Mississippi Administrative Code › Title 18 - HUMAN SERVICES › Part 26 - Policies and Procedures Manual for the MS Ombudsman Program › Part II - Administration of the Long-Term Ombudsman Program › Section 18-26-2-C - Confidentiality

Current through June 25, 2024
Consent
The LTCOP is first and foremost a resident driven advocacy
				  program. The resident is the client, regardless of the complainant. Unless
				  adjudicated incapacitated, a resident speaks for him/herself. The Ombudsman is
				  to obtain resident informed consent. This is necessary for investigation and/or
				  disclosure of information. If the resident is unable to provide informed
				  consent, then the ombudsman needs to obtain informed consent from the resident
				  representative.
Documentation of consent is required. The Consent Form
				  documents the resident or legal representative's "written" or "oral" consent.
				  The consent form may also be used to document a complainant's consent to
				  release his or her identity. Written consent is advisable under certain
				  conditions, but is not always practical. When a resident is unable to consent,
				  document using the phrase "Resident is unable to consent." A facility staff
				  person may speculate about the identity of a resident or complainant. Without
				  consent of the resident or complainant, an Ombudsman must not confirm such
				  speculation. Instead redirect the conversation to information that is relevant
				  and not confidential. If necessary, inform the staff of the Ombudsman Program's
				  confidentiality rules. Consent should also be required to access a resident's
				  record or other confidential information.
If the complainant is not the resident, the Ombudsman must
				  seek an agreement from the resident to work on the issue. If the resident
				  declines consent, the resident's wishes supersede the complainant's. One can
				  then advise the non-resident complainant of alternate resolution strategies
				  such as self-advocacy, working through a family council or contacting the
				  Health Department if it involves a regulatory matter. The Ombudsman may also
				  determine that the concern impacts other residents and move on with the
				  complaint, but be sure to inform the resident that their identity will not be
				  revealed.
The resident's lack of capacity must be supported by
				  documentation or ombudsman observation. Documented oral consent is sufficient
				  documentation. In obtaining consent, the ombudsman must first determine if the
				  resident has the capacity to provide consent. It should be an "informed
				  consent." The ombudsman is an advocate and will need to make sure that the
				  resident appears to understand what he or she is doing/consenting.
An Order of Guardianship provides prima facie evidence of
				  incapacity. Review and obtain the documents to determine the scope of the
				  guardian's authority. When a resident is unable to communicate informed
				  consent, the ombudsman must discuss the complaint with the resident's guardian
				  or other legal representative. If a resident has been adjudicated incompetent
				  under the laws of a State by a court of competent jurisdiction, the rights of
				  the resident are thereby exercised by the person appointed under State law to
				  act on their behalf. If a Representative of the Office believes the guardian is
				  not acting in an incapacitated person's interest, contact the State Ombudsman
				  for approval to access the record or take other action on behalf of the
				  resident.
MS Courts and the legislature have not agreed on precise or
				  consistent meanings of "incompetence" or "incapacity". Usually a guardian looks
				  over the person of the ward while a conservator looks over the estate, unless
				  the Court decides otherwise. The Ombudsman should check the Court's order to
				  see what power the guardian/conservator has been given by the Court. If there
				  is a question, the ombudsman should consult legal counsel for clarification
				  through the State Ombudsman. Even residents who have been adjudicated
				  incapacitated and to whom a guardian has been appointed retain some rights.
				  These residents need to have their desires and preferences considered even if
				  the guardian has the legal responsibility over that decision.
Conservatorship was intended to encompass a broader class of
				  people than just the incompetent (physical incapacity and mental weakness). A
				  conservator has priority over the power of attorney agent. See §9313-251
				  through §
									93-13-267 of the MS Code.
An individual who has been given authority to act on behalf
				  of the resident under a Power of Attorney (POA) may provide consent to conduct
				  an investigation depending on the validity of the authority given. The resident
				  must have capacity at the time of appointment for a power of attorney document
				  to be valid. If the resident becomes incapacitated, the "agent" loses the
				  authority to act unless it is a "durable" power of attorney. Depending on how
				  the document is written, the durable POA agent may exercise authority when the
				  resident is able to make decisions, when the resident is incapacitated or both.
				  The resident's primary physician has to make a written evaluation of lack of
				  capacity. Also, look at the specific grants of authority to determine if
				  financial or health care decisions can be determined by the agent.
The Advanced Health-Care Directive (AHCD) is a combination of
				  a power of attorney for health care and a living will. Mississippi has the
				  Uniform Health-Care Decisions Act in §
									41-41-201 through §
									41-41-229 of the MS Code. An
				  example of an advanced health-care directive is provided in §
									41-41-209.
Disclosure for Complaint Investigating
				  Purposes
Any Resident's identifying information and/or medical, social
				  or other records relating to a resident shall not be disclosed by the State
				  Ombudsman Program unless (a) the resident or the resident representative
				  communicates informed consent in writing or through other means such as orally,
				  visually or through the use of an auxiliary aid and such consent is recorded
				  contemporaneously by a Representative of the Office of the State Long-Term Care
				  Facilities Ombudsman or (b) disclosure is necessary in order to investigate a
				  complaint in accordance with complaint handling procedures and the resident
				  representative refuses to consent and the resident is not able to give consent
				  and the State Ombudsman Program has a reasonable belief that the resident
				  representative is not acting in the best interest of the resident.
The Older Americans Act specifies that state agency
				  procedures must ensure that ombudsman files and records may be disclosed only
				  at the discretion of the state ombudsman and prohibits disclosure of the
				  identity of any complainant or resident without consent of the complainant or
				  resident, legal representative or upon a court order. Any records relating to
				  residents, complainants and any other identifying information shall be
				  confidential. The State Long-Term Care Facilities Ombudsman (SLTCO) has the
				  SOLE authority concerning the disclosure of files, records and other physical
				  or electronic information held and maintained by the Ombudsman Program. The
				  files, records and information are the property of the Office of the State
				  Long-Term Care Facilities Ombudsman. No disclosure of such information shall be
				  made without the prior approval of the SLTCO. This includes information
				  maintained by the district, local and volunteer ombudsmen. The SLTCO or his/her
				  designee has access to all LTCOP records at all times and for any
				  purpose.
Individuals wanting a release of information will need to
				  send a written request to the SLTCO that includes the need for the information,
				  how it will be used and who will be given access to the information. Ombudsmen
				  may not disclose whether a complaint has ever been received by or about an
				  individual, the content of a complaint or investigation, or the outcome of a
				  complaint or investigation without the appropriate consent. The SLTCO (or
				  his/her representative) is required to give approval or disapproval of the
				  disclosure within five working days of such a request. However, there may be
				  portions redacted or "blacked out" to protect privacy of residents,
				  complainants or for other purposes. Each LTCO has access to records of the
				  district Long-Term Care Ombudsman Program for which he or she serves. For
				  purposes of providing temporary coverage for another district Long-Term Care
				  Ombudsman Program, a LTCO may have access to the LTCO records of another
				  district LTCOP to the extent necessary to provide such coverage.
Disclosure of the identity of any resident or identifying
				  information is prohibited unless:
a)
				The resident or resident representative (legal representative) communicates
				informed consent in writing or through other means such as orally, visually or
				through the use of an auxiliary aid and such consent is recorded
				contemporaneously by a Representative of the Office of the State Long-Term Care
				Facilities Ombudsman; or
b) The
				disclosure is required by court order.
Disclosure of the identity of any complainant or any
				  complainant identifying information is prohibited unless:
a) The resident or resident representative
				(legal representative) communicates informed consent in writing or through
				other means such as orally, visually or through the use of an auxiliary aid and
				such consent is recorded contemporaneously by a Representative of the Office of
				the State Long-Term Care Facilities Ombudsman; or
b) The disclosure is required by court order.
If a resident is unable to communicate informed consent, the
				  ombudsman may accept communication of informed consent from the resident
				  representative if there is no reasonable cause to believe the resident
				  representative is not acting in the best interests of the resident.
If a resident is unable to communicate informed consent and
				  has no resident representative, resident identifying information may be
				  disclosed and referrals made in the following situations:
1) The ombudsman has reasonable cause to
				believe there may be an adverse effect to the health, safety, welfare or rights
				of the resident;
2) The ombudsman
				has no evidence indicating the resident would not wish a referral to be
				made;
3) The ombudsman has
				reasonable cause to believe that it is in the best interest of the resident to
				make a referral; and
4) The
				representative of the Office obtains the approval of the SLTCO, or the designee
				of the SLTCO, and otherwise follows the policies and procedures of the Office.
The State Ombudsman Program is excluded from the
				  abuse reporting requirements in Section
				  43-47-7 and
				  43-47-37 without appropriate
				  resident informed consent or a court order.
Disclosure of Ombudsman Program
				  Records
For purposes of monitoring and supervising the long-term care
				  ombudsman program, the relevant AAA or provider agency may review records which
				  reflect the activities of the LTCOP such the monthly activity reports and any
				  aggregate data. Such records shall not disclose the identity of any resident or
				  complainant. The relevant AAA or provider agency may not review records or
				  files which disclose or imply the identity of any resident or complainant.
				  Neither the Ombudsman nor a designee shall disclose resident identifying
				  information of any complaint or long-term care facility resident to individuals
				  outside the Ombudsman Program without consent or a court order.
For purposes of monitoring and supervising the long-term care
				  ombudsman program, the Mississippi Department of Human Services, Division of
				  Aging and Adult Services (DAAS) may review records which reflect the activities
				  of the LTCOP such the monthly activity reports. Such records shall not disclose
				  the identity of any resident or complainant. The DAAS may not review records or
				  files which disclose or imply the identity of any resident or complainant. No
				  state agency, AAA or other provider agency may require a long-term care
				  ombudsman to disclose the identity of a complainant or resident except as
				  provided by these procedures. Furthermore, designated employees are prohibited
				  from discussing confidential information with undesignated staff within their
				  agencies.
Where a request is made by any party for LTCOP records or
				  files, the State Long-Term Care Ombudsman (SLTCO) should be contacted. Records
				  maintained by the LTCOP may not be released, disclosed, duplicated, or removed
				  by anyone who is not a Long-Term Care Ombudsman staff without written
				  permission of the SLTCO.
The SLTCO may require that the request be made in writing
				  before determining the appropriate response. Where the request is made orally
				  by a resident, complainant, or legal representative of the resident or
				  complainant, the request must be documented immediately and filed as a LTCO
				  record by the LTCO to whom consent was communicated in order to meet this
				  requirement. The SLTCO will review the request with the relevant district LTCOP
				  to determine whether the release of all or part of the records would be
				  consistent with the wishes or interest of the relevant resident(s) and
				  determine whether it will have any negative impact on the Ombudsman Program.
				  The SLTCO will determine whether any part of the records should be redacted
				  (i.e., all identifying information removed). The identities of residents or
				  complainants who have not provided express consent for the release of their
				  names should not be revealed. Such consent must be in writing or made orally
				  and documented immediately and filed as an LTCO record by the Long-Term Care
				  Ombudsman to whom consent was communicated.
The Ombudsman Program should release information to the state
				  survey agency from the ombudsman records only if:
1. The resident has provided consent (if the
				resident is unable to provide consent, the resident legal representative may
				provide consent) AND
2. The
				identities of residents or complainants who have not provided consent for the
				release of their names are not revealed.
The SLTCO shall consult with the Legal Counsel to respond to
				  a request for Ombudsman records by a resident, complainant, legal
				  representative, an open records act request, subpoena or court order. Both the
				  SLTCO and the Legal Counsel should consider how the release could impact the
				  credibility or effectiveness of the program.