Real People Real Problems An Evaluation of the Long-Term Care Ombudsman Programs of the Older Americans Act (1995) / Chapter Skim
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Conflicts of Interest
Conflicts of Interest
Pages 101-128
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From page 101... ...
Serving as a consumer presence in state and federal policy forums is another part of the ombudsman program's advocacy function. The LTC ombudsman is authorized to play a much more significant role than that of neutral mediator or problem solver.' If care in nursing and board and care (B&C)
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From page 102... ...
On organizations that may not house the Office of the State LTC Ombudsman and people serving as the state ombudsman:
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From page 103... ...
to operate the program directly or contract or designate another entity to serve as the Office of the State LTC Ombudsman] with (i)
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From page 104... ...
~1~) On providing legal counsel for the Office of the State LTC Ombudsman program: program: (g)
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From page 105... ...
will materially interfere with the lawyer's independent professional judgment in considering alternatives or foreclose courses of action that reasonably should be pursued on behalf of the client." The criterion offers a useful model for evaluating conflicts of interest in the context of the ombudsman program. Conceptual Variations The AoA, the aging network, and the ombudsman community for the elderly have not adopted or agreed upon a common definition of conflict of interest or a method to identify situations in which it occurs.
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From page 106... ...
The statement reiterates the structural prohibition in the OAA regarding the location of the ombudsman in a provider association or in art entity that licenses or certifies LTC facilities. TABLE 4.1 Statement on Conflicts of Interest of the National Association of State Long-Term Care Ombudsman Programs There is a potential for conflict of interest for the ombudsman within their organizational location as well as in the performance of their individual activities.
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From page 107... ...
suggests that the LTC ombudsman program encounters conflict of interest when other interests intrude upon, interfere with, or threaten to negate the primary mission of the organization or individual—that being to advocate without compromise on behalf of LTC facility residents. In part because of the lack of any parameters other than the exclusions set forth in the OAA, no sound data exist on the frequency of occurrence md magnitude of burden of conflicts of interest within the LTC ombudsman programs.
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From page 108... ...
It is almost impossible to eliminate all potential conflicts of interest because of how the LTC ombudsman programs operate and where they are located. This is especially true if the definition of situations where conflicts of interest arise is understood to include more than those noted in the OAA [see (f)
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From page 109... ...
Organizational location. The OAA specifically prohibits the Office of the State LTC Ombudsman from being housed in an entity that licenses or certifies LTC services or that is an association of LTC facilities.
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From page 110... ...
In states where the operation of the State LTC ombudsman program is not being contracted out, the majority of state officials take the position that the prohibition against placement in an agency that also licenses or certifies a LTC provider does not apply. Generally, these states are in compliance with the specific OAA conflict of interest provisions regarding location, but from the IOM committee's perspective these state ombudsman programs are prone to organizational conflicts of interest.
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From page 111... ...
. ~ Another Important aspect of the organizational location of the ombudsman program at the regional and local level stems from the OAA concept of "designation." Designation is the process by which the Office of the State LTC Ombudsman program determines which entities agencies that house local LTC ombudsman programs and individuals who perform the work—become part of the state office.
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From page 112... ...
Most local ombudsman programs have governing and, in some situations, advisor boards that set policy for the program or the overall organization beyond that set by the state ombudsman office itself. Policies that prohibit participation by LTC providers and regulators on the governing boards of ombudsman programs have not been widely adopted.
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From page 113... ...
The issue of multijob responsibilities has particular relevance at the state level, because the OAA requires the state ombudsman to serve full time. In local ombudsman programs, conflict of commitment is more likely to occur if resources are limited and staff are frequently called upon to take on more duties for the entire agency.
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From page 114... ...
For example, an ombudsman who is opposed for religious reasons to the consumption of alcohol may not be able to represent adequately the interests of a resident who complains that she is denied the right to enjoy such beverages in a LTC facility. Ombudsman training curricula should stress that ombudsman representatives must always be aware of their ethical values and how they affect their ability to act on behalf of residents.
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From page 115... ...
held by the ombudsman will be communicated? Although 44 percent of state ombudsmen participating in the IOM study stated that no conflict of interest situations were present at their state or local
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From page 116... ...
For example, a policy that prohibits ombudsmen from receiving income from investments in LTC facilities does nothing to address situations in which an ombudsman is given responsibilities that are unrelated to the mission of the ombudsman program. Willful Interference, Independence, and Conflicts of Interest The OAA expressly prohibits any willful interference with representatives of the ombudsman office in the performance of their official duties.
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From page 117... ...
Preexisting policies and procedures established for a legitimate purpose unrelated to the ombudsman may also limit the independence of an ombudsman, but aggressive enforcement of such regulations can be perceived by ombudsmen as acts of willful interference. The Office of the State LTC Ombudsman program (and designated representatives of the ombudsman)
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From page 118... ...
The nature of conflicts of interest with legal counsel plays out somewhat differently when state ombudsman programs, instead of being managed within the state government, are contracted by the state to entities outside government. For ombudsman programs operating in the nongovernment sector or using nongovernmental legal counsel, conflicts of interest relative to legal counsel should be analyzed and remedied (or avoided)
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From page 119... ...
The OAA requires such policies. Apart from mechanisms designed to affirmatively identify potential conflicts of interest, several mechanisms are commonly employed to remedy conflicts: prohibition, disclosure, disclosure with alternative options offered, disclosure with refusal to represent a potential client, everyday ethical behavior, and public accountability.
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From page 120... ...
If the local ombudsman entity is the source of the conflict, then it may be possible to transfer the case to an adjacent program in a neighboring jurisdiction. If all local ombudsman entities possess the same conflict, then the case can be transferred to the state ombudsman office.
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From page 121... ...
Both public and private sponsors that provide funds to support ombudsman programs may withhold a portion or all of their support until conflicts of interest are resolved. CONCLUSIONS AND RECOMMENDATIONS Determination of actual and potential conflicts of interest in the administration and operation of the LTC ombudsman programs depends primarily on two factors: (1)
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From page 122... ...
Of particular concern to the committee is the prevalence of potential and actual conflicts of interest that arise from the structural location of many of the Offices of the State LTC Ombudsman programs. Situations in which real, potential, and perceived conflicts of interest exist may be more prevalent than is typically understood, and perceived conflicts of interest may be as detrimental to operating the ombudsman program as real conflicts of interest.
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From page 123... ...
But neither should structural change be unduly delayed, especially in light of two significant factors: the enhanced involvement of state and local agencies on aging in LTC over the last decade and the likelihood of even more participation of the network on aging in the health care system as the financing and delivery systems of health care are reformed over the coming years. Taking these developments into consideration, the committee advises that now is the time to begin in a constructive manner to relocate those Offices of the State LTC Ombudsman programs that are structurally exposed to significant conflicts of interest.
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From page 124... ...
Ombudsman programs arid individual ombudsmen are particularly vulnerable to actual or perceived conflicts of interest that arise through governance boards. By definition, members of such boards exercise authority over the ombudsman program.
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From page 125... ...
State ombudsmen operate in politically charged environments, are usually state employees, and by federal statute are required to speak out against government on behalf of residents of LTC facilities when they judge such actions necessary. Ombudsmen must be able to pursue independently all reasonable courses of action that are in the best interest of residents.
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From page 126... ...
Current provisions cover such areas as the location of the Office of the State LTC Ombudsman, the designation of individuals and entities as ombudsmen or host agencies, confidentiality policies and procedures, employment policies, and legal counsel. Additionally, the OAA prohibits any willful interference with representatives of the ombudsman office in the performance of their official
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From page 127... ...
The committee reviewed conflicts of interest in the context of three conceptual variations: conflicts of loyalty, conflicts of commitment, and conflicts of control. These address issues of judgment and objectivity, time and attention, and independence, respectively.
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