About Sherry Culp
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WHAT IS THE LONG-TERM CARE OMBUDSMAN PROGRAM (LTCOP)?
Under the federal Older Americans Act (OAA) every state is required to have an Ombudsman Program that addresses complaints and advocates for improvements in the long-term care system. Each state has an Office of the State Long-Term Care Ombudsman (Office), headed by a full-time State Long-Term Care Ombudsman (Ombudsman) who directs the program statewide. Across the nation, staff and thousands of volunteers are designated by State Ombudsmen as representatives to directly serve residents.
WHAT DOES THE OMBUDSMAN PROGRAM DO?
The Ombudsman program advocates for residents of nursing homes, board and care homes, assisted living facilities, and other similar adult care facilities. State Ombudsmen and their designated representatives work to resolve problems individual residents face and effect change at the local, state, and national levels to improve quality of care. In addition to identifying, investigating, and resolving complaints, Ombudsman program responsibilities include:
• Educating residents, their family and facility staff about residents’ rights, good care practices, and similar long-term services and supports resources;
• Ensuring residents have regular and timely access to ombudsman services;
• Providing technical support for the development of resident and family councils;
• Advocating for changes to improve residents’ quality of life and care;
• Providing information to the public regarding long-term care facilities and services, residents’ rights, and legislative and policy issues;
• Representing resident interests before governmental agencies; and
• Seeking legal, administrative and other remedies to protect residents.
Ombudsman programs do not:
• Conduct licensing and regulatory inspections or investigations;
• Perform Adult Protective Services (APS) investigations; or
• Provide direct care for residents.
RESIDENTS’ RIGHTS Ombudsman programs help residents, family members, and others understand residents’ rights and support residents in exercising their rights guaranteed by law. Most nursing homes participate in Medicare and Medicaid, and therefore must meet federal requirements, including facility responsibilities and residents’ rights. For more information about residents’ rights visit http://ltcombudsman.org/issues/residents-rights and http://theconsumervoice.org/ issues/recipients/nursing-home-residents/residents-rights. Regardless of the type of facility all residents have the right to be protected from abuse and mistreatment and facilities are required to ensure the safety of all residents and investigate reports of mistreatment.
FREQUENTLY ASKED QUESTIONS (FAQ)
Who does the Ombudsman program represent? The Ombudsman program’s mandate is to represent the resident and assist at his or her direction. The Older Americans Act (OAA) requires the Ombudsman program to have resident consent prior to investigating a complaint or referring a complaint to another agency. When someone other than the resident files a complaint, the ombudsman must determine, to the extent possible, what the resident wants.
What happens after I bring a concern to the Ombudsman program? If someone other than a resident contacts the Ombudsman program with a complaint the ombudsman will visit the resident to see if the resident has similar concerns and wants to pursue the complaint. The ombudsman will explain the role of the program, the complaint investigation process, share information about residents’ rights, ask about the resident’s quality of life and care, and seek to understand the resident’s capacity to make decisions. Many residents, even residents with dementia, are able to express their wishes. If the resident wants the ombudsman to act on the problem, the ombudsman will investigate the complaint and continue to communicate with the resident throughout the investigation process. If the resident cannot provide consent the ombudsman will work with the resident representative or follow program policies and procedures if the resident does not have a representative.
What types of complaints does the Ombudsman program investigate? Ombudsmen handle a variety of complaints about quality of life and care. Not all complaints are about the care provided by a facility, some complaints are about outside agencies, services or individuals (e.g., Medicaid or Medicare benefits). They can also receive and respond to complaints from individuals other than the resident (e.g. family member), but still need resident permission to investigate or share information.
Do ombudsmen investigate complaints involving allegations of abuse, neglect, and exploitation? Yes. The Ombudsman program investigates and resolves complaints that “relate to action, inaction or decisions that may adversely affect the health, safety, welfare, or rights of the residents” and that includes complaints about abuse, neglect, and exploitation. Ombudsmen are directed by resident goals for complaint resolution and limited by federal disclosure requirements. Therefore, the Ombudsman program’s role in investigating allegations of abuse is unique and differs from other entities such as, adult protective services and state licensing and certification agencies. Ombudsman programs attempt to resolve complaints to the residents’ satisfaction (including those regarding abuse) and do not gather evidence to substantiate that abuse occurred or to determine if a law or regulation was violated in order to enforce a penalty. If necessary, with resident consent or permission of the State Ombudsman if the resident can’t consent and does not have a legal representative, the ombudsman will disclose resident-identifying information to the appropriate agency or agencies for regulatory oversight; protective services; access to administrative, legal, or other remedies; and/or law enforcement action about the alleged abuse, neglect or exploitation.
Is the Ombudsman program required to report allegations of abuse? There are strict federal requirements regarding disclosure of Ombudsman program information. Resident-identifying information cannot be disclosed without resident consent, the consent of the resident representative, or a court order. Therefore, these disclosure requirements prohibit Ombudsman programs from being mandatory reporters of suspected abuse.
Information gathered from
This fact sheet was completed in association with the National Consumer Voice for Quality Long-Term Care for the National Center on Elder Abuse situated at Keck School of Medicine of USC and is supported in part by a grant (No. 90AB0003-01-01) from the Administration on Aging (AOA), U.S. Department of Health and Human Services (DHHS). Grantees carrying out projects under government sponsorship are encouraged to express freely their findings and conclusions. Therefore, points of view or opinions do not necessarily represent official Administration on Aging or DHHS policy.
It’s that time of year again…. Residents’ Rights Month! The official designation of October as a time when we celebrate and focus on rights is my favorite time of year. It is a time for recognizing rights and raising the awareness of dignity, respect and the value of each individual resident. October is also Domestic Violence Awareness Month and our friends at Green House 17 asked if I could share some information with them about domestic abuse later in life. Check out my blog at http://greenhouse17.org/2016/10/12/later-life-abuse/ or see the message below.
Domestic Violence & Residents of Long-Term Care Facilities
Guest blog for GreenHouse17 “17 Voices: Let’s talk about ending domestic violence.”
Sherry Huff Culp, Kentucky State Long-Term Care Ombudsman
Nursing Home Ombudsman Agency of the Bluegrass, Inc. www.ombuddy.org
Have you ever considered what it must be like to be a survivor of domestic violence, aging, disabled, and living in a nursing home? In KY there are over 34,000 residents living in licensed long-term care (LTC) facilities. The majority of these residents are impoverished older women with two or more disabilities. Some have experienced domestic violence their entire lives while others may have only experienced it since becoming dependent upon caregivers.
A significant portion of elder abuse cases reported in the United States involve spouse/partner violence. The aggressors include spouses and former spouses, partners, adult children, extended family, and in some cases caregivers. Often abusers threaten survivors with nursing home placement if they tell anyone about the abuse. Some abusers use their role and power to financially exploit their victims. Others feel that they are entitled to get their way because they are the “head of the household,” or because they are younger and physically stronger than their victim is.
Older women are likelier than younger women to experience violence for a longer time, to be in current violent relationships, and to have health and mental health problems, but no one seems really prepared to address the needs of a survivor once they move into a nursing facility. So often new admissions are asked to quickly conform to the institution’s daily flow. Some residents never have an opportunity to express their needs and wishes. One of the roles of the Long-Term Care Ombudsman is to visit with residents and learn more about who they are and what they need from their caregivers. We work very hard to develop relationships with residents and teach them about their rights.
One issue that consistently arises while we advocate to improve care and resolve problems is short or insufficient staffing in these institutions. In KY there are no staffing ratios like we have in child care settings. When there are not enough staff working in nursing homes the needs of residents are neglected and it increases the likelihood that domestic violence can begin or continue. Isolation and vulnerability are two of the scariest things about aging, but we can help reduce these fears and protect each other if we demand more caregivers by the bedside, better training for workers, and more person centered care.
Call us today to learn more about volunteering with your local Long-Term Care Ombudsman Program 1-800-372-2991
Today I’m sharing a very informative post from Justice in Aging. Thank you for your continued support,
Sherry Culp, Kentucky State Long-Term Care Ombudsman
The Centers for Medicare & Medicaid Services has just released a comprehensive revision of federal nursing facility regulations. The regulations and explanatory material (over 700 pages total) are available here. The positives for nursing facility residents include expanded training requirements, and a new provision that an initial care plan be developed and implemented within 48 hours. The negatives include a failure to improve nurse staffing standards, and weakening the regulations limiting antipsychotic drug use.
Some important provisions are highlighted below. Additional analysis of the regulations will be developed in coming weeks by Consumer Voice, the Center for Medicare Advocacy, and Justice in Aging.
Quality of Care
Staffing: Although inadequate staffing is the greatest problem in nursing facilities today, the new regulations do not include a minimum staffing standard or a requirement for a 24-hour Registered Nurse. Instead, the new regulations continue the current policy: requiring “sufficient” staffing levels, and registered nurse presence for eight hours daily. Staff must have “appropriate competencies and skills sets,” and staffing levels must take into consideration the number, acuity and diagnoses of the resident population, based on a newly-mandated facility assessment.
Person-Centered Care: The previous regulations required that care be individualized, and based on a care plan, but the new regulations add emphasis. The new regulations define person-centered care and require that facilities learn more about who the resident is as a person, provide greater support for resident preferences, and give residents increased control and choice.
Care Planning: Under the new regulations, facilities must develop and implement a baseline care plan for a new resident within 48 hours of admission. The care planning process itself calls for greater resident involvement and participation. In addition, the certified nursing assistant responsible for the resident, and a member of the food and nutrition services staff must participate in the care planning process.
Abuse, Neglect and Exploitation: Provisions related to abuse, neglect and exploitation are now included in a separate section, which brings more attention and focus to these issues. New protections include prohibiting licensed individuals with a disciplinary action from being hired, and requiring that suspicion of a crime be reported to law enforcement and the state survey and certification agency.
Antipsychotic Drugs: Many residents with dementia are inappropriately given harmful antipsychotic drugs, despite strong current federal rules. The new regulations water down existing protections by folding antipsychotic drugs into a broader category of psychotropic drugs, and moving them from quality of care regulations to pharmacy services.
Training: Training requirements have been expanded to apply to all staff, contractual employees, and volunteers. Mandatory topics include communication, residents’ rights, and abuse, neglect and exploitation. Certified nursing assistants will be required to receive training on dementia management and resident abuse prevention.
Prohibiting Pre-Dispute Arbitration: Currently, many nursing facility admission agreements include provisions obligating the resident to have disputes adjudicated through private arbitration. Such “pre-dispute” arbitration agreements now will be prohibited. Arbitration agreements will be allowed only when the events at issue occurred before the arbitration agreement was signed.
Improvements to Involuntary Transfer-Discharge Procedures: The new regulations specify that transfer-discharge for non-payment is inappropriate when the resident has submitted necessary paperwork to a third-party payor (such as Medicaid), and that payor is now evaluating the claim for payment. Also, facilities now will be obligated to send a copy of each transfer-discharge notice to the state’s long-term care ombudsman program, which is available to advise the resident.
Limiting Facility’s Ability to “Dump” Resident at Hospital: In an effort to evade transfer-discharge requirements, some facilities “dump” residents by refusing to readmit them from hospitalizations. To address the problem, the new regulations explicitly require a facility to follow the transfer-discharge procedures when the facility claims that a hospitalized resident cannot return to the facility.
Modifying Residents’ Rights to Have Visitors: The new regulations continue current law providing each resident with a right to receive visitors at any time. In an unwelcome change, however, if a visitor is not a family member, the right to receive a visit now is “subject to reasonable clinical and safety restrictions,” as set forth in facility policy.
Grievances: Far too often, complaints from residents and families have been dismissed or not taken seriously. The regulations will now call for facilities to have a grievance policy and a grievance official to oversee the grievance process. Complainants will receive a written grievance decision that includes the steps taken to investigate, a summary of the finding or conclusions, a statement as to whether the grievance was confirmed or not confirmed, and the action taken or to be taken by the facility.
This alert has been jointly developed by Consumer Voice, the Center for Medicare Advocacy, and Justice in Aging.
Kentucky Hospital Research & Education Foundation
Emergency Preparedness Update
for September 8, 2016
CMS finalizes rule to bolster emergency preparedness
of certain facilities participating in Medicare and Medicaid
(CMS Release) Today, the Centers for Medicare & Medicaid Services (CMS) finalized a rule to establish consistent emergency preparedness requirements for health care providers participating in Medicare and Medicaid, increase patient safety during emergencies, and establish a more coordinated response to natural and man-made disasters.
Over the past several years, and most recently in Louisiana, a number of natural and man-made disasters have put the health and safety of Medicare and Medicaid beneficiaries – and the public at large – at risk. These new requirements will require certain participating providers and suppliers to plan for disasters and coordinate with federal, state tribal, regional, and local emergency preparedness systems to ensure that facilities are adequately prepared to meet the needs of their patients during disasters and emergency situations.
“Situations like the recent flooding in Baton Rouge, Louisiana, remind us that in the event of an emergency, the first priority of health care providers and suppliers is to protect the health and safety of their patients,” said CMS Deputy Administrator and Chief Medical Officer Patrick Conway, M.D., MSc. “Preparation, planning, and one comprehensive approach for emergency preparedness is key. One life lost is one too many.”
“As people with medical needs are cared for in increasingly diverse settings, disaster preparedness is not only a responsibility of hospitals, but of many other providers and suppliers of healthcare services. Whether it’s trauma care or long-term nursing care or a home health service, patients’ needs for health care don’t stop when disasters strike; in fact their needs often increase in the immediate aftermath of a disaster,” said Dr. Nicole Lurie, HHS assistant secretary for preparedness and response. “All parts of the healthcare system must be able to keep providing care through a disaster, both to save lives and to ensure that people can continue to function in their usual setting. Disasters tend to stress the entire health care system, and that’s not good for anyone.”
After reviewing the current Medicare emergency preparedness regulations for both providers and suppliers, CMS found that regulatory requirements were not comprehensive enough to address the complexities of emergency preparedness. For example, the requirements did not address the need for: (1) communication to coordinate with other systems of care within cities or states; (2) contingency planning; and (3) training of personnel. CMS proposed policies to address these gaps in the proposed rule, which was open to stakeholder comments.
After careful consideration of stakeholder comments on the proposed rule, this final rule requires Medicare and Medicaid participating providers and suppliers to meet the following four common and well known industry best practice standards.
1. Emergency plan: Based on a risk assessment, develop an emergency plan using an all-hazards approach focusing on capacities and capabilities that are critical to preparedness for a full spectrum of emergencies or disasters specific to the location of a provider or supplier.
2. Policies and procedures: Develop and implement policies and procedures based on the plan and risk assessment.
3. Communication plan: Develop and maintain a communication plan that complies with both Federal and State law. Patient care must be well-coordinated within the facility, across health care providers, and with State and local public health departments and emergency systems.
4. Training and testing program: Develop and maintain training and testing programs, including initial and annual trainings, and conduct drills and exercises or participate in an actual incident that tests the plan.
These standards are adjusted to reflect the characteristics of each type of provider and supplier. For example:
• Outpatient providers and suppliers such as Ambulatory Surgical Centers and End-Stage Renal Disease Facilities will not be required to have policies and procedures for provision of subsistence needs.
• Hospitals, Critical Access Hospitals, and Long Term Care facilities will be required to install and maintain emergency and standby power systems based on their emergency plan.
In response to comments, CMS made changes in several areas of the final rule, including removing the requirement for additional hours of generator testing, flexibility to choose the type of exercise a facility conducts for its second annual testing requirement, and allowing a separately certified facility within a healthcare system to take part in the system’s unified emergency preparedness program.
The final rule also includes a number of local and national resources related to emergency preparedness, including helpful reports, toolkits, and samples. Additionally, health care providers and suppliers can choose to participate in their local healthcare coalitions, which provide an opportunity to share resources and expertise in developing an emergency plan and also can provide support during an emergency.
These regulations are effective 60 days after publication in the Federal Register. Health care providers and suppliers affected by this rule must comply and implement all regulations one year after the effective date.
For more information please see a blog by Dr. Lurie, HHS assistant secretary for preparedness and response, and the CMS Survey & Certification – Emergency Preparedness webpage.
R Bartlett Note: The effective date will be November 16, 2016 and the implementation date will be November 16, 2017. In a transmittal message today from Liz Chesney with the National Healthcare Preparedness Programs of HHS/ASPR/OEM, she said: “HPP anticipates that health care entities that have not previously engaged in community preparedness will seek to do so through participation in HCCs. The CMS rules offer HCCs a tremendous opportunity to achieve greater organizational and community effectiveness and financial sustainability through a more inclusive preparedness community. Although the over 26,000 health care organizations already engaged in community preparedness through HCCs may already meet or exceed the baseline level of preparedness in the CMS rules, HCCs will also function as an accessible source of preparedness and response best practices as newly engaged provider types adapt to the new requirements.
In addition, ASPR TRACIE has a dedicated page with links to resources that can help health care entities start or update their planning processes. ASPR TRACIE will work closely with CMS to gather and share relevant resources and help with assistance requests. ASPR TRACIE and CMS will also host a joint presentation on Wednesday, December 14, 2016, to discuss the CMS Emergency Preparedness Regulations. Additional details to come. ”
The finalized CMS rules can be accessed here: https://www.federalregister.gov/public-inspection
Our office received a gratitude call from a consumer of Long-Term Care Ombudsman (LTCO) services today and I had to share how proud I am of program staff. The caller was extremely happy with the work of Katrina Valliant, the Lincoln Trail District Ombudsman. She said, “Katrina listened to me cry. She comforted me. She researched facts for me and called me back when she said she would.”
The caller went on to compliment the work of others in the LTCO Program as well saying, Mark Burress, Regional State LTC Ombudsman, and Denise Kennedy, Bluegrass District LTCO, “were also a huge help.” The caller was impressed with the quick response and problem resolution of everyone in the LTCO Program.
When residents and families utilize LTCOs to help resolve problems they often brag that the ombudsman not only helped them, but they educated them. In closing the caller added, “The nursing home doesn’t seem to want people to be informed.” As KY State LTC Ombudsman and leader of the program I am so glad our valuable services are making a strong impact. Helping residents and families navigate the difficulties of illness, aging, and obtaining LTC services is no small task, but we appreciate your continued support Donations appreciated!
KY SLTC Ombudsman
ACTION OPPORTUNITY! Each day, 10,000 Americans are becoming Medicare eligible and State Health Insurance Assistance Programs (SHIP) services are needed more than ever. This program provides free, unbiased, one-on-one Medicare coverage and benefits counseling. In the coming days, the House Appropriations Committee will consider a bill that funds the Medicare SHIP. Click below for a great opportunity to take action and make your voice heard. SHIP is a great resource! http://cqrcengage.com/ncoa/app/onestep-write-a-letter…
A resident council is an independent, organized group of persons living in a nursing facility who meet on a regular basis to discuss concerns, develop suggestions, and plan activities. If the nursing facility does not already have a resident council, it must try to establish one.
From the Nursing Home Reform Act of 1987 (OBRA):
- A nursing facility must protect and promote the rights of each resident, including the right of the resident to organize and participate in resident groups in the nursing facility
- Residents have the right to voice grievances with respect to treatment or care that is furnished without discrimination or reprisals
- Residents have the right to prompt efforts by the nursing facility to resolve grievances the resident may have
|Tasks of the group
Why have a resident council?
The lives of nursing facility residents are heavily controlled by laws, rules, and policies set by the government and the nursing facility. Compromises in life-styles become necessary due to health problems and the close quarters within which residents live. These compromises and controls can make nursing facility residents feel like their opinions and preferences do not matter. Many nursing facility residents are not content to give up control over their lives. They want an active part in life and the chance to influence decisions which affect them. A resident council gives them that chance.
Effective resident councils can:
- Improve communications within their nursing facility; resident councils are known as places to get the facts and can help dispel rumors
- Help identify problems early when it is easier to do something about them; resident councils are an important part of the grievance process and help avoid the necessity of discussing problems with outside sources
- Serve as a sounding board for new ideas; resident councils allow participants to review and comment on proposed nursing facility policies and operational decisions which affect resident life and care
- Help individuals speak out about what is bothering them and help overcome fear of retaliation; when people are dependent on others for their needs, there is fear that they may make others so angry that care will be withheld
- Improve the atmosphere of the homes where they are active; staff members appreciate having residents share in some of the responsibilities of planning activities and events
- Promote friendship; by working in small groups which meet regularly, residents have a chance to get to know each other well
Do residents have a right to meet as a council?
Yes; State and federal laws give residents the right to meet as a council. At the time of admission, nursing facilities are required to inform new residents of their right to establish a council if one does not exist or to participate in the activities of a council which is already operating. The nursing facility must also provide space for meetings and assistance to residents who need the nursing facility’s staff, relatives, friends, or members of community organizations to participate in the meetings. The nursing facility must designate a staff person to serve as liaison to the council, to attend council meetings as requested, and to provide needed support services and assistance such as typing of minutes and correspondence.
How are resident councils organized?
The structure of a resident council can be the key to its success. The structure to choose depends upon the size of the nursing facility and the abilities and needs of the residents.
In small nursing facilities, resident councils are frequently operated as open meetings for all interested residents. There may be a steering committee to help plan meeting agendas and to follow up on decisions made by the council. Larger nursing facilities often have councils made up of representatives either elected or recruited from different sections of the nursing facility. In this style, council representatives are responsible for seeking the concerns and suggestions of residents in their area and for bringing this information to the meetings.
A model resident council
- Residents run the council
- The council receives support, not interference, from nursing facility staff
- Residents feel comfortable speaking freely; raising issues and concerns
- Residents are treated in a dignified manner, and their issues and concerns are taken seriously
- Issues and concerns are promptly addressed by the appropriate departments
- Residents have access to information as needed and as requested by the council
- Different committees address the issues and concerns raised, and then follow up at the next meeting
- The council is a vehicle to bring about positive changes for all residents in the nursing facility
Notes on resident councils
- The nursing facility must provide space, privacy, and staff support
- Normally, only the staff liaison person is present at the meetings; any other staff members come at the invitation of the council; liaison staff is present only if the group requests assistance
- The ombudsman should be present and may serve as facilitator
- The Older Americans Act of 1965: “The ombudsman shall…personally or through representatives of the office, provide technical support for the development of resident councils to protect the well-being and rights of residents.”
- The councils do not have to have officers; of course, they may choose to organize in such a manner
- The nursing facility must provide assistance to residents in writing up requests from the group
- The facility must respond to such requests; requests may be in the minutes
- The ombudsman should review the minutes/records made of council meetings by staff to insure they accurately reflect the council’s actions/desires
- The nursing facility must listen to council views, act upon their recommendations, grievances concerning proposed policy, and operational decisions affecting resident care and life
- The council should focus on suggestions for improvement, not just complaints
- Structure council meetings so that residents experience success; confidence will build on their accomplishments
- Council meetings do not have to be held monthly; the residents decide the frequency; at first, weekly meetings might be good
- Ombudsmen need to insist that the meetings take place as scheduled; absence of the staff liaison is not a reason to cancel
- Residents can meet alone, with the ombudsman, or with a substitute staff liaison
In January 2015, the Department of Labor updated the Fair Standards Labor Act (FSLA) rules for homecare workers. Under this new Home Care Final Rule, most home care workers must be paid the federal minimum wage and receive overtime pay. To help consumers and families understand their new responsibilities, the Department of Labor has released a new resource to explain the rules.
The Guide outlines who needs to follow the new rules and explains to consumers and caregivers how to comply with the rules with helpful examples and checklists.