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.
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
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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
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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;
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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.
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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;
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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.
