R510-200-14. Conflicts of Interest

  (1) A conflict of interest exists in the LTCOP when interests intrude upon, interfere with, or threaten to negate the ability of the LTCO to advocate without compromise on behalf of long-term care facility residents. The LTCO shall have no conflict of interest that would interfere with performing the function of this position.

  (2) Organizational Conflicts.

  (a) organization conflicts arise when the LTCOP is placed with a service provider that:

  (i) is responsible for licensing, surveying, or certifying long-term care facilities (45 CFR 1324.21(a)(1));

  (ii) is an association (or an affiliate of such an association) of long-term care facilities, or of any other residential facilities for older individuals or individuals with disabilities ((OAA Sec. 712(f)(2)(A)(ii)) and (45 CFR 1324.21(a)(2)); NOTE: OAA citation does not have "or individuals with disabilities");

  (iii) is responsible for licensing, certifying, or surveying long-term care services in the State (OAA Sec. 712(f)(2)(A)(i));

  (iv) has any ownership or investment interest (represented by equity, debt, or other financial relationship) in, or receives grants or donations from, a long-term care facility (45 CFR 1324.21(a)(3));

  (v) has governing board members with any ownership, investment or employment interest in long-term care facilities (45 CFR 1324.21(a)(4));

  (vi) provides long-term care to residents of long-term care facilities, including the provision of personnel for long-term care facilities or the operation of programs which control access to or services for long-term care facilities (45 CFR 1324.21(a)(5));

  (vii) provides long-term care services, including programs carried out under a Medicaid waiver approved under section 1115 of the Social Security Act (42 U.S.C. 1315) or under subsection (b) or (c) of section 1915 of the Social Security Act (42 U.S.C. 1396n), or under a Medicaid State plan amendment under subsection (i), (j), or (k) of section 1915 of the Social Security Act (42 U.S.C. 1396n) (OAA Sec. 712(f)(2)(A)(iii));

  (viii) provides long-term care case management (OAA Sec. 712(f)(2)(A)(iv));

  (ix) provides long-term care coordination or case management for residents of long-term care facilities (45 CFR 1324.21(a)(6));

  (x) sets reimbursement rates for long-term care facilities (45 CFR 1324.21(a)(7));

  (xi) sets rates for long-term care services (OAA Sec. 712(f)(2)(A)(v));

  (xii) provides adult protective services (OAA Sec. 712(f)(2)(A)(vi) and (45 CFR 1324.21(a)(8));

  (xiii) is responsible for eligibility determinations for the Medicaid program carried out under title XIX of the Social Security Act (42 U.S.C. 1396 et seq.) (OAA Sec. 712(f)(2)(A)(vii));

  (xiv) is responsible for eligibility determinations regarding Medicaid or other public benefits for residents of long-term care facilities (45 CFR 1324.21(a)(9));

  (xv) conducts preadmission screening for placements in facilities described in clause (ii) (OAA Sec. 712(f)(2)(A)(viii); 45 CFR 1324.21(a)(10) language has essentially the same meaning;

  (xvi) makes decisions regarding admission or discharge of individuals to or from such facilities (OAA Sec. 712(f)(2)(A)(ix); 45 CFR 1324.21(a)(11) language has essentially the same meaning);

  (xvii) provides guardianship, conservatorship or other fiduciary or surrogate decision making services for residents of long-term care facilities (45 CFR 1324.21(a)(12));

  (xviii) any other service (e.g., Name of Service) provided by the agency that could pose a potential or actual conflict of interest, including other work done by LTCOP employees;

  (xix) any other perceived or actual conflicts of interest from the resident/consumer/general public perspective with the LTCOP; or

  (xx) where there is a shared "front door" to the agency where the LTCOP is located, how the agency determines where to direct calls, emails, or other contacts that come in to the agency.

  (3) Individual ombudsman conflicts.

  (a) conflicts for a LTCO include the following:

  (i) involvement in the licensing or certification of a long-term care facility or provision of a long-term care service, including solicitation of employment by LTCO or a member of his/her immediate family;

  (ii) ownership, operational, or investment interest (represented by equity, debt, or other financial relationship) in an existing or proposed LTC facility or LTC service by LTCO or a member of his/her immediate family;

  (iii) employment or solicitation of employment of LTCO or a member of his/her immediate family by a LTC facility; participation in the management of a LTC facility by LTCO or a member of his/her immediate family;

  (iv) receipt of, or right to receive, directly or indirectly, remuneration (in cash or in kind) under a compensation arrangement with an owner or operator of a LTC facility by LTCO or a member of his/her immediate family;

  (v) accepting any gifts or gratuities, including meals, from a LTC facility or resident or resident representative or being named as the beneficiary of an estate, will, or trust of resident, or resident representative;

  (vi) accepting money or any other consideration from anyone other than the Provider Agency or other entity designated by the Office for the performance of an act in the regular course of LTC ombudsman duties;

  (vii) provision of services with conflicting responsibilities while serving as a LTCO, such as adult protective services; discharge planning; serving as guardian, agent under power of attorney or other surrogate decision-maker for LTC residents in the service area;

  (viii) participation in pre-admission screening or case management for LTC residents;

  (ix) serving residents of a facility in which an immediate family member resides; or

  (x) participation in activities which negatively impact the LTCO's ability to serve residents, or are likely to create a perception that the LTCO's interest is other than as a resident advocate.

  (b) under no circumstances shall a LTCO be appointed or employed who has been employed by or participating in the management of a long-term care facility within the previous twelve months.

  (4) Completing a Conflict of Interest Agreement.

  (a) to ensure compliance with conflict of interest standards:

  (i) all staff and volunteers requesting ombudsman certification will update their conflict of interest information upon hiring and then annually at the beginning of the Federal Fiscal Year (FFY), and on an as needed basis as determined by the SLTCO, to affirm that they are in compliance; and

  (ii) SLTCO will review conflict of interest with all LTCO annually at the beginning of FFY.

  (5) Remedying Conflict.

  (a) where an actual or potential conflict of interest within the LTCOP has been identified, all agents of the AAAs, provider agencies, and LTCOs have an affirmative duty to notify the SLTCO of said conflict.

  (b) the SLTCO shall determine whether appropriate actions may be taken to sufficiently remedy the conflict.

  (c) a conflict can be sufficiently remedied only:

  (i) where the existence of the conflict does not and cannot interfere with any duties of the LTCOP; and

  (ii) where the conflict is not likely to alter the perception of the LTCOP as an independent advocate for residents of long-term care facilities.

  (6) Remedying Organizational Conflict.

  (a) where organizational conflicts have been identified within an AAA, Provider Agency, or governing board, the following steps shall be taken to ensure the conflict can be sufficiently remedied:

  (i) a written remedial plan shall be developed within ten business days of identification of the conflict to the SLTCO;

  (ii) the remedial plan must identify the actual conflict and provide assurances, which shall mitigate the negative impact of the conflict on the LTCOP;

  (iii) the AAA, Provider Agency, or governing board shall cease all LTCO activities during the remedial period; and

  (iv) the remedial plan must be mutually agreed upon and signed by the agency in which the conflict exists and by the SLTCO.

  (7) Remedying individual ombudsman conflicts.

  (a) where individual conflicts have been identified, the following steps shall be taken to ensure the conflict can be sufficiently remedied:

  (i) development of a written remedial plan:

  (A) where the individual is an applicant for a position as a LTCO, a plan shall be developed before the individual is hired for the position;

  (B) where the individual is an applicant for certification as a volunteer ombudsman, a plan shall be developed before the individual is certified; or

  (C) where the individual is a LTCO staff or volunteer, a plan shall be developed within ten business days of identification of the conflict to the SLTCO. No action shall be taken by the individual on behalf of the LTCOP until the plan is submitted to the SLTCO.

  (ii) the remedial plan must:

  (A) identify the actual conflict; and

  (B) provide assurances, which shall mitigate the negative impact of the conflict on the LTCOP.

  (iii) the remedial plan must be mutually agreed upon between the individual LTCO and the SLTCO; and

  (iv) ombudsmen are not permitted to serve residents in facilities with which they have a conflict of interest except at the determination of the SLTCO.

  (8) Failure to Identify or Remedy a Conflict of Interest.

  (a) failure on the part of a LTCO or Provider Agency to identify and report to the SLTCO a conflict of interest may:

  (i) be grounds for refusal to certify;

  (ii) may result in the de-certification of the LTCO and/or the AAA/Provider Agency; or

  (iii) may result in the termination of the LTCO or termination of the contract between the LTCOP and the AAA/Provider Agency.

  (b) existence of an un-remedied conflict of interest could be grounds for:

  (i) the de-certification of the LTCOP headed by the AAA/Provider Agency and termination of the contract between the AAA/Provider Agency and the LTCOP;

  (ii) de-certification of an LTCO; or

  (iii) termination of an LTCO.

  (c) appeals may be made following the Grievance Procedure process found in part R510-200-16.

  (9) Division, AAAs, and Provider Agencies.

  (a) when considering the employment or appointment of an individual as the LTCO, Division, AAAs and Provider Agencies shall:

  (i) take reasonable steps to avoid employing or appointing an individual who has an unremedied conflict of interest or who has a member of the immediate family with an unremedied conflict of interest;

  (ii) take reasonable steps to avoid assigning an individual to perform duties which would constitute an unremedied conflict of interest;

  (iii) establish a process for periodic review and identification of conflicts of the ombudsman and representatives of the Office; and

  (iv) take steps, as outlined, to remove or remedy conflicts.