SB328 By Senator Glover RFD Health and Human Services Rd 1 16-MAR-17

SYNOPSIS: This bill would update provisions relating to the Office of the State Long Term Care Ombudsman Program to reflect new federal regulations.

This bill would delete outdated and obsolete terms and provisions.

A BILL TO BE ENTITLED AN ACT

Relating to the Office of the Long Term Care Ombudsman Program; to amend Sections 22-5A-1 to 22-5A-7, Code of Alabama 1975; to update provisions to reflect new federal regulations; and to delete outdated and obsolete terms and provisions.

BE IT ENACTED BY THE LEGISLATURE OF ALABAMA:Section 1. Sections 22-5A-1 to 22-5A-7, inclusive, of the Code of Alabama 1975, are amended to read as follows:

§22-5A-1.

"This chapter shall be known and may be cited as the "Long-term Residential Health Care Recipient Ombudsman Act." Office of the State Long Term Care Ombudsman Program Act.

§22-5A-2.

"For the purposes of this chapter, the following words shall have the meanings ascribed to them by this section:

"(1) ADMINISTRATOR. Any person charged with the general administration or supervision of a health care, domiciliary or residential facility without regard to whether such the person has an ownership interest in such facility or to whether such the person's functions and duties are shared with one or more other persons.

"(2) COMMUNITY OMBUDSMAN. A person selected by an area agency on aging who is then trained and certified as such by the commission pursuant to Section 22-5A-4. AREA AGENCY ON AGING. An entity that coordinates and provides services for seniors and individuals with disabilities in a specific planning and service area.

"(3) DEPARTMENT. Department of Senior Services.

"(4) HEALTH CARE FACILITY. Any skilled nursing facility, intermediate care facility, domiciliary, boarding home facility, hospital, or other facility now or hereafter subject to regulation or licensure by the Bureau of Licensure and Certification of the State Department of Health or a county department of health which that provides any generally accepted facet of long-term residential health care or treats any recipient of long-term residential health care.

"(5) LONG-TERM RESIDENTIAL HEALTH CARE. Those health care services rendered to an individual who is a resident in-patient of a health care facility for any period which is expected to exceed 90 days.

"(6) OMBUDSMAN. The State Ombudsman or any community ombudsman. OFFICE. The Office of the State Long Term Care Ombudsman Program which carries out its duties, functions, and responsibilities directly or through local area agencies on aging or other entities designated by the Office of the State Long Term Care Ombudsman Program.

"(7) RECIPIENT. Any person receiving long-term residential health care treatment in any health care facility or other community setting in all its aspects including, but not limited to, admission, retention, confinement, commitment, length of stay, transfer, discharge, physical examination, issuing or filling a prescription for a controlled pharmaceutical substance, dispensing drugs or medication, counseling and/or treatment, and any instances directly related.

"(8)RECIPIENT REPRESENTATIVE. An individual chosen by a recipient to act on the recipient's behalf in order to support the recipient in decision making; accessing medical, social, or other personal information; managing financial matters; or receiving notifications. This includes a person authorized by state or federal law, including but not limited to powers of attorney, representative payees, and other fiduciaries; legal representatives; and court appointed guardians or conservators of a recipient.

"(9) REPRESENTATIVE OF THE OFFICE. An individual who is designated, trained, and certified by the State Long Term Care Ombudsman pursuant to Section 22-5A-4, and selected by an area agency on aging or by another designated entity funded by the department.

"(11) STATE LONG TERM CARE OMBUDSMAN OR OMBUDSMAN. The State Long-term Residential Health Care Recipient Ombudsman, currently known as the Nursing Home Ombudsman of the Alabama Commission on Aging. The State Ombudsman shall be appointed by the commission and shall report to the executive director of the commission Director of the Office of the State Long Term Care Ombudsman Program, who is appointed by and reports to the Commissioner of the Department of Senior Services.

§22-5A-3.

"(a) The department shall establish the Office of the State Long Term Care Ombudsman Program within the department but as a separately identifiable entity, and shall appoint a Director of the Office of the State Long Term Care Ombudsman Program. The department shall be responsible for supervision and personnel management of individuals in the office who are employed by the department, but the department shall not be responsible for programmatic oversight of the office beyond what is necessary to comply with federal regulations, nor shall it be responsible for supervision and personnel management of representatives of the office who are not employed by the department.

"(b) The department and the office shall identify actual and potential conflicts of interest, both organizational and individual, that may impact the effectiveness and credibility of the work of the office and shall take steps to remove or remedy any conflict of interest between the office and the department, an area agency on aging, or another designated entity carrying out the duties of the program.

"(c) The State Ombudsman and the department are office is hereby authorized to investigate complaints concerning health care facilities., domiciliary and residential care facilities. The State Ombudsman ombudsman shall promote the well-being and quality of life of long-term residential health care recipients and encourage the development of community ombudsman activities at the local level.

"(d) After appropriate training and approval by the department ombudsman, community ombudsmen representatives of the office shall be certified and designated by the department ombudsman and shall have the powers and responsibilities set forth in Sections 22-5A-4 and 22-5A-6, subject to the procedures established by the State Ombudsman office pursuant to Section 22-5A-5.

"(e) The ombudsman shall have the sole authority to make or delegate to a representative of the office determinations concerning the disclosure of files, records, and other information maintained by the office and shall provide that all files, records, and information obtained by the office be disclosed only at the discretion of the ombudsman or a representative of the office for such purposes in accordance with criteria developed by the office.

"(f) The State Ombudsman office shall submit to the department and to the U.S. Department of Health and Human Services Administration for Community Living an annual written report documenting the kinds of complaints and problems reported so that the department can make recommendations concerning needed policy, regulatory, and legislative changes.

"(g) The office shall analyze, comment on, and monitor the development and implementation of federal, state, and local laws, regulations, and other government policies and actions that pertain to long term care and other health care facilities and services, and to the health, safety, welfare, and rights of recipients. The office shall recommend any regulatory or legislative changes to the Commissioner of the Department of Senior Services or Legislature, as appropriate.

§22-5A-4.

"(a) Each area agency on aging or other designated entity funded by the department shall select at least one community ombudsman full-time representative of the office in each planning and service area established according to regulations issued pursuant to the Older Americans Act of 1965, as amended. The community ombudsman representative of the office shall be an employee or contractual employee of the area agency on aging or other designated entity and shall certify attest to having no association with any health care facility or provider for reward or profit. Each representative of the office shall be trained, certified, and designated by the ombudsman as provided in this section.

"(b) The duties of each community ombudsman representative of the office shall be as follows:

"(1) To receive, investigate, respond to, and attempt informally to resolve complaints made by or on behalf of recipients;

"(2) To report immediately instances of fraud, abuse, neglect, or exploitation to the department of pensions and security for investigation and follow-up ombudsman for referral to the appropriate agency for investigation and follow-up pursuant to Chapter 9 of Title 38, the Adult Protective Services Act of 1976, and Article 1 of Chapter 16 of Title 26, the Child Abuse and Neglect Prevention Act or the Department of Public Health pursuant to subsection (d) of Section 38-9-8. The ombudsman shall determine if a report should be made to the appropriate agency for further investigation and follow-up when consent has not been given by the complainant, recipient, or recipient representative. The ombudsman and representatives of the office are excluded from abuse reporting requirements when such reporting discloses the identity of a complainant or recipient without appropriate consent or court order;

"(3) To serve as a third-party mechanism for protecting the health, safety, welfare, and human rights of recipients;

"(4) To report immediately in a reasonable time, as set forth by the office, any complaint that cannot be resolved informally to the State Ombudsman ombudsman for appropriate action under Section 22-5A-6;

"(5) To collect data about the number and kinds of complaints handled; and

"(6) To report regularly monthly to the State Ombudsman ombudsman about the data collected and activities of the community ombudsman program.

"(c) A description of the operation of its community ombudsman program shall be included by each area agency on aging or other designated entity in its area plan, which is subject to the approval of the department and the office.

"(d) Each area agency on aging shall immediately notify the department of the selection of, and request the certification of, prospective community ombudsmen.

"(e) (d) The State Ombudsman ombudsman shall arrange for the training of all prospective community ombudsmen representatives of the office selected by area agencies on aging or other designated entities. Such training shall include instructions in at least the following subjects as they relate to health care:

"(1) The responsibilities, duties and authority of community ombudsmen representatives of the office;

"(2) The laws and regulations governing the receipt, investigation, and resolution of complaints;

"(3) The role of local, state and federal agencies that regulate health care facilities;

"(4) The different kinds of health care facilities in Alabama and the services provided in each setting;

"(5) The special needs of the elderly and of the physically and mentally handicapped;

"(6) The role of the family, the sponsor, the legal representative, the physician, the church and other public and private agencies, and the community;

"(7) How to work with health providers, medical professionals and staff;

"(8) The laws and regulations governing Medicare, Medicaid, social security, supplemental security income, and the Veterans Administration; and

"(9) The licensure requirements for administrators of hospitals, nursing homes, home health care agencies, etc., including familiarity with the actual information required to obtain the various licenses.

"(f) Persons (e) Individuals selected by area agencies on aging or other designated entities who shall have satisfactorily completed the training arranged by the State Ombudsman ombudsman shall be certified and designated as community ombudsmen representatives of the office by the department ombudsman. The certification can be terminated at any time by the Department of Senior Services or appropriate area agency on aging ombudsman for either of the following:

"(1) When the community ombudsman The representative of the office is no longer employed by the Department of Senior Services or an employee or contractual employee of the area agency on aging or other designated entity; or

"(2) For cause.

"(g) (h) Each area's agency on aging or other designated entity's advisory council shall appoint a subcommittee to advise it in the operation of its community ombudsman program. The number and qualifications of members of the advisory subcommittee shall be determined by the respective area agency on aging or other designated entity but shall contain adequate representation from the various types of health facilities covered under the Area Agency Community Ombudsman Plan ombudsman plan of the respective area agency on aging or other designated entity.

§22-5A-5.

"The State Ombudsman office shall establish written procedures for receiving complaints involving long-term residential health care facilities and their employees. The Department of Senior Services office shall provide to health care, domiciliary and residential facilities written information on the ombudsman program to be distributed to recipients at the time of admission, or rendering of care, and/or or treatment at or by a health care facility.

§22-5A-6.

"(a) A community ombudsman's access The access by a representative of the office to any health care facility to investigate a complaint shall be limited to standard operating hours unless prior arrangements with the operator of the facility has been made at any time during regular business hours or regular visiting hours and any time when access is required to investigate the circumstances of the complaint. If the complaint involves more than one provider or alleges to involve more than one provider, the ombudsman representative of the office shall investigate all providers.

"(b) Any complaint requiring remedial action and deemed valid by the ombudsman representative of the office shall be identified and brought to the attention of the office as well as the administrator or provider involved, provided the complainant or recipient gives permission. The and followed up in writing within a reasonable time. Upon receipt of such document, the administrator or provider, in coordination with the ombudsman representative of the office, shall establish a course of appropriate remedial action. If the remedial action is not forthcoming within a reasonable time, the ombudsman must representative of the office shall refer the case to the State Ombudsman ombudsman who may take any one or more of the following actions:

"(1) Allow more time if the State Ombudsman ombudsman has reason to believe such action would facilitate resolution of the complaint;

"(2) Refer a complaint regarding a nursing home, assisted living facility, specialty care assisted living facility, or long term care unit of a hospital or domiciliary in writing to the Bureau of Licensure and Certification or the Department of Human Resources.

"(3) Refer a complaint regarding a boarding house home to the appropriate agency and request that appropriate action be initiated.

"(4) Refer any and all complaints arising out of or in any way related to the provision of any medical or surgical service or medical care and treatment to a recipient by a physician licensed to practice medicine in Alabama, in whatever setting the said complaint should arise, to the State Board of Medical Examiners only.

"(c) The Department of Senior Services, the State Ombudsman office and the affected community ombudsman representative of the office shall be kept advised and shall be notified in writing by the state agency of the resolution of any complaint that has been referred to the state agency by the State Ombudsman office.

(d) Any ombudsmen representative of the office shall respect the right to privacy of all involved parties when engaged in resolving complaints. Any requests to review information concerning the medical condition of a recipient or any health care facility records of a recipient must be accompanied by a current valid duly executed authorization and release which has been signed by the recipient or by one legally authorized to act on behalf of the recipient. Requests for copies of any medical records must be accompanied by a current valid duly executed authorization and release which has been signed by the recipient or by one legally authorized to act on behalf of the recipient; provided, however, a current, valid, and duly executed authorization and release signed by the recipient or by one legally authorized to act on the recipient's behalf is not required to review or obtain copies of these records if the ombudsman determines the circumstances of a complaint could lead to immediate danger or harm to the recipient. The Health Insurance Portability and Accountability Act of 1996 (HIPAA) Privacy Rule, 45 CFR Part 160 and 45 CFR Part 164, subparts A and E, does not preclude release by covered entities of resident private health information or other resident identifying information to the ombudsman program, including but not limited to, residents' medical, social, or other records, a list of resident names and room numbers, or information collected in the course of a state or federal survey or inspection process. Any physician providing medical information and/or or copies of medical records and any health care facility providing copies of health care facility medical records shall be entitled to the payment of a reasonable charge for the preparation and/or and reproduction of the records. Information concerning any aspect of a complaint resolution proceeding shall be kept confidential and shall not be disclosed by an ombudsman the representative of the office to any person not directly involved in the particular complaint, except in strict accordance with the provisions of this chapter. Such disclosure shall result in the ombudsman's dismissal termination of the representative of the office.

§22-5A-7.

"Any person or agency who in good faith participates in the making of a report or provides information or evidence in direct accordance with the procedures for resolving complaints under the provisions of this chapter shall, in so doing, be immune from any liability, civil or criminal, that might otherwise be incurred or imposed. Notwithstanding the foregoing, this immunity shall not apply if an ombudsman a representative of the office communicates any information concerning a complaint to any party not involved in such complaint."

Section 2. This act shall become effective immediately following its passage and approval by the Governor, or its otherwise becoming law.

Nursing Homes

Long Term Care Ombudsman Program

Long-Term Care Facilities

Senior Services Department

Code Amended