218-RICR-40-00-1
218-RICR-40-00-1. Rules and Regulations Governing the Long Term Care Ombudsperson Program (version Adoption, 07/07/2014 to 05/19/2017)
STATE OF RHODE ISLAND
DEPARTMENT OF HUMAN SERVICES
DIVISION OF ELDERLY AFFAIRS
Rules and Regulations Governing
the Long Term Care Ombudsperson
Program
July 7, 2014
i
Introduction
1
2
These Rules and Regulations Governing the Long Term Care Ombudsperson Program are
3
promulgated pursuant to the authority conferred under section 42-66.7-12 of the Rhode Island
4
General Laws, as amended, for the purpose of adopting prevailing standards for the
5
implementation and enforcement of the long-term ombudsperson program including, but not
6
limited to, the procedures for the receipt, investigation and resolution, through administrative
7
action, of complaints filed by residents of long term care facilities, individuals acting on their
8
behalf or any individual organization or government agency that has reason to believe that a long
9
term care facility, organization or government agency (which government agency is responsible
10
for the regulation, inspection, visitation, or supervision of facilities or which provides services to
11
residents of facilities) has engaged in activities, practices or omissions that constitute a violation of
12
applicable statutes or regulations or that may have an adverse effect upon the health, safety,
13
welfare, rights or the quality of life of residents of long term care facilities.
14
15
Pursuant to the provisions of the Administrative Procedures Act, the following were given
16
consideration in promulgating these regulations: (a) alternative approaches to the regulations; and
17
(b) duplication or overlap with other state regulations. Based upon available information, no
18
alternative approach, duplication, or overlap was identified.
19
20
These regulations are adopted in the best interest of the health, welfare, and safety of Rhode
21
Island’s seniors.
22
ii
Table of Contents
1
2
3
Section Number
Page Number
4
5
1.0
Definitions
1
6
2.0
Establishment of Program
3
7
3.0
Nondiscrimination and Civil Rights Policy
3
8
4.0
Compliance with all Laws, Codes, Rules and Regulations
4
9
5.0
Annual Report
4
10
6.0
Interagency Cooperation
5
11
7.0
Cooperation Required
5
12
8.0
Powers
5
13
9.0
Duties
6
14
10.0
Governing Body
8
15
11.0
Personnel
9
16
12.0
Conflict of Interest
10
17
13.0
Complaint Resolution
11
18
14.0
Resident Records
12
19
15.0
Access
13
20
16.0
Confidentiality-Disclosure
14
21
17.0
Retaliation Prohibited
15
22
18.0
Immunity from Liability
15
23
19.0
Noninterference
15
24
20.0
Penalty for Violations
15
25
21.0
Procedures for Appeal
16
26
22.0
Complaints Regarding the Ombudsperson Program;
27
Termination of Ombudsman Program
16
28
23.0
Severability
17
29
30
References
18
31
1
PART I Definitions and General Requirements
1
Section 1.0
Definitions
2
For the purpose of these rules and regulations, the following words and phrases shall be construed
3
as follows:
4
1.1
An “act” of any facility or government agency includes any failure or refusal to act by any
5
facility or government agency.
6
7
1.2
“Client” and “Resident”, as used herein, shall have the same meaning.
8
9
1.3
“Department” means the Rhode Island Department of Human Services, Division of
10
Elderly Affairs.
11
12
1.4
“Director” means the Director of the Division of Elderly Affairs or his/her designated
13
agent.
14
15
1.5 “Division” means the Division of Elderly Affairs.
16
17
1.6
“Elderly” means any individual sixty (60) years of age or older who is a resident of any
18
facility.
19
20
1.7
“Facility” means any facility or institution, home care provider, home hospice care
21
provider or home nursing care provider, whether public or private, offering health or health
22
related services for the institutionalized elderly, and which is subject to regulation,
23
visitation, inspection, or supervision by any government agency. “Facilities” include, but
24
are not limited to, nursing homes, intermediate care facilities, extended care facilities,
25
convalescent homes, rehabilitation centers, home care agencies, homes for the aged,
26
veterans' homes, boarding homes, and adult supportive care, residential care and assisted
27
living residences.
28
29
1.8 “Financial interest” means an ownership interest or investment in a facility by a
30
representative of the Office or a relative of the representative of the Office.
31
32
1.9
“Governing body” means (a) a public agency within which the Office is located; or (b) the
33
board of directors of any non-profit organization within which the Office is located,
34
however named, charged with overall responsibility for the activities of the organization,
35
as delineated in its articles of incorporation, by-laws and/or other legally adopted
36
document(s) related to the organization’s governance.
37
38
1.10
“Government agency” means any federal or state agency responsible for the
39
administration of benefits to the elderly. This shall include, but not be limited to, any such
40
agency responsible for the administration of programs affecting residents of long term care
41
facilities.
42
43
1.11
“Immediate family” pertaining to conflicts of interest section 712(a)(5) of the Older
44
American Act as amended (42 U.S.C. §3058g), means a member of the household or a
45
relative with who there is a close personal or significant financial relationship.
46
47
2
1.12 “Interfere” means willing and continuous conduct which prevents the ombudsperson from
1
performing her or his official duties.
2
3
1.13
“Legal Representative” means a guardian appointed by a court of competent jurisdiction
4
or the holder of a valid power of attorney with the authority to act on the matter at issue as
5
specifically set forth in that power of attorney.
6
7
1.14
“Office of the State Long-Term Care Obudsperson” or “Office” means the organizational
8
unit headed by the State Long-Term Care Ombudsman, including the representatives of the
9
Office.
10
11
1.15
“Official duties” means responsibilities pursuant to the long-term care ombudsperson
12
program authorized by the federal Older Americans Act or the long-term care
13
ombudsperson program authorized by state law and carried out under the auspices and
14
general direction of the state long-term care ombudsperson.
15
16
1.16
“Ombudsperson” shall have the meaning set forth in Section 2.4 below.
17
18
1.17
“Person” means any individual, trust, or estate, partnership, limited liability corporation,
19
corporation (including associations, joint stock companies, and insurance companies),
20
state, or political subdivision or instrumentality of a state.
21
22
1.18
“Public agency” means any department, division, office, bureau, board, commission,
23
authority, or any other agency or instrumentality created by any municipality or by the
24
state, or to which the state is a party.
25
26
1.19 “Relative” means a member of the immediate family.
27
28
1.20 “Remedy” means an action, restriction of action, restriction of contact, or other means
29
proposed to the Division that would neutralize a conflict of interest and ensure that the
30
conflict will not adversely influence the activities of the representative on behalf of the
31
Office.
32
1.21 “Representatives of the Office of the Long-Term Ombudsman”or “Representative”
33
means the employees or volunteers designated by the Ombudsperson to fulfill the duties
34
set forth in Chapter 42-66.7 of the Rhode Island General Laws, as amended, as well as in
35
Section 712 of the Older Americans Act, as amended (42 U.S.C. §3058g).
36
37
1.22
“Resident” means any individual age sixty (60) years of age or older who is receiving
38
treatment, care, or housing in any facility in all of its aspects including, but not limited to,
39
admission, retention, confinement, period of residence, transfer, discharge, and in any
40
instances directly related to that status. Residents include patients and clients. Residents
41
shall also include disabled individuals under sixty (60) years of age residing in nursing
42
homes, or clients of residential and assisted living facilities and home care providers/home
43
hospice care providers/home nursing care providers and long-term care units at the Eleanor
44
Slater Hospital, including the Zambarano facility.
45
46
1.23 “Waiver” means the Division has determined that sufficient circumstances exist to eliminate
47
a conflict of interest and the need to remedy a conflict of interest.
48
49
3
PART II
General Requirements
1
2
Section 2.0
Establishment of Program
3
4
2.1
Pursuant to Rhode Island General Laws §42-66.7, the Rhode Island General Assembly
5
established a program of the long term care ombudsperson to be administratively attached
6
to the Division in accordance with its mandate under § 42-66-4 of the Rhode Island
7
General Laws, as amended, and the Older Americans Act, 42 U.S.C. § 3001 et seq.
8
9
2.2
The purpose of the program is: (a) advocating on behalf of residents and identifying,
10
investigating and resolving through mediation, negotiation, and administrative action
11
complaints filed by residents or individuals acting on their behalf; and (b) identifying,
12
investigating and resolving through mediation, negotiation, and administrative action
13
complaints filed by any individual organization or government agency that has reason to
14
believe that a long-term care facility, organization or government agency (which
15
government agency is responsible for the regulation, inspection, visitation, or supervision
16
of facilities or which provides services to residents of facilities) has engaged in activities,
17
practices or omissions that constitute a violation of applicable statutes or regulations or that
18
may have an adverse effect upon the health, safety, welfare, rights or the quality of life of
19
residents of long-term care facilities.
20
21
2.3
The Division shall carry out the program through the establishment and operation of an
22
office of long term care ombudsperson (the “Office”). The Division may operate the
23
Office and carry out the program, directly and/or by contract or other arrangement with
24
any public agency or non-profit organization. The Division may not enter into such
25
contract or other arrangement with: (i) an agency or organization that is responsible for
26
licensing or certifying long-term care services in the State; or (ii) an association (or an
27
affiliate of such an association) of long-term care facilities or of any other residential
28
facilities for older individuals.
29
30
2.4
The Office shall be headed by an individual, to be known as the ombudsperson (the
31
“ombudsperson”), who shall be selected from among individuals with expertise and
32
experience in the fields of long-term care and advocacy. The ombudsperson shall serve on
33
a full-time basis, and shall, personally or through representatives of the Office, perform the
34
functions and duties set forth in Chapter 42-66.7 of the Rhode Island General Laws, as
35
amended, as well as in Section 712 of the Older Americans Act, as amended (42 U.S.C.
36
§3058g). “Full-time basis” means that the ombudsperson position is full-time and the
37
individual who serves as the ombudsperson has no duties other than those set forth in the
38
immediately preceding sentence. The ombudsperson shall not be the chief executive officer
39
or executive director (or any individual holding an equivalent office) of any public agency
40
or non-profit organization.
41
42
Section 3.0
Nondiscrimination and Civil Rights Policy
43
44
3.1
The ombudsperson shall be responsible for maintaining a policy of nondiscrimination in the
45
provision of services to participants and in the employment of staff without regard to race,
46
color, creed, national origin, gender, sexual orientation, age, or disability, in accordance with
47
all applicable state and federal statutes, regulations, and local ordinances.
48
49
4
Section 4.0
Compliance with All Laws, Codes, Rules and Regulations -
1
2
4.1
The ombudsperson shall be responsible for complying with all local, state, and federal laws,
3
codes, rules and regulations that apply to the Office. The governing body of any
4
organization outside of the Division within which the Office is situated shall be responsible
5
for ensuring that the ombudsperson performs his or her duties in compliance with all local,
6
state, and federal laws, codes, rules and regulations that apply to the Office.
7
8
9
Section 5.0
Annual Reports
10
11
5.1
The ombudsperson shall submit an annual report of the activities of the Office and the
12
ombudsperson's activities concerning facilities and the protection of the rights of
13
residents of the facilities with the federal Assistant Secretary for Aging, Director,
14
Governor, General Assembly, Director of the Rhode Island Department of Health, Chair
15
of the Long-term Care Coordinating Council and all other appropriate governmental
16
entities.
17
18
5.2
The annual report shall:
19
20
5.2.1 Describe the activities carried out by the Office in the year for which the
21
report is prepared;
22
23
5.2.2 Contain and analyze the data collected Section 712 (c)(1) of The Older
24
Americans Act
25
26
5.2.3 Evaluate the problems experienced by, and the complaints made by or on behalf
27
of residents;
28
29
5.2.4
Contain recommendations for—
30
31
(i) improving the quality of the care and life of the residents; and
32
33
(ii) protecting the health, safety, welfare, and rights of the residents;
34
35
5.2.5 Analyze the success of the program including success in providing services to
36
residents of board and care facilities and other similar adult care facilities; and
37
38
5.2.6 Identify barriers that prevent the optimal operation of the program;
39
40
5.2.7 Provide policy, regulatory, and legislative recommendations to solve identified
41
problems, to resolve the complaints, to improve the quality of care and life of
42
residents, to protect the health, safety, welfare, and rights of residents, and to
43
remove the barriers;
44
45
5.2.8 Contain a list of all members of the governing body and their professional
46
affiliations, employees, and contractors of the Office, including a listing of
47
all legal counsel who assist the ombudsperson in the performance of the official
48
duties of the Office and provide advice and consultation needed to protect the
49
5
health, safety, welfare, and rights of residents;
1
2
5.2.9 Contain any other requirements of Section 712 (h)(1) of The Older Americans
3
Act, 42 USC §3058g (h), as the same may be amended from time to time.
4
5
5.3
The annual report referred to in the Section shall be submitted no later than thirty (30)
6
days after the year that the report covers.
7
8
5.4
The report shall be made available to the public by the Office of the Long Term Care
9
Ombudsperson. In addition, the report shall be made available on the Website of the
10
Division of Elderly Affairs and the website of the long-term care ombudsperson or the
11
organization within which the ombudsman is located, within ten (10) days of the report’s
12
submission to the Office.
13
14
Section 6.0
Interagency Cooperation
15
16
6.1
Nothing in Chapter 42-66.7 of the Rhode Island General Laws, as amended, shall be
17
construed to be a limitation of the powers and responsibilities assigned by law to other
18
state agencies or departments.
19
20
Section 7.0
Cooperation Required
21
22
7.1
The ombudsperson may request from any government agency, and the agency is
23
authorized and directed to provide, any cooperation and assistance, services, and data as
24
will enable the ombudsperson to properly perform or exercise any of his or her functions,
25
duties and powers under Chapter 42-66.7 of the Rhode Island General Laws, as amended,
26
and the rules and regulations herein.
27
28
7.2
The ombudsperson shall, to the extent permissible under the provisions of § 712 of the
29
Older Americans Act (42 U.S.C. § 3058g) as amended, cooperate and assist other
30
government agencies in their investigations, such as the Department of Health, the
31
Department of Attorney General, the Department of Human Services and any other
32
pertinent department or agency.
33
34
PART III Powers and Duties of the Long Term Care Ombudsperson
35
36
Section 8.0
Powers
37
38
8.1
The ombudsperson shall, personally or through employees of the Office:
39
40
8.1.1 Identify, investigate, and resolve complaints that (a) are made by, or on behalf of,
41
residents; and (b) relate to action, inaction, or decisions by (1) providers, or
42
representatives of providers, of long-term care services, (2) public agencies, or (3)
43
health and social service agencies that may adversely affect the health, safety,
44
welfare, or rights of the residents (including the welfare and rights of the residents
45
with respect to the appointment and activities of guardians and representative
46
payees and health care and financial powers of attorney);
47
48
49
6
8.1.2 Provide referral services to assist residents in protecting their health, safety, welfare
1
and rights;
2
3
8.1.3 Inform residents of their rights and advocate on their behalf to improve their quality
4
of life and live with dignity and respect;
5
6
8.1.4 Advocate on behalf of long term care facility residents, home care and hospice care
7
recipients;
8
9
8.1.5 Formulate written policies and procedures to identify, investigate, and resolve
10
complaints;
11
12
8.1.6 Make appropriate referrals of investigations to other state agencies, including, but
13
not limited to, the Rhode Island Department of Health, Department of Human
14
Services, Department of Behavioral Healthcare, Developmental Disabilities, and
15
Hospitals, and Department of Attorney General, provided that the resident(s) or the
16
legal representative(s) of the resident(s), as appropriate, who initiated the complaint
17
consent(s) to such referral (unless such referral is required by order of a court of
18
competent jurisdiction or by statute without such consent) and in accordance with
19
Section 16 herein and Sub-Section 712(d) of The Older Americans Act (42 U.S.C.
20
§3058g);
21
22
8.1.7 Offer assistance and training to public and private organizations on long term care
23
of elders and individuals with disabilities;
24
25
8.1.8 Represent the interests of residents of facilities before government agencies and
26
seek administrative, legal, and other remedies to protect the health, safety, welfare,
27
and rights of the residents including, but not limited to, rights with respect to the
28
appointment or removal of guardians and representative payees powers of attorney;
29
30
8.1.9 Review and, if necessary, comment on any existing and proposed laws, regulations,
31
and other government policies and actions that pertain to the rights and well-being
32
of residents of facilities.
33
34
8.1.10 Have such other powers as are provided to the Office in Section 712 of The Older
35
Americans Act (42 U.S.C. §3058g), as the same may be amended from time to
36
time.
37
38
Section 9.0
Duties
39
40
9.1
The ombudsperson shall cause the Office to comply with all of the requirements cited
41
herein. The ombudsperson also shall perform all ombudsman duties set forth in Section
42
712 of The Older Americans Act (42 U.S.C. §3058g), as the same may be amended from
43
time to time.
44
9.2
The Office shall develop, in writing, implement, and provide to the Division (upon
45
request) the following:
46
9.2.1 A statement of philosophy and goals and objectives of the Office;
47
7
9.2.2 A statement of the procedures to be used to recruit and support any volunteer
1
representative of the Office;
2
9.2.3 A statement of methods to evaluate the attainment of the Office’s goals and
3
objectives;
4
5
9.2.4 Assurance that the Office will comply with all requirements of the Division,
6
including training of all representatives of the Office, confidentiality of records,
7
and reporting;
8
9
9.2.5 Assurance that no person shall investigate any complaint filed with the Office,
10
unless such person is acting as an employee or agent of the Office;
11
12
9.2.6 Assurance that the Office has the ability to pursue appropriate remedies to resolve
13
complaints, including but not limited to:
14
15
9.2.6.1 Ensuring adequate legal counsel is available, and is able, without conflict of
16
interest, to provide advice and consultation needed to protect the health,
17
safety, welfare, and rights of residents; and to assist the ombudsperson and
18
representatives of the Office in the performance of the official duties of the
19
ombudsperson and representatives; and that legal representation is provided
20
to any representative of the Office against whom suit or other legal action is
21
brought or threatened to be brought in connection with the performance of
22
the official duties of the ombudsperson or such a representative; and the
23
Office pursues administrative, legal, and other appropriate remedies on
24
behalf of residents.
25
26
9.2.6.2 Making referrals and recommendations about specific courses of action,
27
referring situations to public and private agencies such as the Department of
28
Human Services, the Attorney General's office, state and federal courts, and
29
other agencies, as necessary;
30
31
9.2.6.3 Serving as an advocate for residents in negotiations with long-term care
32
facilities, public and private agencies, family members, and other
33
individuals and agencies to the extent permitted by state and federal law.
34
35
9.2.7 The Office shall develop a written statement which shall provide a short summary
36
of the Long Term Care Ombudsperson program, residents’ rights thereunder, and
37
the Office’s role as advocate for residents. This statement shall be subject to the
38
prior written approval of the Division and shall be provided to every resident, as
39
well as the resident’s guardian or family member, as applicable, with whom
40
representatives of the Office interact.
41
42
9.3 If the ombudsperson has knowledge of or has reasonable cause to believe that a resident has
43
been abused, mistreated or neglected as defined by R.I.G.L. Chapter 23-17.8, the
44
ombudsperson shall immediately report such determination to the Rhode Island
45
Department of Health, in accordance with R.I.G.L. Chapter 23-17.8. The Ombudsman
46
must disclose the identity of a resident where the Ombudsman or representative of the
47
Office personally witnesses abuse, neglect or exploitation of a resident, so long as (1) the
48
8
resident at issue does not request the Ombudsman or representative not to make a report of
1
the activity witnessed by the Ombudsman or representative and (2) the Ombudsman
2
determines it to be in the best interest of the resident. Such reports shall be confidential in
3
accordance with Section 16 herein and Sub-Section 712(d) of The Older Americans Act
4
(42 U.S.C. §3058g) and all applicable federal and state laws.
5
6
9.4 If (a) the ombudsperson has knowledge of or has reasonable cause to believe that a resident
7
has been abused, exploited or neglected, as defined by R.I.G.L. Chapter 42-66, and (b)
8
such abuse, exploitation or neglect is not required to be reported to the Rhode Island
9
Department of Health in accordance with R.I.G.L. Chapter 23-17.8, then the
10
ombudsperson shall immediately report such determination to the Division, in accordance
11
with R.I.G.L. Chapter 42-66. Such reports shall be confidential in accordance with
12
Section 16 herein and Sub-Section 712(d) of The Older Americans Act (42 U.S.C. §3058g)
13
and all applicable federal and state laws.
14
15
9.5 All policies and procedures of the Office shall be subject to the review and approval of the
16
director or his/her designee.
17
18
Section 10.0 Governing Body
19
20
10.1
The Office shall have an organized governing body ultimately responsible for: (1) the
21
management, fiscal affairs and operation of the Office and of the organization within
22
which the Office is located; (2) the assurance of quality services; and (3) compliance with
23
all federal, state and local laws and regulations pertaining to long term care ombudsperson
24
agencies and the rules and regulations herein.
25
26
10.2
The governing body shall provide appropriate personnel, physical resources and equipment
27
to facilitate the delivery of prescribed services and shall furthermore:
28
29
10.2.1 appoint (a) a chief operating officer, executive director (or equivalent position),
30
however named, and (b) the individual who shall serve as the ombudsperson;
31
32
10.2.2 identify the range of services to be provided which must include no less than those
33
services required herein;
34
35
10.2.3 define the geographic areas to be served; and
36
37
10.2.4 carry out such other functions as may be relevant to the organization and operation
38
of the agency.
39
40
10.3 The governing body shall adopt and maintain by-laws or acceptable equivalent which
41
defines responsibilities for the operation and performance of the organization, and shall
42
identify purposes and means of fulfilling same. The governing body shall establish
43
administrative policies pertaining to no less than the following (and copies of the same
44
shall be provided to the Division upon request):
45
46
47
48
49
9
10.3.1
1
responsibilities of the ombudsperson;
2
3
10.3.2 the mechanism for disclosure that ensures that no individual, or member of the
4
immediate family of an individual, involved in the designation of the
5
ombudsperson (whether by appointment or otherwise) is subject to a conflict of
6
interest; and that no member of the governing body, officer or employee of the
7
ombudsperson or member of the immediate family of the governing body member,
8
officer, employee, or representative, is subject to a conflict of interest;
9
10
10.3.3 the methods for identifying, and specifying in writing, mechanisms to remove
11
conflicts of interest referred to herein;
12
13
10.3.4 the manner in which services are to be provided;
14
15
10.3.5 circumstances under which ombudsperson services cannot be provided and
16
procedures for referral;
17
18
10.3.6 policies and procedures to identify, receive, investigate, and resolve complaints;
19
20
10.3.7 policies and procedures regarding persons employed by the Office. Said policies
21
shall include, but not be limited to, the following:
22
23
i)
timely completion of the bureau of criminal identification (BCI) check;
24
ii)
mechanism for credentialing and/or verifying any professional licensure
25
requirements in accordance with state statutes and regulations.
26
27
10.3.9 such other matters as may be relevant to the organization and operation of the
28
Office.
29
30
Section 11.0 Personnel
31
32
11.1
The Office shall employ a sufficient number of qualified personnel to provide effective
33
services.
34
35
11.2
A job description for each classification of position shall be established, clearly delineating
36
qualifications, duties, authority and responsibilities required for each position.
37
38
11.3
The Office shall have written personnel policies and procedures for hiring and selection,
39
compensation, evaluation, disciplinary action and grievance, and supervision and training
40
of employees, contractors, volunteers, students and/or interns. The personnel policies and
41
procedures shall include, at a minimum, the following provisions:
42
43
11.3.1 No known conflict of interest which would interfere with objective performance as
44
an ombudsperson representative.
45
46
11.3.2 Understanding of an agreement to follow the ombudsperson rules of confidentiality
47
in accordance with all applicable state and federal statutes and regulations;
48
49
10
11.3.3 Agreement to follow any policies and procedures of the Division and the Office
1
and accept the direction of the ombudsperson;
2
3
11.3.4 Compliance with the Office's reporting needs to collect and analyze data relating to
4
complaints and conditions in facilities;
5
6
11.3.5 At a minimum, training shall meet the requirements set forth in Section 712 of The
7
Older Americans Act (42 U.S.C. §3058g), as the same may be amended from time
8
to time.
9
10
11.4
Written personnel policies supporting sound personnel practices shall be made available to
11
all personnel, including volunteers, and to the Division.
12
13
11.5
Personnel files shall be maintained for each employee, including volunteers. Such files
14
shall include no less than the following documentation:
15
16
11.5.1 information pertaining to qualifications for employment which shall include but not
17
be limited to experience with long-term care issues and/or experience in the fields
18
of aging, long-term care and health care; and good verbal, listening, and writing
19
skills, as appropriate;
20
21
11.5.2 records of completion of required training and educational programs;
22
23
11.5.3 evidence of current licensure or certification as may be required by law;
24
25
11.5.4 employment application or resume of previous employment.
26
27
11.5.5 evidence of no conflicts of interest.
28
29
Section 12.0 Conflict of Interest
30
12.1
No employee or representative of the Office, no individual involved in designating,
31
hiring, evaluating, or terminating the ombudsperson or any other employee or
32
representative of the Office, no organization within which the office is located and no
33
governing body members may have an unremedied conflict of interest. Conflicts of interest
34
shall include, but shall not be limited to, being employed by a facility at any time within
35
the two (2) years prior to being employed by or affiliated with the Office; or being
36
affiliated with, or having a financial interest in, a facility or a membership organization of
37
long-term care providers or other facilities; or standing to gain financially through an
38
action brought on behalf of individuals whom the Office serves; or, in the case of a non-
39
profit organization where the Office is situated, receipt of donations or other funds from a
40
facility.
41
Absent a waiver granted by the Division, no representative of the Office shall be assigned
42
to investigate a complaint concerning a facility with which the representative was formerly
43
employed, with which the representative was formerly or is currently affiliated or
44
associated, from which a relative receives long-term care services, or that poses any other
45
conflict of interest.
46
11
12.2
The agency within which the Office is located shall develop procedures to screen potential
1
and existing employees of the program, potential candidates and existing representatives of
2
the Office, individuals involved in designating, hiring, evaluating, or terminating the
3
ombudsperson, and potential and existing governing body members for conflicts of
4
interest. The procedures shall be applied upon initial screening and annually thereafter.
5
When completed, the individual who conducted the screen and the individual screened
6
shall acknowledge the completion of the screen in writing. The completed screening
7
instrument shall be made a record of the program and shall be subject to review by the
8
Division.
9
12.3
Prior to offering a position within the Office to an applicant or training a volunteer, the
10
agency within which the Office is situated shall report any identified conflict of interest to,
11
and may propose a remedy to, the Director. Within forty-five (45) days of receiving a
12
proposed remedy, the Director shall review the nature, scope, and extent of the conflict and
13
shall determine whether or not to allow the proposed remedy. While the decision is
14
pending, the agency shall assign any individual with a conflict of interest to duties that do
15
not pose a conflict.
16
The proposed remedy shall be submitted in writing and shall reveal the nature, extent, and
17
potential impact of the conflict of interest, and shall be a remedy which will neutralize the
18
conflict of interest. Current employment with any type of facility is a conflict of interest
19
that cannot be remedied. Any remedy granted shall remain in effect for as long as the
20
conflict continues to exist to the same extent as reported and for as long as the remedy
21
continues to work.
22
Section 13.0 Complaint Resolution
23
13.1
Upon receipt of a complaint, a representative of the Office shall: (a) inform the resident
24
and/or complainant (if not the affected resident) that his/her identity shall not be disclosed
25
unless such complainant or resident, or a legal representative of either, consents in writing
26
to such disclosure and specifies to whom their identity may be disclosed. Such disclosure
27
shall be made without the complainant or resident's consent if ordered by a court of
28
competent jurisdiction or when disclosure is mandated by statute;
29
(b) review the complaint and consult with the complainant regarding possible methods of
30
resolution; If consent to proceed is not obtained, the resident, or complainant, if not the
31
affected resident, shall be provided with information and/or referral sources appropriate to
32
enable them to advocate on their own behalf.
33
13.2 After an investigation, if the ombudsperson determines in the ombudsman’s judgment that
34
the complaint does not warrant further action, the situation shall be explained fully to the
35
complainant, and the Office shall educate the complainant as to his rights and
36
responsibilities.
37
13.3
After an investigation, if the complaint is fully or partially verified, the ombudsperson shall
38
seek to resolve the problem.
39
13.4
Complaint resolution responsibilities shall include but not be limited to:
40
12
13.3.1 Development of a plan for corrective action through discussions with the
1
complainant, resident, and appropriate officials and staff of the related institution;
2
13.3.2 Establishment, on a case-by-case basis, of appropriate timetable(s) for resolution;
3
13.3.3 Follow-up within thirty (30) days to determine if the problem giving rise to the
4
complaint has been resolved.
5
6
13.5
Complaints of conditions, which in the judgment of the ombudsperson, could adversely
7
affect residents that cannot be resolved shall be referred within seven (7) days by the
8
ombudsperson to the appropriate governmental agency, provided that the resident(s) or the
9
legal representative(s) of the resident(s), as appropriate, who initiated the complaint
10
consent(s) to such referral.
11
12
13.6
The Office may initiate its own investigation of any facility independent of the receipt of a
13
specific complaint or problem. A representative of the Office may observe acts, practices
14
or omissions regarding a facility which generally may affect the health, safety, welfare,
15
rights or quality of life of all or a substantial number of the residents in the facility. If in
16
the discretion of the ombudsperson, such observations constitute a complaint situation
17
(s)he may cause the Office to investigate and attempt to resolve these complaints without
18
the consent of an individual resident.
19
20
Section 14.0 Resident Records
21
14.1
Accurate and complete files, records and other information shall be maintained in
22
accordance with accepted professional standards and in accordance with all applicable
23
state and federal legal requirements. Files, records and other information shall be
24
maintained for each resident, and shall be filed in an accessible location within the Office.
25
The ombudsperson shall cause the Office to store complaint files, records and other
26
information in a secure manner. Access to these files, records and other information shall
27
be limited to agency staff authorized by the ombudsperson. In monitoring of the program,
28
access to these files, records and other information minus the identity of any complainant
29
or resident of a facility, shall be available to the Director and to one other senior manager
30
of the Division as shall be designated by the Director from time to time.
31
14.2
The Office shall maintain files, records and other information related to complaints
32
received by or on behalf of residents which shall include:
33
14.2.1 Name, address, and phone number of the complainant;
34
14.2.2 Name of the resident;
35
14.2.3 Relationship of the complainant to the resident;
36
14.2.4 Name of the facility;
37
14.2.5 Nature of the complaint;
38
13
14.2.6 Steps taken to investigate the complaint;
1
12.2.7 All notes, correspondence, complaint forms, background materials, assessments,
2
and medical and incident reports related to the complaint;
3
14.2.7 Outcome of the investigation;
4
14.2.8 Resolution and follow-up.
5
14.3
If the complainant refuses to identify himself or the resident, it should be so indicated in
6
the record.
7
14.4 The Office shall comply with Chapter 38-3 of the Rhode Island General Laws, also known
8
as the Public Records Administration Act. This Act requires any executive, legislative,
9
judicial, regulatory, administrative body of the State, or any political subdivision thereof
10
(including but not limited to any department, division, agency, commission, board, office,
11
bureau, authority, any school, fire, or water district, or other agency of state or local
12
government which exercises governmental functions, or any other public or private
13
agency, person, partnership, corporation or business entity acting on behalf of any public
14
agency) to comply with records management practices and procedures for the maintenance,
15
retention, and destruction of files, records and other information. The Office shall follow
16
the Division’s records retention schedule.
17
18
All costs associated with complying with R.I.G.L. Chapter 38-3 shall be the sole
19
responsibility of the agency or organization within which the Office is located. The Office
20
shall provide to the Division a copy of all correspondence, certifications and other
21
documents provided to or from the secretary of state relating to compliance with this
22
Section 14.5 and the retention and destruction of records. Where destruction of records is
23
authorized by the secretary of state, the Office shall furnish to the Division a copy of said
24
authorization certification from the secretary of state prior to destruction of the records.
25
The Office shall shred all documents being destroyed and properly and fully destroy all
26
materials to protect the privacy of all individuals.
27
28
14.5
The Office shall have written policies and procedures to govern the use and removal of
29
files, records and other information and determine the conditions for release of information
30
in accordance with statutory provisions pertaining to confidentiality (see also “Access to
31
Records” and “Confidentiality” sections below).
32
33
PART IV Confidentiality, Retaliation, Immunity, Inspections, and Penalties
34
35
Section 15.0 Access
36
37
15.1
In the course of an investigation, the ombudsperson shall, personally or through designated
38
employees of the Office:
39
40
15.1.1 Make the necessary inquiries and obtain information as is deemed necessary;
41
42
15.1.2 Have access to facilities and residents; and
43
14
1
15.1.3 Enter facilities and, after notifying the individual in charge, inspect any books,
2
files, medical records, or other records that pertain to the resident, subject to the
3
following requirements:
4
5
(A) access to review the medical and social records of a resident shall be provided, if-
6
7
(I)
the representative has the permission of the resident, or the legal
8
representative of the resident; or
9
(II) the resident is unable to consent to the review and has no legal
10
representative;
11
12
(B) access to the records as is necessary to investigate a complaint shall be provided if-
13
14
(I) a legal guardian of the resident refuses to give the permission;
15
(II) a representative of the Office has reasonable cause to believe that
16
the guardian is not acting in the best interests of the resident; and
17
(III) the representative obtains the approval of the Ombudsperson;
18
19
(C) access shall be provided to the administrative records, policies, and documents, to
20
which the residents have, or the general public has access, of long-term care
21
facilities; and
22
23
(D) access to and, on request, copies of all licensing and certification records
24
maintained by the State with respect to long-term care facilities.
25
26
15.2
In the ordinary course of the ombudsperson's duties, the ombudsperson and designated
27
employees of the Office shall have access to residents of a facility to:
28
29
15.2.1 Visit, talk with, make personal, social, and other appropriate services available;
30
31
15.2.2 Inform them of their rights and entitlements and corresponding obligations under
32
federal and state law by distribution of educational materials, discussion in groups,
33
or discussion with individual residents and their families; and
34
35
15.2.3 Engage in other methods of assisting, advising, and representing residents to extend
36
to them the full enjoyment of their rights.
37
38
Section 16.0 Confidentiality-Disclosure
39
40
16.1
In General.—The files maintained by the Office are confidential and shall be disclosed
41
only with the written consent or the use of assistive technology of the resident affected or
42
his or her legal representative, or if any disclosure is required by court order.
43
44
16.2 Identity of Complainant or Resident.—(A) Subject to subparagraph (B), the files and
45
records described in Sections 14 and 15 may be disclosed only at the discretion of the
46
Ombudsman (or the person designated by the Ombudsman to disclose the files, records
47
and other information); and
48
15
(B) The Ombudsperson is prohibited from the disclosure of the identity of any complainant
1
or resident with respect to whom the Office maintains such files, records and other
2
information unless—
3
4
(I) the complainant or resident, or the legal representative of the complainant or
5
resident, communicates informed consent to the disclosure and the consent is
6
given in writing or through the use of assistive technology;
7
8
(II) (a) the complainant or resident gives informed consent orally or through the use of
9
assistive technology; and
10
(b) the consent is documented contemporaneously in a writing made by a
11
representative of the Office in accordance with such requirements as the State
12
agency shall establish; or
13
14
(III) the disclosure is required by court order.16.3 Should the Ombudsperson or any
15
representative of the Office have reason to believe that the complainant or resident
16
is unable to provide informed consent, disclosure of the complainant or resident
17
identity shall be prohibited unless otherwise provided by law.
18
19
Section 17.0 Retaliation Prohibited
20
21
17.1 No discriminatory, disciplinary, or retaliatory action shall be taken by a facility or other
22
entity with respect to any resident, employee, or other person for filing a complaint with,
23
providing information to, or otherwise cooperating with any representative of the Office.
24
25
Section 18.0 Immunity from Liability
26
27
18.1
Any person, institution, or official who in good faith participates in the registering of a
28
complaint, or who in good faith investigates that complaint or provides access to those
29
persons carrying out the investigation, or who participates in a judicial proceeding
30
resulting from that complaint, is immune from any civil or criminal liability that might
31
otherwise be a result of these actions. For the purpose of any civil or criminal proceedings,
32
there is a rebuttable presumption that any person acting pursuant to Chapter 42-66.7 of the
33
Rhode Island General Laws, as amended, did so in good faith.
34
35
Section 19.0 Noninterference
36
37
19.1
No person shall willfully interfere with the ombudsperson in the performance of the
38
ombudsperson's official duties.
39
40
Section 20.0 Penalty for Violations
41
42
20.1
Every person who willfully violates the provisions of § 42-66.7-8 or § 42-66.7-14 of the
43
Rhode Island General Laws, as amended, will be subject to a fine up to one thousand
44
dollars ($1,000) for each violation of these sections and any other remedy provided for in
45
Rhode Island law.
46
47
16
1
PART V Termination, Appeal Procedures and Severability
2
3
Section 21.0 Procedures for Appeal
4
5
21.1
All hearings and reviews required under the provisions of Chapter 42-66.7 of the Rhode
6
Island General Laws, as amended, shall be held in accordance with the provisions of the
7
Administrative Procedures Act (Rhode Island General Laws Chapter 42-35) and any
8
applicable administrative procedures of the Division.
9
10
Section 22.0 Complaints Regarding the Ombudsperson Program; Termination of Ombudsman
11
Program
12
13
22.1 All complaints concerning the Office shall be sent in writing to the Director of the Division.
14
The director may request additional information relating to the specifics of the complaint.
15
The Director shall exercise reasonable discretion in addressing each complaint.
16
17
22.2 Termination:
18
19
22.2.1 In the event that the ombudsperson or the Office fails to comply with the provisions
20
of these Regulations in whole or in part, the Division may, after specifying any
21
alleged breach, default, or non-compliance in writing to the Ombudsperson and
22
after allowing a reasonable time, but not less than fifteen (15) calendar days for
23
correction thereof, withdraw the ombudsperson program from the agency where
24
the Office is situated by sending written notice of termination which specifies the
25
reasons for termination to the agency, at least fifteen (15) calendar days prior to
26
the effective date of termination.
27
28
22.2.2 Notwithstanding the provisions governing appeals set forth in Section 21 above
29
and elsewhere in this Section 22, if the Division determines that any action or
30
omission on the part of the Office endangers life, health, and safety of residents
31
or staff of any facility, it shall withdraw the ombudsperson program from the
32
agency where the Office is situated by orally notifying the agency of termination
33
followed by the mailing of written notification, return receipt requested, within
34
seven (7) calendar days following the oral notification, setting forth the reasons
35
for termination. Termination pursuant to this subsection shall take effect upon
36
the oral notification. The Division shall forward with such written notification a
37
notice that the terminated program shall have the right to request an appeal of
38
such action to the Division’s hearing officer within fifteen (15) calendar days of
39
receipt of the written termination notice. Designation of such terminated agency
40
as an Ombudsperson Office shall not continue during the pendency of said
41
appeal.
42
43
22.2.3
Upon withdrawal of the ombudsperson program from an agency by the Division,
44
the Division likewise shall terminate the funding status of such ombudsperson
45
program for the balance of the funding period.
46
47
17
22.2.4
The Division shall provide an opportunity for a hearing in accordance with this
1
Section and in accordance with Section 21 above to an agency from whom the
2
ombudsperson program is withdrawn by the Division under this Section 22.
3
4
22.2.5 Unless otherwise specified herein, the Division shall give written notice of
5
termination pursuant to this Section 22 at least fifteen (15) calendar days prior to
6
the effective date of such action. Such written notice shall state the grounds for
7
the proposed action. Such notice shall advise the affected agency or organization
8
that it may, within fifteen (15) calendar days of receipt of the notice, request an
9
appeal of such action to the Division’s hearing officer, pursuant to Section 21
10
above.
11
12
22.2.6
Except as otherwise set forth herein, the ombudsperson program shall continue at
13
the agency during the pendency of the appeal, subject to an adverse decision
14
pursuant to the appeal.
15
16
Section 23.0 Severability
17
18
23.1
If any provision of Chapter 42-66.7 of the Rhode Island General Laws, as amended, or any
19
rule or regulation made under said Chapter, or the application of any provision of this
20
Chapter to any person or circumstance shall be held invalid by any court of competent
21
jurisdiction, the remainder of the Chapter, rule or regulation and the application of such
22
provision to other persons or circumstances shall not be affected thereby. The invalidity of
23
any section or sections or parts of any section of this Chapter shall not affect the validity of
24
the remainder of this Chapter and to this end the provisions of the Chapter are declared to
25
be severable.
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
46
47
48
49
18
REFERENCES
1
2
3
1.
The Older Americans Act of 1965 (unofficial compilation) appears online:
4
http://www.aoa.gov/AoARoot/AoA_Programs/OAA/oaa_full.asp
5
6
2.
The Long Term Ombudsperson Act of 1995: Chapter 42-66.7 of the Rhode Island General
7
Laws, as amended. Available online: http://www.rilin.state.ri.us/Statutes/TITLE42/42-
8
66.7/INDEX.HTM
9
10
3.
Administrative Procedures Act: Chapter 42-35 of the Rhode Island General Laws, as
11
amended.
Available
online:
http://www.rilin.state.ri.us/Statutes/TITLE42/42-
12
35/INDEX.HTM
13