NY Elder L § 218 (2021)
2021 New York Laws ELD - Elder Article 2 - Programs for the Elderly Title 1 - State Office for the Aging 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, 2023   * (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, 2023  (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  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, 2023   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;  (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 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; and  (h) any other matters as the state ombudsman, in consultation with the director   of   the  state  office  for  the  aging,  determines  to  be appropriate.