HB1266: relative to the long-term care ombudsman.

CHAPTER 110

HB 1266 – FINAL VERSION

04/22/04 1140s

2004 SESSION

03-2125

01/09

HOUSE BILL 1266

AN ACT relative to the long-term care ombudsman.

SPONSORS: Rep. MacKay, Merr 39

COMMITTEE: Health, Human Services and Elderly Affairs

ANALYSIS

This bill revises the long-term care ombudsman law. The bill renames the office of the ombudsman, the office of the long-term care ombudsman.

This bill is a request of the department of health and human services.

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Explanation: Matter added to current law appears in bold italics.

Matter removed from current law appears [in brackets and struckthrough.]

Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.

04/22/04 1140s

03-2125

01/09

STATE OF NEW HAMPSHIRE

In the Year of Our Lord Two Thousand Four

AN ACT relative to the long-term care ombudsman.

Be it Enacted by the Senate and House of Representatives in General Court convened:

110:1 Office of the Ombudsman; Subdivision Heading. Amend the subdivision heading preceding RSA 161-F:10 to read as follows:

Office of the Long-Term Care Ombudsman

110:2 Office of the Long-Term Care Ombudsman. RSA 161-F:10 through RSA 161-F:19 are repealed and reenacted to read as follows:

161-F:10 Office Established. There is hereby established the office of the long-term care ombudsman to be administratively attached to the department of health and human services under RSA 21-G:10 or administered through contract with an independent non-profit agency under the oversight of the department of health and human services. The office shall be responsible for receiving, identifying, investigating, and resolving complaints or problems made by, or on behalf of, elderly residents of facilities that relate to the health, safety, welfare, and rights of residents. The office shall investigate the administrative acts and omissions of any facility or government agency, as defined in RSA 161-F:11, V and VI and shall represent the interests of residents in the development and implementation of public policy, rules, and laws affecting residents of long-term care facilities.

161-F:11 Definitions. In this subdivision:

I. “Act” means any action of any individual, facility, or government agency including any failure or refusal to act by such individual, facility, or government agency.

II. “Administrator’’ means any person who is charged with the general administration or supervision of a facility whether or not such person has an ownership interest and whether or not such person’s functions and duties are shared with one or more other persons.

III. “Complaint” means a problem, concern, issue, or situation identified or received by the office that is made by, or on behalf of, residents that may adversely affect the health, safety, welfare and rights of residents, including the appointment and activities of legal representatives, providers of long-term care services, public agencies, and health and social services agencies.

IV. “Elderly’’ means any person 60 years of age or older.

V. “Facility’’ means any residential facility or institution, whether public or private, offering health or health related services, personal care assistance or protective oversight for the elderly, and which is subject to regulation, visitation, inspection, or supervision by any government agency. Facilities include, but are not limited to, nursing homes, skilled nursing homes, extended care facilities, convalescent homes, homes for the aged, veterans’ homes, assisted living facilities, and any other residential care facility providing care for the elderly licensed or certified under RSA 151.

VI. “Government agency’’ means any department, division, office, bureau, board, commission, authority, or any other agency or instrumentality created by any county or municipality or by the state, or to which the state is a party, which is responsible for the regulation, inspection, visitation, or supervision of facilities or which provides services to residents of facilities.

VII. “Legal representative” means any individual, duly appointed or designated in the manner required by law to act on behalf of another individual, including:

(a) An attorney.

(b) A guardian or conservator.

(c) An agent acting pursuant to a power of attorney.

VIII. “Long-term care ombudsman” means the person who is the administrator and chief executive officer of the office.

IX. “Long-term care ombudsman representative” means any employee or volunteer who is designated by the long-term care ombudsman to represent, or act on behalf of, the office.

X. “Non-elderly” means any person under 60 years of age.

XI. “Office” means the office of the long-term care ombudsman, established by RSA 161-F:10.

XII. “Resident” means any person 60 years of age or older who resides in a facility as defined in RSA 161-F:11, V.

161-F:12 Long-Term Care Ombudsman. The commissioner, in consultation with the attorney general, shall designate a person as the administrator and chief executive officer of the office who shall be called the long-term care ombudsman and who shall be a person with expertise and experience in the field of long-term care advocacy. The long-term care ombudsman shall designate such other qualified persons needed to perform the functions of this office. The long-term care ombudsman shall devote his or her entire time to the duties of the position. The long-term care ombudsman shall receive such salary as shall be provided in a classified position as determined by the division of personnel, unless administered on a contract basis.

161-F:13 Powers and Duties.

I. The long-term care ombudsman shall:

(a) Investigate any act, omission, practice, policy or procedure of any individual, facility, or government agency that may adversely affect the health, safety, welfare, or civil or human rights of:

(1) Any elderly resident of a facility; or

(2) Any non-elderly resident of a facility where such investigation shall:

(A) Benefit elderly residents of that facility or facilities generally; and

(B) Not significantly diminish the long-term care ombudsman’s ability to investigate complaints regarding elderly residents of facilities.

(b) Represent the interests of residents before governmental agencies and seek administrative, legal, and other remedies to protect the health, safety, welfare, and rights of residents.

(c) Establish an advisory committee, which shall include residents and their legal representatives, older persons, providers of services, representatives of government agencies and representatives of community organizations serving older people, which shall meet quarterly in order to provide consultation to the long-term care ombudsman in planning and operating this subdivision.

(d) Provide information as appropriate to facilities, other agencies, and the public regarding the problems and concerns of residents of facilities.

(e) Inform residents, family members, and others acting on behalf of residents how to access the assistance and services of the office and the services and assistance of other providers or agencies, including legal services.

(f) Ensure regular and timely access to and response from the office.

(g) Comment on, facilitate public comment on, and recommend changes to existing or proposed laws, rules, regulations and other governmental policies and actions that affect the health, safety, welfare, and rights of residents.

(h) Provide technical support for the development of resident and family councils to protect the well-being and rights of residents.

(i) Provide for education and training of the long-term care ombudsman office staff and volunteers.

(j) Educate facilities, agencies, and staff members concerning the rights and welfare of residents.

(k) Promote and support development of citizen organizations to participate in the ombudsman program.

II. The files maintained by the office shall be confidential and shall not be disclosed unless such disclosure is authorized by law or required by court order. Nothing in this paragraph shall be construed to prohibit the disclosure of information gathered in any investigation to any interested party as may be necessary to resolve the complaint.

III. The long-term care ombudsman shall adopt rules, pursuant to RSA 541-A, to ensure the efficient conduct of the business, duties, and general administration of the office and to assure compliance with the requirements of the Older Americans Act, as set forth in 42 U.S.C. 3058f – 3058g.

161-F:14 Access to Facilities, Residents, and Records.

I. In the course of an investigation, the representative of the office shall:

(a) Make the necessary inquiries and obtain such information as he or she deems necessary.

(b) Enter and inspect the premises of a facility or government agency and inspect there any books, files, medical records, or other records that pertain to residents, subject to RSA 161-F:14, II.

(c) Conduct private interviews with residents, staff members, and others deemed appropriate to the investigation and who consent to such interviews.

II. The representative of the office shall first seek to obtain the written permission of the resident or the resident’s legal representative to inspect any books, files, medical records, or other records which pertain to the resident. If the representative of the office cannot obtain such permission because a resident is unable to provide such permission and has no legal representative or the investigation pertains to the acts or omissions of the legal representative, the long-term care ombudsman representative shall, upon written determination of the long-term care ombudsman that such circumstances exist, inspect any books, files, medical records, or other records which pertain to that resident. The written determination shall be provided to the person in charge of the facility. The representative of the office shall maintain the confidentiality of all books, files, medical records, or other records inspected under the provisions of this paragraph except as they may pertain to the resolution of the ongoing investigation.

III. In an investigation, the representatives of the office shall have the authority to apply to the superior court for an order authorizing entry when an administrator of a facility refuses such representative entry as provided in subparagraph I(b) or paragraph II.

IV. Authorized representatives of the office with proper identification shall have access to residents of a facility to:

(a) Visit, talk with, and make personal, social, and other appropriate services available.

(b) Inform them of their rights and entitlements and corresponding obligations under federal and state law by distribution of educational materials, discussion in groups, or discussion with individual residents.

(c) Engage in other methods of assisting, advising, and representing residents or clients to extend to them the full enjoyment of their rights.

161-F:15 Retaliation Prohibited; Penalty.

I. No discriminatory, disciplinary, or retaliatory action shall be taken against any officer or employee of a facility or government agency by such facility or government agency; nor against any resident of a facility; nor against any legal representative or family member of any resident; nor against any volunteer for any communication by such volunteer with the office or for any information given or disclosed by him or her in good faith to aid the office in carrying out its duties and responsibilities.

II. No person shall interfere with the long-term care ombudsman or with representatives of the office in the performance of their official duties.

III. Any person who knowingly or willfully violates the provisions of this section shall be guilty of a misdemeanor.

161-F:16 Cooperation Required. The office may request from any government agency, and such agency is hereby authorized and directed to provide, such cooperation and assistance, services, and data as will enable the office to properly perform or exercise any of its functions, duties, and powers under RSA 161-F:10 through 161-F:18.

161-F:17 Review; Reports Required.

I. The long-term care ombudsman shall establish and maintain a statewide reporting system to collect and analyze data relating to complaints and conditions in facilities for the purpose of identifying and resolving individual and systemic complaints, problems and issues and for the purpose of developing reports as required pursuant to this section.

II. The office shall file a report of the activities of the ombudsman program and the ombudsman activities concerning complaints and conditions in facilities and the protection of the rights of residents of the facilities with the commissioner of health and human services, the governor, the general court, and the public within 120 days following the end of each federal fiscal year.

161-F:18 Immunity From Liability. Any person, institution, or official who in good faith participates in the reporting of a complaint, or who in good faith investigates that complaint, participates in an investigation, or provides access or information to those persons carrying out the investigation or who participates in a judicial proceeding resulting from that complaint, shall be immune from any civil or criminal liability that might otherwise result by reason of these actions. For the purpose of any civil or criminal proceedings, there will be a rebuttable presumption that any person acting pursuant to this subdivision did so in good faith.

161-F:19 Litigation Prohibited. The long-term care ombudsman and all representatives of the office are prohibited from serving as legal representatives of any person before state or federal courts in any action that is related in any manner to the ongoing duties or responsibilities of the office.

110:3 Reference Change. Amend RSA 137-J:1, X to read as follows:

X. “Residential care provider” means a “facility” as defined in RSA 161-F:11, [IV] V, a “nursing home” as defined in RSA 151-A:1, IV, or any individual or facility licensed, certified or otherwise authorized or permitted by law to operate, for profit or otherwise, a residential care facility for adults, including but not limited to those operating pursuant to RSA 420-D.

110:4 Effective Date. This act shall take effect 60 days after its passage.

(Approved: May 17, 2004)

(Effective Date: July 16, 2004)