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COMMENT DUE DATE:  

March 3, 2017

DATE: 

February 1, 2017

William Whited, State Long-Term Care Ombudsman, Aging Services 405-522-3717

Dena Thayer, Programs Administrator 405-521-4326

Nancy Kelly, Policy Specialist 405-522-6703

RE:  

APA WF 17-01

It is very important that you provide your comments regarding the DRAFT COPY of policy by the comment due date. Comments are directed to *STO.LegalServices.Policy@okdhs.org

The proposed policy is  Permanent .  This proposal is subject to Administrative Procedures Act

It is important that you provide your comments regarding the draft copy of policy by the comment due date.Comments are directed to STO.LegalServices.Policy@okdhs.org.The proposed policy is permanent.

SUBJECT:CHAPTER 105. AGING SERVICES

Subchapter 11. State Long-Term Care Ombudsman Program

Part 37. Statewide Long-Term Care Ombudsman Program

OAC 340:105-11-231 through 340:105-11-233 [AMENDED]

OAC:340:105-11-233.1 [NEW]

OAC 340:105-11-234 [AMENDED]

OAC 340:105-11-234.1 through 340:105-11-234.2 [NEW]

OAC 340:105-11-235 [AMENDED]

OAC 340:105-11-235.1 [NEW]

OAC 340:105-11-236 through 340:105-11-237 [AMENDED]

OAC 340:105-11-237.1 through 340:105-11-237.2 [NEW]

OAC 340:105-11-238 through 340:105-11-240 [AMENDED]

OAC 340:105-11-242 through 340:105-11-243 [AMENDED]

OAC 340:105-11-243.1 [NEW]

OAC 340:105-11-245 [AMENDED]

OAC 340:105-11-248 [AMENDED]

OAC 340:105-11-251 through 340:105-11-252 [AMENDED]

OAC 340:105-11-254 [REVOKED]

OAC 340:105-11-255 [AMENDED]

(Reference WF 17-01)

SUMMARY:The proposed amendments to Chapter 105 Subchapter 11 amend the rules to:(1) achieve substantial compliance with 42 Code of Federal Regulations Part §1324.1 through §1324.2; and (2) make non-substantive housekeeping changes to improve the rule clarity.

PERMANENT APPROVAL:Permanent rulemaking is requested.

LEGAL AUTHORITY:Director of Human Services, Section 162 of Title 56 of the Oklahoma Statutes (56 O.S. § 162); Section 1681b of Title 15 of the United State Code (15 U.S.C. § 1681b); 18 U.S.C. § 228; 28 U.S.C. § 1738B; 31 U.S.C. § 3716; 42 U.S.C., Chapter 7, Subchapter IV, Part D; 50A U.S.C. §§ 501 through 596; Sections 285.1 and 285.3 of Title 31 of the Code of Federal Regulations (31 C.F.R. §§ 285.1 and 285.3); 45 C.F.R., Subtitle B, Chapter III; 3A O.S. § 724.1; 10 O.S. § 83; 10A O.S. §§ 1-4-702, 7700-307, 7700-308, and 7700-312; 12 O.S. §§ 719 through 726, 842, 1171.2, and 2005; 21 O.S. §§ 566, 566.1, 567, and 852; 24 O.S. §§ 112 through 123; 36 O.S. §§ 6058A and 6059A; 43 O.S. §§ 112, 112A, 112.1A, 118 through 118I, 118.2, 119, 120, 135, 137, 139, 139.1, 140, 413, 601-100 through 601-901; 47 O.S. §§ 1-153, 6-201, 6-201.1, 6-211, and 6-212; 56 O.S. §§ 183, 230.50, and 231 through 240.23; Title 58; Title 62; 63 O.S. §§ 1-311 and 1-311.3; 68 O.S. §§ 205.2 and 205.3; 70 O.S. § 11-103; Internal Revenue Service Publication 1075; Executive Order 13019; and Section 6305 of the Internal Revenue Code of 1954.

Rule Impact Statement

To:Programs administrator

Office of Intergovernmental Relations and Policy

From: William Whited, State Long-Term Care Ombudsman

Aging Services

Date:January 3, 2017

Re:CHAPTER 105. AGING SERVICES

Subchapter 11. State Long-Term Care Ombudsman Program

Part 37. Statewide Long-Term Care Ombudsman Program

OAC 340:105-11-231 through 340:105-11-233 [AMENDED]

OAC:340:105-11-233.1 [NEW]

OAC 340:105-11-234 [AMENDED]

OAC 340:105-11-234.1 through 340:105-11-234.2 [NEW]

OAC 340:105-11-235 [AMENDED]

OAC 340:105-11-235.1 [NEW]

OAC 340:105-11-236 through 340:105-11-237 [AMENDED]

OAC 340:105-11-237.1 through 340:105-11-237.2 [NEW]

OAC 340:105-11-238 through 340:105-11-240 [AMENDED]

OAC 340:105-11-242 through 340:105-11-243 [AMENDED]

OAC 340:105-11-243.1 [NEW]

OAC 340:105-11-245 [AMENDED]

OAC 340:105-11-248 [AMENDED]

OAC 340:105-11-251 through 340:105-11-252 [AMENDED]

OAC 340:105-11-254 [REVOKED]

OAC 340:105-11-255 [AMENDED]

(Reference WF 17-01)

Contact:William Whited, Programs Manager IV, 405-522-3717

A.Brief description of the purpose of the proposed rule:

     The proposed amendments to Chapter 105 Subchapter 11 amend the rules to:  (1) achieve substantial compliance with 42 Code of Federal Regulations Part §1324.1 through §1324.2; and (2) make non-substantive housekeeping changes to improve the rule clarity.

Strategic Plan Impact.

     The proposed amendments support Oklahoma Department of Human Services (DHS) goals of helping Oklahomans lead safer, healthier, more independent and productive lives; keeping our workforce informed, supported, and engaged; meeting the needs of vulnerable Oklahomans; and cultivating a culture of continuous improvement.  These proposed rules support the Aging Services strategic plan by providing access to advocacy services for long-term care residents to achieve and maintain quality of life and quality of care.by:  (1) creating timeframes for responses to complaints; (2) improving processes for the investigation and reporting of abuse, neglect and exploitation; and (3) increasing the focus on person centered care and resident directed services.

Substantive changes.

Subchapter 11. Operational Policies

Part 37. State Long-Term Care Ombudsman Program

Oklahoma Administrative Code (OAC) 340:105-11-231 is amended to clarify, update, and add definitions that pertain to the Office of the Oklahoma Long-Term Care Ombudsman (Office).

OAC 340105-11-232 is amended per C.F.R. § 1324.13 to add language to: (1) clarify the addition of duties to DHS to monitor to the Ombudsman Program; (2) clarify Office functions; (3) clarify that the Office is a distinct entity separately-identifiable; (4) require minimum qualifications for the State Long-Term Care Ombudsman (Ombudsman); and (5) clean up general language.

OAC 340:105-11-233 is amended pursuant to C.F.R. §1324.13(c)(1)(i), C.F.R. §1324.13(c), § 1324.13(c)(4), and § 1324.13 (f) to:(1) amend language on where designated area Ombudsman staff representatives are organizationally located; (2) clarify that all the hiring of all area ombudsman staff representatives require the approval of the Ombudsman; (3) add language that requires the Ombudsman to investigate allegations of misconduct by representatives of the Office; and (4) add language that the Ombudsman determines the use of fiscal resources appropriated or otherwise available to the Office.

OAC:340:105-11-233.1 is created to pursuant with C.F.R. § 1324.11(e)(7) to:(1) establish a grievance process and timeframe by which a long-term care resident or his or her legal representative may file a grievance asking for review of the determinations of the Ombudsman or Ombudsman Representatives; and (2) establish a timeframe in which an individual or entity may request a hearing regarding the withdraw or refusal of designation by the Ombudsman per OAC:340- 105-11-234(e).

OAC 340:105-11-234 is amended to:(1) update the form used to obtain a national fingerprint and registry background check; (2) amend language to reflect that the Oklahoma State Department of Health national fingerprint program determines when a person is approved or ineligible to serve as a representative of the Office as it relates to barrier offences; and (3) clean up general language.

OAC 340:105-11-234.1 is created pursuant to C.F.R. § 1324.17 to add language to:(1) clarify that the Ombudsman retains program management over Office representatives; (2) prohibit a contract agency from having policies that are in violation of state of federal law or that prohibit representatives of the Office from performing their duties; (3) state that when a hosting agency has such policies or practices it is grounds for suspension or removal of designation.

OAC 340:105-11-234.2 is created to add language outlining the duties of individuals the Office designates as representatives.

OAC 340:105-11-235 is amended to add language that clarifies when a relationship may be construed as a conflict of interest.

OAC 340:105-11-235.1 is created to add language:(1) that prohibits organizational conflicts of interest; (2) with examples of organizational conflicts of interest; and (3) that requires organizational conflicts of interest are remedied.

OAC 340:105-11-236 is amended to reflect Directors of sponsoring agencies designated as Ombudsman entities have thirty calendar days to remedyconflicts of interest.

OAC 340:105-11-237 is amended to add language to determine when the Ombudsman may decline to investigate a complaint.

OAC 340:105-11-237.1 is created to:(1) add language that the Ombudsman may investigate a complaint that involves one or multiple residents; (2) add language to maximize resident participation; and (3) add language that requires informed consent for disclosure of information.

OAC 340:105-11-237.2 is created to:(1) add language to create a complaint response timeframe; (2) prioritize abuse, neglect, and exploitation complaints; and (3) add language that creates procedures for delayed responses.

OAC 340:105-11-238 is amended to add language that:(1) clarifies the Ombudsman's role in monitoring laws, regulation, and policies that relate to long-term care; and (2) indicates determination or positions of the Office are those of the Office and are not subject to DHS approval.

OAC 340:105-11-239 is amended to add language that clarifies to whom the Ombudsman and designated staff provide information.

OAC 340:105-11-240 is amended to add language clarifying that before a representative of the Office can investigate complaints he or she must be approved by the Ombudsman.

OAC 340:105-11-242 is amended to add language that clarifies the Health Insurance Portability and Accountability Act does not preclude a covered entity from releasing information to the ombudsman program.

OAC 340:105-11-243 is amended to add language:(1) clarifying that the files and records related to the program are managed by the Ombudsman and belong to the Office; (2) outlining the means by which the Ombudsman and representatives of the Office may obtain informed consent; and (3) that clarifies when and how the Ombudsman or representatives of the Office report suspected abuse, neglect, or exploitation.

OAC 340:105-11-243.1 is created to add language that:(1) clarifies when and how the Ombudsman or representatives of the Office address and disclose witnessed abuse, neglect, or exploitation; and (2) creates a timeframe in which the Ombudsman will make a decision to grant approval for the disclosure of confidential information.

OAC 340:105-11-245 is amended to add language that states an Ombudsman volunteer returning to services within one year of withdraw of designation is not required to complete the initial 12 hours of introductory education but must complete another national fingerprint background check.

OAC 340:105-11-248 is amended to reflect a change from using the word certified to the word designated and other clean up language.

OAC 340:105-11-251 amended to add language that states an individual who has not been cleared through the nation fingerprint background check program cannot serve as a designated ombudsman.

OAC 340:105-11-252 amended to add language that:(1) prohibits a designated Ombudsman from serving as a guardian or in other fiduciary or surrogate decision-making capacity for a resident in a long-term care facility; (2) prohibits a designated ombudsman from investigating complaints in which an immediate family member resides; (3) clarifies conflicts of interest that prohibit the hiring or designation of an individual who applied for an ombudsman position; and (4) requires that any identified conflicts of interest are remedied.

OAC 340:105-11-254 revoked because the language in this Section was added as Instruction to Staff in Section OAC 340:105-11-237.1

OAC 340:105-11-255 is amended to add language:(1) requiring ninety hoursof introductory training for new ombudsman staff and twelve hours for volunteers; (2) requiring training in adult abuse, neglect, and exploitation investigations for new ombudsman staff; (3) that requires testing to determine how a new ombudsman staff understands the curriculum; and (4) to require a visitation practicum with all new ombudsman volunteers.

Reasons.

Chapter 105 Subchapter 11:The proposed revisions:(1) maintain funding by bringing Long-Term Care Ombudsman Program policy into substantial compliance with the recent Implementation of 42 Code of Federal Regulations Part §1324.1 through §1324.21; (2) amend policy to provide improved customer service; (3) provide additional clarification and guidance to staff; (4) amend policy to create complaint processing procedures, Instructions to Staff, and timeframes for responding to complaints; (5) add policy to implement procedures for the reporting of witnessed abuse of a long-term care resident; (6) create policy to outline the responsibility of the duties of hosting agencies and representatives of the Office; (7) create policy to screen for organizational conflicts of interest; and (8) clarify and update language and legal authorities.

Repercussions.

Chapter 105 Subchapter 11:The proposed rules are designed to contribute to the health, safety, and wellbeing of residents of long-term care facilities that are entitled to advocacy services and promote improved quality of life and quality of care by:(1) increasing program efficiency; (2) improving customer service; and (3) providing clear and accurate guidance to staff to ensure consistency in policy application.

Failure to adopt these rules may:(1) cause a determination by the Administration on Aging of non-compliance with the C.F.R. resulting in the loss of Older Americans Act funds for the State of Oklahoma; (2) create hardships on long-term care residents by negatively impacting the services the Office provides; and (3) result in unnecessary expenditures of state funds to provide support for older Oklahoman's that could otherwise be provided by federal funds.

Legal authority.

Director of Human Services, Section 162 of Title 56 of the Oklahoma Statutes (56 O.S. § 162); Section 1681b of Title 15 of the United State Code (15 U.S.C. § 1681b); 18 U.S.C. § 228; 28 U.S.C. § 1738B; 31 U.S.C. § 3716; 42 U.S.C., Chapter 7, Subchapter IV, Part D; 50A U.S.C. §§ 501 through 596; Sections 285.1 and 285.3 of Title 31 of the Code of Federal Regulations (31 C.F.R. §§ 285.1 and 285.3); 45 C.F.R., Subtitle B, Chapter III; 3A O.S. § 724.1; 10 O.S. § 83; 10A O.S. §§ 1-4-702, 7700-307, 7700-308, and 7700-312; 12 O.S. §§ 719 through 726, 842, 1171.2, and 2005; 21 O.S. §§ 566, 566.1, 567, and 852; 24 O.S. §§ 112 through 123; 36 O.S. §§ 6058A and 6059A; 43 O.S. §§ 112, 112A, 112.1A, 118 through 118I, 118.2, 119, 120, 135, 137, 139, 139.1, 140, 413, 601-100 through 601-901; 47 O.S. §§ 1-153, 6-201, 6-201.1, 6-211, and 6-212; 56 O.S. §§ 183, 230.50, and 231 through 240.23; Title 58; Title 62; 63 O.S. §§ 1-311 and 1-311.3; 68 O.S. §§ 205.2 and 205.3; 70 O.S. § 11-103; Internal Revenue Service Publication 1075; Executive Order 13019; and Section 6305 of the Internal Revenue Code of 1954.

Permanent rulemaking approval is requested.

B.A description of the classes of persons who most likely will be affected by the proposed rule, including classes that will bear the costs of the proposed rule, and any information on cost impacts received by the Agency from any private or public entities:The classes of persons most likely to be affected by the proposed rules are residents of long-term care facilities, families of the residents, DHS staff, courts, and Area Agencies on Aging.The affected classes of persons will bear no costs associated with implementation of the rules.

C.A description of the classes of persons who will benefit from the proposed rule:The classes of persons who will benefit are long-term care residents, their families, DHS staff, Area Agencies on Aging, courts, and taxpayers.

D.A description of the probable economic impact of the proposed rule upon the affected classes of persons or political subdivisions, including a listing of all fee changes and, whenever possible, a separate justification for each fee change:There is no negative economic impact to implement the rules.Failure to achieve substantial compliance with the C.F.R. will have a negative economic impact on the State of Oklahoma, DHS, and Area Agencies on Aging through the potential loss of Older Americans Act funding

E.The probable costs and benefits to the Agency and to any other agency of the implementation and enforcement of the proposed rule, the source of revenue to be used for implementation and enforcement of the proposed rule and any anticipated effect on state revenues, including a projected net loss or gain in such revenues if it can be projected by the Agency:The probable cost to DHS includes the cost of printing and distributing the rules and training materials estimated to be under $500 and is within the current budget and requires no additional funding.These proposals do not increase any agency's duties or need for additional full-time employee (FTE).

F.A determination whether implementation of the proposed rule will have an impact on any political subdivisions or require their cooperation in implementing or enforcing the rule:The proposed rules do not have an economic impact on any political subdivision, nor will the cooperation of any political subdivisions be required in implementation or enforcement of the rules.

G.A determination whether implementation of the proposed rule will have an adverse economic effect on small business as provided by the Oklahoma Small Business Regulatory Flexibility Act:There are no anticipated adverse effects on small business as provided by the Oklahoma Small Business Regulatory Flexibility Act.

H.An explanation of the measures the Agency has taken to minimize compliance costs and a determination whether there are less costly or nonregulatory methods or less intrusive methods for achieving the purpose of the proposed rule:These proposed rules are intended to minimize compliance costs and intrusive regulations while fully complying with state and federal mandates.There are no less costly or intrusive methods to achieve full compliance.

I.A determination of the effect of the proposed rule on the public health, safety, and environment and, if the proposed rule is designed to reduce significant risks to the public health, safety, and environment, an explanation of the nature of the risk and to what extent the proposed rule will reduce the risk:These proposed rules are intended to comply with federal Older Americans Act mandates, increase program effectiveness, and improve services delivered to residents of long-term care facilities, thereby contributing to the their health, safety, and wellbeing.

J.A determination of any detrimental effect on the public health, safety, and environment if the proposed rule is not implemented:Failure to adopt these rules could cause hardships on long-term care residents by negatively impacting the services the Office provides and result in unnecessary expenditures of public funds to provide advocacy for residents that could otherwise be provided by Ombudsman.

K.The date the rule impact statement was prepared and, if modified, the date modified:Prepared: January 6, 201; modified August 15, 2016; modified January 3, 2017.

SUBCHAPTER 11. STATE LONG-TERM CARE OMBUDSMAN PROGRAM

PART 37. STATEWIDE LONG-TERM CARE OMBUDSMAN PROGRAM

340:105-11-231. Definitions

Revised 5-13-029-15-17

The following words and terms when used in this Part,Subchapter shall have the following meaning unless the context clearly indicates otherwise:

"Assistant Secretary" means the Assistant Secretary for Aging; the administrative head of the Administration on Aging of the United States Department of Health and Human Services.

"Business day" means a consecutive eight-hour period of time when the Office of the State Long-Term Care Ombudsman (Office) is open for business.

"Certification" means the official designation of a volunteer representative of the Office of the State Long-Term Care Ombudsman.

"Confidential information" means all information whichthat relates to specific individuals who live in long-term care facilities, complainants, and other informants including, but not limited to, names, other identifying information, and all problem and complaint documentation.

"Deputy state long-term care ombudsman" or "deputy ombudsman" an individual employed by the Office to assist with management and operations and supervised by the State Long-Term Care Ombudsman (Ombudsman).

"Designated entity" means an agency, not-for profit business, or organization that the Ombudsman has designated in writing to host Office representatives.

"Designation" means the appointment of an agency, an individual, or both, as the official Office representative of the Office of the State Long-Term Care Ombudsman (Office), according to the policies of the Office.

"Immediate family" means a member of the household or a relative with whom there is a close personal or significant financial relationship.

"Leave of absence" means an ombudsman volunteer's excused absence from official duties of an ombudsman volunteer, not to exceed three months.

"Long-term care facility" means any nursing facility, specialized facility, residential care home, or assisted living center as defined by Oklahoma State Statute in this definitionper Sections 1-820, 1-890.2, and 1-1902 of Title 63 of the Oklahoma Statutes (O.S. 63 §§ 1-820, 1-890.2, and 1-1902).

(A) "Nursing facility" means a home, an establishment, or an institution a distinct part thereof which is primarily engaged in providing:

(i) skilled nursing care and related services for residents who require medical or nursing care;

(ii) rehabilitation services for the rehabilitation of injured, disabled, or sick persons; or

(iii) on a regular basis, health-related care and services to individuals who because of their mental or physical conditionconditions require care and services beyond the level of care provided by a residential care home which can be made available to them only through a nursing facilityper 63 O.S. § 1-1902(9).[63 O.S. § 1-1902(9)]

(B) "Residential care home" means any establishment or institution other than an adult companion home, a group home, hotel, motel, fraternity or sorority house, or college or university dormitory whichthat offers, provides, or supports residential accommodations, food service, and supportive assistance to any of its residents,; or houses any resident requiring supportive assistance who areis not related to the owner or administrator of the home by blood or marriage.The residents shallresident must be ambulatory and essentially capable of participating in theirhis or her own activities of daily living, shalland not routinely requirerequiring nursing services per 63 O.S. § 1-820.12.[63 O.S. § 1-820.12]

(C) "Specialized facility" means any home, establishment, or institution whichthat offers or provides inpatient long-term care services on a 24-hour basis to a limited category of persons requiring such services, including, but not limited to, a facility providing health or habilitation services for persons who have mental retardationare living with intellectual or developmental disabilities per 63 O.S. § 1-1902(11). [63 O.S. § 1-1902(11)]

(D) "Assisted living center" means any home or establishment offering, coordinating, or providing services to two or more persons who:

(i) are domiciled therein;

(ii) are unrelated to the operator;

(iii) by choice or because of functional impairments, need assistance with personal care or nursing supervision;

(iv) may need intermittent or unscheduled nursing care;

(v) may need medication assistance; and/or

(vi) may need assistance with transfer, ambulation, or both per 63 O.S. § 1-890.2.[63 O.S. § 1‑890.1.1]

"Long-term care ombudsman" means a person who receives and resolves complaints made by or on behalf of older residents of long-term care facilities, and who has beenis trained and designated as an official representative ofby the Office of the State Long-Term Care Ombudsman.

"Office of the State Long-Term Care Ombudsman (Office)" referred to hereinafter as the "Office" means the office created within the Oklahoma Department of Human Services (DHS)which,that carries out the Long-Term Care Ombudsman Program per the Older Americans Act (OAA) of 1965, as Amended, and per federal regulations under the auspices and general direction of the state long-term care ombudsman, carries out the Long-Term Care Ombudsman Program in accordance with the Older Americans Act (OAA) of 1965, as amended, and in accordance with federal regulations.

"Planning and Service Area (PSA)" means a geographic area specified by the State Agency underDHS per Section 305(a)(1)(E) of the Older Americans Act (OAA) of 1965, as Amended for purposes of planning for and serving the needs of individuals aged 60 years of age and above.

"Representative" means the state long-term care ombudsman and any state, area, or local long-term care ombudsman designated by the state long-term care ombudsman, whether paid or unpaidthe employee or volunteer designated by the Ombudsman to fulfill duties per Oklahoma Administrative Code (OAC) 340:105-11-234, whether personnel supervision is provided by the Ombudsman or designees or by an agency hosting a local ombudsman entity designated by the Ombudsman per OAC 340:105-11-234.

"Resident representative" means:

(A) an individual chosen by the resident to act on his or her behalf in order to support the resident in decision-making; accessing the resident's:

(i) medical, social or other personal information;

(ii) managing financial matters; or

(iii) receiving notifications;

(B) a person authorized by state or federal law including, but not limited to, agents under power of attorney, representative payees, and other fiduciaries to act on the resident's behalf in order to support him or her in:

(i) decision-making;

(ii) accessing the resident's medical, social, or other personal information; and/or

(iii) managing financial matters; or receiving notifications;

(C) a legal representative as used in Section 712 of the OAA; or

(D) the resident's court-appointed guardian or conservator. This definition is not intended to expand the authority of any resident representative beyond that specifically authorized by the resident, state or federal law, or a court of competent jurisdiction.

"State long-term care ombudsman or "Ombudsman" means the individual employed by the Department of Human Services to be the chief administrative officer of the Office of the State Long-Term Care Ombudsmanwho heads the Office and is personally responsible or responsible through Office representatives to fulfill the functions, responsibilities, and duties per OAC 340:105-11-232 and 340:105-11-233.

"State Long-Term Care Ombudsman Program" or "Program" means the program carried out and consisting of the Ombudsman, Office, and Office representatives.

"Willful interference" means actions or inactions taken by an individual in an attempt to intentionally prevent, interfere with, or attempt to impede the Ombudsman or Office representative from performing any program functions or responsibilities per O.S. 63 § 1-2215 or duties per OAC 340:105-11.

340:105-11-232. Duties andOklahoma Department of Human Services (DHS) Office of the State Long-Term Care Ombudsmanresponsibilities of the State Agency

Revised 5-13-029-15-17

(a) The State AgencyDHS Office of the State Long-Term Care Ombudsman (Office) establishes and operates a statewide Long-Term Care Ombudsman Program consistent with the requirements of the Older Americans Act and the Oklahoma Long-Term Care Ombudsman Act requirements.The State Agency, throughDHS provides monitoring including, but not limited to, fiscal monitoring where the Office and/or local ombudsman entity is organizationally located within, under contract, or by other arrangement.DHS monitors and ensures the State Long-Term Care Ombudsman (Ombudsman) is the head of a unified statewide State Long-Term Care OmbudsmanProgram (Program).With DHS assistance, the Office of the State Long-Term Care Ombudsman (Office):

(1) identifies, investigates, and resolves complaints made by, or on behalf of, residents of long-term care facilities that relate to action, inaction, or decisions of providers, or representatives of providers of long-term care services provider representatives, public agencies, or health and social services agencies that may adversely affect the health, safety, welfare, or residents' rights of the residents, including the welfare and rights of residents with respect to the appointment and activities of guardians and representative payees;

(2) informs residents about obtaining services provided by the Program;

(3) ensures residents have regular and timely access to the services provided through the Program;

(4) ensures residents and complainants receive timely responses from Office representatives on information and complaint requests;

(5) represents residents' interests before governmental agencies;

(6) ensures individual residents have access to and can pursue, as the Ombudsman determines necessary and consistent with resident interests, administrative, legal, and other remedies to protect the resident's health, safety, and welfare;

(7) provides administrative and technical assistance to Office representatives and agencies hosting local ombudsman entities;

(2)(8) analyzes, comments on, and monitors 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 resident's rights with respect to long-term care facilities and services in the state,.and recommends any changes in such laws, regulations, and policies deemed by the Office to be appropriate;The Office:

(A) recommends changes in such laws, regulations, policies, and actions as appropriate;

(B) facilitates public comment on the laws, regulations, policies, and actions; and

(C) provides leadership to statewide systems advocacy efforts on behalf of long-term care facility residents including coordination of systems advocacy efforts carried out by Office representatives;

(3)(9) provides information to public and private agencies, legislators, the media, and others, as deemed necessary by the Office, regarding the problems and concerns,of individuals residing in long-term care facilities including recommendations related to such problems and concerns, of older individuals residing in long-term care facilities.Such determinations and positions are those of the Office and do not necessarily represent DHS determinations or positions;

(10) when carrying out systems advocacy efforts on behalf of long-term care facility residents and pursuant to the receipt of grant funds under the Older Americans Act, the provision of information, recommendations of changes in law to legislators, and recommendations of changes in regulations and policies to government agencies by the Ombudsman or Office representatives does not constitute lobbying activities per Part 93 of Title 45 of the Code of Federal Regulations;

(11) coordinates with and promotes the development of citizen organizations consistent with the residents' interests;

(12) promotes and provides technical support for the development of ongoing support requested by residents and family councils to protect the residents' well-being and rights;

(4)(13) provides training for staff and volunteers and promotes the development of citizen organizations to participate in the Ombudsman Program;

(5)(14) carries out other activities consistent with the requirements of this Part which the Assistant Secretary for Aging determines appropriate;

(6)(15) establishes procedures for appropriate access by the ombudsmanOmbudsman and designated representatives to long-term care facilities, appropriate private access to residents, and appropriate access to residents' personal and medical records;

(7)(16) establishes procedures to protect the confidentiality of records and ensures that the identity of any complainant or resident or complainant is not disclosed without consent of such complainant or residentthe resident's or complainant's consent, or upon court order;

(8)(17) establishes a statewide uniform reporting system to collect and analyze information on complaints and conditions in long-term care facilities, for the purpose of identifying and resolving significant problems.The state long-term careombudsmanOmbudsman must submit this information to the state agency of the state responsible for licensing or certifying long-term care facilities in the state and to the Assistant Secretary for Aging in the manner prescribed by the Assistant Secretary;

(9)(18)preparesindependently develops and provides final approval of an annual report describing the activities carried out by the Office in the year for which the report is prepared.containingThe annual report:

(A) contains data and findings regarding the types of problems experienced and complaints made by or on behalf of individuals residing in long-term care facilities, and;

(B) provides policy, regulatory, and legislative recommendations to solve such problems, resolve suchand complaints, andto improve the quality of care and life in long-term care facilities;

(C) includes analysis of the Program's success and success in providing services to residents of long-term care facilities;

(D) describes barriers that prevent optimal Program operation;

(E)is available to the public and is submitted to:

(i) the Assistant Secretary for Aging;

(ii) the state chief executive officer;

(iii) the state legislature;

(iv) the state agency responsible for licensing or certifying long-term care facilities; and

(v) other appropriate governmental entities;

(10)(19) ensures that no officer, employee, or otherdesignated representative of the Office is subject to a conflict of interest; and

(11)(20) plans and operates the Ombudsman Program, considering the stakeholders' views of Area Agencies on Aging, older individuals and provider agencies.

(b) The State AgencyDHS ensures that:

(1) the Office is a distinct entity, separately identifiable, and located within or connected to DHS;

(2) the Ombudsman serves on a full-time basis.Oklahoma Administrative Code 340:105-11 constitutes the entirety of the ombudsman's work that provides Office leadership and management, functions, responsibilities, and duties;

(3) the Office and its representatives are not required or requested to be responsible for leading, managing, or performing the work of non-ombudsman services or programs except on a time-limited, intermittent basis;

(1)(4)no individualindividuals involved in the designation of the long-term careombudsmanOmbudsman, whether by appointment or otherwise, or the designation of the head of any subdivision of the Office isare not subject to a conflictconflicts of interest;

(2)(5) mechanisms are in place to identify and remedy any conflicts, such as conflicts of interest or other similar conflicts;

(3)(6) adequate legal counsel, free from conflict of interest is available to the Office for advice and consultation.and thatlegal representation is provided to any representative of the Office representatives against whom suit or other legal action is brought in connection with the performance of such representative's official duties; and

(4)(7) the Office has the ability to pursue administrative, legal, and other appropriate remedies on behalf of residents of long-term care facilitiesfacility residents.;

(8) the Ombudsman meets minimum qualifications that include, but are not limited to, demonstrated expertise in:

(A) long-term services and supports or other direct services for older persons or individuals with disabilities;

(B) consumer-oriented public policy advocacy;

(C) leadership and program management skills; and

(D) negotiation and problem resolution skills;

(9) the Ombudsman has authority to recommend policies and procedures.DHS policies and practices do not prohibit the Ombudsman from performing functions and responsibilities per federal law and rules;

(10) entities hosting a local ombudsman must not have personnel policies or practices that prohibit Office representatives from performing Program duties or from adhering to federal or state laws and rules;

(11) the Ombudsman monitors the performance of local entities designated to carry out Program duties;

(12) processes are in place by which the agencies hosting local ombudsman entities coordinate with the Ombudsman in the employment or appointment of Office representatives;

(13) standards are in place to prioritize abuse, neglect, exploitation, and time-sensitive complaints and consider the severity of the risk to the resident, the imminence of the threat of harm to the resident, and the opportunity for mitigating harm to the resident through Program services; and

(14) procedures are in place clarifying appropriate fiscal responsibilities of the local ombudsman entity including, but not limited to, clarifications regarding access to programmatic fiscal information by appropriate Office representatives.

340:105-11-233. Policies and procedures specific to the Office of the State Long-Term Care Ombudsman policies and procedures

Revised 7-15-069-15-17

In accordance with Per the Older Americans Act of 1965, as Amended, the Office of the State Long-Term Care Ombudsman (Office) is established within the State AgencyOklahoma Department of Human Services (DHS) to carry out a statewide Long-Term Care Ombudsman Program that is(Program) under theDHS direct supervision and administration of the State Agency.

(1) The Office staff consists of the state long-term care ombudsman State Long-Term Care Ombudsman (Ombudsman) and adequate program and support staff.

(2) Specific staffing requirements for each area Long-Term Care Ombudsman Program are set in accordance with normal State AgencyDHS administrative and funding procedures.

(3) The area entity designated to provide ombudsman services must provide an adequate allocation of funds to operate the local program.Costs incurred include, but are not limited to:

(A) reimbursement of ombudsman supervisors' and ombudsman volunteers' travel costs of the ombudsman supervisor and ombudsman volunteers, including travel to and from their assigned facilities and required meetings;

(B) identification badges; and

(C) other incidental costs related to trainings and meetings, including awards and certificates.

(4) The designatedDesignated area ombudsman staff representatives are housed within the Area Agency on Aging, whenever possibleorganizationally-located within public or non-profit private entities.

(5) Selection of area ombudsman staff representatives is made by the director of the designated area ombudsman entity, with input and recommendations from stateOmbudsman staff during the interview process, and subject to State Agency Ombudsman approval.

(A) For the purpose of review of qualifications, criminal background checks, and conflict of interest issues, the Office shall havehas access to applications, resumes, and other personnel information related to applicants for and incumbents in area ombudsman staff positions.

(B) State ombudsmanOmbudsman staff areis involved at theirthe Ombudsman's discretion in applicant interviews of applicants for area ombudsman staff positions as members of an interviewing team.Upon conclusion of the interview process, there is opportunity for discussion and recommendations.

(C) Merit hiring standards are adhered to throughout the hiring process, pursuanttoper Part 900 of Title 5 of the United States Code and other valid procedures agreed to by the interview team.

(D) Employment of area ombudsman staff is probationary pending the person's individual's satisfactory training completion of training prescribed by the state long-term care ombudsman and designation as described in this Part.

(6)The Ombudsman investigates allegations of misconduct by Office representatives in the performance of Program duties and, as applicable, coordinates investigations with DHS, the agency hosting the local ombudsman entity, and/or the local ombudsman entity.

(7) The Ombudsman determines the use of the fiscal resources appropriated or otherwise available to operate the Office.The Ombudsman approves the allocations of federal and state funds provided to such entities, subject to applicable federal and state laws and policies.The Ombudsman determines Program budgets and expenditures and those local ombudsman entities are compliant with laws, policies, and procedures governing the Program.

340:105-11-233.1 Grievance process

Issued 9-15-17

The Office of the State Long-Term Care Ombudsman (Office) per Part 1327.11 of Title 42 of the Code of Federal Regulations establishes a grievance process for the receipt and review of grievances regarding the determinations or actions of the State Long-Term Care Ombudsman (Ombudsman) and Office representatives.

(1) Long-term care residents or legal representatives of residents who lack capacity to provide informed consent may ask the Ombudsman to review and reconsider complaint findings of designated representatives by submitting a request in writing or verbally to the Ombudsman or deputy ombudsman within 30-calendar days of the completion of an investigation.The Ombudsman or deputy ombudsman:

(A) completes a record review within 30-calendar days of the formal request;

(B) determines if the representative followed complaint processes per Oklahoma Administrative Code (OAC) 340:105-11-237 and 340:105-11-237.1;

(C) places notation in the case record of his or her findings, initiates any needed action for resolution, and completes any warranted changes to the case documentation; and

(D) provides a copy of the findings to the resident or the resident's legal representative.

(2) When any grievance is related to the refusal or withdraw of designation by the ombudsman entity or staff representative, the resident or the resident's legal representative has a right to request a hearing within 10-calendar days of the written notice per OAC 340:105-11-234(e).

340:105-11-234. Designation of area programs and area representatives including staff and volunteers

Revised 6-1-079-15-17

(a) The Office of the State Long-Term Care Ombudsman (Office) officially designates agencies serving as area or local subdivisions of the Office through an annual designation process, in accordance with State Agencyper Oklahoma Department of Human Services (DHS) administrative funding procedures.

(1) StaffArea program staff and volunteer representatives of the Office are officially designated in writing by the state long-term care ombudsmanState Long-Term Care Ombudsman (Ombudsman).

(2) Designation as aan Office representative of the Office:

(A) for an area staff person is based on the person meeting criteria necessary to satisfactory performance in the position for,satisfactory performance including, but not limited to, the person:

(i) isbeing free from any conflict of interest as defined by this policyrule and in compliance with federal and state statutestatutes; and does not stand to gain financially through an action or potential action brought on behalf of the residents the ombudsmanhe or she serves;

(ii) meetsmeeting minimum Office job qualifications and screening standards set by the Office; and

(iii) satisfactorily completescompleting training prescribed by the state long-term care ombudsmanOmbudsman; and

(B) foras an ombudsman volunteer is accomplished through a certificationdesignation process, and is based on the personindividual meeting criteria necessary to satisfactory performance in the position, including, but not limited to, the person:

(i) isbeing free from any conflict of interest as required by statute and defined by this Part and he or she does not stand to gain financially through an action or potential action brought on behalf of residents the ombudsman serves;

(ii) meets screening criteria set in this Part;

(iii) satisfactorily completes training prescribed by the state long-term care ombudsmanOmbudsman; and

(iv) completes and signs:

(I) Form 02OM003E, Ombudsman Volunteer Application, agreeing to accept supervision and follow theProgram rules and guidelines of the program; and

(II) 04AD003E, Request forthe Registry and criminal history record check consent and release form for the Oklahoma National Fingerprint Background Check Program, authorizing the Office to conduct a criminalnational fingerprint background checkand registry checks.

(b) The state long-term care ombudsmanOmbudsman has the authority to refuse to designate:

(1) a personan individual, staff or volunteer, as aan Office representative of the Office for any reasonable cause related to satisfactoryunsatisfactory performance in the position, including, but not limited to:

(A) an unresolved or unresolvable conflict of interest;

(B) failure to satisfactorily complete training; and

(C) failure to meet screening standards for volunteers and staff, including criminala national fingerprint background and registry check, or minimum job qualifications for area staff representatives; and

(2) an agencyentity as a subdivision of the Office for any reasonable cause that prevents satisfactory operation of the State Long-Term Care Ombudsman Program (Program), including, but not limited to:

(A) an unresolved or unresolvable conflict of interest;

(B) failure to provide adequate assurances that programProgram guidelines can be met; and

(C) failure to provide assurances that the programProgram can be adequately funded.

(c) The state long-term care ombudsmanOmbudsman has the authority to withdraw designation as:

(1) a subdivision of the Office from an agencya designated entity when there is:

(A) an unresolved or unresolvable conflict of interest;

(B) a breach of the confidentiality requirement caused by the action of any staff person of the agency designated entity as a local subdivision of the Office, or of that agency'sdesignated entity's sponsoring agency;

(C) failure to adhere to theOffice policies of the Office, federalFederal Administration on Aging regulations, federal or state or federal law; or

(D) any other unreasonable or prejudicial conduct substantially affecting the State Long-Term Care Ombudsman Program; and

(2) aan Office representative of the Office from a staff person or volunteer when there is:

(A) an unresolved or unresolvable conflict of interest;

(B) breach of the confidentiality requirement;

(C) failure to adhere to theOffice policies of the Office or federal or state or federal law;

(D) failure to accept program supervision from the Office; or

(E) conviction of a crime listed in Section 1-1950.1 of Title 63 of the Oklahoma Statutes or listing on the Mary Rippy Violent Offender Registrywhen the prospective representative is determined to be ineligible by the Oklahoma State Department of Health National Fingerprint Background Check Program.

(d) The state long-term care ombudsmanOmbudsman may also withdraw certificationdesignation of an ombudsman volunteer when the ombudsmanhe or she:

(1) fails to file monthly reports with the ombudsman supervisor for three consecutive months, unless on an approved leave of absence;

(2) fails to attend three consecutive monthly meetings, unless on an approved leave of absence;

(3) fails to initiate resident visitation of residents in assigned facility within two months after certificationdesignation;

(4) misuses the "ombudsman volunteer" title or badge; or

(5) without specific authorization by the Ombudsman, represents himself or herself, either verbally or by wearing a badge, as an ombudsman for a facility for which the volunteer is not certified, without specific authorization by state ombudsman staffdesignated.

(e) An agency that is refused designation or from which designation is withdrawn as an Area Long-Term Care Ombudsman Programdesignated entity or a personan individual refused designation or from whom designation is withdrawn as an area ombudsman staff representative may appeal the decision.

(1) Designation is not withdrawn until reasonable notice and opportunity for a hearing is provided.

(2) Notification of the right to appeal and the appeal procedures are included in the letter notifying the agency or staff person of a decision to refuse or withdraw designation.

(3) A request for hearing must be submitted within 10-calendar days of the receipt of the letter of notification of the decision to refuse or withdraw designation.

(3)(4) Hearings are conducted by the DHS Appeals Unit of the Oklahoma Department of Human Services.

(5) The Ombudsman has authority to suspend a designated ombudsman entity or staff representative from engaging in any and all Program duties pending the conclusion of a hearing.

(6) In a case where findings of the hearing officer are contrary to federal law or rules, as determined by the Ombudsman, the Ombudsman retains the authority to refuse or withdraw designation regardless of the findings of the hearing officer.

340:105-11-234.1. Responsibilities of agencies hosting local ombudsman representatives

Issued 9-15-17

(a) The designated entity in which a local Office of the State Long-Term Care Ombudsman (Office) Program (Program) is organizationally-located is responsible for the personnel management, but not programmatic oversight of Office representatives including employees and volunteer representatives.

(b) The designated entity in which a local program is organizationally located does not have personnel policies or practices that prohibit Office representatives from performing the duties or from adhering to the access, confidentiality, and disclosure requirements of federal and state laws and regulations.

(1) Host agencies may not have policies, procedures, or practices including personnel management practices that the State Long-Term Care Ombudsman (Ombudsman) determines conflictive with the laws or policies governing the Program.

(2) Any policy, procedure, or practice the Ombudsman determines to be in violation of federal or state laws and regulations is sufficient grounds for the refusal, suspension, or removal of the designation of local ombudsman entity by the Ombudsman.

(3) Nothing in this provision prohibits the host agency from requiring that Office representatives adhere to the personnel policies and procedures of the agency that are otherwise lawful.

340:105-11-234.2 Duties of representatives of the Office of the State Long-Term Care Ombudsman (Office)

Issued 9-15-17

The State Long-Term Care Ombudsman (Ombudsman) may designate an entity as a local ombudsman entity and may designate an employee or volunteer of the local ombudsman entity as an Office representative.Office representatives may also be designated employees or volunteers within the Office.An individual designated as an Office representative per Oklahoma Department of Human Services (DHS) and Office policies and procedures:

(1) identifies, investigates, and resolves complaints made by or on behalf of residents that relate to action, inaction, or decisions that may adversely affect the health, safety, welfare, or rights of the residents;

(2) provides assistance to protect the health, safety, welfare, and rights of residents;

(3) ensures residents in the local ombudsman entity service area have regular and timely access to the services provided through the State Long-Term Care Ombudsman Program and that residents and complainants receive timely responses to requests for information and complaints;

(4) represents the interests of residents before government agencies and ensures individual residents have access to and pursue, as the representative determines necessary and consistent with resident interest, administrative, legal, and other remedies to protect the health, safety, welfare, and rights of the residents;

(5) reviews, and when necessary, comments on any existing and proposed laws, regulations, and other government policies and actions pertaining to residents' rights and well-being;

(6) facilitates public comment on the laws, regulations, policies, and actions;

(7) promotes and provides technical support for development and ongoing support when requested by resident and family councils; and

(8) carries out other activities the Ombudsman determines to be appropriate.

340:105-11-235. Conflict of interest

Revised 6-1-079-15-17

(a) An officer, employee, volunteer, or other representative of the Office of the State Long-Term Care Ombudsman (Office) may not be subject to a conflict of interest that has the potential to impair the ability of said person to carry out his or her official duties in an impartial manner and may not stand to gain financially through an action or potential action brought on behalf of persons the ombudsmanState Long-Term Care Ombudsman Program (Program) serves.

(b) A conflict of interest exists when any organizational or supervisory relationship, policy, or action, or individual ombudsmanombudsman's personal relationship, immediate familial relationship, or action conflicts with or impairs the ability of an ombudsman to carry out his or her responsibilities to investigate, resolve, or refer complaints or otherwise advocate for long-term care facility residents.

(c) No persons involved in the designation of the state long-term care ombudsmanState Long-Term Care Ombudsman (Ombudsman), whether by appointment or otherwise, or the designation of the head of any subdivision of the Officedesignated entity may be subject to a conflict of interest.

(d) Freedom from conflict of interest is established through interview of prospective state long-term care ombudsmanOmbudsman staff and volunteers, and through a signed statement in a form prescribed by the Office and other appropriate means.

(e) Persons listed in this paragraph must complete and sign Form 02OM001E, Conflict of Interest Statement and Ethical Guidelines, annually, and when there is any change of facility or area assignment by:

(1) prospective and current ombudsmanOffice staff;

(2) prospective and current ombudsman volunteers; and

(3) any other person involved in the direct operation of the State Long-Term Care Ombudsman Program.

(f) Agencies must annually review Form 02OM002E, Freedom from Conflict of Interest Assurances, which must be signed annually by:

(1) directors of agencies designated entities, or those seeking designation, as a local ombudsman entityentities; and

(2) directors of sponsoring agencies.

340:105-11-235.1 Organizational conflict of interest

Issued 9-1-17

(a) The Oklahoma Department of Human Services (DHS) and the Office of the State Long-Term Care Ombudsman (Office) State Long-Term Care Ombudsman (Ombudsman) 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 Office representative 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 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 that 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 for residents of long-term care facilities regarding Medicaid or other public benefits;

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

(11) makes admission or discharge decisions for 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.

(b) Removing or remedying organizational conflicts.DHS and the Ombudsman identify and take steps to remove or remedy conflicts of interest between the Office and DHS or another entity carrying out the Ombudsman Program (Program).

(1) The Ombudsman identifies organizational conflicts of interest in the Program and describes steps taken to remove or remedy conflicts within the annual report submitted to the Assistant Secretary for Aging through the National Ombudsman Reporting System.

(2) When the Office is located within or otherwise organizationally-connected to DHS, DHS:

(A) takes reasonable steps to avoid internal conflicts of interest;

(B) reviews and identify internal conflicts;

(C) takes steps to remove or remedy conflicts;

(D) ensures that no individual, or member of the immediate family of an individual, involved in the designating, appointing, otherwise selecting or terminating the Ombudsman is subject to a conflict of interest; and

(E) ensures the Ombudsman disclosed such conflicts and described steps taken to remove or remedy conflicts within the annual report submitted to the Assistant Secretary for Aging through the National Ombudsman Reporting System.

(3) When DHS is unable to adequately remove or remedy a conflict, the Program is carried out by contract or other arrangement with a public agency or nonprofit private organization, per Section 712(4)(a) of the Older Americans Act, as Amended.

(4) DHS may not enter into a contract or other arrangement to carry out the Program or operate the Office when the other entity:

(A) is responsible for licensing, surveying, or certifying long-term care facilities;

(B) 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; or

(C) has any ownership, operational, or investment interest, represented by equity, debt, or other financial relationship in a long-term care facility.

340:105-11-236. Remedies in conflictConflict of interest situationsremedies

Revised 5-13-029-15-17

(a) Volunteers.IfWhen a conflict of interest is identified before certificationdesignation, the volunteer is not certified in any facility in which the conflict of interest could be expected to affect performance.IfWhen a conflict of interest or potential conflict of interest involving a certified volunteer is identified, the ombudsman supervisor promptly notifies the Office of the State Long-Term Care Ombudsman (Office) to recommend decertification orwithdrawal of designation, reassignment of the volunteer, or other appropriate action.

(b) Ombudsman staffPaid ombudsman representatives.No applicant for a long-term carepaid ombudsman staff position, at any level of the program, is selected to fill that position ifwhen a conflict of interest is identified during any stage of the application or hiring process.IfWhen a conflict of interest or potential conflict of interest is identified involving a staffdesignated representative of the Office, action must be taken to remedy the conflict within 30-calendar days.Remedies may range from elimination of the conflict to withdrawal of the individual's designation of the individual as a representative of the Office.

(c) Directors of sponsoring agencies and agencies designated as ombudsman entityentities.IfWhen a conflict of interest or potential conflict of interest is identified involving the director of a sponsoring agency or the director of an agency designated as a subdivision of the Office, action must be taken to remedy the conflict of interest within 30-calendar days.Remedies may include:

(1) removal or resolution of the conflict of interest;

(2) withdrawal of the agency's designation as an area ombudsman entity;

(3) withdrawal of designation of the agency as an Area Agency on Aging; or

(4) other reasonable action.

340:105-11-237. Complaint investigation

Revised 5-13-029-15-17

The State Long-Term Care Ombudsman Program (Program) complaint mechanism functions at all levels with procedures for receipt, investigation, and resolution of problems and complaints.

(1) The Office of the State Long-Term Care Ombudsman (Office) staff:

(A) receive complaints from all sources, including referrals from enforcement agencies and complaints from area ombudsman programs;

(B) refer complaints to area ombudsman supervisors when appropriate;

(C) investigate complaints directly or with ombudsman supervisors;

(D) refer unresolved formal complaints to a regulatory or law enforcement agency, when appropriate;

(E) assist other agencies in complaint resolution of complaints; and

(F) follow-up on complaint resolution and closure; and

(G) may decline to investigate any complaint when:

(i) the complaint is frivolous or not made in good faith;

(ii) the complaint was made so long after the incident that it is no longer reasonable to conduct an investigation;

(iii) an adequate investigation cannot be conducted because of insufficient funds, insufficient staff, lack of staff expertise, or any other reasonable factor that would result in an inadequate investigation despite a good faith effort; or

(iv) an investigation by the Office would create a real or apparent conflict of interest.

(2) Area ombudsman supervisors:

(A) receive complaints from all sources;

(B) investigate complaints through on-site, unannounced visits to the facility or refer the complaints to ombudsman volunteers to resolve;

(C) resolve complaints or refer the complaint in writing to state long-term care ombudsmanState Long-Term Care Ombudsman (Ombudsman) staff when correction cannot be achieved at the area level, or when a regulatory or law enforcement agency's assistance is needed; and

(D) follow-up on conditions identified through the complaint process.

(3) Ombudsman volunteers:

(A) receive complaints and learn of problems from all sources;

(B) investigate complaints through unannounced on-site, unannounced, routine weekly visitation to the assigned facility or refer complaints to an ombudsman supervisor to investigatefor investigation;

(C) resolve problems or complaints within the facility or refer to an ombudsman supervisor to resolvefor resolution; and

(D) follow-up on conditions through routine, weekly visitation with residents in the assigned facility.

340:105-11-237.1 Complaint processing¢ 1

Issued 9-15-17

(a) Regardless of the source of the complaint the Office of the State Long-Term Care Ombudsman (Office), State Long-Term Care Ombudsman (Ombudsman), and Office representatives serve long-term care facility residents to identify, investigate, and resolve complaints.The Ombudsman or Office representative investigates complaints including, but not limited to, abuse, neglect, or exploitation for the purposes of resolving the complaint to the resident's satisfaction and to protect the resident's health, safety, welfare, and rights.The Ombudsman or Office representative may identify, investigate, and resolve a complaint impacting multiple or all facility residents.

(b) Regardless of the source of the complaint, including when the source is the Ombudsman or Office representative, the Ombudsman or Office representative must support and maximize resident participation in the complaint resolution process.

(1) The Ombudsman or Office representative must offer the resident privacy for confidentially purposes, when providing information and hearing, investigating, and resolving complaints.

(2) The Ombudsman or Office representative must discuss the complaint with the resident and resident representative when the resident is unable to communicate informed consent, to:

(A) determine his or her perspective;

(B) request informed consent to investigate the complaint;

(C) determine the resident's or his or her representative's perspective on complaint resolution including if the allegations are reported and, when so, if the Ombudsman or Office representative releases resident identifying information or other relevant information to the facility and/or appropriate agencies.Such report and disclosure is consistent with (b)(3) of this Section;

(D) advise the resident and resident representative of the resident's rights, when applicable;

(E) work with the resident or resident representative to develop a plan of action to resolve the complaint, when applicable;

(F) investigate the complaint to determine if the complaint can be verified; and

(G) determine if the complaint is resolved to the resident's or resident representative's satisfaction.

(3) When the resident is unable to communicate and does not have a representative to provide informed consent the Ombudsman or Office representative:

(A) takes appropriate steps to investigate and works to resolve the complaint in order to protect the resident's health, safety, welfare, and rights; and

(B) determines if the complaint was resolved to the complainant's satisfaction.

(4) To determine whether to rely on a resident representative to communicate or make determinations on the resident's behalf for complaint processing, the Ombudsman or Office representative ascertains the extent of the authority granted to the resident's representative under court order, by power of attorney, or other document the resident used to grant authority to the representative.

(c) The Ombudsman or Office representative may provide information regarding the complaint to another agency in order to substantiate the facts for regulatory, protective services, law enforcement, or other purposes so long as the Ombudsman or Office representative adheres to the disclosure requirements per Oklahoma Administrative Code 340:105-11-243.When the resident or resident representative:

(1) seeks regulatory, protective services, or law enforcement action and the Ombudsman or Office representative determines the resident or resident representative communicated informed consent to the Office, the Office assists the resident or resident's representative contact the appropriate agency and/or discloses the resident or resident's representative consent for such purposes; and

(2) is served by disclosing information to a facility representative and/or referrals to an entity other than those referenced in (c)(1) of this Section and the Ombudsman or Office representative determines the resident or resident representative communicated informed consent to the State Long-Term Care Ombudsman Program (Program), the Ombudsman or Office representative may:

(A) assist the resident or resident representative contact the appropriate facility representative or the entity;

(B) provide information on how a resident or representative may obtain a facility or entity contact information; and/or

(C) disclose the information the resident or resident's representative provided consent for to an appropriate facility representative or entity, consistent with Ombudsman Program procedures.

INSTRUCTIONS TO STAFF 340:105-11-237.1

Issued 9-15-17

1.On receipt of a complaint the designated representative:

(A) encourages the complainant to discuss the matter with appropriate person(s) within the facility or with Oklahoma Department of Human Services staff.Complainants are encouraged to act for themselves when possible.

(B) If the complainant utilized the facility process to no avail, does not perceive facility staff to be responsive, or is fearful of taking direct action, the designated representative opens a case, and:

(i) reviews the complaint with the resident, seeks consent, and identifies and prioritizes issues;

(ii) evaluates the complaint for urgency and complaint timeframe response;

(iii) acquires written consent for release of information, when appropriate;

(iv) completes journal entries in the case record of interviews, meetings, contacts, and requests for information;

(v) contacts the parties involved to get all of the facts; the complainant's or resident's identity is not revealed without consent;

(vi) identifies and reviews all federal and state regulations pertinent to the complaint;

(vii) develops a strategy for resolution with the resident.When referral is necessary, the designated representative contacts the Office of the State Long-Term Care Ombudsman (Office) or deputy ombudsman;

(viii) anticipates barriers, involves appropriate personnel, and seeks technical assistance from the Office as needed;

(ix) implements strategy for resolution; and

(x) follows up to verify that resolution, corrections, or both, occurred and that there is no retaliation against the complainant or resident.

(C) Activities undertaken in complaint resolution may include:

(i) negotiating with a facility to change a particular long-term care facility behavior, pattern, or practice affecting the resident;

(ii) educating a resident, relative, or long-term care facility staff to resolve a problem;

(iii) affecting appropriate enforcement action by a regulatory agency; and

(iv) proposing and advocating regulatory or statutory changes or additions; and

(D) advises the complainant or resident about his or her right to pursue legal action.

340:105-11-237.2. Complaint investigation timeframes

Issued 9-15-17

(a) All complaints investigated by a designated ombudsman require a face-to-face visit with the resident the complaint involves.The time frames for the initial attempt at a face-to-face visit must occur within five business days of the receipt of the complaint unless:

(1) the complaint includes an allegation of abuse, neglect, or exploitation; then the time frame for initial face-to-face contact with resident occurs within three business days; or

(2) the complaint involves an actual or threatened discharge from a facility, the time frame for initial face-to-face contact with resident is no later than the last day the resident has a right to appeal the discharge or within five business days, whichever comes first.

(b) there is no time frame for the determination of the final disposition of a complaint but it is determined when the ombudsman has enough evidence to complete the investigation.

(c) In rare instances weather, illness, or other unforeseen, serious circumstances may delay on-site investigation.When a delay occurs, the ombudsman representative consults with and seeks consent from the State Long-Term Care Ombudsman or deputy ombudsman to:

(1) initiate a phone response.

(A) Contact with the resident and/or the complainant is attempted.

(B) Resolution of the complaint may be sought, in accordance with the resident's wishes, through phone calls to persons that may be able to resolve or mitigate the situation, such as the facility administrator, facility staff, or another agency;

(2) complete comprehensive documentation regarding the cause(s) for delay and the response to the complaint in:

(A) hard copy case notes, when used;

(B) electronic documentation, such as a journal entry titled, "Delayed Response" documenting the:

(i) follow-up date;

(II) delaying factor(s); and

(iii) steps taken to resolve the complaint;

(3) an on-site visit follow-up with the resident is required even when the complaint was resolved by phone.The follow-up visit occurs immediately following the unforeseen circumstance; and

(4) complete the follow-up visit with comprehensive documentation in:

(A) hard copy case notes, when used; or

(B) electronic documentation, such as a journal entry titled, "Delayed Response" documenting the;

(i) follow-up date;

(ii) any remaining issues or additional complaints to be resolved; and

(iii) resident's satisfaction with the resolution.

340:105-11-238. MonitoringSystems Advocacy, monitoring laws, regulations, and policies

Revised 5-13-029-15-17

The Office of the State Long-Term Care Ombudsman (Office) is required and authorized to:

(1) analyze, comment on, and monitor the development and implementation of federal, state, and local laws, regulations, and other government policies and actions that pertain to long-term care facilities and services;

(2) monitor the health, safety, welfare, and rights of residents; and

(3) recommend changes in such laws, regulations, and policies as the Office determines appropriate.

(a) Office of the State Long-Term Care Ombudsman staff:

(1) acquire and share with area programs, citizen organizations, and individuals copies of proposed and enacted laws, regulations, and policies whichthat may affect older long-term care facility residents;

(2) give testimony and written comments as appropriate and assist others to learn of comment opportunities to comment;

(3) attend or conduct public hearings;

(4) request comments from area ombudsman staff; and

(5) investigate complaints and take other action as necessary to monitor the development and implementation of laws, rules, and policies.

(b) Area ombudsman staff:

(1) review proposed and enacted laws, regulations, and policies whichthat may affect older long-term care facility residents in the planning and service area (PSA), as provided by state long-term care ombudsmanOffice staff;

(2) give testimony and written comments, and attend or conduct public hearings, as appropriate;

(3) investigate complaints; and

(4) communicate concerns identified through the above activities to state long-term care ombudsmanOffice staff.

(c) The Office makes determinations and establishes positions of the Office independently.Those determinations or positions may or may not represent the determinations or positions of the Oklahoma Department of Human Services (DHS) and are not subject to approval by DHS.

340:105-11-239. Provision of information

Revised 5-13-029-15-17

The Office of the State Long-Term Care Ombudsman (Office), State Long-Term Care Ombudsman (Ombudsman), and designated staff provide information to public and private agencies, legislators, the media, and other persons regarding the problems and concerns of residents and recommendations related to the problems and concerns.The provision of information includes, but is not limited to:

(a) Office of the State Long-Term Care Ombudsman staff:

(1) developdeveloping administrative and legislative proposals as needed, relating to significant problems of residents in long-term care facilities, based on complaint investigation data and other sources;

(2) developdeveloping working relationships with state legislators and policy makers in order to inject concerns of long-term care facility residents directly into the policy making process;

(3) provideproviding information on conditions affecting and the needs of long-term care facility residents, upon request, to individuals, agencies, organizations, and others; and

(4) meetmeeting at least quarterly with the State Council on Aging's Advisory Committee for the State Long-Term Care Ombudsman Program (Program) to discuss programProgram operation, issues affecting the population served by the programProgram, and strategies to address identified concerns.

(b) Area ombudsman staff provide:

(1) information to individuals, agencies, committees, and organizations concerning the general problems and issues affecting residents in long-term care facilities; and

(2) community education on needs and issues affecting long-term care facility residents through publicity including monthly press releases, public speaking, and other means.

340:105-11-240. Training

Revised 6-1-079-15-17

The Office of the State Long-Term Care Ombudsman (Office) prohibits investigation of any complaint by an ombudsmanOffice staff person or an ombudsman volunteer, unless the person has satisfactorily completed training required by the Office, and has beenis approved by the State Long-Term Care Ombudsman (Ombudsman) as qualified to investigate such complaints.

(1) Office staff:

(A) orients and trains ombudsman staff representatives and determines satisfactory completion of prescribed training;

(B) develops and periodically updates training core curriculum for use in training ombudsman staff and volunteers;

(C) assists area ombudsman staff in the training oftrain ombudsman volunteers, upon request;

(D) provides, on a quarterly basis, a minimum of 40 hours of continuing education and training to ombudsman supervisors per year;

(E) provides community education in coordination with area staff;

(F) officially certifies newly-trained, ombudsman volunteers who meetmet screening criteria; and

(G) assists in the development of citizen organizations to participate in the State Long-Term Care Ombudsman Program.

(2) Area ombudsman staff representatives:

(A) holds public workshops for community education and volunteer recruitment;

(B) trains ombudsman volunteer applicants using the Office-prescribed core training format developed by the Office staff;

(C) submits to Office staff the name,and facility assignment, and the original signed Form 02OM003E, Ombudsman Volunteer Application, of each trained volunteer recommended for certification designation;

(D) accompanies each newly-certified ombudsman volunteer on at least one introductory visit to the assigned facility to reinforce training and ensure the ombudsman volunteer's understanding of the ombudsman role; and

(E) holds monthly meetings for continued training and supervision of certifieddesignated ombudsman volunteers to annually achieve a minimum of 18 hours per volunteer of continuing education relevant to the care of older persons and persons with disabilities.

340:105-11-242. Access

Revised 5-13-029-15-17

(a) Access to facilities and residents.The Office of the State Long-Term Care Ombudsman (Office) procedures for access to long-term care facilities and facility residents are set in Sections 1-829-F, 1-1902, 1-1919, and 1-2213-D,of Title 63 of the Oklahoma State Statutes.A stateAn Office or local ombudsman, as that term is defined by Oklahoma Department of Human Services Aging Services Division of the Department of Human Services, is authorized to enter any homefacility licensed pursuant toper the Oklahoma Nursing Home Care Act, the Oklahoma Residential Care Act, and the Continuum of Care and Assisted Living Act to communicate privately and without unreasonable restriction with any resident who consents to the communication, to seek consent to communicate, and to observe all areas of the facility that directly pertain to the care of the resident, without infringing upon the privacy of other residents without their consent.

(1) Area ombudsman staff and trained, certifieddesignated ombudsman volunteers have the same right of access to licensed long-term care facilities and residents as state ombudsmanOffice staff.

(2) Any ombudsman staff or volunteer asked to leave the premises of any licensed facility for any reason does so, and immediately reports the incident to the State Ombudsman Office.

(b) Access to resident's records.The state long-term care ombudsmanState Long-Term Care Ombudsman (Ombudsman) and staff representatives of the Office staff have access to:

(1) review the resident's medical and social records of a resident ifwhen the:

(A) theOffice representative of the Office has the resident's or the resident's legal representative's permission of the resident, or the legal representative of the resident; or

(B) the resident is unable to consent to the review,and has no legal representative, and the Office representative of the Office obtains theOmbudsman approval of the state long-term care ombudsman;

(2) the records as is necessary to investigate a complaint ifwhen:

(A) a resident's legal guardian of the resident refuses to give the permission;

(B) aan Office representative of the Office has reasonable cause to believe that the guardian is not acting in the resident's best interests of the resident; and

(C) the representative obtains theOmbudsman approval of the state long-term care ombudsman;

(3) the administrative records, policies, and documents, of long-term care facilities, to which the residents or the general public have access; and

(4) copies of all licensing and certification records maintained by the Oklahoma State Department of Health or any otherstate agency of Oklahoma with respect to long-term care facilities.Ombudsman volunteers do not have access to the medical record or social record of a resident.The volunteer ombudsman must refer problems requiring review of records to the ombudsman supervisormust obtain a resident's legal representative's, ombudsman supervisor's, Ombudsman's, or deputy ombudsman's consent before accessing medical or social records of a resident who does not have the capacity to grant informed consent.

(5) The Health Insurance Portability and Accountability Act of 1996 (HIPAA) Privacy Rule,Part 160 of Title 45 of the Code of Federal Regulations (C.F.R.) and 45 C.F.R. Part 164 Subparts A and E does not preclude release by covered entities of resident private health information or other resident identifying information to the State Long-Term Care Ombudsman Program including, but not limited to, residents' medical, social, or other records, a list of resident names and room numbers, or information collected in the course of a federal or state survey or inspection process.

340:105-11-243. ConfidentialityRecords, confidentiality, and disclosure

Revised 5-13-029-15-17

The Office of the Long-Term Care Ombudsman (Office) manages the Office State Long-Term Care Ombudsman Program (Program) files, records, and information, in physical, electronic, or other formats including information maintained by Office representatives and local ombudsman entities pertaining to Program cases and activities.Such files, records, and information are the property of the Office.StateOffice and area ombudsman staff,and ombudsman volunteers, and designated agencies uphold policies listed in this subsectionSection.

(1) No complaint,or other confidential information, or records maintained by the Ombudsman Program may be disclosed unless the state ombudsmanState Long-Term Care Ombudsman (Ombudsman)authorizes the disclosure.

(2) The ombudsmanOmbudsman or ombudsman representative shalldoes not disclose the identity of any complainant or resident unless the complainant or resident, or his or her legal representative consents:

(A) the complainant or resident, or legal representativeof either, consents in writing to the disclosure and specifies to whom the identity may be disclosed;

(B) the complainant or resident, or legal representative consents orallyverbally and the ombudsmanOmbudsman documents the consent at the time the consent is given; or through the use of auxiliary aids and services communication of informed consent may be made:

(i) in writing; or

(ii) verbally or visually; and

(iii) such consent must be documented contemporaneously by the Ombudsman or Office representative; or

(C) a court orders the disclosure.

(3) In accordance with federal law and regulation, the Ombudsman and Office representatives do not report suspected abuse, neglect, or exploitation of a resident when a resident has not communicated informed consent to such report.Except the Ombudsman or Office representative may refer confidential information and disclose resident-identifying information to the appropriate agency or agencies for regulatory oversight; protective services; access to administrative, legal, or other remedies; and/or law enforcement action when the circumstances in (4) of this Section are met.

(4) When a resident is unable to communicate his or her informed consent to the Ombudsman or Office representative, the Office may rely on the resident's designated representative's consent, so long as the Ombudsman or Office representative does not have reasonable cause to believe the resident representative is not acting in the resident's best interests or is the alleged perpetrator of the abuse, neglect, or exploitation.

(3)(5) Inspection dates provided to the Ombudsman Program at any level, including Health DepartmentOklahoma State Department of Health inspections, are confidential under federal and state statuteper Section 1395i-3(g)(5)(B) of Title 42 of the United States Code (U.S.C.).

(A) Inspection dates and dates of other unannounced visits to facilities, including visits for the purpose of complaint investigation, shallare not be posted or otherwise revealed.

(B) Federal law provides for a $2,000 penalty for release of inspection dates.State law also provides for fine, imprisonment, or both per 42 U. S. C. § 1395i-3(g)(2 (A) (1) and Section 488.307 of Title 42 of the Code of Federal Regulations.

(4)(6) Privacy shall beis provided for receipt of complaintscomplaint receipts by mail, telephonephone, or personal interview, in order to maintain confidentiality.

(5)(7) All mail addressed to an ombudsman by name or title shall beis delivered unopened to the ombudsman unopened.

(6)(8) Locked files shall beare used to maintain confidential records.Access to such files is limited to designated area ombudsman representatives and Office staff of the Office of the State Long-Term Care Ombudsman.

340:105-11-243.1 Procedures related to the disclosure of witnessed abuse, neglect, or exploitation

Issued 9-15-17

(a) When the Office of the State Long-Term Care Ombudsman (Office) State Long-Term Care Ombudsman (Ombudsman) or Office representative (representative) personally witnesses suspected abuse, gross neglect, or exploitation of a resident, the Ombudsman or representative seeks communication of informed consent from such resident to disclose resident-identifying information to appropriate agencies.

(1) When the resident is able to communicate informed consent or has a resident representative available to provide informed consent, the Ombudsman or representative follows the resident's or resident representative's direction.

(2) When the resident is unable to communicate informed consent and has no resident representative available to provide informed consent, the Ombudsman or representative opens a case with the Ombudsman or representative as the complainant, follows the Office's program complaint resolution procedures, refers the matter, and discloses the resident's identifying information to facility management where the resident resides and/or to the appropriate agency or agencies for substantiation of abuse, gross neglect, or exploitation in the following circumstances the:

(A) Ombudsman or representative has no evidence indicating the resident would not want a referral to be made;

(B) Ombudsman or representative has reasonable cause to believe disclosure is in the resident's best interest; and

(C) representative obtains Ombudsman or deputy ombudsman approval.

(3) In addition, the Ombudsman or representative, following Office policies and procedures per Oklahoma Administrative Code 340:105-11-243 (3) (i) - (vi) may report suspected abuse, gross neglect, or exploitation to other appropriate agencies for regulatory oversight; protective services; access to administrative, legal, or other remedies; and/or law enforcement action.

(4) The decision to grant or deny Ombudsman or deputy ombudsman approval for confidential information disclosure related to abuse, neglect, or exploitation is made and conveyed to the requesting ombudsman in one business day.

340:105-11-245. Facility visitation

Revised 6-1-079-15-17

(a) TheDesignated area entity ombudsman staff makes periodic visits to all long-term care facilities in the area covered by the designated area ombudsman entity to ensure State Long-Term Care Ombudsman Program (Program) services are made available to the residents.

(1) Residents of each facility are visited a minimum of four times each fiscal year.

(A) Visits made by appointment, including in-service training for facility staff, are not counted toward the ombudsman staff's four visits per year.

(B) When the ombudsman visits residents as a citizen observer in inspections by theduring Oklahoma State Department of Health (OSDH) inspections, the visit may be counted.

(C) Visits made to resolve complaints are counted ifwhen multiple residents are visited as a part of this function.

(2) Visits are documented on forms approved by the Office of the State Long-Term Care Ombudsman (Office) approved forms and are protected according to the program'sProgram confidentiality requirements.Visits are:

(A) unannounced and the dates are kept confidential; and

(B) not posted or revealed to any person other than the director of the Area Agency on Aging director, designated as the area ombudsman entity who must likewise safeguardsafeguards them.

(3) The area ombudsmanState Long-Term Care Ombudsman (Ombudsman) staff:

(A) accompanies each newly-certifieddesignated ombudsman volunteer to the volunteer's assigned facility, by appointment, for an introductory visit to:

(A)(i) introduce the volunteer to the facility administrator, residents, and facility; and

(B)(ii) explain or clarify the role of the ombudsman volunteer role.;

(4) The area ombudsman staff

(B) conducts at least one supervisory visit with each certifieddesignated ombudsman volunteer toat his or her assigned facility each yearannually to:

(A)(i) assess skills, relationships, and understanding of appropriate role; and/or

(B)(ii) assist the volunteer with a complaint or other problem; orand

(C) do both (A) and (B).

(5) The area ombudsman staff

(C) offers and conducts in-service training for staff of long-term care facilities on residents' rights, elder abuse prevention, and other topics of importance to residents.

(b) The certifieddesignated ombudsman volunteer visits residents in his or her assigned facility, at least two hours per week, for the purpose of assisting the to assist residents to resolve or prevent problems or complaints.Each visit is documented.

(1) No volunteerVolunteers may not officially begin his or her visitation and other duties in a facility as a certifieddesignated ombudsman volunteer until he or she:

(A) receives written notice of certificationdesignation from the Office; and

(B) is accompanied by ombudsmanOffice staff on an introductory visit to the assigned facility.

(2) A volunteer who is temporarily unable to fulfill visitation or other program responsibilities, may request or be placed on leave of absence.As defined in this Part, leave of absence may be granted due to:

(A) ill health of volunteerillness or volunteer's family illness;

(B) vacation or extended travel; or

(C) othera reason approved by the ombudsman supervisor.

(3) Leave of absence must not exceed three months duration.IfWhen the volunteer is unable to resume official duties by the end of the three-month period, the area supervisor notifies the Office and the volunteer's certificationdesignation is withdrawn.

(4) The volunteer may request voluntary decertificationdesignation withdrawal from the State Long-Term Care Ombudsman Program at any time and be re-certified at a later date if all otherdesignated again when requirements are met.

(5) A volunteer that returns to service within one year of withdrawal of designation is not required to complete the initial two-day volunteer training but must be screened for potential conflicts of interests and complete the OSDH National Fingerprint Background Check.

(c) Ombudsman participation as a citizen observer in unannounced inspections by the Oklahoma State Department of HealthOSDH is allowed by the Oklahoma Nursing Home Care Act, the Oklahoma Residential Care Act, and the Federal Nursing Home Reform Act.

(1) OmbudsmanOffice staff and certifieddesignated ombudsman volunteers may participate.

(2) Inspection schedule information is kept in a locked file and access is restricted to ombudsmanOffice staff.

(3) The location of the inspection is shared by state ombudsmanOffice staff only with the area ombudsman supervisor.

(4) The ombudsman facility volunteer for that facility may be notified, but notification is made no earlier than the inspection date of the inspection.

(5) Early notification to a facility is strictly prohibited.Penalties are set in state and federal statutes for violations that result in early notification to a facility notifications per Section 1395i-3(g)(2) (A) (1) of the United States Code and Section 488.307 of Title 42 of the Code of Federal Regulations.

(d) UponWhen entering a facility for a visit, ombudsmanOffice staff and volunteers notify the administrator or other charge person of their presence.If noa charge person is not located, any staff person may be notified.This requirement is not intended to delay an ombudsman from proceeding promptly with a complaint investigation or resident visitation.

340:105-11-248. Ombudsman volunteer rules and guidelines

Revised 6-1-079-15-17

The certifieddesignated ombudsman volunteer observes the requirements of the State Long-Term Care Ombudsman (Ombudsman) State Long-Term Care Ombudsman Program (Program).The ombudsman volunteer:

(1) completes and signs FormForms:

(A) 02OM003E, Ombudsman Volunteer Application;

(B) 02OM001E, Conflict of Interest Statement and Ethical Guidelines,; and

(C) 04AD003E, Request for Background Check;

(2) completes the two-day ombudsman volunteer training program to be certifieddesignated by the State Long-Term Care Ombudsman Program staff;

(3) accepts supervision by the ombudsman supervisor;

(4) respects privacy and confidentiality.

(A) The volunteer does not disclose information regarding any complainants or participant's name, condition, or situation, except to the ombudsman supervisor or the state ombudsmanState Long-Term Care Ombudsman (Office) staff, without the written permission of the complainant, participant, or legal representative.

(B) Supervisory approval is secured before any information is released;

(5) visits weekly with residents in the assigned facility;

(6) attends monthly ombudsman volunteer meetings for continuing education, program updates, and group supervision;

(7) submits monthly reports to the ombudsman supervisor;

(8) wears the badge issued by the Area Agency on Aging designated entity ombudsman supervisor when visiting the facility or attending functions as an ombudsman volunteer;

(9) is available to the facility residents of the facility in which volunteering, to hearhears their concerns, and to assistassists them with, and follow throughfollows-up on problem-solving;

(10) meets with the facility administrator to establish and maintain a cooperative working relationship;

(11) is familiar with thefacility policies and procedures the facility established for its operation;

(12) is certifieddesignated as an ombudsman volunteer, limited to the facility named in the certificationdesignation letter, unless authorized in advance by the Office of the State Long-Term Care Ombudsman;

(13) is clear in understanding the ombudsman volunteer role of advocate on behalf of the residents; and

(14) does not perform direct care services, such as lifting, feeding, or transporting residents.

340:105-11-251. Screening criteria for ombudsman ¢ 1

Revised 7-15-069-15-17

(a) Criteria for subjective screening of potential ombudsman staff and volunteers, areis reviewed in addition to standard education and work experience questions.

(b) Persons who are not eligible for ombudsman volunteer certificationdesignation include any personindividual who:

(1) was firedterminated from employment in a facility where he or she wisheswants to volunteer and any relative of a fired employee;

(2) is a relative of ana current employee of the facility where he or she wisheswants to volunteer;

(3) lacks the ability to be objective or hold confidences;

(4) is a current employee or has any financial interest in a facility in whichwhere he or she wisheswants to volunteer.The person may volunteer in another facility with the stipulation that, if the chosen facility is a competitive facility, acceptance must be made by the administrator of the facility the volunteer chooseslocated in a separate planning and services area;

(5) is a paid sitter, private duty nurse, or private duty aide in the facility where the person wisheswants to volunteer.If a competitive facility is chosen, the placement is accepted by the chosen facility;

(6) is involved in a pending law suit against a facility, until the legal process is completed and acceptance of the person as a volunteer is made by the selected facility administrator of the selected facility;

(7) stands to gain financially through an action or potential action brought on behalf of persons the ombudsmanState Long-Term Care Ombudsman Program serves; andor

(8) was convicted of a crime listed in Section 1-1950.1 of Title 63 of the Oklahoma Statutes or whose name appears on the Sex Offender Registry or the Mary Rippy Violent Offender Registrywas determined to be ineligible by the Oklahoma State Department of Health National Fingerprint Background Check Program.

INSTRUCTIONS TO STAFF 340:105-11-251

Issued 9-15-17

1.Subjective screening criteria include:

(A) maturity;

(B) personal stability;

(C) willingness to learn and accept supervision;

(D) assertiveness;

(E) warmth and empathy for others;

(F) reasonable self-confidence and ego health;

(G) commitment to the amount and length of time required because the client is his or her primary responsibility;

(H) dependability;

(I) objectivity;

(J) interests and hobbies;

(K) volunteer experience;

(L) education;

(M) reasons for becoming an ombudsman; and

(N) transportation.Dependable transportation is required.

340:105-11-252. Conflict of interest statement and ethical guidelines

Revised 6-1-079-15-17

(a) The Older Americans Act of 1965, as amendedAmended, requires assurances that there are no conflicts of interest within the State Long-Term Care Ombudsman Program.Mechanisms to identify and remedy any conflicts are mandated. OmbudsmanState Long-Term Care (Office) staff and volunteers study the rules in this Section and sign Form 02OM001E, Conflict of Interest Statement and Ethical Guidelines, ifwhen able to provide the assurances and meet the ethical guidelines.The designated ombudsman:

(1) and any member of the ombudsman's immediate family may not own, operate, control, or have interest, voting rights, or outstanding indebtedness to or be employed by any company or facility or person investigated by the ombudsman;

(2) may not solicit or accept from any person or organization, directly or indirectly, money or anything of value if it could reasonably be expected to influence the ombudsman's official actions or judgment or could reasonably be considered a reward for any official action or omission on the part of the ombudsman;

(3) who is assigned or acts as an official representative of his or her agencya designated entity in the presentation of papers, talks, demonstrations, or making appearances does not solicit or accept fees, honoraria, or reimbursement of expenses for personal gain.Any fees or honoraria offered in connection with these activities are paid to the agencydesignated entity;

(4) is alert to anything that impairs ability to objectively investigate complaints.The ombudsman avoids conflict of interest in the establishment of personal relationships that affect impartiality on the job;

(5) may be involved in serving as an officer or board member of a social, fraternal, or religious organization for which the ombudsman receives no compensation or anything of value, provided the organization is not affected by exercise of the ombudsman's discretion;

(6) may not use or disclose information gained in the course of, or by reason of, the ombudsman's official position or activities in any way without the express consent of the resident or complainant;

(7) discloses all past and current appointments, involvement, membership, or interest that affect or could reasonably be expected to affect the ombudsman's ability to investigate and resolve complaints in an objective and independent manner;

(8) may not effectively recommend or decide to hire or promote another person who is a member of the ombudsman's immediate family;

(9) may not give preferential or favorable treatment in provision of service to a resident who is a member of the ombudsman's family; and

(10) may not serve as guardian, conservator, or in another fiduciary or surrogate decision-making capacity for a resident of a long-term care facility where he or she is assigned or investigates complaints;

(11) may not be assigned, investigate complaints, or serve residents of a facility in where his or her immediate family member resides; and

(l0)(12) may not conduct business in restaurants or other public places where a public observer might reasonably conclude that confidences could be breached due to lack of privacy.

(b) In no circumstance will the Oklahoma Department of Human Services or a local ombudsman entity appoint or employ an individual, nor will the State Long-Term Care Ombudsman designate an individual as an Office representative who:

(1) has direct involvement in the licensing or certification of a long-term care facility;

(2) has an ownership or investment interest represented by equity, debt, or other financial relationship in a long-term care facility.Divestment within a reasonable period may be considered an adequate remedy to this conflict;

(3) 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

(4) is employed by or participating in the management of a long-term care facility.

(c) Any entity that appoints or employs Office representatives make efforts to avoid appointing or employing an individual as an Office representative who was employed by or participating in the management of a long-term care facility within the previous 12 months.Where such an individual is appointed or employed, steps are taken to remedy the conflict.

340:105-11-254. Ombudsman complaint handling guidelines [REVOKED]

Upon receipt of a complaint, the ombudsman proceeds as described in this subsection.

(1) If the complainant has not done so, encourage the complainant to discuss the matter with the appropriate person(s) within the facility or agency.Complainants are encouraged to act for themselves when possible.

(2) If the complainant has utilized the facility process to no avail, or does not perceive the facility staff to be responsive, or is fearful of taking direct action, the ombudsman proceeds with investigation by:

(A) reviewing the complaint with the complainant and identifying and prioritizing issues;

(B) evaluating the complaint for urgency;

(C) acquiring written consent for release of information, if appropriate;

(D) keeping a narrative log of interviews, meetings, contacts, and requests for information;

(E) contacting parties involved to get all the facts.Identity of complainant or resident is not revealed without consent;

(F) identifying and reviewing all state and federal regulations pertinent to the complaint;

(G) developing a strategy for resolution with the complainant or resident.If referral is necessary, the ombudsman contacts his or her supervisor;

(H) anticipating barriers, involving appropriate personnel, and seeking technical assistance from the State Ombudsman Office as needed;

(I) implementing strategy for resolution; and

(J) following up to verify that resolution, or corrections, or both, have occurred and that there is no retaliation against the complainant or resident.

(3) Activities undertaken in resolution of complaints may include:

(A) negotiating with a facility to change a particular long-term care facility behavior, pattern, or practice affecting a resident;

(B) educating a resident, relative, or long-term care facility staff to resolve a problem;

(C) affecting appropriate enforcement action by a regulatory agency;

(D) proposing and advocating regulatory or statutory changes or additions; and

(E) advising the complainant or resident about the right to pursue legal action.

340:105-11-255. Office of the State Long-Term Care (Office) ombudsman staff and volunteer training

Revised 7-15-069-15-17

(a) Ombudsman Paid ombudsmanstaff training curriculum.New ombudsman staff training includes 90 hours of introductory education in:

(1) an introduction to the Long-Term Care Ombudsman Program (Program);

(2) ombudsmanProgram policies and procedures;

(3) the complaint investigation and response system;

(4) the long-term care regulatory system;

(5) residents' rights;

(6) characteristics of long-term care facilities and residents;

(7) aging processes of aging;

(8) communication skills;

(9) legal and ethical issues;

(10) a visitation practicum;

(11) mediation or negotiation skills;

(12) community resources or services;

(13) volunteer management; and

(14) reporting and record keeping.;

(15) adult abuse, neglect, and exploitation investigations; and

(16) testing to determine an understanding of the curriculum.

(b) Ombudsman volunteerVolunteer ombudsman training curriculum.Ombudsman volunteer training includes 12 hours of introductory education in:

(1) introduction to the Long-Term Care Ombudsman Program;

(2) the ombudsman volunteer role, including activities and responsibilities;

(3) problem-solving and complaint investigation;

(4) aging processes of aging;

(5) characteristics of the institutionalized older personlong-term care facilities and residents;

(6) communication and interviewing skills;

(7) Oklahoma's Nursing Home Care Act, Residential Care Act, or Assisted Living Act, as appropriate;

(8) residents' rights in long-term care facilities;

(9) the regulation of long-term care regulation;

(10) confidentiality; and

(11) reporting and record keeping.; and

(12) a visitation practicum.

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