The Long-Term Care Ombudsman Program: The Long-Term Care Ombudsman Program: Advocating for Residents and Systemic Change Bonnie Sloma, Senior Vice President, People Inc. Lindsay Heckler, Staff Attorney/Legal Liaison Region 15 LTCOP, LSED

Ombudsman Program Mission To protect the health, safety, welfare, and human and civil rights of people living in nursing homes and adult care facilities* by serving as an advocate and resource for those persons. *For purposes of this presentation, nursing homes and adult care facilities are referred to as Long Term Care (LTC) Facilities. 2

The Ombudsman Program Authority under the Federal Older Americans Act Required each state to have an Ombudsman Program. Access to all LTC facilities without interference. Access to residents and records (HIPAA exempt). Investigate and resolve resident complaints. 3

Hierarchy of the NYS Ombudsman Program 4 Ombudsman Volunteers Program Coordinators State Ombudsman Administration on Aging Congress Lisa Newman-People Inc. Acting State Ombudsman- Gregory Novack

The New York Ombudsman Program  Structure State- NYS Ombudsman, 3 Assistant State Ombudsmen, Legal Counsel Local – 15 Program Coordinators and 976 Certified Volunteer Ombudsman 5

Responsibilities of a Long-Term Care Ombudsman Investigate & Resolve Complaints Educate consumers/providers on residents’ rights Advocate for quality care in LTC facilities Promote development of resident/family councils Systemic change agent 6

2015 FFY NYS LTCOP Highlights  The NYS Ombudsman Program: Responded to 52,837 requests for information and consultation about LTC questions and issues from residents, caregivers and the general public. Investigated 1,732 complaints, successfully resolving 74% of all complaints. Regularly visited 62 % of nursing homes and 41% of adult care facilities to provide residents with access to advocacy assistance and to monitor quality of care. Conducted 128 community education sessions on residents’ rights and LTC issues. Volunteers contributed 102,972 hours of service in support of advocacy on behalf of LTC residents. 7

Resident Rights 8 Respect Privacy Dignity Citizenship

Resident Rights 9 Financial Transfer/Discharge Participation in Care Visitors

Example: How would you handle?  While making a routine visit to Sunnyside Nursing Home, a resident approaches you to discuss his concerns.  “I rang my call light for assistance to the commode and no one came to check on me for over an hour. I tried to get to the commode but fell and had an accident. I kept screaming for help and don’t recall how long it took for someone to assist me. When the aide did come to check on me she was rude and condescending. ‘You should just wear a diaper! You know there is only one aide on the floor at night!’”  What rights are being violated? How would you handle this? 10

LTCOP and Systemic Change  Federal regulations direct State LTCOPs and Local LTCOPs to engage in systems advocacy.  Systems advocacy: measures to effectuate change to a system (ie long term care facility) to benefit the residents.  Region 15 is unique in its partnership with LSED  Two systems advocacy measures:  Educating LTC facilities on NYS Healthcare Proxy Law and Determination of Incapacity.  Jimmo: there is no Improvement standard for Medicare coverage of skilled care/physical therapy. 11

Competency v. Capacity; Power of Attorney v. Healthcare Proxy  Competency: A legal finding conducted during guardianship hearings to allow the court to determine mental capacity.  Capacity: The ability to understand the nature and effect of one’s acts.  Power of Attorney: Legal document that enables the agent to take financial action on the principal’s behalf  Healthcare Proxy: Enables the agent to make healthcare decisions on the principal’s behalf when the principal does not have capacity to make healthcare decisions. 12

LTCOP and Systemic Change: Healthcare Proxy Law and Capacity  The healthcare proxy agent’s authority starts when the facility physician determines the resident lacks the capacity to make healthcare decisions.  Steps for determining capacity to make healthcare decisions: 1. Physician must find that the resident lacks capacity and note the resident chart describing the cause, nature, extent and probable duration of incapacity; 2. Resident must be informed orally and in writing of the incapacity determination; 3. After initial incapacity determination is made, physician must confirm resident still lacks capacity and note it in the resident’s chart prior to complying with new decisions by the agent.  If the resident objects to the determination of capacity or the agent’s decision, the facility must follow the resident’s directive! 13

LTCOP and Systemic Change: Jimmo Standard  What is Jimmo?  Case brought on behalf of a nationwide class of Medicare beneficiaries who were denied coverage/access to care because they did not show improvement potential.  CMS contractors were not following federal law. Settlement required CMS educate its contractors and providers on the proper standard.  What does Jimmo mean?  Skilled services should not be stopped solely based on lack of improvement  Medicare coverage depends on THE NEED FOR SKILLED CARE; not the presence or absence of potential for improvement. 14

Jimmo: Medicare Coverage  What is skilled care?  Care so inherently complex that it can only be safely and effectively performed by, or under the supervision or, professional personnel.  This includes therapy.  Includes services needed to maintain current levels or to slow deterioration.  Proper standard as clarified by Jimmo:  Is a skilled professional needed to ensure care is safe and effective?  Is a qualified nurse or therapist needed to provide or supervise the care?  If yes to both, then Medicare shall* cover the services regardless whether skilled care is to improve or maintain current levels, or slow deterioration. * This is a guide to Medicare coverage and assumes the resident has met the other requirements for Medicare coverage in a nursing home such as the 3 day+ inpatient stay. 15

Call for Volunteers!  Volunteers:  The heart of the Ombudsman Program.  Advocates, mediators and partners.  Offer encouragement and support to residents.  Help residents understand their rights and resolve problems.  Link between residents, staff, and government/community resources.  117 LTC Facilities in Region 15  Time involved:  24 hour certification course;  2 hours per week. 16

Contacting the LTCOP  For Complaints, Consultation, Volunteer Opportunities: Region 15 LTCOP: People Inc. Lisa Newman, Coordinator: ; (toll free) inc.org/senior_services_home/ombudsman_program/index.html inc.org/senior_services_home/ombudsman_program/index.html  NY Office of the State Long Term Care Ombudsman

Thank you! Bonnie Sloma Senior Vice President People Inc Lindsay Heckler Staff Attorney/Legal Liaison Region 15 LTCOP Legal Services for the Elderly, Disabled, or Disadvantaged of WNY