WSR 98-19-127

PROPOSED RULES

DEPARTMENT OF COMMUNITY,

TRADE AND ECONOMIC DEVELOPMENT

[Filed September 23, 1998, 10:34 a.m.]



Original Notice.

Preproposal statement of inquiry was filed as WSR 98-11-018.

Title of Rule: Lone-term care ombudsman program, the rules are consistent with applicable changes in federal and state statutes. The rules replace chapter 388-18 WAC, the current governing rules under the administrative jurisdiction of the state's Department of Social and Health Services (DSHS).

Purpose: The rules will allow the long-term care ombudsman program to exercise all of the authority granted to it in the reauthorized Older Americans Act, and provide, per legislative directive, that the Department of Community, Trade and Economic Development (CTED) contract with a private nonprofit agency to run the program.

Statutory Authority for Adoption: RCW 43.190.030, as amended.

Statute Being Implemented: RCW 43.190.030, as amended.

Summary: The rules define contractor, subcontractor and ombudsman qualifications and duties; conflict of interest; access to residents, facilities and records; confidentiality of information and records; protection from interference; and name CTED as the administering agency.

Reasons Supporting Proposal: The 1997 legislature gave CTED the authority to adopt program rules; and CTED has determined that these rules will help better implement the state long-term care ombudsman program.

Name of Agency Personnel Responsible for Drafting, Implementation and Enforcement: Nancy Hanna, Community, Trade, and Economic Development, (360) 586-0436.

Name of Proponent: Department of Community, Trade and Economic Development.

Rule is not necessitated by federal law, federal or state court decision.

Explanation of Rule, its Purpose, and Anticipated Effects: The rule clarifies the roles of CTED and the privatized program, and reflects recent changes in the Older Americans Act. Its purpose is to implement the long-term care ombudsman program as provided for in chapter 43.190 RCW. It will provide CTED the authority it needs to administer the program, and will allow for more uniform program implementation throughout the state.

Proposal Changes the Following Existing Rules: The rules reflect that the long-term care ombudsman program is no longer administered by DSHS, but is administered by CTED; and that the program is not within DSHS but is managed by a private nonprofit agency through a contract with CTED. The rules expand the authority of the program consistent with recent changes in the Older Americans Act.

No small business economic impact statement has been prepared under chapter 19.85 RCW. CTED has determined that no costs or only minor costs will be imposed on small businesses through the implementation of these rules; therefore, a small business economic impact statement is not required.

Section 201, chapter 403, Laws of 1995, does not apply to this rule adoption. CTED is not listed in section 201 as a significant legislative rule agency.

Hearing Location: Department of General Administration Auditorium, Corner of 11th and Columbia, Main Floor, Olympia, Washington, on October 27, 1998, at 6:00 p.m. to 9:00 p.m.; and at Spokane Falls Community College, 3410 West Fort Wright Drive, Lounge C, Student Union Building #17, Spokane, on November 2, 1998, at 1:00 p.m. to 4:00 p.m.

Assistance for Persons with Disabilities: Contact Nancy Hanna by October 15, 1998, TDD (360) 753-2200 (agency information number) or (360) 586-0436.

Submit Written Comments to: Nancy Hanna, Program Manager, Long-Term Care Ombudsman Program, Department of Community, Trade and Economic Development, P.O. Box 48300, Olympia, WA 98504-8300, fax (360) 586-0489, by October 26, 1998.

Date of Intended Adoption: November 13, 1998.

September 23, 1998

Tim Douglas

Director



Chapter 365-18 WAC



Long-Term Care Ombudsman Program

Department of Community, Trade and Economic Development



NEW SECTION



WAC 365-18-010  Purpose The purpose of this chapter is to implement the long-term care ombudsman program as provided for in Chapter 43.190 RCW. The overall purpose of the ombudsman program is to promote the interests, well-being and rights of long term care facility residents.



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NEW SECTION



WAC 365-18-020  Definitions When used in this chapter, unless otherwise required by the context:

1) "Contractor" means the private non-profit organization established by contract with the Department to provide the services of the Office of the State Long-Term Care Ombudsman Program.

2) "Department" means the department of community, trade and economic development.

3) "Immediate family" pertaining to conflicts of interest, means spouse, parents, children and siblings.

4) "Long-term care facility" or "facility" is as defined in RCW 43.190.020.

5) "Long-term care services" means services provided to residents and applicants of long-term care facilities including, but not limited to, assessment, placement, case management, and determinations regarding benefits, personal care and health care, but for purposes of these regulations does not mean care or services provided in the applicant's home or outside of a long-term care facility.

6) "Non-profit" means a private corporation licensed to conduct business in Washington State and whose income is not distributable to its members, directors or officers, as defined in R.C.W. 24.03.005.

7) "Ombudsman" means the State Long-Term Care Ombudsman, Assistant State Ombudsman, Regional Ombudsman, Regional Staff Ombudsman, or Certified Volunteer Ombudsman.

8) "Resident" means any individual residing temporarily or permanently in a long-term care facility, and, when concerning complaints about admissions, readmissions, transfers or discharges, includes applicants and former residents of such facilities.

9) "Resident records" mean all medical and social records of a resident, including resident records maintained in a long-term care facility and those kept by other health care and social services providers concerning a resident, and includes death certificates and related records when these are required for the investigation of complaints.

10) "State Office" means the Office of the State Long-Term Care Ombudsman.

11) "Sub-contractor" means a public or private non-profit organization or agency established by contract with the State Office to be a Regional Long-Term Care Ombudsman Office.



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NEW SECTION



WAC 365-18-030  Contractor, subcontractor, and ombudsman qualifications (1) The Contractor shall be a non-profit private organization with demonstrated capability to carry out the responsibilities of the State Long-Term Care Ombudsman Office, including, but not limited to, an ability to receive, investigate and resolve complaints from residents of long-term care facilities statewide. Subcontractors shall be public or non-profit organizations or agencies with demonstrated capability to carry out the responsibility of the Regional Long-Term Care Ombudsman Office. The Contractor and Subcontractors shall also be free of conflicts of interest, including:

(a) not be an agency or organization that is responsible for licensing, certifying or regulating long-term care facilities;

(b) not be an association, or an affiliate of such an association, of long-term care facilities; and

(c) have no pecuniary interest in any long-term care facility.

(2) The State Ombudsman and Assistant State Ombudsman shall have demonstrated expertise and experience in the fields of long-term care and resident advocacy, and be free of conflicts of interest as defined in WAC 365-18-040.

(3) Regional Ombudsmen shall have demonstrated capability to carry out the responsibilities of their office, and be free of conflicts of interest as defined in WAC 365-18-040.

(4) Prospective assistant Regional Staff Ombudsmen and Certified Volunteer Ombudsmen shall be screened by the Regional Ombudsman, and be free of conflicts of interest as defined in WAC 365-18-040.

(5) All prospective Regional Staff Ombudsmen and Certified Volunteer Ombudsmen shall, prior to representing the ombudsman program, successfully complete the training program designated by the State Office.

(6) All prospective ombudsmen shall, prior to representing the ombudsman program, successfully pass a Criminal History Background Check as provided by RCW 43.43.842.



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NEW SECTION



WAC 365-18-040  Conflicts of interest. (1) All long-term care ombudsmen shall be free from conflicts of interests, including:

(a) no ombudsman shall be or have been employed by or participated in the management of any long-term care facility, or have or have had the right to receive remuneration from a long-term care facility, including work as a paid consultant or independent contractor, currently or within the past three years;

(b) no ombudsman or member of his or her immediate family shall have, or have had within the past three years, any pecuniary interest in a long-term care facility or a long-term care service;

(c) no ombudsman shall have a direct involvement in the licensing, certification or regulation of a long-term care facility or of a long-term care service;

(d) no ombudsman may work for or represent an agency or entity which has direct involvement in the provision or establishment of long-term care direct services, involuntary services, or involuntary commitment of residents, or which takes temporary custody of, or serves as guardians or legal representatives for residents; and

(e) no ombudsman may serve as the legal representative, surrogate health-care decisionmaker or as a witness for an advance directive (e.g., living will, durable power of attorney) for a resident in a facility where the ombudsman serves or has served; provided, however, that the ombudsman may serve in such capacity, if consistent with other applicable law, where the resident is an immediate family member of the ombudsman, and in such cases the ombudsman shall function in his or her private capacity and not as a representative of the ombudsman program.

(2) No individual, or immediate family member of such an individual, who is involved in the designation or removal of the State, Regional, Regional Staff or Certified Volunteer Ombudsmen, or the designation or revocation of the Contractor or Sub-contractors, or who administers or oversees the Contractor's or Subcontractor's contract, may be an official or employee of any agency or organization that conducts the licensing, certification or regulation of long-term care facilities, or that owns, operates or manages such facilities.



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NEW SECTION



WAC 365-18-050  Duties--Department The Department shall, consistent with federal and state laws:

1) establish procedures for designating and contracting with a qualified private, non-profit organization to provide the state long-term care ombudsman program services;

2) facilitate the exchange of information among appropriate state agencies and organizations regarding issues relating to the long-term care ombudsman program;

3) help the State Ombudsman obtain direct access to the directors and key staff of state governmental entities with responsibilities that impact residents of long-term care facilities;

4) provide other assistance to the ombudsman program as the department deems appropriate;

5) monitor program activities and the expenditure of state and federal funds under the contract with the State Office for appropriate utilization of funds and the fulfillment of state and federal laws; and

6) provide for appropriate archiving or disposal of ombudsman program materials, consistent with confidentiality provisions under this chapter and federal and state law, at the close of legally required retention periods, ensuring the confidentiality of complaint files and records.



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NEW SECTION



WAC 365-18-060  Duties--State ombudsman The State Long-Term Care Ombudsman shall serve on a full-time basis and shall personally or through the Assistant State Ombudsman perform the following duties:

(1) identify, investigate, and resolve complaints made by or on behalf of residents which relate to actions, inactions, or decisions that may adversely affect the health, safety, welfare or rights of residents, made by:

(a) providers, or representatives of providers, of long-term care or health care services;

(b) public agencies;

(c) health and social service agencies; or

(d) guardians, representative payees, holders of powers of attorneys, or other resident representatives;

(2) develop referral procedures for all long-term care ombudsman programs to refer complaints, when necessary, to any appropriate state or local government agency;

(3) offer and provide services to assist residents and their representatives in protecting the health, safety, welfare, and rights of the residents;

(4) inform the residents and their representatives about means of obtaining needed services, including but not limited to the prominent posting in every long-term care facility notices containing the name, address and telephone number of the appropriate long-term care ombudsman and, if a nursing home, the nursing home complaint toll-free number;

(5) ensure that residents and their representatives have regular and timely access to the services provided through the ombudsman program, and ensure that the residents and complainants receive timely responses from representatives of the ombudsman program;

(6) represent the interests of residents before governmental agencies and seek administrative, legal, and other remedies to protect the health, safety, welfare, and rights of the residents;

(7)(a) analyze, comment on, and monitor the development and implementation of federal, state, and local laws, regulations, and other governmental policies and actions, that pertain to the health, safety, welfare, and rights of the residents, with respect to long-term care facilities and services in the state;

(b) recommend any changes in such laws, regulations, policies, and actions as the State Office determines to be appropriate;

(c) provide such information as the State Office determines to be necessary to public and private agencies, legislators, and other persons, regarding:

(i) the problems and concerns of individuals residing in long-term care facilities; and

(ii) recommendations related to these problems and concerns; and

(d) facilitate public comment on the laws, regulations, policies, and actions;

(8)(a) establish procedures for the training and supervision of prospective Regional Ombudsmen, Regional Staff Ombudsmen and Certified Volunteer Ombudsmen;

(b) monitor and provide administrative and policy direction and technical assistance to the Regional Ombudsmen; and

(c) coordinate the activities of long-term care ombudsmen throughout the state;

(9)(a) promote the development of citizen groups to participate in the ombudsman program; and

(b) provide support for the development of resident councils and family councils to protect the well-being and rights of residents;

(10) coordinate ombudsman services with the protection and advocacy systems for individuals with developmental disabilities and mental illness, and with legal services funded under Title III of the Older Americans Act, through the development of memoranda of understanding and other means;

(11) prepare an annual report:

(a) describing the activities carried out by the ombudsman program in the prior year;

(b) evaluating the problems experienced by, and the complaints made by or on behalf of, residents;

(c) containing recommendations for:

(i) improving quality of the care and life of the residents; and

(ii) protecting the health, safety, welfare, and rights of the residents;

(d)(i) analyzing the success and needs of the ombudsman program, including the success or gaps in providing services to residents of long-term care facilities; and

(ii) identifying barriers that prevent the optimal operation of the ombudsman program;

(e) providing policy, regulatory, and legislative recommendations to solve identified problems, to resolve the complaints, to improve the quality of care and life of residents, to protect the health, safety, welfare, and rights of residents, and to remove the barriers; and

(f) make available to the federal Commissioner on Aging, the Governor, the Washington State Legislature, the Department of Social and Health Services, the Department of Health, the Department of Community, Trade and Economic Development, and other appropriate governmental entities and interested members of the public, the annual report described in this subsection.

(12) The State Ombudsman may designate public or private non-profit organizations as subcontractors to provide regional long-term care ombudsman services throughout the state. The State Ombudsman shall designate and certify, in his or her judgment, an employee of the organization to be the Regional Ombudsman. The State Ombudsman has the authority to revoke, when good cause is shown, the designation of the organization or the designation and certification of the individual.

(13) The State Ombudsman may designate qualified individuals as Certified Volunteer Ombudsmen representing the ombudsman program. Such individuals shall receive a certificate and picture identification card from the State Office signed by the State Ombudsman. The State Ombudsman has the authority to revoke, when good cause is shown, this certification.



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NEW SECTION



WAC 365-18-070  Duties--Regional and regional staff ombudsmen Regional and Regional Staff Ombudsman shall, in accordance with the policies and procedures established by the State Office, have the following duties:

(1) offer and provide services to protect the health, safety, welfare and rights of residents;

(2) ensure that residents and their representatives in the service area of the organization have regular, timely access to representatives of the ombudsman program and timely responses to complaints and requests for assistance;

(3) identify, investigate, and resolve complaints made by or on behalf of residents that relate to actions, inactions, or decisions, that may adversely affect the health, safety, welfare, or rights of the residents, made by:

(a) providers, or representatives of providers, of long-term care or health care services;

(b) public agencies;

(c) health and social service agencies; or

(d) guardians, representative payees, holders of powers of attorneys, or other resident representatives;

(4) represent the interests of residents before government agencies and seek administrative, legal, and other remedies to protect the health, safety, welfare, and rights of the residents;

(5) review, and if necessary, comment on any existing and proposed laws, regulations, and other governmental policies and actions, that pertain to the rights and well-being of residents; and facilitate the ability of the public to comment on the laws, regulations, policies, and actions;

(6) promote the development of resident councils, family councils, and citizen advocacy groups; and

(7) carry out other activities that the State Ombudsman determines to be appropriate.



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NEW SECTION



WAC 365-18-080  Duties--Certified volunteer ombudsmen Certified Volunteer Ombudsmen shall, in accordance with policies and procedures established by the State Office, and under the supervision of the Regional Ombudsman, have the following duties:

(1) offer and provide services to protect the health, safety, welfare, and rights of residents;

(2) represent the interests of residents before government agencies and seek administrative, legal, and other remedies to protect the health, safety, welfare, and rights of residents;

(3) visit residents in the assigned facility(s) on a regular basis, according to program policy, conduct fact-finding activities to determine whether a formal complaint should be filed, advocate on behalf of residents, and communicate the resolution of concerns and complaints to the complainant, resident, and to the Regional Ombudsman;

(4) upon invitation, participate in resident councils and family councils; and where none exists, work to develop such councils;



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NEW SECTION



WAC 365-18-090  Ombudsman access to facilities, residents and records (1) All ombudsmen shall have access to all long-term care facilities and residents at any time deemed necessary and reasonable to effectively carry out the ombudsman duties set forth in this chapter.

(2) Access to facilities and residents by ombudsmen shall be deemed necessary and reasonable at the following times:

(a) Any time during a facility's regular business day, regular visiting hours, or other period the facility is open to the public.

(b) Any other time access may be required by the particular condition to be investigated or monitored.

(3) Upon entering a facility, or as soon as practicable thereafter, all ombudsmen shall report their presence to the facility administration and, upon request, present identification as an ombudsman.

(4) Ombudsmen shall have access to residents to perform the duties set forth in this chapter and RCW 43.190. Provision shall be made by the facility and the ombudsman to secure privacy for the purpose of hearing, investigating, and resolving complaints of, and rendering advice to, individuals who are patients or residents of the facility at any time deemed necessary and reasonable by the state ombudsman to effectively carry out the provisions of this chapter.

(5) Ombudsmen shall have access to residents without willful interference from the facility or the resident's representative, including a guardian, family member or holders of powers of attorney.

(6) Ombudsmen shall have the following access to a resident's records:

(a)(i) prompt access to review all medical and social records of a resident, and other records relating to the resident such as incident reports and facility contracts if:

(I) the ombudsman has the permission of the resident, or the legal representative of the resident; or

(II) the resident is unable to consent to the review and has no legal representative; or

(ii) access to review all medical and social records of a resident, as is necessary to investigate a complaint if:

(I) a legal representative of the resident, including a guardian, refuses to give the permission;

(II) the ombudsman has reasonable cause to believe that the legal representative or guardian is not acting in the best interest of the resident; and

(III) the ombudsman obtains the prior approval of the State Ombudsman or his or her designee;

(b) access to long-term care facility's administrative records, policies and documents to which the residents or the general public have access; provided that, in licensed nursing facilities this shall include, but not be limited to, the records and policies set forth in RCW 74.42.430.

(7) Ombudsmen shall have access to and, on request, copies of all licensing and certification records maintained by the state with respect to long-term care facilities.



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NEW SECTION



WAC 365-18-100  Confidentiality of ombudsman records, communications privileged (1) All records and files maintained by the long-term care ombudsman program shall remain confidential. Any disclosure of long-term care ombudsman program records is subject to the following provisions:

(a) no disclosure shall be made without the prior approval of the State Ombudsman or his or her designee.

(b) no disclosure of records and files relating to any complaint or investigation made by an ombudsman carrying out his or her duties or the identities of complainants, witnesses, patients, or residents shall be made unless one of the following conditions has been met:

(i) the complainant, patient, or resident, or their legal representative consents in writing to the disclosure; or

(ii) the complainant, patient, or resident gives oral consent, and that consent is documented contemporaneously in writing by a representative of the State Office.

(iii) the disclosure is required by court order.

(c) No disclosure can be made without the consent of any named witnesses, resident, patient, client or complainant unless disclosure is made without the identity of any of these individuals being disclosed, or unless disclosure is required by court order.

(2) All communications by an ombudsman, if reasonably related to the requirements of that individual's responsibilities under this chapter or federal or state statutes and done in good faith, are privileged. That privilege shall serve as a defense to any action in libel or slander. Ombudsman are exempt from being required to testify in court as to any confidential matters, except as the court may deem necessary to enforce this chapter.



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NEW SECTION



WAC 365-18-110  Interference with the ombudsman, liability (1) It is unlawful to take any discriminatory, disciplinary or retaliatory action against the following persons:

(a) any employee of a facility or agency;

(b) any patient, resident, or client of a long-term care facility; or

(c) any volunteer;

for any communication made, or information given or disclosed, to an ombudsman carrying out his or her duties unless that person acted maliciously or without good faith.

(2) It is unlawful to willfully interfere with ombudsmen in the performance of their official duties.

(3) No ombudsman is liable for good faith performance of his or her duties under this chapter.



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