Current through Register 1518, March 29, 2024
(1)
Receipt of a
Complaint(s). The State Ombudsman Program or local ombudsman
programs will receive complaints, both oral and written, made by or on behalf
of residents, and may also initiate a complaint on their own accord.
(a) The State Ombudsman Program and local
ombudsman programs will receive complaints during regular business hours,
Monday through Friday, excluding holidays.
(b) All complaints initiated or received by
the State Ombudsman Program or local ombudsman programs will be reduced to
writing and become part of a case file.
(c) Upon receipt of a complaint, an ombudsman
representative will discuss the complaint with the resident (and, if the
resident is unable to communicate informed consent, the resident's
representative) to:
1. determine the
perspective of the resident (or resident representative, where applicable)
regarding the complaint;
2. request
that the resident (or resident representative, where applicable) communicate
informed consent in order to investigate the complaint;
3. determine the resident's wishes with
respect to resolution of the complaint, including whether the allegations are
to be reported and, if so, whether the ombudsman representative may disclose
resident identifying information or other relevant information to the facility
and/or appropriate agencies;
4.
advise the resident (and the resident's representative, where applicable) that
the resident's identity will not be disclosed without the resident's
permission, and specify to whom the resident's identity may be disclosed if the
resident consents. Such disclosure will be made without the resident's consent
if ordered by a court of competent jurisdiction;
5. work with the resident (or resident's
representative, where applicable) to develop a plan of action for resolution of
the complaint;
6. investigate and
contact those who may be involved in a resolution to attempt to verify the
facts alleged in the complaint; and
7. determine whether the complaint is
resolved to the satisfaction of the resident (or resident representative, where
applicable).
(d) If
informed consent is not provided to the ombudsman representative to discuss or
proceed with the complaint, the resident or the resident representative will be
provided with information and/or referral sources appropriate to enable the
resident to advocate on their own behalf.
(e) Where the ombudsman representative
determines the resident is unable to give informed consent and has no resident
representative, the ombudsman representative will take appropriate steps to
investigate and work to resolve the complaint to protect the health, welfare,
safety, or rights of the resident.
(f) If the ombudsman representative has
reasonable cause to believe the resident representative is not acting in the
best interest of the resident, the ombudsman representative will work to
protect the health, welfare, safety, or rights of the resident.
(g) Where a complaint is found to be
unsupported, the ombudsman representative will inform the resident or resident
representative, where applicable, of this finding as soon as possible after
making such determination.
(h) If
an ombudsman representative observes a practice in a facility which affects the
resident or a number of residents in the facility, and such practice
constitutes grounds for a complaint, the ombudsman representative may
investigate and attempt to resolve such complaint without the consent of
individual residents.
(2)
Resolution of a Supported
Complaint. If an ombudsman representative has reasonable cause to
believe a complaint is supported and obtains informed consent from a resident
or resident representative to act, they will discuss the complaint with the
appropriate staff member or contact person at the facility.
(a) If the discussion with the facility staff
member or contact person resolves the complaint without further action, the
ombudsman representative will notify the resident or resident
representative.
(b) If the resident
resides in a facility, is unable to give informed consent, and has no resident
representative, the ombudsman representative will determine whether the
complaint was sufficiently resolved to protect the health, welfare, safety, or
rights of the resident.
(c) If an
ombudsman representative is unable to resolve the complaint, if access to
records is denied, or a legal referral is required, the ombudsman
representative will inform the local ombudsman program director. The local
ombudsman program director will work with the ombudsman representative in the
investigation and resolution of the complaint.
(d) If such a complaint is referred to an
attorney or a legal services organization and the Ombudsman Program is not able
to resolve the complaint, the local ombudsman program will timely inform the
resident or the resident representative and the State Ombudsman.
(3)
Consultation with
the State Ombudsman. If a local ombudsman program is unable to
access records or, after investigation, is unable to resolve a complaint, said
program will refer the case to the State Ombudsman or their designee. The State
Ombudsman or their designee will work with the local ombudsman program in a
timely manner to access records or investigate and resolve the complaint.
(a) If the State Ombudsman or their designee
are unable to access records or, following investigation, determines an act,
practice, or omission of the facility may adversely affect the health, safety,
welfare, or rights of a resident, they will make recommendations for the
elimination or correction of such act, practice, or omission to the appropriate
executive at the facility involved.
(b) Upon receipt of a complaint referred from
a local ombudsman program, and any time during a subsequent investigation of
the complaint, the State Ombudsman or their designee may refer the complaint to
an appropriate agency, including law enforcement, for investigation and
resolution.
(4)
Serious Violation Referrals. Local ombudsman programs
will refer a complaint regarding possible serious violations of medical care,
personal care, nursing care, treatment rules, fire safety regulations, or the
law to the State Ombudsman, who will report it to EOHHS, the Massachusetts
Department of Public Health, EOEA, or the Office of the Attorney General, as
appropriate, for investigation and resolution, with the informed consent of the
resident.
(5)
Resolution of Complaints of Abuse, Mistreatment, or
Neglect. If the State Ombudsman or an ombudsman representative has
reasonable cause to believe abuse, mistreatment, or neglect of a resident may
have occurred as set forth in M.G.L. c. 111, §§ 72F through 72L, they
will comply with the complaint resolution procedures set forth in 101 CMR
30.12,
45 CFR
1324.19(b)(8), and
42 U.S.C.
3001
et seq.
(6)
Documentation of
Complaints. Local ombudsman programs will document all complaints
in a format as directed by the State Ombudsman. The local ombudsman program
director must ensure all complaints and other relevant information are updated
in the case file not less than monthly. The State Ombudsman or their designee
may review the case records, files, and other documents of the local ombudsman
programs. The State Ombudsman may, at their discretion, require additional
periodic reports from local ombudsman programs, which may include
identification of barriers to effectively respond to complaints and patterns of
significant problems relating to conditions or residents' care in facilities in
its assigned geographic area.
