[ ] is old law to be omitted.
LBD14558-03-8
S. 7975 2
ties as defined in subdivision twenty-one of section two of the social
services law, INCLUDING THOSE ADULT HOMES and ENRICHED HOUSING PROGRAMS
LICENSED AS assisted living residences, [as defined in] PURSUANT TO
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 appro-
priated therefor, ["long term] "LONG-TERM care facilities" shall also
mean managed [long term] LONG-TERM care plans and approved managed [long
term] LONG-TERM care or operating demonstrations as defined in section
forty-four hundred three-f of the public health law and the term "resi-
dent", "residents", "patient" and "patients" shall also include enrol-
lees of such plans.
[(c) "State ombudsman" shall mean the state long term care ombudsman
appointed by the director pursuant to subdivision three of this
section.]
(E) "LONG-TERM CARE OMBUDSMAN" OR "OMBUDSMAN" SHALL MEAN A PERSON WHO:
(1) IS AN EMPLOYEE OR VOLUNTEER OF THE STATE OFFICE FOR THE AGING OR
OF A DESIGNATED LOCAL LONG-TERM CARE OMBUDSMAN ENTITY AND REPRESENTS THE
STATE LONG-TERM CARE OMBUDSMAN PROGRAM;
(2) HAS BEEN VERIFIED AS HAVING SUCCESSFULLY COMPLETING A CERTIF-
ICATION TRAINING PROGRAM DEVELOPED BY THE STATE OMBUDSMAN; AND
(3) HAS A CURRENT DESIGNATION AS A LONG-TERM CARE OMBUDSMAN BY THE
STATE LONG-TERM CARE OMBUDSMAN.
(F) "RESIDENT REPRESENTATIVE" SHALL MEAN EITHER OF THE FOLLOWING:
(1) AN INDIVIDUAL CHOSEN BY THE RESIDENT TO ACT ON BEHALF OF THE RESI-
DENT IN ORDER TO SUPPORT THE RESIDENT IN DECISION-MAKING; ACCESS
MEDICAL, SOCIAL OR OTHER PERSONAL INFORMATION OF THE RESIDENT; MANAGE
FINANCIAL MATTERS; OR RECEIVE NOTIFICATIONS; OR
(2) A PERSON AUTHORIZED BY STATE OR FEDERAL LAW (INCLUDING BUT NOT
LIMITED TO AGENTS UNDER POWER OF ATTORNEY, REPRESENTATIVE PAYEES, AND
OTHER FIDUCIARIES) TO ACT ON BEHALF OF THE RESIDENT IN ORDER TO SUPPORT
THE RESIDENT IN DECISION-MAKING; ACCESS MEDICAL, SOCIAL OR OTHER
PERSONAL INFORMATION OF THE RESIDENT; MANAGE FINANCIAL MATTERS; OR
RECEIVE NOTIFICATIONS.
(G) "STATE LONG-TERM CARE OMBUDSMAN" OR "STATE OMBUDSMAN" SHALL MEAN
THE INDIVIDUAL WHO HEADS THE OFFICE OF THE STATE LONG-TERM CARE OMBUDS-
MAN AND IS RESPONSIBLE TO PERSONALLY, OR THROUGH REPRESENTATIVES OF THE
OFFICE OF THE STATE LONG-TERM CARE OMBUDSMAN, FULFILL THE FUNCTIONS,
RESPONSIBILITIES AND DUTIES OF THE OFFICE OF THE STATE LONG-TERM CARE
OMBUDSMAN.
(H) "WILLFUL INTERFERENCE" SHALL MEAN ACTIONS OR INACTIONS TAKEN BY AN
INDIVIDUAL IN AN ATTEMPT TO INTENTIONALLY PREVENT, INTERFERE WITH, OR
ATTEMPT TO IMPEDE AN OMBUDSMAN FROM PERFORMING ANY OF THE FUNCTIONS OR
RESPONSIBILITIES OF THE OFFICE OF THE STATE LONG-TERM CARE OMBUDSMAN.
2. Office OF THE STATE LONG-TERM CARE OMBUDSMAN established. (A) There
is hereby established within the STATE office FOR THE AGING an office of
the state [long term] 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] WHICH SHALL BE HEADED BY THE STATE LONG-TERM CARE
OMBUDSMAN, WHO SHALL CARRY OUT, DIRECTLY AND/OR THROUGH LOCAL OMBUDSMAN
ENTITIES, THE DUTIES SET FORTH IN THIS SECTION.
S. 7975 3
(B) THE OFFICE OF THE STATE LONG-TERM CARE OMBUDSMAN IS A DISTINCT
ENTITY, SEPARATELY IDENTIFIABLE, AND LOCATED WITHIN THE STATE OFFICE FOR
THE AGING.
(C) THE STATE OFFICE FOR THE AGING SHALL PROVIDE THE OMBUDSMAN PROGRAM
WITH LEGAL COUNSEL THAT IS ADEQUATE, AVAILABLE, HAS COMPETENCIES RELE-
VANT TO THE LEGAL NEEDS OF THE PROGRAM, AND IS WITHOUT CONFLICT OF
INTEREST AS DETERMINED BY THE STATE OFFICE FOR THE AGING IN CONSULTATION
WITH THE STATE LONG-TERM CARE OMBUDSMAN.
(D) THE STATE OFFICE FOR THE AGING SHALL NOT ESTABLISH PERSONNEL POLI-
CIES OR PRACTICES WHICH PROHIBIT THE OMBUDSMAN FROM PERFORMING THE FUNC-
TIONS AND RESPONSIBILITIES OF THE OMBUDSMAN, AS SET FORTH IN THIS
SECTION.
(E) NOTHING IN THIS SECTION SHALL PROHIBIT THE STATE OFFICE FOR THE
AGING FROM REQUIRING THAT THE STATE OMBUDSMAN, OR OTHER EMPLOYEES OF THE
OFFICE OF THE STATE LONG-TERM CARE OMBUDSMAN, ADHERE TO THE PERSONNEL
POLICIES AND PROCEDURES OF THE STATE OFFICE FOR THE AGING.
3. State [long term] LONG-TERM care ombudsman. (a) The director OF THE
STATE OFFICE FOR THE AGING shall appoint a full-time state [long term]
LONG-TERM care ombudsman to administer and supervise the office of the
state [long term] LONG-TERM care ombudsman.
(b) The state ombudsman shall be selected from among individuals with
expertise and experience in [the fields of long term] LONG-TERM care and
advocacy, LONG-TERM SERVICES AND SUPPORTS OR OTHER DIRECT SERVICES FOR
OLDER PERSONS OR INDIVIDUALS WITH DISABILITIES, CONSUMER-ORIENTED PUBLIC
POLICY ADVOCACY, LEADERSHIP AND PROGRAM, MANAGEMENT SKILLS, NEGOTIATION
AND PROBLEM RESOLUTION SKILLS, and with other qualifications determined
by the director OF THE STATE OFFICE FOR THE AGING to be appropriate for
the position.
(c) IN NO CIRCUMSTANCE SHALL THE STATE OFFICE FOR THE AGING APPOINT AS
STATE OMBUDSMAN AN INDIVIDUAL WHO:
(1) HAS 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) HAS 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; PROVIDED THAT DIVESTMENT WITHIN A REASONABLE
TIME PERIOD MAY BE CONSIDERED AN ADEQUATE REMEDY TO THIS CONFLICT;
(3) HAS BEEN EMPLOYED BY, OR PARTICIPATED IN THE MANAGEMENT OF, A
LONG-TERM CARE FACILITY WITHIN THE PREVIOUS TWELVE MONTHS; AND
(4) RECEIVES OR HAS THE RIGHT TO RECEIVE, DIRECTLY OR INDIRECTLY,
REMUNERATION (IN CASH OR IN KIND) UNDER A COMPENSATION ARRANGEMENT WITH
AN OWNER OR OPERATOR OF A LONG-TERM CARE FACILITY.
(D) The state ombudsman [shall], personally or through authorized
representatives [as provided for in paragraph (d) of this subdivision]
SHALL:
(1) identify, investigate and resolve complaints that are made by, or
on behalf of, [long term] 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] MAY refer to the
appropriate investigatory agency information obtained during the inves-
tigation of a complaint which suggests the possible occurrence of phys-
ical abuse, mistreatment or neglect or Medicaid fraud, in accordance
with [procedures established by the state ombudsman] THE OLDER AMERICANS
ACT OF 1965, AS AMENDED AND THE REGULATIONS PROMULGATED THEREUNDER AS
WELL AS RULES AND REGULATIONS PROMULGATED BY THE STATE OFFICE FOR THE
AGING. [Such procedures shall include, but not be limited to, the
S. 7975 4
reporting to the appropriate investigatory agency any reasonable infor-
mation 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 administra-
tive 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] THE LONG-TERM
CARE OMBUDSMAN PROGRAM AND other public agencies;
(4) analyze, COMMENT ON 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] AND ACTIONS THAT PERTAIN TO THE HEALTH, SAFETY, WELFARE, AND
RIGHTS OF THE RESIDENTS OF LONG-TERM CARE FACILITIES AND SERVICES IN THE
STATE;
(5) [in consultation with the director, establish procedures for the]
ENSURE THAT RESIDENTS HAVE REGULAR AND TIMELY ACCESS TO THE SERVICES
PROVIDED THROUGH THE LONG-TERM CARE OMBUDSMAN PROGRAM AND THAT RESIDENTS
AND COMPLAINANTS RECEIVE TIMELY RESPONSES TO REQUESTS FOR INFORMATION
AND COMPLAINTS;
(6) RECOMMEND CHANGES IN FEDERAL, STATE AND LOCAL LAWS, REGULATIONS,
POLICIES, AND ACTIONS PERTAINING TO THE HEALTH, SAFETY, WELFARE, AND
RIGHTS OF RESIDENTS;
(7) DEVELOP A CERTIFICATION training PROGRAM AND CONTINUING EDUCATION
of [the authorized representatives and of local] ombudsmen [and their
staff] which at a minimum shall specify the minimum hours of training
THE ANNUAL NUMBER OF HOURS OF IN-SERVICE TRAINING, and the content of
the training, including, but not limited to, training relating to feder-
al, state and local laws, regulations and policies with respect to [long
term] LONG-TERM care facilities in the state, INVESTIGATIVE AND RESOL-
UTION TECHNIQUES, AND SUCH OTHER TRAINING-RELATED MATTERS AS THE STATE
OMBUDSMAN DETERMINES TO BE APPROPRIATE; [and
(6)] (8) PROVIDE ADMINISTRATIVE AND TECHNICAL ASSISTANCE TO THE STATE
OMBUDSMAN AND LOCAL OMBUDSMAN ENTITIES;
(9) MAKE DETERMINATIONS AND ESTABLISH POSITIONS OF THE OFFICE OF THE
STATE LONG-TERM CARE OMBUDSMAN, WITHOUT NECESSARILY REPRESENTING THE
DETERMINATIONS OR POSITIONS OF THE STATE OFFICE FOR THE AGING;
(10) RECOMMEND TO THE DIRECTOR OF THE STATE OFFICE FOR THE AGING POLI-
CIES AND PROCEDURES FOR THE STATE LONG-TERM CARE OMBUDSMAN PROGRAM;
(11) COORDINATE WITH AND PROMOTE THE DEVELOPMENT OF CITIZEN ORGANIZA-
TIONS CONSISTENT WITH THE INTERESTS OF RESIDENTS;
(12) PROMOTE, PROVIDE TECHNICAL SUPPORT FOR THE DEVELOPMENT OF, AND
PROVIDE ONGOING SUPPORT AS REQUESTED BY RESIDENT AND FAMILY COUNCILS TO
PROTECT THE WELL-BEING AND RIGHTS OF RESIDENTS;
S. 7975 5
(13) PROVIDE LEADERSHIP TO STATEWIDE SYSTEMS ADVOCACY EFFORTS OF THE
OFFICE OF THE STATE LONG-TERM CARE OMBUDSMAN ON BEHALF OF LONG-TERM CARE
FACILITY RESIDENTS, INCLUDING COORDINATION OF SYSTEMS ADVOCACY EFFORTS
CARRIED OUT BY REPRESENTATIVES OF THE OFFICE OF THE STATE LONG-TERM CARE
OMBUDSMAN;
(14) IN ACCORDANCE WITH APPLICABLE STATE CONTRACTING PROCEDURES, COOR-
DINATE WITH THE STATE OFFICE FOR THE AGING IN THE REVIEW AND APPROVAL OF
PLANS OR CONTRACTS GOVERNING LOCAL OMBUDSMAN ENTITY OPERATIONS;
(15) carry out such other activities as the director OF THE STATE
OFFICE FOR THE AGING determines to be appropriate pursuant to the feder-
al older Americans act of 1965 and other applicable federal and state
laws and related regulations as may, from time to time, be amended; AND
(16) IN ACCORDANCE WITH THE REGULATIONS PROMULGATED UNDER THIS SECTION
PROVIDE THE DIRECTOR OF THE STATE OFFICE FOR THE AGING WITH NOTICE PRIOR
TO PERFORMING THE ACTIVITIES IDENTIFIED IN PARAGRAPHS FOUR, SIX AND NINE
OF THIS SUBDIVISION. SUCH NOTICE SHALL NOT GIVE THE DIRECTOR OF THE
STATE OFFICE FOR THE AGING OR ANY OTHER STATE OFFICIAL THE RIGHT TO
PRE-APPROVE THE POSITION OR COMMUNICATIONS OF THE STATE OMBUDSMAN.
[(d)(1)] (E) The state ombudsman, with the approval of the director OF
THE STATE OFFICE FOR THE AGING, may appoint one or more [authorized
representatives] ASSISTANT STATE LONG-TERM CARE OMBUDSMEN to assist the
state ombudsman in the performance of his or her duties under this
section. SUCH ASSISTANT STATE OMBUDSMEN MUST BE VERIFIED AS HAVING
COMPLETED A CERTIFICATION TRAINING PROGRAM DEVELOPED BY THE STATE
OMBUDSMAN WITHIN SIX (6) MONTHS OF THEIR APPOINTMENT AS ASSISTANT STATE
OMBUDSMEN.
[(2)] (F)(1) The state ombudsman [shall] MAY appoint [only those] AS
OMBUDSMEN individuals who have been [certified as having completed the
training program developed pursuant to paragraph (c) of this subdivi-
sion] VERIFIED AS COMPLETING THE CERTIFICATION TRAINING PROGRAM DEVEL-
OPED BY THE STATE OMBUDSMAN. IN ADDITION, THE STATE LONG-TERM CARE
OMBUDSMAN MAY REFUSE, SUSPEND, OR REMOVE SUCH APPOINTMENTS OF OMBUDSMEN.
(2) THE STATE OMBUDSMAN SHALL DEVELOP A GRIEVANCE PROCESS TO OFFER AN
OPPORTUNITY FOR RECONSIDERATION OF ANY DECISION TO REFUSE, SUSPEND, OR
REMOVE APPOINTMENT OF ANY OMBUDSMAN. NOTWITHSTANDING THE GRIEVANCE
PROCESS, THE STATE OMBUDSMAN SHALL MAKE THE FINAL DETERMINATION TO
DESIGNATE OR TO REFUSE, SUSPEND, OR REMOVE APPOINTMENT OF AN OMBUDSMAN.
[(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 subdi-
vision and shall include actions that the director may require an indi-
vidual ombudsman or immediate family member to take to remove such
conflicts of interest.]
(g) NO OMBUDSMAN SHALL BE APPOINTED IF THEY OR AN IMMEDIATE FAMILY
MEMBER HAS A CONFLICT OF INTEREST THAT CANNOT BE REMEDIED. THE STATE
OMBUDSMAN SHALL RECOMMEND TO THE DIRECTOR OF THE STATE OFFICE FOR THE
S. 7975 6
AGING WRITTEN PROCEDURES TO IDENTIFY, REMOVE, AND/OR REMEDY INDIVIDUAL
CONFLICTS OF INTEREST.
(H) Within the amounts appropriated therefor, the state ombudsman
program shall include services specifically designed to serve persons
enrolled in managed [long term] LONG-TERM care plans or approved managed
[long term] 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.
4. Local [long term] LONG-TERM care ombudsman program. (a) The state
ombudsman, IN COORDINATION with [the approval of the director] THE STATE
OFFICE FOR THE AGING, AND IN ACCORDANCE WITH APPLICABLE STATE CONTRACT-
ING PROCEDURES, may designate an entity to operate a local [long term]
LONG-TERM care ombudsman program for one or more counties, AND SHALL
MONITOR THE PERFORMANCE OF SUCH ENTITY. IF THE STATE OFFICE FOR THE
AGING IS AWARE OR BECOMES AWARE OF ANY COMPELLING REASON WHY THE STATE
OMBUDSMAN SHOULD NOT DESIGNATE AN ENTITY TO OPERATE A LONG-TERM CARE
OMBUDSMAN PROGRAM, THE STATE OMBUDSMAN WILL COMPLY WITH THE STATE OFFICE
FOR THE AGING'S DETERMINATION.
(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] FREE FROM ANY CONFLICT OF INTEREST
THAT CANNOT BE REMEDIED. THE STATE OMBUDSMAN SHALL RECOMMEND TO THE
DIRECTOR OF THE STATE OFFICE FOR THE AGING WRITTEN PROCEDURES TO IDENTI-
FY, REMOVE, AND/OR REMEDY ORGANIZATIONAL CONFLICTS OF INTEREST.
(c)(1) Each local [long term] 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] LONG-TERM care ombuds-
man program.
(2) No local program staff, including the supervisor and any volun-
teers, shall perform or carry out the activities on behalf of the [local
long term] STATE LONG-TERM care ombudsman program unless such staff has
[received the training pursuant to paragraph (c) of subdivision three of
this section] BEEN VERIFIED AS COMPLETING THE TRAINING PROGRAM DEVELOPED
BY THE STATE OMBUDSMAN 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]
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], IN COORDINATION WITH
THE STATE OFFICE FOR THE AGING, MAY REFUSE, SUSPEND, OR 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 [inten-
tion] THE STATE OMBUDSMAN'S INTENTIONS 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
S. 7975 7
set forth in regulations]. IF THE STATE OFFICE FOR THE AGING IS AWARE OR
BECOMES AWARE OF ANY COMPELLING REASON WHY THE STATE OMBUDSMAN SHOULD
NOT DESIGNATE AN ENTITY TO OPERATE A LONG-TERM CARE OMBUDSMAN PROGRAM OR
WHY THE STATE OMBUDSMAN SHOULD REFUSE, SUSPEND OR REMOVE DESIGNATION OF
A LOCAL OMBUDSMAN ENTITY, THE STATE OMBUDSMAN WILL COMPLY WITH THE STATE
OFFICE FOR THE AGING'S DETERMINATION.
(E) THE STATE OMBUDSMAN SHALL DEVELOP A GRIEVANCE PROCESS TO OFFER AN
OPPORTUNITY FOR RECONSIDERATION OF ANY DECISION TO REFUSE, SUSPEND, OR
REMOVE DESIGNATION OF A LOCAL OMBUDSMAN ENTITY. NOTWITHSTANDING THE
GRIEVANCE PROCESS, THE STATE OMBUDSMAN IN COORDINATION WITH THE STATE
OFFICE FOR THE AGING SHALL MAKE THE FINAL DETERMINATION TO DESIGNATE OR
TO REFUSE, SUSPEND, OR REMOVE DESIGNATION OF A LOCAL OMBUDSMAN ENTITY.
IF THE STATE OFFICE FOR THE AGING IS AWARE OR BECOMES AWARE OF ANY
COMPELLING REASON WHY THE STATE OMBUDSMAN SHOULD NOT DESIGNATE AN ENTITY
TO OPERATE A LONG-TERM CARE OMBUDSMAN PROGRAM OR WHY THE STATE OMBUDSMAN
SHOULD REFUSE, SUSPEND OR REMOVE DESIGNATION OF A LOCAL OMBUDSMAN ENTI-
TY, THE STATE OMBUDSMAN WILL COMPLY WITH THE STATE OFFICE FOR THE
AGING'S DETERMINATION.
5. Review of complaint. [(a)] Upon receipt of a complaint, the ombuds-
man 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 ombuds-
man, whoever is appropriate, shall] MAY immediately refer to the appro-
priate investigatory agency information obtained during the investi-
gation 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 inves-
tigatory agency if there is reasonable cause to believe the occurrence
of physical abuse, mistreatment or neglect as defined in section twen-
ty-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] AND SUBJECT TO ANY LIMI-
TATIONS IDENTIFIED IN THE OLDER AMERICANS ACT OF 1965, AS AMENDED AND
THE REGULATIONS PROMULGATED THEREUNDER AS WELL AS RULES AND REGULATIONS
PROMULGATED BY THE STATE OFFICE FOR THE AGING.
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 twen-
ty-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
S. 7975 8
(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.
(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 twen-
ty-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 facili-
ties; and
(2) Certified as a records access ombudsman by the state ombudsman.
(c)] AN OMBUDSMAN SHALL HAVE ACCESS TO:
(1) MEDICAL, SOCIAL AND OTHER RECORDS RELATING TO A RESIDENT, IF:
(A) THE RESIDENT OR RESIDENT REPRESENTATIVE COMMUNICATES INFORMED
CONSENT TO THE ACCESS AND THE CONSENT IS GIVEN IN WRITING OR THROUGH THE
USE OF AUXILIARY AIDS AND SERVICES;
(B) THE RESIDENT OR RESIDENT REPRESENTATIVE COMMUNICATES INFORMED
CONSENT ORALLY, VISUALLY, OR THROUGH THE USE OF AUXILIARY AIDS AND
SERVICES, AND SUCH CONSENT IS DOCUMENTED CONTEMPORANEOUSLY BY AN OMBUDS-
MAN IN ACCORDANCE WITH PROCEDURES ESTABLISHED BY THE STATE OMBUDSMAN;
AND
(C) ACCESS IS NECESSARY IN ORDER TO INVESTIGATE A COMPLAINT, THE RESI-
DENT REPRESENTATIVE REFUSES TO CONSENT TO THE ACCESS, AN OMBUDSMAN HAS
REASONABLE CAUSE TO BELIEVE THAT THE RESIDENT REPRESENTATIVE IS NOT
ACTING IN THE BEST INTERESTS OF THE RESIDENT, AND THE OMBUDSMAN OBTAINS
THE APPROVAL OF THE STATE OMBUDSMAN;
(2) ADMINISTRATIVE RECORDS, POLICIES, AND DOCUMENTS, TO WHICH THE
RESIDENTS HAVE, OR THE GENERAL PUBLIC HAS ACCESS, OF LONG-TERM CARE
FACILITIES;
(3) COPIES OF ALL LICENSING AND CERTIFICATION RECORDS MAINTAINED BY
THE STATE WITH RESPECT TO LONG-TERM CARE FACILITIES; AND
(4) A LIST OF RESIDENT NAMES AND ROOM NUMBERS.
(B) No ombudsman shall disclose [the identity of the resident or
complainant that made a complaint to the ombudsman] INFORMATION ABOUT A
COMPLAINT, INCLUDING IDENTIFYING INFORMATION OF ANY RESIDENT OR
COMPLAINANT unless:
(1) the complainant or resident or his or her [legal] RESIDENT repre-
sentative gives [written] INFORMED 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].
COMMUNICATION OF INFORMED CONSENT MAY BE MADE IN WRITING, INCLUDING
S. 7975 9
THROUGH THE USE OF AUXILIARY AIDS AND SERVICES. ALTERNATIVELY, COMMUNI-
CATION OF CONSENT MAY BE MADE ORALLY OR VISUALLY, INCLUDING THROUGH THE
USE OF AUXILIARY AIDS AND SERVICES, AND SUCH CONSENT MUST BE DOCUMENTED
CONTEMPORANEOUSLY BY AN OMBUDSMAN IN ACCORDANCE WITH THE PROCEDURES OF
THE OFFICE OF THE STATE LONG-TERM CARE OMBUDSMAN;
(2) THE DISCLOSURE IS REQUIRED pursuant to a court order; OR
(3) THE RESIDENT IS UNABLE TO COMMUNICATE INFORMED CONSENT AND DOES
NOT HAVE A RESIDENT REPRESENTATIVE, OR THE STATE LONG-TERM CARE OMBUDS-
MAN DETERMINES THAT THE RESIDENT REPRESENTATIVE IS NOT ACTING IN THE
BEST INTEREST OF THE RESIDENT. IN SUCH CASES, DISCLOSURES MAY BE MADE IN
ACCORDANCE WITH CRITERIA TO BE DEVELOPED BY THE OMBUDSMAN.
(c) all files, records, and other information of the long-term care
ombudsman program, including information maintained by local ombudsman
entities pertaining to the cases and activities of the program are the
property of the office of the state long-term care ombudsman. Such
files, records, and information may be disclosed only at the discretion
of the state ombudsman or designee of the state ombudsman for such
purpose and in accordance with the criteria developed by the state
ombudsman.
(d) No ombudsman shall disclose to any person outside of the ombudsman
program any information obtained from a [patient's or] resident's
[records] RECORD 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 agen-
cies. 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.
(F) ANY INDIVIDUAL, WHEN ACTING IN HIS OR HER OFFICIAL CAPACITY AS AN
OMBUDSMAN, SHALL BE EXEMPT FROM THE MANDATORY REPORTING OF ABUSE,
NEGLECT, EXPLOITATION, OR MALTREATMENT, NOTWITHSTANDING ANY LAW TO THE
CONTRARY. HOWEVER, AN OMBUDSMAN MAY REPORT ABUSE, NEGLECT, EXPLOITATION,
OR MALTREATMENT IN ACCORDANCE WITH THE OLDER AMERICANS ACT OF 1965, AS
AMENDED AND THE REGULATIONS PROMULGATED THEREUNDER AS WELL AS RULES AND
REGULATIONS PROMULGATED BY THE STATE OFFICE FOR THE AGING.
(G) NOTHING IN THIS SECTION SHALL PROHIBIT THE DISCLOSURE BY AN
OMBUDSMAN OR LOCAL OMBUDSMAN ENTITY OF AGGREGATE DATA FOR MONITORING OR
S. 7975 10
REPORTING PURPOSES TO THE STATE OFFICE FOR THE AGING OR AN AGENCY IN
WHICH A LOCAL OMBUDSMAN ENTITY IS ORGANIZATIONALLY LOCATED.
7. ACCESS TO LONG-TERM CARE FACILITIES. AN OMBUDSMAN SHALL HAVE
AUTHORITY TO ENTER ALL LONG-TERM CARE FACILITIES AT ANY TIME DURING A
FACILITY'S REGULAR BUSINESS HOURS OR REGULAR VISITING HOURS, AND AT ANY
OTHER TIME WHEN ACCESS MAY BE REQUIRED BY THE CIRCUMSTANCES TO BE INVES-
TIGATED AND SHALL HAVE ACCESS TO ALL RESIDENTS AND/OR THE RESIDENT
REPRESENTATIVE TO PERFORM ALL FUNCTIONS AND DUTIES ENUMERATED HEREIN.
8. [Failure to cooperate. Any long term] NONINTERFERENCE. NO LONG-
TERM care facility [which refuses] SHALL:
(A) REFUSE to permit [the state] AN ombudsman[, his or her authorized
representative, or any local ombudsman] entry into such facility or
[refuses], INTERFERE WITH, REFUSE to cooperate with [the state] AN
ombudsman[, his or her authorized representative, or any local ombuds-
man] in the carrying out of their mandated duties and responsibilities
set forth in this section and any regulations promulgated pursuant ther-
eto[, or refuses];
(B) RETALIATE AGAINST AN OMBUDSMAN FOR CARRYING OUT HIS OR HER
MANDATED DUTIES AND RESPONSIBILITIES SET FORTH IN THIS SECTION AND ANY
REGULATIONS PROMULGATED PURSUANT THERETO;
(C) REFUSE to permit [patients] RESIDENTS or staff to communicate
freely and privately with [the state] AN ombudsman[, his or her author-
ized representative, or any local ombudsman shall be subject to the
appropriate sanction or penalties of the state agency that licenses the
facility]; OR
(D) RETALIATE OR DISCRIMINATE AGAINST ANY RESIDENT, RESIDENT REPRESEN-
TATIVE, COMPLAINANT, OR STAFF MEMBER FOR FILING A COMPLAINT WITH,
PROVIDING INFORMATION TO, OR OTHERWISE COOPERATING WITH ANY OMBUDSMAN.
9. FAILURE TO COOPERATE. ANY RESIDENT WHO HAS REASON TO BELIEVE THAT
HE OR SHE MAY HAVE BEEN DISCRIMINATED OR RETALIATED AGAINST IN VIOLATION
OF SUBDIVISION EIGHT OF THIS SECTION MAY FILE A COMPLAINT WITH THE
COMMISSIONER OF HEALTH PURSUANT TO SUBDIVISION TEN OF SECTION TWENTY-
EIGHT HUNDRED ONE-D OF THE PUBLIC HEALTH LAW. ANY SUCH FACILITY THAT
VIOLATES THE PROVISIONS OF SUBDIVISION EIGHT OF THIS SECTION SHALL BE
SUBJECT TO THE APPROPRIATE SANCTIONS PURSUANT TO SECTION TWENTY-EIGHT
HUNDRED THREE-C OF THE PUBLIC HEALTH LAW, AND ACCOMPANYING REGULATIONS,
IF SUCH FACILITY IS A RESIDENTIAL HEALTHCARE FACILITY OR SECTION FOUR
HUNDRED SIXTY-D OF THE SOCIAL SERVICES LAW, AND ACCOMPANYING REGU-
LATIONS, IF SUCH FACILITY IS AN ADULT CARE FACILITY.
10. 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 accord-
ance with the provisions of article two of such law.
[10.] 11. GRIEVANCE PROCESS. IN ADDITION TO THE PROVISIONS LISTED IN
THIS SECTION, THE STATE OMBUDSMAN SHALL RECOMMEND POLICIES AND PROCE-
DURES FOR THE RECEIPT AND REVIEW OF GRIEVANCES REGARDING DETERMINATIONS
OR ACTIONS OF THE STATE OMBUDSMAN OR OMBUDSMEN TO THE DIRECTOR OF THE
STATE OFFICE FOR THE AGING.
12. Regulations. The director, IN CONSULTATION WITH THE STATE OMBUDS-
MAN, is authorized to promulgate regulations to implement the provisions
of this section.
[11.] 13. 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 FEDERAL administration on aging, speaker
S. 7975 11
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] LONG-TERM care ombudsman during the prior calendar year;
(b) containing and analyzing data relating to complaints and condi-
tions in [long term] 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 AND RESOLVING RESIDENT COMPLAINTS AND IDENTIFIED PROBLEMS OR
BARRIERS;
(e) CONTAINING AN ANALYSIS OF THE SUCCESS OF THE OMBUDSMAN PROGRAM,
INCLUDING SUCCESS IN PROVIDING SERVICES TO RESIDENTS;
(F) DESCRIBING BARRIERS THAT PREVENT THE OPTIMAL OPERATION OF THE
OMBUDSMAN PROGRAM;
(G) DESCRIBING ANY ORGANIZATIONAL CONFLICTS OF INTEREST IN THE OMBUDS-
MAN PROGRAM THAT HAVE BEEN IDENTIFIED AND THE STEPS TAKEN TO REMOVE OR
REMEDY SUCH CONFLICTS; AND
(H) any other matters as the state ombudsman, in consultation with the
director OF THE STATE OFFICE FOR THE AGING, determines to be appropri-
ate.
§ 2. Paragraph (b) of subdivision 1 of section 218 of the elder law,
as amended by section 2 of chapter 462 of the laws of 2015, is amended
to read as follows:
[(b) "Long term] (D) "LONG-TERM care facilities" shall mean residen-
tial 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 them-
selves 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.
§ 3. This act shall take effect immediately; provided, however that:
(a) the amendments to paragraph (b) of subdivision 1 of section 218 of
the elder law made by section two of this act shall take effect on the
same date and in the same manner as section 2 of chapter 462 of the laws
of 2015, takes effect; and
(b) the amendments to paragraph (g) of subdivision 3 of section 218 of
the elder law made by section one of this act shall not affect the
repeal of such paragraph as provided in section 5 of chapter 462 of the
laws of 2015, as amended, and shall be deemed repealed therewith.