218. Long term care ombudsman. 1. Definitions. For the purposes of this section, the following terms shall have the following meanings:
(a) "Local ombudsman" shall mean an individual who is employed by the local entity designated pursuant to subdivision four of this section and who has been approved by the state ombudsman to perform or carry out the activities of the local long term care ombudsman program. The local ombudsman may be either a paid employee or volunteer of the local entity.
* (b) "Long term care facilities" shall mean residential health care facilities as defined in subdivision three of section twenty-eight hundred one of the public health law, adult care facilities as defined in subdivision twenty-one of section two of the social services law, and assisted living residences, as defined in article forty-six-B of the public health law, or any facilities which hold themselves out or advertise themselves as providing assisted living services and which are required to be licensed or certified under the social services law or the public health law. Within the amounts appropriated therefor, "long term care facilities" shall also mean managed long term care plans and approved managed long term care or operating demonstrations as defined in section forty-four hundred three-f of the public health law and the term "resident", "residents", "patient" and "patients" shall also include enrollees of such plans.
* NB Effective until December 31, 2019
* (b) "Long term care facilities" shall mean residential health care facilities as defined in subdivision three of section twenty-eight hundred one of the public health law, adult care facilities as defined in subdivision twenty-one of section two of the social services law, and assisted living residences, as defined in article forty-six-B of the public health law, or any facilities which hold themselves out or advertise themselves as providing assisted living services and which are required to be licensed or certified under the social services law or the public health law.
* NB Effective December 31, 2019
(c) "State ombudsman" shall mean the state long term care ombudsman appointed by the director pursuant to subdivision three of this section.
2. Office established. There is hereby established within the office an office of the state long term care ombudsman for the purpose of receiving and resolving complaints affecting applicants, patients and residents in long term care facilities and, where appropriate, referring complaints to appropriate investigatory agencies and acting in concert with such agencies.
3. State long term care ombudsman. (a) The director shall appoint a full-time state long term care ombudsman to administer and supervise the office of the state long term care ombudsman.
(b) The state ombudsman shall be selected from among individuals with expertise and experience in the fields of long term care and advocacy, and with other qualifications determined by the director to be appropriate for the position.
(c) The state ombudsman shall, personally or through authorized representatives as provided for in paragraph (d) of this subdivision:
(1) identify, investigate and resolve complaints that are made by, or on behalf of, long term care residents in this state and that relate to actions, inactions or decisions that may adversely affect the health, safety and welfare or rights of such residents; provided, however, that the state ombudsman shall immediately refer to the appropriate investigatory agency information obtained during the investigation of a complaint which suggests the possible occurrence of physical abuse, mistreatment or neglect or Medicaid fraud, in accordance with procedures established by the state ombudsman. Such procedures shall include, but not be limited to, the reporting to the appropriate investigatory agency any reasonable information which suggests the possible occurrence of physical abuse, mistreatment or neglect as defined in section twenty-eight hundred three-d of the public health law. Nothing in this section shall be construed as authorizing the state ombudsman to impose a resolution unacceptable to either party involved in a complaint or to assume powers delegated to the commissioner of health or the department of health pursuant to article twenty-eight of the public health law or to the commissioner of the office of children and family services or the office of children and family services pursuant to the social services law; nor does it authorize the state ombudsman to investigate final administrative determinations made pursuant to law by such commissioners if such decisions become the subject of complaints to the state ombudsman;
(2) provide services to assist residents in protecting their health, safety, welfare and rights, including but not limited to representing the interests of residents before governmental agencies and seeking appropriate administrative, legal and other remedies to protect their welfare, safety, health and rights;
* (3) inform the residents about means of obtaining services provided by public health, social services and veterans' affairs or other public agencies;
* NB Amended Ch. 95/2004 3, language juxtaposed per Ch. 642/2004 11
(4) analyze and monitor the development and implementation of federal, state and local laws, regulations or policies with respect to the adequacy of long term care facilities and services in the state;
(5) in consultation with the director, establish procedures for the training of the authorized representatives and of local ombudsmen and their staff which at a minimum shall specify the minimum hours of training and the content of the training, including, but not limited to, training relating to federal, state and local laws, regulations and policies with respect to long term care facilities in the state; and
(6) carry out such other activities as the director determines to be appropriate pursuant to the federal older Americans act of 1965 and other applicable federal and state laws and related regulations as may, from time to time, be amended.
(d)(1) The state ombudsman, with the approval of the director, may appoint one or more authorized representatives to assist the state ombudsman in the performance of his or her duties under this section.
(2) The state ombudsman shall appoint only those individuals who have been certified as having completed the training program developed pursuant to paragraph (c) of this subdivision.
(e) No state ombudsman, authorized representative, local ombudsman or immediate family member of such person shall:
(1) have a direct involvement in the licensing or certification of a long term care facility or of a provider of a long term care service;
(2) have an ownership or investment interest (represented by equity, debt, or other financial relationship) in a long term care facility or a long term care service;
(3) be employed by, or participate in the management of, a long term care facility; and
(4) receive remuneration (in cash or in kind) under a compensation arrangement with an owner or operator of a long term care facility.
(f) The state ombudsman shall establish written procedures to identify and remove conflicts of interest set out in paragraph (e) of this subdivision and shall include actions that the director may require an individual ombudsman or immediate family member to take to remove such conflicts of interest.
* (g) Within the amounts appropriated therefor, the state ombudsman program shall include services specifically designed to serve persons enrolled in managed long term care plans or approved managed long term care or operating demonstrations authorized under section forty-four hundred three-f of the public health law, and shall also review and respond to complaints relating to marketing practices by such plans and demonstrations.
* NB Repealed December 31, 2019
4. Local long term care ombudsman program. (a) The state ombudsman, with the approval of the director, may designate an entity to operate a local long term care ombudsman program for one or more counties.
(b) The designated entity shall be an area agency on aging, a public agency or a private not-for-profit corporation which is neither a provider or regulator of long term care facilities, or an affiliate or unit of such agency or corporation.
(c)(1) Each local long term care ombudsman program shall be directed by a qualified individual who is employed and paid by the local entity and who shall have the duties and responsibilities as provided in regulations, consistent with the provisions of this section and of Title VII of the federal older Americans act of 1965, as amended. In addition, upon designation, the entity is responsible for providing for adequate and qualified staff, which may include trained volunteers to perform the functions of the local long term care ombudsman program.
(2) No local program staff, including the supervisor and any volunteers, shall perform or carry out the activities on behalf of the local long term care ombudsman program unless such staff has received the training pursuant to paragraph (c) of subdivision three of this section and has been approved by the state ombudsman as qualified to carry out the activities on behalf of the local program.
(d) The director, in consultation with the state ombudsman, shall establish in regulations standards for the operation of a local long term care ombudsman program.
(e) When the state ombudsman determines that a local long term care ombudsman program does not meet the standards set forth in this section and in any related regulations, the state ombudsman shall with the approval of the director withdraw the designation of the local program. Prior to taking such action, the state ombudsman shall send to the affected local program a notice of intention to withdraw the designation, which notice shall also inform the local program of its right to an administrative hearing prior to the director's final determination. Such administrative hearing shall be conducted in accordance with procedures set forth in regulations.
5. Review of complaint. (a) Upon receipt of a complaint, the ombudsman shall determine immediately whether there are reasonable grounds for an investigation. Such investigation shall be conducted in a manner prescribed in regulations. The state ombudsman, or the local ombudsman, whoever is appropriate, shall immediately refer to the appropriate investigatory agency information obtained during the investigation of a complaint which suggests the possible occurrence of physical abuse, mistreatment or neglect or Medicaid fraud, in accordance with procedures established by the state ombudsman. Such procedures shall include, but not be limited to, the reporting to the appropriate investigatory agency if there is reasonable cause to believe the occurrence of physical abuse, mistreatment or neglect as defined in section twenty-eight hundred three-d of the public health law.
(b) If the referral is made by the local ombudsman, a copy of the referral, together with copies of any relevant information or records, shall be sent forthwith to the state ombudsman.
6. Retaliatory discrimination prohibited. (a) No person shall discriminate against any resident of a long term care facility because such resident or any person acting on behalf of the resident has brought or caused to be brought any complaint to the state or local long term care ombudsman for investigation, or against any resident or employee of a long term care facility or any other person because such resident or employee or any other person has given or provided or is to give or provide any statements, testimony, other evidence or cooperation for the purposes of any such complaint.
(b) Any resident who has reason to believe that he or she may have been discriminated against in violation of this subdivision may, within thirty days after such alleged violation occurs, file a complaint with the commissioner of health pursuant to subdivision ten of section twenty-eight hundred one-d of the public health law.
7. Record access. (a) (1) The state ombudsman, with the approval of the director, may approve and certify one or more previously designated local ombudsmen or state representatives as a records access ombudsman upon their having completed the training program for records access ombudsman set out in paragraph (b) of this subdivision; and
* (2) A records access ombudsman shall be an employee of the office of the state ombudsman or of the local entity designated to carry out a local ombudsman program, except that the state ombudsman may certify as a records access ombudsman a volunteer under the direct supervision of the state ombudsman or of the supervisor of the local program, whichever is appropriate, if such volunteer is licensed in a medical, legal, or social work profession, or whose experience and training demonstrate equivalent competency in medical and personal records review.
* NB Amended Ch. 230/2004 15, language juxtaposed per Ch. 642/2004
11
(b) Except as otherwise provided by law, no person, including the state ombudsman, his or her authorized representatives, or any local ombudsman, shall be authorized to have access to or review the medical or personal records of a patient or resident pursuant to section twenty-eight hundred three-c of the public health law and section four hundred sixty-one-a of the social services law or pursuant to written consent to such access by the patient or resident, or his or her legal representative unless such person has been:
(1) Certified as having satisfactorily completed a training program prescribed by the office and designed, among other purposes, to (A) impress upon the participant the value, purpose, and confidentiality of medical and personal records, (B) familiarize the participant with the operational aspects of long term care facilities, and (C) deal with the medical and psycho-social needs of patients or residents in such facilities; and
(2) Certified as a records access ombudsman by the state ombudsman.
(c) No ombudsman shall disclose the identity of the resident or complainant that made a complaint to the ombudsman unless:
(1) the complainant or resident or his or her legal representative gives written consent to the ombudsman, except that written consent shall also include the resident or complainant giving oral consent that is documented contemporaneously in a writing made by the ombudsman with the agreement of the complainant or resident and in accordance with requirements established by the director; or
(2) pursuant to a court order.
(d) No ombudsman shall disclose to any person outside of the ombudsman program any information obtained from a patient's or resident's records without the approval of the state ombudsman or his or her designee, in accordance with procedures for disclosure established by the director in consultation with the state ombudsman. Such approval is not required for suspected instances of physical abuse, mistreatment or neglect or Medicaid fraud and, subject to withholding identifying information of a non-consenting complainant or resident under paragraph (c) of this subdivision, a local ombudsman or state representative shall provide needed file information to the appropriate state and federal regulatory authorities and cooperate with them to help further their investigation.
(e) No records access or other ombudsman who directly or indirectly obtains access to a patient's or resident's medical or personal records pursuant to section twenty-eight hundred three-c of the public health law shall disclose to such patient or resident or to any other person outside of the ombudsman program the content of any such records to which such patient, resident or other person had not previously had the right of access, provided that this restriction shall not prevent such ombudsman from advising such patient or resident of the status or progress of an investigation or complaint process initiated at the request of such patient or resident or from referring such complaint, together with the relevant records, to appropriate investigatory agencies. Any person who intentionally violates the provisions of this subdivision shall be guilty of a misdemeanor. Nothing contained in this section shall be construed to limit or abridge any right of access to records, including financial records, otherwise available to ombudsmen, patients or residents, or any other person.
8. Failure to cooperate. Any long term care facility which refuses to permit the state ombudsman, his or her authorized representative, or any local ombudsman entry into such facility or refuses to cooperate with the state ombudsman, his or her authorized representative, or any local ombudsman in the carrying out of their mandated duties and responsibilities set forth in this section and any regulations promulgated pursuant thereto, or refuses to permit patients or staff to communicate freely and privately with the state ombudsman, his or her authorized representative, or any local ombudsman shall be subject to the appropriate sanction or penalties of the state agency that licenses the facility.
9. Civil immunity. Notwithstanding any other provision of law, ombudsmen designated under this section or who are also records access ombudsmen functioning in accordance with this section shall be included within the definition of employee as set forth in section seventeen of the public officers law and shall be defended and indemnified in accordance with the provisions of article two of such law.
10. Regulations. The director is authorized to promulgate regulations to implement the provisions of this section.
11. Annual report. On or before March thirty-first, two thousand five, and annually thereafter, the state ombudsman shall submit to the governor, commissioner of the administration on aging, speaker of the assembly, temporary president of the senate, director of the state office for the aging, commissioner of the department of health, and the commissioner of children and family services a report and make such report available to the public:
(a) describing the activities carried out by the office of the state long term care ombudsman during the prior calendar year;
(b) containing and analyzing data relating to complaints and conditions in long term care facilities and to residents for the purpose of identifying and resolving significant problems;
(c) evaluating the problems experienced by, and the complaints made by or on behalf of, residents;
(d) containing recommendations for:
(1) appropriate state legislation, rules and regulations and other action to improve the quality of the care and life of the residents; and
(2) protecting the health, safety and welfare and rights of the residents;
(e) any other matters as the state ombudsman, in consultation with the director, determines to be appropriate.
Last modified: February 3, 2019