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A10161 Summary:

BILL NOA10161
 
SAME ASSAME AS S07975
 
SPONSORLupardo
 
COSPNSR
 
MLTSPNSR
 
Amd 218, Eld L
 
Relates to the long-term care ombudsman program.
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A10161 Actions:

BILL NOA10161
 
03/21/2018referred to aging
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A10161 Memo:

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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A10161 Text:



 
                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 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.
                                                                   LBD14558-03-8

        A. 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 [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 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  of
    48  receiving  and  resolving  complaints affecting applicants, patients and
    49  residents in long term care facilities and, where appropriate, referring
    50  complaints to appropriate investigatory agencies and acting  in  concert
    51  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,  the
    54  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 hundred

        A. 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  [with
    21  respect to the adequacy of long term care facilities and services in the
    22  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  their
    35  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 [long
    39  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; [and
    42    (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  efforts

        A. 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 [authorized
    18  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  the
    26  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 or
    36  immediate family member of such person shall:
    37    (1) have a direct involvement in the licensing or certification  of  a
    38  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 a
    41  long term care service;
    42    (3) be employed by, or participate in the management of, a  long  term
    43  care facility; and
    44    (4)  receive  remuneration  (in  cash or in kind) under a compensation
    45  arrangement with an owner or operator of a long term care facility.
    46    (f) The state ombudsman shall establish written procedures to identify
    47  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 such
    50  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  a
    20  provider  or  regulator of long term care facilities, or an affiliate or
    21  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 [local
    36  long  term] state long-term care ombudsman program unless such staff has
    37  [received the training pursuant to paragraph (c) of subdivision three of
    38  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, shall
    42  establish in regulations standards for the operation  of  a  local  long
    43  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 an
    53  administrative hearing prior to the director's final determination. Such
    54  administrative hearing shall be conducted in accordance with  procedures
    55  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 should

        A. 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  shall
    26  include,  but not be limited to, the reporting to the appropriate inves-
    27  tigatory agency if there is reasonable cause to believe  the  occurrence
    28  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  the
    31  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   shall
    37  discriminate  against  any resident of a long term care facility because
    38  such resident or any person acting on behalf of the resident has brought
    39  or caused to be brought any complaint to the state or  local  long  term
    40  care ombudsman for investigation, or against any resident or employee of
    41  a  long  term care facility or any other person because such resident or
    42  employee or any other person has given or provided  or  is  to  give  or
    43  provide any statements, testimony, other evidence or cooperation for the
    44  purposes of any such complaint.
    45    (b)  Any  resident  who  has reason to believe that he or she may have
    46  been discriminated against in violation of this subdivision may,  within
    47  thirty  days  after such alleged violation occurs, file a complaint with
    48  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 of
    51  the director, may approve and certify one or more previously  designated
    52  local  ombudsmen  or state representatives as a records access ombudsman
    53  upon their having completed the  training  program  for  records  access
    54  ombudsman set out in paragraph (b) of this subdivision; and
    55    (2)  A  records access ombudsman shall be an employee of the office of
    56  the state ombudsman or of the local entity designated  to  carry  out  a

        A. 10161                            8

     1  local  ombudsman program, except that the state ombudsman may certify as
     2  a records access ombudsman a volunteer under the direct  supervision  of
     3  the state ombudsman or of the supervisor of the local program, whichever
     4  is  appropriate,  if  such volunteer is licensed in a medical, legal, or
     5  social work profession, or whose  experience  and  training  demonstrate
     6  equivalent competency in medical and personal records review.
     7    (b)  Except  as  otherwise  provided  by law, no person, including the
     8  state ombudsman, his or her authorized  representatives,  or  any  local
     9  ombudsman,  shall  be authorized to have access to or review the medical
    10  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 four
    12  hundred sixty-one-a of the social services law or  pursuant  to  written
    13  consent  to  such access by the patient or resident, or his or her legal
    14  representative unless such person has been:
    15    (1) Certified as having satisfactorily completed  a  training  program
    16  prescribed  by  the  office  and  designed, among other purposes, to (A)
    17  impress upon the participant the value, purpose, and confidentiality  of
    18  medical  and  personal records, (B) familiarize the participant with the
    19  operational aspects of long term care facilities, and (C) deal with  the
    20  medical and psycho-social needs of patients or residents in such facili-
    21  ties; and
    22    (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 or
    45  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[, except
    50  that written consent shall also  include  the  resident  or  complainant
    51  giving  oral  consent  that is documented contemporaneously in a writing
    52  made by the ombudsman with the agreement of the complainant or  resident
    53  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  the

        A. 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.  [Such
    23  approval  is  not  required  for  suspected instances of physical abuse,
    24  mistreatment or neglect or Medicaid fraud and,  subject  to  withholding
    25  identifying  information  of  a  non-consenting  complainant or resident
    26  under paragraph (c) of this subdivision,  a  local  ombudsman  or  state
    27  representative  shall provide needed file information to the appropriate
    28  state and federal regulatory authorities and cooperate with them to help
    29  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 authorized
    10  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  the
    22  appropriate  sanction or penalties of the state agency that licenses the
    23  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  and
    14    (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.
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