(5) Policies and procedures regarding
disclosure of files, records and other information maintained by the program
must include, but not be limited to:
(a)
provision that the files, records and information maintained by the program may
be disclosed only at the discretion of the state ombudsman or designee for such
purpose and in accordance with the criteria developed by the program, as
required by 45 CFR
1324.13(e);
(b) prohibition of the disclosure of
identifying information of any resident with respect to whom the program
maintains files, records or information except as otherwise provided by CFR
1324.19(b)(5) through (8), unless:
(i) the
resident or surrogate decision maker communicates informed consent to the
disclosure and the consent is given in writing or through the use of auxiliary
aides and services;
(ii) the
resident or surrogate decision maker communicates informed consent orally,
visually, or through the use of auxiliary aids and services and such consent is
documented contemporaneously by a representative of the office in accordance
with such procedures; or
(iii) the
disclosure is required by court order.
(c) prohibition of the disclosure of
identifying information of any complainant with respect to whom the program
maintains files, records or information, unless:
(i) the complainant communicates informed
consent to the disclosure and the consent is given in writing or through the
use of auxiliary aids and services;
(ii) the complainant communicates informed
consent orally, visually or through the use of auxiliary aides and services and
such consent is documented contemporaneously be a representative of the Office
in accordance with such procedures; or
(iii) the disclosure is required by court
order.
(d) exclusion of
the ombudsman and representatives of the office from abuse reporting
requirements, including when such reporting would disclose identifying
information of a complainant or resident without appropriate consent or court
order, except as otherwise provided in
45 CFR
1324.19(b)(5) though
(8);
(e) policies and procedures
regarding conflicts of interest must establish mechanisms to identify and
remove or remedy conflicts of interest as provided in
45 CFR
1324.21;
(f) requiring that other agencies in which
the office or local ombudsman entities are organizationally located have
policies in place to prohibit the employment or appointment of an ombudsman or
representatives of the office with a conflict that cannot be adequately removed
or remedied;
(i) requiring that the state
ombudsman take reasonable steps to refuse, suspend or remove designation of an
individual who has a conflict of interest, or who has a member of the immediate
family with a conflict of interest, which cannot be adequately removed or
remedied;
(ii) establishing the
methods by which the office and the department periodically review and identify
conflicts of the state ombudsman and representatives of the office;
and
(iii) establishing the actions
the office and state agency will require the ombudsman or representatives of
the office to take in order to remedy or remove such conflicts;
(iv) ensuring that no individual, or member
of the immediate family of an individual, involved in the employment or
appointment of the state ombudsman is subject to a conflict of
interest;
(v) policies and
procedures related to systems advocacy must assure that the office is required
and has sufficient authority to carry out its responsibility to 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 and to the health, safety,
welfare, and rights of residents, and to recommend any changes in such laws,
regulations, and policies as the office determines to be appropriate;
(vi) such procedures must exclude the state
ombudsman and representatives of the office from any state lobbying
prohibitions to the extent that such requirements are inconsistent with section
712 of the OAA;
(vii) nothing in
this section shall prohibit the state ombudsman or the department or other
agency or private non-profit organization in which the office is
organizationally located from establishing policies which promote consultation
regarding the determinations of the office related to recommended changes in
laws, regulations, and policies. However, such a policy shall not require a
right to review or pre-approve positions or communications of the office. That
being said, such communication is strongly encouraged as per the OAA;
(viii) policies and procedures related to
designation must establish the criteria and process by which the state
ombudsman shall designate and refuse, suspend or remove designation of local
ombudsman entities and representatives of the office;
(ix) such criteria should include, but not be
limited to, the authority to refuse, suspend or remove designation of a local
ombudsman entity or representative of the office in situations in which an
identified conflict of interest cannot be adequately removed or remedied as set
forth in 45 CFR
1324.21;
(x) policies and procedures related to
grievances must establish a grievance process for the receipt and review of
grievances regarding the determinations or actions of the state ombudsman and
representatives of the office. Such process shall include an opportunity for
reconsideration of the state ombudsman decision to refuse, suspend, or remove
designation of a local ombudsman entity or representative of the office.
Notwithstanding the grievance process, the state ombudsman shall make the final
determination to designate or to refuse, suspend, or remove designation of a
local ombudsman entity or representative of the office;
(xi) policies and procedures related to the
determinations of the office must ensure that the state ombudsman, as head of
the office, shall be able to independently make determinations and establish
positions of the office, without necessarily representing the determinations or
positions of the department or other agency or private non-profit organization
in which the office is organizationally located;
(xii) disclosure of information maintained by
the program within the limitations set forth in Section 712(d) of the
OAA;
(xiii) recommendations to
changes in federal, state and local laws, regulations, policies and actions
pertaining to the health, safety, welfare, and rights of residents;
and
(xiv) provision of 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.