2023 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, 2025
* (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, 2025
(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;
* NB Effective until June 19, 2024
* (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;
* NB Effective June 19, 2024
(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.  Long-term  care  ombudsman  program.  The  office  of the state
long-term care ombudsman shall facilitate and  coordinate  the  planning
and  implementation of an awareness program to advertise and promote the
long-term care ombudsman program. Such program shall utilize educational
and informational  materials  such  as  media  advertising,  billboards,
social  media  and  the official website of the long-term care ombudsman
program.
* NB Effective until June 19, 2024
* 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.
* NB Effective June 19, 2024