Chapter 055

2003 -- H 5841 SUBSTITUTE A

Enacted 06/27/03

A N A C T

RELATING TO LONG-TERM CARE -- OMBUDSPERSON

Introduced By: Representatives Ginaitt, Costantino, Long, and Reilly

Date Introduced: February 11, 2003

It is enacted by the General Assembly as follows:

     SECTION 1. Sections 42-66.7-3, 42-66.7-5, 42-66.7-6, 42-66.7-7, 42-66.7-9, 42-66.7-10,

42-66.7-12 and 42-66.7-13 of the General Laws in Chapter 42-66.7 entitled "Long-Term Care

Ombudsperson Act of 1995" are hereby amended to read as follows:

42-66.7-3. Definitions. -- As used in this chapter:

      (1) An "act" of any facility or government agency includes any failure or refusal to act

by any facility or government agency.

      (2) "Administrator" means any person who is charged with the general administration or

supervision of a facility whether or not that person has an ownership interest and whether or not

that person's functions and duties are shared with one or more other persons.

      (3) "Elderly" means any person sixty (60) years of age or older who is a resident of any

facility.

     (4) "Facility" means any facility, or institution, home care provider or home nursing care

provider, whether public or private, offering health or health related services for the

institutionalized elderly, and which is subject to regulation, visitation, inspection, or supervision

by any government agency. "Facilities" include, but are not limited to, nursing homes,

intermediate care facilities, extended care facilities, convalescent homes, rehabilitation centers,

home care agencies, homes for the aged, veterans' homes, boarding homes, and residential care

and assisted living facilities. residences.

      (5) "Government agency" means any department, division, office, bureau, board,

commission, authority, non-profit community organization, or any other agency or

instrumentality created by any municipality or by the state, or to which the state is a party, which

is responsible for the regulation, inspection, visitation, or supervision of facilities or which

provides services to residents of facilities.

      (6) "Ombudsperson" means the person or persons designated by the director of the

department of elderly affairs. That person or persons shall have expertise and experience in the

fields of social work, long term care, and advocacy, and shall be qualified and experienced in

communicating with the elderly.

      (7) "Resident" means any person age sixty (60) years of age or older who is receiving

treatment, care, or housing in any facility in all of its aspects including, but not limited to,

admission, retention, confinement, period of residence, transfer, discharge, and in any instances

directly related to that status. Residents include patients and clients. Residents shall also include

disabled persons under sixty (60) years of age residing in nursing homes, or clients of residential

and assisted living facilities and home care providers/home nursing care providers.

(8) "Interfer" means willing and continuous conduct which prevents the ombudsperson

from performing her/his official duties.

(9) "Official duties" means work pursuant to the long-term care ombudsperson program

authorized by the federal Older Americans Act or the long-term care ombudsperson program

authorized by state law and carried out under the auspices and general direction of the state long-

term care ombudsperson.

(10) "Director" means the director of the department of elderly affairs.

(11) "Person" means any individual, trust, or estate, partnership, limited liability

corporation, corporation (including associations, joint stock companies, and insurance

companies), state, or political subdivision or instrumentality of a state.

42-66.7-5. Powers and duties. -- The long term care ombudsperson shall:

      (1) Identify, investigate, and resolve complaints that (a) are made by, or on behalf of,

residents; and (b) relate to action, inaction, or decisions, that may adversely effect the health,

safety, welfare, or rights of the residents (including the welfare and rights of the residents with

respect to the appointment and activities of guardians and representative payees);

      (2) Provide referral services to assist residents in protecting their health, safety, welfare

and rights;

      (3) Inform residents of their rights and advocate on their behalf to improve their quality

of life and live with dignity and respect;

      (4) Formulate policies and procedures to identify, investigate, and resolve complaints;

      (5) Make appropriate referrals of investigations to other state agencies, such as the

department of health and the department of attorney general; and

      (6) Offer assistance and training to public and private organizations on long term care of

elders. and persons with disabilities;

(7) Represent the interests of residents of facilities before government agencies and seek

administrative, legal, and other remedies to protect the health, safety, welfare, and rights of the

residents including rights with respect to the appointment and activities of guardians and

representative payees; and

(8) Review and, if necessary, comment on any existing and proposed laws, regulations,

and other government policies and actions, that pertain to the rights and well-being of residents of

facilities.

42-66.7-6. Confidentiality. -- The files maintained by the long term care ombudsperson

program are confidential and shall be disclosed only with the written consent of the resident

client affected or his or her legal representative, or if any disclosure is required by court order.

Nothing in this paragraph shall be construed to prohibit the disclosure of information gathered in

an investigation to any interested party as may be necessary to resolve the complaint or to refer to

other appropriate state agencies investigating civil, criminal or licensing violations.

42-66.7-7. Access to records, facility, resident. –(a) In the course of an investigation,

the long term care ombudsperson shall:

      (1) make the necessary inquiries and obtain information as is deemed necessary;

      (2) have access to facilities and residents and service providers; and

      (3) enter facilities and, after notifying the person in charge, inspect any books, files,

medical records, or other records that pertain to the resident. and are required by law to be

maintained by the facility

      (b) In the ordinary course of the long term care ombudsperson's duties, the long term

care ombudsperson shall have access to residents of a facility to:

      (1) visit, talk with, make personal, social, and other appropriate services available;

      (2) inform them of their rights and entitlements and corresponding obligations under

federal and state law by distribution of educational materials, discussion in groups, or discussion

with individual residents and their families; and

      (3) engage in other methods of assisting, advising, and representing residents to extend

to them the full enjoyment of their rights.

42-66.7-9. Cooperation required. -- (a) The long term care ombudsperson may request

from any government agency, and the agency is authorized and directed to provide, any

cooperation and assistance, services, and data as will enable the long term care ombudsperson to

properly perform or exercise any of his or her functions, duties and powers under this chapter.

      (b) The long term care ombudsperson shall, to the extent permissible under the

provisions of section 712 of the Older Americans Act (42 U.S.C. 3058g) as amended in 2000,

cooperate and assist other government agencies in their investigations, such as the department of

health, the department of attorney general, the department of human services and any other

pertinent department or agency.

42-66.7-10. Annual reports. -- The long term care ombudsperson shall file a submit an

annual report of the activities of the long term care ombudsperson program and the long term care

ombudsperson's activities concerning facilities and the protection of the rights of residents of the

facilities with the assistant secretary for aging, director, governor, general assembly, director of

the Rhode Island department of health, chair of the long-term-care coordinating council and other

appropriate governmental entities. The report shall be available to the public. director of the

department of elderly affairs. This report shall be submitted by the director of elderly affairs to

the chair of the long term care coordinating council for review.

42-66.7-12. Rules and regulations. -- The director of the department of elderly affairs

shall promulgate and, from time to time, revise rules and regulations for the implementation and

enforcement of the long-term ombudsperson program including, but not limited to, the procedures

for the receipt, investigation and resolution, through administrative action, of complaints. As

applicable, the rules and regulations promulgated by the director shall be in accordance with the

provisions set forth in section 712 of the Older Americans Act (42 U.S.C. 3058g) as amended in

2000.

42-66.7-13. Interagency cooperation. -- Nothing in this chapter shall be construed to be

a limitation of the powers and responsibilities assigned by law to other state agencies or

departments. The director of the department of elderly affairs shall establish an interagency

agreement among the elderly affairs department, the department of health, the department of

attorney general and the department of human services to ensure a cooperative effort in meeting

the needs of the residents of long term care facilities.

     SECTION 2. Chapter 42-66.7 of the General Laws entitled "Long-Term Care

Ombudsperson Act of 1995" is hereby amended by adding thereto the following sections:

42-66.7-14. Noninterference. – No person shall willfully interfer with the long-term care

ombudsperson in the performance of the ombudsperson's official duties.

42-66.7-15. Enforcement. – The director shall have the power to enforce the provisions

of this chapter.

42-66.7-16. Penalty for violations of sections 42-66.7-8 and 42-66.7-14. – (a) Every

person who shall willfully violate the provisions of sections 42-66.7-8 or 42-66.7-14 will be

subject to a fine up to one thousand dollars ($1,000) for each violation of these sections and any

other remedy provided for in the Rhode Island law.

42-66.7-17. Severability. – If any provision of this chapter or any rule or regulation

made under this chapter, or the application of any provision of this chapter to any person or

circumstance shall be held invalid by any court of competent jurisdiction, the remainder of the

chapter, rule or regulation and the application of such provision to other persons or circumstances

shall not be affected thereby. The invalidity of any section or sections or parts of any section of

this chapter shall not affect the validity of the remainder of this chapter and to this end the

provisions of the chapter are declared to be severable.

     SECTION 3. This act shall take effect upon passage.

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LC01930/SUB A

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