Mississippi Administrative Code › Title 18 - HUMAN SERVICES › Part 26 - Policies and Procedures Manual for the MS Ombudsman Program › Part IV - Program Components for Ombudsman Practice › Section 18-26-4-B - Complaint Processing

Current through June 25, 2024
A complaint is a concern brought to, or initiated by, an
				  Ombudsman representative for investigation and action by or on behalf of one or
				  more residents of a long-term care facility relating to the health, safety,
				  welfare, or rights of a resident. One or more complaints constitutes a case.
				  Each inquiry brought to, or initiated by, an Ombudsman representative on behalf
				  of a resident or group of residents involving one or more complaints which
				  requires opening a case; and includes Ombudsman investigation, strategy to
				  resolve, and follow up; is recorded as a case. Each case may have more than one
				  complaint. A complaint is also more than a consultation or a friendly visit. If
				  a resident's problem is too simple to require filling out a case record, then
				  it is more likely to be a consultation or friendly visit than a complaint. An
				  "information or referral" call is different from a complaint; while information
				  and referral can take up a lot of time and involve action on the part of the
				  ombudsman in terms of phone calls, letters, or research, the ombudsman is not
				  asked to intervene or alter the outcome of a situation or solve a problem. The
				  complaint documentation process starts from the time of receiving a complaint
				  through follow-up after the case has been closed.
Scope of Coverage/Jurisdiction of the Ombudsman Program:
				  Section 43-7-55 of the MS Code states that
				  a "long-term care facility" means any skilled nursing facility, extended care
				  home, intermediate care facility, personal care home or boarding home
which is subject to regulation or licensure
by the State
				  Department of Health. Therefore, if a facility should be licensed as required
				  by MS law, but it is an illegal personal care home the ombudsman does have
				  jurisdiction to provide assistance to such residents. Whenever questions arise
				  regarding appropriate LTCO practice in handling complaints, the State Ombudsman
				  should be contacted for guidance.
The State Ombudsman can grant consent to conduct an
				  investigation or make referrals when:
* A resident lacks capacity and has no legal
				  representative;
* A legal representative exists, but cannot be contacted
				  after at least three (3) attempts; or
* The resident lacks capacity, has a legal representative who
				  does not consent, and there is reasonable cause to believe that the
				  representative is not acting in the best interest of the resident.
Intake of
				  Complaints
Intake Summary in WellSky must be completed
within 14
				  days
. It must identify the complainant, the resident, and a summary of
				  the complaint. Documentation is extremely important for accurate reporting and
				  for allowing others who may later become involved in the case to know what
				  steps were taken. Also, any complaint may become the source of litigation and
				  proper clear documentation is essential.
Complaints may be reported by:
a) Residents, family members of residents,
				friends of residents, long-term care facility staff or any other person in the
				community;
b) Anonymous reporter.
				However, this type of complaint could limit your ability to investigate and
				resolve the complaint;
c) Ombudsman
				who has personal knowledge of an action or inaction that may affect the health,
				safety, welfare or rights of a resident in a long-term care facility.
The person that makes the complaint is referred to as the
				  Complainant.
If a complaint involves a deceased resident, then the
				  ombudsman shall:
a) Determine if the
				issues are systemic. If so, then a case may be opened. If not, the complainant
				needs to be told there is no resident for which an issue can be
				resolved;
b) Refer the complainant
				to the MS Department of Health as appropriate; or
c) Suggest to the complainant other referral
				options including police, private attorneys, coroner, etc. as
				relevant.
Upon receipt of a complaint, the ombudsman shall:
a) Collect all pertinent details of the
				complaint to determine the type of complaint presented;
b) Explain that the ombudsman contacts the
				resident to determine his/her wishes and as resident advocate will act in
				accordance with the wishes of the resident;
c) Discuss what outcome the complainant is
				seeking;
d) Inquire as to what
				attempts, if any, have already been made to resolve the complaint and the
				outcome of those actions;
e)
				Determine if the complaint is appropriate to be handled through the Ombudsman
				Program;
The Ombudsman must choose the best complaint code that best
				  matches the problem. The NORS complaint codes are:
* Codes 1 through 102 (Groups A-M) are used for complaints
				  against LTC facilities and their representatives.
RESIDENT RIGHTS
:
Group A (Abuse, Gross Neglect, Exploitation) should only be
				  used for
willful
mistreatment of residents.
Group B (Access to Information by Resident or Resident's
				  Representative)
Group C (Admission, Transfer, Discharge, Eviction)
Group D (Autonomy, Choice, Preference, Exercise of Rights,
				  Privacy)
Group E (Financial, Property (except financial
				  exploitation)
RESIDENT CARE
Group F (Care)
Group G (Rehabilitation or Maintenance of Function)
Group H (Restraints-Chemical and Physical)
QUALITY OF LIFE
Group I (Activities and Social Services)
Group J (Dietary)
Group K (Environment)
ADMINISTRATION
Group L (Policies, Procedures, Attitudes, Resources)
Group M (Staffing)
* Codes 103 through 116 (Groups N and O) are used for
				  complaints against the State licensing and Medicaid agencies.
Group N (Certification/Licensing Agency)
Group O (State Medicaid Agency)
* Codes 117 through 128 (Group P) are used for complaints
				  against or involving individuals who are not staff of the facilities or of the
				  State's licensing and certification agency.
Group P (System/Others)
* Codes 129 through 133 (Group Q) are used for complaints
				  about services in settings other than long-term care facilities. Q codes are
				  used for outside providers, such as an Adult Day Care Center, hospice,
				  homemaking or transportation, or complaints at an unlicensed home.
Investigation
An Ombudsman shall use his or her best efforts to initiate
				  investigations of complaints in a timely manner in order to resolve the
				  complaint to the satisfaction of the resident. If the Representative of the
				  Office will be unable to initiate investigations due to a planned vacation,
				  required training conference or extended illness, their supervising ombudsman
				  shall be contacted immediately so as to develop a plan for temporary coverage.
				  Such plan shall be communicated to the provider agency, the area agency on
				  aging, and the SLTCO to assure appropriate and timely case referrals.
IF a complaint
								involves...
THEN the response time
								is...
A) Abuse or gross neglect and the Ombudsman
								believes a resident may be at risk
Within the next working day
B) Abuse or gross neglect and the Ombudsman has no
								reason to believe a resident is at risk
Within 3 days, but not to exceed 3 working
								days
C) Actual or threatened transfer or discharge from
								a facility
Whichever occurs first:
1) 5 working days;
2) The last day of bed-hold period (if resident is
								hospitalized), or
3) The last day for filing an appeal for an
								administrative hearing
D) Any other type of complaint
Within 5 working days
Regardless of the source of the complaint, the first person
				  to be interviewed should be the resident. An Ombudsman shall personally discuss
				  the complaint with the resident in order to:
* Determine the resident's perception of the
				  complaint;
* Determine the resident's wishes with respect to the
				  resolution of the complaint;
* Determine whether the Ombudsman may disclose resident
				  identifying information to the facility and/or other appropriate
				  agencies;
* Advise the resident of his or her rights; and
* Work with the resident in developing a plan of
				  action.
If, at any point during the complaint process, the resident
				  expressed that he or she does not want the LTCO to take further action on a
				  complaint involving the resident, then LTCO shall determine whether further
				  efforts should be made on the complaint. In making this determination, the LTCO
				  shall consider the following:
IF the resident...
THEN the LTCO shall...
A) Refuses to consent to LTCO work on the complaint
								or
B) Withdraws consent before the LTCO has verified
								the complaint
1) Discontinue work on the complaint and
2) Attempt to determine why the resident refused or
								withdrew consent, considering factors such as:
* Past response of facility to complaints;
* The resident's relationship with the
								staff;
* The experience of this resident or other
								residents in the facility related to this type of complaint;
3) Inform the resident that he or she may contact
								the LTCO regarding the withdrawn complaint or other complaints in the future;
								and
4) Provide a business card or brochure informing
								the resident how to contact the LTCOP.
C) Withdraws consent after the LTCO has verified or
								partially verified the complaint
1) Discontinue investigation and resolution
								activities on the complaint;
2) Determine during subsequent visits to the
								facility whether the type of complaint is recurring. If it is a recurring
								problem, then the LTCO must use strategies towards resolution without
								disclosing the identity of the resident (such as presenting the issue to a
								resident or family council); and
3) Attempt to determine why the resident withdrew
								consent, considering factors such as:
* Past response of facility to complaints;
* The resident's relationship with the
								staff;
* The experience of this resident or other
								residents in the facility related to this type of complaint;
4) Inform the resident that he or she may contact
								the LTCO regarding the withdrawn complaint or other complaints in the future;
								and
5) Provide a business card or brochure informing
								the resident how to contact the LTCOP.
It is important to get all sides of the story if a complaint
				  is to be resolved successfully. The preparation for the investigation should
				  indicate which staff person will be involved. Try to interview the beginning
				  level staff members first, and then move up to the administrator. Be
				  non-threatening in the approach to staff people (review the interviewing
				  skill's section of the training manual). Interview upper-level staff members
				  (administrator, head nurse, medical director, etc.) in the complaint resolution
				  process as they may have the authority to solve the problem immediately. After
				  all the necessary information is gathered and if no further research is
				  indicated, attempt to resolve the complaint within the LTC facility.
If a resident is unable to provide consent, the Ombudsman
				  shall advocate for a resident's wishes to the extent that the resident can
				  express them, even if the resident has limited decision-making capacity. Where
				  a resident is unable to provide or refuse consent to an Ombudsman to work on a
				  complaint directly involving the resident the LTCO shall:
* Seek evidence to indicate what the resident would have
				  desired and where such evidence is reliable, work to effectuate that desire;
				  and
* Assume that the resident wishes to have his or her health,
				  safety, welfare, and rights protected.
If the resident is no longer at the facility or is deceased,
				  the LTCO may close the complaint related to that resident. The LTCO shall make
				  referrals to other agencies where appropriate to address any unresolved issue.
				  It is usually notated in the NORS reporting system as being "withdrawn."
				  However, where the complaint is a continuing or potential concern for other
				  residents, the LTCO shall open a new case with another resident or an
				  ombudsman-generated complaint in order to continue LTCO work to resolve the
				  complaint. If the ombudsman does not open a case, he or she must explain to the
				  complainant the reasons for not doing so.
Verification of
				  Complaints
Consent and Confidentiality are cornerstones of the Ombudsman
				  Program. We need to make sure that the residents do not face retaliation for
				  filing a complaint. The resident or legal representative must be informed of
				  the progress of the investigation findings. The purpose of an investigation is
				  to determine whether the complaint is valid and to gather the information
				  necessary to determine how to resolve the complaint. A complaint is "verified"
				  when an ombudsman determines after interview, record inspection, observation,
				  etc. that the circumstances described in the complaint are substantiated or
				  generally accurate. Because the LTCO works on behalf of resident's interests,
				  the LTCO should give the benefit of any doubt to the resident's
				  perspective.
Verification of a complaint should be based on facts, not the
				  opinions of the complainant, the facility or the ombudsman. There must be
				  sufficient documentation in WellSky for the State Ombudsman to determine
				  whether proper case investigation through fact-finding was done. The ombudsman
				  should determine the validity of the complaint by uncovering the facts
				  surrounding a particular issue. In order to verify a complaint, the LTCO shall
				  take one or more of the following steps:
1) Research relevant laws, rules, regulations
				and policies;
2) Personally observe
				the evidence;
3) Interview the
				resident and/or complainant;
4)
				Interview staff, administration, other residents, and families;
				and/or
5) Examine relevant
				records.
Yet resident perception is a sufficient basis upon which a
				  LTCO can verify a complaint of a subjective nature (e.g., a resident complains
				  of a rude staff member). Thus, the Ombudsman does not have to independently
				  observe staff acting disrespectfully. However, whenever possible, the LTCO
				  shall seek objective verification of the complaint. Facility visits for
				  purposes of complaint investigation shall be unannounced.
Activities such as follow-up calls to either the facility,
				  the resident, his/her representative shall be documented in WellSky under as
				  "Journal" entries. Time spent and/or travel spent must be documented as well.
				  The ombudsman need to document accurately what action was taken in an attempt
				  to resolve the complaint. The State Ombudsman or his/her designee must be able
				  to determine that an ombudsman verified a complaint or concern through proper
				  investigative techniques.