SECTION 88.305. Complaints

(a) A local ombudsman entity must:

(1) ensure that a person is allowed to make a complaint as follows:

(A) in writing, including by email;

(B) in person; and

(C) by telephone;

(2) initiate a complaint if the local ombudsman entity becomes aware of circumstances that may adversely affect the health, safety, welfare, or rights of a resident;

(3) respond to the complainant within two business days after receipt of the complaint, except as provided in subsection (c)(2) of this section regarding a complaint that is an allegation of abuse, neglect, or exploitation of a resident; and

(4) ensure that a certified ombudsman initiates an investigation of a complaint as soon as practicable after receipt of the complaint.

(b) A local ombudsman entity must ensure that a certified ombudsman investigates complaints in accordance with this subsection.

(1) If a certified ombudsman receives a complaint, the certified ombudsman must:

(A) document the nature of the complaint;

(B) determine:

(i) whether the complaint is appropriate for the certified ombudsman to investigate;

(ii) if any attempts have been made to resolve the complaint; and

(iii) the outcome sought by the complainant;

(C) if the complainant is not the resident, inform the complainant that the complaint will be investigated only if:

(i) the resident or legally authorized representative consents to the investigation; or

(ii) in accordance with 45 CFR §1324.19(b)(2)(iii), the resident is unable to consent and has no legally authorized representative; and

(D) in accordance with the Ombudsman Policies and Procedures Manual:

(i) seek the consent of the resident or legally authorized representative to investigate the complaint; or

(ii) determine if authority exists to investigate the complaint because, in accordance with 45 CFR §1324.19(b)(2)(iii), the resident is unable to consent and has no legally authorized representative.

(2) If the complainant is the resident and the certified ombudsman has determined the complaint is appropriate for ombudsman investigation and has obtained consent to investigate the complaint or has authority to investigate the complaint in accordance with 45 CFR §1324.19(b)(2)(iii), the certified ombudsman must:

(A) determine what, if any, federal or state law or rule applies to the complaint;

(B) observe the environment of the resident and situations in the LTC facility related to the complaint;

(C) interview relevant witnesses;

(D) review relevant records, if necessary, including confidential information if consent or other authority is obtained in accordance with the Ombudsman Policies and Procedures Manual;

(E) if the complaint relates to a regulatory violation, inform the resident of the option to report the complaint to the appropriate regulatory or law enforcement authority;

(F) work with the resident to develop a plan of action for resolution of the complaint;

(G) encourage the resident to participate in the process to resolve the complaint; and

(H) determine the resident’s satisfaction with the outcome of the investigation.

(3) If the complainant is not the resident and the certified ombudsman has determined the complaint is appropriate for ombudsman investigation and has obtained consent to investigate the complaint, the certified ombudsman must:

(A) communicate with the resident about the complaint and obtain the resident’s perspective about the complaint, if the resident is able to communicate;

(B) determine what, if any, federal or state law or rule applies to the complaint;

(C) inform the resident or legally authorized representative of the residents’ rights and other law related to the complaint;

(D) observe the environment of the resident and situations in the LTC facility related to the complaint;

(E) interview relevant witnesses;

(F) review relevant records, if necessary, including confidential records if consent or other authority is obtained in accordance with the Ombudsman Policies and Procedures Manual;

(G) if the complaint relates to a regulatory violation, inform the resident or the legally authorized representative of the option to report the complaint to the appropriate regulatory or law enforcement authority;

(H) work with the resident or legally authorized representative to develop a plan of action for resolution of the complaint;

(I) encourage the resident or legally authorized representative to participate in the process to resolve the complaint; and

(J) determine the resident’s or legally authorized representative’s satisfaction with the outcome.

(4) If the complainant is not the resident and the certified ombudsman has determined the complaint is appropriate for ombudsman investigation and has authority to investigate the complaint in accordance with 45 CFR §1324.19(b)(2)(iii), the certified ombudsman must:

(A) determine what, if any, federal or state law, regulation, or rule applies to the complaint;

(B) determine how many residents are potentially affected by the complaint;

(C) observe the environment of the resident and situations in the LTC facility related to the complaint;

(D) interview relevant witnesses;

(E) review relevant records, if necessary, including confidential records if consent or other authority is obtained in accordance with the Ombudsman Policies and Procedures Manual; and

(F) determine whether the complaint is satisfactorily resolved.

(5) If the resident or legally authorized representative declines to consent to have the complaint investigated, the certified ombudsman must:

(A) not investigate the complaint;

(B) inform the complainant that the complaint will not be investigated because the resident or legally authorized representative declined to consent; and

(C) advise the complainant of his or her options to pursue resolution.

(6) If a certified ombudsman identifies a complaint that affects a substantial number of residents in an LTC facility, the certified ombudsman may investigate and work to resolve the complaint without obtaining consent from each resident to investigate the complaint. In investigating the complaint, a certified ombudsman may review confidential records only if consent or other authority is obtained in accordance with the Ombudsman Policies and Procedures Manual.

(7) A certified ombudsman must document the complaint investigation in the ombudsman database in accordance with the Ombudsman Policies and Procedures Manual.

(c) If a complaint is an allegation of abuse, neglect, or exploitation of a resident, a certified ombudsman:

(1) must not investigate whether abuse, neglect, or exploitation of a resident has occurred;

(2) within one business day after receipt of the complaint, inform the complainant of the appropriate investigative authority to report the allegation; and

(3) comply with the Ombudsman Policies and Procedures Manual.

(d) In accordance with 45 CFR §1324.11(e)(3)(iv), a representative of the Office must not, except as provided in §1324.19(b)(5) - (8), report allegations of abuse, neglect, or exploitation under state law, including Texas Human Resources Code, Chapter 48, without appropriate consent or court order.

(e) Confidential information described in §88.304(a) of this subchapter (relating to Disclosure of Confidential Information; Exclusion from Reporting Requirements Regarding Abuse, Neglect, or Exploitation; and Provision of Records to the Office) may only be disclosed in accordance with §88.304 of this subchapter.

Source Note: The provisions of this §88.305 adopted to be effective April 5, 2018, 43 TexReg 2007