18 Miss. Code. R. 26-2-D

Current through December 10, 2024

Section 18-26-2-D - Conflicts of Interest

The organizational placement of the OLTCO and the Office of the State Long-Term Care Ombudsman (OLTCO) and the designated Representatives of the Office of Long-Term Care Ombudsman (LTCO) must be free, and remain free, of any conflicts of interest. A conflict of interest exits when any organizational or supervisory relationship, policy, action or individual relationship or action conflicts with, impairs or threatens to interfere with, or give the appearance of interfering with the ability of a SLTCO or LTCO to investigate, resolve, refer complaints or otherwise advocate on behalf of a long-term care facility resident. A conflict of interest can exist whenever a contracting (or sponsoring) agency does not understand the Ombudsman function. There must be recognition that there are inherent conflicts in the job, and a need to support the role and goals of the Ombudsman through any conflict.

An individual who seeks to be hired as the SLTCO cannot have been employed or participated in the management of a long-term care facility within the previous twelve (12) months. An individual who seeks to be hired as a LTCO cannot have been employed or participated in the management of a long-term care facility within the previous six (6) months.

All LTCO must sign a conflict of interest agreement form upon employment and then annually by Oct. 31st. The State Ombudsman will keep the current signed forms on file (hard copies or electronic copies) for all Representatives of the Office of the State Long-Term Care Ombudsman. In addition, the AAAs or provider agencies must sign an Organizational Conflict of Interest form annually by October 31st.

Identifying a Conflict

Types of conflicts of interest include:

Conflicts of Loyalty:	These involve issues of judgment and objectivity. An example would be if the ombudsman works as a case manager with the responsibility for assisting individuals with moving into long-term care facilities. Some are responsible for operation of home- and community-based service programs that operate under waivers granted by the federal government.
Conflicts of Commitment:	These are issues of time and attention. The ombudsmen who assume other employment-related responsibilities may experience this such as where to direct one's time and energy and the concern about adequacy of resources.
Conflicts of Control:	These are issues of independence. Do other interests or obligations of the agency which houses the ombudsman program interfere with the ombudsman's advocacy on behalf of the residents? Do the administrative and political forces materially interfere with the professional judgment of the ombudsman? Is there fear of retaliation by superiors? Will an ombudsman challenge eligibility decisions or speak out publicly about long waiting lists?

Organizational Conflicts: Conflicts arising from organization location including, but not limited to, LTCOP placement with a service provider that:

1. Is responsible to or reports to an agency that has an ownership or investment interest in a long-term care facility setting;

2. Provides long-term care services, including providing personnel for long-term care facilities or the operation of programs, which control access to or services for long-term care facilities;

3. Operates programs with responsibilities conflicting with LTCOP responsibilities such as developing care plans, case management or serving as guardians over long-term care residents; or

4. Having governing board members with ownership, investment or employment interest in long-term care facilities.

Individual Conflicts: A conflict of interest on the part of the Ombudsman exists whenever:

1. Employment of an individual or member of his/her immediate family within the previous year by a long-term care facility in the service area or by the owner/operator of any long-term care facility in the service area;

2. Participation in the management of a long-term care facility by an individual or member of his/her immediate family;

3. Involvement in the licensing or certifying of long term care facilities by an individual or member of his/her immediate family;

4. Ownership or financial interest in an existing or proposed long-term care facility;

5. Acceptance of a gift from a long-term care facility, resident or resident representative. Note: sample portions of food tested as part of an investigation is not a conflict;

6. Receiving, directly or indirectly, remuneration (in cash or in kind) under a compensation arrangement with an owner or operator of a LTC facility (meaning an immediate family member currently employed);

7. Provides services with conflicting responsibilities such as adult protective services, carrying out care plans and serving as guardians or being a sole witness for a DNR order, performing case management or pre-admission screening for residents. Possible remedy would be to remove the Ombudsman Program from under the supervision of the person who supervises the case management or pre-screening program;

8. Serving residents of a facility in which an immediate family member resides; or

9. Participation in activities which give the appearance that that LTCO's primary interest is something other than being a resident advocate.

Removing or Remedying a Conflict

If a conflict is identified, the local LTCOP will:

1) End the application process;

2) Seek a remedy; or

3) Request de-certification.

It is best to avoid rather than remedy conflicts. The State LTC Ombudsman will determine whether any proposed remedies are adequate. If not, he/she will work with the entity operating the LTCOP to devise acceptable remedies.

The SLTCO must be notified of any actual or potential conflict of interest. All agents of the AAAs, other provider agencies and LTCOs have a duty to notify the SLTCO of any actual or potential/perceived conflict of interest of which they have knowledge.

The SLTCO has the authority to decide what actions must take place to remedy the conflict. A conflict may be remedied only if it does not interfere with the duties of the LTCOP or where the conflict is likely not to change the perception of the LTCOP being an independent advocate for the residents of long-term care.

The following steps must be followed in order for an organizational conflict to be sufficiently remedied:

* Develop a written remedial plan within 30 days of knowledge of the conflict;

* The remedial plan must include assurances that the LTCOP will investigate complaints in an unbiased manner and independently determine the actions to resolve the situation;

* No agency employee or governing board member with a conflict of interest will be involved with any decision to hire or terminate the employment of a LTCO; and

* The remedial plan must be mutually agreed upon and signed by the agency in which the conflict exits and the State Ombudsman. If either party cannot agree to the plan, then the conflict has not be sufficiently remedied.

The following steps must be followed in order for an individual conflict to be sufficiently remedied:

* No applicant for such a position of a LTCO will be hired if a conflict of interest is identified.

* Volunteers: If a conflict of interest is identified prior to designation/certification, the volunteer will not be designated as a representative of the Office in any facility in which a conflict of interest or an appearance of a conflict of interest could be expected to affect the performance of the ombudsman duties. The District or Local Ombudsman must notify the State Ombudsman immediately. De-certification or reassignment would be possible remedies.

* Directors of AAA: If a conflict of interest is identified, action must be taken within 30 days to remedy the situation. Possible remedies include the withdrawal of designation of the agency as an AAA.

Failure to Identify or Remedying a Conflict

* Failure on the part of an Ombudsman, Provider Agency, or AAA to identify and report to the Office a known conflict of interest shall be sufficient grounds for the refusal to designate or the subsequent de-designation of the Program or the certification or the de-certification of an Ombudsman.

* Existence of an un-remedied conflict of interest shall be sufficient grounds for the de-designation of the Program, the provider entity, or the de-certification of an Ombudsman.

* Final decisions regarding sanctions to identify or remedy conflict of interest situations are determined by the State Ombudsman.

SLTCO has the right to de-designate an Ombudsman or de-designate the local ombudsman program for one of the following reasons:

1. Breach of confidentiality;

2. Failure to follow the Program Components in program policy;

3. Having an adversarial approach while conducting program business;

4. Having a conflict of interest which cannot be remedied or for not revealing a conflict or potential conflict of interest;

5. Not complying with program standards for visiting facilities and residents on a monthly basis and/or failing to comply with ongoing training requirements; or

6. Per the discretion of the SLTCO.

Possible Remedies:

1) Disclose the conflict to the governing board and the SLTCO;

2) Have no direct involvement with LTC residents or activities; and

3) Abstain from voting on issues related to the operation of the ombudsman program.

Identify the conflict and provide a written plan within 30 calendar days of identifying the conflict and submit the plan to the State Ombudsman. The plan could provide assurances that minimize the greatest extent possible the negative impact on the local ombudsman program. Examples of assurances include:

* The local LTCOP investigates complaints in an unbiased manner and independently determines actions to be taken in their resolution;

* No agency employee or governing board member with a conflict of interest is involved with or influences any decision to hire or terminate the employment of an ombudsman;

* Arrange for another ombudsman to serve at a certain facility where the conflict exists;

* Governing board members of the AAA or subcontracted agency who have a conflict of interest must:

* Disclose the conflict to the governing board and the State Ombudsman;

* Have no direct involvement with long-term care ombudsman activities; and

* Abstain from voting on issues related to the operation of the local LTCOP.

* The AAA policies and procedures adequately set forth procedures to remedy conflicts of interest and ensure that the ombudsman can fulfill his or her duties without interference; and

* A memorandum of understanding (MOU) exits between the local LTCOP and another program that provides services with conflicting responsibilities. Such an MOU adequately sets forth the roles, responsibilities and working relationships of the respective programs.

The SLTCO may consult with outside sources, such as the National Ombudsman Resource Center (NORC) or the National Association of State Long-Term Care Ombudsman (NASOP) for expert input to resolve any questions about conflict of interest. Agree on a plan and have the agency in which the conflict exits and the State Ombudsman sign. If either party cannot agree to a plan, the conflict has not been sufficiently remedied.

18 Miss. Code. R. 26-2-D

Adopted 4/12/2019