•  Summary 
  •  
  •  Actions 
  •  
  •  Committee Votes 
  •  
  •  Floor Votes 
  •  
  •  Memo 
  •  
  •  Text 
  •  
  •  LFIN 
  •  
  •  Chamber Video/Transcript 

A11050 Summary:

BILL NOA11050
 
SAME ASSAME AS S09002
 
SPONSORLupardo
 
COSPNSRLifton
 
MLTSPNSR
 
Amd 218, Eld L
 
Relates to the long-term care ombudsman program.
Go to top

A11050 Memo:

NEW YORK STATE ASSEMBLY
MEMORANDUM IN SUPPORT OF LEGISLATION
submitted in accordance with Assembly Rule III, Sec 1(f)
 
BILL NUMBER: A11050
 
SPONSOR: Rules (Lupardo)
  TITLE OF BILL: An act to amend the elder law, in relation to the long-term care ombudsman program   PURPOSE OF THE BILL: The purpose of this legislation is to bring the Elder Law in line with federal statute and newly promulgated federal regulations so that the state law that governs the Long-Term Care Ombudsman Program (LTCOP) is in conformance with the federal law and regulations that govern the LTCOP.   SUMMARY OF PROVISIONS: Section 1 of the bill would do the following: *Enumerate the responsibilities of the LTCOP and include the responsi- bilities that are required by federal law; *Establish the Office of the State Long-Term Care Ombudsman and list the qualifications required of an individual who is being considered for the position of State Long-Term Care Ombudsman; *Address the responsibilities of the State Long-Term Care Ombudsman and the requirements for the designation of local ombudsmen and local ombudsman entities; *Discuss the State Ombudsman's ability to refuse, suspend or withdraw the designation of local ombudsman entities; *List the requirements around identification, removal and remedy of both organizational and individual conflicts of interest; *Require ombudsmen access to residents and long-term care facilities and ombudsmen access to resident and facility records; *Specify the types of records to which the ombudsmen have access and under what circumstances ombudsmen may access those records; *Set forth language that prohibits the interference with an ombudsman while the ombudsman is carrying out his or her duties; and *Dictate the circumstances under which ombudsmen may reveal a resident's personal information to an individual not associated with the LTCOP. Section 2 of the bill would require the act to take effect immediately.   JUSTIFICATION: The LTCOP is established in the Older Americans Act of 1965 (OAA) for the purpose of serving as a resource and advocate for residents of nurs- ing homes, adult homes, assisted living facilities and family type homes. As required by the OAA, Ombudsmen work to identify, investigate, and resolve problems of individual residents and to bring about changes at the local, state and national levels that will improve residents' care and quality of life. The New York State Elder Law establishes the Office of the Long-Term Care Ombudsman within the New York State Office for the Aging and mirrors the objectives of the OAA. This legislation would bring the Elder Law in line with federal statute and the new regu- lations promulgated thereunder that govern the LTCOP. NYSOFA is compelled to have the Elder Law be in compliance and conformance with federal law and regulations. Failure by NYSOFA to achieve that compli- ance and conformance would jeopardize federal funding not only for the LTCOP, but for all OAA funded services administered by NYSOFA and our network of aging services providers which includes county sponsored area agencies on aging and not-for-profit aging services providers.   PRIOR LEGISLATIVE HISTORY: This is a new proposal.   FISCAL IMPLICATIONS: None.   EFFECTIVE DATE: This act shall take effect immediately.
Go to top

A11050 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                          11050
 
                   IN ASSEMBLY
 
                                      June 1, 2018
                                       ___________
 
        Introduced  by COMMITTEE ON RULES -- (at request of M. of A. Lupardo) --
          read once and referred to the Committee on Aging
 
        AN ACT to amend the elder law, in relation to the long-term care ombuds-
          man program
 
          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:

     1    Section  1. Section 218 of the elder law, paragraph (b) of subdivision
     2  1 as amended by section 1 of chapter 462 of the laws of  2015,  subpara-
     3  graph  3  of  paragraph (c) of subdivision 3 as amended by chapter 95 of
     4  the laws of 2004, paragraph (g) of subdivision 3 as added by chapter 462
     5  of the laws of 2015, and subparagraph 2 of paragraph (a) of  subdivision
     6  7  as  amended by chapter 230 of the laws of 2004, is amended to read as
     7  follows:
     8    § 218. [Long term] Long-term care ombudsman. 1. Definitions.  For  the
     9  purposes  of  this section, the following terms shall have the following
    10  meanings:
    11    (a) ["Local ombudsman" shall mean an individual who is employed by the
    12  local entity designated pursuant to subdivision four of this section and
    13  who has been approved by the state ombudsman to perform or carry out the
    14  activities of the local long term  care  ombudsman  program.  The  local
    15  ombudsman  may be either a paid employee or volunteer of the local enti-
    16  ty] "Administrative action" shall mean any  action  or  decision  by  an
    17  owner,  employee, or agent of a long-term care facility, or by a govern-
    18  ment agency, which affects the provision of service to residents  of  or
    19  applicants for admission to long-term care facilities.
    20    (b) "Immediate family" pertaining to conflicts of interest, shall mean
    21  a  member  of  the  household  or  a relative with whom there is a close
    22  personal or significant financial relationship.
    23    (c) "Local ombudsman entity" shall mean any entity designated to oper-
    24  ate a local long-term care ombudsman program.
    25    [(b) "Long term] (d) "Long-term care facilities" shall  mean  residen-
    26  tial  health  care facilities as defined in subdivision three of section
    27  twenty-eight hundred one of the public health law[,]; adult care facili-
    28  ties as defined in subdivision twenty-one of section two of  the  social
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD16127-03-8

        A. 11050                            2
 
     1  services  law, including those adult homes and enriched housing programs
     2  licensed as assisted living residences,  [as  defined  in]  pursuant  to
     3  article forty-six-B of the public health law[,]; or any facilities which
     4  hold themselves out or advertise themselves as providing assisted living
     5  services  and  which  are required to be licensed or certified under the
     6  social services law or the public health law. Within the amounts  appro-
     7  priated  therefor,  ["long  term] "long-term care facilities" shall also
     8  mean managed [long term] long-term care plans and approved managed [long
     9  term] long-term care or operating demonstrations as defined  in  section
    10  forty-four  hundred three-f of the public health law and the term "resi-
    11  dent", "residents", "patient" and "patients" shall also  include  enrol-
    12  lees of such plans.
    13    [(c)  "State  ombudsman" shall mean the state long term care ombudsman
    14  appointed  by  the  director  pursuant  to  subdivision  three  of  this
    15  section.]
    16    (e) "Long-term care ombudsman" or "ombudsman" shall mean a person who:
    17    (1)  is  an employee or volunteer of the state office for the aging or
    18  of a designated local ombudsman entity and represents  the  state  long-
    19  term care ombudsman program;
    20    (2)  has  been  verified  as  having successfully completing a certif-
    21  ication training program developed by the state ombudsman; and
    22    (3) has a current designation as a long-term  care  ombudsman  by  the
    23  state long-term care ombudsman.
    24    (f) "Resident representative" shall mean either of the following:
    25    (1) an individual chosen by the resident to act on behalf of the resi-
    26  dent  in  order  to  support  the  resident  in  decision-making; access
    27  medical, social, or other personal information of the  resident;  manage
    28  financial matters; or receive notifications;
    29    (2)  a  person  authorized  by state or federal law (including but not
    30  limited to agents under power of attorney,  representative  payees,  and
    31  other  fiduciaries) to act on behalf of the resident in order to support
    32  the resident  in  decision-making;  access  medical,  social,  or  other
    33  personal  information  of  the  resident;  manage  financial matters; or
    34  receive notifications;
    35    (3) a legal representative, as used in section 712 of the older Ameri-
    36  cans act of 1965, as amended; or
    37    (4) the court-appointed guardian or conservator of the resident.
    38    (5) Nothing in this section is intended to expand the scope of author-
    39  ity of any resident representative beyond  that  authority  specifically
    40  authorized  by  the resident, state or federal law, or a court of compe-
    41  tent jurisdiction.
    42    (g) "State long-term care ombudsman" or "state ombudsman"  shall  mean
    43  the  individual who heads the office of the state long-term care ombuds-
    44  man and is responsible to personally, or through representatives of  the
    45  office  of  the  state  long-term care ombudsman, fulfill the functions,
    46  responsibilities and duties of the office of the  state  long-term  care
    47  ombudsman.
    48    (h) "Willful interference" shall mean actions or inactions taken by an
    49  individual  in  an  attempt to intentionally prevent, interfere with, or
    50  attempt to impede an ombudsman from performing any of the  functions  or
    51  responsibilities of the office of the state long-term care ombudsman.
    52    2. Office of the state long-term care ombudsman established. (a) There
    53  is hereby established within the state office for the aging an office of
    54  the  state  [long  term]  long-term  care  ombudsman [for the purpose of
    55  receiving and resolving complaints affecting  applicants,  patients  and
    56  residents in long term care facilities and, where appropriate, referring

        A. 11050                            3

     1  complaints  to  appropriate investigatory agencies and acting in concert
     2  with such agencies] which shall be headed by the  state  long-term  care
     3  ombudsman,  who shall carry out, directly and/or through local ombudsman
     4  entities, the duties set forth in this section.
     5    (b)  The  office  of  the state long-term care ombudsman is a distinct
     6  entity, separately identifiable, and located within the state office for
     7  the aging.
     8    (c) The state office for the aging shall provide  the  long-term  care
     9  ombudsman  program  with  legal counsel that is adequate, available, has
    10  competencies relevant to the legal needs of the program, and is  without
    11  conflict  of interest as determined by the state office for the aging in
    12  consultation with the state long-term care ombudsman.
    13    (d) The state office for the aging shall not establish personnel poli-
    14  cies or practices which prohibit the ombudsman from performing the func-
    15  tions and responsibilities of  the  ombudsman,  as  set  forth  in  this
    16  section.
    17    (e)  Nothing  in  this section shall prohibit the state office for the
    18  aging from requiring that the state ombudsman, or other employees of the
    19  office of the state long-term care ombudsman, adhere  to  the  personnel
    20  policies and procedures of the state office for the aging.
    21    3. State [long term] long-term care ombudsman. (a) The director of the
    22  state  office  for the aging shall appoint a full-time state [long term]
    23  long-term care ombudsman to administer and supervise the office  of  the
    24  state [long term] long-term care ombudsman.
    25    (b)  The state ombudsman shall be selected from among individuals with
    26  expertise and experience in [the fields of long term] long-term care and
    27  advocacy, long-term services and supports or other direct  services  for
    28  older persons or individuals with disabilities, consumer-oriented public
    29  policy  advocacy,  leadership and program management skills, negotiation
    30  and problem resolution skills, and with other qualifications  determined
    31  by  the director of the state office for the aging to be appropriate for
    32  the position.
    33    (c) Any actual and potential conflicts of interest shall be identified
    34  and addressed in accordance with subdivision ten of this section.
    35    (d) The state ombudsman  [shall],  personally  or  through  authorized
    36  representatives  [as  provided for in paragraph (d) of this subdivision]
    37  shall:
    38    (1) identify, investigate and resolve complaints that are made by,  or
    39  on  behalf  of,  [long  term] long-term care residents in this state and
    40  that relate to actions, inactions or decisions that may adversely affect
    41  the health, safety and welfare or rights of such  residents;  [provided,
    42  however,  that] the state ombudsman [shall immediately] may refer to the
    43  appropriate investigatory agency information obtained during the  inves-
    44  tigation  of a complaint which suggests the possible occurrence of phys-
    45  ical abuse, mistreatment or neglect or  Medicaid  fraud,  in  accordance
    46  with [procedures established by the state ombudsman] the older Americans
    47  act  of  1965,  as amended and the regulations promulgated thereunder as
    48  well as rules and regulations promulgated by the state  office  for  the
    49  aging; provided, however, that upon consent of the resident, the ombuds-
    50  man  or  state  ombudsman  shall immediately make such referral.   [Such
    51  procedures shall include, but not be limited to, the  reporting  to  the
    52  appropriate   investigatory  agency  any  reasonable  information  which
    53  suggests the possible occurrence  of  physical  abuse,  mistreatment  or
    54  neglect as defined in section twenty-eight hundred three-d of the public
    55  health  law.]  Nothing in this section shall be construed as authorizing
    56  the state ombudsman to impose a resolution unacceptable to either  party

        A. 11050                            4
 
     1  involved in a complaint or to assume powers delegated to the commission-
     2  er  of  health  or  the department of health pursuant to article twenty-
     3  eight of the public health law or to the commissioner of the  office  of
     4  children  and  family  services  or  the  office  of children and family
     5  services pursuant to the social services law; nor does it authorize  the
     6  state  ombudsman to investigate final administrative determinations made
     7  pursuant to law by such  commissioners  if  such  decisions  become  the
     8  subject of complaints to the state ombudsman;
     9    (2)  provide  services to assist residents in protecting their health,
    10  safety, welfare and rights, including but not  limited  to  representing
    11  the  interests  of  residents  before  governmental agencies and seeking
    12  appropriate administrative, legal and other remedies  to  protect  their
    13  welfare, safety, health and rights;
    14    (3) inform the residents about means of obtaining services provided by
    15  [public  health, social services and veterans' affairs or] the long-term
    16  care ombudsman program and other public agencies;
    17    (4) analyze, comment on, and monitor the development  and  implementa-
    18  tion  of federal, state and local laws, regulations [or], policies [with
    19  respect to the adequacy of long term care facilities and services in the
    20  state] and actions that pertain to  the  health,  safety,  welfare,  and
    21  rights of the residents of long-term care facilities and services in the
    22  state;
    23    (5)  [in consultation with the director, establish procedures for the]
    24  ensure that residents have regular and timely  access  to  the  services
    25  provided through the long-term care ombudsman program and that residents
    26  and  complainants  receive  timely responses to requests for information
    27  and complaints;
    28    (6) recommend changes in federal, state and local  laws,  regulations,
    29  policies,  and  actions  pertaining  to the health, safety, welfare, and
    30  rights of residents;
    31    (7) develop a certification  training  [of  the  authorized  represen-
    32  tatives  and  of  local]  program and continuing education for ombudsmen
    33  [and their staff] which at a minimum shall specify the minimum hours  of
    34  training,  the  annual  number  of hours of in-service training, and the
    35  content of the training, including, but not limited to, training  relat-
    36  ing  to  federal,  state, and local laws, regulations, and policies with
    37  respect to [long term] long-term care facilities in the state,  investi-
    38  gative  and  resolution  techniques,  and  such  other  training-related
    39  matters as the state ombudsman determines to be appropriate; [and
    40    (6)] (8) provide administrative and technical assistance to  long-term
    41  care ombudsmen and local ombudsman entities;
    42    (9)  make  determinations and establish positions of the office of the
    43  state long-term care ombudsman,  without  necessarily  representing  the
    44  determinations or positions of the state office for the aging;
    45    (10) recommend to the director of the state office for the aging poli-
    46  cies and procedures for the state long-term care ombudsman program;
    47    (11)  coordinate with and promote the development of citizen organiza-
    48  tions consistent with the interests of residents;
    49    (12) promote, provide technical support for the  development  of,  and
    50  provide  ongoing support as requested by resident and family councils to
    51  protect the well-being and rights of residents;
    52    (13) provide leadership to statewide systems advocacy efforts  of  the
    53  office of the state long-term care ombudsman on behalf of long-term care
    54  facility  residents,  including coordination of systems advocacy efforts
    55  carried out by representatives of the office of the state long-term care
    56  ombudsman;

        A. 11050                            5
 
     1    (14) in accordance with applicable state contracting procedures, coor-
     2  dinate with the state office for the aging in the review and approval of
     3  plans or contracts governing local ombudsman entity operations;
     4    (15)  carry  out  such  other  activities as the director of the state
     5  office for the aging determines to be appropriate pursuant to the feder-
     6  al older Americans act of 1965 and other applicable  federal  and  state
     7  laws and related regulations as may, from time to time, be amended; and
     8    (16) in accordance with the regulations promulgated under this section
     9  provide the director of the state office for the aging with notice prior
    10  to performing the activities identified in paragraphs four, six and nine
    11  of  this  subdivision.  Such  notice  shall not give the director of the
    12  state office for the aging or any other  state  official  the  right  to
    13  pre-approve the position or communications of the state ombudsman.
    14    [(d)(1)] (e) The state ombudsman, with the approval of the director of
    15  the  state  office  for  the  aging, may appoint one or more [authorized
    16  representatives] assistant state long-term care ombudsmen to assist  the
    17  state  ombudsman  in  the  performance  of  his or her duties under this
    18  section. Such assistant state  ombudsmen  must  be  verified  as  having
    19  completed  a  certification  training  program  developed  by  the state
    20  ombudsman within six (6) months of their appointment as assistant  state
    21  ombudsmen.
    22    [(2)]  (f)(1)  The  state ombudsman shall only appoint [only those] as
    23  ombudsmen individuals who have been [certified as having  completed  the
    24  training  program  developed  pursuant to paragraph (c) of this subdivi-
    25  sion] verified as completing the certification training  program  devel-
    26  oped  by  the  state  ombudsman.   In addition, the state long-term care
    27  ombudsman may refuse, suspend, or remove such appointments of ombudsmen.
    28    (2) The state ombudsman shall develop a grievance process to offer  an
    29  opportunity  for  reconsideration of any decision to refuse, suspend, or
    30  remove appointment of any  ombudsman.    Notwithstanding  the  grievance
    31  process,  the  state  ombudsman  shall  make  the final determination to
    32  designate or to refuse, suspend, or remove appointment of an ombudsman.
    33    [(e) No state ombudsman, authorized representative, local ombudsman or
    34  immediate family member of such person shall:
    35    (1) have a direct involvement in the licensing or certification  of  a
    36  long term care facility or of a provider of a long term care service;
    37    (2)  have  an ownership or investment interest (represented by equity,
    38  debt, or other financial relationship) in a long term care facility or a
    39  long term care service;
    40    (3) be employed by, or participate in the management of, a  long  term
    41  care facility; and
    42    (4)  receive  remuneration  (in  cash or in kind) under a compensation
    43  arrangement with an owner or operator of a long term care facility.
    44    (f) The state ombudsman shall establish written procedures to identify
    45  and remove conflicts of interest set out in paragraph (e) of this subdi-
    46  vision and shall include actions that the director may require an  indi-
    47  vidual  ombudsman  or  immediate  family  member  to take to remove such
    48  conflicts of interest.]
    49    (g) Any actual and potential conflicts of interest shall be identified
    50  and addressed in accordance with subdivision ten of this section.
    51    (h) Within the amounts appropriated therefor, the state long-term care
    52  ombudsman program shall include services specifically designed to  serve
    53  persons enrolled in managed [long term] long-term care plans or approved
    54  managed  [long  term] long-term care or operating demonstrations author-
    55  ized under section forty-four hundred three-f of the public health  law,

        A. 11050                            6
 
     1  and  shall  also  review and respond to complaints relating to marketing
     2  practices by such plans and demonstrations.
     3    4.  Local  [long term] long-term care ombudsman program. (a) The state
     4  ombudsman, [with the approval of the director] in accordance with appli-
     5  cable state contracting procedures, may designate an entity to operate a
     6  local [long term] long-term care ombudsman program for one or more coun-
     7  ties, and shall monitor the performance of such  entity.  If  the  state
     8  office  for the aging is aware or becomes aware of any evidence that the
     9  designation of an entity to operate a long-term care  ombudsman  program
    10  by  the state long-term care ombudsman would result in legal concerns or
    11  liability for the state office for the aging  or  office  of  the  state
    12  long-term care ombudsman, the state ombudsman will comply with the state
    13  office for the aging's determination that such designation should not be
    14  made.
    15    (b)  The  designated entity shall be an area agency on aging, a public
    16  agency or a private  not-for-profit  corporation  which  is  [neither  a
    17  provider  or  regulator of long term care facilities, or an affiliate or
    18  unit of such agency or corporation] free from any conflict  of  interest
    19  that  cannot be remedied. Any actual and potential conflicts of interest
    20  shall be identified and addressed in accordance with subdivision ten  of
    21  this section.
    22    (c)(1)  Each  local [long term] long-term care ombudsman program shall
    23  be directed by a qualified individual who is employed and  paid  by  the
    24  local  entity  and  who  shall  have  the duties and responsibilities as
    25  provided in regulations, consistent with the provisions of this  section
    26  and of Title VII of the federal older Americans act of 1965, as amended.
    27  In  addition,  upon designation, the entity is responsible for providing
    28  for adequate and qualified staff, which may include  trained  volunteers
    29  to perform the functions of the local [long term] long-term care ombuds-
    30  man program.
    31    (2)  No  local  program staff, including the supervisor and any volun-
    32  teers, shall perform or carry out the activities on behalf of the [local
    33  long term] state long-term care ombudsman program unless such staff  has
    34  [received the training pursuant to paragraph (c) of subdivision three of
    35  this section] been verified as completing the training program developed
    36  by  the  state ombudsman and has been approved by the state ombudsman as
    37  qualified to carry out the activities on behalf of the local program.
    38    (d) [The director, in consultation with  the  state  ombudsman,  shall
    39  establish  in  regulations  standards  for the operation of a local long
    40  term care ombudsman program.
    41    (e)] When the state ombudsman determines  that  a  local  [long  term]
    42  long-term  care  ombudsman program does not meet the standards set forth
    43  in this section and in any  related  regulations,  the  state  ombudsman
    44  [shall with the approval of the director withdraw], in coordination with
    45  the  state  office  for  the  aging,  may refuse, suspend, or remove the
    46  designation of the local [program] ombudsmen  entity.  Prior  to  taking
    47  such  action,  the  state  ombudsman  shall  send  to the affected local
    48  program a notice of [intention]  the  state  ombudsman's  intentions  to
    49  [withdraw]  refuse,  suspend,  or  remove the designation[, which notice
    50  shall also inform the local program of its right  to  an  administrative
    51  hearing prior to the director's final determination. Such administrative
    52  hearing  shall  be  conducted in accordance with procedures set forth in
    53  regulations]; provided, however, if the state office for  the  aging  is
    54  aware  or  becomes  aware  of evidence that the designation or continued
    55  designation of an entity to operate a long-term care  ombudsman  program
    56  would result in legal concerns or liability for the state office for the

        A. 11050                            7

     1  aging  or  the  office  of the state long-term care ombudsman, the state
     2  ombudsman will comply with the state office  for  the  aging's  determi-
     3  nation that such designation should not be made or that such designation
     4  be refused, suspended, or removed.
     5    (e)  The state ombudsman shall develop a grievance process to offer an
     6  opportunity for reconsideration of any decision to refuse,  suspend,  or
     7  remove  the designation of a local ombudsman entity. Notwithstanding the
     8  grievance process, the state ombudsman shall  make  the  final  determi-
     9  nation  to designate or to refuse, suspend, or remove the designation of
    10  a local ombudsman entity; provided, however, if the state office for the
    11  aging is aware or becomes aware of any evidence that the designation  of
    12  an  entity  to  operate  a long-term care ombudsman program by the state
    13  long-term care ombudsman or that the failure of the state  ombudsman  to
    14  refuse,  suspend,  or remove the designation of a local ombudsman entity
    15  would result in legal concerns or liability for the state office for the
    16  aging or the office of the state long-term  care  ombudsman,  the  state
    17  ombudsman  will  comply  with  the state office for the aging's determi-
    18  nation that such designation should not be made or that such designation
    19  be refused, suspended, or removed.
    20    5. Review of complaint. [(a)] Upon receipt of a complaint, the ombuds-
    21  man or state ombudsman shall determine [immediately] whether  there  are
    22  reasonable  grounds  for  an  investigation. Such investigation shall be
    23  conducted in a manner prescribed in regulations. The [state] ombudsman[,
    24  or the local ombudsman, whoever is appropriate, shall] or state  ombuds-
    25  man may immediately refer to the appropriate investigatory agency infor-
    26  mation  obtained  during the investigation of a complaint which suggests
    27  the possible occurrence of physical abuse, mistreatment  or  neglect  or
    28  Medicaid  fraud, in accordance with [procedures established by the state
    29  ombudsman. Such procedures shall include, but not  be  limited  to,  the
    30  reporting to the appropriate investigatory agency if there is reasonable
    31  cause  to  believe  the  occurrence  of  physical abuse, mistreatment or
    32  neglect as defined in section twenty-eight hundred three-d of the public
    33  health law.
    34    (b) If the referral is made by the local  ombudsman,  a  copy  of  the
    35  referral,  together  with copies of any relevant information or records,
    36  shall be sent forthwith to the state ombudsman] and subject to any limi-
    37  tations identified in the older Americans act of 1965,  as  amended  and
    38  the  regulations promulgated thereunder as well as rules and regulations
    39  promulgated by the state office for the aging; provided,  however,  that
    40  upon  consent  of  the  resident, the ombudsman or state ombudsman shall
    41  immediately make such referral.
    42    6.  [Retaliatory  discrimination  prohibited.  (a)  No  person   shall
    43  discriminate  against  any resident of a long term care facility because
    44  such resident or any person acting on behalf of the resident has brought
    45  or caused to be brought any complaint to the state or  local  long  term
    46  care ombudsman for investigation, or against any resident or employee of
    47  a  long  term care facility or any other person because such resident or
    48  employee or any other person has given or provided  or  is  to  give  or
    49  provide any statements, testimony, other evidence or cooperation for the
    50  purposes of any such complaint.
    51    (b)  Any  resident  who  has reason to believe that he or she may have
    52  been discriminated against in violation of this subdivision may,  within
    53  thirty  days  after such alleged violation occurs, file a complaint with
    54  the commissioner of health pursuant to subdivision ten of section  twen-
    55  ty-eight hundred one-d of the public health law.

        A. 11050                            8

     1    7.]  Record access. (a) [(1) The state ombudsman, with the approval of
     2  the director, may approve and certify one or more previously  designated
     3  local  ombudsmen  or state representatives as a records access ombudsman
     4  upon their having completed the  training  program  for  records  access
     5  ombudsman set out in paragraph (b) of this subdivision; and
     6    (2)  A  records access ombudsman shall be an employee of the office of
     7  the state ombudsman or of the local entity designated  to  carry  out  a
     8  local  ombudsman program, except that the state ombudsman may certify as
     9  a records access ombudsman a volunteer under the direct  supervision  of
    10  the state ombudsman or of the supervisor of the local program, whichever
    11  is  appropriate,  if  such volunteer is licensed in a medical, legal, or
    12  social work profession, or whose  experience  and  training  demonstrate
    13  equivalent competency in medical and personal records review.
    14    (b)  Except  as  otherwise  provided  by law, no person, including the
    15  state ombudsman, his or her authorized  representatives,  or  any  local
    16  ombudsman,  shall  be authorized to have access to or review the medical
    17  or personal records of a patient or resident pursuant to  section  twen-
    18  ty-eight  hundred  three-c  of  the  public  health law and section four
    19  hundred sixty-one-a of the social services law or  pursuant  to  written
    20  consent  to  such access by the patient or resident, or his or her legal
    21  representative unless such person has been:
    22    (1) Certified as having satisfactorily completed  a  training  program
    23  prescribed  by  the  office  and  designed, among other purposes, to (A)
    24  impress upon the participant the value, purpose, and confidentiality  of
    25  medical  and  personal records, (B) familiarize the participant with the
    26  operational aspects of long term care facilities, and (C) deal with  the
    27  medical and psycho-social needs of patients or residents in such facili-
    28  ties; and
    29    (2) Certified as a records access ombudsman by the state ombudsman.
    30    (c)] An ombudsman and state ombudsman shall have access to:
    31    (1) medical, social and other records relating to a resident, if:
    32    (A)  the  resident  or  resident  representative communicates informed
    33  consent to the access and the consent is given in writing or through the
    34  use of auxiliary aids and services, provided that a  guardian  appointed
    35  pursuant  to  article seventeen-A of the surrogate's court procedure act
    36  or article eighty-one of the mental hygiene law who  has  the  authority
    37  pursuant  to  court order to give such consent shall supersede any other
    38  resident representatives;
    39    (B) the resident  or  resident  representative  communicates  informed
    40  consent  orally,  visually,  or  through  the  use of auxiliary aids and
    41  services, and such consent is documented contemporaneously by an ombuds-
    42  man in accordance with procedures established by  the  state  ombudsman,
    43  provided  that  a  guardian appointed pursuant to article seventeen-A of
    44  the surrogate's court procedure act or article eighty-one of the  mental
    45  hygiene  law  who has the authority pursuant to court order to give such
    46  consent shall supersede any other resident representatives; and
    47    (C) access is necessary in order to investigate a complaint, the resi-
    48  dent representative refuses to consent to the access, an  ombudsman  has
    49  reasonable  cause  to  believe  that  the resident representative is not
    50  acting in the best interests of the resident, and the ombudsman  obtains
    51  the approval of the state ombudsman;
    52    (2)  administrative  records,  policies,  and  documents, to which the
    53  residents have or the general  public  has  access,  of  long-term  care
    54  facilities;

        A. 11050                            9
 
     1    (3)  all  licensing  and certification records maintained by the state
     2  with respect to  long-term  care  facilities  and  copies  thereof  upon
     3  request; and
     4    (4) a list of resident names and room numbers.
     5    (b)  No  ombudsman  or state ombudsman shall disclose [the identity of
     6  the resident or complainant that made  a  complaint  to  the  ombudsman]
     7  files,  records, or information about a complaint, including identifying
     8  information of any resident or complainant unless:
     9    (1) the complainant or resident or his or her [legal] resident  repre-
    10  sentative  [gives  written] communicates informed consent to the ombuds-
    11  man[, except that written consent shall also  include  the  resident  or
    12  complainant  giving oral consent that is documented contemporaneously in
    13  a writing made by the ombudsman with the agreement of the complainant or
    14  resident and in accordance with requirements established by  the  direc-
    15  tor;  or]  in  writing,  provided  that a guardian appointed pursuant to
    16  article seventeen-A of the surrogate's court procedure  act  or  article
    17  eighty-one  of  the mental hygiene law who has the authority pursuant to
    18  court order to give such consent  shall  supersede  any  other  resident
    19  representatives.
    20    (2)  the complainant or resident or his or her resident representative
    21  communicates informed consent orally or visually, including through  the
    22  use  of  auxiliary  aids  and  services,  and such consent is documented
    23  contemporaneously by an ombudsman or state ombudsman in accordance  with
    24  the  procedures  of  the  office  of the state long-term care ombudsman,
    25  provided that a guardian appointed pursuant to  article  seventeen-A  of
    26  the  surrogate's court procedure act or article eighty-one of the mental
    27  hygiene law who has the authority pursuant to court order to  give  such
    28  consent shall supersede any other resident representatives;
    29    [(2)] (3) the disclosure is required pursuant to a court order; or
    30    (4)  the  resident  is unable to communicate informed consent and does
    31  not have a resident representative, or the state long-term care  ombuds-
    32  man  determines  that  the  resident representative has taken an action,
    33  inaction or made a decision that may adversely affect the health,  safe-
    34  ty,  welfare,  or rights of the resident. In such cases, disclosures may
    35  be made in accordance with criteria to be developed by the state ombuds-
    36  man.
    37    (c) all files, records, and other information of  the  long-term  care
    38  ombudsman  program,  including information maintained by local ombudsman
    39  entities pertaining to the cases and activities of the program  are  the
    40  property  of  the  office  of  the  state long-term care ombudsman. Such
    41  files, records, and information may be disclosed only at the  discretion
    42  of  the  state  ombudsman  or  designee  of the state ombudsman for such
    43  purpose and in accordance with  the  criteria  developed  by  the  state
    44  ombudsman.
    45    (d)  No  ombudsman  or  state  ombudsman  shall disclose to any person
    46  outside of the long-term care ombudsman program any information obtained
    47  from a [patient's or] resident's [records] record without  the  approval
    48  of the state ombudsman or his or her designee, in accordance with proce-
    49  dures  for disclosure established by [the director in consultation with]
    50  the state ombudsman.  [Such  approval  is  not  required  for  suspected
    51  instances  of  physical abuse, mistreatment or neglect or Medicaid fraud
    52  and, subject to withholding identifying information of a  non-consenting
    53  complainant or resident under paragraph (c) of this subdivision, a local
    54  ombudsman  or state representative shall provide needed file information
    55  to the appropriate state and federal regulatory authorities and  cooper-
    56  ate with them to help further their investigation.]

        A. 11050                           10
 
     1    (e)  No  [records  access  or  other] ombudsman or state ombudsman who
     2  directly or indirectly obtains access to  a  [patient's  or]  resident's
     3  medical  or  personal  records  pursuant to section twenty-eight hundred
     4  three-c of the public health law shall disclose  to  such  [patient  or]
     5  resident  or to any other person outside of the long-term care ombudsman
     6  program the content of any such records to which such  [patient,]  resi-
     7  dent  or  other  person  had  not  previously  had  the right of access,
     8  provided that this restriction shall not  prevent  such  ombudsman  from
     9  advising  such  [patient  or]  resident  of the status or progress of an
    10  investigation or complaint process initiated  at  the  request  of  such
    11  [patient  or]  resident  or from referring such complaint, together with
    12  the relevant records, to appropriate investigatory agencies. Any  person
    13  who  intentionally  violates the provisions of this subdivision shall be
    14  guilty of a misdemeanor. Nothing contained  in  this  section  shall  be
    15  construed  to limit or abridge any right of access to records, including
    16  financial records, otherwise available to ombudsmen, [patients or] resi-
    17  dents, or any other person.
    18    (f) Notwithstanding any law to  the  contrary,  any  individual,  when
    19  acting  in his or her official capacity as an ombudsman, shall be exempt
    20  from  the  mandatory  reporting  of  abuse,  neglect,  exploitation,  or
    21  maltreatment. However, an ombudsman may report abuse, neglect, exploita-
    22  tion,  or  maltreatment  in  accordance  with the older Americans act of
    23  1965, as amended and the regulations promulgated thereunder as  well  as
    24  rules  and  regulations  promulgated  by the state office for the aging;
    25  provided, however, that upon consent of the resident, the  ombudsman  or
    26  state ombudsman shall immediately make such referral.
    27    (g)  Nothing  in  this  section  shall  prohibit  the disclosure by an
    28  ombudsman, state ombudsman, or local ombudsman entity of non-identifying
    29  aggregate data for monitoring or reporting purposes to the state  office
    30  for  the  aging or agency in which a local ombudsman entity is organiza-
    31  tionally located.
    32    (h) Any information accessed pursuant to this subdivision by  a  long-
    33  term care ombudsman or local ombudsman entity shall only be used for the
    34  purposes of the long-term care ombudsman program. Any use of such infor-
    35  mation  other  than  for  the  purposes  of the long-term care ombudsman
    36  program or purposes authorized under this section may constitute grounds
    37  for the designation of such ombudsman or local ombudsman  entity  to  be
    38  removed.
    39    7.  Access to long-term care facilities. An ombudsman or state ombuds-
    40  man shall have authority to enter all long-term care facilities  at  any
    41  time  during  a  facility's  regular  business hours or regular visiting
    42  hours, and at any other time when access may be required by the  circum-
    43  stances to be investigated and shall have access to all residents and/or
    44  the  resident representative to perform all functions and duties enumer-
    45  ated herein.
    46    8. [Failure to cooperate. Any long term] Noninterference.    No  long-
    47  term care facility [which refuses] shall:
    48    (a)  refuse to permit [the state] an ombudsman[, his or her authorized
    49  representative, or any local ombudsman] or state  ombudsman  entry  into
    50  such  facility or [refuses], interfere with, or refuse to cooperate with
    51  [the state] an ombudsman[, his or her authorized representative, or  any
    52  local  ombudsman  in  the]  or  state  ombudsman carrying out [of] their
    53  mandated duties and responsibilities set forth in this section  and  any
    54  regulations promulgated pursuant thereto[, or refuses];

        A. 11050                           11
 
     1    (b) retaliate against an ombudsman or state ombudsman for carrying out
     2  his  or  her  mandated  duties  and  responsibilities  set forth in this
     3  section and any regulations promulgated pursuant thereto;
     4    (c)  refuse  to  permit  [patients]  residents or staff to communicate
     5  freely and privately with [the state] an ombudsman[, his or her  author-
     6  ized  representative,  or  any  local  ombudsman shall be subject to the
     7  appropriate sanction or penalties of the state agency that licenses  the
     8  facility]; or
     9    (d) retaliate or discriminate against any resident, resident represen-
    10  tative,  complainant,  or  staff  member  for  filing  a complaint with,
    11  providing information to, or otherwise cooperating with any ombudsman or
    12  state ombudsman.  Any resident who has reason to believe that he or  she
    13  may have been discriminated or retaliated against in violation of subdi-
    14  vision  eight of this section may file a complaint with the commissioner
    15  of health pursuant to subdivision ten of  section  twenty-eight  hundred
    16  one-d of the public health law.
    17    9.  Failure  to  cooperate.    Any  such  facility  that  violates the
    18  provisions of subdivision eight of this section shall be subject to  the
    19  appropriate  sanctions  pursuant to section twenty-eight hundred three-c
    20  of the public health law, and accompanying regulations, if such facility
    21  is a residential healthcare facility or section four hundred sixty-d  of
    22  the  social services law, and accompanying regulations, if such facility
    23  is an adult care facility.
    24    10. Conflict of interest.   The state office for  the  aging  and  the
    25  state  ombudsman  shall  consider both the organizational and individual
    26  conflicts of interest that may impact the effectiveness and  credibility
    27  of  the  work of the office of the state long-term care ombudsman. In so
    28  doing, both the state office for the aging and the state ombudsman shall
    29  be responsible to identify actual and potential conflicts and,  where  a
    30  conflict  has  been identified, to remove or remedy such conflict as set
    31  forth in paragraphs (b) and (d) of this subdivision.
    32    (a) Identifying conflicts of interest.   In identifying  conflicts  of
    33  interest,  the  state office for the aging and the state ombudsman shall
    34  consider the organizational conflicts that may impact the  effectiveness
    35  and  credibility  of  the work of the office of the state long-term care
    36  ombudsman.  Organizational conflicts of interest include,  but  are  not
    37  limited  to, placement of the office of the state long-term care ombuds-
    38  man, or requiring that a state ombudsman  or  long-term  care  ombudsman
    39  perform conflicting activities, in an organization that:
    40    (1)  is  responsible for licensing, surveying, or certifying long-term
    41  care facilities;
    42    (2) is responsible for licensing, surveying, or  certifying  long-term
    43  care services;
    44    (3)  is  an  association  (or  an affiliate of such an association) of
    45  long-term care facilities, or of any other  residential  facilities  for
    46  older individuals or individuals with disabilities;
    47    (4)  has  any ownership or investment interest (represented by equity,
    48  debt, or  other  financial  relationship)  in,  or  receives  grants  or
    49  donations from, a long-term care facility;
    50    (5)  has  governing  board  members with any ownership, investment, or
    51  employment interest in long-term care facilities;
    52    (6) provides long-term care to residents of long-term care facilities,
    53  including the provision of personnel for long-term  care  facilities  or
    54  the  operation of programs which control access to or services for long-
    55  term care facilities;

        A. 11050                           12
 
     1    (7) provides long-term care services, including programs  carried  out
     2  under  a Medicaid waiver approved under section 1115 of the Social Secu-
     3  rity Act (42 U.S.C. 1315) or under subsection (b) or (c) of section 1915
     4  of the Social Security Act (42 U.S.C. 1396n), subsection  (i),  (j),  or
     5  (k) of section 1915 of the Social Security Act (42 U.S.C. 1396n);
     6    (8) provides long-term care case management;
     7    (9)  provides long-term care coordination or case management for resi-
     8  dents of long-term care facilities;
     9    (10) sets reimbursement rates for long-term care facilities;
    10    (11) sets reimbursement rates for long-term care services;
    11    (12) provides adult protective services;
    12    (13) is responsible for eligibility determinations regarding  Medicaid
    13  or other public benefits for residents of long-term care facilities;
    14    (14)  conducts  preadmission  screening  for  long-term  care facility
    15  placements;
    16    (15) makes decisions regarding admission or discharge  of  individuals
    17  to or from long-term care facilities; or
    18    (16)  provides  guardianship,  conservatorship,  or other fiduciary or
    19  surrogate decision-making  services  for  residents  of  long-term  care
    20  facilities.
    21    (b)  Removing or remedying organizational conflicts.  The state office
    22  for the aging and the state ombudsman shall identify and take  steps  to
    23  remove  or  remedy conflicts of interest between the office of the state
    24  long-term care ombudsman and the state office for  the  aging  or  other
    25  agency carrying out the state long-term care ombudsman program.
    26    (1)  The  state  ombudsman  shall identify organizational conflicts of
    27  interest in the state long-term  care  ombudsman  program  and  describe
    28  steps  taken  to  remove  or  remedy  conflicts within the annual report
    29  submitted to the assistant  secretary  through  the  national  ombudsman
    30  reporting system.
    31    (2)  Where the office of the state long-term care ombudsman is located
    32  within or otherwise organizationally attached to the  state  office  for
    33  the aging, the office for the aging shall:
    34    (A) take reasonable steps to avoid internal conflicts of interest;
    35    (B)  establish  a  process  for  review and identification of internal
    36  conflicts;
    37    (C) take steps to remove or remedy conflicts;
    38    (D) ensure that no individual, or member of the immediate family of an
    39  individual, involved in the designating, appointing, otherwise selecting
    40  or terminating the state ombudsman is subject to a conflict of interest;
    41  and
    42    (E) assure that the state ombudsman has disclosed such  conflicts  and
    43  described  steps  taken  to remove or remedy conflicts within the annual
    44  report submitted to the assistant secretary through the national ombuds-
    45  man reporting system.
    46    (3) Where the state office for  the  aging  is  unable  to  adequately
    47  remove or remedy a conflict, it shall carry out the state long-term care
    48  ombudsman  program by contract or other arrangement with a public agency
    49  or nonprofit private organization. The state office for  the  aging  may
    50  not  enter  into  a contract or other arrangement to carry out the state
    51  long-term care ombudsman program if the other entity, and may not  oper-
    52  ate the office of the state long-term care ombudsman directly if it:
    53    (A)  is  responsible for licensing, surveying, or certifying long-term
    54  care facilities;

        A. 11050                           13
 
     1    (B) is an association (or an affiliate  of  such  an  association)  of
     2  long-term  care  facilities,  or of any other residential facilities for
     3  older individuals or individuals with disabilities; or
     4    (C)  has  any  ownership, operational, or investment interest (repres-
     5  ented by equity, debt, or other financial relationship) in  a  long-term
     6  care facility.
     7    (4)  Where  the state office for the aging carries out the state long-
     8  term care ombudsman program by contract  or  other  arrangement  with  a
     9  public  agency  or  nonprofit private organization, the state office for
    10  the aging shall:
    11    (A) prior to contracting or making another arrangement,  take  reason-
    12  able steps to avoid conflicts of interest in such agency or organization
    13  which  is to carry out the state long-term care ombudsman program and to
    14  avoid conflicts of interest in the state office for the aging  oversight
    15  of the contract or arrangement;
    16    (B)  establish  a  process  for  periodic review and identification of
    17  conflicts;
    18    (C) establish criteria for approval of steps taken by  the  agency  or
    19  organization to remedy or remove conflicts;
    20    (D)  require  that such agency or organization have a process in place
    21  to:
    22    (i) take reasonable steps to avoid conflicts of interest, and
    23    (ii) disclose identified conflicts and steps taken to remove or remedy
    24  conflicts to the state office for the aging for review and approval.
    25    (5) Where an agency or organization carrying out the  state  long-term
    26  care  ombudsman  program  by  contract  or  other arrangement develops a
    27  conflict and is unable to adequately remove or remedy  a  conflict,  the
    28  state office for the aging shall either operate the state long-term care
    29  ombudsman  program  directly  or  by  contract or other arrangement with
    30  another public agency  or  nonprofit  private  organization.  The  state
    31  office  for  the  aging  shall  not  enter  into  such contract or other
    32  arrangement with an agency or  organization  which  is  responsible  for
    33  licensing  or certifying long-term care facilities in the state or is an
    34  association (or affiliate of such  an  association)  of  long-term  care
    35  facilities.
    36    (6)  Where  local  ombudsman  entities provide ombudsman services, the
    37  state ombudsman shall:
    38    (A) prior to designating  or  renewing  designation,  take  reasonable
    39  steps  to  avoid  conflicts  of  interest in any agency which may host a
    40  local ombudsman entity,
    41    (B) establish a process for  periodic  review  and  identification  of
    42  conflicts  of  interest  with the local ombudsman entity in any agencies
    43  hosting a local ombudsman entity,
    44    (C) require that such agencies disclose identified conflicts of inter-
    45  est with the local ombudsman entity and steps taken to remove or  remedy
    46  conflicts within such agency to the state ombudsman,
    47    (D) establish criteria for approval of steps taken to remedy or remove
    48  conflicts in such agencies, and
    49    (E)  establish  a  process  for review of and criteria for approval of
    50  plans to remove or remedy conflicts with the local ombudsman  entity  in
    51  such agencies.
    52    (7)  Failure of an agency hosting a local ombudsman entity to disclose
    53  a conflict to the office  of  the  state  long-term  care  ombudsman  or
    54  inability  to  adequately  remove  or remedy a conflict shall constitute
    55  grounds for refusal, suspension, or removal of designation of the  local
    56  ombudsman entity by the state ombudsman.

        A. 11050                           14
 
     1    (c)  Identifying individual conflicts of interest.  (1) In identifying
     2  conflicts of interest, the state office for  the  aging  and  the  state
     3  ombudsman shall consider individual conflicts that may impact the effec-
     4  tiveness  and  credibility  of the work of the office of the state long-
     5  term care ombudsman or local long-term care ombudsman program.
     6    (2)  Individual  conflicts  of interest for the state ombudsman, long-
     7  term care ombudsmen, and members of their immediate family include,  but
     8  are not limited to:
     9    (A)  direct  involvement  in the licensing or certification of a long-
    10  term care facility or of a provider of a long-term care service;
    11    (B) ownership, operational, or  investment  interest  (represented  by
    12  equity,  debt,  or  other  financial  relationship)  in  an  existing or
    13  proposed long-term care facility or a long-term care service;
    14    (C) employment of an individual by, or participation in the management
    15  of, a long-term care facility in the service area or  by  the  owner  or
    16  operator of any long-term care facility in the service area;
    17    (D) receipt of, or right to receive, directly or indirectly, remunera-
    18  tion (in cash or in kind) under a compensation arrangement with an owner
    19  or operator of a long-term care facility;
    20    (E)  accepting  gifts  or gratuities of significant value from a long-
    21  term care facility or its management, a resident or a resident represen-
    22  tative of a long-term care facility in  which  the  state  ombudsman  or
    23  long-term  care  ombudsman  provide  services  (except  where there is a
    24  personal relationship with a resident or resident  representative  which
    25  is  separate  from the individual's role as state ombudsman or long-term
    26  care ombudsman);
    27    (F) accepting money or any other consideration from anyone other  than
    28  the  office of the state long-term care ombudsman, or an entity approved
    29  by the state ombudsman, for the performance of an  act  in  the  regular
    30  course  of the duties of the state ombudsman or long-term care ombudsman
    31  without state ombudsman approval;
    32    (G) serving as guardian,  conservator,  or  in  another  fiduciary  or
    33  surrogate  decision-making  capacity  for a resident of a long-term care
    34  facility in which  the  state  ombudsman  or  long-term  care  ombudsman
    35  provides services; and
    36    (H)  serving  residents  of  a  facility  in which an immediate family
    37  member resides.
    38    (d) Removing or remedying individual conflicts.  (1) The state  office
    39  for  the  aging  or state ombudsman shall develop and implement policies
    40  and procedures to ensure that  no  state  ombudsman  or  long-term  care
    41  ombudsman  are required or permitted to hold positions or perform duties
    42  that would constitute a conflict of interest as set forth  in  paragraph
    43  (c)  of  this subdivision.  This rule does not prohibit the state office
    44  for the aging or state ombudsman from having policies or procedures that
    45  exceed these requirements.
    46    (2) When considering the employment, appointment, or designation of an
    47  individual as the state ombudsman or as a long-term care ombudsman,  the
    48  state  office  for  the  aging  or  other employing or appointing entity
    49  shall:
    50    (A) take reasonable steps to avoid employing, appointing, or designat-
    51  ing an individual who has an unremedied conflict of interest or who  has
    52  a  member  of the immediate family with an unremedied conflict of inter-
    53  est;
    54    (B) take reasonable steps to avoid assigning an individual to  perform
    55  duties which would constitute an unremedied conflict of interest;

        A. 11050                           15
 
     1    (C)  establish  a  process  for  periodic review and identification of
     2  conflicts of state ombudsman and long-term care ombudsmen; and
     3    (D) take steps to remove or remedy conflicts.
     4    (3)  In  no  circumstance shall the entity which appoints, employs, or
     5  designates the state ombudsman appoint, employ, or designate an individ-
     6  ual as the state ombudsman who:
     7    (A) has direct involvement in the  licensing  or  certification  of  a
     8  long-term care facility;
     9    (B)  has  an  ownership or investment interest (represented by equity,
    10  debt, or other financial relationship) in  a  long-term  care  facility.
    11  Divestment  within  a  reasonable  period  may be considered an adequate
    12  remedy to this conflict;
    13    (C) has been employed by or participating in the management of a long-
    14  term care facility within the previous twelve months; or
    15    (D) receives, or has the right to  receive,  directly  or  indirectly,
    16  remuneration  (in cash or in kind) under a compensation arrangement with
    17  an owner or operator of a long-term care facility.
    18    (4) In no circumstance shall the state office  for  the  aging  or  an
    19  agency hosting a local ombudsman entity appoint, employ, or designate an
    20  individual,  nor shall the state ombudsman designate an individual, as a
    21  long-term care ombudsman who:
    22    (A) has direct involvement in the  licensing  or  certification  of  a
    23  long-term care facility;
    24    (B)  has  an  ownership or investment interest (represented by equity,
    25  debt, or other financial relationship) in  a  long-term  care  facility.
    26  Divestment  within  a  reasonable  period  may be considered an adequate
    27  remedy to this conflict;
    28    (C) receives, directly or indirectly,  remuneration  (in  cash  or  in
    29  kind)  under  a  compensation arrangement with an owner or operator of a
    30  long-term care facility; or
    31    (D) is employed by, or participating in the management of, a long-term
    32  care facility.
    33    (i) An agency which appoints or employs long-term care ombudsmen shall
    34  make efforts to avoid appointing, employing, or designating an  individ-
    35  ual  as  a  long-term care ombudsman who has been employed by or partic-
    36  ipating in the management of a long-term care facility within the previ-
    37  ous twelve months.
    38    (ii) Where such individual is appointed, employed, or designated,  the
    39  agency shall take steps to remedy the conflict.
    40    11.  Civil  immunity.  Notwithstanding  any  other  provision  of law,
    41  ombudsmen designated under this section [or who are also records  access
    42  ombudsmen functioning in accordance with this section] shall be included
    43  within  the  definition of employee as set forth in section seventeen of
    44  the public officers law and shall be defended and indemnified in accord-
    45  ance with the provisions of article two of such law.
    46    [10.] 12. Grievance process. In addition to the provisions  listed  in
    47  this  section,  the  state ombudsman shall recommend policies and proce-
    48  dures for the receipt and review of grievances regarding  determinations
    49  or  actions  of  the state ombudsman or ombudsmen to the director of the
    50  state office for the aging.
    51    13. Regulations. The director of the state office for  the  aging,  in
    52  consultation with the state ombudsman, is authorized to promulgate regu-
    53  lations to implement the provisions of this section.
    54    [11.] 14. Annual report. On or before March thirty-first, two thousand
    55  five,  and  annually thereafter, the state ombudsman shall submit to the
    56  governor, commissioner of the federal administration on  aging,  speaker

        A. 11050                           16

     1  of  the  assembly,  temporary  president  of the senate, director of the
     2  state office for the aging, commissioner of the  department  of  health,
     3  and  the  commissioner of children and family services a report and make
     4  such report available to the public:
     5    (a)  describing  the activities carried out by the office of the state
     6  [long term] long-term care ombudsman during the prior calendar year;
     7    (b) containing and analyzing data relating to  complaints  and  condi-
     8  tions  in [long term] long-term care facilities and to residents for the
     9  purpose of identifying and resolving significant problems;
    10    (c) evaluating the problems experienced by, and the complaints made by
    11  or on behalf of, residents;
    12    (d) containing recommendations for[:
    13    (1)] appropriate state legislation, rules and  regulations  and  other
    14  action  to  improve  the quality of the care and life of the residents[;
    15  and
    16    (2)], protecting the health, safety and  welfare  and  rights  of  the
    17  residents  and  resolving resident complaints and identified problems or
    18  barriers;
    19    (e) containing an analysis  of  the  success  of  the  long-term  care
    20  ombudsman program, including success in providing services to residents;
    21    (f)  describing  barriers  that  prevent  the optimal operation of the
    22  ombudsman program;
    23    (g) describing any organizational conflicts of interest in the ombuds-
    24  man program that have been identified and the steps taken to  remove  or
    25  remedy such conflicts; and
    26    (h) any other matters as the state ombudsman, in consultation with the
    27  director  of  the state office for the aging, determines to be appropri-
    28  ate.
    29    § 2. Paragraph (b) of subdivision 1 of section 218 of the  elder  law,
    30  as  amended  by section 2 of chapter 462 of the laws of 2015, is amended
    31  to read as follows:
    32    [(b) "Long term] (d) "Long-term care facilities" shall  mean  residen-
    33  tial  health  care facilities as defined in subdivision three of section
    34  twenty-eight hundred one of the public health law, adult care facilities
    35  as defined in subdivision  twenty-one  of  section  two  of  the  social
    36  services  law,  and  assisted  living  residences, as defined in article
    37  forty-six-B of the public health law, or any facilities which hold them-
    38  selves out or advertise themselves as providing assisted living services
    39  and which are required to be licensed  or  certified  under  the  social
    40  services law or the public health law.
    41    § 3. This act shall take effect immediately; provided, however that:
    42    (a) the amendments to paragraph (b) of subdivision 1 of section 218 of
    43  the  elder  law made by section two of this act shall take effect on the
    44  same date and in the same manner as section 2 of chapter 462 of the laws
    45  of 2015, takes effect; and
    46    (b) the amendments to paragraph (g) of subdivision 3 of section 218 of
    47  the elder law made by section one of  this  act  shall  not  affect  the
    48  repeal  of such paragraph as provided in section 5 of chapter 462 of the
    49  laws of 2015, as amended, and shall be deemed repealed therewith.
Go to top