9 NYCRR Part 6660 - Executive Department

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Source versions current through Mar 31, 2022 - Apr 15, 2022 across sections

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9 NYCRR 6660.1 - Definitions

Source version current through Apr 15, 2022

A matched Register action is not later than the compiled-text reference date.

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Dates and status

NYCRR title agency: Executive Department
Section status: Section source receipt
Source version current through: Apr 15, 2022
Related Register notice: AGE-42-17-00001-P · Proposed rule
Related notice published: Oct 18, 2017

For the purposes of this Part, the following terms shall have the following meanings:

(a)Administrative action means 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, means a member of the household or a relative with whom there is a close personal or significant financial relationship.

(c)Local ombudsman entity means any entity designated to operate a local long-term care ombudsman program.

(d)Long-term care facilities means residential health care facilities as defined in subdivision (3) of section 2801 of the Public Health Law; adult care facilities as defined in subdivision (21) of section 2 of the Social Services Law, including those adult homes and enriched housing programs licensed as assisted living residences pursuant to article 46-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 4403-f of the Public Health Law and the term resident, residents, patient and patients shall also include enrollees of such plans.

(e)A long-term care ombudsman or ombudsman means a person who:

(1)is an employee or volunteer of the State office for the aging or of a designated local long-term care ombudsman program;

(2)has been certified as having successfully completed a 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 means any 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; or

(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.

(g)State long-term care ombudsman or State ombudsman means the individual who heads the office and is responsible to personally, or through representatives of the office, fulfill the functions, responsibilities and duties of the office of the State long-term care ombudsman.

(h)Willful interference means 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.

9 NYCRR 6660.2 - Office of the State long-term care ombudsman established

Source version current through Mar 31, 2022

A matched Register action is not later than the compiled-text reference date.

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Dates and status

NYCRR title agency: Executive Department
Section status: Section source receipt
Source version current through: Mar 31, 2022
Related Register notice: AGE-42-17-00001-P · Proposed rule
Related notice published: Oct 18, 2017

(a)Office of the State long-term care ombudsman established.

(1)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.

(2)The office of the State long-term care ombudsman is a distinct entity, separately identifiable, and located within the State Office for the Aging.

(3)The State Office for the Aging shall provide the 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.

(4)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.

(5)Nothing in this provision 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.

(b)State long-term care ombudsman.

(1)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.

(2)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. The State ombudsman must be verified as having completed a certification training program developed by the State long-term care ombudsman program within six months of his/her appointment as State ombudsman.

(3)In no circumstance shall the State Office for the Aging appoint as State ombudsman an individual who:

(i)has a direct involvement in the licensing or certification of a long-term care facility or of a provider of a long-term care service;

(ii)has an ownership or investment interest (represented by equity, debt, or other financial relationship) in a long-term care facility or a long-term care service. Divestment within a reasonable period of time may be considered an adequate remedy to this conflict;

(iii)has been employed by, or participated in the management of, a long-term care facility within the previous 12 months; and

(iv)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)The State ombudsman personally or through authorized representatives shall:

(i)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 there under as well as rules and regulations promulgated by the State Office for the Aging. Nothing in this section shall be construed as authorizing the State ombudsman to assume powers delegated to the Commissioner of Health or the Department of Health pursuant to article (28) 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;

(ii)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;

(iii)inform the residents about means of obtaining services provided by the long-term care ombudsman program and other public agencies;

(iv)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;

(v)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;

(vi)recommend changes in Federal, State and local laws, regulations, policies, and actions pertaining to the health, safety, welfare, and rights of residents;

(vii)develop a certification training program and continuing education program for ombudsmen which, at a minimum, shall specify the minimum hours of training, 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;

(viii)provide administrative and technical assistance to ombudsmen and local ombudsman entities;

(ix)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;

(x)recommend to the Director of the State Office for the Aging policies and procedures for the State long-term care ombudsman program;

(xi)coordinate with and promote the development of citizen organizations consistent with the interests of residents;

(xii)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;

(xiii)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;

(xiv)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;

(xv)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 1965¹ and other applicable Federal and State Laws and related regulations as may, from time to time, be amended; and

(xvi)provide the Director of the State Office for the Aging with notice consisting of two business days prior to performing the activities identified in subparagraphs (iv), (vi), and (ix) of this paragraph. Such notice shall not give the Director of the State Office for the Aging or any other State official the right to pre-approve positions or communications of the State ombudsman.

(5)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 ombudsman 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 program within six months of their appointment as assistant State ombudsmen.

(6)The State ombudsman may appoint as ombudsmen individuals who have been screened for conflicts of interest and 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.

(7)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.

(c)Grievance process.

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.

(d)Annual report.

On or before March 31, 2005, and annually thereafter, the State ombudsman shall submit to the governor, commissioner of the 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:

(1)describing the activities carried out by the office of the State long-term care ombudsman during the prior calendar year;

(2)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;

(3)evaluating the problems experienced by, and the complaints made by or on behalf of, residents;

(4)containing recommendations for appropriate State legislation, rules and regulations, policy, and other action to improve the quality of the care and life of the residents; protecting the health, safety, welfare, and rights of the residents; and resolving resident complaints and identified problems or barriers;

(5)containing an analysis of the success of the ombudsman program, including success in providing services to residents;

(6)describing barriers that prevent the optimal operation of the ombudsman program;

(7)describing any organizational conflicts of interest in the ombudsman program that have been identified and the steps taken to remove or remedy such conflicts;

(8)any other matters as the State ombudsman, in consultation with the Director of the State Office for the Aging, determines to be appropriate.

9 NYCRR 6660.3 - Conflicts of interest

Source version current through Mar 31, 2022

A matched Register action is not later than the compiled-text reference date.

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Dates and status

NYCRR title agency: Executive Department
Section status: Section source receipt
Source version current through: Mar 31, 2022
Related Register notice: AGE-42-17-00001-P · Proposed rule
Related notice published: Oct 18, 2017

(a)Identification of organizational conflicts of local ombudsman entities.

In identifying conflicts of interest, the State ombudsman shall consider the organizational conflicts of local ombudsman entities that may impact the effectiveness and credibility of the work of the ombudsman program. Entities with organizational conflicts of interest include, but are not limited to, those that:

(1)are responsible for licensing, surveying, or certifying long-term care facilities;

(2)are associations (or affiliates of such associations) of long-term care facilities, or of any other residential facilities for older individuals or individuals with disabilities;

(3)have any ownership or investment interest (represented by equity, debt, or other financial relationship) in, or receive grants or donations from, a long-term care facility;

(4)have governing board members with any ownership, investment or employment interest in long-term care facilities;

(5)provide 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;

(6)provide long-term care coordination or case management for residents of long-term care facilities;

(7)set reimbursement rates for long-term care facilities;

(8)provide adult protective services;

(9)are responsible for eligibility determinations regarding Medicaid or other public benefits for residents of long-term care facilities;

(10)conduct preadmission screening for long-term care facility placements;

(11)make decisions regarding admission or discharge of individuals to or from long-term care facilities; or

(12)provide guardianship, conservatorship or other fiduciary or surrogate decision-making services for residents of long-term care facilities.

(b)Removing or remedying organizational conflicts of interest of local ombudsman entities.

(1)Prior to the designation of a local ombudsman entity or renewing the designation of a local ombudsman entity, the State ombudsman shall:

(i)require that such entities disclose identified conflicts of interest;

(ii)take reasonable steps to identify conflicts of interest in any local ombudsman entity;

(iii)require that such entities describe steps taken to remove or remedy conflicts of interest.

(2)For existing local ombudsman entities, the State ombudsman shall:

(i)establish a process for periodic review and identification of conflicts of interest with the local ombudsman entities;

(ii)establish an approval process for plans of local ombudsman entities to remove or remedy conflicts of interest.

(3)Each local ombudsman entity shall:

(i)take reasonable steps to avoid conflicts of interest;

(ii)establish a process for periodic review and identification of conflicts of interest;

(iii)establish a plan for removing or remedying any conflict of interest; and

(iv)disclose identified conflicts and steps taken to remove or remedy conflicts to the State ombudsman for review and approval.

(c)Identifying individual conflicts of interest.

(1)In identifying conflicts of interest, the State ombudsman shall consider individual conflicts that may impact the effectiveness and credibility of an individual to perform the work of the ombudsman program.

(2)Individual conflicts of interest for an ombudsman or members of their immediate family include, but are not limited to:

(i)direct involvement in the licensing or certification of a long-term care facility;

(ii)ownership, operational, or investment interest (represented by equity, debt, or other financial relationship) in an existing or proposed long-term care facility;

(iii)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;

(iv)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;

(v)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 ombudsman provides services (except where there is a personal relationship with a resident or resident representative which is separate from the individual’s role as ombudsman);

(vi)accepting money or any other consideration from anyone other than an entity approved by the State ombudsman, for the performance of an act in the regular course of the duties of the ombudsman without State ombudsman approval;

(vii)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 ombudsman provides services; and

(viii)serving residents of a facility in which an immediate family member resides.

(d)Removing or remedying individual conflicts.

(1)When considering the appointment or recommendation for appointment of an individual as an ombudsman, the State ombudsman and the local ombudsman entity shall:

(i)take reasonable steps to avoid appointing an individual who has an unremedied conflict of interest or who has a member of the immediate family with an unremedied conflict of interest;

(ii)take reasonable steps to avoid assigning an individual to perform duties which would constitute an unremedied conflict of interest;

(iii)take steps to remove or remedy conflicts; and

(iv)establish a process for periodic review and identification of conflicts of ombudsmen.

(2)In no circumstance shall the State ombudsman or a local ombudsman entity appoint or employ as an ombudsman an individual who:

(i)has direct involvement in the licensing or certification of a long-term care facility;

(ii)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;

(iii)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

(iv)is employed by, or participating in the management of, a long-term care facility;

(a)the State ombudsman and local ombudsman entities shall make efforts to avoid appointing or employing as an ombudsman an individual who has been employed by or participated in the management of a long-term care facility within the previous 12 months;

(b)where such individual is appointed or employed, the State ombudsman and the local ombudsman entity shall take steps to remedy the conflict.

(e)Failure of an ombudsman or local ombudsman entity to disclose a conflict to the State ombudsman, or an inability to adequately remove or remedy a conflict shall constitute grounds for refusal, suspension, or removal of designation of the ombudsman or local ombudsman entity by the State ombudsman.

9 NYCRR 6660.4 - Responsibilities of a long-term care ombudsman

Source version current through Mar 31, 2022

A matched Register action is not later than the compiled-text reference date.

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Dates and status

NYCRR title agency: Executive Department
Section status: Section source receipt
Source version current through: Mar 31, 2022
Related Register notice: AGE-42-17-00001-P · Proposed rule
Related notice published: Oct 18, 2017

A long-term care ombudsman, in accordance with policies and procedures established by the State long-term care ombudsman, shall:

(a)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;

(b)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;

(c)inform the residents about means of obtaining services provided by the long-term care ombudsman program and other public agencies;

(d)represent the interests of residents before government agencies and assure that individual residents have access to, and pursue (as the ombudsman determines necessary and consistent with resident interest) administrative, legal, and other remedies to protect the health, safety, welfare, and rights of the residents;

(e)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;

(f)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; and

(g)carry out such other activities as the State ombudsman determines to be appropriate.

9 NYCRR 6660.5 - Designation of ombudsmen

Source version current through Mar 31, 2022

A matched Register action is not later than the compiled-text reference date.

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Dates and status

NYCRR title agency: Executive Department
Section status: Section source receipt
Source version current through: Mar 31, 2022
Related Register notice: AGE-42-17-00001-P · Proposed rule
Related notice published: Oct 18, 2017

(a)The State ombudsman may appoint as a long-term care ombudsman an individual who has successfully completed the training program required by the State ombudsman. In addition, the State ombudsman may refuse, suspend, or remove such appointments of ombudsmen.

(b)Before recommending to the State ombudsman that an individual be designated as an ombudsman, the coordinator of a local ombudsman entity shall assure that such individual has successfully completed a training program for ombudsmen which included the minimum number of hours of training required and which provided for training in all subject and skill areas specified by the State ombudsman.

(c)The State ombudsman shall investigate allegations of misconduct by ombudsmen in the performance of ombudsman program duties and shall coordinate such investigations with the State Office for the Aging and with the local ombudsman entity.

(d)The State ombudsman shall offer an opportunity for reconsideration of any decision to refuse, suspend, or remove the appointment of any ombudsman, and shall follow the grievance process for such actions. Notwithstanding the grievance process, the State ombudsman shall make the final determination to appoint or to refuse, suspend, or remove the appointment of an ombudsman.

9 NYCRR 6660.6 - Designation of local ombudsman entities

Source version current through Mar 31, 2022

A matched Register action is not later than the compiled-text reference date.

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Dates and status

NYCRR title agency: Executive Department
Section status: Section source receipt
Source version current through: Mar 31, 2022
Related Register notice: AGE-42-17-00001-P · Proposed rule
Related notice published: Oct 18, 2017

(a)A local ombudsman program may be operated only by an area agency on aging or a private not-for-profit or public agency.

(b)The agency in which a local ombudsman entity is organizationally located shall be responsible for the personnel management, but not the programmatic oversight, of representatives, including employee and volunteer representatives, of the ombudsman program.

(c)The agency in which a local ombudsman entity is organizationally located shall not have personnel policies or practices which prohibit the representatives of the ombudsman program from performing their duties, or from adhering to the access, confidentiality and disclosure requirements of the program. Policies, procedures and practices, including personnel management practices of the host agency, which the State ombudsman determines conflict with the laws, regulations, policies or policies governing the ombudsman program shall be sufficient grounds for the refusal, suspension, or removal of the designation of local ombudsman entity by the State ombudsman.

(d)The State long-term care ombudsman, in coordination with the State Office for the Aging, and 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 compelling reason why the State ombudsman should not designate an entity to operate a long-term care ombudsman program, the State ombudsman will comply with the State Office for the Aging’s determination.

(e)When the State ombudsman determines that a local long-term care ombudsman program does not meet the standards set forth in this Part and any related regulations or if the local ombudsman entity is subject to a conflict of interest that cannot be remedied, the State ombudsman in coordination with the State Office for the Aging, may refuse, suspend, or withdraw the designation of the local program. Prior to taking such action, the State ombudsman shall send to the affected local program a notice of the State ombudsman’s intentions to withdraw the designation. If the State Office for the Aging is aware or becomes aware of any compelling reason why the State ombudsman should not designate an entity to operate a long-term care ombudsman program or why the State ombudsman should refuse, suspend or remove designation of a local ombudsman entity, the State ombudsman will comply with the State Office for the Aging’s determination.

(f)The State ombudsman shall develop a grievance process to offer an opportunity for reconsideration of any decision to refuse, suspend, or remove designation of a local ombudsman entity. Notwithstanding the grievance process, the State ombudsman in coordination with the State Office for the Aging shall make the final determination to designate or to refuse, suspend, or remove designation of a local ombudsman entity. If the State Office for the Aging is aware or becomes aware of any compelling reason why the State ombudsman should not designate an entity to operate a long-term care program or why the State ombudsman should refuse, suspend or remove designation of a local ombudsman entity, the State ombudsman will comply with the State Office for the Aging’s determination.

9 NYCRR 6660.7 - Responsibilities of local ombudsman entity coordinators

Source version current through Mar 31, 2022

A matched Register action is not later than the compiled-text reference date.

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Dates and status

NYCRR title agency: Executive Department
Section status: Section source receipt
Source version current through: Mar 31, 2022
Related Register notice: AGE-42-17-00001-P · Proposed rule
Related notice published: Oct 18, 2017

Each local ombudsman entity shall be directed by a paid coordinator who has supervisory authority over the long-term care ombudsmen participating in the local ombudsman program operated by such entity, including responsibility for:

(a)recruiting, screening, training and supervising such ombudsmen;

(b)identifying those to be recommended to the State long-term care ombudsman for designation as long-term care ombudsmen;

(c)identifying to the State long-term care ombudsman those whose certification as long-term care ombudsmen is recommended to be removed;

(d)distributing to the long-term care ombudsmen identification cards, and collecting such cards from those leaving or being removed from the program;

(e)assigning long-term care ombudsmen to facilities in the program’s service area in accordance with standards set by the State long-term care ombudsman; and

(f)assuring that any files maintained by the ombudsman program are disclosed only at the discretion of the State long-term care ombudsman, and that the identity of any complainant or resident of a long-term care facility shall only be disclosed in accordance with the provisions of this Part or at the direction of the State ombudsman.

9 NYCRR 6660.8 - Program standards for local ombudsman programs

Source version current through Mar 31, 2022

A matched Register action is not later than the compiled-text reference date.

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Dates and status

NYCRR title agency: Executive Department
Section status: Section source receipt
Source version current through: Mar 31, 2022
Related Register notice: AGE-42-17-00001-P · Proposed rule
Related notice published: Oct 18, 2017

(a)Each local ombudsman entity hosting a local ombudsman program shall:

(1)assign a paid coordinator to supervise the local ombudsman program;

(2)have paid and/or volunteer staff which fulfill the responsibilities defined in section 6660.5 of this Part;

(3)use the statewide uniform reporting system to report to the State long-term care ombudsman complaint summaries and program activities on forms prescribed by the State long-term care ombudsman;

(4)establish and maintain effective linkages with local legal assistance providers, regional offices of State agencies which license, survey or regulate long-term care facilities, local agencies which provide services to residents of long-term care facilities or which pay for the provision of such services, any area agencies on aging within whose planning and service areas the program will operate, and other agencies which may affect the provision of services to residents of long-term care facilities in the local ombudsman program’s service area;

(5)upon lapse of designation, collect and send to the State ombudsman all identification cards, all complaint files, and all program files that identify any complainant or resident;

(6)ensure that it does not have personnel policies or practices which prohibit any ombudsman from performing the duties of the ombudsman program or from adhering to the requirements of section 218 of the Elder Law or any relevant sections of the Older Americans Act. Nothing in this provision shall prohibit the local ombudsman entity from requiring that ombudsmen adhere to the entity’s otherwise applicable personnel policies and procedures.

(b)Nothing in this section shall prohibit the disclosure by an ombudsman or local ombudsman entity of aggregate data for monitoring or reporting purposes to the State Office for the Aging or an agency in which a local ombudsman entity is organizationally located.

9 NYCRR 6660.9 - Procedures for ombudsman access to facilities and residents

Source version current through Mar 31, 2022

A matched Register action is not later than the compiled-text reference date.

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Dates and status

NYCRR title agency: Executive Department
Section status: Section source receipt
Source version current through: Mar 31, 2022
Related Register notice: AGE-42-17-00001-P · Proposed rule
Related notice published: Oct 18, 2017

(a)Access to long-term care facilities.

An 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.

(b)An ombudsman seeking access to a long-term care facility or resident of a long-term care facility shall:

(1)upon a staff member’s request, identify himself or herself;

(2)upon a staff member’s request, show the ombudsman identification card issued by the office of the State long-term care ombudsman; and

(3)comply with the facility’s procedures for signing in and out of the facility.

(c)Noninterference.

No long-term care facility, other entity or individual shall:

(1)refuse to permit an ombudsman entry into such facility, interfere with, refuse to cooperate with, or retaliate against an ombudsman carrying out their mandated duties and responsibilities set forth in this section and any regulations promulgated pursuant thereto;

(2)refuse to permit residents or staff to communicate freely and privately with an ombudsman; or

(3)retaliate against any resident, resident representative, complainant, or staff member for filing a complaint with, providing information to, or otherwise cooperating with any ombudsman.

9 NYCRR 6660.10 - Procedures for ombudsman access to records

Source version current through Mar 31, 2022

A matched Register action is not later than the compiled-text reference date.

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Dates and status

NYCRR title agency: Executive Department
Section status: Section source receipt
Source version current through: Mar 31, 2022
Related Register notice: AGE-42-17-00001-P · Proposed rule
Related notice published: Oct 18, 2017

(a)An ombudsman shall have timely access to:

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

(i)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;

(ii)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 the ombudsman in accordance with procedures of the State ombudsman; and

(iii)access is necessary in order to investigate a complaint, the resident representative refuses to consent to the access, the 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)copies of all licensing and certification records maintained by the State with respect to long-term care facilities and information collected in the course of a State or Federal survey or inspection process; and

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

(b)An ombudsman shall not seek access to a resident’s medical, social, or other records except for the purpose of investigating a complaint made by or on behalf of one or more residents.

(c)An ombudsman shall not remove the original record from the premises of the facility providing care to the resident. Any copies removed from the premises by the ombudsman are subject to the confidentiality provisions of this Part.

(d)An ombudsman shall not disclose to any person outside of the ombudsman program any information obtained from a resident’s medical, social, or other records without the informed consent of the resident or resident representative or in accordance with procedures outlined in this Part.

9 NYCRR 6660.11 - Disclosure

Source version current through Mar 31, 2022

A matched Register action is not later than the compiled-text reference date.

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Dates and status

NYCRR title agency: Executive Department
Section status: Section source receipt
Source version current through: Mar 31, 2022
Related Register notice: AGE-42-17-00001-P · Proposed rule
Related notice published: Oct 18, 2017

(a)Except as otherwise provided in this Part, no identifying information of any resident or complainant may be disclosed, unless the resident, complainant, or the resident representative communicates informed consent or the disclosure is required by court order.

(b)Except as otherwise provided in this Part, an ombudsman may not disclose information regarding a complaint to another agency in order for such agency to substantiate the facts for regulatory, protective services, law enforcement, or other purposes unless the goals of a resident or resident representative are for regulatory, protective services or law enforcement action, and the ombudsman determines that the resident or resident representative has communicated informed consent. The ombudsman must assist the resident or resident representative in contacting the appropriate agency and/ or disclose the information for which the resident has provided consent to the appropriate agency for such purposes.

(c)In order to comply with the wishes of the resident, (or, in the case where the resident is unable to communicate informed consent, the wishes of the resident representative), the ombudsman shall not report suspected abuse, neglect or exploitation of a resident when a resident or resident representative has not communicated informed consent to such report except as set forth in this section.

(d)For purposes of subdivisions (a) through (c) of this section, communication of informed consent may be made in writing, including through the use of auxiliary aids and services. Alternatively, communication may be made orally or visually, including through the use of auxiliary aids and services, and such consent must be documented contemporaneously by the ombudsman.

(e)If a resident is unable to communicate informed consent, an ombudsman may refer the matter and disclose resident-identifying information to the appropriate agency or agencies for regulatory oversight; protective services; access to administrative, legal, or other remedies; and/or law enforcement action, if:

(1)the resident has no resident representative or the ombudsman determines that the resident representative is not acting in the best interest of the resident;

(2)the ombudsman has reasonable cause to believe that an action, inaction or decision may adversely affect the health, safety, welfare, or rights of the resident;

(3)the ombudsman has no evidence indicating that the resident would not wish a referral to be made;

(4)the ombudsman has reasonable cause to believe that it is in the best interest of the resident to make a referral; and

(5)the ombudsman obtains the approval of the State ombudsman.

(f)If an ombudsman personally witnesses suspected abuse, gross neglect, or exploitation of a resident, the ombudsman shall seek communication of informed consent from such resident to disclose resident-identifying information to appropriate agencies.

(1)Where such resident is able to communicate informed consent, or has a resident representative available to provide informed consent, the ombudsman shall follow the direction of the resident or resident representative.

(2)Where the resident is unable to communicate informed consent, and has no resident representative available to provide informed consent, the ombudsman shall open a case with the ombudsman as the complainant, follow the ombudsman program’s complaint resolution procedures, and shall refer the matter and disclose identifying information of the resident to the management of the facility in which the resident resides and/or to the appropriate agency or agencies for substantiation of abuse, gross neglect, or exploitation in the following circumstances:

(i)the ombudsman has no evidence indicating that the resident would not wish a referral to be made;

(ii)the ombudsman has reasonable cause to believe that disclosure would be in the best interest of the resident; and

(iii)the ombudsman obtains the approval of the State ombudsman.

(g)Where State ombudsman approval is needed for the disclosure of a resident’s identifying information, the State ombudsman will approve or disapprove such a disclosure within five business days of the date of the request.

(h)Even with consent for disclosure, except pursuant to court order, an ombudsman shall not disclose to any person outside of the ombudsman program any information obtained from a resident’s personal or medical records to which the resident would not otherwise have had the right of access. This restriction shall not prevent an ombudsman from advising a resident of the status or progress of an investigation or from referring such complaint to any agency which licenses, investigates or regulates the facility in which the patient or resident resides or has resided in accordance with the disclosure procedures enumerated in this section.

(i)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, notwithstanding any law to the contrary. However, an ombudsman may report abuse, neglect, exploitation, or maltreatment in accordance the Older Americans Act of 1965, as amended and the regulations promulgated thereunder as well as rules and regulations found in this Part.

9 NYCRR 6660.12 - Investigation of complaints

Source version current through Mar 31, 2022

A matched Register action is not later than the compiled-text reference date.

Top

Dates and status

NYCRR title agency: Executive Department
Section status: Section source receipt
Source version current through: Mar 31, 2022
Related Register notice: AGE-42-17-00001-P · Proposed rule
Related notice published: Oct 18, 2017

(a)With respect to identifying, investigating and resolving complaints, and regardless of the source of the complaint, an ombudsman’s duty is to the resident of the long-term care facility. The ombudsman shall investigate a complaint, including but not limited to a complaint related to abuse, neglect, or exploitation, for the purposes of resolving the complaint to the resident’s satisfaction and/or protecting the health, welfare, and rights of the resident. The ombudsman may identify, investigate and resolve a complaint impacting multiple residents or all residents of a facility.

(b)Regardless of the source of the complaint, including when the source is the ombudsman, the ombudsman must support and maximize resident participation in the process of resolving the complaint as follows:

(1)The ombudsman shall offer privacy to the resident for the purpose of confidentially providing information and hearing, investigating and resolving complaints.

(2)The ombudsman shall personally discuss the complaint with the resident (and, if the resident is unable to communicate informed consent, the resident’s representative) in order to:

(i)determine the perspective of the resident (or resident representative, where applicable) of the complaint;

(ii)request the resident (or resident representative, where applicable) to communicate informed consent in order to investigate the complaint;

(iii)determine the wishes of the resident (or resident representative, where applicable) with respect to resolution of the complaint, including whether the allegations are to be reported and, if so, whether ombudsman may disclose resident identifying information or other relevant information to the facility and/or appropriate agencies;

(iv)advise the resident (and resident representative, where applicable) of the resident’s rights;

(v)work with the resident (or resident representative, where applicable) to develop a plan of action for resolution of the complaint;

(vi)investigate the complaint to determine whether the complaint can be verified; and

(vii)determine whether the complaint is resolved to the satisfaction of the resident (or resident representative, where applicable).

(3)Where the resident is unable to communicate informed consent, and has no resident representative, the ombudsman shall:

(i)take appropriate steps to investigate and work to resolve the complaint in order to protect the health, safety, welfare and rights of the resident, including, where appropriate, following the provisions of section 6660.11 of this Title; and

(ii)to the best of the ombudsman’s ability, determine whether the complaint was resolved to the satisfaction of the resident or complainant.

(4)In determining whether to rely upon a resident representative to communicate or make determinations on behalf of the resident related to complaint processing, the ombudsman shall ascertain the extent of the authority that has been granted to the resident representative under court order (in the case of a guardian or conservator), by power of attorney, or other document by which the resident has granted authority to the representative, or under other applicable State or Federal law.

(c)For purposes of this section, if a resident is unable to communicate his or her informed consent, or perspective on the extent to which the matter has been satisfactorily resolved, the ombudsman may rely on the communication of informed consent and/or perspective regarding the resolution of the complaint of a resident representative so long as the ombudsman has no reasonable cause to believe that the resident representative is not acting in the best interests.

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