Rep. Norm Thurston — Voting Record

Bill

Number

H.B. 137 (2018GS)

Sponsor

Rep. Daw, B.

Final action

Governor Signed 3/15/2018

Outcome

Became law — signed by Gov. Gary R. Herbert

Summary

What it does

• This bill:
• amends definitions;
• eliminates references to "elderly" in provisions governing the Long-Term Care Ombudsman Program;
• makes other amendments related to the Long-Term Care Ombudsman Program; and
• makes technical changes.

Every vote on this bill

Bill text

LONG-TERM CARE OMBUDSMAN AMENDMENTS
GENERAL SESSION
STATE OF UTAH
Chief Sponsor: Brad M. Daw
Senate Sponsor: 
Margaret Dayton
LONG TITLE
General Description:
This bill amends provisions related to the Long-Term Care Ombudsman Program
within the Division of Aging and Adult Services, within the Department of Human
Services.
Highlighted Provisions:
This bill:
▸ amends definitions;
▸ eliminates references to "elderly" in provisions governing the Long-Term Care
Ombudsman Program;
▸ makes other amendments related to the Long-Term Care Ombudsman Program; and
▸ makes technical changes.
Money Appropriated in this Bill:
None
Other Special Clauses:
None
Utah Code Sections Affected:
AMENDS:
62A-3-201
, as enacted by Laws of Utah 1988, Chapter 1
62A-3-202
, as last amended by Laws of Utah 1998, Chapter 192
62A-3-203
, as last amended by Laws of Utah 2006, Chapter 31
62A-3-204
, as last amended by Laws of Utah 2009, Chapter 75
62A-3-205
, as last amended by Laws of Utah 2008, Chapter 382
62A-3-206
, as last amended by Laws of Utah 2010, Chapter 324
62A-3-207
, as last amended by Laws of Utah 1993, Chapter 176
62A-3-208
, as enacted by Laws of Utah 1988, Chapter 1
Be it enacted by the Legislature of the state of Utah:
Section 1. Section 
62A-3-201
 is amended to read:
62A-3-201.
Legislative findings -- Purpose -- Ombudsman.
(1)
 The Legislature finds and declares that the [
aging
] citizens of this state should be
assisted in asserting their civil and human rights as patients, residents, and clients of long-term
care facilities created to serve their specialized needs and problems; and that for the health,
safety, and welfare of these citizens, the state should take appropriate action through an
adequate legal framework to address their difficulties.
(2)
 The purpose of this part is to establish within the division the [
long-term care
ombudsman program
] 
Long-Term Care Ombudsman Program
 for the [
aging
] citizens of this
state and identify duties and responsibilities of that program and of the ombudsman, in order to
address problems relating to long-term care [
for aging citizens,
] and to fulfill federal
requirements.
Section 2. Section 
62A-3-202
 is amended to read:
62A-3-202.
Definitions.
As used in this part:
[
(1) "Elderly resident" means an adult 60 years of age or older who because of
physical, economic, social, or emotional problems cannot function normally on an independent
basis, and who resides in a long-term care facility.
]
(1) "Assisted living facility" means the same as that term is defined in Section 
26-21-2
.
(2) "Auxiliary aids and services" means items, equipment, or services that assist in
effective communication between an individual who has a mental, hearing, vision, or speech
disability and another individual.
[
(2)
] 
(3)
 "Government agency" means any department, division, office, bureau, board,
commission, authority, or any other agency or instrumentality created by the state, or to which
the state is a party, or created by any county or municipality, which is responsible for the
regulation, visitation, inspection, or supervision of facilities, or which provides services to
patients, residents, or clients of facilities.
[
(3) "Long-term care facility" means any skilled nursing facility, intermediate care
facility, nursing home, assisted living facility, adult foster care home, or any living arrangement
in the community through which room and personal care services are provided for elderly
residents.
]
(4) "Intermediate care facility" means the same as that term is defined in Section
58-15-2
.
(5) (a) "Long-term care facility" means:
(i) a skilled nursing facility;
(ii) except as provided in Subsection (5)(b), an intermediate care facility;
(iii) a nursing home;
(iv) a small health care facility;
(v) a small health care facility type N; or
(vi) an assisted living facility.
(b) "Long-term care facility" does not mean an intermediate care facility for people
with an intellectual disability, as defined in Section 
58-15-2
.
[
(4)
] 
(6)
 "Ombudsman" means the administrator of the long-term care ombudsman
program, created pursuant to Section 
62A-3-203
.
(7) "Ombudsman program" means the Long-Term Care Ombudsman Program.
(8) "Resident" means an individual who resides in a long-term care facility.
(9) "Skilled nursing facility" means the same as that term is defined in Section 
58-15-2
.
(10) "Small health care facility" means the same as that term is defined in Section
26-21-2
.
(11) "Small health care facility type N" means a residence in which a licensed nurse
resides and provides protected living arrangements, nursing care, and other services on a daily
basis for two to three individuals who are also residing in the residence and are unrelated to the
licensee.
Section 3. Section 
62A-3-203
 is amended to read:
62A-3-203.
Long-Term Care Ombudsman Program -- Responsibilities.
(1) (a) There is created within the division the [
Long-Term Care Ombudsman
Program
] 
ombudsman program
 for the purpose of promoting, advocating, and ensuring the
adequacy of care received[
,
] and the quality of life experienced by [
elderly
] residents of
long-term care facilities within the state.
(b) Subject to the rules made under Section 
62A-3-106.5
, the ombudsman is
responsible for:
(i) receiving and resolving complaints relating to [
elderly
] residents of long-term care
facilities;
(ii) conducting investigations of any act, practice, policy, or procedure of [
any
] 
a
long-term care facility or government agency [
which it
] 
that the ombudsman
 has reason to
believe affects or may affect the health, safety, welfare, or civil and human rights of [
any
elderly
] 
a
 resident of a long-term care facility;
(iii) coordinating the department's services for [
elderly
] residents of long-term care
facilities to ensure that those services are made available to eligible [
elderly
] citizens of the
state; and
(iv) providing training regarding the delivery and regulation of long-term care to public
agencies, local ombudsman program volunteers, and operators and employees of long-term
care facilities.
(2) (a) A long-term care facility shall display an ombudsman program information
poster 
in a location that is readily visible to all residents, visitors, and staff members
.
(b) The division is responsible for providing the posters, which shall include [
the
names and
] phone numbers for local ombudsman programs.
Section 4. Section 
62A-3-204
 is amended to read:
62A-3-204.
Powers and responsibilities of ombudsman.
The long-term care ombudsman shall:
(1) comply with Title VII of the federal Older Americans Act, 42 U.S.C. 3058 et seq.;
(2) establish procedures for and engage in receiving complaints, conducting
investigations, reporting findings, issuing findings and recommendations, promoting
community contact and involvement with [
elderly
] residents of long-term care facilities
through the use of volunteers, and publicizing its functions and activities;
(3) investigate an administrative act or omission of [
any
] 
a
 long-term care facility or
governmental agency if the act or omission relates to the purposes of the ombudsman. The
ombudsman may exercise its authority under this subsection without regard to the finality of
the administrative act or omission, and it may make findings in order to resolve the subject
matter of its investigation;
(4) recommend to the division rules that it considers necessary to carry out the
purposes of the ombudsman;
(5) cooperate and coordinate with governmental entities and voluntary assistance
organizations in exercising its powers and responsibilities;
(6) request and receive cooperation, assistance, services, and data from any
governmental agency, to enable it to properly exercise its powers and responsibilities;
(7) establish local ombudsman programs to assist in carrying out the purposes of this
part, which shall meet the standards developed by the division, and possess all of the authority
and power granted to the [
long-term care
] ombudsman program under this part; and
(8) exercise other powers and responsibilities as reasonably required to carry out the
purposes of this part.
Section 5. Section 
62A-3-205
 is amended to read:
62A-3-205.
Procedures -- Adjudicative proceedings.
The [
long-term care
] ombudsman shall comply with the procedures and requirements of
Title 63G, Chapter 4, Administrative Procedures Act, in [
its
] 
the ombudsman's
 adjudicative
proceedings.
Section 6. Section 
62A-3-206
 is amended to read:
62A-3-206.
Investigation of complaints -- Procedures.
(1) [
(a)
] The ombudsman shall investigate each complaint [
he
] 
the ombudsman
receives. An investigation may consist of a referral to another public agency, the collecting of
facts and information over the telephone, or an inspection of the long-term care facility that is
named in the complaint.
[
(b) The ombudsman shall notify any complainant of its decision to not pursue
investigation of a complaint after the initial investigation and the reasons for the decision.
]
(2) In making [
any
] 
an
 investigation, the ombudsman may engage in actions [
it deems
]
the ombudsman considers
 appropriate
,
 including[
, but not limited to
]:
(a) making inquiries and obtaining information;
(b) holding investigatory hearings;
(c) entering [
upon
] and inspecting any premises, without notice to the facility, provided
the investigator [
identifies himself
] 
presents,
 upon entering the premises [
as a person
]
,
identification as an individual
 authorized by this part to inspect the premises; and
(d) inspecting or obtaining [
any
] 
a
 book, file, medical record, or other record required
by law to be retained by the long-term care facility or governmental agency, pertaining to
[
elderly
] residents, subject to Subsection (3).
(3) (a) Before reviewing a resident's records, the ombudsman shall seek to obtain
[
written
] 
from the resident, or the resident's legal representative,
 permission 
in writing, orally,
or through the use of auxiliary aids and services
 to review the records [
from the
institutionalized elderly person or his legal representative
].
(b) The effort to obtain permission under Subsection (3)(a) shall include personal
contact with the [
elderly
] resident or [
his
] 
the resident's
 legal representative. If the resident or
the resident's
 legal representative refuses to [
sign a release allowing access to records
] 
give
permission
, the ombudsman shall record and abide by this decision.
(c)
 If the 
ombudsman's
 attempt to obtain [
a signed release
] 
permission
 fails for [
any
other
] 
a
 reason 
other than the refusal of the resident or the resident's legal representative to give
permission
, the ombudsman may review the records.
[
(4) Following any investigation, the ombudsman shall report its findings and
recommendations to the complainant, elderly residents of long-term care facilities affected by
the complaint, and to the long-term care facility or governmental agency involved.
]
(d) If the ombudsman has reasonable cause to believe that the resident is incompetent
to give permission and that the resident's legal representative is not acting in the best interest of
the resident, the ombudsman shall determine whether review of the resident's records is in the
best interest of the resident. If the ombudsman determines that review of the resident's records
is in the best interest of the resident, the ombudsman shall review the records.
Section 7. Section 
62A-3-207
 is amended to read:
62A-3-207.
Confidentiality of materials relating to complaints or investigations --
Immunity from liability -- Discriminatory, disciplinary, or retaliatory actions prohibited.
(1) The ombudsman shall establish procedures to [
assure
] 
ensure
 that all files
maintained by the [
long-term care
] ombudsman program are disclosed only at the discretion of
and under the authority of the ombudsman. The identity of a complainant or [
elderly
] resident
of a long-term care facility may not be disclosed by the ombudsman unless:
(a) the complainant or [
elderly
] resident, or the legal representative of either, consents
in writing
, orally, or through the use of auxiliary aids and services
 to the disclosure;
(b) disclosure is ordered by the court; or
[
(c) the disclosure is made to a local area agency on aging, the state adult protective
services agency, the Department of Health, the Department of Public Safety, the local law
enforcement agency, or the county attorney as part of the investigation of a complaint.
]
(c) the disclosure is approved by the ombudsman and is made, as part of an
investigation involving the resident, to an agency that:
(i) has statutory responsibility for the resident;
(ii) has statutory responsibility over the action alleged in the complaint;
(iii) is able to assist the ombudsman to achieve resolution of the complaint; or
(iv) is able to provide expertise that would benefit the resident.
(2) Neither the ombudsman nor [
its agents or designees
] 
the ombudsman's agent or
designee
 may be required to testify in court with respect to confidential matters, except as the
court finds necessary to enforce [
the provisions of
] this part.
(3) Any person who makes a complaint to the ombudsman pursuant to this part is
immune from any civil or criminal liability unless the complaint was made maliciously or
without good faith.
(4) (a) Discriminatory, disciplinary, or retaliatory action may not be taken against
[
any
] 
a
 volunteer or employee of a long-term care facility or governmental agency, or against
[
any elderly
] 
a
 resident of a long-term care facility, for any communication made or
information given or disclosed to aid the ombudsman or other appropriate public agency in
carrying out its duties and responsibilities, unless the same was done maliciously or without
good faith.
(b) This subsection does not infringe on the rights of an employer to supervise,
discipline, or terminate an employee for any other reason.
Section 8. Section 
62A-3-208
 is amended to read:
62A-3-208.
Prohibited acts -- Penalty.
(1) No person may:
(a) give or cause to be given advance notice to a long-term care facility or agency that
an investigation or inspection under the direction of the ombudsman is pending or under
consideration, except as provided by law;
(b) disclose confidential information submitted to the ombudsman pursuant to this part,
except as provided by law;
(c) willfully interfere with the lawful actions of the ombudsman;
(d) willfully refuse to comply with lawful demands of the ombudsman, including the
demand for immediate entry into or inspection of the premises of any long-term care facility or
agency or for immediate access to [
any elderly
] 
a
 resident of a long-term care facility; or
(e) offer or accept any compensation, gratuity, or promise thereof in an effort to affect
the outcome of a matter being investigated or of a matter [
which
] 
that
 is before the ombudsman
for determination of whether an investigation should be conducted.
(2) Violation of any provision of this part constitutes a class B misdemeanor.