1     
LONG-TERM CARE OMBUDSMAN AMENDMENTS

2     
2018 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
10     within the Division of Aging and Adult Services, within the Department of Human
11     Services.
12     Highlighted Provisions:
13          This bill:
14          ▸     amends definitions;
15          ▸     eliminates references to "elderly" in provisions governing the Long-Term Care
16     Ombudsman Program;
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          (1) 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          (2) The purpose of this part is to establish within the division the [long-term care
43     ombudsman program] Long-Term Care Ombudsman Program for the [aging] citizens of this
44     state and identify duties and responsibilities of that program and of the ombudsman, in order to
45     address problems relating to long-term care [for aging citizens,] and to fulfill federal
46     requirements.
47          Section 2. Section 62A-3-202 is amended to read:
48          62A-3-202. Definitions.
49          As used in this part:
50          [(1) "Elderly resident" means an adult 60 years of age or older who because of
51     physical, economic, social, or emotional problems cannot function normally on an independent
52     basis, and who resides in a long-term care facility.]
53          (1) "Assisted living facility" means the same as that term is defined in Section 26-21-2.
54          (2) "Auxiliary aids and services" means items, equipment, or services that assist in
55     effective communication between an individual who has a mental, hearing, vision, or speech
56     disability and another individual.
57          [(2)] (3) "Government agency" means any department, division, office, bureau, board,
58     commission, authority, or any other agency or instrumentality created by the state, or to which
59     the state is a party, or created by any county or municipality, which is responsible for the
60     regulation, visitation, inspection, or supervision of facilities, or which provides services to
61     patients, residents, or clients of facilities.
62          [(3) "Long-term care facility" means any skilled nursing facility, intermediate care
63     facility, nursing home, assisted living facility, adult foster care home, or any living arrangement
64     in the community through which room and personal care services are provided for elderly
65     residents.]
66          (4) "Intermediate care facility" means the same as that term is defined in Section
67     58-15-2.
68          (5) (a) "Long-term care facility" means:
69          (i) a skilled nursing facility;
70          (ii) except as provided in Subsection (5)(b), an intermediate care facility;
71          (iii) a nursing home;
72          (iv) a small health care facility;
73          (v) a small health care facility type N; or
74          (vi) an assisted living facility.
75          (b) "Long-term care facility" does not mean an intermediate care facility for people
76     with an intellectual disability, as defined in Section 58-15-2.
77          [(4)] (6) "Ombudsman" means the administrator of the long-term care ombudsman
78     program, created pursuant to Section 62A-3-203.
79          (7) "Ombudsman program" means the Long-Term Care Ombudsman Program.
80          (8) "Resident" means an individual who resides in a long-term care facility.
81          (9) "Skilled nursing facility" means the same as that term is defined in Section 58-15-2.
82          (10) "Small health care facility" means the same as that term is defined in Section
83     26-21-2.
84          (11) "Small health care facility type N" means a residence in which a licensed nurse
85     resides and provides protected living arrangements, nursing care, and other services on a daily
86     basis for two to three individuals who are also residing in the residence and are unrelated to the
87     licensee.
88          Section 3. Section 62A-3-203 is amended to read:
89          62A-3-203. Long-Term Care Ombudsman Program -- Responsibilities.
90          (1) (a) There is created within the division the [Long-Term Care Ombudsman
91     Program] ombudsman program for the purpose of promoting, advocating, and ensuring the
92     adequacy of care received[,] and the quality of life experienced by [elderly] residents of
93     long-term care facilities within the state.
94          (b) Subject to the rules made under Section 62A-3-106.5, the ombudsman is
95     responsible for:
96          (i) receiving and resolving complaints relating to [elderly] residents of long-term care
97     facilities;
98          (ii) conducting investigations of any act, practice, policy, or procedure of [any] a
99     long-term care facility or government agency [which it] that the ombudsman has reason to
100     believe affects or may affect the health, safety, welfare, or civil and human rights of [any
101     elderly] a resident of a long-term care facility;
102          (iii) coordinating the department's services for [elderly] residents of long-term care
103     facilities to ensure that those services are made available to eligible [elderly] citizens of the
104     state; and
105          (iv) providing training regarding the delivery and regulation of long-term care to public
106     agencies, local ombudsman program volunteers, and operators and employees of long-term
107     care facilities.
108          (2) (a) A long-term care facility shall display an ombudsman program information
109     poster in a location that is readily visible to all residents, visitors, and staff members.
110          (b) The division is responsible for providing the posters, which shall include [the
111     names and] phone numbers for local ombudsman programs.
112          Section 4. Section 62A-3-204 is amended to read:
113          62A-3-204. Powers and responsibilities of ombudsman.
114          The long-term care ombudsman shall:
115          (1) comply with Title VII of the federal Older Americans Act, 42 U.S.C. 3058 et seq.;
116          (2) establish procedures for and engage in receiving complaints, conducting
117     investigations, reporting findings, issuing findings and recommendations, promoting
118     community contact and involvement with [elderly] residents of long-term care facilities
119     through the use of volunteers, and publicizing its functions and activities;
120          (3) investigate an administrative act or omission of [any] a long-term care facility or
121     governmental agency if the act or omission relates to the purposes of the ombudsman. The
122     ombudsman may exercise its authority under this subsection without regard to the finality of
123     the administrative act or omission, and it may make findings in order to resolve the subject
124     matter of its investigation;
125          (4) recommend to the division rules that it considers necessary to carry out the
126     purposes of the ombudsman;
127          (5) cooperate and coordinate with governmental entities and voluntary assistance
128     organizations in exercising its powers and responsibilities;
129          (6) request and receive cooperation, assistance, services, and data from any
130     governmental agency, to enable it to properly exercise its powers and responsibilities;
131          (7) establish local ombudsman programs to assist in carrying out the purposes of this
132     part, which shall meet the standards developed by the division, and possess all of the authority
133     and power granted to the [long-term care] ombudsman program under this part; and
134          (8) exercise other powers and responsibilities as reasonably required to carry out the
135     purposes of this part.
136          Section 5. Section 62A-3-205 is amended to read:
137          62A-3-205. Procedures -- Adjudicative proceedings.
138          The [long-term care] ombudsman shall comply with the procedures and requirements of
139     Title 63G, Chapter 4, Administrative Procedures Act, in [its] the ombudsman's adjudicative
140     proceedings.
141          Section 6. Section 62A-3-206 is amended to read:
142          62A-3-206. Investigation of complaints -- Procedures.
143          (1) [(a)] The ombudsman shall investigate each complaint [he] the ombudsman
144     receives. An investigation may consist of a referral to another public agency, the collecting of
145     facts and information over the telephone, or an inspection of the long-term care facility that is
146     named in the complaint.
147          [(b) The ombudsman shall notify any complainant of its decision to not pursue
148     investigation of a complaint after the initial investigation and the reasons for the decision.]
149          (2) In making [any] an investigation, the ombudsman may engage in actions [it deems]
150     the ombudsman considers appropriate, including[, but not limited to]:
151          (a) making inquiries and obtaining information;
152          (b) holding investigatory hearings;
153          (c) entering [upon] and inspecting any premises, without notice to the facility, provided
154     the investigator [identifies himself] presents, upon entering the premises [as a person],
155     identification as an individual authorized by this part to inspect the premises; and
156          (d) inspecting or obtaining [any] a book, file, medical record, or other record required
157     by law to be retained by the long-term care facility or governmental agency, pertaining to
158     [elderly] residents, subject to Subsection (3).
159          (3) (a) Before reviewing a resident's records, the ombudsman shall seek to obtain
160     [written] from the resident, or the resident's legal representative, permission in writing, orally,
161     or through the use of auxiliary aids and services to review the records [from the
162     institutionalized elderly person or his legal representative].
163          (b) The effort to obtain permission under Subsection (3)(a) shall include personal
164     contact with the [elderly] resident or [his] the resident's legal representative. If the resident or
165     the resident's legal representative refuses to [sign a release allowing access to records] give
166     permission, the ombudsman shall record and abide by this decision.
167          (c) If the ombudsman's attempt to obtain [a signed release] permission fails for [any
168     other] a reason other than the refusal of the resident or the resident's legal representative to give
169     permission, the ombudsman may review the records.
170          [(4) Following any investigation, the ombudsman shall report its findings and
171     recommendations to the complainant, elderly residents of long-term care facilities affected by
172     the complaint, and to the long-term care facility or governmental agency involved.]
173          (d) If the ombudsman has reasonable cause to believe that the resident is incompetent
174     to give permission and that the resident's legal representative is not acting in the best interest of
175     the resident, the ombudsman shall determine whether review of the resident's records is in the
176     best interest of the resident. If the ombudsman determines that review of the resident's records
177     is in the best interest of the resident, the ombudsman shall review the records.
178          Section 7. Section 62A-3-207 is amended to read:
179          62A-3-207. Confidentiality of materials relating to complaints or investigations --
180     Immunity from liability -- Discriminatory, disciplinary, or retaliatory actions prohibited.
181          (1) The ombudsman shall establish procedures to [assure] ensure that all files
182     maintained by the [long-term care] ombudsman program are disclosed only at the discretion of
183     and under the authority of the ombudsman. The identity of a complainant or [elderly] resident
184     of a long-term care facility may not be disclosed by the ombudsman unless:
185          (a) the complainant or [elderly] resident, or the legal representative of either, consents
186     in writing, orally, or through the use of auxiliary aids and services to the disclosure;
187          (b) disclosure is ordered by the court; or
188          [(c) the disclosure is made to a local area agency on aging, the state adult protective
189     services agency, the Department of Health, the Department of Public Safety, the local law
190     enforcement agency, or the county attorney as part of the investigation of a complaint.]
191          (c) the disclosure is approved by the ombudsman and is made, as part of an
192     investigation involving the resident, to an agency that:
193          (i) has statutory responsibility for the resident;
194          (ii) has statutory responsibility over the action alleged in the complaint;
195          (iii) is able to assist the ombudsman to achieve resolution of the complaint; or
196          (iv) is able to provide expertise that would benefit the resident.
197          (2) Neither the ombudsman nor [its agents or designees] the ombudsman's agent or
198     designee may be required to testify in court with respect to confidential matters, except as the
199     court finds necessary to enforce [the provisions of] this part.
200          (3) Any person who makes a complaint to the ombudsman pursuant to this part is
201     immune from any civil or criminal liability unless the complaint was made maliciously or
202     without good faith.
203          (4) (a) Discriminatory, disciplinary, or retaliatory action may not be taken against
204     [any] a volunteer or employee of a long-term care facility or governmental agency, or against
205     [any elderly] a resident of a long-term care facility, for any communication made or
206     information given or disclosed to aid the ombudsman or other appropriate public agency in
207     carrying out its duties and responsibilities, unless the same was done maliciously or without
208     good faith.
209          (b) This subsection does not infringe on the rights of an employer to supervise,
210     discipline, or terminate an employee for any other reason.
211          Section 8. Section 62A-3-208 is amended to read:
212          62A-3-208. Prohibited acts -- Penalty.
213          (1) No person may:
214          (a) give or cause to be given advance notice to a long-term care facility or agency that
215     an investigation or inspection under the direction of the ombudsman is pending or under
216     consideration, except as provided by law;
217          (b) disclose confidential information submitted to the ombudsman pursuant to this part,
218     except as provided by law;
219          (c) willfully interfere with the lawful actions of the ombudsman;
220          (d) willfully refuse to comply with lawful demands of the ombudsman, including the
221     demand for immediate entry into or inspection of the premises of any long-term care facility or
222     agency or for immediate access to [any elderly] a resident of a long-term care facility; or
223          (e) offer or accept any compensation, gratuity, or promise thereof in an effort to affect
224     the outcome of a matter being investigated or of a matter [which] that is before the ombudsman
225     for determination of whether an investigation should be conducted.
226          (2) Violation of any provision of this part constitutes a class B misdemeanor.