18 Miss. Code. R. 26-4-B
A complaint is a concern brought to, or initiated by, an Ombudsman representative for investigation and action by or on behalf of one or more residents of a long-term care facility relating to the health, safety, welfare, or rights of a resident. One or more complaints constitutes a case. Each inquiry brought to, or initiated by, an Ombudsman representative on behalf of a resident or group of residents involving one or more complaints which requires opening a case; and includes Ombudsman investigation, strategy to resolve, and follow up; is recorded as a case. Each case may have more than one complaint. A complaint is also more than a consultation or a friendly visit. If a resident's problem is too simple to require filling out a case record, then it is more likely to be a consultation or friendly visit than a complaint. An "information or referral" call is different from a complaint; while information and referral can take up a lot of time and involve action on the part of the ombudsman in terms of phone calls, letters, or research, the ombudsman is not asked to intervene or alter the outcome of a situation or solve a problem. The complaint documentation process starts from the time of receiving a complaint through follow-up after the case has been closed.
Scope of Coverage/Jurisdiction of the Ombudsman Program: Section 43-7-55 of the MS Code states that a "long-term care facility" means any skilled nursing facility, extended care home, intermediate care facility, personal care home or boarding home which is subject to regulation or licensure by the State Department of Health. Therefore, if a facility should be licensed as required by MS law, but it is an illegal personal care home the ombudsman does have jurisdiction to provide assistance to such residents. Whenever questions arise regarding appropriate LTCO practice in handling complaints, the State Ombudsman should be contacted for guidance.
The State Ombudsman can grant consent to conduct an investigation or make referrals when:
* A resident lacks capacity and has no legal representative;
* A legal representative exists, but cannot be contacted after at least three (3) attempts; or
* The resident lacks capacity, has a legal representative who does not consent, and there is reasonable cause to believe that the representative is not acting in the best interest of the resident.
Intake of Complaints
Intake Summary in WellSky must be completed within 14 days. It must identify the complainant, the resident, and a summary of the complaint. Documentation is extremely important for accurate reporting and for allowing others who may later become involved in the case to know what steps were taken. Also, any complaint may become the source of litigation and proper clear documentation is essential.
Complaints may be reported by:
The person that makes the complaint is referred to as the Complainant.
If a complaint involves a deceased resident, then the ombudsman shall:
Upon receipt of a complaint, the ombudsman shall:
The Ombudsman must choose the best complaint code that best matches the problem. The NORS complaint codes are:
* Codes 1 through 102 (Groups A-M) are used for complaints against LTC facilities and their representatives.
RESIDENT RIGHTS:
Group A (Abuse, Gross Neglect, Exploitation) should only be used for willful mistreatment of residents.
Group B (Access to Information by Resident or Resident's Representative)
Group C (Admission, Transfer, Discharge, Eviction)
Group D (Autonomy, Choice, Preference, Exercise of Rights, Privacy)
Group E (Financial, Property (except financial exploitation)
RESIDENT CARE
Group F (Care)
Group G (Rehabilitation or Maintenance of Function)
Group H (Restraints-Chemical and Physical)
QUALITY OF LIFE
Group I (Activities and Social Services)
Group J (Dietary)
Group K (Environment)
ADMINISTRATION
Group L (Policies, Procedures, Attitudes, Resources)
Group M (Staffing)
* Codes 103 through 116 (Groups N and O) are used for complaints against the State licensing and Medicaid agencies.
Group N (Certification/Licensing Agency)
Group O (State Medicaid Agency)
* Codes 117 through 128 (Group P) are used for complaints against or involving individuals who are not staff of the facilities or of the State's licensing and certification agency.
Group P (System/Others)
* Codes 129 through 133 (Group Q) are used for complaints about services in settings other than long-term care facilities. Q codes are used for outside providers, such as an Adult Day Care Center, hospice, homemaking or transportation, or complaints at an unlicensed home.
Investigation
An Ombudsman shall use his or her best efforts to initiate investigations of complaints in a timely manner in order to resolve the complaint to the satisfaction of the resident. If the Representative of the Office will be unable to initiate investigations due to a planned vacation, required training conference or extended illness, their supervising ombudsman shall be contacted immediately so as to develop a plan for temporary coverage. Such plan shall be communicated to the provider agency, the area agency on aging, and the SLTCO to assure appropriate and timely case referrals.
IF a complaint involves... | THEN the response time is... |
A) Abuse or gross neglect and the Ombudsman believes a resident may be at risk | Within the next working day |
B) Abuse or gross neglect and the Ombudsman has no reason to believe a resident is at risk | Within 3 days, but not to exceed 3 working days |
C) Actual or threatened transfer or discharge from a facility | Whichever occurs first: 1) 5 working days; 2) The last day of bed-hold period (if resident is hospitalized), or 3) The last day for filing an appeal for an administrative hearing |
D) Any other type of complaint | Within 5 working days |
Regardless of the source of the complaint, the first person to be interviewed should be the resident. An Ombudsman shall personally discuss the complaint with the resident in order to:
* Determine the resident's perception of the complaint;
* Determine the resident's wishes with respect to the resolution of the complaint;
* Determine whether the Ombudsman may disclose resident identifying information to the facility and/or other appropriate agencies;
* Advise the resident of his or her rights; and
* Work with the resident in developing a plan of action.
If, at any point during the complaint process, the resident expressed that he or she does not want the LTCO to take further action on a complaint involving the resident, then LTCO shall determine whether further efforts should be made on the complaint. In making this determination, the LTCO shall consider the following:
IF the resident... | THEN the LTCO shall... |
A) Refuses to consent to LTCO work on the complaint or B) Withdraws consent before the LTCO has verified the complaint | 1) Discontinue work on the complaint and 2) Attempt to determine why the resident refused or withdrew consent, considering factors such as: * Past response of facility to complaints; * The resident's relationship with the staff; * The experience of this resident or other residents in the facility related to this type of complaint; 3) Inform the resident that he or she may contact the LTCO regarding the withdrawn complaint or other complaints in the future; and 4) Provide a business card or brochure informing the resident how to contact the LTCOP. |
C) Withdraws consent after the LTCO has verified or partially verified the complaint | 1) Discontinue investigation and resolution activities on the complaint; 2) Determine during subsequent visits to the facility whether the type of complaint is recurring. If it is a recurring problem, then the LTCO must use strategies towards resolution without disclosing the identity of the resident (such as presenting the issue to a resident or family council); and 3) Attempt to determine why the resident withdrew consent, considering factors such as: * Past response of facility to complaints; * The resident's relationship with the staff; * The experience of this resident or other residents in the facility related to this type of complaint; 4) Inform the resident that he or she may contact the LTCO regarding the withdrawn complaint or other complaints in the future; and 5) Provide a business card or brochure informing the resident how to contact the LTCOP. |
It is important to get all sides of the story if a complaint is to be resolved successfully. The preparation for the investigation should indicate which staff person will be involved. Try to interview the beginning level staff members first, and then move up to the administrator. Be non-threatening in the approach to staff people (review the interviewing skill's section of the training manual). Interview upper-level staff members (administrator, head nurse, medical director, etc.) in the complaint resolution process as they may have the authority to solve the problem immediately. After all the necessary information is gathered and if no further research is indicated, attempt to resolve the complaint within the LTC facility.
If a resident is unable to provide consent, the Ombudsman shall advocate for a resident's wishes to the extent that the resident can express them, even if the resident has limited decision-making capacity. Where a resident is unable to provide or refuse consent to an Ombudsman to work on a complaint directly involving the resident the LTCO shall:
* Seek evidence to indicate what the resident would have desired and where such evidence is reliable, work to effectuate that desire; and
* Assume that the resident wishes to have his or her health, safety, welfare, and rights protected.
If the resident is no longer at the facility or is deceased, the LTCO may close the complaint related to that resident. The LTCO shall make referrals to other agencies where appropriate to address any unresolved issue. It is usually notated in the NORS reporting system as being "withdrawn." However, where the complaint is a continuing or potential concern for other residents, the LTCO shall open a new case with another resident or an ombudsman-generated complaint in order to continue LTCO work to resolve the complaint. If the ombudsman does not open a case, he or she must explain to the complainant the reasons for not doing so.
Verification of Complaints
Consent and Confidentiality are cornerstones of the Ombudsman Program. We need to make sure that the residents do not face retaliation for filing a complaint. The resident or legal representative must be informed of the progress of the investigation findings. The purpose of an investigation is to determine whether the complaint is valid and to gather the information necessary to determine how to resolve the complaint. A complaint is "verified" when an ombudsman determines after interview, record inspection, observation, etc. that the circumstances described in the complaint are substantiated or generally accurate. Because the LTCO works on behalf of resident's interests, the LTCO should give the benefit of any doubt to the resident's perspective.
Verification of a complaint should be based on facts, not the opinions of the complainant, the facility or the ombudsman. There must be sufficient documentation in WellSky for the State Ombudsman to determine whether proper case investigation through fact-finding was done. The ombudsman should determine the validity of the complaint by uncovering the facts surrounding a particular issue. In order to verify a complaint, the LTCO shall take one or more of the following steps:
Yet resident perception is a sufficient basis upon which a LTCO can verify a complaint of a subjective nature (e.g., a resident complains of a rude staff member). Thus, the Ombudsman does not have to independently observe staff acting disrespectfully. However, whenever possible, the LTCO shall seek objective verification of the complaint. Facility visits for purposes of complaint investigation shall be unannounced.
Activities such as follow-up calls to either the facility, the resident, his/her representative shall be documented in WellSky under as "Journal" entries. Time spent and/or travel spent must be documented as well. The ombudsman need to document accurately what action was taken in an attempt to resolve the complaint. The State Ombudsman or his/her designee must be able to determine that an ombudsman verified a complaint or concern through proper investigative techniques.
Resolution/Disposition of Complaints
The goal to complete case investigations is 90 days. The Ombudsman should make every effort to resolve the complaint to the satisfaction of the resident, representative, and/or complainant. A plan to resolve the complaint should be mutually agreed upon by the resident and the LTCO. If a resident is unable to communicate his or her wishes, the LTCO may develop a plan with the resident's representative or the complainant if consistent with the rights and interests of the resident. Empowerment is very important. The Ombudsman should encourage the complainant to personally take the appropriate action, with LTCO assistance if needed. The Representatives of the Office must support and maximize resident participation in the process of resolving the complaint.
The LTCO shall attempt to resolve the dispute directly with the appropriate staff of the facility unless the LTCO and the resident (or representative or complainant) determine that another strategy would be more advantageous to the resident. The steps involved in resolving a complaint may vary with the nature and extent of the problem. All attempts should be made to resolve the complaint within the LTC facility. Be familiar with the facilities' resolution techniques and negotiation strategies. If the complaint appears to be valid, the ombudsman must decide on the urgency of the problem and the manner in which to approach resolution. If the approaches at the local level do not achieve the desired results, the State Ombudsman shall be contacted for technical assistance.
A good approach to use when speaking with the facility is to make a point, provide evidence that supports that point and then repeat that point. (e.g., point=facility staff are not respecting his visitation rights; evidence=staff says that he cannot have visitors after 8pm; repeat point=resident's rights must be respected, residents can have visitors whenever he wants and his roommate does not mind his visitors,--knows we can come to an understanding as his visits are important to him; I don't see how this issue warrants a discharge; I don't think his visitors intend to disrupt the operations; need assurance that you will not discharge him so ask the administrator to speak to the resident with you. Ask resident if they feel the matter was resolved to their satisfaction).
For every referral made by the LTCO to another agency, the LTCO shall include documentation of such referral into WellSky. Any follow-up with the agency shall also be notated in the case record. The LTCO must be sure that the facility administration and the residents know that their role it to advocate for the health, safety, welfare, and rights of residents, and not to enforce regulations.
The resolution of a complaint shall be determined when any of the following occurs:
Follow-up
After resolving a complaint, but prior to closing a case, the LTCO shall follow-up with a report back to the complainant and do a check-up visit with the resident within two weeks of the resolution to:
If the resident has left the facility, the LTCO should make reasonable attempts to follow-up with the resident in the resident's new location if possible prior to closing the case.
If a complaint has been referred to another investigative agency, with permission of the resident, the ombudsman will follow up with the entity at least once every thirty days to determine resolution. Followup with the regulatory agency, if involved, and other agencies involved in the complaint investigation.
Always follow-up with the resident or complainant, making sure that promised corrections have been made, that no reprisals occurred against the resident, and that the resident is satisfied with the resolution.
If resolution agreements were made, the agreements may be modified or extended, if warranted, or the case may be reopened.
Follow-up with the LTC facility to detect long-term care deficiencies.
Follow-up with the complainant to thank him/her for contacting the ombudsman and to encourage him/her to call again if there is any further developments or concerns.
Follow-up is important in maintaining the integrity of the ombudsman program and to aid in monitoring.
A case is closed when all of the complaints related to that case have been resolved/closed.
Complaint Referral Agencies
* APS Referral
The primary role of the LTCO is to seek resolution to the resident's satisfaction, not to verify the suspected abuse or gross neglect. Consent from the resident or the resident or the resident's legal representative is required before referring a report of abuse, neglect, or exploitation to APS. The Vulnerable Adult Abuse Hotline number is 844-437-6282. There is also another unit in the Attorney General's office that handles abuse in the private home. It is the Vulnerable Persons Unit which was created in 2001. § 43-47-7 of the MS Code is the enabling statute.
The role of the Ombudsman, once he or she identifies potential abuse and has received consent of the resident for a referral, is to advocate on behalf of the resident to ensure that all necessary parties are actively involved and that the resident receives proper treatment, is protected from further harm or retaliation, and remedies are in place to prevent abuse from reoccurring. Where consent is initially refused, it is the role of the Ombudsman to educate the resident regarding the benefits and protections of reporting the situation in full.
The Ombudsman may consider increasing his or her direct monitoring of any facility or provider whose staff is been accused of committing abuses, suggesting additional training for staff on avoiding and reporting abuse and neglect, and/or approaching the president of any resident council to present a program and make known his or her availability to hear and address concerns. Ombudsman act as an advocate for the abuse survivor. They are not there in a regulatory or investigatory capacity.
Ombudsmen should contact APS staff when a resident requests a discharge to an unsafe environment or an involuntary discharge is the result of possible financial exploitation by a family member. For every referral made by the LTCO to another agency, the LTCO shall include documentation of such referral in WellSky. After a complaint has been referred, the LTCO shall make every effort to maintain the security and confidentiality of information related to the complaint, so that the information is not shared beyond the agency or agencies receiving the referral.
The State Ombudsman shall have state-level coordination with other entities that are responsible for the health, safety, welfare and rights of residents of long-term care facilities through the adoption of memoranda of understanding such as Adult Protective Services, Medicaid Fraud Control Unit, and the Mississippi Department of Health Licensure and Certification Division.
* Attorney General-Medicaid Fraud Control Unit Referral
The Medicaid Fraud Control Unit is a law enforcement agency under the Mississippi Attorney General's Office. It handles suspected Nursing Home and Personal Care Home abuse. See Mississippi Code Section 43-47-37. Report abuse to: 1-800-852-8341.
* Heath Department Licensure and Certification Referral
Problems arise that may necessitate the involvement of other sister agencies. Contact the Health Department when you need clarification of a regulatory position or interpretation of the nursing facility requirements or licensing standards for personal care homes. First, determine the best person with whom to consult by choosing the person most closely responsible for a Regulatory Services decision, often a surveyor or program manager. Attempt to collect facts and corroborate evidence before communicating. During a facility closure, the Health Department serves as the lead contact with nursing homes and personal care homes. The Office of the State Long-Term Facilities Ombudsman shall schedule, plan and attend meeting with the Health Department on a quarterly basis to explain LTCOP practices, approaches, strength, weaknesses and activities. If there is a regulatory violation, it should be referred to the Health Department. It should be encouraged that the resident or complainant make direct contact with the Health Department or the LCTO can assist in the referral. The triage number to the Health Department is: 1-800-227-7308.
The SLTCO (or his/her representative) should consider whether disclosure of information to any regulatory agency could have the following effects:
* Retaliation against residents or complainants
* Intimidating individuals from contacting the ombudsman program for assistance or from assisting in a complaint investigation
* Damaging working relationships between the LTCOP, facilities, and regulatory agencies. Negatively affecting the mission of the LTCOP
* Legal Services Referral
For a resident who is age 60 or older and who requests or is in need of legal advice and/or representation, the LTCO shall refer the resident to the Area Agency on Aging in the service area where the resident resides. For a resident who is under the age of 60 and who is requesting or in need of free legal advice and/or representation, the LTCO shall assist the resident in finding appropriate legal services. LTCOs may contact the particular Area Agency on Aging, the State Ombudsman, and the Legal Services Developer (LAD) by way of the State Ombudsman for information regarding such services. Where the legal services program is unable to provide the requested legal service, the LTCO may provide the resident with a list of private attorneys, but shall not recommend one.
IF the resident... | THEN the LTCO shall... |
Gives permission to make a report | Report the suspected abuse or gross neglect to the Medicaid Fraud Control Unit and the Health Dept. |
Does not give permission and the complainant is a long-term care provider, staff person or other mandatory reporter | Inform the complainant of their duty to report it to the appropriate agency. |
Requests LTCO assistance in moving to another facility | Take steps necessary to moving the resident to another facility, such as contacting the resident's representative, family members and making sure that the facility has complied with their responsibility of providing a safe and proper transfer/discharge. |
18 Miss. Code. R. 26-4-B