Complaint and Problem Resolution Procedures for the Ombudsman Program

(1) Receipt of a Complaint(s). The State Ombudsman Program or local ombudsman programs will receive complaints, both oral and written, made by or on behalf of residents, and may also initiate a complaint on their own accord. (a) The State Ombudsman Program and local ombudsman programs will receive complaints during regular business hours, Monday through Friday, excluding holidays. (b) All complaints initiated or received by the State Ombudsman Program or local ombudsman programs will be reduced to writing and become part of a case file. (c) Upon receipt of a complaint, an ombudsman representative will discuss the complaint with the resident (and, if the resident is unable to communicate informed consent, the resident’s representative) to: 1. determine the perspective of the resident (or resident representative, where applicable) regarding the complaint; 2. request that the resident (or resident representative, where applicable) communicate informed consent in order to investigate the complaint; 3. determine the resident's wishes with respect to resolution of the complaint, including whether the allegations are to be reported and, if so, whether the ombudsman representative may disclose resident identifying information or other relevant information to the facility and/or appropriate agencies; 4. advise the resident (and the resident’s representative, where applicable) that the resident’s identity will not be disclosed without the resident’s permission, and specify to whom the resident’s identity may be disclosed if the resident consents. Such disclosure will be made without the resident's consent if ordered by a court of competent jurisdiction; 5. work with the resident (or resident’s representative, where applicable) to develop a plan of action for resolution of the complaint; 6. investigate and contact those who may be involved in a resolution to attempt to verify the facts alleged in the complaint; and 7. determine whether the complaint is resolved to the satisfaction of the resident (or resident representative, where applicable). (d) If informed consent is not provided to the ombudsman representative to discuss or proceed with the complaint, the resident or the resident representative will be provided with information and/or referral sources appropriate to enable the resident to advocate on their own behalf. (e) Where the ombudsman representative determines the resident is unable to give informed consent and has no resident representative, the ombudsman representative will take appropriate steps to investigate and work to resolve the complaint to protect the health, welfare, safety, or rights of the resident. (f) If the ombudsman representative has reasonable cause to believe the resident representative is not acting in the best interest of the resident, the ombudsman representative will work to protect the health, welfare, safety, or rights of the resident. (g) Where a complaint is found to be unsupported, the ombudsman representative will inform the resident or resident representative, where applicable, of this finding as soon as possible after making such determination. (h) If an ombudsman representative observes a practice in a facility which affects the resident or a number of residents in the facility, and such practice constitutes grounds for a complaint, the ombudsman representative may investigate and attempt to resolve such complaint without the consent of individual residents. (2) Resolution of a Supported Complaint. If an ombudsman representative has reasonable cause to believe a complaint is supported and obtains informed consent from a resident or resident representative to act, they will discuss the complaint with the appropriate staff member or contact person at the facility. (a) If the discussion with the facility staff member or contact person resolves the complaint without further action, the ombudsman representative will notify the resident or resident representative. (b) If the resident resides in a facility, is unable to give informed consent, and has no resident representative, the ombudsman representative will determine whether the complaint was sufficiently resolved to protect the health, welfare, safety, or rights of the resident. (c) If an ombudsman representative is unable to resolve the complaint, if access to records is denied, or a legal referral is required, the ombudsman representative will inform the local ombudsman program director. The local ombudsman program director will work with the ombudsman representative in the investigation and resolution of the complaint. (d) If such a complaint is referred to an attorney or a legal services organization and the Ombudsman Program is not able to resolve the complaint, the local ombudsman program will timely inform the resident or the resident representative and the State Ombudsman. (3) Consultation with the State Ombudsman. If a local ombudsman program is unable to access records or, after investigation, is unable to resolve a complaint, said program will refer the case to the State Ombudsman or their designee. The State Ombudsman or their designee will work with the local ombudsman program in a timely manner to access records or investigate and resolve the complaint. (a) If the State Ombudsman or their designee are unable to access records or, following investigation, determines an act, practice, or omission of the facility may adversely affect the health, safety, welfare, or rights of a resident, they will make recommendations for the elimination or correction of such act, practice, or omission to the appropriate executive at the facility involved. (b) Upon receipt of a complaint referred from a local ombudsman program, and any time during a subsequent investigation of the complaint, the State Ombudsman or their designee may refer the complaint to an appropriate agency, including law enforcement, for investigation and resolution. (4) Serious Violation Referrals. Local ombudsman programs will refer a complaint regarding possible serious violations of medical care, personal care, nursing care, treatment rules, fire safety regulations, or the law to the State Ombudsman, who will report it to EOHHS, the Massachusetts Department of Public Health, EOEA, or the Office of the Attorney General, as appropriate, for investigation and resolution, with the informed consent of the resident. (5) Resolution of Complaints of Abuse, Mistreatment, or Neglect. If the State Ombudsman or an ombudsman representative has reasonable cause to believe abuse, mistreatment, or neglect of a resident may have occurred as set forth in M.G.L. c. 111, §§ 72F through 72L, they will comply with the complaint resolution procedures set forth in 101 CMR 30.12, 45 CFR 1324.19(b)(8), and 42 U.S.C. 3001 et seq. (6) Documentation of Complaints. Local ombudsman programs will document all complaints in a format as directed by the State Ombudsman. The local ombudsman program director must ensure all complaints and other relevant information are updated in the case file not less than monthly. The State Ombudsman or their designee may review the case records, files, and other documents of the local ombudsman programs. The State Ombudsman may, at their discretion, require additional periodic reports from local ombudsman programs, which may include identification of barriers to effectively respond to complaints and patterns of significant problems relating to conditions or residents' care in facilities in its assigned geographic area.