1     
LONG-TERM CARE OMBUDSMAN AMENDMENTS

2     
2017 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: Brad M. Daw

5     
Senate Sponsor: Margaret Dayton

6     

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:
20          None
21     Other Special Clauses:
22          None
23     Utah Code Sections Affected:
24     AMENDS:
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
33     

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 [aging] citizens of this state should be
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 [aging] citizens of this state and identify duties and
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:
49          [(1) "Elderly resident" means an adult 60 years of age or older who because of
50     physical, economic, social, or emotional problems cannot function normally on an independent
51     basis, and who resides in a long-term care facility.]
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.
56          [(2)] (3) "Government agency" means any department, division, office, bureau, board,
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.
65          [(3)] (5) "Long-term care facility" means [any] a skilled nursing facility, intermediate
66     care facility, nursing home, small health care facility, Type N facility, or assisted living
67     facility[, adult foster care home, or any living arrangement in the community through which
68     room and personal care services are provided for elderly residents].
69          [(4)] (6) "Ombudsman" means the administrator of the long-term care ombudsman
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
78     26-21-2.
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 [elderly] residents of long-term care facilities within the state.
90          (b) Subject to [the] rules made under Section 62A-3-106.5, the ombudsman is
91     responsible for:
92          (i) receiving and resolving complaints relating to [elderly] residents of long-term care
93     facilities;
94          (ii) conducting investigations of any act, practice, policy, or procedure of [any] a
95     long-term care facility or government agency [which it] that the ombudsman has reason to
96     believe affects or may affect the health, safety, welfare, or civil and human rights of [any
97     elderly] a resident of a long-term care facility;
98          (iii) coordinating the department's services for [elderly] residents of long-term care
99     facilities to ensure that those services are made available to eligible [elderly] citizens of the
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
105     poster.
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 [elderly] residents of long-term care facilities
115     through the use of volunteers, and publicizing its functions and activities;
116          (3) investigate an administrative act or omission of [any] a long-term care facility or
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 [its] the long-term care ombudsman's
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 [he] the ombudsman receives.
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 [its] the ombudsman's decision to
144     not pursue investigation of a complaint after the initial investigation and the reasons for the
145     decision.
146          (2) In making [any] an investigation, the ombudsman may engage in actions [it deems]
147     the ombudsman considers appropriate, including[, but not limited to]:
148          (a) making inquiries and obtaining information;
149          (b) holding investigatory hearings;
150          (c) entering [upon] and inspecting any premises, without notice to the facility, provided
151     the investigator [identifies himself] presents, upon entering the premises [as a person],
152     identification as an individual authorized by this part to inspect the premises; and
153          (d) inspecting or obtaining [any] a book, file, medical record, or other record required
154     by law to be retained by the long-term care facility or governmental agency, pertaining to
155     [elderly] residents, subject to Subsection (3).
156          (3) (a) Before reviewing a resident's records, the ombudsman shall seek to obtain
157     [written] from the institutionalized resident, or the institutionalized resident's legal
158     representative, permission in writing, orally, or through the use of auxiliary aids and services to
159     review the records [from the institutionalized elderly person or his legal representative].
160          (b) The effort to obtain permission under Subsection (3)(a) shall include personal
161     contact with the [elderly] resident or [his] the resident's legal representative. If the resident or
162     the resident's legal representative refuses to [sign a release allowing access to records] give
163     permission, the ombudsman shall record and abide by this decision.
164          (c) If the ombudsman's attempt to obtain [a signed release] permission fails for [any
165     other] a reason other than the refusal of the resident or the resident's legal representative to give
166     permission, the ombudsman may review the records.
167          [(4) Following any investigation, the ombudsman shall report its findings and
168     recommendations to the complainant, elderly residents of long-term care facilities affected by
169     the complaint, and to the long-term care facility or governmental agency involved.]
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 [assure] ensure that all files
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 [elderly] resident
182     of a long-term care facility may not be disclosed by the ombudsman unless:
183          (a) the complainant or [elderly] resident, or the legal representative of either, consents
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, [the] a local law
189     enforcement agency, or [the] a county attorney [as part of the investigation of a complaint].
190          (2) Neither the ombudsman nor [its agents or designees] the ombudsman's agent or
191     designee may be required to testify in court with respect to confidential matters, except as the
192     court finds necessary to enforce [the provisions of] this part.
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
197     [any] a volunteer or employee of a long-term care facility or governmental agency, or against
198     [any elderly] a resident of a long-term care facility, for any communication made or
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 [any elderly] a resident of a long-term care facility; or
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 [which] that is before the ombudsman
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