§ 218. Long-term care ombudsman. 1. Definitions. For the purposes of
this section, the following terms shall have the following meanings:

(a) "Administrative action" shall mean any action or decision by an
owner, employee, or agent of a long-term care facility, or by a
government agency, which affects the provision of service to residents
of or applicants for admission to long-term care facilities.

(b) "Immediate family" pertaining to conflicts of interest, shall mean
a member of the household or a relative with whom there is a close
personal or significant financial relationship.

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

* (d) "Long-term care facilities" shall mean residential health care
facilities as defined in subdivision three of section twenty-eight
hundred one of the public health law; adult care facilities as defined
in subdivision twenty-one of section two of the social services law,
including those adult homes and enriched housing programs licensed as
assisted living residences, pursuant to article forty-six-B of the
public health law; or any facilities which hold themselves out or
advertise themselves as providing assisted living services and which are
required to be licensed or certified under the social services law or
the public health law. Within the amounts appropriated therefor,
"long-term care facilities" shall also mean managed long-term care plans
and approved managed long-term care or operating demonstrations as
defined in section forty-four hundred three-f of the public health law
and the term "resident", "residents", "patient" and "patients" shall
also include enrollees of such plans.

* NB Effective until December 31, 2025

* (d) "Long-term care facilities" shall mean residential health care
facilities as defined in subdivision three of section twenty-eight
hundred one of the public health law, adult care facilities as defined
in subdivision twenty-one of section two of the social services law, and
assisted living residences, as defined in article forty-six-B of the
public health law, or any facilities which hold themselves out or
advertise themselves as providing assisted living services and which are
required to be licensed or certified under the social services law or
the public health law.

* NB Effective December 31, 2025

(e) "Long-term care ombudsman" or "ombudsman" shall mean a person who:

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

(2) has been verified as having successfully completing a
certification training program developed by the state ombudsman; and

(3) has a current designation as a long-term care ombudsman by the
state long-term care ombudsman.

(f) "Resident representative" shall mean either of the following:

(1) an individual chosen by the resident to act on behalf of the
resident in order to support the resident in decision-making; access
medical, social, or other personal information of the resident; manage
financial matters; or receive notifications;

(2) a person authorized by state or federal law (including but not
limited to agents under power of attorney, representative payees, and
other fiduciaries) to act on behalf of the resident in order to support
the resident in decision-making; access medical, social, or other
personal information of the resident; manage financial matters; or
receive notifications;

(3) a legal representative, as used in section 712 of the older
Americans act of 1965, as amended; or

(4) the court-appointed guardian or conservator of the resident.

(5) Nothing in this section is intended to expand the scope of
authority of any resident representative beyond that authority
specifically authorized by the resident, state or federal law, or a
court of competent jurisdiction.

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

(h) "Willful interference" shall mean actions or inactions taken by an
individual in an attempt to intentionally prevent, interfere with, or
attempt to impede an ombudsman from performing any of the functions or
responsibilities of the office of the state long-term care ombudsman.

2. Office of the state long-term care ombudsman established. (a) There
is hereby established within the state office for the aging an office of
the state long-term care ombudsman which shall be headed by the state
long-term care ombudsman, who shall carry out, directly and/or through
local ombudsman entities, the duties set forth in this section.

(b) The office of the state long-term care ombudsman is a distinct
entity, separately identifiable, and located within the state office for
the aging.

(c) The state office for the aging shall provide the long-term care
ombudsman program with legal counsel that is adequate, available, has
competencies relevant to the legal needs of the program, and is without
conflict of interest as determined by the state office for the aging in
consultation with the state long-term care ombudsman.

(d) The state office for the aging shall not establish personnel
policies or practices which prohibit the ombudsman from performing the
functions and responsibilities of the ombudsman, as set forth in this
section.

(e) Nothing in this section shall prohibit the state office for the
aging from requiring that the state ombudsman, or other employees of the
office of the state long-term care ombudsman, adhere to the personnel
policies and procedures of the state office for the aging.

3. State long-term care ombudsman. (a) The director of the state
office for the aging shall appoint a full-time state long-term care
ombudsman to administer and supervise the office of the state long-term
care ombudsman.

(b) The state ombudsman shall be selected from among individuals with
expertise and experience in long-term care and advocacy, long-term
services and supports or other direct services for older persons or
individuals with disabilities, consumer-oriented public policy advocacy,
leadership and program management skills, negotiation and problem
resolution skills, and with other qualifications determined by the
director of the state office for the aging to be appropriate for the
position.

(c) Any actual and potential conflicts of interest shall be identified
and addressed in accordance with subdivision ten of this section.

(d) The state ombudsman, personally or through authorized
representatives shall:

(1) identify, investigate and resolve complaints that are made by, or
on behalf of, long-term care residents in this state and that relate to
actions, inactions or decisions that may adversely affect the health,
safety and welfare or rights of such residents; the state ombudsman may
refer to the appropriate investigatory agency information obtained
during the investigation of a complaint which suggests the possible
occurrence of physical abuse, mistreatment or neglect or Medicaid fraud,
in accordance with the older Americans act of 1965, as amended and the
regulations promulgated thereunder as well as rules and regulations
promulgated by the state office for the aging; provided, however, that
upon consent of the resident, the ombudsman or state ombudsman shall
immediately make such referral. Nothing in this section shall be
construed as authorizing the state ombudsman to impose a resolution
unacceptable to either party involved in a complaint or to assume powers
delegated to the commissioner of health or the department of health
pursuant to article twenty-eight of the public health law or to the
commissioner of the office of children and family services or the office
of children and family services pursuant to the social services law; nor
does it authorize the state ombudsman to investigate final
administrative determinations made pursuant to law by such commissioners
if such decisions become the subject of complaints to the state
ombudsman;

(2) provide services to assist residents in protecting their health,
safety, welfare and rights, including but not limited to representing
the interests of residents before governmental agencies and seeking
appropriate administrative, legal and other remedies to protect their
welfare, safety, health and rights;

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

(4) analyze, comment on, and monitor the development and
implementation of federal, state and local laws, regulations, policies
and actions that pertain to the health, safety, welfare, and rights of
the residents of long-term care facilities and services in the state;

(5) ensure that residents have regular and timely access to the
services provided through the long-term care ombudsman program and that
residents and complainants receive timely responses to requests for
information and complaints;

(6) recommend changes in federal, state and local laws, regulations,
policies, and actions pertaining to the health, safety, welfare, and
rights of residents;

(7) develop a certification training program and continuing education
for ombudsmen which at a minimum shall specify the minimum hours of
training, the annual number of hours of in-service training, and the
content of the training, including, but not limited to, training
relating to cultural competency and diversity, federal, state, and local
laws, regulations, and policies with respect to long-term care
facilities in the state, investigative and resolution techniques, and
such other training-related matters as the state ombudsman determines to
be appropriate;

(8) provide administrative and technical assistance to long-term care
ombudsmen and local ombudsman entities;

(9) make determinations and establish positions of the office of the
state long-term care ombudsman, without necessarily representing the
determinations or positions of the state office for the aging;

(10) recommend to the director of the state office for the aging
policies and procedures for the state long-term care ombudsman program;

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

(12) promote, provide technical support for the development of, and
provide ongoing support as requested by resident and family councils to
protect the well-being and rights of residents;

(13) provide leadership to statewide systems advocacy efforts of the
office of the state long-term care ombudsman on behalf of long-term care
facility residents, including coordination of systems advocacy efforts
carried out by representatives of the office of the state long-term care
ombudsman;

(14) in accordance with applicable state contracting procedures,
coordinate with the state office for the aging in the review and
approval of plans or contracts governing local ombudsman entity
operations;

(15) carry out such other activities as the director of the state
office for the aging determines to be appropriate pursuant to the
federal older Americans act of 1965 and other applicable federal and
state laws and related regulations as may, from time to time, be
amended; and

(16) in accordance with the regulations promulgated under this section
provide the director of the state office for the aging with notice prior
to performing the activities identified in paragraphs four, six and nine
of this subdivision. Such notice shall not give the director of the
state office for the aging or any other state official the right to
pre-approve the position or communications of the state ombudsman.

(e) The state ombudsman, with the approval of the director of the
state office for the aging, may appoint one or more assistant state
long-term care ombudsmen to assist the state ombudsman in the
performance of his or her duties under this section. Such assistant
state ombudsmen must be verified as having completed a certification
training program developed by the state ombudsman within six (6) months
of their appointment as assistant state ombudsmen.

(f)(1) The state ombudsman shall only appoint as ombudsmen individuals
who have been verified as completing the certification training program
developed by the state ombudsman. In addition, the state long-term care
ombudsman may refuse, suspend, or remove such appointments of ombudsmen.

(2) The state ombudsman shall develop a grievance process to offer an
opportunity for reconsideration of any decision to refuse, suspend, or
remove appointment of any ombudsman. Notwithstanding the grievance
process, the state ombudsman shall make the final determination to
designate or to refuse, suspend, or remove appointment of an ombudsman.

(g) Any actual and potential conflicts of interest shall be identified
and addressed in accordance with subdivision ten of this section.

* (h) Within the amounts appropriated therefor, the state long-term
care ombudsman program shall include services specifically designed to
serve persons enrolled in managed long-term care plans or approved
managed long-term care or operating demonstrations authorized under
section forty-four hundred three-f of the public health law, and shall
also review and respond to complaints relating to marketing practices by
such plans and demonstrations.

* NB Repealed December 31, 2025

4. Local long-term care ombudsman program. (a) The state ombudsman, in
accordance with applicable state contracting procedures, may designate
an entity to operate a local long-term care ombudsman program for one or
more counties, and shall monitor the performance of such entity. If the
state office for the aging is aware or becomes aware of any evidence
that the designation of an entity to operate a long-term care ombudsman
program by the state long-term care ombudsman would result in legal
concerns or liability for the state office for the aging or office of
the state long-term care ombudsman, the state ombudsman will comply with
the state office for the aging's determination that such designation
should not be made.

(b) The designated entity shall be an area agency on aging, a public
agency or a private not-for-profit corporation which is free from any
conflict of interest that cannot be remedied. Any actual and potential
conflicts of interest shall be identified and addressed in accordance
with subdivision ten of this section.

(c)(1) Each local long-term care ombudsman program shall be directed
by a qualified individual who is employed and paid by the local entity
and who shall have the duties and responsibilities as provided in
regulations, consistent with the provisions of this section and of Title
VII of the federal older Americans act of 1965, as amended. In addition,
upon designation, the entity is responsible for providing for adequate
and qualified staff, which may include trained volunteers to perform the
functions of the local long-term care ombudsman program.

(2) No local program staff, including the supervisor and any
volunteers, shall perform or carry out the activities on behalf of the
state long-term care ombudsman program unless such staff has been
verified as completing the training program developed by the state
ombudsman and has been approved by the state ombudsman as qualified to
carry out the activities on behalf of the local program.

(d) When the state ombudsman determines that a local long-term care
ombudsman program does not meet the standards set forth in this section
and in any related regulations, the state ombudsman, in coordination
with the state office for the aging, may refuse, suspend, or remove the
designation of the local ombudsmen entity. Prior to taking such action,
the state ombudsman shall send to the affected local program a notice of
the state ombudsman's intentions to refuse, suspend, or remove the
designation; provided, however, if the state office for the aging is
aware or becomes aware of evidence that the designation or continued
designation of an entity to operate a long-term care ombudsman program
would result in legal concerns or liability for the state office for the
aging or the office of the state long-term care ombudsman, the state
ombudsman will comply with the state office for the aging's
determination that such designation should not be made or that such
designation be refused, suspended, or removed.

(e) The state ombudsman shall develop a grievance process to offer an
opportunity for reconsideration of any decision to refuse, suspend, or
remove the designation of a local ombudsman entity. Notwithstanding the
grievance process, the state ombudsman shall make the final
determination to designate or to refuse, suspend, or remove the
designation of a local ombudsman entity; provided, however, if the state
office for the aging is aware or becomes aware of any evidence that the
designation of an entity to operate a long-term care ombudsman program
by the state long-term care ombudsman or that the failure of the state
ombudsman to refuse, suspend, or remove the designation of a local
ombudsman entity would result in legal concerns or liability for the
state office for the aging or the office of the state long-term care
ombudsman, the state ombudsman will comply with the state office for the
aging's determination that such designation should not be made or that
such designation be refused, suspended, or removed.

5. Review of complaint. Upon receipt of a complaint, the ombudsman or
state ombudsman shall determine whether there are reasonable grounds for
an investigation. Such investigation shall be conducted in a manner
prescribed in regulations. The ombudsman or state ombudsman may
immediately refer to the appropriate investigatory agency information
obtained during the investigation of a complaint which suggests the
possible occurrence of physical abuse, mistreatment or neglect or
Medicaid fraud, in accordance with and subject to any limitations
identified in the older Americans act of 1965, as amended and the
regulations promulgated thereunder as well as rules and regulations
promulgated by the state office for the aging; provided, however, that
upon consent of the resident, the ombudsman or state ombudsman shall
immediately make such referral.

6. Record access. (a) An ombudsman and state ombudsman shall have
access to:

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

(A) the resident or resident representative communicates informed
consent to the access and the consent is given in writing or through the
use of auxiliary aids and services, provided that a guardian appointed
pursuant to article seventeen-A of the surrogate's court procedure act
or article eighty-one of the mental hygiene law who has the authority
pursuant to court order to give such consent shall supersede any other
resident representatives;

(B) the resident or resident representative communicates informed
consent orally, visually, or through the use of auxiliary aids and
services, and such consent is documented contemporaneously by an
ombudsman in accordance with procedures established by the state
ombudsman, provided that a guardian appointed pursuant to article
seventeen-A of the surrogate's court procedure act or article eighty-one
of the mental hygiene law who has the authority pursuant to court order
to give such consent shall supersede any other resident representatives;
and

(C) access is necessary in order to investigate a complaint, the
resident representative refuses to consent to the access, an ombudsman
has reasonable cause to believe that the resident representative is not
acting in the best interests of the resident, and the ombudsman obtains
the approval of the state ombudsman;

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

(3) all licensing and certification records maintained by the state
with respect to long-term care facilities and copies thereof upon
request; and

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

(b) No ombudsman or state ombudsman shall disclose files, records, or
information about a complaint, including identifying information of any
resident or complainant unless:

(1) the complainant or resident or his or her resident representative
communicates informed consent to the ombudsman in writing, provided that
a guardian appointed pursuant to article seventeen-A of the surrogate's
court procedure act or article eighty-one of the mental hygiene law who
has the authority pursuant to court order to give such consent shall
supersede any other resident representatives.

(2) the complainant or resident or his or her resident representative
communicates informed consent orally or visually, including through the
use of auxiliary aids and services, and such consent is documented
contemporaneously by an ombudsman or state ombudsman in accordance with
the procedures of the office of the state long-term care ombudsman,
provided that a guardian appointed pursuant to article seventeen-A of
the surrogate's court procedure act or article eighty-one of the mental
hygiene law who has the authority pursuant to court order to give such
consent shall supersede any other resident representatives;

(3) the disclosure is required pursuant to a court order; or

(4) the resident is unable to communicate informed consent and does
not have a resident representative, or the state long-term care
ombudsman determines that the resident representative has taken an
action, inaction or made a decision that may adversely affect the
health, safety, welfare, or rights of the resident. In such cases,
disclosures may be made in accordance with criteria to be developed by
the state ombudsman.

(c) all files, records, and other information of the long-term care
ombudsman program, including information maintained by local ombudsman
entities pertaining to the cases and activities of the program are the
property of the office of the state long-term care ombudsman. Such
files, records, and information may be disclosed only at the discretion
of the state ombudsman or designee of the state ombudsman for such
purpose and in accordance with the criteria developed by the state
ombudsman.

(d) No ombudsman or state ombudsman shall disclose to any person
outside of the long-term care ombudsman program any information obtained
from a resident's record without the approval of the state ombudsman or
his or her designee, in accordance with procedures for disclosure
established by the state ombudsman.

(e) No ombudsman or state ombudsman who directly or indirectly obtains
access to a resident's medical or personal records pursuant to section
twenty-eight hundred three-c of the public health law shall disclose to
such resident or to any other person outside of the long-term care
ombudsman program the content of any such records to which such resident
or other person had not previously had the right of access, provided
that this restriction shall not prevent such ombudsman from advising
such resident of the status or progress of an investigation or complaint
process initiated at the request of such resident or from referring such
complaint, together with the relevant records, to appropriate
investigatory agencies. Any person who intentionally violates the
provisions of this subdivision shall be guilty of a misdemeanor. Nothing
contained in this section shall be construed to limit or abridge any
right of access to records, including financial records, otherwise
available to ombudsmen, residents, or any other person.

(f) Notwithstanding any law to the contrary, any individual, when
acting in his or her official capacity as an ombudsman, shall be exempt
from the mandatory reporting of abuse, neglect, exploitation, or
maltreatment. However, an ombudsman may report abuse, neglect,
exploitation, or maltreatment in accordance with the older Americans act
of 1965, as amended and the regulations promulgated thereunder as well
as rules and regulations promulgated by the state office for the aging;
provided, however, that upon consent of the resident, the ombudsman or
state ombudsman shall immediately make such referral.

(g) Nothing in this section shall prohibit the disclosure by an
ombudsman, state ombudsman, or local ombudsman entity of non-identifying
aggregate data for monitoring or reporting purposes to the state office
for the aging or agency in which a local ombudsman entity is
organizationally located.

(h) Any information accessed pursuant to this subdivision by a
long-term care ombudsman or local ombudsman entity shall only be used
for the purposes of the long-term care ombudsman program. Any use of
such information other than for the purposes of the long-term care
ombudsman program or purposes authorized under this section may
constitute grounds for the designation of such ombudsman or local
ombudsman entity to be removed.

7. Access to long-term care facilities. An ombudsman or state
ombudsman shall have authority to enter all long-term care facilities at
any time during a facility's regular business hours or regular visiting
hours, and at any other time when access may be required by the
circumstances to be investigated and shall have access to all residents
and/or the resident representative to perform all functions and duties
enumerated herein.

8. Noninterference. No long-term care facility shall:

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

(b) retaliate against an ombudsman or state ombudsman for carrying out
his or her mandated duties and responsibilities set forth in this
section and any regulations promulgated pursuant thereto;

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

(d) retaliate or discriminate against any resident, resident
representative, complainant, or staff member for filing a complaint
with, providing information to, or otherwise cooperating with any
ombudsman or state ombudsman. Any resident who has reason to believe
that he or she may have been discriminated or retaliated against in
violation of subdivision eight of this section may file a complaint with
the commissioner of health pursuant to subdivision ten of section
twenty-eight hundred one-d of the public health law.

9. Failure to cooperate. Any such facility that violates the
provisions of subdivision eight of this section shall be subject to the
appropriate sanctions pursuant to section twenty-eight hundred three-c
of the public health law, and accompanying regulations, if such facility
is a residential healthcare facility or section four hundred sixty-d of
the social services law, and accompanying regulations, if such facility
is an adult care facility.

10. Conflict of interest. The state office for the aging and the state
ombudsman shall consider both the organizational and individual
conflicts of interest that may impact the effectiveness and credibility
of the work of the office of the state long-term care ombudsman. In so
doing, both the state office for the aging and the state ombudsman shall
be responsible to identify actual and potential conflicts and, where a
conflict has been identified, to remove or remedy such conflict as set
forth in paragraphs (b) and (d) of this subdivision.

(a) Identifying conflicts of interest. In identifying conflicts of
interest, the state office for the aging and the state ombudsman shall
consider the organizational conflicts that may impact the effectiveness
and credibility of the work of the office of the state long-term care
ombudsman. Organizational conflicts of interest include, but are not
limited to, placement of the office of the state long-term care
ombudsman, or requiring that a state ombudsman or long-term care
ombudsman perform conflicting activities, in an organization that:

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

(2) is responsible for licensing, surveying, or certifying long-term
care services;

(3) is an association (or an affiliate of such an association) of
long-term care facilities, or of any other residential facilities for
older individuals or individuals with disabilities;

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

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

(6) provides long-term care to residents of long-term care facilities,
including the provision of personnel for long-term care facilities or
the operation of programs which control access to or services for
long-term care facilities;

(7) provides long-term care services, including programs carried out
under a Medicaid waiver approved under section 1115 of the Social
Security Act (42 U.S.C. 1315) or under subsection (b) or (c) of section
1915 of the Social Security Act (42 U.S.C. 1396n), subsection (i), (j),
or (k) of section 1915 of the Social Security Act (42 U.S.C. 1396n);

(8) provides long-term care case management;

(9) provides long-term care coordination or case management for
residents of long-term care facilities;

(10) sets reimbursement rates for long-term care facilities;

(11) sets reimbursement rates for long-term care services;

(12) provides adult protective services;

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

(14) conducts preadmission screening for long-term care facility
placements;

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

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

(b) Removing or remedying organizational conflicts. The state office
for the aging and the state ombudsman shall identify and take steps to
remove or remedy conflicts of interest between the office of the state
long-term care ombudsman and the state office for the aging or other
agency carrying out the state long-term care ombudsman program.

(1) The state ombudsman shall identify organizational conflicts of
interest in the state long-term care ombudsman program and describe
steps taken to remove or remedy conflicts within the annual report
submitted to the assistant secretary through the national ombudsman
reporting system.

(2) Where the office of the state long-term care ombudsman is located
within or otherwise organizationally attached to the state office for
the aging, the office for the aging shall:

(A) take reasonable steps to avoid internal conflicts of interest;

(B) establish a process for review and identification of internal
conflicts;

(C) take steps to remove or remedy conflicts;

(D) ensure that no individual, or member of the immediate family of an
individual, involved in the designating, appointing, otherwise selecting
or terminating the state ombudsman is subject to a conflict of interest;
and

(E) assure that the state ombudsman has disclosed such conflicts and
described steps taken to remove or remedy conflicts within the annual
report submitted to the assistant secretary through the national
ombudsman reporting system.

(3) Where the state office for the aging is unable to adequately
remove or remedy a conflict, it shall carry out the state long-term care
ombudsman program by contract or other arrangement with a public agency
or nonprofit private organization. The state office for the aging may
not enter into a contract or other arrangement to carry out the state
long-term care ombudsman program if the other entity, and may not
operate the office of the state long-term care ombudsman directly if it:

(A) is responsible for licensing, surveying, or certifying long-term
care facilities;

(B) is an association (or an affiliate of such an association) of
long-term care facilities, or of any other residential facilities for
older individuals or individuals with disabilities; or

(C) has any ownership, operational, or investment interest
(represented by equity, debt, or other financial relationship) in a
long-term care facility.

(4) Where the state office for the aging carries out the state
long-term care ombudsman program by contract or other arrangement with a
public agency or nonprofit private organization, the state office for
the aging shall:

(A) prior to contracting or making another arrangement, take
reasonable steps to avoid conflicts of interest in such agency or
organization which is to carry out the state long-term care ombudsman
program and to avoid conflicts of interest in the state office for the
aging oversight of the contract or arrangement;

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

(C) establish criteria for approval of steps taken by the agency or
organization to remedy or remove conflicts;

(D) require that such agency or organization have a process in place
to:

(i) take reasonable steps to avoid conflicts of interest, and

(ii) disclose identified conflicts and steps taken to remove or remedy
conflicts to the state office for the aging for review and approval.

(5) Where an agency or organization carrying out the state long-term
care ombudsman program by contract or other arrangement develops a
conflict and is unable to adequately remove or remedy a conflict, the
state office for the aging shall either operate the state long-term care
ombudsman program directly or by contract or other arrangement with
another public agency or nonprofit private organization. The state
office for the aging shall not enter into such contract or other
arrangement with an agency or organization which is responsible for
licensing or certifying long-term care facilities in the state or is an
association (or affiliate of such an association) of long-term care
facilities.

(6) Where local ombudsman entities provide ombudsman services, the
state ombudsman shall:

(A) prior to designating or renewing designation, take reasonable
steps to avoid conflicts of interest in any agency which may host a
local ombudsman entity,

(B) establish a process for periodic review and identification of
conflicts of interest with the local ombudsman entity in any agencies
hosting a local ombudsman entity,

(C) require that such agencies disclose identified conflicts of
interest with the local ombudsman entity and steps taken to remove or
remedy conflicts within such agency to the state ombudsman,

(D) establish criteria for approval of steps taken to remedy or remove
conflicts in such agencies, and

(E) establish a process for review of and criteria for approval of
plans to remove or remedy conflicts with the local ombudsman entity in
such agencies.

(7) Failure of an agency hosting a local ombudsman entity to disclose
a conflict to the office of the state long-term care ombudsman or
inability to adequately remove or remedy a conflict shall constitute
grounds for refusal, suspension, or removal of designation of the local
ombudsman entity by the state ombudsman.

(c) Identifying individual conflicts of interest. (1) In identifying
conflicts of interest, the state office for the aging and the state
ombudsman shall consider individual conflicts that may impact the
effectiveness and credibility of the work of the office of the state
long-term care ombudsman or local long-term care ombudsman program.

(2) Individual conflicts of interest for the state ombudsman,
long-term care ombudsmen, and members of their immediate family include,
but are not limited to:

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

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

(C) employment of an individual by, or participation in the management
of, a long-term care facility in the service area or by the owner or
operator of any long-term care facility in the service area;

(D) receipt of, or right to receive, directly or indirectly,
remuneration (in cash or in kind) under a compensation arrangement with
an owner or operator of a long-term care facility;

(E) accepting gifts or gratuities of significant value from a
long-term care facility or its management, a resident or a resident
representative of a long-term care facility in which the state ombudsman
or long-term care ombudsman provide services (except where there is a
personal relationship with a resident or resident representative which
is separate from the individual's role as state ombudsman or long-term
care ombudsman);

(F) accepting money or any other consideration from anyone other than
the office of the state long-term care ombudsman, or an entity approved
by the state ombudsman, for the performance of an act in the regular
course of the duties of the state ombudsman or long-term care ombudsman
without state ombudsman approval;

(G) serving as guardian, conservator, or in another fiduciary or
surrogate decision-making capacity for a resident of a long-term care
facility in which the state ombudsman or long-term care ombudsman
provides services; and

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

(d) Removing or remedying individual conflicts. (1) The state office
for the aging or state ombudsman shall develop and implement policies
and procedures to ensure that no state ombudsman or long-term care
ombudsman are required or permitted to hold positions or perform duties
that would constitute a conflict of interest as set forth in paragraph
(c) of this subdivision. This rule does not prohibit the state office
for the aging or state ombudsman from having policies or procedures that
exceed these requirements.

(2) When considering the employment, appointment, or designation of an
individual as the state ombudsman or as a long-term care ombudsman, the
state office for the aging or other employing or appointing entity
shall:

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

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

(C) establish a process for periodic review and identification of
conflicts of state ombudsman and long-term care ombudsmen; and

(D) take steps to remove or remedy conflicts.

(3) In no circumstance shall the entity which appoints, employs, or
designates the state ombudsman appoint, employ, or designate an
individual as the state ombudsman who:

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

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

(C) has been employed by or participating in the management of a
long-term care facility within the previous twelve months; or

(D) receives, or has the right to receive, directly or indirectly,
remuneration (in cash or in kind) under a compensation arrangement with
an owner or operator of a long-term care facility.

(4) In no circumstance shall the state office for the aging or an
agency hosting a local ombudsman entity appoint, employ, or designate an
individual, nor shall the state ombudsman designate an individual, as a
long-term care ombudsman who:

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

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

(C) receives, directly or indirectly, remuneration (in cash or in
kind) under a compensation arrangement with an owner or operator of a
long-term care facility; or

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

(i) An agency which appoints or employs long-term care ombudsmen shall
make efforts to avoid appointing, employing, or designating an
individual as a long-term care ombudsman who has been employed by or
participating in the management of a long-term care facility within the
previous twelve months.

(ii) Where such individual is appointed, employed, or designated, the
agency shall take steps to remedy the conflict.

11. Civil immunity. Notwithstanding any other provision of law,
ombudsmen designated under this section shall be included within the
definition of employee as set forth in section seventeen of the public
officers law and shall be defended and indemnified in accordance with
the provisions of article two of such law.

12. Grievance process. In addition to the provisions listed in this
section, the state ombudsman shall recommend policies and procedures for
the receipt and review of grievances regarding determinations or actions
of the state ombudsman or ombudsmen to the director of the state office
for the aging.

13. Regulations. The director of the state office for the aging, in
consultation with the state ombudsman, is authorized to promulgate
regulations to implement the provisions of this section.

14. Annual report. On or before March thirty-first, two thousand five,
and annually thereafter, the state ombudsman shall submit to the
governor, commissioner of the federal administration on aging, speaker
of the assembly, temporary president of the senate, director of the
state office for the aging, commissioner of the department of health,
and the commissioner of children and family services a report and make
such report available to the public:

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

(b) containing and analyzing data relating to complaints and
conditions in long-term care facilities and to residents for the purpose
of identifying and resolving significant problems, including an
examination of any recurring complaints to determine if there are
systemic issues in such facilities;

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

(d) containing recommendations for appropriate state legislation,
rules and regulations and other action based on data collected pursuant
to this section, concerns raised by residents and families of residents,
and observations made when visiting long-term care facilities, to
improve the quality of the care and life of the residents, protecting
the health, safety and welfare and rights of the residents and resolving
resident complaints and identified problems or barriers;

(e) containing an analysis of the success of the long-term care
ombudsman program, including success in providing services to residents;

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

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

(h) containing all complaints received by the state ombudsman relating
to long-term care facilities including but not limited to complaints
that suggest the possible occurrence of physical abuse, mistreatment,
neglect or Medicaid fraud, listed by type of complaint, facility name
and by region;

(i) containing the number of visits to each long-term care facility,
listed by facility name and by region, and names of long-term care
facilities that did not receive any visits in the prior year; and

(j) any other matters as the state ombudsman, in consultation with the
director of the state office for the aging, determines to be
appropriate.

15. Outreach and awareness program. The state long-term care ombudsman
shall facilitate and coordinate the planning and implementation of an
outreach and awareness program to advertise and promote the long-term
care ombudsman program and to recruit additional ombudsmen. Such program
shall utilize educational and informational materials including, but not
limited to, media advertising, billboards, social media and the official
website of the long-term care ombudsman program.