Bill Text: MS SB2192 | 2017 | Regular Session | Introduced
Bill Title: Long-Term Care State Ombudsman Program; revise responsibilities to comply with federal law.
Spectrum: Partisan Bill (Republican 1-0)
Status: (Failed) 2017-01-31 - Died In Committee [SB2192 Detail]
Download: Mississippi-2017-SB2192-Introduced.html
MISSISSIPPI LEGISLATURE
2017 Regular Session
To: Public Health and Welfare; Appropriations
By: Senator(s) Burton
Senate Bill 2192
AN ACT TO AMEND SECTIONS 43-7-7, 43-7-53, 43-7-55, 43-7-57, 43-7-59, 43-7-61, 43-7-63, 43-7-65, 43-7-67, 43-7-69 AND 43-7-77, MISSISSIPPI CODE OF 1972, TO REVISE THE RESPONSIBILITIES OF THE MISSISSIPPI DEPARTMENT OF HUMAN SERVICES TO COMPLY WITH FEDERAL REGULATIONS FOR THE LONG-TERM CARE OMBUDSMAN PROGRAM UNDER THE OLDER AMERICANS ACT; TO ESTABLISH WITHIN THE DIVISION OF AGING AND ADULT SERVICES THE INDEPENDENT OFFICE OF THE STATE LONG-TERM CARE FACILITIES OMBUDSMAN AND CLARIFY THE POSITION OF STATE OMBUDSMAN AND LEGAL ASSISTANCE DEVELOPER; TO PROVIDE RESPONSIBILITIES FOR A PROCEDURE TO HAVE REGULAR ACCESS TO THE SERVICES PROVIDED BY THE STATE OMBUDSMAN PROGRAM AND THE COMMUNITY OMBUDSMAN PROGRAM; TO PROVIDE FOR THE DESIGNATION AND QUALIFICATIONS OF REPRESENTATIVES OF THE OFFICE OF THE STATE OMBUDSMAN; TO PROVIDE THAT THE STATE OMBUDSMAN PROGRAM IS EXCLUDED FROM THE ABUSE-REPORTING REQUIREMENTS WITHOUT RESIDENT CONSENT OR A COURT ORDER; TO PROHIBIT RETALIATION AGAINST INDIVIDUALS MAKING A COMPLAINT TO THE STATE OMBUDSMAN PROGRAM AND PROVIDE CRIMINAL PENALTIES; TO AUTHORIZE THE STATE OMBUDSMAN TO PROMULGATE RULES AND REGULATIONS TO IMPLEMENT THE REQUIREMENTS OF THIS ACT; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Section 43-7-7, Mississippi Code of 1972, is amended as follows:
43-7-7. The Department of Human Services shall be responsible for the collection of data and statistics and for making a continuing study of conditions affecting the general welfare of the aging population; for providing for an interagency and interdepartmental exchange of ideas; for encouraging and assisting in the development of programs for the aging in municipalities and counties of the state, including elder rights leadership; for cooperation with public and private agencies and departments in coordinating programs for the aging; for encouraging and promoting biological, physiological and sociological research; for making recommendations for residential housing and needed nursing and custodial care facilities.
SECTION 2. Section 43-7-53, Mississippi Code of 1972, is amended as follows:
43-7-53. (1) There is
hereby * * * created by the Mississippi Council on Aging within
the Division of Aging and Adult Services the independent organizational
unit called the Office of the State Long-Term Care Facilities Ombudsman as
provided by the Older Americans Act of 1965, as amended, 42 USCS 3001 which
is headed by a State Ombudsman.
(2) The council shall
establish the qualifications of the state * * * representatives of the Office
of the State Long-Term Care Facilities Ombudsmen.
(3) There shall be a position of Legal Assistance Developer within the council who is a member in good standing with The Mississippi Bar who will assist the State Ombudsman in carrying out the duties to protect the health, safety, rights and welfare of residents and provide adequate administrative and legal representation on behalf of residents of long-term care facilities in a manner free of conflict of interest.
SECTION 3. Section 43-7-55, Mississippi Code of 1972, is amended as follows:
43-7-55. For the purposes of Sections 43-7-51 through 43-7-79, the following words shall have the definitions ascribed herein:
(a) "Administrator" means any person charged with the general administration or supervision of a long-term care facility without regard to whether such person has an ownership interest in such facility or to whether such person's functions and duties are shared with one or more other persons;
(b) " * * * Representatives of the Office of
the State Long-Term Care Facilities Ombudsman" means * * * the district, local or volunteers
selected by an area agency on aging who * * * are then trained and * * * designated as such by the * * * State Ombudsman pursuant to
Section 43-7-59;
(c) "Council" means the Mississippi Council on Aging;
(d) "Long-term care facility" means any skilled nursing facility, extended care home, intermediate care facility, personal care home or boarding home which is subject to regulation or licensure by the State Department of Health;
(e) "Resident" means any resident, prospective resident, prior resident or deceased resident of any long-term care facility;
(f) "Sponsor" means an adult relative, friend or guardian who has a responsibility in the resident's welfare;
(g) "State Ombudsman" means the State Long-Term Care Facilities Ombudsman;
(h) "State
Ombudsman Program" means the program that carries out the duties
and functions of the Office of the State Long-Term Care Facilities Ombudsman
which consists of the State Ombudsman, * * * the Office of the
State Long-Term Facilities Ombudsman and the Representatives of the Office of
the State Long-Term Care Facilities Ombudsman;
(i) "Area agency on aging" means those grantees of the council which are charged with the local administration of the Older Americans Act.
SECTION 4. Section 43-7-57, Mississippi Code of 1972, is amended as follows:
43-7-57. The duties of the Office of the State Long-Term Care Facilities Ombudsman, as created under Section 43-7-53, shall be:
(a) The establishment of a procedure to have regular and timely access to the services provided by the State Ombudsman Program and to receive, investigate and resolve complaints filed by residents or sponsors or organizations or long-term care facilities on behalf of residents of long-term care facilities relating to the health, safety, welfare and rights of such residents and to represent the interests of residents before governmental agencies;
(b) The monitoring of the development and implementation of federal, state and local laws, regulations and policies with respect to long-term care facilities and to analyze, comment on and recommend any changes in such laws, regulations and policies as the Office of the State Long-Term Care Facilities Ombudsman deems appropriate;
(c) The establishment of a training program for both the state and community ombudsmen;
(d) To provide public forums, including the holding of public hearings, sponsorships of conferences and workshops, and the holding of other meetings to seek information concerning the needs and problems of residents in long-term care facilities;
(e) The establishment and maintenance of a statewide uniform reporting system to collect and analyze data relating to complaints and conditions in long-term care facilities for the purpose of identifying and resolving significant problems faced by residents as a group;
(f) The submission of an annual report to the State Department of Health, the U.S. Assistant Secretary for Aging (ACL/AOA), Executive Director of the Council and the State Legislature, which shall include statistical information about the state and community long-term care facilities ombudsman programs, shall identify systemic problems in long-term care facilities that cannot be adequately addressed by state and local agencies, and shall include recommendations for legislative or executive action to alleviate any systemic problems;
(g) The testing and * * * designation
of the representatives of the Office of the State Long-Term Care Facilities
Ombudsman;
(h) The development of an ongoing program of publicizing programs designated by the Office of the State Long-Term Care Facilities Ombudsman and by the community long-term care facilities ombudsman through contact with the media and civic organizations;
(i) The development of
policies and regulations related to the use of volunteers in the program * * *; and
(j) Other duties as mandated by the Older Americans Act of 1965, as amended.
SECTION 5. Section 43-7-59, Mississippi Code of 1972, is amended as follows:
43-7-59. (1) The Office of
the State Long-Term Care Facilities Ombudsman shall * * * designate and refuse, suspend or
remove designation of Representatives of the Office of the State Long-Term Care
Facilities Ombudsman in particular where a conflict of interest cannot be
resolved, except that community long-term care facilities ombudsman
programs, except that community long-term care facilities ombudsman programs
existing on July 1, 1988, shall be * * * designated unless the Office
of the State Long-Term Care Facilities Ombudsman determines that the existing
community program no longer meets the requirement of Sections 43-7-51 through
43-7-79.
(2) The * * * State Ombudsman shall specify
standards for the * * * designation and operation of community
ombudsman programs and establish a grievance process.
SECTION 6. Section 43-7-61, Mississippi Code of 1972, is amended as follows:
43-7-61. (1) The Office of
the State Long-Term Care Facilities Ombudsman shall establish a training and
certification program. The * * * State Ombudsman shall specify
by rule the content of the training program. Each long-term care facilities
ombudsman program shall bear the cost of training its own employees.
(2) The State Ombudsman
shall * * * establish minimum qualifications and recertification
requirements for representatives of the Office of the State Long-Term Care
Ombudsman. Such training shall include instruction in at least the
following subjects as they relate to long-term care:
(a) The responsibilities and duties of community ombudsmen;
(b) The laws and regulations governing the receipt, investigation and resolution of issues of the well-being of a resident;
(c) The role of local, state and federal agencies that regulate long-term care facilities;
(d) The different kinds of long-term care facilities in Mississippi and the services provided in each kind;
(e) The special needs of the elderly and of the physically and mentally handicapped;
(f) The role of the family, the sponsor, the legal representative, the physician, the church, and other public and private agencies, and the community;
(g) How to work with long-term care facility staff;
(h) The aging process and characteristics of the long-term care facility resident or institutionalized elderly;
(i) Familiarity with and access to information concerning the laws and regulations governing Medicare, Medicaid, Social Security, Supplemental Security Income, the Veterans Administration and Workers' Compensation; and
(j) The training program shall include an appropriate internship to be performed in a long-term care facility.
(3) Persons selected by area agencies on aging who have satisfactorily completed the training arranged by the State Ombudsman shall be certified as community ombudsmen by the council.
(4) Each area agency on aging may appoint an advisory committee to advise it in the operation of its community ombudsman program. The number and qualifications of members of the advisory committee shall be determined by the area agency on aging.
(5) Ombudsmen who have successfully completed the training and certification program under this section shall be given identification cards which shall be presented to employees of a long-term care facility upon request.
SECTION 7. Section 43-7-63, Mississippi Code of 1972, is amended as follows:
43-7-63. The duties of the community ombudsman shall be:
(a) The investigation of complaints filed by residents, sponsors, organizations or long-term care facilities on behalf of residents of long-term care facilities relating to the health, safety, welfare and rights of a resident and to ensure that residents have regular and timely access to the services of the State Ombudsman Program without inappropriate disclosure of resident-identifying information.
(b) The pursuit of efforts to resolve complaints informally and represent residents before governmental agencies.
(c) The * * * reviewing of the development
and implementation of federal, state and local laws, regulations and policies
relating to long-term care, and, if appropriate, to comment on such laws,
regulations and policies.
(d) The training of volunteers:
(i) Training of volunteers shall be approved by the State Long-Term Care Facilities Ombudsman as appropriate to the level of responsibility of the volunteer, and shall be carried out in accordance with the training manual developed by the Office of the State Long-Term Care Facilities Ombudsman;
(ii) Volunteers
who have met the training and * * * designation requirements
appropriate to their level of responsibility shall be given identification
cards which shall be presented to employees of a long-term care facility upon
request;
(iii) No volunteer shall perform any of the duties enumerated by Sections 43-7-51 through 43-7-79 prior to completion of the training and designation program, except as a supervised portion of that training program.
(e) The providing of public forums, scheduling of public hearings, sponsoring of conferences and workshops, and conducting other meetings to gather, disseminate and discuss information relative to the needs and problems of the residents in long-term care facilities as requested by resident and family councils.
(f) The encouragement and assistance in the development and operation of referral services which can provide current, valid and reliable information on long-term care facilities and alternatives to institutionalization for persons in need of these services.
(g) The submission of reports as required by the Office of the State Long-Term Care Facilities Ombudsman.
(h) The development of an ongoing program of publicity concerning the purposes and mode of operation of the long-term care facilities ombudsman program through contact with the media and civic organizations.
SECTION 8. Section 43-7-65, Mississippi Code of 1972, is amended as follows:
43-7-65. (1) Investigative activities of the ombudsman shall include, but not be limited to: information gathering, mediation, negotiation, informing concerned parties of alternative remedies, reporting of suspected violations to appropriate licensing or certifying agencies and reporting of suspected criminal violations to the appropriate law enforcement authorities. The State Ombudsman Program is excluded from the abuse-reporting requirements in Sections 43-47-7 and 43-47-37 without appropriate resident informed consent or a court order.
(2) The ombudsman need not investigate any complaint upon determining that:
(a) The complaint is trivial, frivolous, vexatious, delayed or made in bad faith;
(b) The resources available, considering the established priorities, are insufficient for an adequate investigation;
(c) The matter complained of is not within the investigatory authority of the community long-term care facilities ombudsman program; or
(d) A real or apparent conflict of interest exists and no other ombudsman is available to investigate the complaint in an impartial manner.
(3) If a determination is made by a community long-term care facilities ombudsman not to investigate any complaint, then the complaint shall be referred to the Office of the State Long-Term Care Facilities Ombudsman which shall make a final decision as to whether the matter warrants further investigation.
(4) The ombudsman shall have access to any long-term care facility or any and all residents of such a facility for the purposes of an investigation under this section or for the purpose of carrying out other duties specified by Sections 43-7-51 through 43-7-79. The ombudsman may enter the facility at a time appropriate to the complaint. The visit may be announced in advance or such visit regarding the complaint under investigation may be unannounced. The clinical record of a resident may be examined by a representative of the State Ombudsman, with the permission of the resident or the resident's legal representative. Any copy of the clinical record examined under this provision shall not be removed from the nursing facility unless written authorization is obtained from the patient or the patient's legal representative.
(5) (a) The State Long-Term Care Facilities Ombudsman shall develop referral procedures for all long-term care facilities programs to refer any complaint to any appropriate state or local government agency. The agency shall act as quickly as possible on any complaint referred to it by a long-term care facilities ombudsman.
(b) If the complaint is referred to a government agency by a long-term care facilities ombudsman, that ombudsman shall be kept advised and shall be notified in writing in a timely manner by the government agency of the disposition of the referred complaint.
SECTION 9. Section 43-7-67, Mississippi Code of 1972, is amended as follows:
43-7-67. Except during the course of an investigation carried out under Section 43-7-65, ombudsmen shall have access to long-term care facilities for the purposes of carrying out the duties enumerated by Sections 43-7-51 through 43-7-79 during reasonable hours or at other times with the prior approval of the administrator of the long-term care facility. Access shall mean:
(a) Access to the long-term care facility;
(b) Private communication with residents and their sponsors; and
(c) The right to tour the long-term care facility unescorted.
(d) No individual shall discriminate, retaliate or engage in willful interference against a resident, immediate family, resident representative or an employee of a long-term facility due to making a complaint or giving information in good faith to the State Ombudsman Program.
(e) Any person convicted of violating any provision of this section shall be guilty of a misdemeanor, punishable by a fine not exceeding Five Thousand Dollars ($5,000.00), or imprisonment for a period not exceeding one (1) year.
SECTION 10. Section 43-7-69, Mississippi Code of 1972, is amended as follows:
43-7-69. * * *
The State Ombudsman shall establish policies and procedures with regard
to confidentiality of resident, long-term care facility and government agency
records. These policies and procedures shall ensure that:
(a) Any ombudsman shall not disclose the identity of any resident or complainant unless the resident or complainant or the legal representative of either specifically consents in writing to the disclosure.
(b) The investigatory files of any long-term care facilities ombudsman program shall be maintained as confidential information and may only be disclosed at the discretion of the State Ombudsman or his designee for such purposes set by criteria of the State Ombudsman, except as necessary for the preparation of statistical data, as required to carry out the duties of Sections 43-7-51 through 43-7-79, or as required pursuant to a court order.
SECTION 11. Section 43-7-77, Mississippi Code of 1972, is amended as follows:
43-7-77. (1) The ombudsman may request information, cooperation and assistance from any government agency, and the agency is hereby authorized and directed to provide cooperation, assistance or information that will enable the ombudsman to properly perform any of his functions, duties and powers under the provisions of Sections 43-7-51 through 43-7-79.
(2) All advocacy organizations and organizations similar in nature to the long-term care facilities ombudsman program which receive funding or official designation from the state shall cooperate with the long-term care facilities ombudsman.
(3) The Office of the State Long-Term Care Facilities Ombudsman shall maintain a close working relationship with the legal assistance developer of the Mississippi Council on Aging through adoption of memoranda of understanding.
(4) The long-term care facilities ombudsman shall seek to establish effective coordination between programs which provide legal services for the elderly, including, but not limited to, programs funded by the Federal Legal Services Corporation or the Older Americans Act of 1965, as amended, and other entities with responsibilities relevant to the health, safety, welfare and rights of residents in long-term facilities through adoption of memoranda of understanding or other means.
(5) The long-term care facilities ombudsman may observe any survey in a long-term care facility conducted by a government agency.
SECTION 12. Rules and regulations. The State Ombudsman shall recommend policies and procedures to carry out this act and propose rules and regulations to implement this act.
SECTION 13. This act shall take effect and be in force from and after July 1, 2017.
