(a)

1. (1) In accordance with federal law, ombudsman representatives who directly observe abuse are not mandated reporters with regard to work on behalf of residents.

2. (2) However, they shall do the following in the case of directly observed abuse:

   1. (A) Make every effort to ensure that residents are safe and comfortable;
   2. (B) Seek consent from the resident to disclose resident-identifying information to appropriate agencies and to the facility when appropriate; and
   3. (C) Seek consent from the resident’s representative if the resident is unable to communicate informed consent or authorization using the process described in 20 CAR § 432-1003.

(b) An ombudsman representative shall not report suspected abuse, neglect, or exploitation of a resident when a resident or resident representative has not communicated informed consent to such report except in situations where the resident is unable to communicate informed consent to the ombudsman representative and all of the following circumstances exist:

1. (1) The resident has no resident representative, or the ombudsman representative has reasonable cause to believe that the 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 reasonable cause to believe that an action, inaction, or decision may adversely affect the health, safety, welfare, or rights of the resident;
3. (3) The ombudsman representative has no evidence indicating that the resident would not wish a referral to be made;
4. (4) The ombudsman representative has reasonable cause to believe that it is in the best interest of the resident to make a referral; and
5. (5) The ombudsman representative receives the approval of the State Long-Term Care Ombudsman.

(c) If a complaint or an investigation indicates suspected abuse or neglect of a resident, the ombudsman representative shall:

1. (1)

   1. (A) Advise the resident, complainant, or witnesses to report the matter to the Office of Long-Term Care, the Adult Protective Services Unit of the Department of Human Services, or law enforcement as appropriate.
   2. (B) The ombudsman representative should offer assistance to any individual who wants to report abuse or neglect;
2. (2) Request the permission of the resident or resident representative to report suspected abuse or neglect to the Department of Human Services, the Adult Protective Services Unit of the Department of Human Services, or law enforcement if the resident or representative is unwilling to report themselves;
3. (3) If the complainant is a mandated reporter, remind the complainant of their duty to report and to file a complaint with the appropriate authority; and
4. (4) Advocate for and follow the resident’s wishes to the extent that the resident can express them, even if the resident has limited decision-making capacity.

(e) When the resident is the alleged victim of abuse, neglect, or exploitation and is unable to provide consent, the ombudsman representative shall:

1. (1) Check to see if the resident has a guardian or resident representative;

2. (2) If there is no guardian or representative and the ombudsman representative has reason to believe that the resident is a victim of abuse, neglect, and/or exploitation, contact the Office of the State Long-Term Care Ombudsman to:

   1. (A) Discuss the case;
   2. (B) Seek guidance; and
   3. (C) Obtain approval to take further action.

(f) When a resident refuses to give consent to report suspected abuse or neglect, the ombudsman representative shall:

1. (1) Attempt to determine why the resident refused or withdrew consent, considering factors such as:

   1. (A) Past response of facility or agency to complaints;
   2. (B) The resident’s relationship with the staff; and
   3. (C) The experience of this resident or other residents in the facility or in other facilities related to this type of complaint; and
2. (2) Notify the Regional Ombudsman and Office of the State Long-Term Care Ombudsman of the resident’s refusal to report.

(g)

1. (1) If the resident is able to consent and refuses to provide consent, the abuse, neglect, or exploitation may not be disclosed.

2. (2) The ombudsman representative shall:

   1. (A) Increase the frequency of visitation to the resident; and
   2. (B) Without coercion, inquire if circumstances have changed and the resident wishes action taken on their behalf and with their direction.

(i) If a complaint indicates suspected financial exploitation of a resident with capacity, the ombudsman representative shall:

1. (1) Encourage the caller to:

   1. (A) Make a police report;
   2. (B) Contact legal services; or
   3. (C) Hire a private attorney; and
2. (2) Open a case if there is a threat of involuntary transfer or discharge or if a resident requests ombudsman program assistance.

(j) If a complaint indicates suspected financial exploitation of a resident without capacity, the ombudsman shall:

1. (1) Encourage the caller to make a police report;
2. (2) Open a case if there is a threat of involuntary transfer or discharge;
3. (3) Contact the resident representative, if any; and

4. (4) Contact the State Long-Term Care Ombudsman to consider appropriate options on behalf of the resident and in support of the resident’s:

   1. (A) Safety;
   2. (B) Health;
   3. (C) Welfare; and
   4. (D) Rights.