Page 109 - Ombudsman Participant Manual Optimized_Neat

Regulations Tip Sheet

Definition: All levels of long-term care have some sort of “regulations”. Regulations are law – some federal and some
state. Providers are required to operate in compliance with the laws that pertain to them. Nursing homes have both
federal and state regulations. Personal Care homes, domiciliary care homes and assisted living facilities have only state
regulations. LIFE programs (PACE) have federal regulations only. Having a basic knowledge of the regulations and how to
research them is key to providing good advocacy. The regulations, however, can be complicated to read and research
without some education or training. Since the rights of the residents, and the responsibilities of providers, are found
within those regulations, it is important that ombudsmen work toward some proficiency in this area.

Completed by: Ombudsmen read and research regulations. Ombudsmen use that knowledge to educate and empower
consumers and to provide Information and Assistance to residents, providers and the public.

Caution: Ombudsmen are NOT regulators and need to be careful when having regulatory discussions with providers.
Ombudsmen are not capable of “blessing” decisions of providers about compliance and, since we are RESIDENT
advocates, we would not advise providers on regulatory requirements prior to taking adverse action against a resident.
For example, we may inform a provider that, in our opinion, a formal notice of involuntary discharge does not meet the
regulatory requirements – but, we would not advise them on ways to bring that notice into compliance. Instead, we’d
refer them to their respective regulatory field office for guidance.

When/How: Regulations are open to some interpretation and, as such, are often a little ambiguous in terms of real-life
measures. Both nursing home and personal care home regulatory entities have issued “Guidance to Surveyors” which
provides interpretive guidelines for measuring compliance. For instance, a facility is required to protect the dignity of
each resident in their care. Something like that can be difficult to measure. If an ombudsman believes the actions or
policies of a provider violate that requirement to protect dignity, a discussion may need to be held between the
ombudsman and the survey team in order to explain how we came to that conclusion.

Another caution- some situations are addressed by multiple regulations and requirements. For instance, an issue with the
way a shower Is provided in a nursing home may be a dignity issue, a nursing issue, a resident rights issue, etc.
Ombudsmen often need to be “creative” when using regulatory research to advocate for residents with a concern. The
regulations may not address the SPECIFIC situation an ombudsman is addressing, and some networking and brainstorming
may lead to other regulatory requirements to research in order to obtain the desired outcome.

EXAMPLE: A nursing home resident lived in a nursing home that was housed within a hospital. The rooms had oxygen
ports in the walls of each resident room. A resident refused to leave her room for activities, etc. because the facility
refused to provide a portable oxygen tank to her, and she was fearful to not have access to oxygen should she need it.
She had diagnoses of breathing issues and used oxygen “as needed”. The facility said that they fulfilled their requirement
of providing “prn” oxygen via the portal in the room and they were not required to absorb the cost of portable tanks in
addition to that. The ombudsman could not find any specific reference to a requirement to provide portable oxygen
tanks, but she DID FIND a reference to restraints and successfully argued that the failure to provide portable oxygen
“restrained” the resident to her room and the portable tanks were provided.

The ombudsman network is large and diverse. Your fellow ombudsmen love to brainstorm around challenges. We
encourage you to use the on-line “Ombudsman Google Group” to post requests for ideas when faced with a challenging
situation. You can also reach out to your regional specialist for assistance with research and perspective. Finally, the
state office staff can elevate certain regulatory concerns when the local ombudsman is struggling with a field office on an
issue related to a resident concern. Do not hesitate to connect with your regional for assistance in elevating your
situation.

Documentation Expectations: Regulatory research – done outside of casework- is a program activity and is captured
under “Ombudsman Administration”. See the Well Sky OmbudsMan Desk Reference for specific guidance.

Office of the LTC Ombudsman
Version 1.0 September 2020
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