218 - Long term care ombudsman.

§  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  and adult care facilities as  defined in subdivision twenty-one of section two of the social  services  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, 2015    * (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  and adult care facilities as  defined in subdivision twenty-one of section two of the social  services  law.    * NB Effective December 31, 2015    (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  departmentof  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, 2015    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 orprovide 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.