STATE OF NEW YORK ________________________________________________________________________ 11050 IN ASSEMBLY June 1, 2018 ___________ Introduced by COMMITTEE ON RULES -- (at request of M. of A. Lupardo) -- read once and referred to the Committee on Aging AN ACT to amend the elder law, in relation to the long-term care ombuds- man program The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. Section 218 of the elder law, paragraph (b) of subdivision 2 1 as amended by section 1 of chapter 462 of the laws of 2015, subpara- 3 graph 3 of paragraph (c) of subdivision 3 as amended by chapter 95 of 4 the laws of 2004, paragraph (g) of subdivision 3 as added by chapter 462 5 of the laws of 2015, and subparagraph 2 of paragraph (a) of subdivision 6 7 as amended by chapter 230 of the laws of 2004, is amended to read as 7 follows: 8 § 218. [~~Long term~~] Long-term care ombudsman. 1. Definitions. For the 9 purposes of this section, the following terms shall have the following 10 meanings: 11 (a) [~~"Local ombudsman" shall mean an individual who is employed by the~~ 12 ~~local entity designated pursuant to subdivision four of this section and~~ 13 ~~who has been approved by the state ombudsman to perform or carry out the~~ 14 ~~activities of the local long term care ombudsman program. The local~~ 15 ~~ombudsman may be either a paid employee or volunteer of the local enti-~~ 16 ty] "Administrative action" shall mean any action or decision by an 17 owner, employee, or agent of a long-term care facility, or by a govern- 18 ment agency, which affects the provision of service to residents of or 19 applicants for admission to long-term care facilities. 20 (b) "Immediate family" pertaining to conflicts of interest, shall mean 21 a member of the household or a relative with whom there is a close 22 personal or significant financial relationship. 23 (c) "Local ombudsman entity" shall mean any entity designated to oper- 24 ate a local long-term care ombudsman program. 25 [~~(b) "Long term~~] (d) "Long-term care facilities" shall mean residen- 26 tial health care facilities as defined in subdivision three of section 27 twenty-eight hundred one of the public health law[,]; adult care facili- 28 ties as defined in subdivision twenty-one of section two of the social EXPLANATION--Matter in italics (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD16127-03-8

A. 11050 2 1 services law, including those adult homes and enriched housing programs 2 licensed as assisted living residences, [~~as defined in~~] pursuant to 3 article forty-six-B of the public health law[,]; or any facilities which 4 hold themselves out or advertise themselves as providing assisted living 5 services and which are required to be licensed or certified under the 6 social services law or the public health law. Within the amounts appro- 7 priated therefor, [~~"long term~~] "long-term care facilities" shall also 8 mean managed [~~long term~~] long-term care plans and approved managed [~~long~~ 9 ~~term~~] long-term care or operating demonstrations as defined in section 10 forty-four hundred three-f of the public health law and the term "resi- 11 dent", "residents", "patient" and "patients" shall also include enrol- 12 lees of such plans. 13 [~~(c) "State ombudsman" shall mean the state long term care ombudsman~~ 14 ~~appointed by the director pursuant to subdivision three of this~~ 15 ~~section.~~] 16 (e) "Long-term care ombudsman" or "ombudsman" shall mean a person who: 17 (1) is an employee or volunteer of the state office for the aging or 18 of a designated local ombudsman entity and represents the state long- 19 term care ombudsman program; 20 (2) has been verified as having successfully completing a certif- 21 ication training program developed by the state ombudsman; and 22 (3) has a current designation as a long-term care ombudsman by the 23 state long-term care ombudsman. 24 (f) "Resident representative" shall mean either of the following: 25 (1) an individual chosen by the resident to act on behalf of the resi- 26 dent in order to support the resident in decision-making; access 27 medical, social, or other personal information of the resident; manage 28 financial matters; or receive notifications; 29 (2) a person authorized by state or federal law (including but not 30 limited to agents under power of attorney, representative payees, and 31 other fiduciaries) to act on behalf of the resident in order to support 32 the resident in decision-making; access medical, social, or other 33 personal information of the resident; manage financial matters; or 34 receive notifications; 35 (3) a legal representative, as used in section 712 of the older Ameri- 36 cans act of 1965, as amended; or 37 (4) the court-appointed guardian or conservator of the resident. 38 (5) Nothing in this section is intended to expand the scope of author- 39 ity of any resident representative beyond that authority specifically 40 authorized by the resident, state or federal law, or a court of compe- 41 tent jurisdiction. 42 (g) "State long-term care ombudsman" or "state ombudsman" shall mean 43 the individual who heads the office of the state long-term care ombuds- 44 man and is responsible to personally, or through representatives of the 45 office of the state long-term care ombudsman, fulfill the functions, 46 responsibilities and duties of the office of the state long-term care 47 ombudsman. 48 (h) "Willful interference" shall mean actions or inactions taken by an 49 individual in an attempt to intentionally prevent, interfere with, or 50 attempt to impede an ombudsman from performing any of the functions or 51 responsibilities of the office of the state long-term care ombudsman. 52 2. Office of the state long-term care ombudsman established. (a) There 53 is hereby established within the state office for the aging an office of 54 the state [~~long term~~] long-term care ombudsman [~~for the purpose of~~ 55 ~~receiving and resolving complaints affecting applicants, patients and~~ 56 ~~residents in long term care facilities and, where appropriate, referring~~

A. 11050 3 1 ~~complaints to appropriate investigatory agencies and acting in concert~~ 2 ~~with such agencies~~] which shall be headed by the state long-term care 3 ombudsman, who shall carry out, directly and/or through local ombudsman 4 entities, the duties set forth in this section. 5 (b) The office of the state long-term care ombudsman is a distinct 6 entity, separately identifiable, and located within the state office for 7 the aging. 8 (c) The state office for the aging shall provide the long-term care 9 ombudsman program with legal counsel that is adequate, available, has 10 competencies relevant to the legal needs of the program, and is without 11 conflict of interest as determined by the state office for the aging in 12 consultation with the state long-term care ombudsman. 13 (d) The state office for the aging shall not establish personnel poli- 14 cies or practices which prohibit the ombudsman from performing the func- 15 tions and responsibilities of the ombudsman, as set forth in this 16 section. 17 (e) Nothing in this section shall prohibit the state office for the 18 aging from requiring that the state ombudsman, or other employees of the 19 office of the state long-term care ombudsman, adhere to the personnel 20 policies and procedures of the state office for the aging. 21 3. State [~~long term~~] long-term care ombudsman. (a) The director of the 22 state office for the aging shall appoint a full-time state [~~long term~~] 23 long-term care ombudsman to administer and supervise the office of the 24 state [~~long term~~] long-term care ombudsman. 25 (b) The state ombudsman shall be selected from among individuals with 26 expertise and experience in [~~the fields of long term~~] long-term care and 27 advocacy, long-term services and supports or other direct services for 28 older persons or individuals with disabilities, consumer-oriented public 29 policy advocacy, leadership and program management skills, negotiation 30 and problem resolution skills, and with other qualifications determined 31 by the director of the state office for the aging to be appropriate for 32 the position. 33 (c) Any actual and potential conflicts of interest shall be identified 34 and addressed in accordance with subdivision ten of this section. 35 (d) The state ombudsman [~~shall~~], personally or through authorized 36 representatives [~~as provided for in paragraph (d) of this subdivision~~] 37 shall: 38 (1) identify, investigate and resolve complaints that are made by, or 39 on behalf of, [~~long term~~] long-term care residents in this state and 40 that relate to actions, inactions or decisions that may adversely affect 41 the health, safety and welfare or rights of such residents; [~~provided,~~ 42 ~~however, that~~] the state ombudsman [~~shall immediately~~] may refer to the 43 appropriate investigatory agency information obtained during the inves- 44 tigation of a complaint which suggests the possible occurrence of phys- 45 ical abuse, mistreatment or neglect or Medicaid fraud, in accordance 46 with [~~procedures established by the state ombudsman~~] the older Americans 47 act of 1965, as amended and the regulations promulgated thereunder as 48 well as rules and regulations promulgated by the state office for the 49 aging; provided, however, that upon consent of the resident, the ombuds- 50 man or state ombudsman shall immediately make such referral. [~~Such~~ 51 ~~procedures shall include, but not be limited to, the reporting to the~~ 52 ~~appropriate investigatory agency any reasonable information which~~ 53 ~~suggests the possible occurrence of physical abuse, mistreatment or~~ 54 ~~neglect as defined in section twenty-eight hundred three-d of the public~~ 55 ~~health law.~~] Nothing in this section shall be construed as authorizing 56 the state ombudsman to impose a resolution unacceptable to either party

A. 11050 4 1 involved in a complaint or to assume powers delegated to the commission- 2 er of health or the department of health pursuant to article twenty- 3 eight of the public health law or to the commissioner of the office of 4 children and family services or the office of children and family 5 services pursuant to the social services law; nor does it authorize the 6 state ombudsman to investigate final administrative determinations made 7 pursuant to law by such commissioners if such decisions become the 8 subject of complaints to the state ombudsman; 9 (2) provide services to assist residents in protecting their health, 10 safety, welfare and rights, including but not limited to representing 11 the interests of residents before governmental agencies and seeking 12 appropriate administrative, legal and other remedies to protect their 13 welfare, safety, health and rights; 14 (3) inform the residents about means of obtaining services provided by 15 [~~public health, social services and veterans' affairs or~~] the long-term 16 care ombudsman program and other public agencies; 17 (4) analyze, comment on, and monitor the development and implementa- 18 tion of federal, state and local laws, regulations [or], policies [~~with~~ 19 ~~respect to the adequacy of long term care facilities and services in the~~ 20 ~~state~~] and actions that pertain to the health, safety, welfare, and 21 rights of the residents of long-term care facilities and services in the 22 state; 23 (5) [~~in consultation with the director, establish procedures for the~~] 24 ensure that residents have regular and timely access to the services 25 provided through the long-term care ombudsman program and that residents 26 and complainants receive timely responses to requests for information 27 and complaints; 28 (6) recommend changes in federal, state and local laws, regulations, 29 policies, and actions pertaining to the health, safety, welfare, and 30 rights of residents; 31 (7) develop a certification training [~~of the authorized represen-~~ 32 ~~tatives and of local~~] program and continuing education for ombudsmen 33 [~~and their staff~~] which at a minimum shall specify the minimum hours of 34 training, the annual number of hours of in-service training, and the 35 content of the training, including, but not limited to, training relat- 36 ing to federal, state, and local laws, regulations, and policies with 37 respect to [~~long term~~] long-term care facilities in the state, investi- 38 gative and resolution techniques, and such other training-related 39 matters as the state ombudsman determines to be appropriate; [~~and~~ 40 ~~(6)~~] (8) provide administrative and technical assistance to long-term 41 care ombudsmen and local ombudsman entities; 42 (9) make determinations and establish positions of the office of the 43 state long-term care ombudsman, without necessarily representing the 44 determinations or positions of the state office for the aging; 45 (10) recommend to the director of the state office for the aging poli- 46 cies and procedures for the state long-term care ombudsman program; 47 (11) coordinate with and promote the development of citizen organiza- 48 tions consistent with the interests of residents; 49 (12) promote, provide technical support for the development of, and 50 provide ongoing support as requested by resident and family councils to 51 protect the well-being and rights of residents; 52 (13) provide leadership to statewide systems advocacy efforts of the 53 office of the state long-term care ombudsman on behalf of long-term care 54 facility residents, including coordination of systems advocacy efforts 55 carried out by representatives of the office of the state long-term care 56 ombudsman;

A. 11050 5 1 (14) in accordance with applicable state contracting procedures, coor- 2 dinate with the state office for the aging in the review and approval of 3 plans or contracts governing local ombudsman entity operations; 4 (15) carry out such other activities as the director of the state 5 office for the aging determines to be appropriate pursuant to the feder- 6 al older Americans act of 1965 and other applicable federal and state 7 laws and related regulations as may, from time to time, be amended; and 8 (16) in accordance with the regulations promulgated under this section 9 provide the director of the state office for the aging with notice prior 10 to performing the activities identified in paragraphs four, six and nine 11 of this subdivision. Such notice shall not give the director of the 12 state office for the aging or any other state official the right to 13 pre-approve the position or communications of the state ombudsman. 14 [~~(d)(1)~~] (e) The state ombudsman, with the approval of the director of 15 the state office for the aging, may appoint one or more [~~authorized~~ 16 ~~representatives~~] assistant state long-term care ombudsmen to assist the 17 state ombudsman in the performance of his or her duties under this 18 section. Such assistant state ombudsmen must be verified as having 19 completed a certification training program developed by the state 20 ombudsman within six (6) months of their appointment as assistant state 21 ombudsmen. 22 [~~(2)~~] (f)(1) The state ombudsman shall only appoint [~~only those~~] as 23 ombudsmen individuals who have been [~~certified as having completed the~~ 24 ~~training program developed pursuant to paragraph (c) of this subdivi-~~ 25 ~~sion~~] verified as completing the certification training program devel- 26 oped by the state ombudsman. In addition, the state long-term care 27 ombudsman may refuse, suspend, or remove such appointments of ombudsmen. 28 (2) The state ombudsman shall develop a grievance process to offer an 29 opportunity for reconsideration of any decision to refuse, suspend, or 30 remove appointment of any ombudsman. Notwithstanding the grievance 31 process, the state ombudsman shall make the final determination to 32 designate or to refuse, suspend, or remove appointment of an ombudsman. 33 [~~(e) No state ombudsman, authorized representative, local ombudsman or~~ 34 ~~immediate family member of such person shall:~~ 35 ~~(1) have a direct involvement in the licensing or certification of a~~ 36 ~~long term care facility or of a provider of a long term care service;~~ 37 ~~(2) have an ownership or investment interest (represented by equity,~~ 38 ~~debt, or other financial relationship) in a long term care facility or a~~ 39 ~~long term care service;~~ 40 ~~(3) be employed by, or participate in the management of, a long term~~ 41 ~~care facility; and~~ 42 ~~(4) receive remuneration (in cash or in kind) under a compensation~~ 43 ~~arrangement with an owner or operator of a long term care facility.~~ 44 ~~(f) The state ombudsman shall establish written procedures to identify~~ 45 ~~and remove conflicts of interest set out in paragraph (e) of this subdi-~~ 46 ~~vision and shall include actions that the director may require an indi-~~ 47 ~~vidual ombudsman or immediate family member to take to remove such~~ 48 ~~conflicts of interest.~~] 49 (g) Any actual and potential conflicts of interest shall be identified 50 and addressed in accordance with subdivision ten of this section. 51 (h) Within the amounts appropriated therefor, the state long-term care 52 ombudsman program shall include services specifically designed to serve 53 persons enrolled in managed [~~long term~~] long-term care plans or approved 54 managed [~~long term~~] long-term care or operating demonstrations author- 55 ized under section forty-four hundred three-f of the public health law,

A. 11050 6 1 and shall also review and respond to complaints relating to marketing 2 practices by such plans and demonstrations. 3 4. Local [~~long term~~] long-term care ombudsman program. (a) The state 4 ombudsman, [~~with the approval of the director~~] in accordance with appli- 5 cable state contracting procedures, may designate an entity to operate a 6 local [~~long term~~] long-term care ombudsman program for one or more coun- 7 ties, and shall monitor the performance of such entity. If the state 8 office for the aging is aware or becomes aware of any evidence that the 9 designation of an entity to operate a long-term care ombudsman program 10 by the state long-term care ombudsman would result in legal concerns or 11 liability for the state office for the aging or office of the state 12 long-term care ombudsman, the state ombudsman will comply with the state 13 office for the aging's determination that such designation should not be 14 made. 15 (b) The designated entity shall be an area agency on aging, a public 16 agency or a private not-for-profit corporation which is [~~neither a~~ 17 ~~provider or regulator of long term care facilities, or an affiliate or~~ 18 ~~unit of such agency or corporation~~] free from any conflict of interest 19 that cannot be remedied. Any actual and potential conflicts of interest 20 shall be identified and addressed in accordance with subdivision ten of 21 this section. 22 (c)(1) Each local [~~long term~~] long-term care ombudsman program shall 23 be directed by a qualified individual who is employed and paid by the 24 local entity and who shall have the duties and responsibilities as 25 provided in regulations, consistent with the provisions of this section 26 and of Title VII of the federal older Americans act of 1965, as amended. 27 In addition, upon designation, the entity is responsible for providing 28 for adequate and qualified staff, which may include trained volunteers 29 to perform the functions of the local [~~long term~~] long-term care ombuds- 30 man program. 31 (2) No local program staff, including the supervisor and any volun- 32 teers, shall perform or carry out the activities on behalf of the [~~local~~ 33 ~~long term~~] state long-term care ombudsman program unless such staff has 34 [~~received the training pursuant to paragraph (c) of subdivision three of~~ 35 ~~this section~~] been verified as completing the training program developed 36 by the state ombudsman and has been approved by the state ombudsman as 37 qualified to carry out the activities on behalf of the local program. 38 (d) [~~The director, in consultation with the state ombudsman, shall~~ 39 ~~establish in regulations standards for the operation of a local long~~ 40 ~~term care ombudsman program.~~ 41 ~~(e)~~] When the state ombudsman determines that a local [~~long term~~] 42 long-term care ombudsman program does not meet the standards set forth 43 in this section and in any related regulations, the state ombudsman 44 [~~shall with the approval of the director withdraw~~], in coordination with 45 the state office for the aging, may refuse, suspend, or remove the 46 designation of the local [~~program~~] ombudsmen entity. Prior to taking 47 such action, the state ombudsman shall send to the affected local 48 program a notice of [~~intention~~] the state ombudsman's intentions to 49 [~~withdraw~~] refuse, suspend, or remove the designation[~~, which notice~~ 50 ~~shall also inform the local program of its right to an administrative~~ 51 ~~hearing prior to the director's final determination. Such administrative~~ 52 ~~hearing shall be conducted in accordance with procedures set forth in~~ 53 ~~regulations~~]; provided, however, if the state office for the aging is 54 aware or becomes aware of evidence that the designation or continued 55 designation of an entity to operate a long-term care ombudsman program 56 would result in legal concerns or liability for the state office for the

A. 11050 7 1 aging or the office of the state long-term care ombudsman, the state 2 ombudsman will comply with the state office for the aging's determi- 3 nation that such designation should not be made or that such designation 4 be refused, suspended, or removed. 5 (e) The state ombudsman shall develop a grievance process to offer an 6 opportunity for reconsideration of any decision to refuse, suspend, or 7 remove the designation of a local ombudsman entity. Notwithstanding the 8 grievance process, the state ombudsman shall make the final determi- 9 nation to designate or to refuse, suspend, or remove the designation of 10 a local ombudsman entity; provided, however, if the state office for the 11 aging is aware or becomes aware of any evidence that the designation of 12 an entity to operate a long-term care ombudsman program by the state 13 long-term care ombudsman or that the failure of the state ombudsman to 14 refuse, suspend, or remove the designation of a local ombudsman entity 15 would result in legal concerns or liability for the state office for the 16 aging or the office of the state long-term care ombudsman, the state 17 ombudsman will comply with the state office for the aging's determi- 18 nation that such designation should not be made or that such designation 19 be refused, suspended, or removed. 20 5. Review of complaint. [~~(a)~~] Upon receipt of a complaint, the ombuds- 21 man or state ombudsman shall determine [~~immediately~~] whether there are 22 reasonable grounds for an investigation. Such investigation shall be 23 conducted in a manner prescribed in regulations. The [~~state~~] ombudsman[, 24 ~~or the local ombudsman, whoever is appropriate, shall~~] or state ombuds- 25 man may immediately refer to the appropriate investigatory agency infor- 26 mation obtained during the investigation of a complaint which suggests 27 the possible occurrence of physical abuse, mistreatment or neglect or 28 Medicaid fraud, in accordance with [~~procedures established by the state~~ 29 ~~ombudsman. Such procedures shall include, but not be limited to, the~~ 30 ~~reporting to the appropriate investigatory agency if there is reasonable~~ 31 ~~cause to believe the occurrence of physical abuse, mistreatment or~~ 32 ~~neglect as defined in section twenty-eight hundred three-d of the public~~ 33 ~~health law.~~ 34 ~~(b) If the referral is made by the local ombudsman, a copy of the~~ 35 ~~referral, together with copies of any relevant information or records,~~ 36 ~~shall be sent forthwith to the state ombudsman~~] and subject to any limi- 37 tations identified in the older Americans act of 1965, as amended and 38 the regulations promulgated thereunder as well as rules and regulations 39 promulgated by the state office for the aging; provided, however, that 40 upon consent of the resident, the ombudsman or state ombudsman shall 41 immediately make such referral. 42 6. [~~Retaliatory discrimination prohibited. (a) No person shall~~ 43 ~~discriminate against any resident of a long term care facility because~~ 44 ~~such resident or any person acting on behalf of the resident has brought~~ 45 ~~or caused to be brought any complaint to the state or local long term~~ 46 ~~care ombudsman for investigation, or against any resident or employee of~~ 47 ~~a long term care facility or any other person because such resident or~~ 48 ~~employee or any other person has given or provided or is to give or~~ 49 ~~provide any statements, testimony, other evidence or cooperation for the~~ 50 ~~purposes of any such complaint.~~ 51 ~~(b) Any resident who has reason to believe that he or she may have~~ 52 ~~been discriminated against in violation of this subdivision may, within~~ 53 ~~thirty days after such alleged violation occurs, file a complaint with~~ 54 ~~the commissioner of health pursuant to subdivision ten of section twen-~~ 55 ~~ty-eight hundred one-d of the public health law.~~

A. 11050 8 1 7.] Record access. (a) [~~(1) The state ombudsman, with the approval of~~ 2 ~~the director, may approve and certify one or more previously designated~~ 3 ~~local ombudsmen or state representatives as a records access ombudsman~~ 4 ~~upon their having completed the training program for records access~~ 5 ~~ombudsman set out in paragraph (b) of this subdivision; and~~ 6 ~~(2) A records access ombudsman shall be an employee of the office of~~ 7 ~~the state ombudsman or of the local entity designated to carry out a~~ 8 ~~local ombudsman program, except that the state ombudsman may certify as~~ 9 ~~a records access ombudsman a volunteer under the direct supervision of~~ 10 ~~the state ombudsman or of the supervisor of the local program, whichever~~ 11 ~~is appropriate, if such volunteer is licensed in a medical, legal, or~~ 12 ~~social work profession, or whose experience and training demonstrate~~ 13 ~~equivalent competency in medical and personal records review.~~ 14 ~~(b) Except as otherwise provided by law, no person, including the~~ 15 ~~state ombudsman, his or her authorized representatives, or any local~~ 16 ~~ombudsman, shall be authorized to have access to or review the medical~~ 17 ~~or personal records of a patient or resident pursuant to section twen-~~ 18 ~~ty-eight hundred three-c of the public health law and section four~~ 19 ~~hundred sixty-one-a of the social services law or pursuant to written~~ 20 ~~consent to such access by the patient or resident, or his or her legal~~ 21 ~~representative unless such person has been:~~ 22 ~~(1) Certified as having satisfactorily completed a training program~~ 23 ~~prescribed by the office and designed, among other purposes, to (A)~~ 24 ~~impress upon the participant the value, purpose, and confidentiality of~~ 25 ~~medical and personal records, (B) familiarize the participant with the~~ 26 ~~operational aspects of long term care facilities, and (C) deal with the~~ 27 ~~medical and psycho-social needs of patients or residents in such facili-~~ 28 ~~ties; and~~ 29 ~~(2) Certified as a records access ombudsman by the state ombudsman.~~ 30 ~~(c)~~] An ombudsman and state ombudsman shall have access to: 31 (1) medical, social and other records relating to a resident, if: 32 (A) the resident or resident representative communicates informed 33 consent to the access and the consent is given in writing or through the 34 use of auxiliary aids and services, provided that a guardian appointed 35 pursuant to article seventeen-A of the surrogate's court procedure act 36 or article eighty-one of the mental hygiene law who has the authority 37 pursuant to court order to give such consent shall supersede any other 38 resident representatives; 39 (B) the resident or resident representative communicates informed 40 consent orally, visually, or through the use of auxiliary aids and 41 services, and such consent is documented contemporaneously by an ombuds- 42 man in accordance with procedures established by the state ombudsman, 43 provided that a guardian appointed pursuant to article seventeen-A of 44 the surrogate's court procedure act or article eighty-one of the mental 45 hygiene law who has the authority pursuant to court order to give such 46 consent shall supersede any other resident representatives; and 47 (C) access is necessary in order to investigate a complaint, the resi- 48 dent representative refuses to consent to the access, an ombudsman has 49 reasonable cause to believe that the resident representative is not 50 acting in the best interests of the resident, and the ombudsman obtains 51 the approval of the state ombudsman; 52 (2) administrative records, policies, and documents, to which the 53 residents have or the general public has access, of long-term care 54 facilities;

A. 11050 9 1 (3) all licensing and certification records maintained by the state 2 with respect to long-term care facilities and copies thereof upon 3 request; and 4 (4) a list of resident names and room numbers. 5 (b) No ombudsman or state ombudsman shall disclose [~~the identity of~~ 6 ~~the resident or complainant that made a complaint to the ombudsman~~] 7 files, records, or information about a complaint, including identifying 8 information of any resident or complainant unless: 9 (1) the complainant or resident or his or her [~~legal~~] resident repre- 10 sentative [~~gives written~~] communicates informed consent to the ombuds- 11 man[~~, except that written consent shall also include the resident or~~ 12 ~~complainant giving oral consent that is documented contemporaneously in~~ 13 ~~a writing made by the ombudsman with the agreement of the complainant or~~ 14 ~~resident and in accordance with requirements established by the direc-~~ 15 ~~tor; or~~] in writing, provided that a guardian appointed pursuant to 16 article seventeen-A of the surrogate's court procedure act or article 17 eighty-one of the mental hygiene law who has the authority pursuant to 18 court order to give such consent shall supersede any other resident 19 representatives. 20 (2) the complainant or resident or his or her resident representative 21 communicates informed consent orally or visually, including through the 22 use of auxiliary aids and services, and such consent is documented 23 contemporaneously by an ombudsman or state ombudsman in accordance with 24 the procedures of the office of the state long-term care ombudsman, 25 provided that a guardian appointed pursuant to article seventeen-A of 26 the surrogate's court procedure act or article eighty-one of the mental 27 hygiene law who has the authority pursuant to court order to give such 28 consent shall supersede any other resident representatives; 29 [~~(2)~~] (3) the disclosure is required pursuant to a court order; or 30 (4) the resident is unable to communicate informed consent and does 31 not have a resident representative, or the state long-term care ombuds- 32 man determines that the resident representative has taken an action, 33 inaction or made a decision that may adversely affect the health, safe- 34 ty, welfare, or rights of the resident. In such cases, disclosures may 35 be made in accordance with criteria to be developed by the state ombuds- 36 man. 37 (c) all files, records, and other information of the long-term care 38 ombudsman program, including information maintained by local ombudsman 39 entities pertaining to the cases and activities of the program are the 40 property of the office of the state long-term care ombudsman. Such 41 files, records, and information may be disclosed only at the discretion 42 of the state ombudsman or designee of the state ombudsman for such 43 purpose and in accordance with the criteria developed by the state 44 ombudsman. 45 (d) No ombudsman or state ombudsman shall disclose to any person 46 outside of the long-term care ombudsman program any information obtained 47 from a [~~patient's or~~] resident's [~~records~~] record without the approval 48 of the state ombudsman or his or her designee, in accordance with proce- 49 dures for disclosure established by [~~the director in consultation with~~] 50 the state ombudsman. [~~Such approval is not required for suspected~~ 51 ~~instances of physical abuse, mistreatment or neglect or Medicaid fraud~~ 52 ~~and, subject to withholding identifying information of a non-consenting~~ 53 ~~complainant or resident under paragraph (c) of this subdivision, a local~~ 54 ~~ombudsman or state representative shall provide needed file information~~ 55 ~~to the appropriate state and federal regulatory authorities and cooper-~~ 56 ~~ate with them to help further their investigation.~~]

A. 11050 10 1 (e) No [~~records access or other~~] ombudsman or state ombudsman who 2 directly or indirectly obtains access to a [~~patient's or~~] resident's 3 medical or personal records pursuant to section twenty-eight hundred 4 three-c of the public health law shall disclose to such [~~patient or~~] 5 resident or to any other person outside of the long-term care ombudsman 6 program the content of any such records to which such [~~patient,~~] resi- 7 dent or other person had not previously had the right of access, 8 provided that this restriction shall not prevent such ombudsman from 9 advising such [~~patient or~~] resident of the status or progress of an 10 investigation or complaint process initiated at the request of such 11 [~~patient or~~] resident or from referring such complaint, together with 12 the relevant records, to appropriate investigatory agencies. Any person 13 who intentionally violates the provisions of this subdivision shall be 14 guilty of a misdemeanor. Nothing contained in this section shall be 15 construed to limit or abridge any right of access to records, including 16 financial records, otherwise available to ombudsmen, [~~patients or~~] resi- 17 dents, or any other person. 18 (f) Notwithstanding any law to the contrary, any individual, when 19 acting in his or her official capacity as an ombudsman, shall be exempt 20 from the mandatory reporting of abuse, neglect, exploitation, or 21 maltreatment. However, an ombudsman may report abuse, neglect, exploita- 22 tion, or maltreatment in accordance with the older Americans act of 23 1965, as amended and the regulations promulgated thereunder as well as 24 rules and regulations promulgated by the state office for the aging; 25 provided, however, that upon consent of the resident, the ombudsman or 26 state ombudsman shall immediately make such referral. 27 (g) Nothing in this section shall prohibit the disclosure by an 28 ombudsman, state ombudsman, or local ombudsman entity of non-identifying 29 aggregate data for monitoring or reporting purposes to the state office 30 for the aging or agency in which a local ombudsman entity is organiza- 31 tionally located. 32 (h) Any information accessed pursuant to this subdivision by a long- 33 term care ombudsman or local ombudsman entity shall only be used for the 34 purposes of the long-term care ombudsman program. Any use of such infor- 35 mation other than for the purposes of the long-term care ombudsman 36 program or purposes authorized under this section may constitute grounds 37 for the designation of such ombudsman or local ombudsman entity to be 38 removed. 39 7. Access to long-term care facilities. An ombudsman or state ombuds- 40 man shall have authority to enter all long-term care facilities at any 41 time during a facility's regular business hours or regular visiting 42 hours, and at any other time when access may be required by the circum- 43 stances to be investigated and shall have access to all residents and/or 44 the resident representative to perform all functions and duties enumer- 45 ated herein. 46 8. [~~Failure to cooperate. Any long term~~] Noninterference. No long- 47 term care facility [~~which refuses~~] shall: 48 (a) refuse to permit [~~the state~~] an ombudsman[~~, his or her authorized~~ 49 ~~representative, or any local ombudsman~~] or state ombudsman entry into 50 such facility or [~~refuses~~], interfere with, or refuse to cooperate with 51 [~~the state~~] an ombudsman[~~, his or her authorized representative, or any~~ 52 ~~local ombudsman in the~~] or state ombudsman carrying out [of] their 53 mandated duties and responsibilities set forth in this section and any 54 regulations promulgated pursuant thereto[~~, or refuses~~];

A. 11050 11 1 (b) retaliate against an ombudsman or state ombudsman for carrying out 2 his or her mandated duties and responsibilities set forth in this 3 section and any regulations promulgated pursuant thereto; 4 (c) refuse to permit [~~patients~~] residents or staff to communicate 5 freely and privately with [~~the state~~] an ombudsman[~~, his or her author-~~ 6 ~~ized representative, or any local ombudsman shall be subject to the~~ 7 ~~appropriate sanction or penalties of the state agency that licenses the~~ 8 ~~facility~~]; or 9 (d) retaliate or discriminate against any resident, resident represen- 10 tative, complainant, or staff member for filing a complaint with, 11 providing information to, or otherwise cooperating with any ombudsman or 12 state ombudsman. Any resident who has reason to believe that he or she 13 may have been discriminated or retaliated against in violation of subdi- 14 vision eight of this section may file a complaint with the commissioner 15 of health pursuant to subdivision ten of section twenty-eight hundred 16 one-d of the public health law. 17 9. Failure to cooperate. Any such facility that violates the 18 provisions of subdivision eight of this section shall be subject to the 19 appropriate sanctions pursuant to section twenty-eight hundred three-c 20 of the public health law, and accompanying regulations, if such facility 21 is a residential healthcare facility or section four hundred sixty-d of 22 the social services law, and accompanying regulations, if such facility 23 is an adult care facility. 24 10. Conflict of interest. The state office for the aging and the 25 state ombudsman shall consider both the organizational and individual 26 conflicts of interest that may impact the effectiveness and credibility 27 of the work of the office of the state long-term care ombudsman. In so 28 doing, both the state office for the aging and the state ombudsman shall 29 be responsible to identify actual and potential conflicts and, where a 30 conflict has been identified, to remove or remedy such conflict as set 31 forth in paragraphs (b) and (d) of this subdivision. 32 (a) Identifying conflicts of interest. In identifying conflicts of 33 interest, the state office for the aging and the state ombudsman shall 34 consider the organizational conflicts that may impact the effectiveness 35 and credibility of the work of the office of the state long-term care 36 ombudsman. Organizational conflicts of interest include, but are not 37 limited to, placement of the office of the state long-term care ombuds- 38 man, or requiring that a state ombudsman or long-term care ombudsman 39 perform conflicting activities, in an organization that: 40 (1) is responsible for licensing, surveying, or certifying long-term 41 care facilities; 42 (2) is responsible for licensing, surveying, or certifying long-term 43 care services; 44 (3) is an association (or an affiliate of such an association) of 45 long-term care facilities, or of any other residential facilities for 46 older individuals or individuals with disabilities; 47 (4) has any ownership or investment interest (represented by equity, 48 debt, or other financial relationship) in, or receives grants or 49 donations from, a long-term care facility; 50 (5) has governing board members with any ownership, investment, or 51 employment interest in long-term care facilities; 52 (6) provides long-term care to residents of long-term care facilities, 53 including the provision of personnel for long-term care facilities or 54 the operation of programs which control access to or services for long- 55 term care facilities;

A. 11050 12 1 (7) provides long-term care services, including programs carried out 2 under a Medicaid waiver approved under section 1115 of the Social Secu- 3 rity Act (42 U.S.C. 1315) or under subsection (b) or (c) of section 1915 4 of the Social Security Act (42 U.S.C. 1396n), subsection (i), (j), or 5 (k) of section 1915 of the Social Security Act (42 U.S.C. 1396n); 6 (8) provides long-term care case management; 7 (9) provides long-term care coordination or case management for resi- 8 dents of long-term care facilities; 9 (10) sets reimbursement rates for long-term care facilities; 10 (11) sets reimbursement rates for long-term care services; 11 (12) provides adult protective services; 12 (13) is responsible for eligibility determinations regarding Medicaid 13 or other public benefits for residents of long-term care facilities; 14 (14) conducts preadmission screening for long-term care facility 15 placements; 16 (15) makes decisions regarding admission or discharge of individuals 17 to or from long-term care facilities; or 18 (16) provides guardianship, conservatorship, or other fiduciary or 19 surrogate decision-making services for residents of long-term care 20 facilities. 21 (b) Removing or remedying organizational conflicts. The state office 22 for the aging and the state ombudsman shall identify and take steps to 23 remove or remedy conflicts of interest between the office of the state 24 long-term care ombudsman and the state office for the aging or other 25 agency carrying out the state long-term care ombudsman program. 26 (1) The state ombudsman shall identify organizational conflicts of 27 interest in the state long-term care ombudsman program and describe 28 steps taken to remove or remedy conflicts within the annual report 29 submitted to the assistant secretary through the national ombudsman 30 reporting system. 31 (2) Where the office of the state long-term care ombudsman is located 32 within or otherwise organizationally attached to the state office for 33 the aging, the office for the aging shall: 34 (A) take reasonable steps to avoid internal conflicts of interest; 35 (B) establish a process for review and identification of internal 36 conflicts; 37 (C) take steps to remove or remedy conflicts; 38 (D) ensure that no individual, or member of the immediate family of an 39 individual, involved in the designating, appointing, otherwise selecting 40 or terminating the state ombudsman is subject to a conflict of interest; 41 and 42 (E) assure that the state ombudsman has disclosed such conflicts and 43 described steps taken to remove or remedy conflicts within the annual 44 report submitted to the assistant secretary through the national ombuds- 45 man reporting system. 46 (3) Where the state office for the aging is unable to adequately 47 remove or remedy a conflict, it shall carry out the state long-term care 48 ombudsman program by contract or other arrangement with a public agency 49 or nonprofit private organization. The state office for the aging may 50 not enter into a contract or other arrangement to carry out the state 51 long-term care ombudsman program if the other entity, and may not oper- 52 ate the office of the state long-term care ombudsman directly if it: 53 (A) is responsible for licensing, surveying, or certifying long-term 54 care facilities;

A. 11050 13 1 (B) is an association (or an affiliate of such an association) of 2 long-term care facilities, or of any other residential facilities for 3 older individuals or individuals with disabilities; or 4 (C) has any ownership, operational, or investment interest (repres- 5 ented by equity, debt, or other financial relationship) in a long-term 6 care facility. 7 (4) Where the state office for the aging carries out the state long- 8 term care ombudsman program by contract or other arrangement with a 9 public agency or nonprofit private organization, the state office for 10 the aging shall: 11 (A) prior to contracting or making another arrangement, take reason- 12 able steps to avoid conflicts of interest in such agency or organization 13 which is to carry out the state long-term care ombudsman program and to 14 avoid conflicts of interest in the state office for the aging oversight 15 of the contract or arrangement; 16 (B) establish a process for periodic review and identification of 17 conflicts; 18 (C) establish criteria for approval of steps taken by the agency or 19 organization to remedy or remove conflicts; 20 (D) require that such agency or organization have a process in place 21 to: 22 (i) take reasonable steps to avoid conflicts of interest, and 23 (ii) disclose identified conflicts and steps taken to remove or remedy 24 conflicts to the state office for the aging for review and approval. 25 (5) Where an agency or organization carrying out the state long-term 26 care ombudsman program by contract or other arrangement develops a 27 conflict and is unable to adequately remove or remedy a conflict, the 28 state office for the aging shall either operate the state long-term care 29 ombudsman program directly or by contract or other arrangement with 30 another public agency or nonprofit private organization. The state 31 office for the aging shall not enter into such contract or other 32 arrangement with an agency or organization which is responsible for 33 licensing or certifying long-term care facilities in the state or is an 34 association (or affiliate of such an association) of long-term care 35 facilities. 36 (6) Where local ombudsman entities provide ombudsman services, the 37 state ombudsman shall: 38 (A) prior to designating or renewing designation, take reasonable 39 steps to avoid conflicts of interest in any agency which may host a 40 local ombudsman entity, 41 (B) establish a process for periodic review and identification of 42 conflicts of interest with the local ombudsman entity in any agencies 43 hosting a local ombudsman entity, 44 (C) require that such agencies disclose identified conflicts of inter- 45 est with the local ombudsman entity and steps taken to remove or remedy 46 conflicts within such agency to the state ombudsman, 47 (D) establish criteria for approval of steps taken to remedy or remove 48 conflicts in such agencies, and 49 (E) establish a process for review of and criteria for approval of 50 plans to remove or remedy conflicts with the local ombudsman entity in 51 such agencies. 52 (7) Failure of an agency hosting a local ombudsman entity to disclose 53 a conflict to the office of the state long-term care ombudsman or 54 inability to adequately remove or remedy a conflict shall constitute 55 grounds for refusal, suspension, or removal of designation of the local 56 ombudsman entity by the state ombudsman.

A. 11050 14 1 (c) Identifying individual conflicts of interest. (1) In identifying 2 conflicts of interest, the state office for the aging and the state 3 ombudsman shall consider individual conflicts that may impact the effec- 4 tiveness and credibility of the work of the office of the state long- 5 term care ombudsman or local long-term care ombudsman program. 6 (2) Individual conflicts of interest for the state ombudsman, long- 7 term care ombudsmen, and members of their immediate family include, but 8 are not limited to: 9 (A) direct involvement in the licensing or certification of a long- 10 term care facility or of a provider of a long-term care service; 11 (B) ownership, operational, or investment interest (represented by 12 equity, debt, or other financial relationship) in an existing or 13 proposed long-term care facility or a long-term care service; 14 (C) employment of an individual by, or participation in the management 15 of, a long-term care facility in the service area or by the owner or 16 operator of any long-term care facility in the service area; 17 (D) receipt of, or right to receive, directly or indirectly, remunera- 18 tion (in cash or in kind) under a compensation arrangement with an owner 19 or operator of a long-term care facility; 20 (E) accepting gifts or gratuities of significant value from a long- 21 term care facility or its management, a resident or a resident represen- 22 tative of a long-term care facility in which the state ombudsman or 23 long-term care ombudsman provide services (except where there is a 24 personal relationship with a resident or resident representative which 25 is separate from the individual's role as state ombudsman or long-term 26 care ombudsman); 27 (F) accepting money or any other consideration from anyone other than 28 the office of the state long-term care ombudsman, or an entity approved 29 by the state ombudsman, for the performance of an act in the regular 30 course of the duties of the state ombudsman or long-term care ombudsman 31 without state ombudsman approval; 32 (G) serving as guardian, conservator, or in another fiduciary or 33 surrogate decision-making capacity for a resident of a long-term care 34 facility in which the state ombudsman or long-term care ombudsman 35 provides services; and 36 (H) serving residents of a facility in which an immediate family 37 member resides. 38 (d) Removing or remedying individual conflicts. (1) The state office 39 for the aging or state ombudsman shall develop and implement policies 40 and procedures to ensure that no state ombudsman or long-term care 41 ombudsman are required or permitted to hold positions or perform duties 42 that would constitute a conflict of interest as set forth in paragraph 43 (c) of this subdivision. This rule does not prohibit the state office 44 for the aging or state ombudsman from having policies or procedures that 45 exceed these requirements. 46 (2) When considering the employment, appointment, or designation of an 47 individual as the state ombudsman or as a long-term care ombudsman, the 48 state office for the aging or other employing or appointing entity 49 shall: 50 (A) take reasonable steps to avoid employing, appointing, or designat- 51 ing an individual who has an unremedied conflict of interest or who has 52 a member of the immediate family with an unremedied conflict of inter- 53 est; 54 (B) take reasonable steps to avoid assigning an individual to perform 55 duties which would constitute an unremedied conflict of interest;

A. 11050 15 1 (C) establish a process for periodic review and identification of 2 conflicts of state ombudsman and long-term care ombudsmen; and 3 (D) take steps to remove or remedy conflicts. 4 (3) In no circumstance shall the entity which appoints, employs, or 5 designates the state ombudsman appoint, employ, or designate an individ- 6 ual as the state ombudsman who: 7 (A) has direct involvement in the licensing or certification of a 8 long-term care facility; 9 (B) has an ownership or investment interest (represented by equity, 10 debt, or other financial relationship) in a long-term care facility. 11 Divestment within a reasonable period may be considered an adequate 12 remedy to this conflict; 13 (C) has been employed by or participating in the management of a long- 14 term care facility within the previous twelve months; or 15 (D) receives, or has the right to receive, directly or indirectly, 16 remuneration (in cash or in kind) under a compensation arrangement with 17 an owner or operator of a long-term care facility. 18 (4) In no circumstance shall the state office for the aging or an 19 agency hosting a local ombudsman entity appoint, employ, or designate an 20 individual, nor shall the state ombudsman designate an individual, as a 21 long-term care ombudsman who: 22 (A) has direct involvement in the licensing or certification of a 23 long-term care facility; 24 (B) has an ownership or investment interest (represented by equity, 25 debt, or other financial relationship) in a long-term care facility. 26 Divestment within a reasonable period may be considered an adequate 27 remedy to this conflict; 28 (C) receives, directly or indirectly, remuneration (in cash or in 29 kind) under a compensation arrangement with an owner or operator of a 30 long-term care facility; or 31 (D) is employed by, or participating in the management of, a long-term 32 care facility. 33 (i) An agency which appoints or employs long-term care ombudsmen shall 34 make efforts to avoid appointing, employing, or designating an individ- 35 ual as a long-term care ombudsman who has been employed by or partic- 36 ipating in the management of a long-term care facility within the previ- 37 ous twelve months. 38 (ii) Where such individual is appointed, employed, or designated, the 39 agency shall take steps to remedy the conflict. 40 11. Civil immunity. Notwithstanding any other provision of law, 41 ombudsmen designated under this section [~~or who are also records access~~ 42 ~~ombudsmen functioning in accordance with this section~~] shall be included 43 within the definition of employee as set forth in section seventeen of 44 the public officers law and shall be defended and indemnified in accord- 45 ance with the provisions of article two of such law. 46 [~~10.~~] 12. Grievance process. In addition to the provisions listed in 47 this section, the state ombudsman shall recommend policies and proce- 48 dures for the receipt and review of grievances regarding determinations 49 or actions of the state ombudsman or ombudsmen to the director of the 50 state office for the aging. 51 13. Regulations. The director of the state office for the aging, in 52 consultation with the state ombudsman, is authorized to promulgate regu- 53 lations to implement the provisions of this section. 54 [~~11.~~] 14. Annual report. On or before March thirty-first, two thousand 55 five, and annually thereafter, the state ombudsman shall submit to the 56 governor, commissioner of the federal administration on aging, speaker

A. 11050 16 1 of the assembly, temporary president of the senate, director of the 2 state office for the aging, commissioner of the department of health, 3 and the commissioner of children and family services a report and make 4 such report available to the public: 5 (a) describing the activities carried out by the office of the state 6 [~~long term~~] long-term care ombudsman during the prior calendar year; 7 (b) containing and analyzing data relating to complaints and condi- 8 tions in [~~long term~~] long-term care facilities and to residents for the 9 purpose of identifying and resolving significant problems; 10 (c) evaluating the problems experienced by, and the complaints made by 11 or on behalf of, residents; 12 (d) containing recommendations for[: 13 ~~(1)~~] appropriate state legislation, rules and regulations and other 14 action to improve the quality of the care and life of the residents[; 15 ~~and~~ 16 ~~(2)~~], protecting the health, safety and welfare and rights of the 17 residents and resolving resident complaints and identified problems or 18 barriers; 19 (e) containing an analysis of the success of the long-term care 20 ombudsman program, including success in providing services to residents; 21 (f) describing barriers that prevent the optimal operation of the 22 ombudsman program; 23 (g) describing any organizational conflicts of interest in the ombuds- 24 man program that have been identified and the steps taken to remove or 25 remedy such conflicts; and 26 (h) any other matters as the state ombudsman, in consultation with the 27 director of the state office for the aging, determines to be appropri- 28 ate. 29 § 2. Paragraph (b) of subdivision 1 of section 218 of the elder law, 30 as amended by section 2 of chapter 462 of the laws of 2015, is amended 31 to read as follows: 32 [~~(b) "Long term~~] (d) "Long-term care facilities" shall mean residen- 33 tial health care facilities as defined in subdivision three of section 34 twenty-eight hundred one of the public health law, adult care facilities 35 as defined in subdivision twenty-one of section two of the social 36 services law, and assisted living residences, as defined in article 37 forty-six-B of the public health law, or any facilities which hold them- 38 selves out or advertise themselves as providing assisted living services 39 and which are required to be licensed or certified under the social 40 services law or the public health law. 41 § 3. This act shall take effect immediately; provided, however that: 42 (a) the amendments to paragraph (b) of subdivision 1 of section 218 of 43 the elder law made by section two of this act shall take effect on the 44 same date and in the same manner as section 2 of chapter 462 of the laws 45 of 2015, takes effect; and 46 (b) the amendments to paragraph (g) of subdivision 3 of section 218 of 47 the elder law made by section one of this act shall not affect the 48 repeal of such paragraph as provided in section 5 of chapter 462 of the 49 laws of 2015, as amended, and shall be deemed repealed therewith.

Relates to the long-term care ombudsman program

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