§ 218 — Long-term care ombudsman

§ 218. Long-term care ombudsman. 1. Definitions. For the purposes of\nthis section, the following terms shall have the following meanings:\n (a) "Administrative action" shall mean any action or decision by an\nowner, employee, or agent of a long-term care facility, or by a\ngovernment agency, which affects the provision of service to residents\nof or applicants for admission to long-term care facilities.\n (b) "Immediate family" pertaining to conflicts of interest, shall mean\na member of the household or a relative with whom there is a close\npersonal or significant financial relationship.\n (c) "Local ombudsman entity" shall mean any entity designated to\noperate a local long-term care ombudsman program.\n * (d) "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,\nincluding those adult homes and enriched housing programs licensed as\nassisted living residences, pursuant to 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,\n"long-term care facilities" shall also mean managed long-term care plans\nand approved managed long-term care or operating demonstrations as\ndefined in section forty-four hundred three-f of the public health law\nand the term "resident", "residents", "patient" and "patients" shall\nalso include enrollees of such plans.\n * NB Effective until December 31, 2027\n * (d) "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, 2027\n (e) "Long-term care ombudsman" or "ombudsman" shall mean a person who:\n (1) is an employee or volunteer of the state office for the aging or\nof a designated local ombudsman entity and represents the state\nlong-term care ombudsman program;\n (2) has been verified as having successfully completing a\ncertification training program developed by the state ombudsman; and\n (3) has a current designation as a long-term care ombudsman by the\nstate long-term care ombudsman.\n (f) "Resident representative" shall mean either of the following:\n (1) an individual chosen by the resident to act on behalf of the\nresident in order to support the resident in decision-making; access\nmedical, social, or other personal information of the resident; manage\nfinancial matters; or receive notifications;\n (2) a person authorized by state or federal law (including but not\nlimited to agents under power of attorney, representative payees, and\nother fiduciaries) to act on behalf of the resident in order to support\nthe resident in decision-making; access medical, social, or other\npersonal information of the resident; manage financial matters; or\nreceive notifications;\n (3) a legal representative, as used in section 712 of the older\nAmericans act of 1965, as amended; or\n (4) the court-appointed guardian or conservator of the resident.\n (5) Nothing in this section is intended to expand the scope of\nauthority of any resident representative beyond that authority\nspecifically authorized by the resident, state or federal law, or a\ncourt of competent jurisdiction.\n (g) "State long-term care ombudsman" or "state ombudsman" shall mean\nthe individual who heads the office of the state long-term care\nombudsman and is responsible to personally, or through representatives\nof the office of the state long-term care ombudsman, fulfill the\nfunctions, responsibilities and duties of the office of the state\nlong-term care ombudsman.\n (h) "Willful interference" shall mean actions or inactions taken by an\nindividual in an attempt to intentionally prevent, interfere with, or\nattempt to impede an ombudsman from performing any of the functions or\nresponsibilities of the office of the state long-term care ombudsman.\n 2. Office of the state long-term care ombudsman established. (a) There\nis hereby established within the state office for the aging an office of\nthe state long-term care ombudsman which shall be headed by the state\nlong-term care ombudsman, who shall carry out, directly and/or through\nlocal ombudsman entities, the duties set forth in this section.\n (b) The office of the state long-term care ombudsman is a distinct\nentity, separately identifiable, and located within the state office for\nthe aging.\n (c) The state office for the aging shall provide the long-term care\nombudsman program with legal counsel that is adequate, available, has\ncompetencies relevant to the legal needs of the program, and is without\nconflict of interest as determined by the state office for the aging in\nconsultation with the state long-term care ombudsman.\n (d) The state office for the aging shall not establish personnel\npolicies or practices which prohibit the ombudsman from performing the\nfunctions and responsibilities of the ombudsman, as set forth in this\nsection.\n (e) Nothing in this section shall prohibit the state office for the\naging from requiring that the state ombudsman, or other employees of the\noffice of the state long-term care ombudsman, adhere to the personnel\npolicies and procedures of the state office for the aging.\n 3. State long-term care ombudsman. (a) The director of the state\noffice for the aging shall appoint a full-time state long-term care\nombudsman to administer and supervise the office of the state long-term\ncare ombudsman.\n (b) The state ombudsman shall be selected from among individuals with\nexpertise and experience in long-term care and advocacy, long-term\nservices and supports or other direct services for older persons or\nindividuals with disabilities, consumer-oriented public policy advocacy,\nleadership and program management skills, negotiation and problem\nresolution skills, and with other qualifications determined by the\ndirector of the state office for the aging to be appropriate for the\nposition.\n (c) Any actual and potential conflicts of interest shall be identified\nand addressed in accordance with subdivision ten of this section.\n (d) The state ombudsman, personally or through authorized\nrepresentatives shall:\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; the state ombudsman may\nrefer to the appropriate investigatory agency information obtained\nduring the investigation of a complaint which suggests the possible\noccurrence of physical abuse, mistreatment or neglect or Medicaid fraud,\nin accordance with the older Americans act of 1965, as amended and the\nregulations promulgated thereunder as well as rules and regulations\npromulgated by the state office for the aging; provided, however, that\nupon consent of the resident, the ombudsman or state ombudsman shall\nimmediately make such referral. Nothing in this section shall be\nconstrued as authorizing the state ombudsman to impose a resolution\nunacceptable to either party involved in a complaint or to assume powers\ndelegated to the commissioner of health or the department of health\npursuant to article twenty-eight of the public health law or to the\ncommissioner of the office of children and family services or the office\nof children and family services pursuant to the social services law; nor\ndoes 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 by\nthe long-term care ombudsman program and other public agencies;\n (4) analyze, comment on, and monitor the development and\nimplementation of federal, state and local laws, regulations, policies\nand actions that pertain to the health, safety, welfare, and rights of\nthe residents of long-term care facilities and services in the state;\n (5) ensure that residents have regular and timely access to the\nservices provided through the long-term care ombudsman program and that\nresidents and complainants receive timely responses to requests for\ninformation and complaints;\n (6) recommend changes in federal, state and local laws, regulations,\npolicies, and actions pertaining to the health, safety, welfare, and\nrights of residents;\n (7) develop a certification training program and continuing education\nfor ombudsmen which at a minimum shall specify the minimum hours of\ntraining, the annual number of hours of in-service training, and the\ncontent of the training, including, but not limited to, training\nrelating to cultural competency and diversity, federal, state, and local\nlaws, regulations, and policies with respect to long-term care\nfacilities in the state, investigative and resolution techniques, and\nsuch other training-related matters as the state ombudsman determines to\nbe appropriate;\n (8) provide administrative and technical assistance to long-term care\nombudsmen and local ombudsman entities;\n (9) make determinations and establish positions of the office of the\nstate long-term care ombudsman, without necessarily representing the\ndeterminations or positions of the state office for the aging;\n (10) recommend to the director of the state office for the aging\npolicies and procedures for the state long-term care ombudsman program;\n (11) coordinate with and promote the development of citizen\norganizations consistent with the interests of residents;\n (12) promote, provide technical support for the development of, and\nprovide ongoing support as requested by resident and family councils to\nprotect the well-being and rights of residents;\n (13) provide leadership to statewide systems advocacy efforts of the\noffice of the state long-term care ombudsman on behalf of long-term care\nfacility residents, including coordination of systems advocacy efforts\ncarried out by representatives of the office of the state long-term care\nombudsman;\n (14) in accordance with applicable state contracting procedures,\ncoordinate with the state office for the aging in the review and\napproval of plans or contracts governing local ombudsman entity\noperations;\n (15) carry out such other activities as the director of the state\noffice for the aging determines to be appropriate pursuant to the\nfederal older Americans act of 1965 and other applicable federal and\nstate laws and related regulations as may, from time to time, be\namended; and\n (16) in accordance with the regulations promulgated under this section\nprovide the director of the state office for the aging with notice prior\nto performing the activities identified in paragraphs four, six and nine\nof this subdivision. Such notice shall not give the director of the\nstate office for the aging or any other state official the right to\npre-approve the position or communications of the state ombudsman.\n (e) The state ombudsman, with the approval of the director of the\nstate office for the aging, may appoint one or more assistant state\nlong-term care ombudsmen to assist the state ombudsman in the\nperformance of his or her duties under this section. Such assistant\nstate ombudsmen must be verified as having completed a certification\ntraining program developed by the state ombudsman within six (6) months\nof their appointment as assistant state ombudsmen.\n (f)(1) The state ombudsman shall only appoint as ombudsmen individuals\nwho have been verified as completing the certification training program\ndeveloped by the state ombudsman. In addition, the state long-term care\nombudsman may refuse, suspend, or remove such appointments of ombudsmen.\n (2) The state ombudsman shall develop a grievance process to offer an\nopportunity for reconsideration of any decision to refuse, suspend, or\nremove appointment of any ombudsman. Notwithstanding the grievance\nprocess, the state ombudsman shall make the final determination to\ndesignate or to refuse, suspend, or remove appointment of an ombudsman.\n (g) Any actual and potential conflicts of interest shall be identified\nand addressed in accordance with subdivision ten of this section.\n * (h) Within the amounts appropriated therefor, the state long-term\ncare ombudsman program shall include services specifically designed to\nserve persons enrolled in managed long-term care plans or approved\nmanaged long-term care or operating demonstrations authorized under\nsection forty-four hundred three-f of the public health law, and shall\nalso review and respond to complaints relating to marketing practices by\nsuch plans and demonstrations.\n * NB Repealed December 31, 2025\n 4. Local long-term care ombudsman program. (a) The state ombudsman, in\naccordance with applicable state contracting procedures, may designate\nan entity to operate a local long-term care ombudsman program for one or\nmore counties, and shall monitor the performance of such entity. If the\nstate office for the aging is aware or becomes aware of any evidence\nthat the designation of an entity to operate a long-term care ombudsman\nprogram by the state long-term care ombudsman would result in legal\nconcerns or liability for the state office for the aging or office of\nthe state long-term care ombudsman, the state ombudsman will comply with\nthe state office for the aging's determination that such designation\nshould not be made.\n (b) The designated entity shall be an area agency on aging, a public\nagency or a private not-for-profit corporation which is free from any\nconflict of interest that cannot be remedied. Any actual and potential\nconflicts of interest shall be identified and addressed in accordance\nwith subdivision ten of this section.\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\nstate long-term care ombudsman program unless such staff has been\nverified as completing the training program developed by the state\nombudsman and has been approved by the state ombudsman as qualified to\ncarry out the activities on behalf of the local program.\n (d) 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, in coordination\nwith the state office for the aging, may refuse, suspend, or remove the\ndesignation of the local ombudsmen entity. Prior to taking such action,\nthe state ombudsman shall send to the affected local program a notice of\nthe state ombudsman's intentions to refuse, suspend, or remove the\ndesignation; provided, however, if the state office for the aging is\naware or becomes aware of evidence that the designation or continued\ndesignation of an entity to operate a long-term care ombudsman program\nwould result in legal concerns or liability for the state office for the\naging or the office of the state long-term care ombudsman, the state\nombudsman will comply with the state office for the aging's\ndetermination that such designation should not be made or that such\ndesignation be refused, suspended, or removed.\n (e) The state ombudsman shall develop a grievance process to offer an\nopportunity for reconsideration of any decision to refuse, suspend, or\nremove the designation of a local ombudsman entity. Notwithstanding the\ngrievance process, the state ombudsman shall make the final\ndetermination to designate or to refuse, suspend, or remove the\ndesignation of a local ombudsman entity; provided, however, if the state\noffice for the aging is aware or becomes aware of any evidence that the\ndesignation of an entity to operate a long-term care ombudsman program\nby the state long-term care ombudsman or that the failure of the state\nombudsman to refuse, suspend, or remove the designation of a local\nombudsman entity would result in legal concerns or liability for the\nstate office for the aging or the office of the state long-term care\nombudsman, the state ombudsman will comply with the state office for the\naging's determination that such designation should not be made or that\nsuch designation be refused, suspended, or removed.\n 5. Review of complaint. Upon receipt of a complaint, the ombudsman or\nstate ombudsman shall determine whether there are reasonable grounds for\nan investigation. Such investigation shall be conducted in a manner\nprescribed in regulations. The ombudsman or state ombudsman may\nimmediately refer to the appropriate investigatory agency information\nobtained during the investigation of a complaint which suggests the\npossible occurrence of physical abuse, mistreatment or neglect or\nMedicaid fraud, in accordance with and subject to any limitations\nidentified in the older Americans act of 1965, as amended and the\nregulations promulgated thereunder as well as rules and regulations\npromulgated by the state office for the aging; provided, however, that\nupon consent of the resident, the ombudsman or state ombudsman shall\nimmediately make such referral.\n 6. Record access. (a) An ombudsman and state ombudsman shall have\naccess to:\n (1) medical, social and other records relating to a resident, if:\n (A) the resident or resident representative communicates informed\nconsent to the access and the consent is given in writing or through the\nuse of auxiliary aids and services, provided that a guardian appointed\npursuant to article seventeen-A of the surrogate's court procedure act\nor article eighty-one of the mental hygiene law who has the authority\npursuant to court order to give such consent shall supersede any other\nresident representatives;\n (B) the resident or resident representative communicates informed\nconsent orally, visually, or through the use of auxiliary aids and\nservices, and such consent is documented contemporaneously by an\nombudsman in accordance with procedures established by the state\nombudsman, provided that a guardian appointed pursuant to article\nseventeen-A of the surrogate's court procedure act or article eighty-one\nof the mental hygiene law who has the authority pursuant to court order\nto give such consent shall supersede any other resident representatives;\nand\n (C) access is necessary in order to investigate a complaint, the\nresident representative refuses to consent to the access, an ombudsman\nhas reasonable cause to believe that the resident representative is not\nacting in the best interests of the resident, and the ombudsman obtains\nthe approval of the state ombudsman;\n (2) administrative records, policies, and documents, to which the\nresidents have or the general public has access, of long-term care\nfacilities;\n (3) all licensing and certification records maintained by the state\nwith respect to long-term care facilities and copies thereof upon\nrequest; and\n (4) a list of resident names and room numbers.\n (b) No ombudsman or state ombudsman shall disclose files, records, or\ninformation about a complaint, including identifying information of any\nresident or complainant unless:\n (1) the complainant or resident or his or her resident representative\ncommunicates informed consent to the ombudsman in writing, provided that\na guardian appointed pursuant to article seventeen-A of the surrogate's\ncourt procedure act or article eighty-one of the mental hygiene law who\nhas the authority pursuant to court order to give such consent shall\nsupersede any other resident representatives.\n (2) the complainant or resident or his or her resident representative\ncommunicates informed consent orally or visually, including through the\nuse of auxiliary aids and services, and such consent is documented\ncontemporaneously by an ombudsman or state ombudsman in accordance with\nthe procedures of the office of the state long-term care ombudsman,\nprovided that a guardian appointed pursuant to article seventeen-A of\nthe surrogate's court procedure act or article eighty-one of the mental\nhygiene law who has the authority pursuant to court order to give such\nconsent shall supersede any other resident representatives;\n (3) the disclosure is required pursuant to a court order; or\n (4) the resident is unable to communicate informed consent and does\nnot have a resident representative, or the state long-term care\nombudsman determines that the resident representative has taken an\naction, inaction or made a decision that may adversely affect the\nhealth, safety, welfare, or rights of the resident. In such cases,\ndisclosures may be made in accordance with criteria to be developed by\nthe state ombudsman.\n (c) all files, records, and other information of the long-term care\nombudsman program, including information maintained by local ombudsman\nentities pertaining to the cases and activities of the program are the\nproperty of the office of the state long-term care ombudsman. Such\nfiles, records, and information may be disclosed only at the discretion\nof the state ombudsman or designee of the state ombudsman for such\npurpose and in accordance with the criteria developed by the state\nombudsman.\n (d) No ombudsman or state ombudsman shall disclose to any person\noutside of the long-term care ombudsman program any information obtained\nfrom a resident's record without the approval of the state ombudsman or\nhis or her designee, in accordance with procedures for disclosure\nestablished by the state ombudsman.\n (e) No ombudsman or state ombudsman who directly or indirectly obtains\naccess to a resident's medical or personal records pursuant to section\ntwenty-eight hundred three-c of the public health law shall disclose to\nsuch resident or to any other person outside of the long-term care\nombudsman program the content of any such records to which such resident\nor other person had not previously had the right of access, provided\nthat this restriction shall not prevent such ombudsman from advising\nsuch resident of the status or progress of an investigation or complaint\nprocess initiated at the request of such resident or from referring such\ncomplaint, together with the relevant records, to appropriate\ninvestigatory agencies. Any person who intentionally violates the\nprovisions of this subdivision shall be guilty of a misdemeanor. Nothing\ncontained in this section shall be construed to limit or abridge any\nright of access to records, including financial records, otherwise\navailable to ombudsmen, residents, or any other person.\n (f) Notwithstanding any law to the contrary, any individual, when\nacting in his or her official capacity as an ombudsman, shall be exempt\nfrom the mandatory reporting of abuse, neglect, exploitation, or\nmaltreatment. However, an ombudsman may report abuse, neglect,\nexploitation, or maltreatment in accordance with the older Americans act\nof 1965, as amended and the regulations promulgated thereunder as well\nas rules and regulations promulgated by the state office for the aging;\nprovided, however, that upon consent of the resident, the ombudsman or\nstate ombudsman shall immediately make such referral.\n (g) Nothing in this section shall prohibit the disclosure by an\nombudsman, state ombudsman, or local ombudsman entity of non-identifying\naggregate data for monitoring or reporting purposes to the state office\nfor the aging or agency in which a local ombudsman entity is\norganizationally located.\n (h) Any information accessed pursuant to this subdivision by a\nlong-term care ombudsman or local ombudsman entity shall only be used\nfor the purposes of the long-term care ombudsman program. Any use of\nsuch information other than for the purposes of the long-term care\nombudsman program or purposes authorized under this section may\nconstitute grounds for the designation of such ombudsman or local\nombudsman entity to be removed.\n 7. Access to long-term care facilities. An ombudsman or state\nombudsman shall have authority to enter all long-term care facilities at\nany time during a facility's regular business hours or regular visiting\nhours, and at any other time when access may be required by the\ncircumstances to be investigated and shall have access to all residents\nand/or the resident representative to perform all functions and duties\nenumerated herein.\n 8. Noninterference. No long-term care facility shall:\n (a) refuse to permit an ombudsman or state ombudsman entry into such\nfacility or, interfere with, or refuse to cooperate with an ombudsman or\nstate ombudsman carrying out their mandated duties and responsibilities\nset forth in this section and any regulations promulgated pursuant\nthereto;\n (b) retaliate against an ombudsman or state ombudsman for carrying out\nhis or her mandated duties and responsibilities set forth in this\nsection and any regulations promulgated pursuant thereto;\n (c) refuse to permit residents or staff to communicate freely and\nprivately with an ombudsman; or\n (d) retaliate or discriminate against any resident, resident\nrepresentative, complainant, or staff member for filing a complaint\nwith, providing information to, or otherwise cooperating with any\nombudsman or state ombudsman. Any resident who has reason to believe\nthat he or she may have been discriminated or retaliated against in\nviolation of subdivision eight of this section may 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 9. Failure to cooperate. Any such facility that violates the\nprovisions of subdivision eight of this section shall be subject to the\nappropriate sanctions pursuant to section twenty-eight hundred three-c\nof the public health law, and accompanying regulations, if such facility\nis a residential healthcare facility or section four hundred sixty-d of\nthe social services law, and accompanying regulations, if such facility\nis an adult care facility.\n 10. Conflict of interest. The state office for the aging and the state\nombudsman shall consider both the organizational and individual\nconflicts of interest that may impact the effectiveness and credibility\nof the work of the office of the state long-term care ombudsman. In so\ndoing, both the state office for the aging and the state ombudsman shall\nbe responsible to identify actual and potential conflicts and, where a\nconflict has been identified, to remove or remedy such conflict as set\nforth in paragraphs (b) and (d) of this subdivision.\n (a) Identifying conflicts of interest. In identifying conflicts of\ninterest, the state office for the aging and the state ombudsman shall\nconsider the organizational conflicts that may impact the effectiveness\nand credibility of the work of the office of the state long-term care\nombudsman. Organizational conflicts of interest include, but are not\nlimited to, placement of the office of the state long-term care\nombudsman, or requiring that a state ombudsman or long-term care\nombudsman perform conflicting activities, in an organization that:\n (1) is responsible for licensing, surveying, or certifying long-term\ncare facilities;\n (2) is responsible for licensing, surveying, or certifying long-term\ncare services;\n (3) is an association (or an affiliate of such an association) of\nlong-term care facilities, or of any other residential facilities for\nolder individuals or individuals with disabilities;\n (4) has any ownership or investment interest (represented by equity,\ndebt, or other financial relationship) in, or receives grants or\ndonations from, a long-term care facility;\n (5) has governing board members with any ownership, investment, or\nemployment interest in long-term care facilities;\n (6) provides long-term care to residents of long-term care facilities,\nincluding the provision of personnel for long-term care facilities or\nthe operation of programs which control access to or services for\nlong-term care facilities;\n (7) provides long-term care services, including programs carried out\nunder a Medicaid waiver approved under section 1115 of the Social\nSecurity Act (42 U.S.C. 1315) or under subsection (b) or (c) of section\n1915 of the Social Security Act (42 U.S.C. 1396n), subsection (i), (j),\nor (k) of section 1915 of the Social Security Act (42 U.S.C. 1396n);\n (8) provides long-term care case management;\n (9) provides long-term care coordination or case management for\nresidents of long-term care facilities;\n (10) sets reimbursement rates for long-term care facilities;\n (11) sets reimbursement rates for long-term care services;\n (12) provides adult protective services;\n (13) is responsible for eligibility determinations regarding Medicaid\nor other public benefits for residents of long-term care facilities;\n (14) conducts preadmission screening for long-term care facility\nplacements;\n (15) makes decisions regarding admission or discharge of individuals\nto or from long-term care facilities; or\n (16) provides guardianship, conservatorship, or other fiduciary or\nsurrogate decision-making services for residents of long-term care\nfacilities.\n (b) Removing or remedying organizational conflicts. The state office\nfor the aging and the state ombudsman shall identify and take steps to\nremove or remedy conflicts of interest between the office of the state\nlong-term care ombudsman and the state office for the aging or other\nagency carrying out the state long-term care ombudsman program.\n (1) The state ombudsman shall identify organizational conflicts of\ninterest in the state long-term care ombudsman program and describe\nsteps taken to remove or remedy conflicts within the annual report\nsubmitted to the assistant secretary through the national ombudsman\nreporting system.\n (2) Where the office of the state long-term care ombudsman is located\nwithin or otherwise organizationally attached to the state office for\nthe aging, the office for the aging shall:\n (A) take reasonable steps to avoid internal conflicts of interest;\n (B) establish a process for review and identification of internal\nconflicts;\n (C) take steps to remove or remedy conflicts;\n (D) ensure that no individual, or member of the immediate family of an\nindividual, involved in the designating, appointing, otherwise selecting\nor terminating the state ombudsman is subject to a conflict of interest;\nand\n (E) assure that the state ombudsman has disclosed such conflicts and\ndescribed steps taken to remove or remedy conflicts within the annual\nreport submitted to the assistant secretary through the national\nombudsman reporting system.\n (3) Where the state office for the aging is unable to adequately\nremove or remedy a conflict, it shall carry out the state long-term care\nombudsman program by contract or other arrangement with a public agency\nor nonprofit private organization. The state office for the aging may\nnot enter into a contract or other arrangement to carry out the state\nlong-term care ombudsman program if the other entity, and may not\noperate the office of the state long-term care ombudsman directly if it:\n (A) is responsible for licensing, surveying, or certifying long-term\ncare facilities;\n (B) is an association (or an affiliate of such an association) of\nlong-term care facilities, or of any other residential facilities for\nolder individuals or individuals with disabilities; or\n (C) has any ownership, operational, or investment interest\n(represented by equity, debt, or other financial relationship) in a\nlong-term care facility.\n (4) Where the state office for the aging carries out the state\nlong-term care ombudsman program by contract or other arrangement with a\npublic agency or nonprofit private organization, the state office for\nthe aging shall:\n (A) prior to contracting or making another arrangement, take\nreasonable steps to avoid conflicts of interest in such agency or\norganization which is to carry out the state long-term care ombudsman\nprogram and to avoid conflicts of interest in the state office for the\naging oversight of the contract or arrangement;\n (B) establish a process for periodic review and identification of\nconflicts;\n (C) establish criteria for approval of steps taken by the agency or\norganization to remedy or remove conflicts;\n (D) require that such agency or organization have a process in place\nto:\n (i) take reasonable steps to avoid conflicts of interest, and\n (ii) disclose identified conflicts and steps taken to remove or remedy\nconflicts to the state office for the aging for review and approval.\n (5) Where an agency or organization carrying out the state long-term\ncare ombudsman program by contract or other arrangement develops a\nconflict and is unable to adequately remove or remedy a conflict, the\nstate office for the aging shall either operate the state long-term care\nombudsman program directly or by contract or other arrangement with\nanother public agency or nonprofit private organization. The state\noffice for the aging shall not enter into such contract or other\narrangement with an agency or organization which is responsible for\nlicensing or certifying long-term care facilities in the state or is an\nassociation (or affiliate of such an association) of long-term care\nfacilities.\n (6) Where local ombudsman entities provide ombudsman services, the\nstate ombudsman shall:\n (A) prior to designating or renewing designation, take reasonable\nsteps to avoid conflicts of interest in any agency which may host a\nlocal ombudsman entity,\n (B) establish a process for periodic review and identification of\nconflicts of interest with the local ombudsman entity in any agencies\nhosting a local ombudsman entity,\n (C) require that such agencies disclose identified conflicts of\ninterest with the local ombudsman entity and steps taken to remove or\nremedy conflicts within such agency to the state ombudsman,\n (D) establish criteria for approval of steps taken to remedy or remove\nconflicts in such agencies, and\n (E) establish a process for review of and criteria for approval of\nplans to remove or remedy conflicts with the local ombudsman entity in\nsuch agencies.\n (7) Failure of an agency hosting a local ombudsman entity to disclose\na conflict to the office of the state long-term care ombudsman or\ninability to adequately remove or remedy a conflict shall constitute\ngrounds for refusal, suspension, or removal of designation of the local\nombudsman entity by the state ombudsman.\n (c) Identifying individual conflicts of interest. (1) In identifying\nconflicts of interest, the state office for the aging and the state\nombudsman shall consider individual conflicts that may impact the\neffectiveness and credibility of the work of the office of the state\nlong-term care ombudsman or local long-term care ombudsman program.\n (2) Individual conflicts of interest for the state ombudsman,\nlong-term care ombudsmen, and members of their immediate family include,\nbut are not limited to:\n (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 (B) ownership, operational, or investment interest (represented by\nequity, debt, or other financial relationship) in an existing or\nproposed long-term care facility or a long-term care service;\n (C) employment of an individual by, or participation in the management\nof, a long-term care facility in the service area or by the owner or\noperator of any long-term care facility in the service area;\n (D) receipt of, or right to receive, directly or indirectly,\nremuneration (in cash or in kind) under a compensation arrangement with\nan owner or operator of a long-term care facility;\n (E) accepting gifts or gratuities of significant value from a\nlong-term care facility or its management, a resident or a resident\nrepresentative of a long-term care facility in which the state ombudsman\nor long-term care ombudsman provide services (except where there is a\npersonal relationship with a resident or resident representative which\nis separate from the individual's role as state ombudsman or long-term\ncare ombudsman);\n (F) accepting money or any other consideration from anyone other than\nthe office of the state long-term care ombudsman, or an entity approved\nby the state ombudsman, for the performance of an act in the regular\ncourse of the duties of the state ombudsman or long-term care ombudsman\nwithout state ombudsman approval;\n (G) serving as guardian, conservator, or in another fiduciary or\nsurrogate decision-making capacity for a resident of a long-term care\nfacility in which the state ombudsman or long-term care ombudsman\nprovides services; and\n (H) serving residents of a facility in which an immediate family\nmember resides.\n (d) Removing or remedying individual conflicts. (1) The state office\nfor the aging or state ombudsman shall develop and implement policies\nand procedures to ensure that no state ombudsman or long-term care\nombudsman are required or permitted to hold positions or perform duties\nthat would constitute a conflict of interest as set forth in paragraph\n(c) of this subdivision. This rule does not prohibit the state office\nfor the aging or state ombudsman from having policies or procedures that\nexceed these requirements.\n (2) When considering the employment, appointment, or designation of an\nindividual as the state ombudsman or as a long-term care ombudsman, the\nstate office for the aging or other employing or appointing entity\nshall:\n (A) take reasonable steps to avoid employing, appointing, or\ndesignating an individual who has an unremedied conflict of interest or\nwho has a member of the immediate family with an unremedied conflict of\ninterest;\n (B) take reasonable steps to avoid assigning an individual to perform\nduties which would constitute an unremedied conflict of interest;\n (C) establish a process for periodic review and identification of\nconflicts of state ombudsman and long-term care ombudsmen; and\n (D) take steps to remove or remedy conflicts.\n (3) In no circumstance shall the entity which appoints, employs, or\ndesignates the state ombudsman appoint, employ, or designate an\nindividual as the state ombudsman who:\n (A) has direct involvement in the licensing or certification of a\nlong-term care facility;\n (B) has an ownership or investment interest (represented by equity,\ndebt, or other financial relationship) in a long-term care facility.\nDivestment within a reasonable period may be considered an adequate\nremedy to this conflict;\n (C) has been employed by or participating in the management of a\nlong-term care facility within the previous twelve months; or\n (D) receives, or has the right to receive, directly or indirectly,\nremuneration (in cash or in kind) under a compensation arrangement with\nan owner or operator of a long-term care facility.\n (4) In no circumstance shall the state office for the aging or an\nagency hosting a local ombudsman entity appoint, employ, or designate an\nindividual, nor shall the state ombudsman designate an individual, as a\nlong-term care ombudsman who:\n (A) has direct involvement in the licensing or certification of a\nlong-term care facility;\n (B) has an ownership or investment interest (represented by equity,\ndebt, or other financial relationship) in a long-term care facility.\nDivestment within a reasonable period may be considered an adequate\nremedy to this conflict;\n (C) receives, directly or indirectly, remuneration (in cash or in\nkind) under a compensation arrangement with an owner or operator of a\nlong-term care facility; or\n (D) is employed by, or participating in the management of, a long-term\ncare facility.\n (i) An agency which appoints or employs long-term care ombudsmen shall\nmake efforts to avoid appointing, employing, or designating an\nindividual as a long-term care ombudsman who has been employed by or\nparticipating in the management of a long-term care facility within the\nprevious twelve months.\n (ii) Where such individual is appointed, employed, or designated, the\nagency shall take steps to remedy the conflict.\n 11. Civil immunity. Notwithstanding any other provision of law,\nombudsmen designated under this section shall be included within the\ndefinition of employee as set forth in section seventeen of the public\nofficers law and shall be defended and indemnified in accordance with\nthe provisions of article two of such law.\n 12. Grievance process. In addition to the provisions listed in this\nsection, the state ombudsman shall recommend policies and procedures for\nthe receipt and review of grievances regarding determinations or actions\nof the state ombudsman or ombudsmen to the director of the state office\nfor the aging.\n 13. Regulations. The director of the state office for the aging, in\nconsultation with the state ombudsman, is authorized to promulgate\nregulations to implement the provisions of this section.\n 14. 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 federal administration on aging, speaker\nof the assembly, temporary president of the senate, director of the\nstate office for the aging, commissioner of the department of health,\nand the commissioner of children and family services a report and make\nsuch report 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, including an\nexamination of any recurring complaints to determine if there are\nsystemic issues in such facilities;\n (c) evaluating the problems experienced by, and the complaints made by\nor on behalf of, residents;\n (d) containing recommendations for appropriate state legislation,\nrules and regulations and other action based on data collected pursuant\nto this section, concerns raised by residents and families of residents,\nand observations made when visiting long-term care facilities, to\nimprove the quality of the care and life of the residents, protecting\nthe health, safety and welfare and rights of the residents and resolving\nresident complaints and identified problems or barriers;\n (e) containing an analysis of the success of the long-term care\nombudsman program, including success in providing services to residents;\n (f) describing barriers that prevent the optimal operation of the\nombudsman program;\n (g) describing any organizational conflicts of interest in the\nombudsman program that have been identified and the steps taken to\nremove or remedy such conflicts;\n (h) containing all complaints received by the state ombudsman relating\nto long-term care facilities including but not limited to complaints\nthat suggest the possible occurrence of physical abuse, mistreatment,\nneglect or Medicaid fraud, listed by type of complaint, facility name\nand by region;\n (i) containing the number of visits to each long-term care facility,\nlisted by facility name and by region, and names of long-term care\nfacilities that did not receive any visits in the prior year; and\n (j) any other matters as the state ombudsman, in consultation with the\ndirector of the state office for the aging, determines to be\nappropriate.\n 15. Outreach and awareness program. The state long-term care ombudsman\nshall facilitate and coordinate the planning and implementation of an\noutreach and awareness program to advertise and promote the long-term\ncare ombudsman program and to recruit additional ombudsmen. Such program\nshall utilize educational and informational materials including, but not\nlimited to, media advertising, billboards, social media and the official\nwebsite of the long-term care ombudsman program.\n