7 LONG TITLE
8 General Description:
9 This bill amends provisions related to the long-term care ombudsman program within
10 the Division of Aging and Adult Services, within the Department of Human Services.
11 Highlighted Provisions:
12 This bill:
13 ▸ amends definitions;
14 ▸ eliminates references to "elderly" in provisions governing the long-term care
15 ombudsman program;
16 ▸ requires the use of "substitute judgment" by the ombudsman in certain cases;
17 ▸ makes other amendments related to the long-term care ombudsman program; and
18 ▸ makes technical changes.
19 Money Appropriated in this Bill:
21 Other Special Clauses:
23 Utah Code Sections Affected:
25 62A-3-201, as enacted by Laws of Utah 1988, Chapter 1
26 62A-3-202, as last amended by Laws of Utah 1998, Chapter 192
27 62A-3-203, as last amended by Laws of Utah 2006, Chapter 31
28 62A-3-204, as last amended by Laws of Utah 2009, Chapter 75
29 62A-3-205, as last amended by Laws of Utah 2008, Chapter 382
30 62A-3-206, as last amended by Laws of Utah 2010, Chapter 324
31 62A-3-207, as last amended by Laws of Utah 1993, Chapter 176
32 62A-3-208, as enacted by Laws of Utah 1988, Chapter 1
34 Be it enacted by the Legislature of the state of Utah:
35 Section 1. Section 62A-3-201 is amended to read:
36 62A-3-201. Legislative findings -- Purpose -- Ombudsman.
37 The Legislature finds and declares that the [
38 assisted in asserting their civil and human rights as patients, residents, and clients of long-term
39 care facilities created to serve their specialized needs and problems; and that for the health,
40 safety, and welfare of these citizens, the state should take appropriate action through an
41 adequate legal framework to address their difficulties.
42 The purpose of this part is to establish within the division the long-term care
43 ombudsman program for the [
44 responsibilities of that program and of the ombudsman, in order to address problems relating to
45 long-term care for aging citizens, and to fulfill federal requirements.
46 Section 2. Section 62A-3-202 is amended to read:
47 62A-3-202. Definitions.
48 As used in this part:
52 (1) "Assisted living facility" has the same meaning as provided in Section 26-21-2.
53 (2) "Auxiliary aids and services" means items, equipment, or services that assist in
54 effective communication between an individual who has a mental, hearing, vision, or speech
55 disability, and another individual.
57 commission, authority, or any other agency or instrumentality created by the state, or to which
58 the state is a party, or created by any county or municipality, which is responsible for the
59 regulation, visitation, inspection, or supervision of facilities, or which provides services to
60 patients, residents, or clients of facilities.
61 (4) "Intermediate care facility" means a facility that provides, on a regular basis, health
62 care and services to an individual who does not require the degree of care and treatment that a
63 hospital or skilled nursing facility provides but who does require health care and services in
64 addition to room and board.
66 care facility, nursing home, small health care facility, Type N facility, or assisted living
70 program, created pursuant to Section 62A-3-203.
71 (7) "Resident" means an individual who resides in a long-term care facility.
72 (8) "Skilled nursing facility" means an institution primarily providing:
73 (a) inpatient skilled nursing care and related services on a continuing basis for an
74 individual who requires mental, medical, or nursing care; or
75 (b) rehabilitation services for an injured individual, a sick individual, or an individual
76 with a disability.
77 (9) "Small health care facility" means the same as that term is defined in Section
79 (10) "Substituted judgment" means judgment by a surrogate decision maker to attempt
80 to determine, with as much accuracy as possible, the decision an incompetent patient would
81 make if the patient were competent to make the decision.
82 (11) "Type N facility" means a residence in which a licensed nurse resides and
83 provides protected living arrangements, nursing care, and other services on a daily basis for
84 two to three individuals who are also residing in the residence and are unrelated to the licensee.
85 Section 3. Section 62A-3-203 is amended to read:
86 62A-3-203. Long-Term Care Ombudsman Program -- Responsibilities.
87 (1) (a) There is created within the division the Long-Term Care Ombudsman Program
88 for the purpose of promoting, advocating, and ensuring the adequacy of care received, and the
89 quality of life experienced by [
90 (b) Subject to [
91 responsible for:
92 (i) receiving and resolving complaints relating to [
94 (ii) conducting investigations of any act, practice, policy, or procedure of [
95 long-term care facility or government agency [
96 believe affects or may affect the health, safety, welfare, or civil and human rights of [
98 (iii) coordinating the department's services for [
99 facilities to ensure that those services are made available to eligible [
100 state; and
101 (iv) providing training regarding the delivery and regulation of long-term care to public
102 agencies, local ombudsman program volunteers, and operators and employees of long-term
103 care facilities.
104 (2) (a) A long-term care facility shall display an ombudsman program information
106 (b) The division is responsible for providing the posters, which shall include the names
107 and phone numbers for local ombudsman programs.
108 Section 4. Section 62A-3-204 is amended to read:
109 62A-3-204. Powers and responsibilities of ombudsman.
110 The long-term care ombudsman shall:
111 (1) comply with Title VII of the federal Older Americans Act, 42 U.S.C. 3058 et seq.;
112 (2) establish procedures for and engage in receiving complaints, conducting
113 investigations, reporting findings, issuing findings and recommendations, promoting
114 community contact and involvement with [
115 through the use of volunteers, and publicizing its functions and activities;
116 (3) investigate an administrative act or omission of [
117 governmental agency if the act or omission relates to the purposes of the ombudsman. The
118 ombudsman may exercise its authority under this subsection without regard to the finality of
119 the administrative act or omission, and it may make findings in order to resolve the subject
120 matter of its investigation;
121 (4) recommend to the division rules that it considers necessary to carry out the
122 purposes of the ombudsman;
123 (5) cooperate and coordinate with governmental entities and voluntary assistance
124 organizations in exercising its powers and responsibilities;
125 (6) request and receive cooperation, assistance, services, and data from any
126 governmental agency, to enable it to properly exercise its powers and responsibilities;
127 (7) establish local ombudsman programs to assist in carrying out the purposes of this
128 part, which shall meet the standards developed by the division, and possess all of the authority
129 and power granted to the long-term care ombudsman program under this part; and
130 (8) exercise other powers and responsibilities as reasonably required to carry out the
131 purposes of this part.
132 Section 5. Section 62A-3-205 is amended to read:
133 62A-3-205. Procedures -- Adjudicative proceedings.
134 The long-term care ombudsman shall comply with the procedures and requirements of
135 Title 63G, Chapter 4, Administrative Procedures Act, in [
136 adjudicative proceedings.
137 Section 6. Section 62A-3-206 is amended to read:
138 62A-3-206. Investigation of complaints -- Procedures.
139 (1) (a) The ombudsman shall investigate each complaint [
140 An investigation may consist of a referral to another public agency, the collecting of facts and
141 information over the telephone, or an inspection of the long-term care facility that is named in
142 the complaint.
143 (b) The ombudsman shall notify any complainant of [
144 not pursue investigation of a complaint after the initial investigation and the reasons for the
146 (2) In making [
147 the ombudsman considers appropriate, including[
148 (a) making inquiries and obtaining information;
149 (b) holding investigatory hearings;
150 (c) entering [
151 the investigator [
152 identification as an individual authorized by this part to inspect the premises; and
153 (d) inspecting or obtaining [
154 by law to be retained by the long-term care facility or governmental agency, pertaining to
156 (3) (a) Before reviewing a resident's records, the ombudsman shall seek to obtain
158 representative, permission in writing, orally, or through the use of auxiliary aids and services to
159 review the records [
160 (b) The effort to obtain permission under Subsection (3)(a) shall include personal
161 contact with the [
162 the resident's legal representative refuses to [
163 permission, the ombudsman shall record and abide by this decision.
164 (c) If the ombudsman's attempt to obtain [
166 permission, the ombudsman may review the records.
170 (d) If the ombudsman has reasonable cause to believe that the resident is incompetent
171 to give permission and that the resident's legal representative is not acting in the best interest of
172 the resident, the ombudsman shall use the substituted judgment of the ombudsman to
173 determine whether review of the resident's records is in the best interest of the resident. If the
174 ombudsman determines that review of the resident's records is in the best interest of the
175 resident, the ombudsman shall review the records.
176 Section 7. Section 62A-3-207 is amended to read:
177 62A-3-207. Confidentiality of materials relating to complaints or investigations --
178 Immunity from liability -- Discriminatory, disciplinary, or retaliatory actions prohibited.
179 (1) The ombudsman shall establish procedures to [
180 maintained by the long-term care ombudsman program are disclosed only at the discretion of
181 and under the authority of the ombudsman. The identity of a complainant or [
182 of a long-term care facility may not be disclosed by the ombudsman unless:
183 (a) the complainant or [
184 in writing, orally, or through the use of auxiliary aids and services to the disclosure;
185 (b) disclosure is ordered by the court; or
186 (c) the disclosure is approved by the ombudsman and is made, as part of an
187 investigation involving the resident, to a local area agency on aging, the state adult protective
188 services agency, the Department of Health, the Department of Public Safety, [
189 enforcement agency, or [
190 (2) Neither the ombudsman nor [
191 designee may be required to testify in court with respect to confidential matters, except as the
192 court finds necessary to enforce [
193 (3) Any person who makes a complaint to the ombudsman pursuant to this part is
194 immune from any civil or criminal liability unless the complaint was made maliciously or
195 without good faith.
196 (4) (a) Discriminatory, disciplinary, or retaliatory action may not be taken against
199 information given or disclosed to aid the ombudsman or other appropriate public agency in
200 carrying out its duties and responsibilities, unless the same was done maliciously or without
201 good faith.
202 (b) This subsection does not infringe on the rights of an employer to supervise,
203 discipline, or terminate an employee for any other reason.
204 Section 8. Section 62A-3-208 is amended to read:
205 62A-3-208. Prohibited acts -- Penalty.
206 (1) No person may:
207 (a) give or cause to be given advance notice to a long-term care facility or agency that
208 an investigation or inspection under the direction of the ombudsman is pending or under
209 consideration, except as provided by law;
210 (b) disclose confidential information submitted to the ombudsman pursuant to this part,
211 except as provided by law;
212 (c) willfully interfere with the lawful actions of the ombudsman;
213 (d) willfully refuse to comply with lawful demands of the ombudsman, including the
214 demand for immediate entry into or inspection of the premises of any long-term care facility or
215 agency or for immediate access to [
216 (e) offer or accept any compensation, gratuity, or promise thereof in an effort to affect
217 the outcome of a matter being investigated or of a matter [
218 for determination of whether an investigation should be conducted.
219 (2) Violation of any provision of this part constitutes a class B misdemeanor.
Legislative Review Note
Office of Legislative Research and General Counsel