Connecticut Seal

General Assembly

 

Substitute Bill No. 5285

February Session, 2016

 

*_____HB05285AGE___030916____*

AN ACT REQUIRING THE STATE OMBUDSMAN TO INVESTIGATE COMPLAINTS CONCERNING RECIPIENTS OF HOME AND COMMUNITY-BASED CARE.

Be it enacted by the Senate and House of Representatives in General Assembly convened:

Section 1. Section 17a-405 of the general statutes is repealed and the following is substituted in lieu thereof (Effective July 1, 2016):

(a) As used in this chapter:

(1) "State agency" means the Department on Aging.

(2) "Office" means the Office of the Long-Term Care Ombudsman established in this section.

(3) "State Ombudsman" means the State Ombudsman established in this section.

(4) "Assistant State Ombudsman" means the person appointed by the State Ombudsman to assist the State Ombudsman in carrying out the duties of the State Ombudsman pursuant to section 17a-408, as amended by this act.

[(4)] (5) "Program" means the long-term care ombudsman program administered by the Office of the Long-Term Care Ombudsman established in this section.

[(5)] (6) "Representative" includes the Assistant State Ombudsman, a regional ombudsman, a residents' advocate or an employee of the Office of the Long-Term Care Ombudsman who is individually designated by the State Ombudsman.

[(6)] (7) "Resident" means an [older] individual who resides in or is a patient in a long-term care facility who is sixty years of age or older.

[(7)] (8) "Long-term care facility" means any skilled nursing facility, as defined in Section 1819(a) of the Social Security Act, (42 USC 1395i-3(a)) any nursing facility, as defined in Section 1919(a) of the Social Security Act, (42 USC 1396r(a)) a board and care facility as defined in Section 102(19) of the federal Older Americans Act, (42 USC 3002(19)) and for purposes of ombudsman program coverage, an institution regulated by the state pursuant to Section 1616(e) of the Social Security Act, (42 USC 1382e(e)) and any other adult care home similar to a facility or nursing facility or board and care home.

[(8)] (9) "Commissioner" means the Commissioner on Aging.

[(9)] (10) "Applicant" means an [older] individual who has applied for admission to a long-term care facility or for home and community-based services.

(11) "Home and community-based services" means long-term care provided in a home or community setting, or both, to a recipient who is sixty years of age or older.

(b) There is established an independent Office of the Long-Term Care Ombudsman within the Department on Aging. The Commissioner on Aging shall appoint a State Ombudsman who shall be selected from among individuals with expertise and experience in the fields of long-term care and advocacy to head the office and the State Ombudsman shall appoint an Assistant State Ombudsman and assistant regional ombudsmen. In the event the State Ombudsman [or an assistant regional ombudsman] is unable to fulfill the duties of the office, the commissioner shall appoint an acting State Ombudsman. [and] In the event the Assistant State Ombudsman or a regional ombudsman is unable to fulfill the duties of the office, the State Ombudsman shall appoint an acting Assistant State Ombudsman or an acting assistant regional ombudsman, as the case may be.

(c) Notwithstanding the provisions of subsection (b) of this section, on and after July 1, 1990, the positions of State Ombudsman and regional ombudsmen shall be classified service positions. The State Ombudsman and regional ombudsmen holding said positions on said date shall continue to serve in their positions as if selected through classified service procedures. As vacancies occur in such positions thereafter, such vacancies shall be filled in accordance with classified service procedures.

Sec. 2. Subsection (a) of section 17a-406 of the general statutes is repealed and the following is substituted in lieu thereof (Effective July 1, 2016):

(a) Residents' advocates shall be appointed by the State Ombudsman, in consultation with the regional ombudsmen, for each region in sufficient number to serve the long-term care facilities and recipients of home and community-based services, within such region. Such residents' advocates shall, if possible, be residents of the region in which they will serve, and shall have demonstrated an interest in the care of the elderly. Residents' advocates shall serve without compensation but may be reimbursed for reasonable expenses incurred in the performance of their duties, within available appropriations.

Sec. 3. Section 17a-408 of the 2016 supplement to the general statutes is repealed and the following is substituted in lieu thereof (Effective July 1, 2016):

(a) The State Ombudsman shall establish and operate ombudsman programs in this state pursuant to Sections 711 to 713, inclusive, of the federal Older Americans Act of 1965, as amended from time to time.

(b) The State Ombudsman shall serve on a full-time basis, and shall personally or through representatives of the office:

(1) Identify, investigate and resolve complaints that:

(A) Are made by, or on behalf of, residents of long-term care facilities and recipients of home and community-based services or, as to complaints involving the application for admission to a long-term care facility or for home and community-based services, by or on behalf of applicants; and

(B) Relate to action, inaction or decisions that may adversely affect the health, safety, welfare or rights of the residents of long-term care facilities and recipients of home and community-based services, including the welfare and rights of the residents and recipients with respect to the appointment and activities of guardians and representative payees, of (i) providers or representatives of providers of long-term care services and home and community-based services, (ii) public agencies, or (iii) health and social service agencies;

(2) Provide services to protect the health, safety, welfare and rights of the residents of long-term care facilities and recipients of home and community-based services;

(3) Inform the residents of long-term care facilities and recipients of home and community-based services about means of obtaining services provided by providers or agencies described in subparagraph (B) of subdivision (1) of this subsection or services described in subdivision (2) of this subsection;

(4) Ensure that the residents of long-term care facilities, recipients of home and community-based services and [, as to issues involving applications for admission to long-term care facilities,] applicants have regular and timely access to the services provided through the office and that the residents of long-term care facilities, recipients of home and community-based services, applicants and other complainants receive timely responses from representatives of the office to complaints;

(5) Represent the interests of the residents [,] of long-term care facilities, recipients of home and community-based services and [of] applicants in relation to issues concerning applications [to long-term care facilities,] before governmental agencies and seek administrative, legal and other remedies to protect the health, safety, welfare and rights of the residents, recipients and applicants;

(6) Provide administrative and technical assistance to representatives and training in areas including, but not limited to, Alzheimer's disease and dementia symptoms and care;

(7) (A) Analyze, comment on and monitor the development and implementation of federal, state and local laws, regulations, and other governmental policies and actions that pertain to the health, safety, welfare and rights of the residents of long-term care facilities and recipients of home and community-based services with respect to the adequacy of long-term care facilities and home and community-based services in this state and to the rights of applicants in relation to applications to long-term care facilities and for home and community-based services;

(B) Recommend any changes in such laws, regulations, policies and actions as the office determines to be appropriate; and

(C) Facilitate public comment on such laws, regulations, policies and actions;

(8) Advocate for:

(A) Any changes in federal, state and local laws, regulations and other governmental policies and actions that pertain to the health, safety, welfare and rights of residents of long-term care facilities and recipients of home and community-based services with respect to the adequacy of long-term care facilities and home and community-based services in this state and to the health, safety, welfare and rights of applicants [which] to long-term care facilities and recipients of home and community-based services that the State Ombudsman determines to be appropriate;

(B) Appropriate action by groups or agencies with jurisdictional authority to deal with problems affecting individual residents of long-term care facilities and recipients of home and community-based services and the general resident population and applicants in relation to issues concerning applications to long-term care facilities and for home and community-based services; and

(C) The enactment of legislative recommendations by the General Assembly and of regulatory recommendations by commissioners of Connecticut state agencies;

(9) (A) Provide for training representatives of the office;

(B) Promote the development of citizen organizations to participate in the program; and

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

(10) Coordinate ombudsman services with the protection and advocacy systems for individuals with developmental disabilities and mental illnesses established under (A) Part A of the Development Disabilities Assistance and Bill of Rights Act (42 USC 6001, et seq.), and (B) The Protection and Advocacy for Mentally Ill Individuals Act of 1986 (42 USC 10801 et seq.);

(11) Coordinate, to the greatest extent possible, ombudsman services with legal assistance provided under Section 306(a)(2)(C) of the federal Older Americans Act of 1965, (42 USC 3026(a)(2)(C)) as amended from time to time, through the adoption of memoranda of understanding and other means;

(12) Create, and periodically update as needed, a training manual for nursing home facilities identified in section 19a-522c that provides guidance on structuring and implementing the training required by said section;

(13) Provide services described in this subsection, to residents under age sixty living in a long-term care facility, if (A) a majority of the residents of the facility where the younger person resides are over age sixty and (B) such services do not weaken or decrease service to older individuals covered under this chapter;

(14) [Implement and administer, within available appropriations, a pilot program that serves home and community-based care recipients in Hartford County] Provide services described in this subsection to residents of long-term care facilities and recipients of home and community-based services; and

(15) Carry out such other activities and duties as may be required under federal law.

Sec. 4. Section 17a-409 of the general statutes is repealed and the following is substituted in lieu thereof (Effective July 1, 2016):

The State Ombudsman is authorized to investigate and make reports and recommendations concerning any act or the failure to act by any agency, official or public employee, with respect to their responsibilities and duties in connection with long-term care facilities or home and community-based services, except the courts and their personnel, legislative bodies and their personnel and the chief executive of the state and the chief executive's personal staff and all elected officials.

Sec. 5. Section 17a-410 of the general statutes is repealed and the following is substituted in lieu thereof (Effective July 1, 2016):

The regional ombudsmen shall, in accordance with the policies and procedures established by the Office of the Long-Term Care Ombudsman:

(1) Provide services to protect the health, safety, welfare and rights of residents of long-term care facilities or recipients of home and community-based services;

(2) Ensure that residents of long-term care facilities or recipients of home and community-based services in service areas have regular timely access to representatives of the program and timely responses to complaints and requests for assistance;

(3) Identify, investigate and resolve complaints made by or on behalf of residents of long-term care facilities or recipients of home and community-based services that relate to action, inaction or decisions that may adversely affect the health, safety, welfare or rights of [the] residents or recipients or by, or on behalf of, applicants in relation to issues concerning applications; [to long-term care facilities;]

(4) Represent the interests of residents of long-term care facilities or recipients of home and community-based services and applicants, in relation to their applications, [to long-term care facilities,] before government agencies and seek administrative, legal and other remedies to protect the health, safety, welfare and rights of [the] residents and recipients;

(5) (A) Review and, if necessary, comment on any existing and proposed laws, regulations and other government policies and actions that pertain to the rights and well-being of residents of long-term care facilities or recipients of home and community-based services and applicants in relation to their applications; [to long-term care facilities,] and (B) facilitate the ability of the public to comment on the laws, regulations, policies and actions;

(6) Support the development of resident and family councils; and

(7) Carry out other activities that the State Ombudsman determines to be appropriate.

Sec. 6. Section 17a-414 of the general statutes is repealed and the following is substituted in lieu thereof (Effective July 1, 2016):

(a) The state agency shall ensure that:

(1) Adequate legal counsel is available and is able, without conflict of interest, to: (A) Provide advice and consultation needed to protect the health, safety, welfare and rights of residents of long-term care facilities, recipients of home and community-based services and applicants in relation to their applications; [to long-term care facilities;] and (B) assist the ombudsman and representatives of the office in the performance of the official duties of the ombudsman and representatives; and

(2) Administrative, legal and other appropriate remedies are pursued on behalf of residents of long-term care facilities, recipients of home and community-based services and applicants in relation to their applications. [to long-term care facilities.]

(b) The Assistant State Ombudsman, regional ombudsmen and residents' advocates shall be considered state employees under section 4-141 for the purposes of any civil action for damages on account of any act or omission that is not wanton, wilful or malicious and that is within the scope of employment or duties under sections 17a-405 to 17a-417, inclusive, as amended by this act, 19a-531 and 19a-532.

Sec. 7. Section 17a-415 of the general statutes is repealed and the following is substituted in lieu thereof (Effective July 1, 2016):

(a) The [ombudsman] State Ombudsman, Assistant State Ombudsman, regional ombudsmen and representatives of the office shall have:

(1) Access to long-term care facilities and residents;

(2) Appropriate access to review the medical and social records of a resident of a long-term care facility or recipient of home and community-based services, if (A) the representative has the permission of the resident, recipient or the legal representative of the resident or recipient, (B) the resident or recipient is unable to consent to the review and has no legal representative, or (C) access to the records is necessary to investigate a complaint and a legal guardian of the resident or recipient refuses to give permission, a representative of the office has reasonable cause to believe that the guardian is not acting in the best interests of the resident or recipient, and the representative obtains the approval of the [ombudsman] State Ombudsman;

(3) Access to the administrative records, policies and documents, to which the residents have, or the general public has access, of long-term care facilities; and

(4) Access to and, on request, copies of all licensing and certification records maintained by the state with respect to long-term care facilities and providers of home and community-based services.

(b) Any person or entity who wilfully interferes with representatives of the office in the performance of the official duties of the representatives, or any long-term care facility or other entity which retaliates or exacts reprisals with respect to any resident of a long-term care facility, recipient of home and community-based services, employee or other person for filing a complaint with, providing information to, or otherwise cooperating with any representative of the office, or long-term care facility which refuses to permit the State Ombudsman, [or] Assistant State Ombudsman, any regional ombudsman or any residents' advocate entry into such facility or refuses to cooperate with the State Ombudsman, [or] Assistant State Ombudsman, any regional ombudsman or any residents' advocate in the carrying out of [their] his or her mandated duties and responsibilities enumerated under sections 17a-405 to 17a-417, inclusive, as amended by this act, 19a-531 and 19a-532 or refuses to permit [residents] any resident of a long-term care facility or recipient of home and community-based services or staff to communicate freely with the State Ombudsman, [or] Assistant State Ombudsman, any regional ombudsman or any residents' advocate shall be subject to the penalty prescribed for a class B violation under section 19a-527.

(c) In carrying out the duties enumerated in sections 17a-405 to 17a-417, inclusive, as amended by this act, 19a-531 and 19a-532, the State Ombudsman, the Assistant State Ombudsman, the regional ombudsmen and the residents' advocates shall have access to all relevant public records, except [that] records [which] that are confidential to a resident of a long-term care facility or recipient of home and community-based services shall only be divulged with the written consent of the resident or recipient.

(d) In the performance of the duties and responsibilities enumerated under sections 17a-405 to 17a-417, inclusive, as amended by this act, 19a-531 and 19a-532, the State Ombudsman, the Assistant State Ombudsman, the regional ombudsmen and the residents' advocates may utilize any other state department, agency or commission, or any other public or private agencies, groups or individuals who are appropriate and who may be available.

Sec. 8. Section 17a-417 of the general statutes is repealed and the following is substituted in lieu thereof (Effective July 1, 2016):

The Commissioner on Aging shall require the State Ombudsman to:

(1) Prepare an annual report:

(A) Describing the activities carried out by the office in the year for which the report is prepared;

(B) Containing and analyzing the data collected under section 17a-418, as amended by this act;

(C) Evaluating the problems experienced by, and the complaints made by or on behalf of, residents of long-term care facilities and recipients of home and community-based services;

(D) Containing recommendations for (i) improving the quality of the care and life of [the] residents of long-term care facilities and recipients of home and community-based services, and (ii) protecting the health, safety, welfare and rights of the residents of long-term care facilities and recipients of home and community-based services;

(E) (i) Analyzing the success of the program including success in providing services to residents of long-term care facilities and recipients of home and community-based services; and (ii) identifying barriers that prevent the optimal operation of the program; and

(F) Providing policy, regulatory and legislative recommendations to solve identified problems, to resolve the complaints, to improve the quality of the care and life of residents of long-term care facilities and recipients of home and community-based services, to protect the health, safety, welfare and rights of residents of long-term care facilities and recipients of home and community-based services and to remove the barriers that prevent the optimal operation of the program.

(2) Analyze, comment on and monitor the development and implementation of federal, state and local laws, regulations and other government policies and actions that pertain to long-term care facilities and home and community-based services, and to the health, safety, welfare and rights of residents of long-term care facilities and recipients of home and community-based services, in the state, and recommend any changes in such laws, regulations and policies as the office determines to be appropriate.

(3) (A) Provide such information as the office determines to be necessary to public and private agencies, legislators and other persons, regarding (i) the problems and concerns of [older] individuals residing in long-term care facilities and recipients of home and community-based services; and (ii) recommendations related to the problems and concerns; and (B) make available to the public and submit to the federal assistant secretary for aging, the Governor, the General Assembly, the Department of Public Health and other appropriate governmental entities, each report prepared under subdivision (1) of this section.

Sec. 9. Section 17a-418 of the general statutes is repealed and the following is substituted in lieu thereof (Effective July 1, 2016):

The state agency shall establish a state-wide uniform system to: (1) Collect and analyze data relating to complaints and conditions in long-term care facilities and [to residents] complaints relating to services provided to recipients of home and community-based services for the purpose of identifying and resolving significant problems; and (2) submit the data, on a regular basis to: (A) The Department of Public Health; (B) other state and federal entities that the State Ombudsman determines to be appropriate; and (C) the National Ombudsman Resource Center, established in Section 202(a)(21) of the federal Older Americans Act of 1965, as amended from time to time.

Sec. 10. Section 17a-419 of the general statutes is repealed and the following is substituted in lieu thereof (Effective July 1, 2016):

The state agency shall:

(1) Provide that the files and records maintained by the program may be disclosed only at the discretion of the State Ombudsman or the person designated by the ombudsman to disclose the files and records; and

(2) Prohibit the disclosure of the identity of any complainant or resident of a long-term care facility or recipient of home and community-based services with respect to whom the office maintains such files or records unless (A) the complainant, [or] resident of a long-term care facility or recipient of home and community-based services, or the legal representative of the complainant, [or] resident [,] or recipient consents to the disclosure and the consent is given in writing; (B) (i) the complainant, [or] resident or recipient gives consent orally; and (ii) the consent is documented contemporaneously in a writing made by a representative of the office in accordance with such requirements as the state agency shall establish; or (iii) the disclosure is required by court order.

Sec. 11. Subdivision (3) of section 17a-421 of the general statutes is repealed and the following is substituted in lieu thereof (Effective July 1, 2016):

(3) Ensure that the State Ombudsman: (A) Does not have a direct involvement in the licensing or certification of a long-term care facility or of a provider of a long-term care or a home and community-based service; (B) does not have an ownership or investment interest, represented by equity, debt or other financial relationship, in a long-term care facility or a long-term care or a home and community-based service; (C) is not employed by, or participating in the management of, a long-term care facility or a home and community-based service; and (D) does not receive, or have 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 or a home and community-based service; and

This act shall take effect as follows and shall amend the following sections:

Section 1

July 1, 2016

17a-405

Sec. 2

July 1, 2016

17a-406(a)

Sec. 3

July 1, 2016

17a-408

Sec. 4

July 1, 2016

17a-409

Sec. 5

July 1, 2016

17a-410

Sec. 6

July 1, 2016

17a-414

Sec. 7

July 1, 2016

17a-415

Sec. 8

July 1, 2016

17a-417

Sec. 9

July 1, 2016

17a-418

Sec. 10

July 1, 2016

17a-419

Sec. 11

July 1, 2016

17a-421(3)

Statement of Legislative Commissioners:

In Section 7(b), "any resident or recipient" was changed to "any resident of a long-term care facility or recipient"; in Section 8(1)(C), (D) and (F), "residents and recipients" was changed to "residents of long-term care facilities and recipients"; and in Section 10(2), "resident or recipient of home" was changed to "resident of a long-term care facility or recipient of home" for clarity and internal consistency.

AGE

Joint Favorable Subst. -LCO