Note

Part heading added by L 2007, c 93, §4.

Revision Note

Enacted as Part II, this Part was renumbered as Part III and §§349-21 to 349-23 were renumbered from §§349-12 to 349-14 pursuant to §23G-15.

Law Journals and Reviews

Elder Abuse and Laws to Protect Older Persons in Hawaii. 15 HBJ, no. 13, at 93 (2013).

Long-Term Care in Hawaii. 18 HBJ, no. 13, at 59 (2015).

§349-21 Office of the long-term care ombudsman. (a) There is established the office of the long-term care ombudsman in the executive office on aging to protect the health, safety, welfare, and rights of residents of long-term care facilities in accordance with state and federal law. The office of the long-term care ombudsman shall be headed by the long-term care ombudsman.

(b) The long-term care ombudsman shall:

(1) Be hired pursuant to chapter 76;

(2) Be free of conflict of interest;

(3) Have expertise and experience in the fields of long-term care and advocacy;

(4) Serve on a full-time basis; and

(5) Prepare an annual report in accordance with the federal Older Americans Act, as amended.

(c) The long-term care ombudsman, personally or through a designee, shall:

(1) Represent the interests of residents of long-term care facilities, individually and as a class, to:

(A) Protect their health, safety, welfare, and rights; and

(B) Promote improvement in the quality of care they receive and their quality of life;

(2) Identify, investigate, and resolve complaints, including complaints against providers of long-term care services and their representatives, made by or on behalf of residents of long-term care facilities relating to actions, inactions or decisions that may adversely affect the health, safety, welfare, or rights of residents of long-term care facilities, including the appointment and activities of guardians and representative payees;

(3) Monitor and comment on the development and implementation of federal, state, and local laws, regulations, policies, and actions that pertain to the health, safety, welfare, or rights of residents of long-term care facilities, including the adequacy of long-term care facilities and services in the State, and recommend changes as necessary;

(4) Provide information as appropriate to public agencies regarding the problems of residents of long-term care facilities;

(5) Train volunteers and employees;

(6) Promote the development of citizen organizations to participate in the advocacy program;

(7) Establish procedures for appropriate access by the long-term care ombudsman to long-term care facilities and to residents of long-term care facilities;

(8) Establish procedures for appropriate access by the long-term care ombudsman to all resident records or portions thereof necessary for the long-term care ombudsman to evaluate the merits of a specific complaint or complaints; provided that resident records shall be divulged only with the written consent of the resident or the resident's legal representative;

(9) Establish procedures for appropriate access to files maintained by the long-term care ombudsman, except that the identity of any complainant or resident of a long-term care facility shall not be disclosed unless:

(A) The complainant or resident, or the complainant's or resident's legal representative, consents in writing to the disclosure;

(B) The complainant or resident consents orally and the consent is documented contemporaneously in writing by the long-term care ombudsman or designee; or

(C) The disclosure is required by court order;

(10) Provide technical support for the development of resident and family councils to help protect the health, safety, welfare, and rights of residents of long-term care facilities;

(11) Provide residents of long-term care facilities with:

(A) Information regarding how to obtain necessary services;

(B) Regular access to the office of the long-term care ombudsman at times deemed reasonable and necessary by the long-term care ombudsman; and

(C) Regular and timely responses to their complaints;

(12) Seek administrative, legal, or other remedies to carry out this part; and

(13) Carry out all other responsibilities as provided by state or federal law.

(d) The long-term care ombudsman shall establish procedures to ensure that all designees, employees, and volunteers are free of conflict of interest.

(e) The long-term care ombudsman shall adopt rules pursuant to chapter 91 for the purposes of administering and implementing this part.

(f) For the purposes of this part:

"Conflict of interest" includes:

(1) Any direct involvement in the licensing or certification of a long-term care facility or of a provider of a long-term care service;

(2) An ownership or investment interest in a long-term care facility or a long-term care service;

(3) Employment by, or participation in the management of, a long-term care facility; and

(4) Receipt of, or the right to receive, directly or indirectly, remuneration under a compensation arrangement with an owner or operator of a long-term care facility.

"Long-term care facility" means any:

(1) Skilled nursing facility as defined in section 1819(a) of the Social Security Act, as amended;

(2) Nursing facility, as defined in section 1919(a) of the Social Security Act, as amended;

(3) Adult residential care home, including any expanded adult residential care home;

(4) Assisted living facility;

(5) Intermediate care facility as defined in section 1905(c) of the Social Security Act, as amended; and

(6) Other similar facility licensed by the State serving elders. [L 1979, c 206, §2(1); gen ch 1985; am L 1990, c 67, §8; am L 2007, c 93, §5]

Cross References

Dependent elder abuse; suits by the State; civil penalties, see §28-94.

Investigations of nurse aide abuse, see §346-47.

Long-term care financing, see chapter 346C.

Law Journals and Reviews

Elder Law Hawaii. 13 HBJ, no. 13, at 85 (2009).

Elder Abuse and Laws to Protect Older Persons in Hawaii. 15 HBJ, no. 13, at 93 (2013).

Holding Hawai`i Nursing Facilities Accountable for the Inadequate Pain Management of Elderly Residents. 27 UH L. Rev. 233 (2004).