Attorney General: Honorable Edith Gelt Prague, Department on Aging, 1991-032 Formal Opinion, Attorney General of Connecticut

Attorney General's Opinion

Attorney General, Richard Blumenthal

November 1, 1991

Honorable Edith Gelt Prague
Department on Aging
175 Main Street
Hartford, CT 06106-1861

Dear Commissioner Prague:

This is in response to your request for advice regarding access to nursing home facilities by patient advocates and ombudsmen. You have asked the following questions:

1. Does an Ombudsman/Patient Advocate have access to a facility to visit, observe conditions and operation only in response to a specific complaint?

2. Must an Ombudsman/Patient Advocate notify the administration or staff of the reason for their presence?

3. Can a facility require that a schedule including date and time of visits be posted with the intent of limiting access?

4. May a facility announce the presence of the Ombudsman/Patient Advocate over the PA system?

5. Can the facility require that a staff person accompany the Ombudsman/Patient Advocate?

6. Can the facility refuse to send an Accident and Incident or A500 report to the Ombudsman Office?

I.

An ombudsman/patient advocate is not limited in his/her access to a facility only in response to a specific complaint.

In response to your first question, Conn. Gen. Stat. 17a-405(a)1 provides for the establishment of a nursing home ombudsman office within the state department on aging "which shall be responsible for receiving and resolving health and human services complaints affecting patients or residents in nursing home facilities as defined in section 19a-521." The commissioner on aging shall appoint a state ombudsman and assistant regional ombudsman. Id. The state ombudsman, in consultation with the regional ombudsmen, shall appoint patients' advocates for each region insufficient number to serve the nursing home facilities within such region. Conn. Gen. Stat. 17a-405(b), 17a-406(a).

The duties of the patients' advocates are set forth as follows:

Patients' advocates, under supervision of the regional ombudsmen, shall assist the regional ombudsmen in the performance of all duties and responsibilities including, but not limited to, the following: (1) The establishment of program policies and procedures for receiving, evaluating, referring and resolving complaints from nursing home facility patients and families, employees of nursing home facilities and the general public, relating to nursing home facilities; (2) the carrying out of established policies and procedures, including receipt of appropriate complaints and the reporting in writing on any action taken; (3) the collaboration with state officials and other appropriate organizations to clarify complaints and the pursuit of all necessary steps to resolve such complaints; (4) the provision of information as requested to state agencies and organizations; (5) the collection of data for research and analysis to substantiate recommendations for policy and program changes and the study of the problems encountered therein: (6) the identification and documentation of significant problems affecting a large segment of the nursing home facility population and the communication of the documented problem area to groups or agencies with similar concerns and jurisdictional authority to deal with such problems: (7) the establishment of local liaison and working relationships with the media, speakers bureaus and civic organizations and the development of an ongoing program of publicizing the role of the state ombudsmen office and the patients' advocates; (8) the submission of legislative recommendations to the general assembly; (9) the facilitation of private legal action for patients if necessary; (10) assuring that the patients' bill of rights, as established in section 19a-550, is properly posted and is distributed to each patient or, if such patient is a minor or incompetent, to his relative, guardian, conservator or sponsoring agency and assuring that all elements and provisions of the patients' bill of rights are adhered to properly; (11) assuring that all mandated posting of the availability of reports has been complied with; and (12) aiding patients in administrative procedures relating to transfers and discharges, and aiding in insuring that patients are satisfied with the management of their financial affairs.

Conn. Gen. Stat. 17a-411(a). See also Conn. Agencies Reg. 17-136d-2(c)(3).

The duties listed subdivisions (4) through (12) above are proactive in nature and are in addition to those duties specific to the receiving and resolving of complaints. These duties cannot be accomplished if the access to facilities is limited to responding to specific complaints. The legislative history of section 17a-411(a) also reflects the establishment of a system of patient advocates to "visit nursing homes to assure that patients are receiving the services to which they are entitled." H.B. 8550, 1975 House Proceedings 5620 (Rep. Cohen). The patient advocate is intended to "be an outside force to assure and oversee the operation of the home and hopefully, will be essential to reform since he will emphasize [the] need for corrective measures pertinent to the patient's needs." H.B. 8550, 1975 House Proceedings 5621 (Rep. Connolly). The patient system was not established simply for the handling of complaints, but as a "monitoring system to check on [the] quality of care of our elderly disabled patients." H.B. 8550, 1975 House Proceeding 5623 (Rep. Connolly). See also H.B. 8037, 1977 House Proceedings 5728 (Rep. Orcutt) (advocates will be "regularly checking to see what kind of care [the elderly] are having").

Thus, an ombudsman 2 or patient advocate is not limited in his/her access to a facility only in response to a specific complaint.

II

An ombudsman/patient advocate need not notify the facility administration or staff of the reason for his/her presence, nor may a facility require the posting of a schedule of visit, announce the presence of the ombudsman/advocate or require that a staff person accompany the ombudsman/advocate.

In response to your second through fifth questions regarding prior notification of administration/staff, posting of a schedule or prior announcement of visits by advocates/ombudsmen, and the reason, and the accompaniment by facility staff during such visits, the normal course of events has been that the patient's advocates/ombudsmen chooses to visit at different time, as necessary. The advocate/ombudsman may vary the day and time of visits in order to reach all patients. Days and times of visits are also varied in order to observe patients and staff under different conditions so as to enhance knowledge of a facility's operation and better understand how a patient functions in his/her environment.

Apparently, experience has shown that spontaneous or unannounced visits allow for anonymity and confidentiality for both patients and staff and provide more accurate observations of the routine workings of a facility.

The only restriction regarding visits to facilities by advocates/ombudsmen is contained in Conn. Agencies Reg. 17-136d-4(b)(2) which provides that "investigations shall be carried out at reasonable times and without interference with patient care." Moreover, Conn. Gen. Stat. 19a-531, entitled "advance disclosure of inspection, investigation or complaint prohibited, " provides:

Any employee of the department of health services or the department on aging or any regional ombudsman who gives or causes to be given any advance notice to any nursing home facility, directly or indirectly, that an investigation or inspection is under consideration or is impending or gives any information regarding any complaint submitted pursuant to section 17a-413, or 19a-523 prior to an on-the-scene investigation or inspection of such facility, unless specifically to give advance notice, shall be guilty of a class B misdemeanor and may be subject to dismissal, suspension or demotion in accordance with chapter 67.

This section was added after the receipt of testimony that nursing homes were given advance notice of pending inspections which gave the nursing homes time to "spruce up for the inspection." H.B. 8550, 1975 House Proceedings 5624 (Rep. Morrison). In addition, Conn. Gen. Stat. 17a-415(a) provides:

Any nursing home facility which refuses to permit the state ombudsman or any regional ombudsman or any patients' advocate entry into such facility or refuses to cooperate with the state ombudsman, or any regional ombudsman or any patients' advocate in the carrying out of their mandated duties and responsibilities enumerated under sections 17a-405 to 17a-417, inclusive, 19a-523, 19a-524, 19a-530, 19a-531, 19a-532 and 19a-554 or refuses to permit patients or staff to communicate freely with the state ombudsman or any regional ombudsman or any patients advocate shall be subject to the penalty prescribed for a class B violation under section 19a-527.

(Emphasis added). Finally, Conn.Gen. Stat. 17a-412(d) speaks to the confidentiality of reports or complaints of abuse, neglect, exploitation or abandonment and, in particular, provides that "in no case shall the name of the patient or complainant be revealed, unless such person specifically requests such disclosure or unless a judicial proceeding results from such report or complaint." See also Conn. Agencies Reg. 17-136d-4(c)(1).

In short, the nursing homes do not control the patient advocate program. See H.B. 8550, 1975 House Proceedings 5621 (Rep. Connolly). It is clear that one of the keystones of the program is the assurance of anonymity and confidentiality and the prevention of reprisals against those who choose to speak with the advocate/ombudsman. Announcement, posting or notification of the advocate/ombudsman's presence in the facility, or reason for the visit, and accompaniment by facility staff could negatively impact on such goals, hinder accurate observations, and limit the residents' or staff's ability to speak freely without the fear that the advocate/ombudsman's movements in the facility are being closely monitored, Not only do the measures mentioned minimize the effectiveness of the program, but are contrary to the intent of section 17a-405 et seq. and implementation of the program.

Therefore, an ombudsman/patient advocate need not notify the facility administration or staff of the reason for his/her presence nor may a facility require the posting of a schedule of visits, announce the presence of the ombudsman/advocate, or require that a staff person accompany the ombudsman/advocate.

III

A facility may not refuse to send an accident or incident report to the Ombudsman Office.

In response to your last question as to whether the facility can refuse to send an accident or incident report to the Ombudsman Office, such reports are mandated by Conn. Gen. Stat. 17a-412 which provides, in part:

(a) On and after July 12, 1977, any physician or surgeon licensed under the provisions of chapter 370 or 371, any resident physician or intern in any hospital in this state, whether or not so licensed, and any registered nurse, licensed practical nurse, medical examiner, dentist osteopath, optometrist, chiropractor, podiatrist, social worker, clergyman, police officer, pharmacist, physical therapist, nursing home facility administrator, nurses aide or orderly in a nursing home facility, any person paid for caring for a patient in a nursing home facility, any staff person employed by a nursing home facility and any regional ombudsman or patients' advocate who has reasonable cause to suspect or believe that a patient in a nursing home facility has been abused, neglected, exploited or abandoned, or is in a condition which is the result of such abuse, neglect, exploitation or abandonment, shall within five calendar days report such information or cause a report to by made in any reasonable manner to the nursing home ombudsmen office. Any person required to report under the provision of this section who fails to make such report within the prescribed time period shall be fined not more than five hundred dollars.

. . . .

(c) Any other person having reasonable cause to believe that a patient in a nursing home facility is being, or has been, abused, neglected, exploited or abandoned, or any person who wishes to file any other complaint regarding a nursing home facility, shall report such information in reasonable manner to the nursing home ombudsmen office.

(Emphasis added). A form for reporting purposes shall. 3 Therefore, a facility may not refuse to file an accident or incident report with the Ombudsmen Office.

Very truly yours,

RICHARD BLUMENTHAL
ATTORNEY GENERAL

Jane D. Comerford
Assistant Attorney General

RB/JDC/js


1 Conn. Gen. Stat. 17a-405 to 17a-417, inclusive , concerning the Nursing Home Ombudsmen Office were formerly cited at Conn. Gen. Stat. 17-135a to 17-135m, inclusive.

2 The regional ombudsman is responsible for assisting the advocates in resolving problems and investigation problems and complaints brought to them by advocates. Conn. Gen. Stat. 17a-410. Further, the state ombudsman or any regional ombudsman, as well as patients' advocates, in addition to investigating complaints, may observe the functioning of a facility and may interview residents. See Conn. Agencies Reg. 17-136d-4.

3 Complaints or reports may be filed with the local patients' advocate, the regional ombudsman or the state ombudsman. Conn. Agencies Reg. 17-136d-3(c)(2).


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