N.Y. ELD Law § 218

§ 218. Long term care ombudsman. 1. Definitions. For the purposes of\nthis section, the following terms shall have the following meanings:\n (a) "Local ombudsman" shall mean an individual who is employed by the\nlocal entity designated pursuant to subdivision four of this section and\nwho has been approved by the state ombudsman to perform or carry out the\nactivities of the local long term care ombudsman program. The local\nombudsman may be either a paid employee or volunteer of the local\nentity.\n * (b) "Long term care facilities" shall mean residential health care\nfacilities as defined in subdivision three of section twenty-eight\nhundred one of the public health law, adult care facilities as defined\nin subdivision twenty-one of section two of the social services law, and\nassisted living residences, as defined in article forty-six-B of the\npublic health law, or any facilities which hold themselves out or\nadvertise themselves as providing assisted living services and which are\nrequired to be licensed or certified under the social services law or\nthe public health law. Within the amounts appropriated therefor, "long\nterm care facilities" shall also mean managed long term care plans and\napproved managed long term care or operating demonstrations as defined\nin section forty-four hundred three-f of the public health law and the\nterm "resident", "residents", "patient" and "patients" shall also\ninclude enrollees of such plans.\n * NB Effective until December 31, 2017\n * (b) "Long term care facilities" shall mean residential health care\nfacilities as defined in subdivision three of section twenty-eight\nhundred one of the public health law, adult care facilities as defined\nin subdivision twenty-one of section two of the social services law, and\nassisted living residences, as defined in article forty-six-B of the\npublic health law, or any facilities which hold themselves out or\nadvertise themselves as providing assisted living services and which are\nrequired to be licensed or certified under the social services law or\nthe public health law.\n * NB Effective December 31, 2017\n (c) "State ombudsman" shall mean the state long term care ombudsman\nappointed by the director pursuant to subdivision three of this section.\n 2. Office established. There is hereby established within the office\nan office of the state long term care ombudsman for the purpose of\nreceiving and resolving complaints affecting applicants, patients and\nresidents in long term care facilities and, where appropriate, referring\ncomplaints to appropriate investigatory agencies and acting in concert\nwith such agencies.\n 3. State long term care ombudsman. (a) The director shall appoint a\nfull-time state long term care ombudsman to administer and supervise the\noffice of the state long term care ombudsman.\n (b) The state ombudsman shall be selected from among individuals with\nexpertise and experience in the fields of long term care and advocacy,\nand with other qualifications determined by the director to be\nappropriate for the position.\n (c) The state ombudsman shall, personally or through authorized\nrepresentatives as provided for in paragraph (d) of this subdivision:\n (1) identify, investigate and resolve complaints that are made by, or\non behalf of, long term care residents in this state and that relate to\nactions, inactions or decisions that may adversely affect the health,\nsafety and welfare or rights of such residents; provided, however, that\nthe state ombudsman shall immediately refer to the appropriate\ninvestigatory agency information obtained during the investigation of a\ncomplaint which suggests the possible occurrence of physical abuse,\nmistreatment or neglect or Medicaid fraud, in accordance with procedures\nestablished by the state ombudsman. Such procedures shall include, but\nnot be limited to, the reporting to the appropriate investigatory agency\nany reasonable information which suggests the possible occurrence of\nphysical abuse, mistreatment or neglect as defined in section\ntwenty-eight hundred three-d of the public health law. Nothing in this\nsection shall be construed as authorizing the state ombudsman to impose\na resolution unacceptable to either party involved in a complaint or to\nassume powers delegated to the commissioner of health or the department\nof health pursuant to article twenty-eight of the public health law or\nto the commissioner of the office of children and family services or the\noffice of children and family services pursuant to the social services\nlaw; nor does it authorize the state ombudsman to investigate final\nadministrative determinations made pursuant to law by such commissioners\nif such decisions become the subject of complaints to the state\nombudsman;\n (2) provide services to assist residents in protecting their health,\nsafety, welfare and rights, including but not limited to representing\nthe interests of residents before governmental agencies and seeking\nappropriate administrative, legal and other remedies to protect their\nwelfare, safety, health and rights;\n * (3) inform the residents about means of obtaining services provided\nby public health, social services and veterans' affairs or other public\nagencies;\n * NB Amended Ch. 95/2004 §3, language juxtaposed per Ch. 642/2004 §11\n (4) analyze and monitor the development and implementation of federal,\nstate and local laws, regulations or policies with respect to the\nadequacy of long term care facilities and services in the state;\n (5) in consultation with the director, establish procedures for the\ntraining of the authorized representatives and of local ombudsmen and\ntheir staff which at a minimum shall specify the minimum hours of\ntraining and the content of the training, including, but not limited to,\ntraining relating to federal, state and local laws, regulations and\npolicies with respect to long term care facilities in the state; and\n (6) carry out such other activities as the director determines to be\nappropriate pursuant to the federal older Americans act of 1965 and\nother applicable federal and state laws and related regulations as may,\nfrom time to time, be amended.\n (d)(1) The state ombudsman, with the approval of the director, may\nappoint one or more authorized representatives to assist the state\nombudsman in the performance of his or her duties under this section.\n (2) The state ombudsman shall appoint only those individuals who have\nbeen certified as having completed the training program developed\npursuant to paragraph (c) of this subdivision.\n (e) No state ombudsman, authorized representative, local ombudsman or\nimmediate family member of such person shall:\n (1) have a direct involvement in the licensing or certification of a\nlong term care facility or of a provider of a long term care service;\n (2) have an ownership or investment interest (represented by equity,\ndebt, or other financial relationship) in a long term care facility or a\nlong term care service;\n (3) be employed by, or participate in the management of, a long term\ncare facility; and\n (4) receive remuneration (in cash or in kind) under a compensation\narrangement with an owner or operator of a long term care facility.\n (f) The state ombudsman shall establish written procedures to identify\nand remove conflicts of interest set out in paragraph (e) of this\nsubdivision and shall include actions that the director may require an\nindividual ombudsman or immediate family member to take to remove such\nconflicts of interest.\n * (g) Within the amounts appropriated therefor, the state ombudsman\nprogram shall include services specifically designed to serve persons\nenrolled in managed long term care plans or approved managed long term\ncare or operating demonstrations authorized under section forty-four\nhundred three-f of the public health law, and shall also review and\nrespond to complaints relating to marketing practices by such plans and\ndemonstrations.\n * NB Repealed December 31, 2017\n 4. Local long term care ombudsman program. (a) The state ombudsman,\nwith the approval of the director, may designate an entity to operate a\nlocal long term care ombudsman program for one or more counties.\n (b) The designated entity shall be an area agency on aging, a public\nagency or a private not-for-profit corporation which is neither a\nprovider or regulator of long term care facilities, or an affiliate or\nunit of such agency or corporation.\n (c)(1) Each local long term care ombudsman program shall be directed\nby a qualified individual who is employed and paid by the local entity\nand who shall have the duties and responsibilities as provided in\nregulations, consistent with the provisions of this section and of Title\nVII of the federal older Americans act of 1965, as amended. In addition,\nupon designation, the entity is responsible for providing for adequate\nand qualified staff, which may include trained volunteers to perform the\nfunctions of the local long term care ombudsman program.\n (2) No local program staff, including the supervisor and any\nvolunteers, shall perform or carry out the activities on behalf of the\nlocal long term care ombudsman program unless such staff has received\nthe training pursuant to paragraph (c) of subdivision three of this\nsection and has been approved by the state ombudsman as qualified to\ncarry out the activities on behalf of the local program.\n (d) The director, in consultation with the state ombudsman, shall\nestablish in regulations standards for the operation of a local long\nterm care ombudsman program.\n (e) When the state ombudsman determines that a local long term care\nombudsman program does not meet the standards set forth in this section\nand in any related regulations, the state ombudsman shall with the\napproval of the director withdraw the designation of the local program.\nPrior to taking such action, the state ombudsman shall send to the\naffected local program a notice of intention to withdraw the\ndesignation, which notice shall also inform the local program of its\nright to an administrative hearing prior to the director's final\ndetermination. Such administrative hearing shall be conducted in\naccordance with procedures set forth in regulations.\n 5. Review of complaint. (a) Upon receipt of a complaint, the ombudsman\nshall determine immediately whether there are reasonable grounds for an\ninvestigation. Such investigation shall be conducted in a manner\nprescribed in regulations. The state ombudsman, or the local ombudsman,\nwhoever is appropriate, shall immediately refer to the appropriate\ninvestigatory agency information obtained during the investigation of a\ncomplaint which suggests the possible occurrence of physical abuse,\nmistreatment or neglect or Medicaid fraud, in accordance with procedures\nestablished by the state ombudsman. Such procedures shall include, but\nnot be limited to, the reporting to the appropriate investigatory agency\nif there is reasonable cause to believe the occurrence of physical\nabuse, mistreatment or neglect as defined in section twenty-eight\nhundred three-d of the public health law.\n (b) If the referral is made by the local ombudsman, a copy of the\nreferral, together with copies of any relevant information or records,\nshall be sent forthwith to the state ombudsman.\n 6. Retaliatory discrimination prohibited. (a) No person shall\ndiscriminate against any resident of a long term care facility because\nsuch resident or any person acting on behalf of the resident has brought\nor caused to be brought any complaint to the state or local long term\ncare ombudsman for investigation, or against any resident or employee of\na long term care facility or any other person because such resident or\nemployee or any other person has given or provided or is to give or\nprovide any statements, testimony, other evidence or cooperation for the\npurposes of any such complaint.\n (b) Any resident who has reason to believe that he or she may have\nbeen discriminated against in violation of this subdivision may, within\nthirty days after such alleged violation occurs, file a complaint with\nthe commissioner of health pursuant to subdivision ten of section\ntwenty-eight hundred one-d of the public health law.\n 7. Record access. (a) (1) The state ombudsman, with the approval of\nthe director, may approve and certify one or more previously designated\nlocal ombudsmen or state representatives as a records access ombudsman\nupon their having completed the training program for records access\nombudsman set out in paragraph (b) of this subdivision; and\n * (2) A records access ombudsman shall be an employee of the office of\nthe state ombudsman or of the local entity designated to carry out a\nlocal ombudsman program, except that the state ombudsman may certify as\na records access ombudsman a volunteer under the direct supervision of\nthe state ombudsman or of the supervisor of the local program, whichever\nis appropriate, if such volunteer is licensed in a medical, legal, or\nsocial work profession, or whose experience and training demonstrate\nequivalent competency in medical and personal records review.\n * NB Amended Ch. 230/2004 §15, language juxtaposed per Ch. 642/2004\n §11\n (b) Except as otherwise provided by law, no person, including the\nstate ombudsman, his or her authorized representatives, or any local\nombudsman, shall be authorized to have access to or review the medical\nor personal records of a patient or resident pursuant to section\ntwenty-eight hundred three-c of the public health law and section four\nhundred sixty-one-a of the social services law or pursuant to written\nconsent to such access by the patient or resident, or his or her legal\nrepresentative unless such person has been:\n (1) Certified as having satisfactorily completed a training program\nprescribed by the office and designed, among other purposes, to (A)\nimpress upon the participant the value, purpose, and confidentiality of\nmedical and personal records, (B) familiarize the participant with the\noperational aspects of long term care facilities, and (C) deal with the\nmedical and psycho-social needs of patients or residents in such\nfacilities; and\n (2) Certified as a records access ombudsman by the state ombudsman.\n (c) No ombudsman shall disclose the identity of the resident or\ncomplainant that made a complaint to the ombudsman unless:\n (1) the complainant or resident or his or her legal representative\ngives written consent to the ombudsman, except that written consent\nshall also include the resident or complainant giving oral consent that\nis documented contemporaneously in a writing made by the ombudsman with\nthe agreement of the complainant or resident and in accordance with\nrequirements established by the director; or\n (2) pursuant to a court order.\n (d) No ombudsman shall disclose to any person outside of the ombudsman\nprogram any information obtained from a patient's or resident's records\nwithout the approval of the state ombudsman or his or her designee, in\naccordance with procedures for disclosure established by the director in\nconsultation with the state ombudsman. Such approval is not required for\nsuspected instances of physical abuse, mistreatment or neglect or\nMedicaid fraud and, subject to withholding identifying information of a\nnon-consenting complainant or resident under paragraph (c) of this\nsubdivision, a local ombudsman or state representative shall provide\nneeded file information to the appropriate state and federal regulatory\nauthorities and cooperate with them to help further their investigation.\n (e) No records access or other ombudsman who directly or indirectly\nobtains access to a patient's or resident's medical or personal records\npursuant to section twenty-eight hundred three-c of the public health\nlaw shall disclose to such patient or resident or to any other person\noutside of the ombudsman program the content of any such records to\nwhich such patient, resident or other person had not previously had the\nright of access, provided that this restriction shall not prevent such\nombudsman from advising such patient or resident of the status or\nprogress of an investigation or complaint process initiated at the\nrequest of such patient or resident or from referring such complaint,\ntogether with the relevant records, to appropriate investigatory\nagencies. Any person who intentionally violates the provisions of this\nsubdivision shall be guilty of a misdemeanor. Nothing contained in this\nsection shall be construed to limit or abridge any right of access to\nrecords, including financial records, otherwise available to ombudsmen,\npatients or residents, or any other person.\n 8. Failure to cooperate. Any long term care facility which refuses to\npermit the state ombudsman, his or her authorized representative, or any\nlocal ombudsman entry into such facility or refuses to cooperate with\nthe state ombudsman, his or her authorized representative, or any local\nombudsman in the carrying out of their mandated duties and\nresponsibilities set forth in this section and any regulations\npromulgated pursuant thereto, or refuses to permit patients or staff to\ncommunicate freely and privately with the state ombudsman, his or her\nauthorized representative, or any local ombudsman shall be subject to\nthe appropriate sanction or penalties of the state agency that licenses\nthe facility.\n 9. Civil immunity. Notwithstanding any other provision of law,\nombudsmen designated under this section or who are also records access\nombudsmen functioning in accordance with this section shall be included\nwithin the definition of employee as set forth in section seventeen of\nthe public officers law and shall be defended and indemnified in\naccordance with the provisions of article two of such law.\n 10. Regulations. The director is authorized to promulgate regulations\nto implement the provisions of this section.\n 11. Annual report. On or before March thirty-first, two thousand five,\nand annually thereafter, the state ombudsman shall submit to the\ngovernor, commissioner of the administration on aging, speaker of the\nassembly, temporary president of the senate, director of the state\noffice for the aging, commissioner of the department of health, and the\ncommissioner of children and family services a report and make such\nreport available to the public:\n (a) describing the activities carried out by the office of the state\nlong term care ombudsman during the prior calendar year;\n (b) containing and analyzing data relating to complaints and\nconditions in long term care facilities and to residents for the purpose\nof identifying and resolving significant problems;\n (c) evaluating the problems experienced by, and the complaints made by\nor on behalf of, residents;\n (d) containing recommendations for:\n (1) appropriate state legislation, rules and regulations and other\naction to improve the quality of the care and life of the residents; and\n (2) protecting the health, safety and welfare and rights of the\nresidents;\n (e) any other matters as the state ombudsman, in consultation with the\ndirector, determines to be appropriate.\n