CHAPTER Omb 400  OFFICE OF THE LONG-TERM CARE OMBUDSMAN

 

PART Omb 401  PURPOSE AND SCOPE

 

Statutory Authority:  RSA 161-F:10-19, 42 USC 3011, as amended, and 45 CFR 1327

 

          Omb 401.01  Purpose.  The purpose of the office of the long-term care ombudsman is to protect the civil and human rights of persons residing in long-term care facilities, to investigate complaints, to safeguard residents’ health, safety, and welfare, to enhance their quality of life, and to provide an independent voice for residents in the development and implementation of public policy, rules, and laws affecting residents of long-term care facilities.

 

Source.  (See Revision Note at chapter heading for Omb 100) #4767, eff 2-26-90, EXPIRED: 2-26-96

 

New.  #12379, eff 9-13-17

 

          Omb 401.02  Scope.

 

          These rules shall apply to the residents, staff, and long-term care and assisted living facilities, including, but not limited to, nursing homes, skilled nursing homes, extended care facilities, convalescent homes, homes for the aged, veterans’ homes, assisted living facilities, and any other residential care facility providing care for the elderly licensed or certified under RSA 151.

 

Source.  (See Revision Note at chapter heading for Omb 100) #4767, eff 2-26-90, EXPIRED: 2-26-96

 

New.  #12379, eff 9-13-17

 

PART Omb 402  DEFINITIONS

 

          Omb 402.01  Definitions.

 

          (a)  “Abuse” means “abuse” as defined in RSA 161-F: 43.

 

          (b)  “Adult protection” means the program administered by the department of health and human services that investigates reports of abuse, neglect, and exploitation of vulnerable adults and carries out the responsibilities set forth in RSA 161-F:42-57.

 

          (c)  “Bureau of Health Facilities Administration (BHFA)” means the bureau within the department of health and human services responsible for licensing health care facilities in accordance with RSA 151, and conducting surveys of nursing facilities to ensure compliance with Medicaid certification requirements.

 

          (d)  “Case” means each inquiry brought to or initiated by the long-term care ombudsman on behalf of a resident, or group of residents, regarding one or more complaints or problems, which requires the opening of a case file that summarizes the investigation activities of the long-term care ombudsman representative.

 

          (e)  “Certified ombudsman volunteer representatives” mean individuals trained and supervised in accordance with Omb 411.01, Omb 411.02.

 

          (f)  “Complainant” means a resident of a facility who reports a complaint, or a person acting for or on behalf of a resident, including but not limited to, a family member, friend, facility, staff member, or representative of a citizen’s organization or government agency.

 

          (g)  “Complaint” means complaint as defined in RSA 161-F:11, III namely, “a problem, concern, issue or situation identified or received by the office that is made by, or on behalf of, residents that may adversely affect the health, safety, welfare and rights of residents, including the appointment and activities of legal representatives, providers of long-term care services, public agencies and health and social services agencies.”

 

          (h)  “Elderly,” means “elderly” as defined in RSA 161-F:11, IV, namely a  person aged 60 or older.

 

          (i)  “Informed consent” means permission provided by the resident or complainant documented in the case file, allowing the OLTCO to investigate a complaint, make a referral, or to share identifying information of the resident or the complainant during the investigation, or referral.   Informed consent includes written, oral, or visually communicated permission, including communication through the use of auxiliary aids and services which is documented contemporaneously by the OLTCO in the case file.

 

          (j)  “Exploitation” means “exploitation” as defined in RSA 161-F: 43, IV.

 

          (k)  “Facility” means “facility” as defined in RSA 161-F:11, V.

 

          (l)  “Incapacitated” means a condition of well-being  defined in RSA 464-A:2, XI where a resident has been determined to be incapacitated by a court order and a hearing pursuant to RSA 464-A.

 

          (m)  “Investigation” means the process described in Omb 405 which is followed to obtain and review thoroughly the facts and circumstances of a complaint.

 

          (n)  “Legal representative” means “legal representative” as defined in RSA 161-F:11, VII, namely “any individual, duly appointed or designated in the manner required by law to act on behalf of another individual, including:

 

(1)  An attorney;

 

(2)  A guardian or conservator; and

 

(3)  An agent acting pursuant to a power of attorney.”

 

          (o)  “Long-term care ombudsman (LTCO)” means “long-term care ombudsman” as defined in RSA 161-F:11, VIII.

 

          (p)  “Long-term care ombudsman representative (LTCOR)” means “long-term care ombudsman representative” as defined in RSA 161-F:11, IX.

 

          (q)  “Neglect” means “neglect” as defined in RSA 161-F: 43, III.

 

          (r)  “Not verified” means the status of a complaint following an investigation where the LTCO determined that there was insufficient information to substantiate or prove the complaint by a preponderance of the evidence.

 

          (s)  “Office of the Long-Term Care Ombudsman (OLTCO)” means “Office” as defined in RSA 161-F:11, XI.  The term includes the term “office.”

 

          (t)  “Patient personal representative” means “patient personal representative” as defined in RSA 151:19, V namely, “a person, other than the licensee of, an employee of, or a person having a direct or indirect ownership interest in, a facility, who is designated in writing by a patient or patient’s legal guardian for a specific, limited purpose for the general purpose of assisting the patient in the exercise of any rights.  The term includes personal patient representative.”

 

          (u)  “Resident” means an individual living in a long-term care facility.

 

          (v)  “Retaliation” means an adverse action taken against a person.

 

          (w)  “Verified” means the status of a complaint following an investigation where the LTCO determined there was sufficient information to substantiate or prove the complaint by a preponderance of the evidence.

 

          (x)  “Vulnerable” means “vulnerable” as defined in RSA 161-F:43, VII.

 

          (y)  “Willful interference” means actions or inactions taken by an individual, or a facility representative or staff, in an attempt to intentionally prevent, interfere with, or attempt to impede the long-term care ombudsman, or long-term care ombudsman representative from performing any of the duties set forth in RSA 161-F:13-19.

 

Source.  #12379, eff 9-13-17

 

PART Omb 403  COMPLAINT PROCESS

 

          Omb 403.01  Complaint Process.

 

          (a)  As authorized by RSA 161-F:10-19 the LTCO and LTCOR shall: 

 

(1)  Elicit, receive, identify, respond to, and resolve complaints;

 

(2)  Investigate the complaints of residents or complainants;

 

(3)  Document investigations in a case file related to each complaint;

 

(4)  Document and investigate all complaints regarding facilities;

 

(5)  Include all complaints in a statewide uniform complaint documentation system, designed, implemented, and maintained by OLTCO pursuant to RSA 161-F:17.

 

          (b)  Any resident, or complainant making a complaint on behalf of a resident, may report a complaint to the LTCO.

 

          (c)  Complaints may be anonymous, if requested.

 

          (d)  Complaints may be provided to the OTCO by:

 

Mail or delivery in-person to the following address:

 

Office of the Long-Term Care Ombudsman,

Brown Building, 129 Pleasant Street,

Concord, NH  03301;

 

Telephone to: (603) 271-4375 or 1(800) 442-5640; or

 

Fax: (603) 271-5574; or Email to OLTCO@dhhs.nh.gov.

 

          (e)  Identifying information of the resident or complainant shall not be shared during the complaint process unless the LTCOR receives:

 

(1)  Oral or written informed consent from the resident, or the personal patient representative, or legal representative, if the resident is unable to provide informed consent to share or refer the resident’s identifying information;

 

(2)  Informed consent from the resident by means of a visual indication or through the use of auxiliary aids and services provided that the consent is documented contemporaneously in writing by the LTCOR;

 

(3)  Oral or written informed consent from the complainant to share or refer his or her identifying information;

 

(4)  A court order requiring disclosure of identifying information; or

 

(5)  The LTCO determines there is reasonable cause to believe that disclosure of the personal identifying information of the resident is required due to circumstances set forth in Omb 404.01(e), Omb 404.02, Omb 405.01(g), or Omb 406.02a.(6).

 

Source.  #12379, eff 9-13-17

 

          Omb 403.02  Complaint Intake Information.

 

          (a)  During the complaint intake process the OLTCO shall request the following information:

 

(1)  The complainant’s identifying information, including:

 

a.  The name of the complainant or the entity; and

 

b.  The address and telephone number of the complainant or the entity;

 

(2)  The resident’s identifying information, including:

 

a.  The resident’s name;

 

b.  The resident’s date of birth; and

 

c.  The resident’s address, including room number or current location if known;

 

(3)  The name and contact information for the resident’s legal representative, or personal patient representative, if applicable; and

 

(4)  Informed consent if the complainant or resident wishes to provide informed consent.

 

(5)  Information related to the complaint(s) including but not limited to:

 

a.  The date and time that the incident or the subject of the complaint occurred;

 

b.  A description of what occurred;

 

c.  If the complaint is being made by a healthcare facility representative, the name of the person who originally made the report to the facility;

 

d.  Contact information for any staff member involved in the incident or situation described by the complaint; and

 

e.  Any action the facility has taken or plans to take to respond to the incident or situation described by the complaint.

 

          (b)  When a complaint is received, the LTCO or LTCOR shall open a case.

 

Source.  #12379, eff 9-13-17

 

PART Omb 404  DISCLOSURE OF IDENTIFYING INFORMATION AND REFERRALS TO OTHER AGENCIES

 

          Omb 404.01  Confidentiality and Disclosure of Complaint and Resident Information.

 

          (a)  The OLTCO shall keep all complainant and resident identifying information confidential, except as otherwise provided in RSA 161-F and Omb 400.

 

          (b)  The OLTCO shall seek permission to reveal resident or complainant’s identifying information as necessary to fully investigate the allegations within a complaint.

 

          (c)  A complainant may give the OLTCO permission to reveal his or her identifying information, but not the resident’s identifying information, by providing written or oral informed consent.

 

          (d)  A resident or resident’s personal patient representative or legal representative may give the OLTCO permission to disclose the resident’s identifying information by providing informed consent in the form of:

 

(1)  Written informed consent signed by the resident;

 

(2)  Oral or visual communication, or through the use of auxiliary aids, and the resident’s consent is documented contemporaneously in writing by an LTCOR; or

 

(3)  If the resident is unable to provide informed consent pursuant to (d)(1) or (2) above, written informed consent signed by the resident’s personal patient representative or legal representative.

 

          (e)  The OLTCO shall disclose identifying information of residents for the purposes of referring complaints pursuant to Omb 404.04 if:

 

(1)  The OLTCO has received informed consent pursuant to (d) above; or

 

(2)  The OLTCO determines that disclosing the resident’s identifying information is necessary to protect the resident, as determined by:

 

a.  The resident’s inability to communicate informed consent, if such consent was not previously given;

 

b.  The resident’s lack of a personal patient representative or legal representative;

 

c.  Reasonable cause to believe that an action, inaction, or decision is imminent that might adversely affect the health, safety, welfare, or rights of the resident;

 

d.  The best interests of the resident; and

 

e.  A lack of evidence indicating that the resident would not wish to have his or her identifying information disclosed.

 

          (f)  No LTCOR shall disclose resident identifying information pursuant to (e)(2), above, without that decision first being discussed with and approved by the LTCO.

 

Source.  #12379, eff 9-13-17

 

          Omb 404.02  Complaints From Personal Observation by Ombudsman Staff.

 

          (a)  If an LTCOR personally witnesses suspected abuse, gross neglect, or exploitation of a resident, the LTCOR shall seek informed consent from the resident to disclose what the LTCOR witnessed pursuant to Omb 404.01(d) above.  If the LTCOR cannot obtain such consent, he or she shall follow the process described in Omb 404.01(e) to determine if disclosure is nonetheless appropriate.  Either with or without the resident’s consent, if disclosure would be permitted by Omb 404.01(e)(2), Omb 405.01(g) or 406.02a.(6), the LTCOR shall open a complaint on the resident’s behalf.

 

          (b)  When an LTCOR determines that disclosure is appropriate pursuant to (a), above, the LTCOR shall:

 

(1)  Document his or her observations in the case file;

 

(2)  If the disclosure is permitted, document the factors used by the LTCOR to determine that reasonable cause existed supporting disclosure in the case file; and

 

(3)  Review his or her observations with the LCTO to determine that requirements to disclose without consent pursuant to Omb 404.01(e)(2) have been met.

 

Source.  #12379, eff 9-13-17

 

          Omb 404.03  Accessing Resident Records.

 

          (a)  When access to a resident’s record is necessary to investigate the allegations in a complaint, the OLTCO shall seek the resident’s informed consent or determine that such inspection is necessary pursuant to RSA 161-F:14.

 

          (b)  If a personal patient representative or legal representative is the subject of the complaint, the OLTCO shall access the records upon determining the following:

 

(1)  The resident is unable to give informed consent; and

 

(2)  There are no other methods of communicating with the resident.

 

          (c)  The OLTCO shall document the existence of the conditions in (b), above, and provide a written determination that they exist to the facility where the resident resides.

 

          (d)  When access to a resident’s record is obtained pursuant to (a) above, the LTCO or LTCOR shall have access to the following:

 

(1)  All records and logs held at the facility, and any books, files, medical records, or other records, including internal reports completed by the facility, that pertain to the resident;

 

(2)  Licensing and certification for the facility maintained by the state; and

 

(3)  All records permitted by the Health Insurance Portability Accountability Act (1996) Privacy Rule (HIPAA) 45 CFR Part 160 and 164.

 

          (e)  If the resident refuses to give oral or written informed consent or authorization  above is not obtained, the LTCO shall not review the medical record, unless one of the circumstances described in RSA 161-F:14, II exists.

 

          (f)  If the investigation is related to the actions or inactions of the personal patient representative or legal representative, OLTCO may request an accounting or other information relating to the fiduciary or financial relationship.

 

          (g)  If the information during the investigation or authorized by RSA 161-F:14 is not forthcoming within 60 days of the date on the request, the LTCO shall commence all available remedies under the law including but not limited to those remedies available pursuant to including, but not limited to, those remedies available pursuant to RSA 161-F:14, III.

 

Source.  #12379, eff 9-13-17

 

          Omb 404.04  Referrals.

 

          (a)  Prior to referring a complaint, the OLTCO shall either obtain informed consent or determine that disclosure is necessary pursuant to RSA 161-F:14, Omb 404.01(e), Omb 405.01(g), or Omb 404.02.  If the OLTCO cannot obtain informed consent or disclosure is not necessary, then it shall not refer complaints to other agencies. 

 

          (b)  Due to its obligation to keep resident identifying information confidential under RSA 161-F:13, II, the OLTCO and its employees and volunteers shall only report abuse pursuant to RSA 161-F:46 by making a referral for one of the purposes listed in (c), below.

 

          (c)  If disclosure is permitted or necessary, the OLTCO shall refer complaints to any state or federal entity or agency for the purposes of:

 

(1)  Regulatory oversight;

 

(2)  Adult protective services;

 

(3)  Access to administrative, legal, or other remedies; or

 

(4)  Law enforcement action.

 

          (d)  The OLTCO shall provide residents, complainants, or residents’ personal patient representatives or legal representatives with contact information and directions about how to file a complaint with the agencies or entities listed in (c) above.

 

Source.  #12379, eff 9-13-17

 

PART Omb 405  INVESTIGATION OF COMPLAINTS

 

          Omb 405.01  Investigations.

 

          (a)  Cases and case files shall only be opened by LTCO for complaints investigated by the OLTCO.

 

          (b)  During the course of the investigation, the LTCO or LTCO designee shall:

 

(1)  Personally discuss the complaint with the resident, or if the resident is unable to communicate, with the personal patient representative or legal representative;

 

(2)  Determine the resident’s perspective and wishes relating to the investigation and resolution of the complaint. If the resident is unable to communicate, determine the perspective and wishes of the resident after discussion with the resident’s personal patient representative or legal representative;

 

(3)  Obtain informed consent from the resident or the personal patient representative or legal representative in order to investigate, seek a resolution, report the complaint or related information, or share the resident’s personal identifying information as permitted or authorized  during the investigation or referral of the complaint;

 

(4)  Keep the resident informed throughout the course of the investigation and obtain the resident’s perspective and elicit further input and direction; 

 

(5)  If the complaint was generated by a complainant, obtain a detailed statement of the incident or the facts and circumstances of the complaint from the complainant and determine the resident’s wishes with respect to resolving the complaint;

 

(6)  Advise the resident, of his or her rights under RSA 151:21 and work to develop a plan of action in order to resolve the complaint;

 

(7)  Investigate the complaint by conducting interviews with the complainant, resident(s), facility administrator(s), staff and any other person(s) who may have information relevant to the complaint;

 

(8)  Obtain written statements if possible, and review information contained in facility records and other records as authorized by RSA 161-F:14 and within Omb 405.03;

 

(9)  Determine whether the complaint is verified by a preponderance of evidence according to Omb 405.03;

 

(10)  Determine if complaint is resolved to the satisfaction of the resident.  If the resident is unable to communicate satisfaction the LTCOR shall determine satisfaction through communication with the personal patient representative or legal representative as determined by law;

 

(11)  Notify the resident(s), the personal patient representative, or legal representative of the determination once it is made and further disclose the determination with the resident’s permission;

 

(12)  Request a statement from the resident, personal patient representative of legal representative that describes the incident or situation;

 

(13)  If the complaint is being made by a healthcare facility representative, obtain a copy of the report documenting the complaint completed by the facility; and

 

(14)  Obtain documentation of statements made by any witness or staff involved.

 

          (c)  The case file shall contain the complaint and all information obtained during the investigation.

 

          (d)  During the course of the investigation, the LTCO or LTCOR shall only reveal personal identifying information of the resident without informed consent, as authorized by RSA 161-F: 13, II, or Omb 404.01(f)-(i) above.

 

          (e)  Pursuant to RSA 161-F:14, when conducting investigations, the LTCO and LTCOR shall be authorized to:

 

(1)  Enter any facility and visit where the alleged incident or situation took place;

 

(2)  Communicate privately and without restrictions with any resident who consents to the communication;

 

(3)  Observe all common areas of the facility, except for the living area of any resident who objects to the observation; and

 

(4)  Conduct announced or unannounced visits during the time of day that the alleged incident or situation was alleged to have taken place.

 

          (f)  During the investigation, the long-term care ombudsman, or long-term care ombudsman representative shall interview the resident about the complaint.

 

          (g)  If the resident does not wish the OLTCO to act on a complaint, the LTCO or LTCOR shall close the complaint, unless:

 

(1)  Circumstances described in Omb 404.02 exist; or

 

(2)  There is a suspected violation of the standards listed in RSA 151-a, I(a) presenting an immediate risk to the resident or other residents.

 

          (h)  If the LTCO determines to act on a complaint without resident consent, the LTCOR shall notify the resident, the personal patient representative, or legal representative, or the complainant, if the complainant was not the resident, that the investigation shall continue.

 

Source.  #12379, eff 9-13-17

 

          Omb 405.02  Completion of the Investigation and Determinations.

 

          (a)  The LTCO shall review all information and documentation gathered during the investigation in order to determine whether a complaint is verified by a preponderance of the evidence.

 

          (b)  The complaint shall be determined verified if the incident or situation described in the complaint was:

 

(1)  Observed directly or occurred in the presence of the LTCO or LTCOR;

 

(2)  Substantiated by a preponderance of the evidence through interviews, records, inspections or other observations of the LTCO or LTCOR;

 

(3)  Documented and verified in the reports of another agency; or

 

(4)  Acknowledged by the subject of the complaint, facility, or facility staff as being accurate.

 

          (c)  The complaint shall be determined not verified if after investigation there is insufficient information to substantiate or prove the complaint by a preponderance of the evidence.

 

          (d)  The LTCO or LTCOR shall record all information regarding the investigation and the basis for the determination that a complaint was verified or not verified in the case file.

 

          (e)  The LTCO or LTCOR shall make a determination that a complaint is verified or is not verified shall be made after review of all information and documentation obtained during the investigation.

 

          (f)  The determination that a complaint is verified or not verified made by the LTCO shall be independent of any decision or disciplinary action taken against the individual by any facility, licensing board or other entity.

 

Source.  #12379, eff 9-13-17

 

          Omb 405.03  Notice of Determination of Complaint.

 

          (a)  When a complaint has been investigated, and a determination made, the LTCO or LTCOR shall notify the resident or the resident’s other legal representative.  Upon request of any agency and if the resident gives oral or written consent, the LTCO or LTCOR shall notify the agency about which the complaint was made.

 

          (b)  OLTCO determinations shall not be subject to Administrative Appeal Hearings (AAU) pursuant to He-C 200.

 

Source.  #12379, eff 9-13-17

 

          Omb 405.04  Complaint Follow-up Visits.  The LTCO or LTCOR shall make follow-up visits to the facility where the complaint arose as necessary to help ensure that the complaint remains resolved to the resident’s satisfaction.

 

Source.  #12379, eff 9-13-17

 

          Omb 405.05  Retaliation Prohibited.

 

          (a)  Pursuant to RSA 161-F:15,  RSA 151:21, VI retaliation, or the threat of retaliation, against any person or resident who has made a report or complaint with the OLTCO shall be prohibited.

 

          (b)  If staff or certified ombudsman volunteer representative (COVR) of the OLTCO believe they have been subjected to retaliation or threat of retaliation related to ta complaint they investigated, they shall immediately inform the LTCO.

 

          (c)  Any resident, legal representative, or member of a resident’s family who has been subjected to retaliation (e)  If the LTCO determines that there is reason to believe retaliation occurred, the LTCO shall refer the situation to local law enforcement, the county attorney or the department of justice for possible action, in accordance with RSA 161-F:15, I.

 

          (f)  Pursuant to RSA 151:21, the LTCOR or COVR shall encourage and assist a resident to exercise his or her rights as a resident and as a citizen.  The resident may voice grievances and recommend changes in policies and services to facility staff or outside representatives free from restraint, interferences, coercion, discrimination, or reprisal.

 

Source.  #12379, eff 9-13-17

 

PART Omb 406  CASE RECORDS

 

          Omb 406.01  Complaint Case Records.

 

          (a)  All case records shall be held in a secure location and shall be accessible only to the LTCO and LTCOR pursuant to RSA 161-F:13, II.

 

          (b)  All case information related to complaints that are verified shall be retained for 3 years following completion of the investigation or the date of the notice of determination.

 

          (c)  All case information related to complaints that are not verified shall be retained for 2 years following the completion of the investigation or the date of the notice of determination.

 

          (d)  If a case involved multiple complaints, some of which are verified and some of which are not verified, the case file information shall be retained for 3 years or the date of the notice of determination.

 

          (e)  All records of the OLTCO relating to an investigation or complaint shall be confidential and shall not be disclosed except as provided in Omb 406 below.

 

Source.  #12379, eff 9-13-17

 

          Omb 406.02  Disclosure of Information or Records.

 

          (a)  The LTCO shall disclose case records or information about complaints or cases pursuant to RSA 161-F:13, II, if:

 

(1)  The resident provides informed consent to disclosing the record;

 

(2)  The resident’s personal patient representative or legal representative may provide informed consent only when the resident is not able to provide informed consent;

 

(3)  A court orders disclosure of written records or notices of the LTCO;

 

(4)  The LTCO or LTCOR is court ordered to testify about the complaint and the investigation in court;

 

(5)  The LTCO or LTCOR is referring a complaint pursuant to Omb 404.01 (d); or

 

(6)  Disclosure without informed consent falls within one of the circumstances set out in RSA 163-F:13, 14, or these rules.

 

          (b)  When disclosing records or information in (a) above the LTCO or LTCOR shall disclose only that information necessary to accomplish the purpose of the disclosure.

 

          (c)  Personal identifying information of the complainant or the resident shall not be disclosed unless:

 

(1)  The resident, the personal patient representative, or legal representative consents to disclosure;

 

(2)  The complainant consents to disclosure;

 

(3)  Disclosure is court ordered; or

 

(4)  Disclosure of the personal identifying information of the resident is required under circumstances set forth in Omb 403.01(e), Omb 404.01, or 404.02.

 

          (d)  The scope of any information disclosed pursuant to a court order shall not exceed the stated purpose of disclosure pursuant to the court order.

 

Source.  #12379, eff 9-13-17

 

PART Omb 407  DELEGATION OF POWERS AND DUTIES

 

          Omb 407.01  Delegation to Long-term Care Ombudsman Representatives.

 

          (a)  The LTCO shall delegate the powers and duties described in RSA 161-F:10-19, to LTCOR, and certified ombudsman volunteer representatives (COVR).

 

          (b)  All LTCOR and COVR shall:

 

(1)  Successfully complete a training program designed and offered by the LTCO or designee; and

 

(2)  Be supervised and provided with ongoing training and technical assistance by the LTCO or designee.

 

Source.  #12379, eff 9-13-17

 

PART Omb 408 CONFLICT OF INTEREST

 

          Omb 408.01  Conflict of Interest.

 

          (a)  The LTCO, LTCOR, and COVR shall be free from a conflict of interest with a facility or resident of a facility as defined in RSA 161-F:11, V.

 

          (b)  The LTCO shall implement procedures to prevent a conflict of interest between LTCOR, or COVR responding to or investigating a complaint and the subject of the complaint.

 

          (c)  In order to avoid a conflict of interest the LTCO, LTCOR, or COVR, or member of his or her immediate family shall not:

 

(1)  Have a financial, fiduciary, ownership or investment interest in a facility as defined in RSA 161-F:11, V;

 

(2)  Be currently employed at, or participate in, the management of a facility;

 

(3)  Be directly employed by or participate in the licensing or certification of a facility;

 

(4)  Be assigned a complaint at a facility in which an immediate family member resides or is employed;

 

(5)  Be assigned a complaint at a facility where the LTCOR or COVR is a guardian or legal representative of a resident at the facility;

 

(6)  Be assigned a complaint at a facility in which the LTCOR or COVR has been employed within 12 months of the beginning employment, student internship, or volunteer involvement with the OLTCO;

 

(7)  Receive or have the right to receive, directly or indirectly, remuneration, either in cash or in-kind, under a compensation arrangement with an owner or operator of a facility; or

 

(8)  Accept gifts or gratuities of significant value from a facility or its management, a resident, or a resident representative of a facility in which the LTCO or LTCOR provides services;

 

(9)  Serve as a resident’s agent, medical decision-maker, or in another capacity, which would conflict with the role and responsibilities of the OLTCO.

 

          (c)  Before an individual is employed by or otherwise engaged to serve as an LTCOR, or COVR, LTCO shall review Omb 408.01 (a) and (b) with the individual. If a potential conflict of interest or conflict of interest exists LTCO shall require him or her to:

 

(1)  Withdraw from the situation that is creating the conflict of interest prior to beginning employment or other involvement with the office;

 

(2)  Sign a statement “Conflict of Interest” (7/27/17) and indicated that he or she has withdrawn from the circumstances that created the conflict of interest and shall not engage in activities which would cause the conflict of interest to return; and

 

(3)  Maintain a copy of the signed statement as long as the LTCOR is employed or a volunteer with the office.

 

          (d)  Each year the OLTCO shall require all LTCOR and COVR sign, and date a statement “Conflict of Interest” (7/27/17) indicating that he or she has no conflict of interest that would arise out of a connection to a long-term care facility or an individual who is a resident, or employee of a facility in New Hampshire.

 

          (e)  If a conflict of interest arises for a LTCOR or COVR subsequent to employment or volunteer certification, the individual shall notify the LTCO as soon as possible, and the LTCO shall:

 

(1)  Determine whether or not the situation constitutes a conflict of interest described in (b) above; and

 

(2)  If a conflict of interest exists, the LTCO shall either:

 

a.  Reassign the LTCOR to a different area of work that will not generate a conflict of interest; or

 

b.  Request that the COVR withdraw from the situation that is creating the conflict of interest.

 

Source.  #12379, eff 9-13-17

 

PART Omb 409  REPORTING AND REVIEW

 

          Omb 409.01  Reporting and Review.

 

          (a)  The LTCO shall file  the National Ombudsman Reporting System (NORS) report, detailing the activities of program during the preceding federal fiscal year, October 1 – September 30, “Annual Report” as required by RSA 161-F:17, II and applicable federal law.

 

          (b)  After certification by the Administration for Community Living (ACL), the long-term care ombudsman’s annual report shall be available to the general public upon request, and shall be publicized via a press release and published on the OLTCO website https://www.dhhs.nh.gov/oltco/index.htm.

 

Source.  #12379, eff 9-13-17

 

PART Omb 410  ADVISORY COMMITTEE

 

          Omb 410.01  Membership.

 

          (a)  The LTCO shall establish an advisory committee pursuant to RSA 161-F:13, I (c).  Members of the advisory committee shall be appointed by the LTCO.

 

          (b) The LTCO shall determine the duration of appointment for each member of the advisory committee.

 

Source.  #12379, eff 9-13-17

 

PART Omb 411 CERTIFIED OMBUDSMAN VOLUNTEER PROGRAM TRAINING AND SUPERVISION

 

          Omb 411.01  Volunteers.

 

          (a)  The LTCO shall maintain a certified ombudsman volunteer program.  Individuals seeking to become a certified ombudsman volunteer representative (COVR) shall:

 

(1)  Complete and submit to the OLTCO a signed application form “Long-term Care Ombudsman Volunteer Application Form” (July 2017);

 

(2)  Serve at the will of the LTCO and be authorized to represent the OLTCO as delineated in RSA 161-F: 12 and RSA 161-F:14 or as directed by the long-term care ombudsman;

 

(3)  Be free of any conflict of interest  and review and sign a statement “Conflict of Interest ” (7/27/17) as required by Omb. 408.01(c);

 

(4)  Be certified after successfully completing the OLTCO educational and experiential curriculum;

 

          (b)  Authority of the COVR and LTCOR shall remain in active status by adhering to the following:

 

(1)  Adherence to all statutes, rules and policies that direct the OTLCO;

 

(2)  Adherence to the directives of the staff of the OTLCO authorized to direct the COVR; and

 

(3)  Compliance with COVR program policies and procedures as determined by the LTCO including, but not limited, regular supervision, continuing education and submission of required documentation.

 

Source.  #12379, eff 9-13-17

 

          Omb 411.02  Training and Supervision.

 

          (a)  COVR shall be supervised by a staff member who is also a LTCOR.

 

          (b)  COVR shall meet with a supervisor to review assigned complaints and establish an outline for the investigation.

 

          (c)  COVR shall successfully complete continuing education training as approved by the LTCO.

 

Source.  #12379, eff 9-13-17

 

APPENDIX

 

Rule

Specific State Statute the Rule Implements

Omb 401.01

RSA 161-F:10, F:11, 42 USC 3058(f)-(g)

Omb 401.02

RSA 161-F:11, F:42-57

Omb 402.01

RSA 161-F:11, RSA 151, 45 CFR 1327

Omb 403.01

RSA 161-F:13-19, 45 CFR 1327

Omb 403.02

RSA 161-F:13-19

Omb 404.01

RSA 161-F: 10-19, 45 CFR 1327

Omb 405.01

RSA 161-F:13, 14, 45 CFR 1327

Omb 405.02

RSA 161-F:14, 45 CFR 1327

Omb 405.03

RSA 161-F:13

Omb 405.04

RSA 161-F:13

Omb 405.05

RSA 161-F:13

Omb 405.06

RSA 161-F:15, RSA 151:21, VI

Omb 406.01

RSA 161-F:13, and 14

Omb 406.02

RSA 161-F:14, 45 CFR 1327

Omb 407.01

RSA 161-F:13, 14

Omb 408.01

45 CFR 1327

Omb 409.01

RSA 161-F:17

Omb 410.01

RSA 161-F:13

Omb 411.01- 411.02

RSA 161-F:14, 45 CFR 1327