Technical Assistance FAQs

Based on the duties and requirements for the LTCOP outlined in the Older Americans Act and final LTCOP rule, how should a LTCO proceed if she personally witnesses abuse, gross neglect, or exploitation of a resident?

The Ombudsman program investigates and resolves complaints on behalf of residents, but the LTCO program is unique in that its goal is to resolve the complaint to the “satisfaction of the resident or complainant” as opposed to seeking to “substantiate” a complaint by gathering evidence to prove the allegation occurred (NORS Instructions, ACL). This difference means that the LTCO program does not have the same standard of evidence required for complaint investigation and resolution as other entities, such as Adult Protective Services, state survey agency and law enforcement. The investigation by other entities seeks evidence to demonstrate that laws or regulations were broken. Since the LTCOP’s primary goal is to resolve complaints to the satisfaction of the resident, the LTCO seeks resolution “on behalf of a resident regardless of whether violation of any law or regulation is at issue”. However, according to the Older Americans Act (OAA) LTCO are also supposed to seek remedies to protect the “health, safety, welfare, and rights of all residents [(OAA of 1965. Section 712 (a)(3)(A)].

Based on the duties and requirements for the LTCOP outlined in the Older Americans Act and final LTCOP rule, how should a LTCO proceed if she personally witnesses abuse, gross neglect, or exploitation of a resident? The OAA does not provide direction regarding the disclosure of information and reporting of suspected abuse when a LTCO witnesses abuse or the resident is unable to provide consent. However, the final LTCOP regulations require that state LTCOP procedures for disclosure shall provide that (45 CFR 1324.19):

• The LTCO shall seek informed consent from the resident, or resident representative, and follow resident direction.

If the resident cannot communicate informed consent and does not have a representative, the LTCO shall:

• Open a case with Ombudsman/representative as the complainant,
• Follow complaint resolution procedures, AND
• Refer and disclose information to facility management and/or appropriate agency if:
  • No evidence that resident would not want referral
  • Reasonable cause to believe that disclosure would be in best interest of resident, AND
  • Representative obtains State Ombudsman approval (or follows program policies).

Ombudsmen must employ advocacy strategies when responding to allegations of abuse, where consent is not given, in order to protect resident confidentiality and do their best to ensure resident safety. For advocacy strategies for this situation and others review the Responding to Allegations of Abuse: The Role and Responsibilities of LTCO technical assistance guide.

For detailed information regarding the LTCOP Final Regulations visit the NORC website for the final rule text, an overview, webinar recordings and additional resources. The Frequently Asked Questions (FAQs) by the Administration for Community Living (ACL) regarding implementation of the LTCOP Rule also provides additional information regarding the role of the Ombudsman program in investigating complaints regarding abuse (see questions 22 and 23).

Some language above adapted from New Long-Term Care Ombudsman Rule, New Opportunities (Becky Kurtz, 2015 SLTCO Conference).

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What advocacy strategies can Ombudsman programs use when investigating complaints regarding abuse in assisted living?

As with all LTCO work, advocacy strategies in response to allegations of abuse vary depending on the situation (e.g., type of abuse allegation, type and size of long-term care setting, identity of the perpetrator). For example, a LTCO’s approach in response to an allegation of abuse in a small personal care home may differ from their approach in response to a similar allegation in a large nursing home. Fear of retaliation or the amount of power an individual caregiver has may be greater in a small setting. Refer to the Quick Tips section of the May 2016 issue of the Ombudsman Outlook (archived issues here) for information on key similarities and differences in LTCO advocacy in nursing homes and in assisted living facilities.

Most states have mandatory reporting laws that require certain individuals (e.g., facility staff, social workers) to report suspected elder abuse. However, as reiterated in the Administration on Aging's Frequently Asked Questions for the LTCOP, "both the Older Americans Act and the Rule prohibit reporting of resident-identifying information without the resident’s consent" and "Ombudsman program policies and procedures must exclude the Ombudsman and representatives of the Office from abuse reporting requirements when such reporting would disclose identifying information of a complainant or resident without appropriate consent or court order (45 CFR 1327.11(e)(3))." 

Whether a referral is made to another agency regarding suspected abuse, there are many appropriate actions that LTCO can take to support residents.  Refer to the “What Can A LTCO Do in This Situation” section of the Responding to Allegations of Abuse: Role and Responsibilities of LTCO brief for ideas and examples. LTCO have the responsibility to support residents even if a referral cannot be made.

Facilities are required to protect residents from all forms of abuse and to investigate reports of abuse. Due to the lack of federal regulations for assisted living (e.g., board and care, personal care homes) LTCO need to be familiar with the applicable requirements in your state and know how the process works.

You can use the state and local LTCO Program Assessment: Current Activities in Assisted Living Facilities tip sheets when assessing program activities to support residents in assisted living facilities (ALFs). Regular program self-evaluation and assessment is critical to ensure that resources are maximized and to identify program strengths and areas for improvement. The lack of federal regulations for ALFs and reliance on often minimal state regulations and enforcement means increasing LTCO presence in these facilities and systems advocacy to strengthen the laws, regulations, and policies responsible for these settings is critical. These tools can be useful in assessing LTCOP services in Assisted Living, including the need for systems advocacy related to abuse. 

Resources

• Responding to Allegations of Abuse: Role and Responsibilities of Long-Term Care Ombudsmen
• Challenges in Assisted Living: Outreach and Discharge
• Resident-to-Resident Abuse Fact Sheet
• LTCO Advocacy: Resident-to-Resident Aggression (Technical Assistance Brief)

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What does the LTCOP Rule say about individual conflict of interest for a State Ombudsman, representatives of the Office, and members of their immediate family?

The LTCOP Rule provides more clarity regarding conflict of interest (COI) for the Ombudsman and for representatives of the Office (LTCOP Rule p. 7766, third column). The Rule lists COIs which cannot be remedied and others for which a remedy may be possible. The Ombudsman is to avoid COI in designating individuals as representatives and must de-designate representatives with a COI that cannot be removed or remedied.

The Rule lists the following examples of individual COI for a State Ombudsman, representatives of the Office, and members of their immediate family:

(i) Direct involvement in the licensing or certification of a long-term care facility;

(ii) Ownership, operational, or investment interest (represented by equity, debt, or other financial relationship) in an existing or proposed long-term care facility;

(iii) Employment of an individual by, or participation in the management of, a long-term care facility in the service area or by the owner or operator of any long-term care facility in the service area;

(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 long-term care facility;

(v) Accepting gifts or gratuities of significant value from a long-term care facility or its management, a resident or a resident representative of a long-term care facility in which the Ombudsman or representative of the Office provides services (except where there is a personal relationship with a resident or resident representative which is separate from the individual’s role as Ombudsman or representative of the Office);

(vi) Accepting money or any other consideration from anyone other than the Office, or an entity approved by the Ombudsman, for the performance of an act in the regular course of the duties of the Ombudsman or the representatives of the Office without Ombudsman approval; 

(vii) Serving as guardian, conservator or in another fiduciary or surrogate decision-making capacity for a resident of a long-term care facility in which the Ombudsman or representative of the Office provides services; and

(viii) Serving residents of a facility in which an immediate family member resides.

The following are COIs which cannot be remedied if the individual: 

• Has direct involvement in the licensing or certification of a long-term care facility;
• Has an ownership or investment interest in a long-term care facility;
• Receives, directly or indirectly, remuneration (in cash or in kind) under a compensation arrangement with an owner or operator of a long-term care facility; or
• Is employed by, or participating in the management of, a long-term care facility.

There is an additional prohibited COI for the State Ombudsman. That individual cannot have been employed by or participating in the management of a long-term care facility within the previous twelve months. 

States are taking a fresh look at individual COI for staff and volunteers. Some states are finding that individuals who have been serving as a representative of the Office have COIs as defined in the regulations. Avoiding COI in rural areas may be particularly challenging. Another challenge is explaining to a program representative that a COI exists and action is required. The litmus test for a remedy is the impact on the effectiveness and credibility of the work of the program [1324.21 (d)(2)].

The Institute of Medicine's report, Real People, Real Problems: An Evaluation of the Long-Term Care Ombudsman Programs of the Older Americans Act, Chapter 4, Conflicts of Interest, has a few statements that may be helpful in considering how to assess the presence or absence of conflict of interest. Click here for Institute of Medicine Report. 

Individual Conflicts of Interest: The manner in which ombudsmen conduct themselves may be perceived by others as motivated from interest other than the well-being of the resident. Perception of conflict of interest may be a significant problem for the individual ombudsman, even though the ombudsman may believe that his or her actions are motivated primarily to serve the resident. pp. 114 - 115 

In determining whether a COI exists and if one does, whether the conflict can be remedied, it may be helpful to think of various scenarios that may arise and how the actions of the representative of the Office could be perceived by the resident, staff, and others, as well as the potential impact on the credibility of the program. The impact on the program may extend to situations where opponents of the program or of a position the program has taken, such as a change in a regulation or a law, may find something to publicize as an example of the bias of the program. If a remedy is agreed upon, consider how frequently the Ombudsman will assess the situation to determine whether the remedy is effective. 

It is critical that Ombudsman programs identify, avoid, and remedy conflicts since the appearance of a conflict can damage the public perception and credibility of the program as an independent voice for residents. Periodic review and identification of COI is required. Residents must be able to trust that the Ombudsman has their interest as his or her primary focus, without a sense of loyalty to a previous employer or coworkers. (LTCOP Rule Preamble comments, p.7755)  

As programs review and revise policies to address COIs, NORC and ACL/AoA are available as resources.  Please share newly developed or revised policies, screening tools, and other COI procedures with NORC. 

Resources

• LTCOP Rule, Individual COI on page 7766, third column
• The document, Conflict of Interest and the LTCOP Resource Paper, July 2009, is still very applicable and contains examples of state policies and procedures on COI.  
• Long-Term Care Ombudsman Program Final Rule Webinar
• This March 2015 webinar was presented by Becky Kurtz, Director, Office of LTCO Programs with AoA of ACL, with an introduction by Kathy Greenlee, Administrator, Administration for Community Living; Assistant Secretary, Administration on Aging. View the slides here.

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What does the LTCOP Final Rule say about organizational conflict of interest?

Since the implementation of the Ombudsman Rule in July 2016, Ombudsman programs have been looking at their policies and procedures (and state laws) to ensure compliance with all aspects of the Rule. This article focuses on resources regarding organizational conflicts of interest (COI).

Organizational conflicts of interest may have a chilling effect on the LTCOP, at either the state or local level. As noted in the IOM report “Real People, Real Problems," 

“The ombudsman program has a mandate to focus on the individual resident. If the ombudsman finds him or herself in a conflict of interest situation (whether it is a conflict of loyalty, commitment, or control), the resident, even more than the program, may suffer. The resident’s problem may not be resolved, certain avenues of resolution may be foreclosed, the resident’s voice may not be heard by policymakers, and the resident’s interests will be inadequately represented or altogether absent from the table at which public policy is made." See here.

Section §1324.21 of the LTCOP Rule says the following about conflicts of interest. 

“The State agency and the Ombudsman shall consider both the organizational and individual conflicts of interest that may impact the effectiveness and credibility of the work of the Office. In so doing, both the State agency and the Ombudsman shall be responsible to identify actual and potential conflicts and, where a conflict has been identified, to remove or remedy such conflict as set forth in paragraphs (b) and (d) of this section. (a) Identification of organizational conflicts. In identifying conflicts of interest pursuant to section 712(f) of the Act, the State agency and the Ombudsman shall consider the organizational conflicts that may impact the effectiveness and credibility of the work of the Office. Organizational conflicts of interest include, but are not limited to, placement of the Office, or requiring that an Ombudsman or representative of the Office perform conflicting activities, in an organization that: 

(1) Is responsible for licensing, surveying, or certifying long-term care facilities; 

(2) 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; 

(3) 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; 

(4) Has governing board members with any ownership, investment or employment interest in long-term care facilities; 

(5) 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; 

(6) Provides long-term care coordination or case management for residents of long-term care facilities; 

(7) Sets reimbursement rates for long- term care facilities; 

(8) Provides adult protective services; 

(9) Is responsible for eligibility determinations regarding Medicaid or other public benefits for residents of long-term care facilities; 

(10) Conducts preadmission screening for long-term care facility placements; 

(11) Makes decisions regarding admission or discharge of individuals to or from long-term care facilities; or 

(12) Provides guardianship, conservatorship or other fiduciary or surrogate decision-making services for residents of long-term care facilities. See here (page 7765, column 3). 

The Rule requires three steps regarding organizational COI: 

• Identify, 
• Remove or Remedy, and 
• Report through the National Ombudsman Reporting System (NORS). 

Below are Issue Briefs which walk through the numerous things to consider, as well as, charts listing COI and possible remedies for both State and Local Ombudsman Entities (LOE). 

• LTCOP Rule Issue Brief: State LTCOP Organizational Level Conflict of Interest 
• LTCOP Rule Issue Brief: Local Ombudsman Entity Organizational Level Conflict of Interest
• LTCOP Organizational Conflict of Interest – Examples of Identification, Remedies, and Removal (Office of the State Long-Term Care Ombudsman and Local Ombudsman Entities)

QUESTION? Can you can find the answer to the following situations. Is this a conflict that can be remedied or not?

• The host agency is responsible for eligibility determinations regarding Medicaid or other public benefits for residents of long-term care facilities (CFR 1324.21(a)(9)).
• The Board of Directors of the host agency includes members who operate a long-term care facility.

The resources above and more are available on the NORC website (click on Library, Federal Laws and Regulations, and then click on: Long-Term Care Ombudsman Final Rule).

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How can programs screen individuals for potential or actual conflicts of interest?

According to the LTCOP Final Rule, the State Agency and the Ombudsman are responsible for identifying conflicts that "may impact the effectiveness and credibility of the work of the Office" [§1324.21(c)(1)].

The LTCOP Rule requires four steps regarding individual conflicts of interest (COI):

1. Establish and implement policies and procedures related to conflicts of interest.

2. Identify conflicts of interest.

3. Avoid appointing or designating individuals with conflicts of interest.

4. Remove or remedy the conflict.

The new NORC resource,  Long-Term Care Ombudsman Program Individual Conflict of Interest Screening Template, was designed to help Ombudsman programs identify conflicts of interest (this resource is available as a fillable PDF and in black and white). 

The template is intended for use as a guide when Ombudsman programs develop or revise individual conflict of interest screening tools. States are responsible for adding any state specific requirements, definitions, or processes that may not be included in this document.

Additional information on individual conflicts of interest, the provisions in the Rule, and examples of screening tools used by Ombudsman programs can be accessed here, specifically the LTCOP Rule Issue Brief on individual conflicts of interest, a related webinar, and this article from a 2016 issue of the Ombudsman Outlook.

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What does the LTCOP Final Rule say about consent?

The final rule for State Long-Term Care Ombudsman Programs reinforces the requirement of LTCO to obtain informed consent from a resident, or the resident representative, prior to investigating a complaint or disclosing information and follow resident direction throughout the complaint investigation and resolution process. 

The rule provides the following requirements for duties of the representatives of the Office (representatives are the employees or volunteers designated by the State LTC Ombudsman to fulfill the duties of the LTCO program) regarding obtaining informed consent and providing advocacy for residents unable to provide informed consent. 

1327.19 Duties of the representatives of the Office 

(b) Complaint Processing

(1) With respect to identifying, investigating and resolving complaints, and regardless of the source of the complaint (i.e. complainant), the Ombudsman and the representatives of the Office serve the resident of a long-term care facility. The Ombudsman or representative of the Office shall investigate a complaint, including but not limited to a complaint related to abuse, neglect, or exploitation, for the purposes of resolving the complaint to the resident’s satisfaction and of protecting the health, welfare, and rights of the resident. The Ombudsman or representative of the Office may identify, investigate and resolve a complaint impacting multiple residents or all residents of a facility.

(2) Regardless of the source of the complaint (i.e. the complainant), including when the source is the Ombudsman or representative of the Office, the Ombudsman or representative of the Office must support and maximize resident participation in the process of resolving the complaint as follows:

(i) The Ombudsman or representative of Office shall offer privacy to the resident for the purpose of confidentially providing information and hearing, investigating and resolving complaints.

(ii) The Ombudsman or representative of the Office shall personally discuss the complaint with the resident (and, if the resident is unable to communicate informed consent, the resident’s representative) in order to:

(A) Determine the perspective of the resident (or resident representative, where applicable) of the complaint;

(B) Request the resident (or resident representative, where applicable) to communicate informed consent in order to investigate the complaint;

(C) Determine the wishes of the resident (or resident representative, where applicable) with respect to resolution of the complaint, including whether the allegations are to be reported and, if so, whether Ombudsman or representative of the Office may disclose resident identifying information or other relevant information to the facility and/or appropriate agencies. Such report and disclosure shall be consistent with paragraph (b)(3) of this section;

(D) Advise the resident (and resident representative, where applicable) of the resident’s rights;

(E) Work with the resident (or resident representative, where applicable) to develop a plan of action for resolution of the complaint;

(F) Investigate the complaint to determine whether the complaint can be verified and

(G) Determine whether the complaint is resolved to the satisfaction of the resident (or resident representative, where applicable).

(iii) Where the resident is unable to communicate informed consent, and has no resident representative, the Ombudsman or representative of the Office shall:

(A) Take appropriate steps to investigate and work to resolve the complaint in order to protect the health, safety, welfare and rights of the resident; and

(B) Determine whether the complaint was resolved to the satisfaction of the complainant.

(iv) In determining whether to rely upon a resident representative to communicate or make determinations on behalf of the resident related to complaint processing, the Ombudsman or representative of the Office shall ascertain the extent of the authority that has been granted to the resident representative under court order (in the case of a guardian or conservator), by power of attorney or other document by which the resident has granted authority to the representative, or under other applicable State or Federal law.

Informed consent is not defined in the final rule and in response to a comment asking for a definition the Administration on Aging provided the following response, “we believe that the term ‘‘unable to communicate informed consent’’ improves the clarity of the term ‘‘unable to consent’’ which is used in the Act, related to Ombudsman program access to resident records. Section 712(b)(1)(B)(i)(II) of the Act. Our expectation is that States will operationalize the use of this term by incorporating it into the Ombudsman program’s procedures for resident records and complaint processing. We are also available to provide States with technical assistance should the need arise for further clarity on how to operationalize this term within Ombudsman program operations.” 

Resident empowerment and supporting resident decision-making ability to the greatest extent possible is a core responsibility of LTCO program advocacy. However, conducting an assessment to determine capacity does not fall under the responsibilities of the LTCO program. LTCO use communication skills such as active listening and observation to ensure a resident understands her rights, choices, potential outcomes, and can express her wishes in order to obtain consent and direction. 

Visit the NORC website for more information regarding ethical considerations, communication skills and advocacy strategies, and promoting resident-centered care. 

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A resident gives an Ombudsman program representative permission to review her medical record as part of the complaint investigation, but she does not want the representative to disclose her name in the process, how can the representative proceed?

During a nursing home visit a resident you are familiar with tells you her medications have changed and she wants to know what she is being given. She wants you to check her chart in order to get her current list of medications; however, she doesn't give you permission to speak to staff or let anyone know she is questioning her medications. You inform her that you can’t look at her medical chart without her permission and you would have to share her name to access the chart. Needing to review a resident's medical records without disclosing the resident's name is a challenging situation, what are your next steps?

If a resident gives you permission to investigate her concern and review her medical record, but does not want you to disclose her name, talk with the resident:

• Discuss the reasons the resident does not want her identity revealed. If this will limit your ability to resolve the issue, discuss this with the resident and tell her you will do as much as possible without revealing her identity. 
• Explain the resident’s right to look at their medical records, to be informed about medications and other medical care being provided, 
• Explain the situation,
• Discuss any potential risks involved in the resident being identified.

If you cannot resolve the issue without revealing her identity, tell her what you’ve done and why you cannot take the case further. If appropriate, encourage the resident to discuss her concern with the Resident Council or:

• Look for supporting evidence during your regular visits.
• Look for supporting evidence when visiting other residents; perhaps several other residents share the same issue and you can proceed on their behalf.
• Inform the resident that you will be available to pursue this issue if she changes her mind. Check back with her regarding this.

What you DON’T want to do:

• Guarantee that retaliation will not occur.
• Ask to see several charts to hide the one you are really wanting to see as you would need permission from each resident to even request their chart. 

Oftentimes reviewing medical records may not be the best place to start or may not even be necessary as there are usually other ways to get answers to questions besides, such as:

• Speaking with the charge nurse or DON,
• Addressing the issue during a care plan meeting, or
• Meeting with the doctor. 

When possible, participating in conversations with the resident and appropriate staff is often the most effective, resident-centered way to support a resident and ensure their concerns are addressed. 

Resources

• The Problem-Solving Process: Investigation, Curriculum Resource Material for Local Long-Term Care Ombudsman.
• OAA and Rule References to Access to Records
• March 2017 NORC Webinar - LTCOP Rule: Supporting Person-Centered Advocacy - Complaint Investigations and Abuse Reporting
• TA Hot Topic: Consent January 2016 Outlook

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As some LTCO have experienced, occasionally the decisions of a guardian may conflict with those of the resident or a guardian may not be acting in the best interest of the resident. How does a LTCO support residents with guardians in these situations?

Even residents with guardians should be given the opportunity to make decisions and express preferences to the extent possible and LTCO would assist residents with guardians in asserting their rights. According to the Older Americans Act, LTCO are responsible for identifying, investigating, and resolving complaints, including those regarding the "welfare and rights of the residents with respect to the appointment and activities of guardians and representative payees" [Section 712 (a)(3)(A)(ii)]. Additionally, the State shall ensure LTCO access to records related to investigating a complaint in which the guardian refuses access, the LTCO "has reasonable cause" to believe the guardian is not acting in the best interest of the resident, and gains approval from the State LTCO [Section 712 (b)(1)(B)(ii)].

What Can A LTCO Do?

• After identifying the resident's wishes and/or needs (if possible), check for the legal documentation outlining the guardianship, as some individuals may present themselves as a guardian without actually being appointed.
• Consult with your LTCO supervisor and State LTCO
• Emphasize the importance of resident-centered decision making. Becoming familiar with the National Guardianship Association (NGA) Standards of Practice will help during discussions with guardians, residents, facility staff, and others. The standards include guidelines for the guardian to make decisions based on informed consent (when possible) and decisions that are the least restrictive on the person's independence and self-determination, as well as supporting relationships and social connections consistent with the person under guardianship's preferences.
• Gain an understanding about guardianship in your region and state. For example, is there a state and/or regional guardianship program, is there a multi-disciplinary task force to discuss guardianship issues (e.g. WINGS), are there state long-term care facility regulations regarding guardianship and residents' rights?
• Develop relationships with and educate the probate court and/or public guardianship program about residents' rights and the role of the LTCO program.
• Review resources regarding guardianship and the role of LTCO on the NORC website and discuss these issues with your LTCO staff and volunteers (e.g. Making Guardianship Work for Vulnerable Elders, Guardianship: Challenges, Opportunities, and Advocacy, Informational Brief on Unbefriended Elders).

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What rights do residents have to receive visitors and what are some tips to make visits from family and friends as meaningful as possible?

The resources below address visitation rights, bringing food in, signs of abuse/neglect and financial exploitation, gift ideas, and activity ideas for visitors. LTCOPs may use this information in training and/or educating staff, residents, and family members.

A Closer Look at the Revised Nursing Facility Regulations

Visitation Rights

The revised nursing facility regulations state that the resident “has a right to receive visitors of his or her choosing at the time of his or her choosing, subject to the resident’s right to deny visitation when applicable, and in a manner that does not impose on the rights of another resident.” In effect, nursing facilities are prohibited from imposing “visitation hours” on any residents.

The revised regulations require the facility to have a written visitation policy and inform residents of their visitation rights, the facility policy, any restrictions, the reasons for the restrictions, and to whom the restrictions apply. To ensure residents' rights are honored, LTCOPs are encouraged to be familiar with facility visitation policies and procedures of those they visit. Read more about visitation rights here.

Bringing in Food to a Resident

The CMS State Operations Manual (SOM), Appendix PP, Guidance to Surveyors for Long-Term Care Facilities, provides interpretive guidance regarding the federal requirements for long-term care facilities. The SOM is a useful resource in Ombudsman program advocacy as it provides further information about the requirements for facilities. The SOM says the following about visitors bringing in food for residents:

• “NOTE: The food procurement requirements for facilities are not intended to restrict resident choice. All residents have the right to accept food brought to them by family or visitor(s).” [F 812, page 591]
• “The facility must have a policy regarding food brought to residents by family and other visitors. The policy must also include ensuring facility staff assists the resident in accessing and consuming the food, if the resident is not able to do so on his or her own. The facility also is responsible for storing food brought in by family or visitors in a way that is either separate or easily distinguishable from facility food. [F 813, page 606] 

Tips for Family, Friends, and other Visitors

Family members, friends, and other visitors can bring a lot of joy to residents as well as provide an extra set of eyes to observe any signs of poor care or abuse. This tip sheet from Consumer Voice provides ideas for visitors to make visits as meaningful for residents as possible and how to identify signs of potential abuse. 

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What do the Federal Nursing Home Regulations say about resident and family councils?

The Federal Nursing Home Regulations give residents the power to determine who can attend resident council meetings. They also give the residents the right to attend family council meetings, while family members (or representatives of the resident) can attend resident council meetings only with the permission of that council.

The regulations also say that facilities must provide private space to meet and assist with publicizing the meetings.

When assisting a current council or starting a new one, making sure residents and families understand their rights is a good place to start. For additional guidance and resources, visit the NORC website.

F565 §483.10(f)(5) The resident has a right to organize and participate in resident groups in the facility.

(i) The facility must provide a resident or family group, if one exists, with private space; and take reasonable steps, with the approval of the group, to make residents and family members aware of upcoming meetings in a timely manner.

(ii) Staff, visitors, or other guests may attend resident group or family group meetings only at the respective group's invitation.

(iii) The facility must provide a designated staff person who is approved by the resident or family group and the facility and who is responsible for providing assistance and responding to written requests that result from group meetings.

(iv) The facility must consider the views of a resident or family group and act promptly upon the grievances and recommendations of such groups concerning issues of resident care and life in the facility.

(A) The facility must be able to demonstrate their response and rationale for such response.

(B) This should not be construed to mean that the facility must implement as recommended every request of the resident or family group.

§483.10(f)(6) The resident has a right to participate in family groups.

§483.10(f)(7) The resident has a right to have family member(s) or other resident representative(s) meet in the facility with the families or resident representative(s) of other residents in the facility.

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What is included in the 2020 Reauthorization of the Older Americans Act?

The Support Older Americans Act (OAA) of 2020 (HR4334) reauthorizes programs for FY 2020 through FY2024. The bill text is available here and the compilation of the OAA of 1965, as amended through P.L. 116-131, enacted March 25, 2020, is available here. 

Amendments specific to the Long-Term Care Ombudsman program include: 

• Section 306(a)(9) and 307(a)(9) - Minimum funding and maintenance of effort language was updated to reflect that FY2019 data is to be used rather than FY2000 in both State and Area Agency on Aging (AAA) budgeting. 
• At both the State and AAA level, the Long-Term Care Ombudsman program will expend not less than the total amount of funds appropriated under this Act and expended by the agency in fiscal year 2019 in carrying out such a program under this title.
• Section 702(a) OMBUDSMAN PROGRAM.—There are authorized to be appropriated to carry out chapter 2, $18,066,950 for fiscal year 2020, $19,150,967 for fiscal year 2021, $20,300,025 for fiscal year 2022, $21,518,027 for fiscal year 2023, and $22,809,108 for fiscal year 2024.
• Section 712(a)(5)(E) clarifies that the LTCOP is allowed to provide and financially support recognition for an individual designated as a volunteer to represent the Ombudsman program, and may reimburse or otherwise provide financial support for any costs, such as transportation costs, incurred by representatives of the program.

HR4334 also requires a report to update best practices for home and community-based ombudsmen, stating that “not later than 3 years after the date of enactment of this Act, the Assistant Secretary shall issue a report updating the best practices for home and community-based ombudsmen that were included in the report entitled “Best Practices for Home and Community-Based Ombudsmen,” issued by the National Direct Service Workforce Resource Center of the Centers for Medicare & Medicaid Services and prepared by the Research and Training Center at the University of Minnesota and The Lewin Group (January 2013).”

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Do surveyors have to witness a violation themselves to issue a citation for non-compliance?

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Is the Ombudsman program required to conduct systems advocacy, such as commenting on or recommending changes to laws, regulations, and policies?

Yes. Systems advocacy is a core responsibility of the Office of the State Long-Term Care Ombudsman (OSLTCO) as the Older Americans Act [Section 712 (a)(3)(A)] requires States to establish and operate its OSLTCO to: 

• Represent the interests of residents before governmental agencies and seek administrative, legal, and other remedies to protect the health, safety, welfare, and rights of residents; 
• Analyze, comment on, and monitor the development and implementation of federal, state, and local laws, regulations, and other governmental policies and actions, that pertain to the health, safety, welfare, and rights of the residents, with respect to long-term care facilities and services in the state;
• Facilitate public comment on laws, regulations, policies, and actions related to residents of long-term care facilities and the ombudsman program; 
• Recommend any changes in laws, regulations, policies, and actions that will further promote the interests, well-being and rights of residents.

The State Long-Term Care Ombudsman Program Final Rule (published in February 2015 and effective July 2016) expands upon the intent of the Older Americans Act and gives more detail regarding the role and responsibilities of the LTCOP, including systems advocacy. In response to comments on the proposed Rule, ACL states, “the Act creates the Ombudsman program to resolve problems for residents of long-term care facilities on individual as well as systemic levels. Therefore, the ability to take positions and make recommendations that reflect the interests of residents is critical to the effectiveness of the Ombudsman program.” The Administration for Community Living (ACL) addressed the importance of coordination and the role of the Ombudsman and program representatives in systems advocacy in question 11 of their Frequently Asked Questions (FAQs) about the LTCOP Rule.

Also, during a NORC webinar regarding systems advocacy, both Melanie McNeil, Georgia State Ombudsman, and Elaine Wilson, local Ombudsman program representative, explained how they work together on statewide and regional advocacy efforts. They emphasized the importance of a joint effort with frequent and ongoing communication before, during, and after a project. For additional information about the LTCOP role and responsibilities regarding systems advocacy visit this page. 

Feel free to contact NORC if you have questions or comments.

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How does a Long-Term Care Ombudsman advocate for a resident who is on hospice?

Occasionally there will be a miscommunication or misunderstanding between nursing home staff and a hospice provider that negatively impacts a resident’s care.  Understanding the federal requirements nursing homes and hospice providers must follow is vital in successfully advocating for residents. Questions to consider asking when investigating a case involving a hospice providing services to a resident in a facility, applicable federal regulations and surveyor guidance, and successful practices are below.

Questions to Ask

• Is the resident able to make care decisions? If not, who is the resident representative that can assist with medical decisions and are they using the resident’s history to guide decisions? If so, what are the resident’s wishes?
• Is there an advance directive or other paperwork regarding end-of-life care?
• What is in the care plan and how are the resident’s needs met by both the nursing home and hospice provider? What are the care responsibilities of the hospice provider compared to the nursing facility?  NOTE: Per federal requirements, the nursing home retains primary responsibility for providing care not related to the duties of hospice (e.g., 24-hour room and board, personal care, and nursing needs). 

Important Information to Know

If a resident wants to have hospice services, the nursing home must have a written agreement with a Medicare-certified hospice. Federal regulations say that nursing homes do not have to work with one or more hospices. It is up to each nursing home to decide if they want to have an agreement with one or more hospice providers (see below).

F684 Quality of Care (CMS State Operations Manual, Appendix PP, Guidance for Surveyors) 

Resident Care Policies 

The facility, in collaboration with the medical director, must develop and implement resident care policies that are consistent with current professional standards of practice for not only pain management and symptom control, but for assessing residents’ physical, intellectual, emotional, social, and spiritual needs as appropriate. In addition, if the facility has a written agreement with a Medicare-certified hospice, the policies must identify the ongoing collaboration and communication processes established by the nursing home and the hospice. (Refer to F841 - §483.70(h) Medical Director, or for the written agreement, to F849, §483.70(o) Hospice Services) Page 267 of Appendix PP

§483.70(o) Hospice services. 

§483.70(o)(1) A long-term care (LTC) facility may do either of the following: 

(i) Arrange for the provision of hospice services through an agreement with one or more Medicare-certified hospices. 
(ii) Not arrange for the provision of hospice services at the facility through an agreement with a Medicare-certified hospice and assist the resident in transferring to a facility that will arrange for the provision of hospice services when a resident requests a transfer. 

§483.70(o)(2) If hospice care is furnished in an LTC facility through an agreement as specified in paragraph (o)(1)(i) of this section with a hospice, the LTC facility must meet the following requirements: 

(i) Ensure that the hospice services meet professional standards and principles that apply to individuals providing services in the facility, and to the timeliness of the services. 
(ii) Have a written agreement with the hospice that is signed by an authorized representative of the hospice and an authorized representative of the LTC facility before hospice care is furnished to any resident. The written agreement must set out at least the following: 

(A) The services the hospice will provide. 
(B) The hospice’s responsibilities for determining the appropriate hospice plan of care as specified in §418.112 (d) of this chapter. 
(C) The services the LTC facility will continue to provide based on each resident’s plan of care. 
(D) A communication process, including how the communication will be documented between the LTC facility and the hospice provider, to ensure that the needs of the resident are addressed and met 24 hours per day.
(E) A provision that the LTC facility immediately notifies the hospice about the following: 

(1) A significant change in the resident’s physical, mental, social, or emotional status. 
(2) Clinical complications that suggest a need to alter the plan of care. 
(3) A need to transfer the resident from the facility for any condition. 
(4) The resident’s death. 

(F) A provision stating that the hospice assumes responsibility for determining the appropriate course of hospice care, including the determination to change the level of services provided. 
(G) An agreement that it is the LTC facility’s responsibility to furnish 24-hour room and board care, meet the resident’s personal care and nursing needs in coordination with the hospice representative, and ensure that the level of care provided is appropriately based on the individual resident’s needs. 
(H) A delineation of the hospice’s responsibilities, including but not limited to, providing medical direction and management of the patient; nursing; counseling (including spiritual, dietary, and bereavement); social work; providing medical supplies, durable medical equipment, and drugs necessary for the palliation of pain and symptoms associated with the terminal illness and related conditions; 

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