New York Register, Volume 39, Issue 42, October 18, 2017

JurisdictionNew York
LibraryNew York Register
Published date18 October 2017
Year2017
RULE MAKING
ACTIVITIES
Each rule making is identified by an I.D. No., which consists
of 13 characters. For example, the I.D. No. AAM-01-96-
00001-E indicates the following:
AAM -the abbreviation to identify the adopting agency
01 -the State Register issue number
96 -the year
00001 -the Department of State number, assigned upon
receipt of notice.
E -Emergency Rule Making—permanent action
not intended (This character could also be: A
for Adoption; P for Proposed Rule Making; RP
for Revised Rule Making; EP for a combined
Emergency and Proposed Rule Making; EA for
an Emergency Rule Making that is permanent
and does not expire 90 days after filing.)
Itali cs con tain ed in text denote new material. Brackets
indicate material to be deleted.
Office for the Aging
PROPOSED RULE MAKING
NO HEARING(S) SCHEDULED
Administration of the Long Term CareOmbudsman Program
I.D. No. AGE-42-17-00001-P
PURSUANT TO THE PROVISIONS OF THE State Administrative Pro-
cedure Act, NOTICE is hereby given of the following proposed rule:
Proposed Action: Repeal of Part 6660; addition of new Part 6660 to Title
9 NYCRR.
Statutory authority: Elder Law, section 218; The FederalOlder Americans
Act 711 (42 USC section 3056f), 712 (4 2 USC section 3058g); 45 CFR
section 1321.11 and 45 CFR Part 132
Subject: Administration of the Long Term Care Ombudsman Program.
Purpose: To bring NYSOFA’s rules an d regulations go verning LTCOP
into conformance with the Federal Statute and regulations.
Substance of pr oposed rule (F ull text is post ed at the follow ing State
webs ite : www.a gin g.n y.gov a nd ww w.lt comb uds man. ny.g ov) : The
purpose of this rule is to bring NYSOFA’s rules and regulations governing
the New York State Long-Term Care Ombudsman Program (LTCOP) in
line with federal statute and regulations. 9 NYCRR Part 6660 is being re-
pealed and replaced with a new Part 6660 to bring NYSOFA’s regulations
into compliance with federal statute and regulations.
Section 6660.1 of the regulations provides the definitions to bring New
York State LTCOP into confo rmance wi th the defin itions fou nd in the
federal regulations.
Section 66 60.2. This s ection enu merates t he respons ibiliti es of the
LTCOP and includes the responsibilities that are required by federal law
and regulation. This section also lists the qualifications required of an indi-
vidual who is being considered for the position of State Long-Term Care
Ombudsman. This section also directs the LTCOPto develop a grievance
procedure regar ding determinat ions or actions of th e state ombudsman ,
which are also dictated by federal law and regulation.
Section 6660.3 of the regulations lists requireme nts around identifica-
tion, removal and remedy of both organizational and individual conflicts
of interest. Specifically, it enumerates both organizational and individual
conflicts of interest that are problematic to the LTCOP and the procedure
for identifying, remedying or removing those conflicts. Additionally, this
section puts for th the responsib ilities of local o mbudsman entit ies with
regard to conflicts of interest. The requirements regarding organizational
and individual conflicts of interest detailed in this section bring NYSOFA’s
regulations into conformance with the federal regulations.
Section 6660.4 addre sses the responsibil ities of local long- ter m care
ombudsmen. This section is added to conform with federal regulations.
The new Section 6660.5 sets forth the requirements for the designation
of an ombu dsman . This sec tion als o bring s the LTCOP’s pro cess of
designating ombudsmen into compliance with federal regulations.
By adding se ction 666 0.6 of the re gulatio ns, NYSOFA is bring ing
LTCOP’scriteria for designating and de-designation of local ombudsman
entities into compliance with federal requirements.
Section 666 0.7 lists th e responsi bilities o f local ombu dsman enti ty
coordinators and conforms them with federal requirements.
NYSOFAis adding section 6660.8 which enumerates the program stan-
dards for local long- term care ombudsma n programs for the pur pose of
bringing LTCOP’s program standar ds into complian ce with federal law
and regulations.
Section 6660.9 addresses ombudsmen access to residents and long-term
care facilities. In addition, this section contains language that prohibits the
interference with an ombudsman while the ombudsman is carrying out his
or her duties.
Section 6660.10 specificall y addresses ombudsmen acces s to resident
and facility records. This secti on specifies the types of record s to which
the ombudsmen have access and u nder what circumstances om budsmen
may access those record s. These requirements co nform with the federal
requirements that address access to resident and facility records.
NYSOFA added Sect ion 6660. 11 which dict ates the ci rcumsta nces
under which ombudsmen may reveal a resident’s personal information to
an individual not associated with the LTCOP. This section also discusses
the manne r in which a r esiden t may prov ide infor med cons ent to an
ombud sman fo r the pur pose of d isclo sing th e resid ent’s per sona l
information. Final ly, this section addresses how om budsmen can obtain
permission to disclose a resident’s personal information when that resident
is unabl e to give co nsent f or such di sclos ure. The se addit ions br ing
NYSOFA’s regulat ions in to comp lianc e with th e feder al regu latio ns
governing the program.
Secti on 6660 .12 out line s the pro cedur e that an o mbud smen mu st
undertake wh en investig ating a reside nt’s complaint. Th is section is i n
conformance with feder al regulations and lists t he procedures to be fol-
lowed by ombudsmen when they are investigating complaints.
A copy of the full text of t he regulator y proposal is av ailable on the
New York State Office for theAging ’s website at www.aging.ny.gov and
https://ltcombudsman.ny.gov/
Text of proposed rule and any required statements and analyses may be
obtained from : Stephen Syzd ek, New York State Office for th e Aging,
Two Empire Stat e Plaza, Alba ny, NY 12223, (518 ) 474-504 1, email:
stephen.syzdek@aging.ny.gov
Data, views or arguments may be submitted to: Same as above.
Public comment will be received until: 45 days a fter publication of this
notice.
Regulatory Impact Statement
1. Statutory Authori ty: Section 218 (10) of the New York State Elder
Law authorizes the Director of the New YorkState Office for the Aging to
promulgate regulations to implement the provisions of section 218 of the
Elder Law.
1
New York State Elder Law S ection 218 e stablishe s the office of t he
long-term ombudsman (LTCOP) and governs its administration.
The Federal Older Americans Act Sectio ns 711(42 USC § 3058f) and
712 (42 USC § 3058g) governs the Administration of the LTCOP.
Federal Regulations 45 CFR § 1321.11 and 45 CFR Part 1324 govern
the administration of t he LTCOP and the New York State Office for the
Aging’s responsibilities to the LTCOP.
2. Legis lativ e Object ives: Th e LTCOP is estab lishe d in the Ol der
Americans Act (OAA) and the legislative objective for the program is to
serve as a reso urce and advo cate for resi dents of nurs ing homes, ad ult
homes, assisted living facilities and family type homes. As required by the
OAA, Ombudsmen work to resolve problems of individual residents and
to bring about c hanges at the lo cal, state an d national lev els that will
improve residents’ care and quality of life. The NewYork State Elder Law
establishes the offic e of the long-term care om budsman and mirrors th e
objectives of the OAA.
3. Needs and Benefits: The purpose of this rule is to bring NYSOFA’s
rules and regulations governing the LTCOP in line with federal statute and
regulat ions. This r ulemaki ng is essen tially a co nsensus r ulemaki ng as
NYSOFA is compelled to h ave its stat e regulati ons in compl iance and
conforman ce with feder al law and reg ulations. F ailure by NYS OFA to
achieve that compliance and conformance would jeopardize federal fund-
ing not only for the LTCOP, but for all OAA funded services administered
by New York State and our netwo rk of aging serv ices provide rs which
includes county sponsored area agencies on aging and not-for-profit aging
services providers.
9 NYCRR Part 6660 is b eing repealed a nd replaced wit h a new Part
6660 to bring NYSOFA’s regulations into compliance with federal statute
and regulations.
Section 6660.1 of the regulations provides the definitions to bring New
York State LTCOP into confo rmance wi th the defin itions fou nd in the
federal regulations.
Section 66 60.2. This s ection enu merates t he respons ibiliti es of the
LTCOP and includes the responsibilities that are required by federal law
and regulation. This section also lists the qualifications required of an indi-
vidual who is being considered for the position of State Long-Term Care
Ombudsman. This section also directs the LTCOP to develop a grievance
procedure regar ding determinat ions or actions of th e state ombudsman ,
which are also dictated by federal law and regulation.
Section 6660.3 of the regulations lists requireme nts around identifica-
tion, removal and remedy of both organizational and individual conflicts
of interest. Specifically, it enumerates both organizational and individual
conflicts of interest that are problematic to the LTCOP and the procedure
for identifying, remedying or removing those conflicts. Additionally, this
section puts for th the responsib ilities of local o mbudsman entit ies with
regard to conflicts of interest. The requirements regarding organizational
and individual conflicts of interest detailed in this section bring NYSOFA’s
regulations into conformance with the federal regulations.
Section 6660. 4 addresses the r esponsibili ties of local lon g-term care
ombudsmen. This section is added to conform with federal regulations.
The new Section 6660.5 sets forth the requirements for the designation
of an ombu dsman . This sec tion als o bring s the LTCOP’s pro cess of
designating ombudsmen into compliance with federal regulations.
By adding se ction 666 0.6 of the re gulatio ns, NYSOFA is bring ing
LTCOP’scriteria for designating and de-designation of local ombudsman
entities into compliance with federal requirements.
Section 666 0.7 lists th e responsi bilities o f local ombu dsman enti ty
coordinators and conforms them with federal requirements.
NYSOFAis adding section 6660.8 which enumerates the program stan-
dards for local long- term care ombudsma n programs for the pur pose of
bringing LTCOP’s program standar ds into complian ce with federal law
and regulations.
Section 6660.9 addresses ombudsmen access to residents and long-term
care facilities. In addition, this section contains language that prohibits the
interference with an ombudsman while the ombudsman is carrying out his
or her duties.
Section 6660.10 specificall y addresses ombudsmen acces s to resident
and facility records. This secti on specifies the types of record s to which
the ombudsmen have access and u nder what circumstances om budsmen
may access those record s. These requirements co nform with the federal
requirements that address access to resident and facility records.
NYSOFA added Sect ion 6660. 11 which dict ates the ci rcumsta nces
under which ombudsmen may reveal a resident’s personal information to
an individual not associated with the LTCOP. This section also discusses
the manne r in which a r esiden t may prov ide infor med cons ent to an
ombud sman fo r the pur pose of d isclo sing th e resid ent’s per sona l
information. Final ly, this section addresses how om budsmen can obtain
permission to disclose a resident’s personal information when that resident
is unabl e to give co nsent f or such di sclos ure. The se addit ions br ing
NYSOFA’s regulat ions in to comp lianc e with th e feder al regu latio ns
governing the program.
Section 6660.12 outlines the procedure that ombudsmen must undertake
when investigating a resident’s complaint. This section is in conformance
with federal regulations and lists the procedures to be followed by ombuds-
men when they are investigating complaints.
4. Costs: This proposed rule imposes no additional costs to the regulated
parties, N YSOFA or state and lo cal gover nments to i mplemen t and to
continue to comply with this proposed ru le. The LTCOP will essentially
continue to function as it has and this rulemaking ensures that New York
State’s rules governing the LTCOPare in compliance with federal law and
regulations.
5. Paperwork: The proposed rule does not change any of the reporting
requirements, forms or other paperwork from what is already required of
the ent ities a dmini ster ing the p rogra m. The LTCOP wi ll esse ntial ly
continue to function as it has and this rulemaking ensures that New York
State’s rules governing the LTCOPare in compliance with federal law and
regulations.
6. Local Gover nment Mandat es: The propose d rule does not im pose
any program, service, duty or responsibility upon any city, county, town,
village, school district or other special district. The LTCOPwill essentially
continue to function as it has and this rulemaking ensures that New York
State’s rules governing the LTCOPare in compliance with federal law and
regulations.
7. Duplication: There are no laws, rules or other legal requirements that
duplicate, overlap or conflict w ith this proposed rule. This rule do es not
impose duplicative or overlapping requirements on the regulated pa rties.
This rulemak ing brings th e NYSLTCOP into compli ance with fed eral
requirements.
8. Alternatives: NYSOFA did not consider programm atic alternatives
during the development of this proposal. Failure by NYSOFA to achieve
compliance would jeopardize federal funding not only for the LTCOP, but
for all OAA fund ed service s adminis tered by Ne w York State and our
network of aging services providers which includes county sponsored area
agencies on aging and not-for-profit aging services providers.
9. Federal Standards: This rule does not exceed Federal standards.
10. Compliance Schedule: The New York state long-term care ombuds-
man program and the Local Ombudsman enti ties will be able to comply
with this proposed rule immediately after promulgation.
Regulatory Flexibility Analysis
This proposed ru le will not have an ad verse economi c impact on small
businesses or local governments nor will it impose reporting, record keep-
ing or compliance requirements above those already required by the New
York State Long Term Care Ombudsman Program on small businesses or
local governments. This proposed rule updates the regulations for the Long
Term Care Ombudsman Program to bring them into compliance with the
Older Americans Act and the Federal regulations promulgated thereunder.
The proposed rule only affects the New York State Office for the Aging,
the New York State Long Term Care Ombudsman Program and the enti-
ties tha t admin ister t he Long Term C are Ombu dsman P rogra m on a
regional level by ensuring that the New York State Ombudsman Program
is administered and operated in compliance with Federal requirements.
Rural Area Flexibility Analysis
This proposed rule will not have an adverse economic impact on public or
private entities in rural areas nor will it impose reporting, record keeping
or compli ance requ irement s above tho se alread y require d by the New
York State Long Term Care Ombudsm an Program on pu blic or priva te
entities in rural areas. This proposed rule u pdates the regulations for the
Long Term Care Omb udsman Pr ogram to br ing them int o complia nce
with the Older American s Act and the Federal regu lations promul gated
thereunder. The proposed rule only affects the New York State Office for
the Aging, the New York State Long Term Care Ombudsman Program and
the entities that administer the Long TermCare Ombudsman Program on a
regional level by ensuring that the New York State Ombudsman Program
is administered and operated in compliance with Federal requirements.
Job Impact Statement
The New YorkState Office for the Aging has determined that this proposed
rule will not have a substantial adverse impact on jobs. This proposed rule
updates the regulations for the Long Term Care Ombudsman Program to
bring them into compliance with the Older AmericansAct and the Federal
regulations pr omulgated ther eunder. The proposed rul e only affects the
New YorkState Office for the Aging, the New York State Long Term Care
Ombudsman Program and the entities that administer the Long Term Care
Ombudsman Program on a regional level by ensuring that the New York
State Ombudsman Progr am is administered and o perated in compliance
with Federal requirements.
NYS Register/October 18, 2017Rule Making Activities
2

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