DOH Adopts Clarifying Amendments to LTC Ombudsman Regulations

The Department of Health (DOH) published consensus amendments to regulations governing the Long-Term Care Ombudsman Program on Nov. 15, 2023. According to the Regulatory Impact Statement, the changes made are limited to:

1. conforming changes to reflect recent amendments to the Elder Law with respect to access by certified long-term care ombudsmen to long-term care facilities and to resident records maintained by such facilities, with which facilities are legally required to comply;
2. amendments that are technical in nature that would remove reference to “records access” ombudsmen, as this distinction has been removed in the Elder Law through recent amendments; and
3. amendments that are technical in nature relating to references to repealed sections of the Executive Law, the provisions of which were transferred to the Elder Law pursuant to Chapter 642 of the Laws of 2004.

The most noteworthy amendments prohibit adult care facility (ACF) operators from restricting access to resident records when:

1. the resident or resident representative has given informed consent in writing, orally, or visually, or through the use of auxiliary aids and services; or
2. access is necessary to investigate a complaint, the resident representative refuses to consent to access, and the Ombudsman has reason to believe that the representative is not acting in the best interest of the resident. 

In addition, the amendments require ACFs to allow access by the Ombudsman "at any time during a facility's regular business hours or visiting hours."

Because these are consensus amendments, there is no opportunity for public comment.

Contact: Karen Lipson, klipson@leadingageny.org