GENERAL ASSEMBLY OF NORTH CAROLINA

SESSION 1995

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SENATE BILL 334

Short Title:  Ombudsman/Rest Home Committee/AB.	(Public)

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Sponsors: Senators Cochrane, Edwards, Parnell, Carpenter, and Martin of Pitt.

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Referred to:  Children and Human Resources

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March 8, 1995

A BILL TO BE ENTITLED
AN ACT TO MAKE CLARIFYING CHANGES TO THE LONG-TERM CARE OMBUDSMAN PROGRAM LAW, THE NURSING HOME COMMUNITY ADVISORY COMMITTEE LAW, AND THE ADULT CARE HOME COMMUNITY ADVISORY COMMITTEE LAW.
The General Assembly of North Carolina enacts:
Section 1.  G.S. 143B-181.15 reads as rewritten:
"§ 143B-181.15.  Long-Term Care Ombudsman Program/Office; policy.
The General Assembly finds that a significant number of older citizens of this State reside in long-term care facilities and are dependent on others to provide their care.  It is the intent of the General Assembly to protect and improve the quality of care and life for residents through the establishment of a program to assist residents and providers in the resolution of complaints or common concerns, to promote community involvement and volunteerism in long-term care facilities, and to educate the public about the long-term care system.  It is the further intent of the General Assembly that the Department of Human Resources, within available resources and pursuant to its duties under the Older Americans Act of 1965, as amended, 42 U.S.C. § 3001 et seq., ensure that the quality of care and life for these residents is maintained, that necessary reports are made, and that, when necessary, corrective action is taken at the Department level."
Sec. 2. G.S. 143B-181.16 reads as rewritten:
"§ 143B-181.16.  Long-Term Care Ombudsman Program/Office; definition.
Unless the content clearly requires otherwise, as used in this Article:
(1)	'Long-term care facility' means any skilled nursing facility and intermediate care facility as defined in G.S. 131A-3(4) or any adult care home as defined in G.S. 131D-20(2).
(2)	'Resident' means any person who is receiving treatment or care in any long-term care facility.
(3)	'State Ombudsman' means the State Ombudsman as defined by the Older Americans Act of 1965, as amended, 42 U.S.C. § 3001 et seq., who carries out the duties and functions established by this Article.
(4)	'Regional Ombudsman' means a person employed by an Area Agency on Aging to carry out the functions of the Regional Ombudsman Office established by this Article."
Sec. 3.  G.S. 143B-181.18 reads as rewritten:
"§ 143B-181.18.  Office of State Long-Term Care Ombudsman Program/State Ombudsman duties.
The State Ombudsman shall:
(1)	Promote community involvement with long-term care providers and residents of long-term care facilities and serve as liaison between residents, residents' families, facility personnel, and facility administration;
(2)	Supervise the Long-Term Care Program pursuant to rules adopted by the Secretary of the Department of Human Resources pursuant to G.S. 143B-10;
(3)	Certify regional ombudsmen.  Certification requirements shall include an internship, training in the aging process, complaint resolution, long-term care issues, mediation techniques, recruitment and training of volunteers, and relevant federal, State, and local laws, policies, and standards;
(4)	Attempt to resolve complaints made by or on behalf of individuals who are residents of long-term care facilities, which complaints relate to administrative action that may adversely affect the health, safety, or welfare of residents;
(5)	Provide training and technical assistance to regional ombudsmen;
(6)	Establish procedures for appropriate access by regional ombudsmen to long-term care facilities and residents' records including procedures to protect the confidentiality of these records and to ensure that the identity of any complainant or resident will not be disclosed except as permitted under the Older Americans Act of 1965, as amended, 42 U.S.C. § 3001 et seq.;
(7)	Analyze data relating to complaints and conditions in long-term care facilities to identify significant problems and recommend solutions;
(8)	Prepare an annual report containing data and findings regarding the types of problems experienced and complaints reported by residents as well as recommendations for resolutions of identified long-term care issues;
(9)	Prepare findings regarding public education and community involvement efforts and innovative programs being provided in long-term care facilities; and
(10)	Provide information to public agencies, and through the State Ombudsman, to legislators, and others regarding problems encountered by residents or providers as well as recommendations for resolution."
Sec. 4.  G.S. 143B-181.20(a) reads as rewritten: 
"(a)	The State and Regional Ombudsman may enter any long-term care facility and may have reasonable access to any resident in the reasonable pursuit of his function.  The Ombudsman may communicate privately and confidentially with residents of the facility individually or in groups.  The Ombudsman shall have access to the patient records as permitted under the Older Americans Act of 1965, as amended, 42 U.S.C. § 3001 et seq., and under procedures established by the State Ombudsman pursuant to G.S. 143B-181.18(6).  Entry shall be conducted in a manner that will not significantly disrupt the provision of nursing or other care to residents and if the long-term care facility requires registration of all visitors entering the facility, then the State or Regional Ombudsman must also register.  Any State or Regional Ombudsman who discloses any information obtained from the patient's records except as permitted under the Older Americans Act of 1965, as amended, 42 U.S.C. § 3001 et seq., is guilty of a Class 1 misdemeanor."
Sec. 5.  G.S. 143B-181.22 reads as rewritten:
"§ 143B-181.22.  State/Regional Long-Term Care Ombudsman; confidentiality.
The identity of any complainant, resident on whose behalf a complaint is made, or any individual providing information on behalf of the resident or complainant relevant to the attempted resolution of the complaint along with the information produced by the process of complaint resolution is confidential and shall be disclosed only as permitted under the Older Americans Act of 1965, as amended, 42 U.S.C. § 3001 et seq. "
Sec. 6. G.S. 131D-31 reads as rewritten:
"§ 131D-31. Adult care home community advisory committees.
(a)	Statement of Purpose. – It is the intention of the General Assembly that community advisory committees work to maintain the intent of the Adult Care Home Residents' Bill of Rights within the licensed adult care homes in this State. It is the further intent of the General Assembly that the committees promote community involvement and cooperation with adult care homes to ensure quality care for the elderly and disabled adults.
(b)	Establishment and Appointment of Committees. –
(1)	A community advisory committee shall be established in each county that has at least one licensed adult care home, shall serve all the homes in the county, and shall work with each of these homes for the best interests of the residents. In a county that has one, two, or three adult care homes with 10 or more beds,  the committee shall have five members.
(2)	In a county with four or more adult care homes with 10 or more beds, the committee shall have one additional member for each adult care home with 10 or more beds in excess of three, up to a maximum of 20 members. In each county with four or more adult care homes with 10 or more beds, the committee shall establish a subcommittee of no more than five members and no fewer than three members from the committee for each adult care home in the county. Each member must serve on at least one subcommittee.
(3)	In counties with no adult care homes with 10 or more beds, the committee shall have five members. Regardless of how many members a particular community advisory committee is required to have, at least one member of each committee shall be a person involved in the area of mental retardation.
(4)	The boards of county commissioners are encouraged to appoint the Adult Care Home Community Advisory Committees. Of the members, a minority (not less than one-third, but as close to one-third as possible) shall be chosen from among persons nominated by a majority of the chief administrators of adult care homes in the county. If the adult care home administrators fail to make a nomination within 45 days after written notification has been sent to them requesting a nomination, these appointments may be made without nominations. If the county commissioners fail to appoint members to a committee by July 1, 1983, the appointments shall be made by the Assistant Secretary for Aging, Department of Human Resources, no sooner than 45 days after nominations have been requested from the adult care home administrators, but no later than October 1, 1983. In making appointments, the Assistant Secretary for Aging shall follow the same appointment process as that specified for the County Commissioners.
(c)	Joint Nursing and Adult Care Home Community Advisory Committees. – Appointment to the Nursing Home Community Advisory Committees shall preclude appointment to the Adult Care Home Community Advisory Committees except where written approval to combine these committees is obtained from the Assistant Secretary for Aging, Department of Human Resources. Where this approval is obtained, the Joint Nursing and Adult Care Home Community Advisory Committee shall have the membership required of Nursing Home Community Advisory Committees and one additional member for each adult care home with 10 or more beds licensed in the county. In counties with no adult care homes with 10 or more beds, there shall be one additional member for every four other types of adult care homes in the county. In no case shall the number of members on the Joint Nursing and Adult Care Home Community Advisory Committee exceed 25. Each member shall exercise the statutory rights and responsibilities of both Nursing Home Committees and Adult Care Home Committees. In making appointments to this joint committee, the county commissioners shall solicit nominations from both nursing and adult care home administrators for the appointment of approximately (but no more than) one-third of the members.
(d)	Terms of Office. – Each committee member shall serve an initial term of one year.  Any person reappointed to a second or subsequent term in the same county shall serve a two- or three-year term at the county commissioners' discretion to ensure staggered terms of office.
(e)	Vacancies. – Any vacancy shall be filled by appointment of a person for a one-year term.  If this vacancy is in a position filled by an appointee nominated by the chief administrators of adult care homes within the county, then the county commissioners shall fill the vacancy from persons nominated by a majority of the chief administrators. If the adult care home administrators fail to make a nomination by registered mail within 45 days after written notification has been sent to them requesting a nomination, this appointment may be made without nominations.  If the county commissioners fail to fill a vacancy, the vacancy may be filled by the Assistant Secretary for Aging, Department of Human Resources no sooner than 45 days after the commissioners have been notified of the appointment or vacancy.
(f)	Officers. – The committee shall elect from its members a chair, to serve a one-year term.
(g)	Minimum Qualifications for Appointment. – Each member must be a resident of the county which the committee serves. No person or immediate family member of a person with a financial interest in a home served by the committee, or employee or governing board member of a home served by the committee, or immediate family member of a resident in a home served by the committee may be a member of that committee.  Any county commissioner who is appointed to the committee shall be deemed to be serving on the committee in an ex officio capacity.  Members of the committee shall serve without compensation, but may be reimbursed for actual expenses incurred by them in the performance of their duties.  The names of the committee members and the date of expiration of their terms shall be filed with the Division of Aging, Department of Human Resources.
(h)	Training. – The Division of Aging, Department of Human Resources, shall develop training materials, which shall be distributed to each committee member.  Each committee member must receive training as specified by the Division of Aging prior to exercising any power under G.S. 131D-32.  The Division of Aging, Department of Human Resources, shall provide the committees with information, guidelines, training, and consultation to direct them in the performance of their duties.
(i)	Any written communication made by a member of an adult care home advisory committee within the course and scope of the member's duties, as specified in G.S. 131D-32, shall be privileged to the extent provided in this subsection.  This privilege shall be a defense in a cause of action for libel if the member was acting in good faith and the statements and communications do not amount to intentional wrongdoing.
To the extent that any adult care home advisory committee or any member is covered by liability insurance, that committee or member shall be deemed to have waived the qualified immunity herein to the extent of indemnification by insurance."
Sec. 7.  G.S. 131D-32 reads as rewritten: 
"§ 131D-32. Functions of adult care home community advisory committees.
(a)	The committee shall serve as the nucleus for increased community involvement with adult care homes and their residents.
(b)	The committee shall promote community education and awareness of the needs of aging and disabled persons who reside in adult care homes, and shall work towards keeping the public informed about aspects of long-term care and the operation of adult care homes in North Carolina.
(c)	The committee shall develop and recruit volunteer resources to enhance the quality of life for adult care home residents.
(d)	The committee shall establish linkages with the adult care home administrators and the county department of social services for the purpose of maintaining the intent of the Adult Care Home Residents' Bill of Rights.
(e)	Each committee shall apprise itself of the general conditions under which the persons are residing in the homes, and shall work for the best interests of the persons in the homes. This may include assisting persons who have grievances with the home and facilitating the resolution of grievances at the local level.  The identity of any complainant or resident involved in a complaint shall not be disclosed except as permitted under the Older Americans Act of 1965, as amended, 42 U.S.C. § 3001 et seq. The committee shall notify the enforcement agency of all verified violations of the Adult Care Home Residents' Bill of Rights.
(f)	The committee or subcommittee may communicate through the committee chair with the Department of Human Resources, the county department of social services, or any other agency in relation to the interest of any resident.
(g)	Each committee shall quarterly visit the adult care homes with 10 or more beds it serves.  For each official quarterly visit, a majority of the committee members shall be present.  A minimum of three members of the committee shall make at least one visit annually to each other type of adult care home licensed in the county.  In addition, each committee may visit the adult care homes it serves whenever it deems it necessary to carry out its duties.  In counties with subcommittees, the subcommittee assigned to a home shall perform the duties of the committee under this subsection, and a majority of the subcommittee members must be present for any visit.  When visits are made to group homes for developmentally disabled adults, rules concerning confidentiality as adopted by the Commission for Mental Health, Developmental Disabilities, and Substance Abuse Services shall apply.
(h)	The individual members of the committee shall have the right between 10:00 a.m. and 8:00 p.m. to enter the facility the committee serves in order to carry out the members' responsibilities.  In a county where subcommittees have been established, this right of access shall be limited to members of the subcommittee which serves that home.  A majority of the committee or subcommittee members shall be present to enter the facility at other hours. Before entering any adult care home, the committee or members of the committee shall identify themselves to the person present at the facility who is in charge of the facility at that time.
(i)	The committee shall prepare reports as required by the Department of Human Resources containing an appraisal of the problems of adult care facilities as well as issues affecting long-term care in general.  Copies of the report shall be sent to the board of county commissioners, county department of social services and the Division of Aging.
(j)	Nothing contained in this section shall be construed to require the expenditure of any county funds to carry out the provisions in this section."
Sec. 8.  131E-101 reads as rewritten:
"§ 131E-101. Definitions.
As used in this Part, unless otherwise specified:
(1)	'Adult care home,' as distinguished from a nursing home, means a facility operated as a part of a nursing home and which provides residential care for aged or disabled persons whose principal need is a home with the sheltered or personal care their age or disability requires. Medical care in adult care home is usually occasional or incidental, such as may be required in the home of any individual or family, but the administration of medication is supervised. Continuing planned medical and nursing care to meet the resident's needs may be provided under the direct supervision of a physician,  nurse, or home health agency. Adult care homes are to be distinguished from nursing homes subject to licensure under this Part. 
	(1a) 'Combination home' means a nursing home offering one or more levels of care, including any combination of skilled nursing, intermediate care, and adult care home.
(2)	'Commission' means the North Carolina Medical Care Commission.
(3)	'Community advisory committee' means a nursing home advisory  committee established for the statutory purpose of working to carry out the intent of the Nursing Home Patients' Bill of Rights (Chapter 131E, Article 6, Part B) in accordance with G.S. 143B-181.1.
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(5)	'Medical review committee' means a committee of a State or local professional society, of a medical staff of a licensed hospital, of physicians having privileges within the nursing home or of a peer review corporation or organization that is formed for the purpose of evaluating the quality, cost of or necessity for health care services under applicable federal statutes.
(6)	'Nursing home' means a facility, however named, that is advertised, announced, or maintained for the express or implied purpose of providing nursing or convalescent care for three or more persons unrelated to the licensee. A 'nursing home' is a home for chronic or convalescent patients, who, on admission, are not as a rule, acutely ill and who do not usually require special facilities such as an operating room, X-ray facilities, laboratory facilities, and obstetrical facilities. A 'nursing home' provides care for persons who have remedial ailments or other ailments, for which medical and nursing care are indicated; who, however, are not sick enough to require general hospital care. Nursing care is their primary need, but they will require continuing medical supervision.
(7)	'Peer review committee' means any committee appointed in accordance with G.S. 131E-108, 'Peer review.'"
Sec. 9.  G.S. 131E-128(h) reads as rewritten:
"(h)	(1)	Each committee shall apprise itself of the general conditions under which the persons are residing in the homes, and shall work for the best interests of the persons in the homes.  This may include assisting persons who have grievances with the home and facilitating the resolution of grievances at the local level.
(2)	Each committee shall quarterly visit the nursing home it serves. For each official quarterly visit, a majority of the committee members shall be present. In addition, each committee may visit the nursing home it serves whenever it deems it necessary to carry out its duties. In counties with four or more nursing homes, the subcommittee assigned to a home shall perform the duties of the committee under this subdivision, and a majority of the subcommittee members must  be present for any visit.
(3)	Each member of a committee shall have the right between 10:00 A.M. and 8:00 P.M. to enter into the facility the committee serves in order to carry out the members' responsibilities.  In a county where subcommittees have been established, this right of access shall be limited to homes served by those subcommittees to which the member has been appointed.
(4)	The committee or subcommittee may communicate through its chair with the Department or any other agency in relation to the interest of any patient. The identity of any complainant or resident involved in a complaint shall not be disclosed except as permitted under the Older Americans Act of 1965, as amended, U.S.C. § 3001 et seq.
(5)	Each home shall cooperate with the committee as it carries out its duties.
(6)	Before entering into any nursing home, the committee, subcommittee, or member shall identify itself to the person present at the facility who is in charge of the facility at that time."
Sec. 10.  Rules adopted by the Department of Human Resources and any relevant commissions regulating domiciliary care homes prior to the effective date of this act remain in effect for adult care homes on and after this date until amended or repealed.
Sec. 11.  This act becomes effective July 1, 1995.