401 Identifying the Conflict

401.1 Definitions of conflict of interest

  1. A conflict of interest exists in the LTCOP when other interests intrude upon, interfere with, or threaten to negate the ability of the LTCOP to advocate without compromise on behalf of long-term care facility residents. Types of conflict of interest include:

    1. Conflicts of loyalty – incentives, often related to financial or employment considerations, that shape one’s judgment or behavior in ways that are contrary to the interest of residents.

    2. Conflicts of commitment – goals or obligations that direct one’s time and/or attention away from the interest of residents

    3. Conflicts of control – limitations or restrictions that effectively foreclose one’s ability to take actions to advocate for the interest of residents.

401.2 Organizational conflicts

Conflicts arising from organizational location include, but are not limited to, LTCOP placement in an agency which:

  1. Has an ownership or investment interest (represented by equity, debt, or other financial relationship) in, or receives grants or donations from, a long-term care facility or a long-term care service. (45 C.F.R. § 1324.21(a)(3))

  2. Provides long-term care to residents of long-term care facilities, including the provision of personnel for long-term care facilities or the operation of programs which control access to or services for long-term care facilities. (45 C.F.R. § 1324.21(a)(5))

  3. Operates programs with responsibilities conflicting with LTCOP responsibilities. Examples of such responsibilities include developing and carrying out care plans, and serving as guardian or conservator of long-term care residents.

  4. Has governing board members with ownership, investment or employment interest in long-term care facilities. (45 C.F.R. § 1324.21(a)(4))

  5. Has direct involvement in the licensing, surveying or certification of a long-term care facility or long-term care services. (45 C.F.R. § 1324.21(a)(1))

  6. Is an association (or an affiliate of such an association) of long-term care facilities, or of any other residential facilities for older individuals or individuals with disabilities. (45 C.F.R. § 1324.21(a)(2))

  7. Provides long-term care coordination or case management for residents of long-term care facilities. (45 C.F.R. § 1324.21(a)(6))

  8. Sets reimbursement rates for long-term care facilities. (45 C.F.R. § 1324.21(a)(7))

  9. Provides Adult Protective Services. (45 C.F.R. § 1324.21(a)(8))

  10. Is responsible for eligibility determinations regarding Medicaid or other public benefits for residents of long-term care facilities. (45 C.F.R. § 1324.21(a)(9))

  11. Conducts preadmission screening for long-term care facility placements. (45 C.F.R. § 1324.21(a)(10))

  12. Makes decisions regarding admission or discharge of individuals to or from long-term care facilities. (45 C.F.R. § 1324.21(a)(11))

  13. Provides guardianship, conservatorship or other fiduciary or surrogate decision-making services for residents of long-term care facilities. (45 C.F.R. § 1324.21(a)(12))

401.3 Individual OR conflicts

Conflicts for an OR include, but are not limited to, the following:

  1. Employment of an individual or a member of his/her immediate family within the previous year by a long-term care facility in the service area or by the owner or operator of any long-term care facility in the service area. (45 C.F.R. § 1324.21(c)(2)(iii))

  2. Participation in the management of a long-term care facility by an individual or a member of his/her immediate family. (45 C.F.R. § 1324.21(c)(2)(iii))

  3. Ownership, operational or investment interest (represented by equity, debt, or other financial relationship) in an existing or proposed long-term care facility or long-term care service by an individual or a member of his/her immediate family. (45 C.F.R. § 1324.21(c)(2)(ii))

  4. Involvement in the licensing or certification of a long-term care facility or provision of a long-term care service by an individual or a member of his/her immediate family. (45 C.F.R. § 1324.21(c)(2)(i))

  5. Receipt of, or right to receive, remuneration (in cash or in kind) under a compensation arrangement with an owner or operator of a long-term care facility by an individual or a member of his/her immediate family. (45 C.F.R. § 1324.21(c)(2)(iv))

  6. Accepting any gifts or gratuities of significant value from a long-term care facility or its management, or resident or resident representative of a long-term care facility in which the Ombudsman or OR provides services (except where there is a personal relationship with a resident or resident representative which is separate from the individual’s role as Ombudsman or OR. (45 C.F.R. § 1324.21(c)(2)(v))

    An OR should adequately compensate a facility for food provided by the facility with the exception of sample portions of food tested as part of an investigative process.

  7. Accepting money or any other consideration from anyone other than the Office or other entity designated by the Office of the State Long-Term Care Ombudsman (OSLTCO) for the performance of an act in the regular course of an OR’s duties without Ombudsman approval. (45 C.F.R. § 1324.21(c)(2)(vi))

    This provision does not prohibit a LE from obtaining grants, donations or other funding for the LTCOP from entities without conflicts of interest.

  8. Provision of services with conflicting responsibilities while serving as an OR, such as adult protective services; discharge planning; serving as guardian or conservator, agent under power of attorney, or other surrogate decision-maker for a long-term care resident in the service area; pre-admission screening; or case management for long-term care residents. (45 C.F.R. § 1324.21(c)(2)(vii))

  9. Serving residents of a facility in which an immediate family member resides. (45 C.F.R. § 1324.21 (c)(2)(viii))

  10. Participating in activities which:

    1. Negatively impact on the ability of the OR to serve residents.

    2. Are likely to create a perception that the OR’s primary interest is other than as a resident advocate (see II-403.3). (45 C.F.R. § 1324.21)