Section 16CC: Establishment of a statewide long term care ombudsman office to advocate on behalf of residents; purpose; rights, powers and duties
Section 16CC. (a) As used in this section, the following words shall have the following meanings unless the context requires otherwise:-
''Act'', an action or decision made by an owner, employee or agent of a long term care facility or assisted living residence or by a government agency or a condition within a long term care facility or assisted living residence that affects the service to a resident.
''Administrative action'', an action taken to resolve issues through negotiation and mediation with a long term care facility or assisted living residence.
''Assisted living residence'', an entity that meets the requirements of chapter 19D and is subject to certification by the department of elder affairs.
''Designee'', staff of the long term care ombudsman or a member of a designated local long term care ombudsman program, whether on a compensated or volunteer basis.
''Long term care facility'', a facility subject to licensure by the department of public health under section 71 of chapter 111.
''Resident'', a person receiving treatment or care in a long term care facility or assisted living residence; provided, however, that treatment or care shall include, but not be limited to, application or admission, retention, confinement, commitment, period of residence, transfer, discharge and instances directly related to such status.
(b) The secretary of health and human services shall, subject to appropriation or the receipt of federal funds, establish a statewide long term care ombudsman office to advocate on behalf of residents. The statewide long term care ombudsman office shall receive, investigate and resolve through administrative action complaints filed by residents, individuals acting on the behalf of residents or any individual organization or government agency that has reason to believe a long term care facility or assisted living residence, organization or government agency has engaged in activities, practices or omissions that violate applicable statutes or regulations or may have an adverse effect upon the health, safety, welfare or rights of residents of such long term care facilities or assisted living residences. The secretary of health and human services shall appoint an ombudsman to act as the director of the ombudsman office. The ombudsman shall be a person qualified by training and experience to perform the duties of the office. The ombudsman shall not be subject to section 9A of chapter 30 or chapter 31.
(c) The ombudsman or a designee shall be permitted access to any consenting individual resident at any time that the ombudsman deems reasonable and necessary; provided, however, that there is neither a commercial purpose nor effect to the access; provided further, that the purpose of the access is to: (i) visit, talk with or make personal, social or legal services available to a resident; (ii) inform a resident of their rights and entitlements and their corresponding obligations under federal and state law by means of educational materials or discussion in groups or with an individual resident; (iii) assist a resident in asserting their legal rights regarding claims for public assistance, medical assistance or social security benefits, or assist a resident in action against an agency responsible for such programs, or assist in any other matter in which a resident is aggrieved, which may include but not be limited to advising litigation; or (iv) engage in other methods of assisting, advising or representing a resident so as to extend to them full enjoyment of their rights.
Upon entering a long term care facility or assisted living residence, the ombudsman or designee shall notify the long term care facility or assisted living residence staff of their presence and, upon request, shall produce identification. Prior to entering the room of an individual resident, the ombudsman or designee shall identify themselves and explain the purpose of the visit. The ombudsman or designee shall have the right to visit privately with the resident if the resident has given permission for the visit. The ombudsman or designee shall respect the confidentiality of communications and shall not photograph, film, videotape or audiotape the resident without consent. The long term care facility or assisted living residence shall not release information in a resident's medical record to the ombudsman or designee without consent of the resident or resident's representative.
(d) The ombudsman or designee shall have the right of entry into long term care facilities and assisted living residences at any time that the ombudsman deems reasonable and necessary to: (i) investigate or resolve through administrative action complaints made by residents or on their behalf; (ii) interview residents, with their consent, in private; (iii) offer the services of the ombudsman or designee to any resident, in private; (iv) interview employees or agents of the long term care facility or assisted living residence; (v) consult regularly with the long term care facility or assisted living residence administration; or (vi) provide services authorized by law or by regulation.
The ombudsman or designee shall have access to a resident's records, with consent of the resident or the resident's representative, and to records of any public agency that are necessary to the duties of the statewide long term care ombudsman office, including records on patient abuse complaints. The ombudsman or designee shall have access to the resident's records without the resident's written authorization if: (i) the ombudsman or designee reasonably believes that a complaint situation exists that may only be resolved by the inspection of the resident's personal, financial or medical records; and (ii)(A) the resident has no representative and lacks the capacity to give consent; or (B) the ombudsman has reason to believe that the resident's representative is not acting in the best interest of the resident.
(e) The ombudsman shall establish procedures to protect the confidentiality of residents' records and files. The procedures shall provide that: (i) information or records maintained by the statewide long term care ombudsman office shall not be disclosed unless the ombudsman or a designee authorizes the disclosure; and (ii) the ombudsman or designee shall not disclose the identity of any complainant or resident involved in any complaint unless the complainant or resident or a representative of the complainant or resident provides consent in writing or through the use of any necessary ancillary aids or services or communicates the consent orally or visually, the consent is documented to allow such disclosure and the consent specifies to whom the identity may be disclosed or a court orders such disclosure.
The ombudsman or designee may initiate an investigation of any long term care facility or assisted living residence in the absence of a specific complaint.
If the ombudsman or designee determines that an act of any long term care facility or assisted living residence may adversely affect the health, safety, welfare or rights of a resident, the ombudsman or designee shall make specific recommendations for the elimination or correction of the act. If the ombudsman or designee determines that an act of any long term care facility or assisted living residence may violate an applicable federal or state law, the ombudsman may report their findings and conclusions to the regulatory agency that has jurisdiction to enforce the law and to the office of the attorney general.
Within a reasonable period of time after the completion of an investigation, the ombudsman may notify the long term care facility or assisted living residence of the findings.
The ombudsman or a designee may notify the attorney general, the department of elder affairs and the department of public health following the receipt of an oral or written report or complaint that: (i) a resident of a long term care facility has been subjected to abuse, misappropriation of patient or resident property, mistreatment or neglect as defined in section 72F of chapter 111; or (ii) if a resident of an assisted living residence has been subjected to abuse, neglect or financial exploitation in violation of the sponsor's covenant under section 14 of chapter 19D.
(f) The ombudsman may contract with a local entity to host a local ombudsman program and provide designated staff to act on behalf of the ombudsman in the receipt, investigation and resolution through administrative action of complaints. The ombudsman may contract with any public agency or private nonprofit organization to act on behalf of the ombudsman in the receipt, investigation and resolution through administrative action of complaints; provided, however, that the ombudsman shall not contract with an agency or organization that is responsible for licensing or certifying long term care facilities or assisted living residences or an association or an affiliate or agent of an association of long term care facilities or assisted living residences. Such a designee shall operate in compliance with any rules or regulations established by the ombudsman for the implementation of the ombudsman program. The ombudsman shall carry out the responsibilities of the local program in any area where a local ombudsman program has not been established. The ombudsman shall, to the extent practicable, contract with agencies and organizations that agree to carry out such responsibilities on a volunteer basis.
(g) The ombudsman shall: (i) establish and conduct a training program for persons employed by or associated with the ombudsman or any designated local ombudsman program who perform the duties and responsibilities under subsection (e) regarding the receipt, investigation and resolution through administrative action of complaints and certify such persons upon satisfactory completion of such training programs; (ii) provide information to public agencies regarding the problems of residents in long term care facilities and assisted living residences; (iii) ensure that complete records are maintained of complaints received, investigations initiated, actions taken and findings and recommendations in response to such complaints, investigations or other actions, including the facilities' responses; (iv) maintain a statewide uniform reporting system to collect and analyze data relating to complaints and conditions in long term care facilities and assisted living residences to identify and resolve significant problems; (v) carry out other activities consistent with the requirements of 42 U.S.C. 3024(a)(12); (vi) ensure the program operates in compliance with 42 U.S.C. 3001 et seq. and federal regulations; (vii) represent the interests of the residents before governmental agencies and seek administrative, legal and other remedies to protect the health, safety, welfare and rights of the residents; and (viii) analyze, comment on and monitor the development and implementation of federal, state and local laws, regulations and other governmental policies and actions that pertain to the health, safety, welfare and rights of the residents, with respect to the adequacy of services provided by long term care facilities and assisted living residences.
(h) The ombudsman, a designee and any employee of a designated local ombudsman program working directly for such designee, whether on a compensated or volunteer basis, shall not be liable in any civil or criminal action by reason of the good faith performance of official duties. A person shall not willfully interfere with a representative of the ombudsman office in the good faith performance of official duties. If such willful interference occurs, the ombudsman may petition the superior court department to enjoin such interference and grant appropriate relief.
A long term care facility, assisted living residence or other entity shall not retaliate against any resident or employee of such facility, residence or entity who in good faith filed a complaint with, or provided information to, the ombudsman or designee. A long term care facility or assisted living residence that retaliates against a resident or employee for filing a complaint with, or having provided information to, the ombudsman or designee, shall be liable to the person so retaliated against by a civil action for up to treble damages, costs and attorney's fees.
(i) Annually, not later than October 31, the ombudsman shall file a report on the activities of the long term care ombudsman office and the ombudsman's recommendation concerning long term care facilities, assisted living residences and the protection of the rights of residents. The report shall be filed with the executive office of health and human services, the division of health care facility licensure and certification in the department of public health, the assisted living certification unit at the department of elder affairs, the clerks of the senate and the house of representatives and the joint committee on elder affairs and be made available on the executive office of health and human services' public website.
(j) The ombudsman shall promulgate regulations to implement this section.