|SAME AS||SAME AS S07975|
|Amd §218, Eld L|
|Relates to the long-term care ombudsman program.|
|03/21/2018||referred to aging|
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NEW YORK STATE ASSEMBLY
MEMORANDUM IN SUPPORT OF LEGISLATION
submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A10161 SPONSOR: Lupardo
TITLE OF BILL: An act to amend the elder law, in relation to the long-term care ombuds- man 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 responsibil- ities of the LTCOP and include the responsibilities 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 require- ments around identification, removal and remedy of both organizational and individual conflicts of interest; Require ombudsmen access to resi- dents 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.
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STATE OF NEW YORK ________________________________________________________________________ 10161 IN ASSEMBLY March 21, 2018 ___________ Introduced by M. of A. LUPARDO -- (at request of the Office for the Aging) -- 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 the12 local entity designated pursuant to subdivision four of this section and13 who has been approved by the state ombudsman to perform or carry out the14 activities of the local long term care ombudsman program. The local15 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. LBD14558-03-8A. 10161 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 [ long9 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 ombudsman14 appointed by the director pursuant to subdivision three of this15 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 long-term care ombudsman entity and represents the 19 state long-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; or 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 (g) "State long-term care ombudsman" or "state ombudsman" shall mean 36 the individual who heads the office of the state long-term care ombuds- 37 man and is responsible to personally, or through representatives of the 38 office of the state long-term care ombudsman, fulfill the functions, 39 responsibilities and duties of the office of the state long-term care 40 ombudsman. 41 (h) "Willful interference" shall mean actions or inactions taken by an 42 individual in an attempt to intentionally prevent, interfere with, or 43 attempt to impede an ombudsman from performing any of the functions or 44 responsibilities of the office of the state long-term care ombudsman. 45 2. Office of the state long-term care ombudsman established. (a) There 46 is hereby established within the state office for the aging an office of 47 the state [ long term] long-term care ombudsman [ for the purpose of48 receiving and resolving complaints affecting applicants, patients and49 residents in long term care facilities and, where appropriate, referring50 complaints to appropriate investigatory agencies and acting in concert51 with such agencies] which shall be headed by the state long-term care 52 ombudsman, who shall carry out, directly and/or through local ombudsman 53 entities, the duties set forth in this section. 54 (b) The office of the state long-term care ombudsman is a distinct 55 entity, separately identifiable, and located within the state office for 56 the aging.A. 10161 3 1 (c) The state office for the aging shall provide the ombudsman program 2 with legal counsel that is adequate, available, has competencies rele- 3 vant to the legal needs of the program, and is without conflict of 4 interest as determined by the state office for the aging in consultation 5 with the state long-term care ombudsman. 6 (d) The state office for the aging shall not establish personnel poli- 7 cies or practices which prohibit the ombudsman from performing the func- 8 tions and responsibilities of the ombudsman, as set forth in this 9 section. 10 (e) Nothing in this section shall prohibit the state office for the 11 aging from requiring that the state ombudsman, or other employees of the 12 office of the state long-term care ombudsman, adhere to the personnel 13 policies and procedures of the state office for the aging. 14 3. State [ long term] long-term care ombudsman. (a) The director of the 15 state office for the aging shall appoint a full-time state [ long term] 16 long-term care ombudsman to administer and supervise the office of the 17 state [ long term] long-term care ombudsman. 18 (b) The state ombudsman shall be selected from among individuals with 19 expertise and experience in [ the fields of long term] long-term care and 20 advocacy, long-term services and supports or other direct services for 21 older persons or individuals with disabilities, consumer-oriented public 22 policy advocacy, leadership and program, management skills, negotiation 23 and problem resolution skills, and with other qualifications determined 24 by the director of the state office for the aging to be appropriate for 25 the position. 26 (c) In no circumstance shall the state office for the aging appoint as 27 state ombudsman an individual who: 28 (1) has a direct involvement in the licensing or certification of a 29 long-term care facility or of a provider of a long-term care service; 30 (2) has an ownership or investment interest (represented by equity, 31 debt, or other financial relationship) in a long-term care facility or a 32 long-term care service; provided that divestment within a reasonable 33 time period may be considered an adequate remedy to this conflict; 34 (3) has been employed by, or participated in the management of, a 35 long-term care facility within the previous twelve months; and 36 (4) receives or has the right to receive, directly or indirectly, 37 remuneration (in cash or in kind) under a compensation arrangement with 38 an owner or operator of a long-term care facility. 39 (d) The state ombudsman [ shall], personally or through authorized 40 representatives [ as provided for in paragraph (d) of this subdivision] 41 shall: 42 (1) identify, investigate and resolve complaints that are made by, or 43 on behalf of, [ long term] long-term care residents in this state and 44 that relate to actions, inactions or decisions that may adversely affect 45 the health, safety and welfare or rights of such residents; [ provided,46 however, that] the state ombudsman [ shall immediately] may refer to the 47 appropriate investigatory agency information obtained during the inves- 48 tigation of a complaint which suggests the possible occurrence of phys- 49 ical abuse, mistreatment or neglect or Medicaid fraud, in accordance 50 with [ procedures established by the state ombudsman] the older Americans 51 act of 1965, as amended and the regulations promulgated thereunder as 52 well as rules and regulations promulgated by the state office for the 53 aging. [ Such procedures shall include, but not be limited to, the54 reporting to the appropriate investigatory agency any reasonable infor-55 mation which suggests the possible occurrence of physical abuse,56 mistreatment or neglect as defined in section twenty-eight hundredA. 10161 4 1 three-d of the public health law.] Nothing in this section shall be 2 construed as authorizing the state ombudsman to impose a resolution 3 unacceptable to either party involved in a complaint or to assume powers 4 delegated to the commissioner of health or the department of health 5 pursuant to article twenty-eight of the public health law or to the 6 commissioner of the office of children and family services or the office 7 of children and family services pursuant to the social services law; nor 8 does it authorize the state ombudsman to investigate final administra- 9 tive determinations made pursuant to law by such commissioners if such 10 decisions become the subject of complaints to the state ombudsman; 11 (2) provide services to assist residents in protecting their health, 12 safety, welfare and rights, including but not limited to representing 13 the interests of residents before governmental agencies and seeking 14 appropriate administrative, legal and other remedies to protect their 15 welfare, safety, health and rights; 16 (3) inform the residents about means of obtaining services provided by 17 [ public health, social services and veterans' affairs or] the long-term 18 care ombudsman program and other public agencies; 19 (4) analyze, comment on and monitor the development and implementation 20 of federal, state and local laws, regulations [ or], policies [ with21 respect to the adequacy of long term care facilities and services in the22 state] and actions that pertain to the health, safety, welfare, and 23 rights of the residents of long-term care facilities and services in the 24 state; 25 (5) [ in consultation with the director, establish procedures for the] 26 ensure that residents have regular and timely access to the services 27 provided through the long-term care ombudsman program and that residents 28 and complainants receive timely responses to requests for information 29 and complaints; 30 (6) recommend changes in federal, state and local laws, regulations, 31 policies, and actions pertaining to the health, safety, welfare, and 32 rights of residents; 33 (7) develop a certification training program and continuing education 34 of [ the authorized representatives and of local] ombudsmen [ and their35 staff] which at a minimum shall specify the minimum hours of training 36 the annual number of hours of in-service training, and the content of 37 the training, including, but not limited to, training relating to feder- 38 al, state and local laws, regulations and policies with respect to [ long39 term] long-term care facilities in the state, investigative and resol- 40 ution techniques, and such other training-related matters as the state 41 ombudsman determines to be appropriate; [ and42 (6)] (8) provide administrative and technical assistance to the state 43 ombudsman and local ombudsman entities; 44 (9) make determinations and establish positions of the office of the 45 state long-term care ombudsman, without necessarily representing the 46 determinations or positions of the state office for the aging; 47 (10) recommend to the director of the state office for the aging poli- 48 cies and procedures for the state long-term care ombudsman program; 49 (11) coordinate with and promote the development of citizen organiza- 50 tions consistent with the interests of residents; 51 (12) promote, provide technical support for the development of, and 52 provide ongoing support as requested by resident and family councils to 53 protect the well-being and rights of residents; 54 (13) provide leadership to statewide systems advocacy efforts of the 55 office of the state long-term care ombudsman on behalf of long-term care 56 facility residents, including coordination of systems advocacy effortsA. 10161 5 1 carried out by representatives of the office of the state long-term care 2 ombudsman; 3 (14) in accordance with applicable state contracting procedures, coor- 4 dinate with the state office for the aging in the review and approval of 5 plans or contracts governing local ombudsman entity operations; 6 (15) carry out such other activities as the director of the state 7 office for the aging determines to be appropriate pursuant to the feder- 8 al older Americans act of 1965 and other applicable federal and state 9 laws and related regulations as may, from time to time, be amended; and 10 (16) in accordance with the regulations promulgated under this section 11 provide the director of the state office for the aging with notice prior 12 to performing the activities identified in paragraphs four, six and nine 13 of this subdivision. Such notice shall not give the director of the 14 state office for the aging or any other state official the right to 15 pre-approve the position or communications of the state ombudsman. 16 [ (d)(1)] (e) The state ombudsman, with the approval of the director of 17 the state office for the aging, may appoint one or more [ authorized18 representatives] assistant state long-term care ombudsmen to assist the 19 state ombudsman in the performance of his or her duties under this 20 section. Such assistant state ombudsmen must be verified as having 21 completed a certification training program developed by the state 22 ombudsman within six (6) months of their appointment as assistant state 23 ombudsmen. 24 [ (2)] (f)(1) The state ombudsman [ shall] may appoint [ only those] as 25 ombudsmen individuals who have been [ certified as having completed the26 training program developed pursuant to paragraph (c) of this subdivi-27 sion] verified as completing the certification training program devel- 28 oped by the state ombudsman. In addition, the state long-term care 29 ombudsman may refuse, suspend, or remove such appointments of ombudsmen. 30 (2) The state ombudsman shall develop a grievance process to offer an 31 opportunity for reconsideration of any decision to refuse, suspend, or 32 remove appointment of any ombudsman. Notwithstanding the grievance 33 process, the state ombudsman shall make the final determination to 34 designate or to refuse, suspend, or remove appointment of an ombudsman. 35 [ (e) No state ombudsman, authorized representative, local ombudsman or36 immediate family member of such person shall:37 (1) have a direct involvement in the licensing or certification of a38 long term care facility or of a provider of a long term care service;39 (2) have an ownership or investment interest (represented by equity,40 debt, or other financial relationship) in a long term care facility or a41 long term care service;42 (3) be employed by, or participate in the management of, a long term43 care facility; and44 (4) receive remuneration (in cash or in kind) under a compensation45 arrangement with an owner or operator of a long term care facility.46 (f) The state ombudsman shall establish written procedures to identify47 and remove conflicts of interest set out in paragraph (e) of this subdi-48 vision and shall include actions that the director may require an indi-49 vidual ombudsman or immediate family member to take to remove such50 conflicts of interest.] 51 (g) No ombudsman shall be appointed if they or an immediate family 52 member has a conflict of interest that cannot be remedied. The state 53 ombudsman shall recommend to the director of the state office for the 54 aging written procedures to identify, remove, and/or remedy individual 55 conflicts of interest.A. 10161 6 1 (h) Within the amounts appropriated therefor, the state ombudsman 2 program shall include services specifically designed to serve persons 3 enrolled in managed [ long term] long-term care plans or approved managed 4 [ long term] long-term care or operating demonstrations authorized under 5 section forty-four hundred three-f of the public health law, and shall 6 also review and respond to complaints relating to marketing practices by 7 such plans and demonstrations. 8 4. Local [ long term] long-term care ombudsman program. (a) The state 9 ombudsman, in coordination with [ the approval of the director] the state 10 office for the aging, and in accordance with applicable state contract- 11 ing procedures, may designate an entity to operate a local [ long term] 12 long-term care ombudsman program for one or more counties, and shall 13 monitor the performance of such entity. If the state office for the 14 aging is aware or becomes aware of any compelling reason why the state 15 ombudsman should not designate an entity to operate a long-term care 16 ombudsman program, the state ombudsman will comply with the state office 17 for the aging's determination. 18 (b) The designated entity shall be an area agency on aging, a public 19 agency or a private not-for-profit corporation which is [ neither a20 provider or regulator of long term care facilities, or an affiliate or21 unit of such agency or corporation] free from any conflict of interest 22 that cannot be remedied. The state ombudsman shall recommend to the 23 director of the state office for the aging written procedures to identi- 24 fy, remove, and/or remedy organizational conflicts of interest. 25 (c)(1) Each local [ long term] long-term care ombudsman program shall 26 be directed by a qualified individual who is employed and paid by the 27 local entity and who shall have the duties and responsibilities as 28 provided in regulations, consistent with the provisions of this section 29 and of Title VII of the federal older Americans act of 1965, as amended. 30 In addition, upon designation, the entity is responsible for providing 31 for adequate and qualified staff, which may include trained volunteers 32 to perform the functions of the local [ long term] long-term care ombuds- 33 man program. 34 (2) No local program staff, including the supervisor and any volun- 35 teers, shall perform or carry out the activities on behalf of the [ local36 long term] state long-term care ombudsman program unless such staff has 37 [ received the training pursuant to paragraph (c) of subdivision three of38 this section] been verified as completing the training program developed 39 by the state ombudsman and has been approved by the state ombudsman as 40 qualified to carry out the activities on behalf of the local program. 41 (d) [ The director, in consultation with the state ombudsman, shall42 establish in regulations standards for the operation of a local long43 term care ombudsman program.44 (e)] When the state ombudsman determines that a local [ long term] 45 long-term care ombudsman program does not meet the standards set forth 46 in this section and in any related regulations, the state ombudsman 47 [ shall with the approval of the director withdraw], in coordination with 48 the state office for the aging, may refuse, suspend, or withdraw the 49 designation of the local program. Prior to taking such action, the state 50 ombudsman shall send to the affected local program a notice of [ inten-51 tion] the state ombudsman's intentions to withdraw the designation[ ,52 which notice shall also inform the local program of its right to an53 administrative hearing prior to the director's final determination. Such54 administrative hearing shall be conducted in accordance with procedures55 set forth in regulations]. If the state office for the aging is aware or 56 becomes aware of any compelling reason why the state ombudsman shouldA. 10161 7 1 not designate an entity to operate a long-term care ombudsman program or 2 why the state ombudsman should refuse, suspend or remove designation of 3 a local ombudsman entity, the state ombudsman will comply with the state 4 office for the aging's determination. 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 designation of a local ombudsman entity. Notwithstanding the 8 grievance process, the state ombudsman in coordination with the state 9 office for the aging shall make the final determination to designate or 10 to refuse, suspend, or remove designation of a local ombudsman entity. 11 If the state office for the aging is aware or becomes aware of any 12 compelling reason why the state ombudsman should not designate an entity 13 to operate a long-term care ombudsman program or why the state ombudsman 14 should refuse, suspend or remove designation of a local ombudsman enti- 15 ty, the state ombudsman will comply with the state office for the 16 aging's determination. 17 5. Review of complaint. [ (a)] Upon receipt of a complaint, the ombuds- 18 man shall determine [ immediately] whether there are reasonable grounds 19 for an investigation. Such investigation shall be conducted in a manner 20 prescribed in regulations. The [ state] ombudsman[ , or the local ombuds-21 man, whoever is appropriate, shall] may immediately refer to the appro- 22 priate investigatory agency information obtained during the investi- 23 gation of a complaint which suggests the possible occurrence of physical 24 abuse, mistreatment or neglect or Medicaid fraud, in accordance with 25 [ procedures established by the state ombudsman. Such procedures shall26 include, but not be limited to, the reporting to the appropriate inves-27 tigatory agency if there is reasonable cause to believe the occurrence28 of physical abuse, mistreatment or neglect as defined in section twen-29 ty-eight hundred three-d of the public health law.30 (b) If the referral is made by the local ombudsman, a copy of the31 referral, together with copies of any relevant information or records,32 shall be sent forthwith to the state ombudsman] and subject to any limi- 33 tations identified in the older Americans act of 1965, as amended and 34 the regulations promulgated thereunder as well as rules and regulations 35 promulgated by the state office for the aging. 36 6. [ Retaliatory discrimination prohibited. (a) No person shall37 discriminate against any resident of a long term care facility because38 such resident or any person acting on behalf of the resident has brought39 or caused to be brought any complaint to the state or local long term40 care ombudsman for investigation, or against any resident or employee of41 a long term care facility or any other person because such resident or42 employee or any other person has given or provided or is to give or43 provide any statements, testimony, other evidence or cooperation for the44 purposes of any such complaint.45 (b) Any resident who has reason to believe that he or she may have46 been discriminated against in violation of this subdivision may, within47 thirty days after such alleged violation occurs, file a complaint with48 the commissioner of health pursuant to subdivision ten of section twen-49 ty-eight hundred one-d of the public health law.50 7.] Record access. (a) [ (1) The state ombudsman, with the approval of51 the director, may approve and certify one or more previously designated52 local ombudsmen or state representatives as a records access ombudsman53 upon their having completed the training program for records access54 ombudsman set out in paragraph (b) of this subdivision; and55 (2) A records access ombudsman shall be an employee of the office of56 the state ombudsman or of the local entity designated to carry out aA. 10161 8 1 local ombudsman program, except that the state ombudsman may certify as2 a records access ombudsman a volunteer under the direct supervision of3 the state ombudsman or of the supervisor of the local program, whichever4 is appropriate, if such volunteer is licensed in a medical, legal, or5 social work profession, or whose experience and training demonstrate6 equivalent competency in medical and personal records review.7 (b) Except as otherwise provided by law, no person, including the8 state ombudsman, his or her authorized representatives, or any local9 ombudsman, shall be authorized to have access to or review the medical10 or personal records of a patient or resident pursuant to section twen-11 ty-eight hundred three-c of the public health law and section four12 hundred sixty-one-a of the social services law or pursuant to written13 consent to such access by the patient or resident, or his or her legal14 representative unless such person has been:15 (1) Certified as having satisfactorily completed a training program16 prescribed by the office and designed, among other purposes, to (A)17 impress upon the participant the value, purpose, and confidentiality of18 medical and personal records, (B) familiarize the participant with the19 operational aspects of long term care facilities, and (C) deal with the20 medical and psycho-social needs of patients or residents in such facili-21 ties; and22 (2) Certified as a records access ombudsman by the state ombudsman.23 (c)] An ombudsman shall have access to: 24 (1) medical, social and other records relating to a resident, if: 25 (A) the resident or resident representative communicates informed 26 consent to the access and the consent is given in writing or through the 27 use of auxiliary aids and services; 28 (B) the resident or resident representative communicates informed 29 consent orally, visually, or through the use of auxiliary aids and 30 services, and such consent is documented contemporaneously by an ombuds- 31 man in accordance with procedures established by the state ombudsman; 32 and 33 (C) access is necessary in order to investigate a complaint, the resi- 34 dent representative refuses to consent to the access, an ombudsman has 35 reasonable cause to believe that the resident representative is not 36 acting in the best interests of the resident, and the ombudsman obtains 37 the approval of the state ombudsman; 38 (2) administrative records, policies, and documents, to which the 39 residents have, or the general public has access, of long-term care 40 facilities; 41 (3) copies of all licensing and certification records maintained by 42 the state with respect to long-term care facilities; and 43 (4) a list of resident names and room numbers. 44 (b) No ombudsman shall disclose [ the identity of the resident or45 complainant that made a complaint to the ombudsman] information about a 46 complaint, including identifying information of any resident or 47 complainant unless: 48 (1) the complainant or resident or his or her [ legal] resident repre- 49 sentative gives [ written] informed consent to the ombudsman[ , except50 that written consent shall also include the resident or complainant51 giving oral consent that is documented contemporaneously in a writing52 made by the ombudsman with the agreement of the complainant or resident53 and in accordance with requirements established by the director; or]. 54 Communication of informed consent may be made in writing, including 55 through the use of auxiliary aids and services. Alternatively, communi- 56 cation of consent may be made orally or visually, including through theA. 10161 9 1 use of auxiliary aids and services, and such consent must be documented 2 contemporaneously by an ombudsman in accordance with the procedures of 3 the office of the state long-term care ombudsman; 4 (2) the disclosure is required pursuant to a court order; or 5 (3) the resident is unable to communicate informed consent and does 6 not have a resident representative, or the state long-term care ombuds- 7 man determines that the resident representative is not acting in the 8 best interest of the resident. In such cases, disclosures may be made in 9 accordance with criteria to be developed by the ombudsman. 10 (c) all files, records, and other information of the long-term care 11 ombudsman program, including information maintained by local ombudsman 12 entities pertaining to the cases and activities of the program are the 13 property of the office of the state long-term care ombudsman. Such 14 files, records, and information may be disclosed only at the discretion 15 of the state ombudsman or designee of the state ombudsman for such 16 purpose and in accordance with the criteria developed by the state 17 ombudsman. 18 (d) No ombudsman shall disclose to any person outside of the ombudsman 19 program any information obtained from a [ patient's or] resident's 20 [ records] record without the approval of the state ombudsman or his or 21 her designee, in accordance with procedures for disclosure established 22 by [ the director in consultation with] the state ombudsman. [ Such23 approval is not required for suspected instances of physical abuse,24 mistreatment or neglect or Medicaid fraud and, subject to withholding25 identifying information of a non-consenting complainant or resident26 under paragraph (c) of this subdivision, a local ombudsman or state27 representative shall provide needed file information to the appropriate28 state and federal regulatory authorities and cooperate with them to help29 further their investigation.] 30 (e) No [ records access or other] ombudsman who directly or indirectly 31 obtains access to a [ patient's or] resident's medical or personal 32 records pursuant to section twenty-eight hundred three-c of the public 33 health law shall disclose to such [ patient or] resident or to any other 34 person outside of the ombudsman program the content of any such records 35 to which such [ patient,] resident or other person had not previously had 36 the right of access, provided that this restriction shall not prevent 37 such ombudsman from advising such [ patient or] resident of the status or 38 progress of an investigation or complaint process initiated at the 39 request of such [ patient or] resident or from referring such complaint, 40 together with the relevant records, to appropriate investigatory agen- 41 cies. Any person who intentionally violates the provisions of this 42 subdivision shall be guilty of a misdemeanor. Nothing contained in this 43 section shall be construed to limit or abridge any right of access to 44 records, including financial records, otherwise available to ombudsmen, 45 [ patients or] residents, or any other person. 46 (f) Any individual, when acting in his or her official capacity as an 47 ombudsman, shall be exempt from the mandatory reporting of abuse, 48 neglect, exploitation, or maltreatment, notwithstanding any law to the 49 contrary. However, an ombudsman may report abuse, neglect, exploitation, 50 or maltreatment in accordance with the older Americans act of 1965, as 51 amended and the regulations promulgated thereunder as well as rules and 52 regulations promulgated by the state office for the aging. 53 (g) Nothing in this section shall prohibit the disclosure by an 54 ombudsman or local ombudsman entity of aggregate data for monitoring or 55 reporting purposes to the state office for the aging or an agency in 56 which a local ombudsman entity is organizationally located.A. 10161 10 1 7. Access to long-term care facilities. An ombudsman shall have 2 authority to enter all long-term care facilities at any time during a 3 facility's regular business hours or regular visiting hours, and at any 4 other time when access may be required by the circumstances to be inves- 5 tigated and shall have access to all residents and/or the resident 6 representative to perform all functions and duties enumerated herein. 7 8. [ Failure to cooperate. Any long term] Noninterference. No long- 8 term care facility [ which refuses] shall: 9 (a) refuse to permit [ the state] an ombudsman[ , his or her authorized10 representative, or any local ombudsman] entry into such facility or 11 [ refuses], interfere with, refuse to cooperate with [ the state] an 12 ombudsman[ , his or her authorized representative, or any local ombuds-13 man] in the carrying out of their mandated duties and responsibilities 14 set forth in this section and any regulations promulgated pursuant ther- 15 eto[ , or refuses]; 16 (b) retaliate against an ombudsman for carrying out his or her 17 mandated duties and responsibilities set forth in this section and any 18 regulations promulgated pursuant thereto; 19 (c) refuse to permit [ patients] residents or staff to communicate 20 freely and privately with [ the state] an ombudsman[ , his or her author-21 ized representative, or any local ombudsman shall be subject to the22 appropriate sanction or penalties of the state agency that licenses the23 facility]; or 24 (d) retaliate or discriminate against any resident, resident represen- 25 tative, complainant, or staff member for filing a complaint with, 26 providing information to, or otherwise cooperating with any ombudsman. 27 9. Failure to cooperate. Any resident who has reason to believe that 28 he or she may have been discriminated or retaliated against in violation 29 of subdivision eight of this section may file a complaint with the 30 commissioner of health pursuant to subdivision ten of section twenty- 31 eight hundred one-d of the public health law. Any such facility that 32 violates the provisions of subdivision eight of this section shall be 33 subject to the appropriate sanctions pursuant to section twenty-eight 34 hundred three-c of the public health law, and accompanying regulations, 35 if such facility is a residential healthcare facility or section four 36 hundred sixty-d of the social services law, and accompanying regu- 37 lations, if such facility is an adult care facility. 38 10. Civil immunity. Notwithstanding any other provision of law, 39 ombudsmen designated under this section or who are also records access 40 ombudsmen functioning in accordance with this section shall be included 41 within the definition of employee as set forth in section seventeen of 42 the public officers law and shall be defended and indemnified in accord- 43 ance with the provisions of article two of such law. 44 [ 10.] 11. Grievance process. In addition to the provisions listed in 45 this section, the state ombudsman shall recommend policies and proce- 46 dures for the receipt and review of grievances regarding determinations 47 or actions of the state ombudsman or ombudsmen to the director of the 48 state office for the aging. 49 12. Regulations. The director, in consultation with the state ombuds- 50 man, is authorized to promulgate regulations to implement the provisions 51 of this section. 52 [ 11.] 13. Annual report. On or before March thirty-first, two thousand 53 five, and annually thereafter, the state ombudsman shall submit to the 54 governor, commissioner of the federal administration on aging, speaker 55 of the assembly, temporary president of the senate, director of the 56 state office for the aging, commissioner of the department of health,A. 10161 11 1 and the commissioner of children and family services a report and make 2 such report available to the public: 3 (a) describing the activities carried out by the office of the state 4 [ long term] long-term care ombudsman during the prior calendar year; 5 (b) containing and analyzing data relating to complaints and condi- 6 tions in [ long term] long-term care facilities and to residents for the 7 purpose of identifying and resolving significant problems; 8 (c) evaluating the problems experienced by, and the complaints made by 9 or on behalf of, residents; 10 (d) containing recommendations for[ :11 (1)] appropriate state legislation, rules and regulations and other 12 action to improve the quality of the care and life of the residents[ ;13 and14 (2)], protecting the health, safety and welfare and rights of the 15 residents and resolving resident complaints and identified problems or 16 barriers; 17 (e) containing an analysis of the success of the ombudsman program, 18 including success in providing services to residents; 19 (f) describing barriers that prevent the optimal operation of the 20 ombudsman program; 21 (g) describing any organizational conflicts of interest in the ombuds- 22 man program that have been identified and the steps taken to remove or 23 remedy such conflicts; and 24 (h) any other matters as the state ombudsman, in consultation with the 25 director of the state office for the aging, determines to be appropri- 26 ate. 27 § 2. Paragraph (b) of subdivision 1 of section 218 of the elder law, 28 as amended by section 2 of chapter 462 of the laws of 2015, is amended 29 to read as follows: 30 [ (b) "Long term] (d) "Long-term care facilities" shall mean residen- 31 tial health care facilities as defined in subdivision three of section 32 twenty-eight hundred one of the public health law, adult care facilities 33 as defined in subdivision twenty-one of section two of the social 34 services law, and assisted living residences, as defined in article 35 forty-six-B of the public health law, or any facilities which hold them- 36 selves out or advertise themselves as providing assisted living services 37 and which are required to be licensed or certified under the social 38 services law or the public health law. 39 § 3. This act shall take effect immediately; provided, however that: 40 (a) the amendments to paragraph (b) of subdivision 1 of section 218 of 41 the elder law made by section two of this act shall take effect on the 42 same date and in the same manner as section 2 of chapter 462 of the laws 43 of 2015, takes effect; and 44 (b) the amendments to paragraph (g) of subdivision 3 of section 218 of 45 the elder law made by section one of this act shall not affect the 46 repeal of such paragraph as provided in section 5 of chapter 462 of the 47 laws of 2015, as amended, and shall be deemed repealed therewith.