(a)

1. (1) Ombudsman program representatives investigate complaints in order to verify the general accuracy of the complaint and to gather information to resolve it.

2. (2) The investigation shall be conducted in a timely and thorough manner in order to:

   1. (A) Identify the relevant issue areas raised by the complaint;
   2. (B) Determine the sequence of investigatory steps;
   3. (C) Assemble all necessary facts;
   4. (D) Attempt to verify the complaint; and
   5. (E) Seek resolution of the complaint to resident satisfaction.

(b) Regardless of the source of the complaint, i.e., the complainant, including when the source is the ombudsman, the ombudsman representative must support and maximize resident participation in the process of resolving the complaint as follows:

1. (1) The ombudsman representative shall offer privacy to the resident for the purpose of confidentially providing information and investigating and resolving complaints;

2. (2) The ombudsman representative shall personally discuss the complaint with the resident, or resident representative if the resident is unable to communicate informed consent, in order to:

   1. (A) Determine the perspective of the resident or resident representative;
   2. (B) Request the resident or resident representative to communicate informed consent in order to investigate the complaint;
   3. (C) Determine the wishes of the resident or resident representative 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. (D) Advise the resident, or resident representative where applicable, of resident or participant rights;
   5. (E) Work with the resident or resident representative to develop a plan of action for resolution of the complaint;
   6. (F) Investigate the complaint to determine whether the complaint can be verified; and
   7. (G) Determine whether the complaint is resolved to the satisfaction of the resident or resident representative;

3. (3) Where the resident is unable to communicate informed consent, and has no resident representative, the ombudsman representative shall:

   1. (A) Gather information to ascertain the resident’s wishes as if the resident was able to provide consent or direction and, finding no evidence to the contrary, will work to protect the health, safety, welfare, and rights of the resident;
   2. (B) Take appropriate steps to investigate and work to resolve the complaint in order to protect the health, safety, welfare, and rights of the resident; and
   3. (C) Determine whether the complaint was resolved to the satisfaction of the complainant; and

4. (4) In determining whether to rely upon a resident representative to communicate or make determinations on behalf of the resident related to complaint processing, the ombudsman representative shall ascertain the extent of the authority that has been granted to the representative:

   1. (A) Under court order, in the case of a guardian or conservator;
   2. (B) By a power of attorney or other document by which the resident has granted authority to the representative; or
   3. (C) Under other applicable state or federal law.

(d)

1. (1) Communication of informed consent may be made in writing, orally, or visually, including through the use of auxiliary aids and services, and such consent must be documented contemporaneously by the ombudsman representative.

2. (2) Auxiliary aids and services can include but are not limited to:

   1. (A) Sign language interpreting in person or by video remote interpreting;
   2. (B) Computer aids;
   3. (C) Exchange of written notes;
   4. (D) Assistive listening devices;
   5. (E) Yes/no questions with physical responses;
   6. (F) Audio recordings;
   7. (G) Magnification; and
   8. (H) Large print materials.

(f) The State Long-Term Care Ombudsman or designee shall refer the matter and 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 in the following circumstances:

1. (1) The resident is unable to communicate informed consent to the ombudsman representative and:

   1. (A) Has no resident representative, and the ombudsman representative has reasonable cause to believe that an action, inaction, or decision may adversely affect the health, safety, welfare, or rights of the resident or participant; or
   2. (B) The ombudsman representative has reasonable cause to believe that the resident representative has taken an action, inaction, or decision that may adversely affect the health, safety, welfare, or rights of the resident;
2. (2) The ombudsman representative has no evidence indicating that the resident would not wish a referral to be made;
3. (3) The ombudsman representative has reasonable cause to believe that it is in the best interest of the resident to make a referral; and

4. (4)

   1. (A) The ombudsman representative obtains the approval of the State Long-Term Care Ombudsman.
   2. (B) The State Long-Term Care Ombudsman shall reply within two (2) calendar days as practicable to any request for approval of disclosure under this provision.

(g) For all complaints in which the resident refuses or withdraws consent, the ombudsman representative shall:

1. (1)

   1. (A) Determine whether the type of complaint is recurring.
   2. (B) The ombudsman representative shall determine whether the circumstances merit other strategies toward resolution which would not disclose the identity of the resident who has withdrawn consent, i.e., with permission presenting the issue at a resident or family council;

2. (2) Attempt to determine why the resident refused or withdrew consent and consider the following factors:

   1. (A) Past responses of facility, such as failure to respond to complaints and/or retaliation against complainants;
   2. (B) The resident’s experience with facility staff; and
   3. (C) The experience of residents related to this type of complaint;
3. (3) Inform the resident that the Arkansas Long-Term Care Ombudsman Program may be contacted in the future regarding the withdrawn complaint or other complaints;
4. (4) Provide contact information such as a business card or brochure informing the resident how to contact the Arkansas Long-Term Care Ombudsman Program;
5. (5) Discontinue work on the individual complaint; and
6. (6) Document the case according to program policy.

(h) For all abuse and neglect complaints in which the resident is informed of potential risks and consequences for refusing to consent or withdrawing consent, the ombudsman representative shall:

1. (1) Complete the steps outlined in subdivision (g) of this section;
2. (2) Discontinue work on the complaint; and
3. (3) Report the consent withdrawal or refusal immediately to the Office of the State Long-Term Care Ombudsman and Regional Ombudsman in keeping with 20 CAR § 432-1006(f).

(i)

1. (1) When the program has an open case and the resident dies, the ombudsman representative shall:

   1. (A) Close the case;
   2. (B) Determine whether or not the complaint can be opened as a systemic case on behalf of other residents at the facility; and
   3. (C) Suggest to the complainant other referral options including:

(i) The Office of Long-Term Care;

1. (ii) Police;

   1. (iii) Private attorneys;

      1. (iv) Coroner; and
      2. (v) Etc., as appropriate.
2. (2) Regardless of the source of the information or complaint, the resident of, or applicant to, a long-term care facility is the Arkansas Long-Term Care Ombudsman Program’s client and all complainants shall be so informed.

(j) In order to investigate, verify, and attempt to resolve a complaint, the ombudsman representative shall take one (1) or more of the following steps as appropriate to the nature of the complaint and with the express consent of the resident:

1. (1) Research relevant:

   1. (A) Laws;
   2. (B) Rules;
   3. (C) Regulations; and
   4. (D) Policies;
2. (2) Observe the situation and evidence;
3. (3) Interview the resident and/or complainant;

4. (4) Interview any:

   1. (A) Staff;
   2. (B) Administration;
   3. (C) Physician;
   4. (D) Residents;
   5. (E) Friends; and
   6. (F) Family members;
5. (5) Identify relevant agencies, and interview or obtain information from agency staff;
6. (6) Examine any relevant records including clinical, medical, social, financial, and other records in keeping with access and confidentiality policies and procedures;
7. (7) Review any other information available to the ombudsman and pertinent to the investigation;
8. (8) Consider the most appropriate time to conduct an on-site visit;

9. (9) Consider combining these issues with other problems in the same:

   1. (A) Facility;
   2. (B) Corporation;
   3. (C) Agency; or
   4. (D) Program; and
10. (10) Determine the sequence of investigatory steps.

(k)

1. (1) An investigation shall minimally include the following investigative activities:

   1. (A) Face-to-face visit and interview with the resident or residents or resident representative or representatives; and

   2. (B)

      1. (i) Direct contact and interview with the complainant, which may be by:

(b) (b) A telephone call;

1. (c) (c) An e-mail; or

   1. (d) (d) A letter.

      1. (ii) However, direct contact with the complainant is not required if the complaint was made anonymously or if the complainant requests not to be contacted.

2. (2) Exceptions to face-to-face contact with the resident are as follows:

   1. (A) If the resident requested that he or she not be visited or contacted;
   2. (B) If the resident is the complainant and confirms that a face-to-face visit is not needed;
   3. (C) If the case involves a notice of involuntary transfer or discharge for nonpayment and the ombudsman representative is able to speak to the resident directly over the telephone and resolve the case without a face-to-face visit; and

   4. (D) If the case involves a Medicaid application and the ombudsman representative is able to speak to the resident directly over the telephone and resolve the case without a face-to-face visit.

      1. (l) The ombudsman representative shall seek the following information during the investigation of a complaint or problem:
3. (1) What has occurred or is occurring;
4. (2) When it occurred and whether the occurrence is ongoing;
5. (3) Where it occurred;
6. (4) Who was involved;
7. (5) Effect of the occurrence on a resident or residents or a participant;
8. (6) Reason for occurrence;
9. (7) What, if anything, the facility or other interested parties have done in response to the occurrence; and

10. (8) Resident’s or participant’s goals and wishes as a complaint resolution.

    1. (m)
11. (1) The ombudsman representative is not required to independently verify a complaint in order to seek resolution on behalf of a resident or participant.
12. (2) Resident or participant perception is a sufficient basis upon which an ombudsman representative can seek resolution of a problem or complaint.

(o)

1. (1) An abuse allegation must be referred to the state ombudsman immediately with:

   1. (A) The name of the resident and alleged perpetrator involved;
   2. (B) The time of the abuse;
   3. (C) The setting in which it occurred;
   4. (D) The name or names of any witness or witnesses; and
   5. (E) A brief description of the abuse.

2. (2)

   1. (A) The state ombudsman will follow up with appropriate action.
   2. (B) A volunteer ombudsman should not contact the Office of Long-Term Care directly.