs.

      (d) The long-term care reimbursement system including:

      1. Medicaid;

      2. Medicare;

      3. SSI; and

      4. State supplementation.

      (e) The regulation of facilities and the enforcement of regulations;

      (f) Complaint investigation and resolution;

      (g) Guardianship;

      (h) Residents' rights;

      (i) Development of residents' councils;

      (j) Recruiting, screening, selecting, training, placing and supporting volunteers; and

      (k) Use of public funds.

      (4) In addition to the minimum training, district ombudsmen shall attend quarterly training meetings as provided.

 

      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, Section 307(12)(B) and (D). Confidentiality shall be maintained using the following criteria:

      (1) Persons who gain access to residents' records shall not discuss or disclose information in the records or disclose a resident's identity outside of the program without:

      (a) Written consent of the resident or complainant; or

      (b) A court order to disclose.

      (2) 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.

      (3) 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 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 during normal visiting hours 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) 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(5); 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 Division of Licensing and Regulation, and secure assistance from local law enforcement officials.

      (6) Willful interference, as governed by KRS 216.535(7), 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 Kentucky long-term care ombudsman shall refer reports of abuse, neglect, exploitation or spouse abuse to the Divisions of Family Services and, if appropriate, Licensing and Regulation 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. Referrals to the Office of the Attorney General and the Cabinet For Health Services's Office of Counsel shall be made through the Kentucky long-term care ombudsman.

 

      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 alleged perpetrator; and

      (f) Identity of the reporting source. 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) Long-term care facility residents 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 Services.

      (2) Long-term care ombudsmen shall investigate and resolve complaints:

      (a) Made by or on behalf of elderly individuals who are residents of long-term care facilities relating to action which may adversely affect the health, safety, welfare and rights of the resident;

      (b) Made by or on behalf of nonelderly long-term care facility residents if actions will:

      1. Benefit elderly residents of that long-term care facility or elderly residents of long-term care facilities generally; or

      2. Be the only viable avenue of assistance available to the resident; and

      3. 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. Certification shall be extended after completion of minimum training requirements and attendance at an ombudsman competency conference conducted by the Kentucky Long-term Care Ombudsman Program or, in the case of volunteer ombudsmen, by the district 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 following criteria:

      (a) Investigation may include contact with the resident, staff of the long-term care facility and collateral contacts.

      (b) Representatives of the program shall, upon entering the facility, promptly notify the administrator or his designated representative of their presence.

      (c) Representatives of the program shall not enter the living area of residents without identifying themselves to the resident.

      (6) The investigating ombudsman shall take immediate steps to resolve a substantiated complaint. The ombudsman shall consider the resident's choice of remedy. Reasonable avenues of assistance to the complainant, directly or by referral, shall be addressed, and if efforts are unsuccessful, the ombudsman shall so advise the complainant and provide information explaining how to proceed independently. Resolution may include:

      (a) Persuading or negotiating at 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 by the complainant.

      (7) Written documentation shall be completed on complaint investigations and incorporated into the ombudsman files:

      (a) The DSS 1240 Long-term Care Complaint form, herein incorporated by reference, shall be completed at the conclusion of the investigation; and

      (b) A narrative documentation of the investigation shall include:

      1. Identity of the resident on whom the report is made;

      2. Identity of the long-term care facility;

      3. Complaint;

      4. Identity of persons interviewed and records or documents reviewed during the course of the investigation;

      5. Factual information used to support findings and conclusions; and

      6. Actions taken and services provided.

      (8) Resolution shall include documented follow-up and ongoing monitoring of the situation for a reasonable period of time through contact with the complainant or resident, or otherwise if appropriate, for the purpose of determining the causes giving rise to the complaint have not been repeated and have not recurred.

      (9) 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;

      (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 area agency on aging shall submit quarterly reports to the Kentucky long-term care ombudsman according to the following schedule:

1st quarter

Oct 1 - Dec 31

Due January 15

2nd quarter

Jan 1 - Mar 31

Due April 15

3rd quarter

Apr 1 - Jun 30

Due July 15

4th quarter

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 October 15 for inclusion in the annual state ombudsman report.

      (3) Copies of the DSS 1240 Long-term Care Complaint form, herein incorporated by reference, shall be submitted by the district or regional ombudsman to the Kentucky long-term care ombudsman to be reviewed and retained in a confidential file. Supporting documentation shall be submitted upon request of the Kentucky long-term care ombudsman.

      (4) The following activities facilitate the delivery of services but shall not be reported as units of service:

      (a) Review, update or maintenance of resource or agency files;

      (b) Travel time incurred in the delivery of the service;

      (c) Training or staff meetings; and

      (d) Project management.

      (5) The following shall be utilized to determine unduplicated client count:

      (a) Persons who directly receive a service from the program, including friendly visiting;

      (b) Persons who reside in a long-term care facility and benefit from services directed at improving quality of life for residents in that facility, even if the resident did not directly receive the service; and

      (c) Persons who participate in training conducted by the ombudsman program and are not a part of the program.

 

      Section 15. Monitoring and Evaluation. (1) Ombudsman programs shall be monitored annually by the area agency on aging, or if services are provided directly by the area agency on aging, by the Office of Aging Services.

      (2) Formal evaluations of the district ombudsman program shall be conducted at regular intervals, at least annually, by the Kentucky long-term care ombudsman. The results of the evaluation, omitting client identifying information, shall be made available to the area agency on aging to be used to plan and implement program changes to meet participant needs.

 

      Section 16. Material Incorporated by Reference. (1) Forms necessary for the implementation of the Kentucky Long-term Care Ombudsman Program shall be herein incorporated.

      (2) Material incorporated by reference may be inspected and copied at the Office of Aging Services, CHR Building, 5th Floor, 275 East Main Street, Frankfort, Kentucky 40621. Office hours are 8 a.m. to 4:30 p.m. (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.)