R510-200-20. Intake, Investigation, and Complaint Processing

  (1) This rule incorporates by reference UC 62A-3-206.

  (2) General.

  (a) the local LTCOP shall identify, investigate and attempt to resolve validated complaints made by or on behalf of residents of long-term care facilities.

  (3) Response to the Complaint.

  (a) when a LTCO receives information regarding a complaint, the LTCO shall determine:

  (i) the type of complaint using the National Ombudsman Reporting System (NORS) complaint categories as provided in the ombudsman computer program;

  (ii) what outcome the complainant or resident of the long-term care facility is seeking;

  (iii) what attempts have already been made to resolve the complaint;

  (iv) whether the complaint is appropriate for LTCO activity;

  (v) examples of complaints which are not appropriate for LTCO activity include those which:

  (A) do not directly impact a resident of a long-term care facility;

  (B) are outside the scope of authority of the LTCOP; or

  (C) would place the LTCOP in the position of having an actual or perceived conflict of interest with a resident or residents.

  (vi) the LTCO may seek resolution of complaints in which the rights of one resident and the rights of another resident appear to be in conflict.

  (b) determine/affirm the following with the complainant:

  (i) alternatives for handling the complaint;

  (ii) option of complainant to personally take appropriate action, with LTCO assistance if needed;

  (iii) communicate that the LTCO role is to act in accordance with the long-term care facility resident's wishes; and

  (iv) maintain the resident's confidentiality.

  (c) source of complaint made directly to the LTCO:

  (i) complaints may be filed with the LTCOP by residents of long-term care facilities, families or friends of residents, long-term care facility staff, or any other person or agency; and

  (ii) complaints may be made anonymously to the LTCOP.

  (d) ombudsman-generated complaints:

  (i) a LTCO shall file a complaint when the LTCO has personal knowledge of an action, inaction, or decision that may adversely affect the health, safety, or rights of residents of long-term care facilities and no other person has made a complaint.

  (e) timeliness of responses to complaints:

  (i) LTCO investigations shall be initiated within three business days;

  (ii) the LTCOP is not an emergency response system. Emergency situations should be referred to local law enforcement by calling 911.

  (f) ombudsman advocacy is resident focused:

  (i) the LTCO shall discuss the complaint with the resident of the long-term care facility in order to:

  (A) determine the resident's perception of the complaint;

  (B) determine the resident's wishes with respect to resolution of the complaint;

  (C) advise the resident of his/her resident rights;

  (D) work with the resident in developing a plan of action; and

  (E) when resident consent is refused or withdrawn, the LTCO shall record the refusal or withdraw of consent.

  (g) resident is unable to provide consent:

  (i) the LTCO shall advocate for the wishes of a resident of a long-term care facility to the extent that the resident can express them, even if the resident has limited decision-making capacity; or

  (ii) where a resident is unable to provide consent to a LTCO to work on a complaint directly involving the resident, the LTCO shall:

  (A) seek advice from the resident's representative, guardian, POA, spouse, or family member; or

  (B) if the LTCO determines that the resident's representative, guardian, POA, spouse, or family member is not acting in the resident's best interest, the LTCO shall seek evidence to indicate what the resident would have desired and, where such evidence is available, work to effectuate that desire.

  (4) Investigation Procedures.

  (a) the LTCO is not required to verify a complaint in order to seek a resolution on behalf of the resident of a long-term care facility. Resident perception is a sufficient basis upon which an LTCO can seek resolution.

  (b) the LTCO investigates a complaint in order to verify the accuracy and truth of the complaint:

  (i) a complaint is verified when the LTCO determines that the circumstances described in the complaint are substantiated or generally accurate; and

  (ii) because a LTCO works on behalf of residents of long-term care facilities, the LTCO gives the benefit of the doubt to the resident's perspective.

  (c) the LTCO shall seek any information required on an as needed basis to complete the investigation.

  (d) to verify a complaint, the LTCO shall take one or more of the following steps, as appropriate given the nature of the complaint:

  (i) research relevant laws, rules, regulations, and policies;

  (ii) personally observe and analyze the evidence;

  (iii) interview the resident and/or complainant;

  (iv) interview staff, administration, other residents and families;

  (v) identify relevant agencies and interview and/or obtain information from their staff; and

  (vi) examine relevant records.

  (e) facility visits can be unannounced, and occur at any hour provided the LTCO identifies him/herself upon entering the premises as a person authorized to investigate complaints.

  (f) the local LTCO may choose to give notice if deemed appropriate, in either case the ombudsman shall:

  (i) upon arrival at the facility or agency, present official identification to the administration or designated person in charge;

  (ii) identify any factors that may interfere with the investigation;

  (iii) start the investigatory process to establish as clearly as possible what has happened, why it has happened, who or what is responsible for resolving the complaint, and possible solutions to the problem;

  (iv) interview the resident, as well as other residents, staff, family, friends and physicians as deemed necessary;

  (v) make phone calls, on-site observation, review resident records, and make collateral contacts with other agencies and professionals;

  (vi) take any other appropriate investigatory actions within the purview of the LTCOP;

  (vii) during the course of the investigation, the local LTCO shall look for credible evidence, which supports or refutes the complaint. Evidence may be directly observed by the LTCO or indirectly gathered from statements from reliable sources; and

  (viii) LTCO shall be provided privacy by the facility or agency during all aspects of the investigative process.

  (5) Plan of Action.

  (a) upon verifying a complaint, the LTCO shall determine a plan of action to resolve the complaint.

  (b) the LTCO advocates on behalf of or with the resident in discussing the complaint with the appropriate facility, staff, or other relevant party and together, they develop an agreement that resolves the complaint.

  (c) the LTCO shall attempt to resolve the dispute directly with the appropriate staff of the facility unless the LTCO and the resident determine that another strategy would be more advantageous.

  (6) Complaint Referrals.

  (a) a LTCO shall make a referral to another agency when:

  (i) the resident gives permission, or, if resident is unable, responsible party gives permission, or, if the LTCO determines that the resident's representative, guardian, POA, spouse, or family member is not acting in the resident's best interest, the LTCO shall seek evidence to indicate what the resident would have desired and, where such evidence is available, work to effectuate that desire; and

  (ii) one or more of the following applies:

  (A) another agency has statutory responsibility to support or assist the resident (e.g. Adult Protective Services (APS) or Medicaid Fraud);

  (B) the action to be taken in the complaint is outside of the LTCO's scope of authority (e.g. Department of Health, Licensing);

  (C) the LTCO needs additional assistance in order to achieve resolution of the complaint; or

  (D) if it is determined that additional expertise may benefit the resident (e.g. mental health or disability services, etc.).

  (b) a LTCO may encourage resident or complainants to directly contact the appropriate regulatory agency to file a complaint and offer information and assistance to residents or complainants in making such contact.

  (7) Closing a Complaint or Case.

  (a) the complaint or case may be closed when any of the following occurs:

  (i) the complaint has been resolved to the satisfaction of the resident of the long-term care facility;

  (ii) the LTCO has determined, after investigation, that the complaint:

  (A) cannot be verified; or

  (B) was made in bad faith.

  (iii) further activity by the LTCO is unlikely to produce satisfaction for the resident;

  (iv) the complaint is not appropriate for LTCO activity;

  (v) after referral the LTCO anticipates no further response regarding the complaint from the agency to which the referral was made;

  (vi) the resident, who has capacity, requests that the LTCO close the case; or

  (vii) when the resident lacks capacity and the LTCO determines that the resident's representative, guardian, POA, spouse, or family member is not acting in the resident's best interest, the LTCO shall seek evidence to indicate what the resident would have desired and, where such evidence is available, work to effectuate that desire.

  (8) Abuse, Neglect, and Exploitation Complaints.

  (a) upon receiving an abuse, neglect or exploitation complaint the LTCO shall inform the complainant that in order to meet the State of Utah mandated reporting requirement he/she must:

  (i) directly call APS Intake; or

  (ii) directly call local law enforcement.

  (b) if the case also involves resident rights issues, the LTCO shall provide ombudsman services to the identified client.

  (9) Documentation of Complaints.

  (a) all LTCO complaints and documentation shall be entered into the ombudsman computer program.

  (10) Consent.

  (a) in order to access resident files maintained in a facility, the resident or resident representative must communicate informed consent orally, visually, written, or through auxiliary aids.

  (b) the date and method of obtaining the verbal consent shall be documented in the case file.

  (c) if a request for verbal consent is denied by the resident or their legal representative, the LTCO shall not access the records.

  (d) if the request for verbal consent is unsuccessful for any reason other than specific denial by the resident or legal representative, the LTCO may proceed to access the records. The reasons for not obtaining consent shall be documented in the case file.

  (e) if the request for verbal consent cannot be given by the resident and it is determined that the resident's legal representative is not acting in the resident's best interest, the LTCO may proceed to access the records. Such attempts shall be documented.