N.Y. Elder Law § 218: Long-term care ombudsman

§ 218. Long-term care ombudsman. 1. Definitions. For the purposes of

this section, the following terms shall have the following meanings:

(a) "Administrative action" shall mean any action or decision by an

owner, employee, or agent of a long-term care facility, or by a

government agency, which affects the provision of service to residents

of or applicants for admission to long-term care facilities.

(b) "Immediate family" pertaining to conflicts of interest, shall mean

a member of the household or a relative with whom there is a close

personal or significant financial relationship.

(c) "Local ombudsman entity" shall mean any entity designated to

operate a local long-term care ombudsman program.

* (d) "Long-term care facilities" shall mean residential health care

facilities as defined in subdivision three of section twenty-eight

hundred one of the public health law; adult care facilities as defined

in subdivision twenty-one of section two of the social services law,

including those adult homes and enriched housing programs licensed as

assisted living residences, pursuant to article forty-six-B of the

public health law; or any facilities which hold themselves out or

advertise themselves as providing assisted living services and which are

required to be licensed or certified under the social services law or

the public health law. Within the amounts appropriated therefor,

"long-term care facilities" shall also mean managed long-term care plans

and approved managed long-term care or operating demonstrations as

defined in section forty-four hundred three-f of the public health law

and the term "resident", "residents", "patient" and "patients" shall

also include enrollees of such plans.

* NB Effective until December 31, 2027

* (d) "Long-term care facilities" shall mean residential health care

facilities as defined in subdivision three of section twenty-eight

hundred one of the public health law, adult care facilities as defined

in subdivision twenty-one of section two of the social services law, and

assisted living residences, as defined in article forty-six-B of the

public health law, or any facilities which hold themselves out or

advertise themselves as providing assisted living services and which are

required to be licensed or certified under the social services law or

the public health law.

* NB Effective December 31, 2027

(e) "Long-term care ombudsman" or "ombudsman" shall mean a person who:

(1) is an employee or volunteer of the state office for the aging or

of a designated local ombudsman entity and represents the state

long-term care ombudsman program;

(2) has been verified as having successfully completing a

certification training program developed by the state ombudsman; and

(3) has a current designation as a long-term care ombudsman by the

state long-term care ombudsman.

(f) "Resident representative" shall mean either of the following:

(1) an individual chosen by the resident to act on behalf of the

resident in order to support the resident in decision-making; access

medical, social, or other personal information of the resident; manage

financial matters; or receive notifications;

(2) a person authorized by state or federal law (including but not

limited to agents under power of attorney, representative payees, and

other fiduciaries) to act on behalf of the resident in order to support

the resident in decision-making; access medical, social, or other

personal information of the resident; manage financial matters; or

receive notifications;

(3) a legal representative, as used in section 712 of the older

Americans act of 1965, as amended; or

(4) the court-appointed guardian or conservator of the resident.

(5) Nothing in this section is intended to expand the scope of

authority of any resident representative beyond that authority

specifically authorized by the resident, state or federal law, or a

court of competent jurisdiction.

(g) "State long-term care ombudsman" or "state ombudsman" shall mean

the individual who heads the office of the state long-term care

ombudsman and is responsible to personally, or through representatives

of the office of the state long-term care ombudsman, fulfill the

functions, responsibilities and duties of the office of the state

long-term care ombudsman.

(h) "Willful interference" shall mean actions or inactions taken by an

individual in an attempt to intentionally prevent, interfere with, or

attempt to impede an ombudsman from performing any of the functions or

responsibilities of the office of the state long-term care ombudsman.

2. Office of the state long-term care ombudsman established. (a) There

is hereby established within the state office for the aging an office of

the state long-term care ombudsman which shall be headed by the state

long-term care ombudsman, who shall carry out, directly and/or through

local ombudsman entities, the duties set forth in this section.

(b) The office of the state long-term care ombudsman is a distinct

entity, separately identifiable, and located within the state office for

the aging.

(c) The state office for the aging shall provide the long-term care

ombudsman program with legal counsel that is adequate, available, has

competencies relevant to the legal needs of the program, and is without

conflict of interest as determined by the state office for the aging in

consultation with the state long-term care ombudsman.

(d) The state office for the aging shall not establish personnel

policies or practices which prohibit the ombudsman from performing the

functions and responsibilities of the ombudsman, as set forth in this

section.

(e) Nothing in this section shall prohibit the state office for the

aging from requiring that the state ombudsman, or other employees of the

office of the state long-term care ombudsman, adhere to the personnel

policies and procedures of the state office for the aging.

3. State long-term care ombudsman. (a) The director of the state

office for the aging shall appoint a full-time state long-term care

ombudsman to administer and supervise the office of the state long-term

care ombudsman.

(b) The state ombudsman shall be selected from among individuals with

expertise and experience in long-term care and advocacy, long-term

services and supports or other direct services for older persons or

individuals with disabilities, consumer-oriented public policy advocacy,

leadership and program management skills, negotiation and problem

resolution skills, and with other qualifications determined by the

director of the state office for the aging to be appropriate for the

position.

(c) Any actual and potential conflicts of interest shall be identified

and addressed in accordance with subdivision ten of this section.

(d) The state ombudsman, personally or through authorized

representatives shall:

(1) identify, investigate and resolve complaints that are made by, or

on behalf of, long-term care residents in this state and that relate to

actions, inactions or decisions that may adversely affect the health,

safety and welfare or rights of such residents; the state ombudsman may

refer to the appropriate investigatory agency information obtained

during the investigation of a complaint which suggests the possible

occurrence of physical abuse, mistreatment or neglect or Medicaid fraud,

in accordance with the older Americans act of 1965, as amended and the

regulations promulgated thereunder as well as rules and regulations

promulgated by the state office for the aging; provided, however, that

upon consent of the resident, the ombudsman or state ombudsman shall

immediately make such referral. Nothing in this section shall be

construed as authorizing the state ombudsman to impose a resolution

unacceptable to either party involved in a complaint or to assume powers

delegated to the commissioner of health or the department of health

pursuant to article twenty-eight of the public health law or to the

commissioner of the office of children and family services or the office

of children and family services pursuant to the social services law; nor

does it authorize the state ombudsman to investigate final

administrative determinations made pursuant to law by such commissioners

if such decisions become the subject of complaints to the state

ombudsman;

(2) provide services to assist residents in protecting their health,

safety, welfare and rights, including but not limited to representing

the interests of residents before governmental agencies and seeking

appropriate administrative, legal and other remedies to protect their

welfare, safety, health and rights;

(3) inform the residents about means of obtaining services provided by

the long-term care ombudsman program and other public agencies;

(4) analyze, comment on, and monitor the development and

implementation of federal, state and local laws, regulations, policies

and actions that pertain to the health, safety, welfare, and rights of

the residents of long-term care facilities and services in the state;

(5) ensure that residents have regular and timely access to the

services provided through the long-term care ombudsman program and that

residents and complainants receive timely responses to requests for

information and complaints;

(6) recommend changes in federal, state and local laws, regulations,

policies, and actions pertaining to the health, safety, welfare, and

rights of residents;

(7) develop a certification training program and continuing education

for ombudsmen which at a minimum shall specify the minimum hours of

training, the annual number of hours of in-service training, and the

content of the training, including, but not limited to, training

relating to cultural competency and diversity, federal, state, and local

laws, regulations, and policies with respect to long-term care

facilities in the state, investigative and resolution techniques, and

such other training-related matters as the state ombudsman determines to

be appropriate;

(8) provide administrative and technical assistance to long-term care

ombudsmen and local ombudsman entities;

(9) make determinations and establish positions of the office of the

state long-term care ombudsman, without necessarily representing the

determinations or positions of the state office for the aging;

(10) recommend to the director of the state office for the aging

policies and procedures for the state long-term care ombudsman program;

(11) coordinate with and promote the development of citizen

organizations consistent with the interests of residents;

(12) promote, provide technical support for the development of, and

provide ongoing support as requested by resident and family councils to

protect the well-being and rights of residents;

(13) provide leadership to statewide systems advocacy efforts of the

office of the state long-term care ombudsman on behalf of long-term care

facility residents, including coordination of systems advocacy efforts

carried out by representatives of the office of the state long-term care

ombudsman;

(14) in accordance with applicable state contracting procedures,

coordinate with the state office for the aging in the review and

approval of plans or contracts governing local ombudsman entity

operations;

(15) carry out such other activities as the director of the state

office for the aging determines to be appropriate pursuant to the

federal older Americans act of 1965 and other applicable federal and

state laws and related regulations as may, from time to time, be

amended; and

(16) in accordance with the regulations promulgated under this section

provide the director of the state office for the aging with notice prior

to performing the activities identified in paragraphs four, six and nine

of this subdivision. Such notice shall not give the director of the

state office for the aging or any other state official the right to

pre-approve the position or communications of the state ombudsman.

(e) The state ombudsman, with the approval of the director of the

state office for the aging, may appoint one or more assistant state

long-term care ombudsmen to assist the state ombudsman in the

performance of his or her duties under this section. Such assistant

state ombudsmen must be verified as having completed a certification

training program developed by the state ombudsman within six (6) months

of their appointment as assistant state ombudsmen.

(f)(1) The state ombudsman shall only appoint as ombudsmen individuals

who have been verified as completing the certification training program

developed by the state ombudsman. In addition, the state long-term care

ombudsman may refuse, suspend, or remove such appointments of ombudsmen.

(2) The state ombudsman shall develop a grievance process to offer an

opportunity for reconsideration of any decision to refuse, suspend, or

remove appointment of any ombudsman. Notwithstanding the grievance

process, the state ombudsman shall make the final determination to

designate or to refuse, suspend, or remove appointment of an ombudsman.

(g) Any actual and potential conflicts of interest shall be identified

and addressed in accordance with subdivision ten of this section.

* (h) Within the amounts appropriated therefor, the state long-term

care ombudsman program shall include services specifically designed to

serve persons enrolled in managed long-term care plans or approved

managed long-term care or operating demonstrations authorized under

section forty-four hundred three-f of the public health law, and shall

also review and respond to complaints relating to marketing practices by

such plans and demonstrations.

* NB Repealed December 31, 2025

4. Local long-term care ombudsman program. (a) The state ombudsman, in

accordance with applicable state contracting procedures, may designate

an entity to operate a local long-term care ombudsman program for one or

more counties, and shall monitor the performance of such entity. If the

state office for the aging is aware or becomes aware of any evidence

that the designation of an entity to operate a long-term care ombudsman

program by the state long-term care ombudsman would result in legal

concerns or liability for the state office for the aging or office of

the state long-term care ombudsman, the state ombudsman will comply with

the state office for the aging's determination that such designation

should not be made.

(b) The designated entity shall be an area agency on aging, a public

agency or a private not-for-profit corporation which is free from any

conflict of interest that cannot be remedied. Any actual and potential

conflicts of interest shall be identified and addressed in accordance

with subdivision ten of this section.

(c)(1) Each local long-term care ombudsman program shall be directed

by a qualified individual who is employed and paid by the local entity

and who shall have the duties and responsibilities as provided in

regulations, consistent with the provisions of this section and of Title

VII of the federal older Americans act of 1965, as amended. In addition,

upon designation, the entity is responsible for providing for adequate

and qualified staff, which may include trained volunteers to perform the

functions of the local long-term care ombudsman program.

(2) No local program staff, including the supervisor and any

volunteers, shall perform or carry out the activities on behalf of the

state long-term care ombudsman program unless such staff has been

verified as completing the training program developed by the state

ombudsman and has been approved by the state ombudsman as qualified to

carry out the activities on behalf of the local program.

(d) When the state ombudsman determines that a local long-term care

ombudsman program does not meet the standards set forth in this section

and in any related regulations, the state ombudsman, in coordination

with the state office for the aging, may refuse, suspend, or remove the

designation of the local ombudsmen entity. Prior to taking such action,

the state ombudsman shall send to the affected local program a notice of

the state ombudsman's intentions to refuse, suspend, or remove the

designation; provided, however, if the state office for the aging is

aware or becomes aware of evidence that the designation or continued

designation of an entity to operate a long-term care ombudsman program

would result in legal concerns or liability for the state office for the

aging or the office of the state long-term care ombudsman, the state

ombudsman will comply with the state office for the aging's

determination that such designation should not be made or that such

designation be refused, suspended, or removed.

(e) The state ombudsman shall develop a grievance process to offer an

opportunity for reconsideration of any decision to refuse, suspend, or

remove the designation of a local ombudsman entity. Notwithstanding the

grievance process, the state ombudsman shall make the final

determination to designate or to refuse, suspend, or remove the

designation of a local ombudsman entity; provided, however, if the state

office for the aging is aware or becomes aware of any evidence that the

designation of an entity to operate a long-term care ombudsman program

by the state long-term care ombudsman or that the failure of the state

ombudsman to refuse, suspend, or remove the designation of a local

ombudsman entity would result in legal concerns or liability for the

state office for the aging or the office of the state long-term care

ombudsman, the state ombudsman will comply with the state office for the

aging's determination that such designation should not be made or that

such designation be refused, suspended, or removed.

5. Review of complaint. Upon receipt of a complaint, the ombudsman or

state ombudsman shall determine whether there are reasonable grounds for

an investigation. Such investigation shall be conducted in a manner

prescribed in regulations. The ombudsman or state ombudsman may

immediately refer to the appropriate investigatory agency information

obtained during the investigation of a complaint which suggests the

possible occurrence of physical abuse, mistreatment or neglect or

Medicaid fraud, in accordance with and subject to any limitations

identified in the older Americans act of 1965, as amended and the

regulations promulgated thereunder as well as rules and regulations

promulgated by the state office for the aging; provided, however, that

upon consent of the resident, the ombudsman or state ombudsman shall

immediately make such referral.

6. Record access. (a) An ombudsman and state ombudsman shall have

access to:

(1) medical, social and other records relating to a resident, if:

(A) the resident or resident representative communicates informed

consent to the access and the consent is given in writing or through the

use of auxiliary aids and services, provided that a guardian appointed

pursuant to article seventeen-A of the surrogate's court procedure act

or article eighty-one of the mental hygiene law who has the authority

pursuant to court order to give such consent shall supersede any other

resident representatives;

(B) the resident or resident representative communicates informed

consent orally, visually, or through the use of auxiliary aids and

services, and such consent is documented contemporaneously by an

ombudsman in accordance with procedures established by the state

ombudsman, provided that a guardian appointed pursuant to article

seventeen-A of the surrogate's court procedure act or article eighty-one

of the mental hygiene law who has the authority pursuant to court order

to give such consent shall supersede any other resident representatives;

and

(C) access is necessary in order to investigate a complaint, the

resident representative refuses to consent to the access, an ombudsman

has reasonable cause to believe that the resident representative is not

acting in the best interests of the resident, and the ombudsman obtains

the approval of the state ombudsman;

(2) administrative records, policies, and documents, to which the

residents have or the general public has access, of long-term care

facilities;

(3) all licensing and certification records maintained by the state

with respect to long-term care facilities and copies thereof upon

request; and

(4) a list of resident names and room numbers.

(b) No ombudsman or state ombudsman shall disclose files, records, or

information about a complaint, including identifying information of any

resident or complainant unless:

(1) the complainant or resident or his or her resident representative

communicates informed consent to the ombudsman in writing, provided that

a guardian appointed pursuant to article seventeen-A of the surrogate's

court procedure act or article eighty-one of the mental hygiene law who

has the authority pursuant to court order to give such consent shall

supersede any other resident representatives.

(2) the complainant or resident or his or her resident representative

communicates informed consent orally or visually, including through the

use of auxiliary aids and services, and such consent is documented

contemporaneously by an ombudsman or state ombudsman in accordance with

the procedures of the office of the state long-term care ombudsman,

provided that a guardian appointed pursuant to article seventeen-A of

the surrogate's court procedure act or article eighty-one of the mental

hygiene law who has the authority pursuant to court order to give such

consent shall supersede any other resident representatives;

(3) the disclosure is required pursuant to a court order; or

(4) the resident is unable to communicate informed consent and does

not have a resident representative, or the state long-term care

ombudsman determines that the resident representative has taken an

action, inaction or made a decision that may adversely affect the

health, safety, welfare, or rights of the resident. In such cases,

disclosures may be made in accordance with criteria to be developed by

the state ombudsman.

(c) all files, records, and other information of the long-term care

ombudsman program, including information maintained by local ombudsman

entities pertaining to the cases and activities of the program are the

property of the office of the state long-term care ombudsman. Such

files, records, and information may be disclosed only at the discretion

of the state ombudsman or designee of the state ombudsman for such

purpose and in accordance with the criteria developed by the state

ombudsman.

(d) No ombudsman or state ombudsman shall disclose to any person

outside of the long-term care ombudsman program any information obtained

from a resident's record without the approval of the state ombudsman or

his or her designee, in accordance with procedures for disclosure

established by the state ombudsman.

(e) No ombudsman or state ombudsman who directly or indirectly obtains

access to a resident's medical or personal records pursuant to section

twenty-eight hundred three-c of the public health law shall disclose to

such resident or to any other person outside of the long-term care

ombudsman program the content of any such records to which such resident

or other person had not previously had the right of access, provided

that this restriction shall not prevent such ombudsman from advising

such resident of the status or progress of an investigation or complaint

process initiated at the request of such resident or from referring such

complaint, together with the relevant records, to appropriate

investigatory agencies. Any person who intentionally violates the

provisions of this subdivision shall be guilty of a misdemeanor. Nothing

contained in this section shall be construed to limit or abridge any

right of access to records, including financial records, otherwise

available to ombudsmen, residents, or any other person.

(f) Notwithstanding any law to the contrary, any individual, when

acting in his or her official capacity as an ombudsman, shall be exempt

from the mandatory reporting of abuse, neglect, exploitation, or

maltreatment. However, an ombudsman may report abuse, neglect,

exploitation, or maltreatment in accordance with the older Americans act

of 1965, as amended and the regulations promulgated thereunder as well

as rules and regulations promulgated by the state office for the aging;

provided, however, that upon consent of the resident, the ombudsman or

state ombudsman shall immediately make such referral.

(g) Nothing in this section shall prohibit the disclosure by an

ombudsman, state ombudsman, or local ombudsman entity of non-identifying

aggregate data for monitoring or reporting purposes to the state office

for the aging or agency in which a local ombudsman entity is

organizationally located.

(h) Any information accessed pursuant to this subdivision by a

long-term care ombudsman or local ombudsman entity shall only be used

for the purposes of the long-term care ombudsman program. Any use of

such information other than for the purposes of the long-term care

ombudsman program or purposes authorized under this section may

constitute grounds for the designation of such ombudsman or local

ombudsman entity to be removed.

7. Access to long-term care facilities. An ombudsman or state

ombudsman shall have authority to enter all long-term care facilities at

any time during a facility's regular business hours or regular visiting

hours, and at any other time when access may be required by the

circumstances to be investigated and shall have access to all residents

and/or the resident representative to perform all functions and duties

enumerated herein.

8. Noninterference. No long-term care facility shall:

(a) refuse to permit an ombudsman or state ombudsman entry into such

facility or, interfere with, or refuse to cooperate with an ombudsman or

state ombudsman carrying out their mandated duties and responsibilities

set forth in this section and any regulations promulgated pursuant

thereto;

(b) retaliate against an ombudsman or state ombudsman for carrying out

his or her mandated duties and responsibilities set forth in this

section and any regulations promulgated pursuant thereto;

(c) refuse to permit residents or staff to communicate freely and

privately with an ombudsman; or

(d) retaliate or discriminate against any resident, resident

representative, complainant, or staff member for filing a complaint

with, providing information to, or otherwise cooperating with any

ombudsman or state ombudsman. Any resident who has reason to believe

that he or she may have been discriminated or retaliated against in

violation of subdivision eight of this section may file a complaint with

the commissioner of health pursuant to subdivision ten of section

twenty-eight hundred one-d of the public health law.

9. Failure to cooperate. Any such facility that violates the

provisions of subdivision eight of this section shall be subject to the

appropriate sanctions pursuant to section twenty-eight hundred three-c

of the public health law, and accompanying regulations, if such facility

is a residential healthcare facility or section four hundred sixty-d of

the social services law, and accompanying regulations, if such facility

is an adult care facility.

10. Conflict of interest. The state office for the aging and the state

ombudsman shall consider both the organizational and individual

conflicts of interest that may impact the effectiveness and credibility

of the work of the office of the state long-term care ombudsman. In so

doing, both the state office for the aging and the state ombudsman shall

be responsible to identify actual and potential conflicts and, where a

conflict has been identified, to remove or remedy such conflict as set

forth in paragraphs (b) and (d) of this subdivision.

(a) Identifying conflicts of interest. In identifying conflicts of

interest, the state office for the aging and the state ombudsman shall

consider the organizational conflicts that may impact the effectiveness

and credibility of the work of the office of the state long-term care

ombudsman. Organizational conflicts of interest include, but are not

limited to, placement of the office of the state long-term care

ombudsman, or requiring that a state ombudsman or long-term care

ombudsman perform conflicting activities, in an organization that:

(1) is responsible for licensing, surveying, or certifying long-term

care facilities;

(2) is responsible for licensing, surveying, or certifying long-term

care services;

(3) is an association (or an affiliate of such an association) of

long-term care facilities, or of any other residential facilities for

older individuals or individuals with disabilities;

(4) has any ownership or investment interest (represented by equity,

debt, or other financial relationship) in, or receives grants or

donations from, a long-term care facility;

(5) has governing board members with any ownership, investment, or

employment interest in long-term care facilities;

(6) provides long-term care to residents of long-term care facilities,

including the provision of personnel for long-term care facilities or

the operation of programs which control access to or services for

long-term care facilities;

(7) provides long-term care services, including programs carried out

under a Medicaid waiver approved under section 1115 of the Social

Security Act (42 U.S.C. 1315) or under subsection (b) or (c) of section

1915 of the Social Security Act (42 U.S.C. 1396n), subsection (i), (j),

or (k) of section 1915 of the Social Security Act (42 U.S.C. 1396n);

(8) provides long-term care case management;

(9) provides long-term care coordination or case management for

residents of long-term care facilities;

(10) sets reimbursement rates for long-term care facilities;

(11) sets reimbursement rates for long-term care services;

(12) provides adult protective services;

(13) is responsible for eligibility determinations regarding Medicaid

or other public benefits for residents of long-term care facilities;

(14) conducts preadmission screening for long-term care facility

placements;

(15) makes decisions regarding admission or discharge of individuals

to or from long-term care facilities; or

(16) provides guardianship, conservatorship, or other fiduciary or

surrogate decision-making services for residents of long-term care

facilities.

(b) Removing or remedying organizational conflicts. The state office

for the aging and the state ombudsman shall identify and take steps to

remove or remedy conflicts of interest between the office of the state

long-term care ombudsman and the state office for the aging or other

agency carrying out the state long-term care ombudsman program.

(1) The state ombudsman shall identify organizational conflicts of

interest in the state long-term care ombudsman program and describe

steps taken to remove or remedy conflicts within the annual report

submitted to the assistant secretary through the national ombudsman

reporting system.

(2) Where the office of the state long-term care ombudsman is located

within or otherwise organizationally attached to the state office for

the aging, the office for the aging shall:

(A) take reasonable steps to avoid internal conflicts of interest;

(B) establish a process for review and identification of internal

conflicts;

(C) take steps to remove or remedy conflicts;

(D) ensure that no individual, or member of the immediate family of an

individual, involved in the designating, appointing, otherwise selecting

or terminating the state ombudsman is subject to a conflict of interest;

and

(E) assure that the state ombudsman has disclosed such conflicts and

described steps taken to remove or remedy conflicts within the annual

report submitted to the assistant secretary through the national

ombudsman reporting system.

(3) Where the state office for the aging is unable to adequately

remove or remedy a conflict, it shall carry out the state long-term care

ombudsman program by contract or other arrangement with a public agency

or nonprofit private organization. The state office for the aging may

not enter into a contract or other arrangement to carry out the state

long-term care ombudsman program if the other entity, and may not

operate the office of the state long-term care ombudsman directly if it:

(A) is responsible for licensing, surveying, or certifying long-term

care facilities;

(B) is an association (or an affiliate of such an association) of

long-term care facilities, or of any other residential facilities for

older individuals or individuals with disabilities; or

(C) has any ownership, operational, or investment interest

(represented by equity, debt, or other financial relationship) in a

long-term care facility.

(4) Where the state office for the aging carries out the state

long-term care ombudsman program by contract or other arrangement with a

public agency or nonprofit private organization, the state office for

the aging shall:

(A) prior to contracting or making another arrangement, take

reasonable steps to avoid conflicts of interest in such agency or

organization which is to carry out the state long-term care ombudsman

program and to avoid conflicts of interest in the state office for the

aging oversight of the contract or arrangement;

(B) establish a process for periodic review and identification of

conflicts;

(C) establish criteria for approval of steps taken by the agency or

organization to remedy or remove conflicts;

(D) require that such agency or organization have a process in place

to:

(i) take reasonable steps to avoid conflicts of interest, and

(ii) disclose identified conflicts and steps taken to remove or remedy

conflicts to the state office for the aging for review and approval.

(5) Where an agency or organization carrying out the state long-term

care ombudsman program by contract or other arrangement develops a

conflict and is unable to adequately remove or remedy a conflict, the

state office for the aging shall either operate the state long-term care

ombudsman program directly or by contract or other arrangement with

another public agency or nonprofit private organization. The state

office for the aging shall not enter into such contract or other

arrangement with an agency or organization which is responsible for

licensing or certifying long-term care facilities in the state or is an

association (or affiliate of such an association) of long-term care

facilities.

(6) Where local ombudsman entities provide ombudsman services, the

state ombudsman shall:

(A) prior to designating or renewing designation, take reasonable

steps to avoid conflicts of interest in any agency which may host a

local ombudsman entity,

(B) establish a process for periodic review and identification of

conflicts of interest with the local ombudsman entity in any agencies

hosting a local ombudsman entity,

(C) require that such agencies disclose identified conflicts of

interest with the local ombudsman entity and steps taken to remove or

remedy conflicts within such agency to the state ombudsman,

(D) establish criteria for approval of steps taken to remedy or remove

conflicts in such agencies, and

(E) establish a process for review of and criteria for approval of

plans to remove or remedy conflicts with the local ombudsman entity in

such agencies.

(7) Failure of an agency hosting a local ombudsman entity to disclose

a conflict to the office of the state long-term care ombudsman or

inability to adequately remove or remedy a conflict shall constitute

grounds for refusal, suspension, or removal of designation of the local

ombudsman entity by the state ombudsman.

(c) Identifying individual conflicts of interest. (1) In identifying

conflicts of interest, the state office for the aging and the state

ombudsman shall consider individual conflicts that may impact the

effectiveness and credibility of the work of the office of the state

long-term care ombudsman or local long-term care ombudsman program.

(2) Individual conflicts of interest for the state ombudsman,

long-term care ombudsmen, and members of their immediate family include,

but are not limited to:

(A) direct involvement in the licensing or certification of a

long-term care facility or of a provider of a long-term care service;

(B) ownership, operational, or investment interest (represented by

equity, debt, or other financial relationship) in an existing or

proposed long-term care facility or a long-term care service;

(C) employment of an individual by, or participation in the management

of, a long-term care facility in the service area or by the owner or

operator of any long-term care facility in the service area;

(D) receipt of, or right to receive, directly or indirectly,

remuneration (in cash or in kind) under a compensation arrangement with

an owner or operator of a long-term care facility;

(E) accepting gifts or gratuities of significant value from a

long-term care facility or its management, a resident or a resident

representative of a long-term care facility in which the state ombudsman

or long-term care ombudsman provide services (except where there is a

personal relationship with a resident or resident representative which

is separate from the individual's role as state ombudsman or long-term

care ombudsman);

(F) accepting money or any other consideration from anyone other than

the office of the state long-term care ombudsman, or an entity approved

by the state ombudsman, for the performance of an act in the regular

course of the duties of the state ombudsman or long-term care ombudsman

without state ombudsman approval;

(G) serving as guardian, conservator, or in another fiduciary or

surrogate decision-making capacity for a resident of a long-term care

facility in which the state ombudsman or long-term care ombudsman

provides services; and

(H) serving residents of a facility in which an immediate family

member resides.

(d) Removing or remedying individual conflicts. (1) The state office

for the aging or state ombudsman shall develop and implement policies

and procedures to ensure that no state ombudsman or long-term care

ombudsman are required or permitted to hold positions or perform duties

that would constitute a conflict of interest as set forth in paragraph

(c) of this subdivision. This rule does not prohibit the state office

for the aging or state ombudsman from having policies or procedures that

exceed these requirements.

(2) When considering the employment, appointment, or designation of an

individual as the state ombudsman or as a long-term care ombudsman, the

state office for the aging or other employing or appointing entity

shall:

(A) take reasonable steps to avoid employing, appointing, or

designating an individual who has an unremedied conflict of interest or

who has a member of the immediate family with an unremedied conflict of

interest;

(B) take reasonable steps to avoid assigning an individual to perform

duties which would constitute an unremedied conflict of interest;

(C) establish a process for periodic review and identification of

conflicts of state ombudsman and long-term care ombudsmen; and

(D) take steps to remove or remedy conflicts.

(3) In no circumstance shall the entity which appoints, employs, or

designates the state ombudsman appoint, employ, or designate an

individual as the state ombudsman who:

(A) has direct involvement in the licensing or certification of a

long-term care facility;

(B) has an ownership or investment interest (represented by equity,

debt, or other financial relationship) in a long-term care facility.

Divestment within a reasonable period may be considered an adequate

remedy to this conflict;

(C) has been employed by or participating in the management of a

long-term care facility within the previous twelve months; or

(D) receives, or has the right to receive, directly or indirectly,

remuneration (in cash or in kind) under a compensation arrangement with

an owner or operator of a long-term care facility.

(4) In no circumstance shall the state office for the aging or an

agency hosting a local ombudsman entity appoint, employ, or designate an

individual, nor shall the state ombudsman designate an individual, as a

long-term care ombudsman who:

(A) has direct involvement in the licensing or certification of a

long-term care facility;

(B) has an ownership or investment interest (represented by equity,

debt, or other financial relationship) in a long-term care facility.

Divestment within a reasonable period may be considered an adequate

remedy to this conflict;

(C) receives, directly or indirectly, remuneration (in cash or in

kind) under a compensation arrangement with an owner or operator of a

long-term care facility; or

(D) is employed by, or participating in the management of, a long-term

care facility.

(i) An agency which appoints or employs long-term care ombudsmen shall

make efforts to avoid appointing, employing, or designating an

individual as a long-term care ombudsman who has been employed by or

participating in the management of a long-term care facility within the

previous twelve months.

(ii) Where such individual is appointed, employed, or designated, the

agency shall take steps to remedy the conflict.

11. Civil immunity. Notwithstanding any other provision of law,

ombudsmen designated under this section shall be included within the

definition of employee as set forth in section seventeen of the public

officers law and shall be defended and indemnified in accordance with

the provisions of article two of such law.

12. Grievance process. In addition to the provisions listed in this

section, the state ombudsman shall recommend policies and procedures for

the receipt and review of grievances regarding determinations or actions

of the state ombudsman or ombudsmen to the director of the state office

for the aging.

13. Regulations. The director of the state office for the aging, in

consultation with the state ombudsman, is authorized to promulgate

regulations to implement the provisions of this section.

14. Annual report. On or before March thirty-first, two thousand five,

and annually thereafter, the state ombudsman shall submit to the

governor, commissioner of the federal administration on aging, speaker

of the assembly, temporary president of the senate, director of the

state office for the aging, commissioner of the department of health,

and the commissioner of children and family services a report and make

such report available to the public:

(a) describing the activities carried out by the office of the state

long-term care ombudsman during the prior calendar year;

(b) containing and analyzing data relating to complaints and

conditions in long-term care facilities and to residents for the purpose

of identifying and resolving significant problems, including an

examination of any recurring complaints to determine if there are

systemic issues in such facilities;

(c) evaluating the problems experienced by, and the complaints made by

or on behalf of, residents;

(d) containing recommendations for appropriate state legislation,

rules and regulations and other action based on data collected pursuant

to this section, concerns raised by residents and families of residents,

and observations made when visiting long-term care facilities, to

improve the quality of the care and life of the residents, protecting

the health, safety and welfare and rights of the residents and resolving

resident complaints and identified problems or barriers;

(e) containing an analysis of the success of the long-term care

ombudsman program, including success in providing services to residents;

(f) describing barriers that prevent the optimal operation of the

ombudsman program;

(g) describing any organizational conflicts of interest in the

ombudsman program that have been identified and the steps taken to

remove or remedy such conflicts;

(h) containing all complaints received by the state ombudsman relating

to long-term care facilities including but not limited to complaints

that suggest the possible occurrence of physical abuse, mistreatment,

neglect or Medicaid fraud, listed by type of complaint, facility name

and by region;

(i) containing the number of visits to each long-term care facility,

listed by facility name and by region, and names of long-term care

facilities that did not receive any visits in the prior year; and

(j) any other matters as the state ombudsman, in consultation with the

director of the state office for the aging, determines to be

appropriate.

15. Outreach and awareness program. The state long-term care ombudsman

shall facilitate and coordinate the planning and implementation of an

outreach and awareness program to advertise and promote the long-term

care ombudsman program and to recruit additional ombudsmen. Such program

shall utilize educational and informational materials including, but not

limited to, media advertising, billboards, social media and the official

website of the long-term care ombudsman program.