OLR Bill Analysis
AN ACT REQUIRING THE STATE OMBUDSMAN TO INVESTIGATE COMPLAINTS CONCERNING RECIPIENTS OF HOME AND COMMUNITY-BASED CARE.
This bill expands the Long Term Care Ombudsman Program's (LTCOP) oversight to include home and community-based services recipients. The bill defines “home and community-based services” as long-term care provided to an individual age 60 or older in a home or community setting, or both. By law, LTCOP is administered by the Office of the Long Term Care Ombudsman and oversees residents in nursing and residential care homes and assisted living facilities (i.e., long-term care facilities).
Among other things, the bill:
1. expands the duties the state ombudsman and regional ombudsmen must perform to cover recipients of, and applicants for, home and community-based services;
2. extends the ombudsman's investigative authority to home and community-based services;
3. gives the ombudsman or her representatives the same access to home and community-based services records that she currently has with respect to long-term care facility records;
4. applies the same $3,000 civil penalty to certain actions concerning home and community-based services and their recipients as currently applies to long-term care facilities and residents;
5. requires the ombudsman to include certain information about its home and community-based services activities in its annual report;
6. expands the State Department on Aging's (SDA) uniform data collection system to include data and analysis relating to complaints and conditions of home and community-based services;
7. requires SDA to extend certain disclosure and conflict of interest provisions to the state ombudsman regarding home and community-based services; and
8. requires SDA to ensure the provision of legal counsel to recipients of such services.
The bill creates the position of assistant state ombudsman to assist the state ombudsman in carrying out her duties. It requires the state ombudsman to appoint (1) the assistant state ombudsman and (2) someone to act for the assistant whenever he or she cannot perform the duties of the office.
The bill also (1) repeals a LTCOP home and community based pilot program in Hartford County and (2) makes minor technical and conforming changes.
EFFECTIVE DATE: July 1, 2016
OMBUDSMAN OVERSIGHT OF HOME AND COMMUNITY BASED SERVICES
State Ombudsman's Duties
By law, state and regional ombudsmen must perform specific duties concerning residents and applicants of long-term care facilities. The bill expands these duties to (1) incorporate an assistant state ombudsman and (2) cover recipients of, and applicants for, home and community-based services. Specifically, the state ombudsman, or her representatives, must:
1. identify, investigate and resolve complaints made by, or on behalf of, home and community-based services recipients and applicants that relate to action, inaction, or decisions that may adversely affect the recipients' health, safety, welfare, or rights, including their welfare and rights with respect to the appointment and activities of guardians and certain payees;
2. provide services to protect the health, safety, welfare, and rights of home and community-based services recipients;
3. inform recipients and applicants how to obtain services provided by long-term care facilities, public agencies, and health and social services agencies; and
4. ensure that (a) recipients and applicants have regular and timely access to the office's services (b) LTCOP responds to their complaints in a timely way.
The state ombudsman, or her representatives, must also represent home and community based services recipients' interests before governmental agencies and seek administrative, legal, and other remedies to protect their health, safety, welfare, and rights. This includes:
1. analyzing and monitoring the development and implementation of federal, state, and local laws, regulations, policies, and actions that pertain to the health, safety, welfare, and rights of home and community-based services recipients and applicants;
2. commenting, facilitating public comment on, and recommending changes to such laws, regulations, and policies;
3. advocating for changes in federal, state, and local laws, regulations, policies, and actions pertaining to recipients' and applicants' health, safety, welfare, and rights with respect to the adequacy of home and community-based services and anything else the ombudsman determines appropriate;
4. advocating for appropriate action by groups or agencies with jurisdiction to deal with problems affecting home and community-based services recipients and applicants; and
5. advocating for the enactment of legislative or regulatory recommendations.
By law, the state ombudsman appoints, in consultation with regional ombudsmen, residents' advocates in sufficient number to serve each region's residents of long-term care facilities. The bill requires them to also appoint residents' advocates to each region sufficient to serve its recipients of home and community based services. Residents' advocates are volunteers with demonstrated interest in elderly care and who, if possible, live in the region they will serve.
Regional Ombudsman's Duties
The bill similarly expands the duties of regional ombudsmen to include recipients of home and community-based services. Under the bill, regional ombudsmen must:
1. protect the health, safety, welfare, and rights of home and community-based services recipients;
2. ensure they have timely access to LTCOP representatives and timely responses to complaints and assistance requests;
3. identify, investigate, and resolve certain complaints made by or on their behalf;
4. represent their interests before government agencies; and
5. review, and comment on, if necessary, any existing and proposed laws, regulations, policies, and actions pertaining to the rights and well-being of home and community-based services recipients or applicants.
Existing law requires regional ombudsmen to do this for long-term care facility residents.
Existing law authorizes the state ombudsman to investigate, report on, and make recommendations concerning an agency's, official's, or public employee's act or failure to act with respect to responsibilities and duties connected with long-term care facilities. The bill extends this authorization to home and community-based services.
By law, the state ombudsman's authority does not extend to (1) the courts and court personnel, (2) legislative bodies and personnel, (3) the state's chief executive and his or her personal staff, and (4) all elected officials.
Existing law gives the state ombudsman and her representatives access to long-term care facilities and residents, and appropriate access to certain medical, social, and administrative records and documents to carry out the office's duties, including investigating complaints. The bill extends such access to the records of home and community-based services recipients.
By law, the state ombudsman may access medical and social records if:
1. the recipient or his or her legal representative consents;
2. the resident is unable to consent and has no legal representative; or
3. the access is necessary to investigate a complaint, the recipient's legal guardian refuses permission, and an ombudsman's office representative has reasonable cause to believe the guardian is not acting in the recipient's best interest and obtains the ombudsman's approval.
The bill also extends the ombudsman's existing access to include (1) licensing and certification records the state keeps on home and community-based services providers and (2) all relevant public records, except confidential records which require an individual's written consent before being divulged.
PENALTY FOR INTERFERING
Under the bill, the same $3,000 civil penalty applies to certain actions concerning home and community-based services and their recipients as applies under existing law to long-term care facilities and residents. Specifically, the penalty applies to any:
1. person or entity willfully interfering with ombudsman office representatives in the performance of their official duties;
2. entity retaliating or exacting reprisals against a home and community-based services recipient for filing a complaint with, providing information to, or otherwise cooperating with any office representative; and
3. provider (a) refusing to cooperate with an ombudsman's office representative or (b) refusing to permit recipients or staff to communicate freely with the ombudsman's office.
By law, the penalty also applies to long-term care facilities that refuse entry to an office representative.
The bill specifies that the assistant ombudsman has the same immunity from personal liability as other state employees in civil actions for damages on account of acts or omissions while performing their duties, unless such acts are wanton, willful, or malicious.
The bill also extends to the assistant ombudsman authorization to use any other state department, agency, commission or any other appropriate and available public or private agencies, groups, or individuals to carry out his or her duties.
By law, the state ombudsman, regional ombudsmen, and residents' advocates have the same (1) immunity from personal liability and (2) authorization to use additional resources.
DEPARTMENT OF AGING
By law, the aging commissioner requires the state ombudsman to prepare an annual report that, among other things, describes the office's activities, evaluates residents' problems and complaints, and makes certain recommendations. The bill requires that the report also contain such information about home and community-based services recipients. As it applies to such recipients, the report must:
1. contain and analyze data collected on home and community-based services recipients;
2. evaluate their problems, experiences, and complaints;
3. contain recommendations for (a) improving their quality of care and life and (b) protecting their health, safety, welfare, and rights;
4. analyze LTCOP's success in providing them with services;
5. provide policy, regulatory, and legislative recommendations to (a) solve identified problems, (b) resolve complaints, (c) improve their quality of care and life and protect their health, safety, welfare, and rights, and (d) remove barriers that prevent program optimization;
6. analyze, comment on, and monitor federal, state, and local laws and regulations pertaining to home and community-based services and recommend changes in them as the office determines appropriate; and
7. provide information the ombudsman's office determines to be necessary to public and private agencies, legislators, and others regarding the problems and concerns of older individuals receiving home and community-based care and related recommendations.
By law, the ombudsman must (1) make the report available to the public and (2) submit it to the federal assistant secretary for aging, the Governor, the General Assembly, the Department of Public Health (DPH), and other appropriate government agencies.
Information Collection and Analysis
The bill expands SDA's statewide uniform data collection system to include data and analysis relating to complaints and conditions of home and community-based services. By law, SDA must collect, analyze, and regularly submit data relating to complaints and conditions in long-term care facilities to (1) DPH, (2) other state and federal entities that the state ombudsman determines to be appropriate, and (3) the National Ombudsman Resource Center.
By law, SDA must prohibit, with respect to any records or files the ombudsman's office maintains, identifying a complainant or resident of a long-term care facility without the individual's or their representative's consent, unless ordered by a court. The bill extends this confidentiality to include complainants about home or community-based services.
Conflict of Interest
The bill requires SDA to ensure the state ombudsman:
1. does not have direct involvement in the licensing or certification of home and community-based services providers;
2. does not have an ownership or investment interest, or other financial relationship, with any such services;
3. does not receive or have a right to receive compensation from any provider; and
4. is not employed by or participating in the management of any provider.
Existing law has similar conflict of interest provisions regarding the state ombudsman and long-term care facilities.
The bill requires SDA to ensure that:
1. adequate legal counsel is available, without conflict of interest, to provide advice and consultation necessary to protect the health, safety, welfare, and rights of home and community-based services recipients and applicants and
2. administrative, legal, and other appropriate remedies are pursued on behalf of home and community-based services recipients and applicants.
Existing law requires SDA to do so with respect to long-term care residents and applicants.