Section 4 Long Term Care Ombudsman Office 1

Chapter 6A of the General Laws, as appearing in the 2018 Official Edition, is hereby amended by inserting after section 16BB the following section:-

Section 16CC. (a). As used in this section, the following words shall, unless the context requires otherwise, have the following meanings:-

"Act", any action or decision made by an owner, employee or agent of a long term care facility or assisted living residence, or by a government agency, or any condition within a long term care facility or assisted living residence which affects the service to a resident.

"Administrative action", any action taken to resolve issues through negotiation and mediation with a long term care facility or assisted living residence.

"Assisted living residence", any entity that meets the requirements of chapter 19D and is subject to certification by the department of elder affairs.

"Designee", staff of the long term care ombudsman or a member of a designated local long term care ombudsman program, whether on a compensated or volunteer basis.

"Long term care facility", any facility subject to licensure by the department of public health under section 71 of chapter 111.

"Resident", any person who is receiving treatment or care in a long term care facility or assisted living residence including, but not limited to, application or admission, retention, confinement, commitment, period of residence, transfer, discharge and instances directly related to such status.

(b) The secretary of health and human services shall, subject to appropriation or the receipt of federal funds, establish a statewide long term care ombudsman office for the purpose of advocating on behalf of residents. The statewide long term care ombudsman shall receive, investigate and resolve through administrative action complaints filed by residents, individuals acting on their behalf or any individual organization or government agency that has reason to believe a long term care facility or assisted living residence, organization or government agency has engaged in activities, practices or omissions that constitute violations of applicable statutes or regulations or may have an adverse effect upon the health, safety, welfare or rights of residents of such long term care facilities or assisted living residences. The secretary of health and human services shall appoint an ombudsman to act as the director of the ombudsman office who shall be a person qualified by training and experience to perform the duties of the office. Said ombudsman shall not be subject to section 9A of chapter 30 or chapter 31.

(c) The ombudsman, or a designee, shall be permitted access at any time deemed reasonable and necessary by the ombudsman to any consenting individual resident; provided, that there is neither a commercial purpose nor effect to the access and the purpose is to do any of the following: (i) visit, talk with and make personal, social and legal services available to a resident; (ii) inform residents of their rights and entitlements and their correspondent obligations, under federal and state laws, by means of educational materials and discussion in groups and with individual residents; (iii) assist residents in asserting their legal rights regarding claims for public assistance, medical assistance and social security benefits, or assist residents in action against agencies responsible for such programs, as well as in all other matters in which residents are aggrieved and may include advising litigation; or (iv) engage in other methods of assisting, advising and representing residents so as to extend to them full enjoyment of their rights.

Upon entering, the ombudsman, or designee, shall notify the long term care facility or assisted living residence staff of his or her presence and, upon request, shall produce identification. Prior to entering the room of an individual resident, the ombudsman, or designee, shall identify himself or herself and explain the purpose of the visit. The ombudsman or designee shall have the right to visit privately with the resident provided the resident has given permission for the visit. The ombudsman, or designee, shall respect the confidentiality of communications and shall not subject the resident to photographing, filming, videotaping or audiotaping without consent. The long term care facility or assisted living residence may not release information in a resident's medical record to the ombudsman, or designee, without consent of the resident or resident's representative.

(d) The ombudsman, or designee, shall have the right of entry into long term care facilities and assisted living residences at any time it is considered necessary and reasonable by the ombudsman, or designee, for the purpose of: (i) investigating and resolving through administrative action complaints made by residents or on their behalf; (ii) interviewing residents, with their consent, in private; (iii) offering the services of the ombudsman or designee to any resident, in private; (iv) interviewing employees or agents of the long term care facility or assisted living residence; (v) consulting regularly with the long term care facility or assisted living residence administration; or (vi) providing services authorized by law or by regulation.

The ombudsman, or designee, shall have access to any resident's records with consent of the resident or the resident's representative, and to records of any public agency necessary to the duties of the office, including records on patient abuse complaints. If the ombudsman, or designee, reasonably believes that a complaint situation exists which may only be resolved by the inspection of the resident's personal, financial or medical records, and if the resident lacks the capacity to give consent, and the resident has no legal representative, or the ombudsman has reason to believe that the resident representative is not acting in the best interest of the resident, the said ombudsman or designee shall have access to the records of the resident without the resident's written authorization.

(e) The ombudsman shall establish procedures to protect the confidentiality of residents' records and files. Such procedures shall meet the following requirements: (i) no information or records maintained by the ombudsman office shall be disclosed unless the ombudsman, or designee, authorizes such disclosure and (ii) the ombudsman, or designee, shall not disclose the identity of any complainant or resident involved in any complaint unless the complainant or resident or a legal representative of either provides consent in writing, or through the use of ancillary aids and services as necessary, or communication of such consent orally or visually, and that consent is documented to allow such disclosure and specifies to whom the identity may be disclosed, or a court orders such disclosure.

The ombudsman, or designee, may initiate an investigation of any long term care facility or assisted living residence even in the absence of a specific complaint.

If the ombudsman, or designee, determines that any act of any long term care facility or assisted living residence may adversely affect the health, safety, welfare or rights of a resident, the ombudsman, or designee, shall make specific recommendations for the elimination or correction of such act. If the ombudsman, or designee, determines that an act of any long term care facility or assisted living residence may constitute a violation of any applicable federal or state statute or regulation, the ombudsman may report such findings and conclusions to the regulatory agency or agencies having jurisdiction to enforce said statute or regulation and to the office of the attorney general.

Within a reasonable period of time after the completion of an investigation the ombudsman may notify the long term care facility or assisted living residence of the findings.

(f) The ombudsman may contract with a local entity to host a local ombudsman program and provide designated staff to act on behalf of the ombudsman in the receipt, investigation and resolution through administrative action of complaints. The ombudsman may contract with any public agency or private nonprofit organization to act on behalf of the ombudsman in the receipt, investigation and resolution through administrative action of complaints. No designee shall be an agency or organization responsible for licensing or certifying long term care facilities or assisted living residences or an association or an affiliate or agent of an association of long term care facilities or assisted living residences. A designee shall operate in compliance with any rules and regulations established by the ombudsman for the implementation of the ombudsman program. The ombudsman shall carry out the responsibilities of the local program in any area where no local ombudsman program has been established. The ombudsman shall, to the extent practicable, contract with agencies and organizations that agree to carry out such responsibilities on a volunteer basis.

(g) The ombudsman shall: (i) establish and conduct a training program for persons employed by or associated with the ombudsman or any designated local ombudsman program who perform the duties and responsibilities enumerated in section (e) regarding the receipt, investigation and resolution through administrative action of complaints, and certify such persons upon satisfactory completion of such training programs; (ii) provide information to public agencies regarding the problems of residents in long term care facilities and assisted living residences; (iii) ensure that complete records are maintained of complaints received or initiated, actions taken, findings and recommendations in response to such complaints and other action, including the facilities' responses; (iv) maintain a statewide uniform reporting system to collect and analyze data relating to complaints and conditions in long term care facilities and assisted living residences for the purpose of identifying and resolving significant problems; (v) file a report of the activities of the long term care ombudsman office and the ombudsman's recommendation concerning long term care facilities and assisted living residences and the protection of the rights of residents with the secretary of health and human services, the governor and the general court within 120 days following the end of each fiscal year, and make such report available to the public, the assistant secretary of the administration for community living, the division of health care facility licensing and certification at the department of health, the assisted living certification unit at the department of elder affairs and other appropriate governmental entities; (vi) carry out other activities consistent with the requirements of 42 U.S.C. 3024(a)(12); (vii) ensure the program operates in compliance with 42 U.S.C. 3001 et seq. and federal regulations; (viii) represent the interests of the residents before governmental agencies and seek administrative, legal and other remedies to protect the health, safety, welfare and rights of the residents; and (ix) 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, with respect to the adequacy of services provided by long term care facilities and assisted living residences.

(h) The ombudsman, a designee, and any employee of a designated local ombudsman program working directly for such designee, whether on a compensated or volunteer basis, shall not be liable in any civil or criminal action by reason of the good faith performance of official duties. No person shall willfully interfere with a representative of the ombudsman office in the good faith performance of official duties. If such willful interference occurs, the ombudsman may petition the superior court department to enjoin such interference and grant appropriate relief.

No long term care facility, assisted living residence or other entity shall retaliate against any resident or employee of such facility, residence or entity who in good faith filed a complaint with, or provided information to, the ombudsman or designee. A long term care facility or assisted living residence that retaliates against a resident or employee for filing a complaint with, or having provided information to, the ombudsman or designee, shall be liable to the person so retaliated against by a civil action for up to treble damages, costs and attorney's fees.

(i) The ombudsman shall promulgate regulations to implement this section.

This section, along with six others, removes the Long Term Care Ombudsman Program from the Executive Office of Elder Affairs and establishes a Long Term Care Ombudsman Office within the Executive Office of Health and Human Services.