[Federal Register Volume 59, Number 219 (Tuesday, November 15, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-28163]


[[Page Unknown]]

[Federal Register: November 15, 1994]


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Part VIII





Department of Health and Human Services





_______________________________________________________________________



Administration on Aging



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45 CFR Parts 1321 and 1327




Grants for State and Community Programs on Aging; Grants for Vulnerable 
Elder Rights Protection Activities; Proposed Rule
DEPARTMENT OF HEALTH AND HUMAN SERVICES

Administration on Aging

45 CFR Parts 1321 and 1327

RIN 0985-ZA01

 
Grants for State and Community Programs on Aging; Grants for 
Vulnerable Elder Rights Protection Activities

AGENCY: Administration on Aging (AoA), HHS.

ACTION: Notice of proposed rulemaking.

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SUMMARY: This Notice of Proposed Rulemaking (NPRM) requests comments 
from the public on proposed changes to regulations on Grants for State 
and Community Programs on Aging, deleting certain references to the 
Long-Term Care Ombudsman Program and amending one provision regarding 
this program, and to a proposed new rule to implement the new Title VII 
for Vulnerable Elder Rights Protection Activities enacted in the 1992 
Amendments to the Older Americans Act (Act). The references to the 
Ombudsman Program being deleted have either been superseded in the law 
or are superseded by provisions in the proposed new rule. One provision 
pertaining to ombudsman confidentiality requirements is retained in the 
regulations for State and Community Programs on Aging and amended based 
on changes made in the 1992 amendments to the Act. By clarifying the 
statutory requirements, the regulations will eliminate any confusion 
about the requirements of the Act and enable the States to carry out 
advocacy programs on behalf of vulnerable older people, in accordance 
with the intent of Congress.

DATES: In order to be considered, comments on this proposed rule must 
be received on or before January 17, 1995.
    Public hearings on the proposed regulations will be held from 9 
a.m. until 12 noon on the dates listed at the beginning of 
SUPPLEMENTARY INFORMATION.

ADDRESSES: All comments concerning these proposed regulations should be 
addressed to: John F. McCarthy, Deputy Assistant Secretary on Aging, 
Administration on Aging, 330 Independence Ave., SW., Washington, DC 
20201.
    A copy of any comments that concern information collection 
requirements should also be sent to Allison Herron Eydt, AoA Desk 
Officer, Office of Management and Budget, 1725 17th Street, N.W., Room 
10235, Washington, D.C. 20503.
    Public hearings on the proposed regulations will be held on the 
dates and in the cities and locations listed at the beginning of 
SUPPLEMENTARY INFORMATION. Requests to present oral testimony should be 
transmitted to the Regional Administrator, AoA Regional Office, by 
mail, telephone or fax, as provided in SUPPLEMENTARY INFORMATION. 
Written comments may be presented to AoA at the hearings or mailed to 
the Deputy Assistant Secretary for Aging at the address provided above.
    Beginning 14 days after the close of the comment period, comments 
will be available for public inspection in room 4278, 330 Independence 
Ave., SW., Washington, DC 20201, Monday through Friday between the 
hours of 9 a.m. and 4 p.m.

FOR FURTHER INFORMATION CONTACT: Sue Wheaton, Telephone (202) 619-7585.

SUPPLEMENTARY INFORMATION:

Hearings: Dates, Locations and Procedures

    As stated above under DATES and ADDRESSES, AoA is holding public 
hearings on the proposed regulations on the dates and at the locations 
provided below. Oral presentations will be limited to three minutes per 
person. Individuals will be scheduled to speak in the order in which 
their request is received in the AoA Regional Office. Comments by those 
making oral presentations must also be received by AoA in writing by 
the close of the comment period in order to be accepted as part of the 
official record.
    November 18, 1994; Boston, MA: Boston Park Plaza Hotel and Towers, 
64 Arlington Street. AoA Regional Office, John F. Kennedy Building, 
Room 2075, Boston, MA 02203; Tel. (617) 565-1158; Fax (617) 565-4511.
    December 2, 1994; Atlanta, GA: Atlanta Sheraton Gateway Hotel, 1900 
Sullivan Road, College Park, GA. AoA Regional Office: 101 Marietta 
Tower, Suite 1702, Atlanta, GA. 30323; Tel. (404) 331-5900; Fax (404) 
331-2017.
    December 9, 1994; Chicago, IL: Contact AoA Regional Office after 
November 28 for location of hearing. AoA Regional Office: 105 West 
Adams Street, 10th Floor, Chicago, IL 60603; Tel. (312) 353-3141; Fax 
(312) 886-8533.
    December 15, 1994; Denver, CO: Contact AoA Regional Office after 
November 28 for location of hearing. AoA Regional Office: 1961 Stout 
Street, Room 908, Federal Office Bldg., Denver, CO 80294; Tel. (303) 
844-2951; Fax (303) 844-2943.
    January 13 1995; San Francisco, CA: Contact AoA Regional Office 
after November 28 for location of hearing. AoA Regional Office: 50 
United Nations Plaza, Room 480, San Francisco, CA 94102; Tel. (415) 
556-6003; Fax (425) 556-7393.

I. Program Background and Purpose

    Title VII of the Older Americans Act (Act), enacted in the 1992 
Amendments to the Older Americans Act, brings together into one title 
advocacy programs which were previously in Title III. The purpose of 
Title VII is to foster activities to assist vulnerable older people to 
exercise their rights; to secure the benefits to which they are 
entitled; and to be protected from abuse, neglect and exploitation. 
Subtitle A encompasses programs for which the State Agency on aging has 
leadership responsibility; Subtitle B provides a means to assist Native 
American organizations to prioritize the needs of their service 
population relating to elder rights and make grants (when this Subtitle 
is funded) to carry out vulnerable elder rights protection activities.
    Title VII emphasizes the leadership role of the State agency in 
planning, implementing and coordinating statewide programs and 
activities designed to help older people understand their rights, know 
their benefits and make informed choices. Title VII provides a 
framework upon which States, without abrogating the particular mission 
and legislative and regulatory requirements of each Title VII program, 
can build a coordinated, integrated statewide system of advocacy and 
assistance for vulnerable older people.
    The State leadership role for Title VII is underscored by the fact 
that States may use funds available under Title VII to directly carry 
out vulnerable elder rights protection activities. The Congressional 
Committees of Jurisdiction for the Act made clear that Title III 
requirements governing the allocation of funds within States are not 
applicable to funds made available under any part of Title VII and 
that, unlike Title III, area agencies are not the only entities 
eligible to receive grants from States under any part of Title VII. 
(138 CONG.REC., S125, 13503 (daily ed. September 15, 1992) (Joint 
Explanatory Statement of the Committees of Jurisdiction, Older 
Americans Act Amendments of 1992))

The Four Programs Under Title VII

    Title VII authorizes funding for four advocacy programs previously 
included in Title III. Establishing each program in a separate chapter 
of Title VII underscores the distinct mission and strengthens the 
definition and function of each program; and combining them under a 
single title fosters increased collaboration among advocates within a 
State--and between States--to assist individual older people and their 
families and representatives.
    The Long-Term Care Ombudsman Program (Chapter 2, Sections 711, 712 
and 713 of the Act) requires States to establish and operate an Office 
of the State Long-Term Care Ombudsman, headed by the State Long-Term 
Care Ombudsman. The Ombudsman Program identifies, investigates and 
resolves complaints made by or on behalf of residents of nursing, board 
and care and similar adult care homes; addresses major issues which 
affect residents; works to educate residents, nursing home personnel 
and the public about residents rights and other matters affecting 
residents; and performs other functions specified in the Act to protect 
the health, safety, welfare and rights of residents.
    Building upon established law, the 1992 Amendments to the Act 
clarified and strengthened State ombudsman programs in the following 
areas: The functions of the State Ombudsman; criteria for the 
designation and duties of local ombudsman entities designated by the 
State Ombudsman; procedures for ombudsman access to residents and 
records, disclosure of ombudsman records, and ensuring against 
conflicts of interest; legal assistance for ombudsmen; reporting on 
ombudsman activities and providing recommendations; training of 
ombudsman representatives; and non- interference with the performance 
of ombudsman responsibilities. The 1992 Amendments emphasized the role 
of local ombudsman programs and the State Ombudsman's leadership of the 
statewide program; established detailed requirements for identifying 
and resolving real and potential conflicts of interest; and reinforced 
the role of the Ombudsman as an advocate for change to improve the 
quality of care and quality of life for residents of long-term care 
facilities.
    The 1992 Amendments also added important Title II provisions to the 
Ombudsman Program, including requirements for: The establishment in AoA 
of an Office of Long-Term Care Ombudsman Programs headed by an 
Associate Commissioner for Ombudsman Programs, with specific criteria 
for appointment and detailed definition of duties; funding of a 
National Ombudsman Resource Center at no less than the level at which 
it was funded in 1990, to establish a national program to recruit 
ombudsman volunteers, conduct research and assist State ombudsmen; 
establishment of model ombudsman training standards; a study on the 
effectiveness of the State long-term care ombudsman programs; and 
expansion of the requirements for the annual ombudsman report to 
Congress.
    New provisions in Title III require State and area agencies to fund 
their ombudsman programs at not less than the level at which the 
programs were funded in Fiscal Year 1991.
    The Chapter entitled Programs for Prevention of Elder Abuse, 
Neglect, and Exploitation (Chapter 3, Section 721) requires States to 
develop and enhance programs for the prevention of elder abuse, neglect 
and exploitation. The section enumerates activities which States may 
undertake, including but not limited to providing funding for public 
education, ensuring the coordination of services provided by area 
agencies on aging and adult protective services programs, promoting the 
development of information and data systems, and training of 
individuals and professionals in the identification, prevention and 
treatment of abuse, neglect and exploitation.
    This chapter does not require the State agency on aging to 
establish a State protective services system. Rather, the State agency 
is expected to work to enhance and improve the State's overall system 
for the prevention and treatment of elder abuse, neglect and 
exploitation, including protection of individual elders' dignity and 
rights in the delivery of protective services. In this way, the State 
agency on aging should be an ally of the State protective services 
agency in working for more and better services for vulnerable older 
people through enlisting the support and participation of other 
agencies and networks in preventing elder abuse.
    The State Elder Rights and Legal Assistance Development Program 
(Chapter 4, Section 731) builds upon State legal and elder rights 
development programs which were initiated through AoA Title IV 
discretionary funds and addressed in Title III, Section 307(a)(18). 
Section 731 requires the State agency to establish a program to provide 
leadership for improving the quality and quantity of legal and advocacy 
assistance as a means for ensuring a comprehensive elder rights system. 
The State is to establish a focal point for conducting policy review, 
analysis and advocacy on such issues as guardianship, age 
discrimination, pension and health benefits, insurance, consumer 
protection, surrogate decision-making, protective services, public 
benefits and dispute resolution. In addition, the State is to provide a 
legal assistance developer and other personnel sufficient to ensure 
State leadership in securing and maintaining legal rights of older 
individuals; State capacity for coordinating the provision of legal 
assistance; State capacity to provide technical assistance, training 
and other supportive functions to area agencies on aging, legal 
assistance providers, ombudsmen and other persons as appropriate; and 
State capacity to promote financial management services for older 
individuals at risk of conservatorship.
    The Outreach, Counseling, and Assistance Program for Insurance and 
Public Benefits (Chapter 5, Section 741) requires the States to 
establish programs of outreach, counseling and assistance to older 
individuals related to obtaining insurance benefits and public benefits 
to which they may be entitled. This chapter envisions a statewide 
network of informed staff, including volunteers, who are informed about 
insurance and public benefits and can assist older people and their 
advocates--including the advocates working under the other Title VII 
programs--to obtain needed benefits and make informed decisions on 
insurance and pension matters.

II. Purpose of the NPRM

    Prior to the 1992 amendments, the Long-Term Care Ombudsman Program 
and parts of the other three programs in the new Title VII were in 
Title III of the Older Americans Act. However, in most States, only the 
Ombudsman Program was established and operating according to the basic 
design provided in Title VII. In most States, the other three program 
areas are still in a developmental stage. For this reason, the proposed 
rule for part 45 CFR Part 1327 addresses only the Title VII mission of 
the State and area agencies, general Title VII State plan and funding 
requirements, consultation requirements, the Long-Term Care Ombudsman 
Program (Title VII, Chapter 2), specific requirements for the Elder 
Abuse, Neglect and Exploitation Prevention section of the Elder Rights 
part of the State plan, and the requirement that States employ a Legal 
Assistance Developer. AoA will develop more comprehensive regulations 
for the programs under Title VII, Chapters 3, 4 and 5 at a later date, 
based upon the regulatory needs identified as the activities under 
these programs are implemented by the States.
    Due to the transfer of the Ombudsman Program to Title VII and in 
order to conform current regulations to the 1992 Amendments to the Act, 
the proposed regulations would make the following changes in the Title 
III regulations, 45 CFR Part 1321, Grants to State and Community 
Programs: deletion of reference to the Ombudsman Program in three 
sections, amendment of one section pertaining to confidentiality, and 
deletion of another entire section which has been superseded by the 
1992 Amendments pertaining to award of Title III funds to the area 
agencies on aging.
    The Ombudsman Program regulations (Subpart C, Secs. 1327.21 through 
1327.29) address areas where the States' experience in administering 
the program indicates the need for amplification of the statutory 
requirements and/or the 1992 amendments to the Act require further 
clarification.

III. Summary of the Provisions of the NPRM

Part 1321--Grants to State and Community Programs on Aging

    Due to the transfer of the program requirements for the Long-Term 
Care Ombudsman Program from Title III of the Act to the new Title VII, 
references to the Ombudsman Program are deleted from 45 CFR Part 1321, 
Grants to State and Community Programs on Aging, Secs. 1321.9, 1321.11 
and 1321.17. In the event that an amended version of Sec. 1321.17(f) 
proposed by the Administration on Aging in a Notice of Proposed 
Rulemaking published in the Federal Register on March 17, 1994 (59 FR 
12728-12738) becomes final before this NPRM goes into effect as a final 
rule, Sec. 1321.17(f)(5) in that regulation will be amended to delete 
reference to the Ombudsman Program.
    The definition of ``official duties'' pertaining to the Ombudsman 
Program is removed from Sec. 1321.3 and not transferred to the Title 
VII regulation, as the statute sufficiently defines the duties of the 
Ombudsman.
    Section 1321.51, Confidentiality and disclosure of information--is 
amended to prohibit a State or area agency on aging from requiring 
information related to reports of neglect, abuse and exploitation of 
individuals to be divulged except as provided under Sections 
705(a)(6)(C) and 721(e)(2) of the Act or an ombudsman or ombudsman 
representative to disclose the identity of a complainant or resident 
except as permitted under the Act and under Sec. 1327.24 of these 
regulations.
    Section 1321.63, Purpose of service allotments under Title III--
subsection (b) pertaining to award of Title III funds to area agencies 
on aging is deleted in its entirety because it is superseded by 
Sections 304(d) and 308 of the Act, as amended in 1992.

Part 1327--Vulnerable Elder Rights Protection Activities Under Title 
VII of the Older Americans Act, as Amended

Subpart A--General Provisions

    1327.1  Basis and purpose--This section emphasizes the Title VII 
mandate that States develop a conceptual framework for, and provide 
leadership in implementing, comprehensive and coordinated statewide 
elder rights systems to assist vulnerable older people to understand 
their rights, know and secure their benefits and make informed choices. 
It lists the types of programs and agencies that State agencies on 
aging are expected to work with and through to develop statewide elder 
rights systems.
    Title VII is a new addition to the Act. Prior to the 1992 
amendments, the Ombudsman Program and parts of the other three programs 
now included under Title VII were in Title III. However, in most 
States, only the Ombudsman Program was established and operating 
according to the basic design provided in the new Title VII. In most 
States, the other three program areas are still in a developmental 
stage. For this reason, the proposed rule for this part addresses only 
the Title VII mission of the State and area agencies, general Title VII 
State plan and funding requirements, consultation requirements, the 
Long-Term Care Ombudsman Program, specific requirements for the Elder 
Abuse, Neglect and Exploitation Prevention section of the Elder Rights 
part of the State plan, and the requirement that States employ a Legal 
Assistance Developer. AoA will develop more comprehensive regulations 
for Chapters 3, 4 and 5 at a later date, based upon the regulatory 
needs identified as the activities under these programs are implemented 
by the States.
    Section 1327.3  Definitions--the definitions apply to the Ombudsman 
Program. They explain the meaning of the statutory requirement that the 
Ombudsman serve on a ``full-time basis,'' stipulate that the Ombudsman 
Program is to be statewide in scope and define ``statewide ombudsman 
coverage.'' They also amplify the meaning of ``immediate family'' 
related to conflict of interest requirements, ``other similar adult 
long-term care facility'' related to ombudsman coverage, ``regular and 
timely access'' to the Ombudsman Program, ``timely response'' to 
complaints and ``willful interference'' with the representatives of the 
Office of the Ombudsman in the performance of the representatives' 
official duties.
    Section 1327.5  Applicability of other regulations--this section 
requires compliance with the statutory and regulatory requirements of 
the Medicare and Medicaid programs, including the Omnibus Nursing Home 
Requirements; the Developmental Disabilities Assistance and Bill of 
Rights Act; the Civil Rights Act; the Americans With Disabilities Act; 
and other relevant Federal requirements.
    Section 1327.7  Mission of the State agency--this section 
underscores the leadership role of the State agency to develop and 
carry out throughout the State a system of programs, services and 
protections to assist individual older persons and to advocate for 
policy, regulatory and legislative changes to protect the rights, 
dignity and benefits of vulnerable older individuals as a group.
    Section 1327.9  Mission of the area agency--this section emphasizes 
the mission of the area agency to assure that viable, effective systems 
of both individual and collective advocacy are established and 
operating within their planning and services areas to protect the 
rights and address the needs of vulnerable older individuals.

Subpart B--General Title VII Requirements

    1327.11  Title VII State Plan Requirements--this section requires 
States, by March 31, 1995, to describe, in an addendum to their State 
plan, the manner in which they will carry out Title VII and stipulates 
the content for the description, including: a conceptual framework for 
a comprehensive, coordinated statewide system; the process by which 
Title VII activities were identified and prioritized in consultation 
with parties specified in the Act and in accordance with these 
regulations; a description of the roles, processes and activities for 
elder abuse, neglect and exploitation prevention activities specified 
in Subpart D, Section 1327.31; a brief description of the activities 
carried out for the other Title VII programs; and outcomes expected and 
methods by which the State will periodically assess the status of elder 
rights in the State. In accordance with Section 705(a)(4) of the Act, 
States are also required to provide assurances and documentation that 
Title VII funding has not been used to supplant funds from other 
sources.
    1327.13   Consultation--this section stipulates that the State 
agency on aging shall develop policies governing the programs contained 
in Title VII in consultation with specified individuals, agencies and 
interested parties within the State.
    1327.15  Funding requirements--this section specifies rules for 
State and area agencies (where applicable) regarding utilization of 
Title III funding, minimum required ombudsman funding levels, and 
allowable uses of funding provided for programs under Title VII. It 
also clarifies that the Title III provisions related to funding for 
State and area plan administration and intrastate distribution of Title 
III funding are not applicable to Title VII funds. That is, States may 
not include any Title VII funds in their calculation of Federal funds 
available for State plan administration, and Title VII funds allotted 
to the States may not be included in the base amount used to calculate 
the ten percent limitation on the use of funds for area plan 
administration under the provisions of Section 304(d)(1)(A) of the Act. 
However, the regulation clarifies that Title VII funds may be used to 
support any activity directly related to implementing the chapter for 
which they are appropriated.
    Section 1327.15(a) (1), (2) and (4)(iv) clarify that ombudsman 
funding provided under Title III, Section 304(d)(1)(B), the ombudsman 
minimum required funding level comprised of funds from all sources and 
States' Title VII ombudsman allotments are to be used only for the 
Ombudsman Program as it is defined in the Act. We are aware of a few 
ombudsman programs which conduct activities not directly related to the 
Ombudsman Program as it is defined in Section 712 of the Act. For 
example, some statewide ombudsman programs respond to complaints about 
in-home care and hospital services.
    However, it should be emphasized that there is no basis in the law, 
nor does the legislative history support, States use of the funding 
provided to conduct ombudsman services, as defined in Section 712 of 
the Act, to fund ombudsman or advocacy services for individuals living 
in their own homes (including homes in public housing units) or 
receiving acute medical care in facilities not covered under the 
definition of long-term care facilities in the Older Americans Act.
    AoA recognizes that there are abuses which occur in these other 
settings. However, the law is clear about the scope of the Ombudsman 
Program and the use of Ombudsman Program funding. Further, AoA is 
concerned that when ombudsmen are required to provide coverage in 
private homes, hospitals, public housing complexes or other non-long-
term care facility settings without sufficient staff resources, 
coverage of long-term care facilities may be lessened and the entire 
State ombudsman program may be weakened.
    Both institutional long-term care and these other residential or 
care settings involve complicated and usually different sets of rules 
and regulations and different benefit and oversight systems. It is 
unlikely that the State Long-Term Care Ombudsman, and local ombudsman 
representatives in areas where there are numerous-long term care 
facilities, could be involved in areas other than institutional long-
term care without compromising services to residents of long-term care 
facilities and diverting the limited resources available to the program 
designed to serve residents of nursing, board and care and similar 
adult care facilities. An additional concern is that conflicts of 
interest could arise if ombudsman programs investigate complaints about 
in-home services which are provided by the same agency which funds the 
Ombudsman Program.
    If a State wishes to establish advocacy or ombudsman programs for 
recipients of home or acute care services, or for older people living 
in public housing units, the State should ensure that there are 
sufficient, additional resources to provide these services. Additional 
staff should be provided to carry out these expanded responsibilities. 
The State should also ensure that any regional or local components of 
ombudsman programs which investigate home-care complaints are located 
outside of the organizational entities which provide the services the 
ombudsmen are expected to monitor.

Subpart C--Long-Term Care Ombudsman Program

    The sections on the Ombudsman Program are listed in the same order 
and with the same headings as the ombudsman sections in Title VII of 
the Act. Not all sections in the Act are covered in the regulation, as 
the regulation addresses only those areas where the provision in the 
Act requires clarification or amplification.
    Section 1327.21  Establishment--
    1327.21(a)  Ombudsman Access to Decision-Making Officials--In order 
to increase the ability of the State Ombudsman Program to effectively 
represent the interests of residents of long-term care facilities in 
policy-making at the State level, the rule requires that the Ombudsman 
have direct access to directors of governmental entities with 
responsibilities which impact on residents of long-term care 
facilities. Without such access, the Ombudsman's ability to ``represent 
the interests of the residents before governmental agencies and seek 
administrative, legal and other remedies to protect the health, safety, 
welfare and rights of the residents'' as required under Section 
712(a)(3)(E) of the Act would be diminished. The statutory organization 
of the program into an office indicates that Congress intended it to 
have a high level of visibility and an effective voice in policy 
deliberations affecting residents.
    1327.21(b)  Local Ombudsman Entities and Ombudsman 
Representatives--The rule outlines five areas in which the State agency 
must establish criteria and develop policy for participation in the 
statewide Ombudsman Program by local ombudsman entities and 
representatives. The overall objective of the criteria and policies is 
to strengthen, through the designation process, the working 
relationship between the State ombudsman and local ombudsman entities 
and the effectiveness of the local entities as part of the statewide 
Ombudsman Program.
    1327.21(c)  Representation of Residents' Interests--The Act 
requires ombudsmen to represent the interests of residents before 
governmental agencies, but administrative law judges in some States 
have barred ombudsmen from carrying out this duty because the 
ombudsman's involvement was interpreted as representing the client, a 
function reserved for attorneys. The rule clarifies that the Ombudsman 
and ombudsman representatives have the right and authority to advocate 
on behalf of residents in transfer, discharge and other administrative 
hearings by serving as a witness and presenting information and 
testimony.
    1327.21(d)  Additional Ombudsman Duties--The rule specifies that, 
in addition to the ombudsman functions outlined in the Act, the 
Assistant Secretary determines it appropriate for Ombudsmen to work to 
ensure that board and care and similar adult care facilities are 
licensed and that licensing standards are enforced.
    1327.22  Procedures for Access--the rule requires the State agency 
to ensure, through administrative policy, regulation or securing 
legislation, if needed, that ombudsmen have the right and an 
established procedure for access to: Facilities; residents, including 
residents with guardians; residents' records; facility records and 
death certificates and records, when these are necessary in the 
investigation of complaints.
    1327.24  Disclosure/Confidentiality--this section replaces the 
current rules at 45 CFR 1321.11 and 1321.51 promulgated in the 1988 
regulation, which permit the director of the State agency on aging and 
one senior manager to have access to ombudsman files, minus the 
identity of any complainant or resident of a long-term care facility, 
for program monitoring purposes. The new rule stipulates that the 
director or a senior manager of the agency or organization in which the 
Ombudsman Program is administratively located may have access to 
ombudsman files for program monitoring purposes; that the individual 
who performs the program monitoring must have no conflict of interest; 
and that confidentiality requirements concerning any complainant or 
resident must be strictly followed. This rule applies to ombudsman 
files at the State and local level. As previously stated at the 
beginning of this preamble, this NPRM proposes to delete the current 
reference to the Ombudsman Program in 45 CFR 1321.11 and to amend 45 
CFR 1321.51 to conform with confidentiality provisions in Sections 705, 
712 and 721 of the Act and section 1327.24 of this proposed regulation.
    This section also clarifies that Section 705(a)(6)(C) of the Act 
pertains to information provided to the agencies and programs specified 
in this statutory provision and does not require the Ombudsman Program 
to abridge the confidentiality requirements specified in Section 712(d) 
of the Act. The rule stipulates that representatives of the Ombudsman 
Program may not be required to disclose the identity of a complainant 
or resident except under conditions outlined in section 712(d) of the 
Act.
    Some State abuse reporting laws mandate the reporting of all 
incidents of abuse. These State laws may conflict with the Section 
712(d) requirement that ombudsmen not reveal the identity of 
complainants or residents unless the complainant, resident or the 
resident's legal representative consents to the disclosure or the 
disclosure is required by court order. The rule clarifies that Federal 
law supersedes State law in such instances and that ombudsmen must 
follow the disclosure procedure outlined in Section 712(d). Section 
1327.27(b)(3) of these regulations requires the State Ombudsman, in 
coordination with the State Adult Protective Services agency, to 
establish a protocol for reporting complaints involving alleged abuse 
and exploitation which ensures prompt response to those in need while 
protecting confidentiality, in accordance with statutory and regulatory 
requirements.
    1327.25  Conflict of Interest--Subparagraph (a), Designation of the 
Ombudsman and ombudsman entities and representatives--The 
organizational location of State and local ombudsman programs is 
crucial to those programs' independence and access to decision-makers. 
Most State ombudsman programs are located in State agencies on aging, 
and more local programs are located in Area agencies on aging than in 
any other organizations. While the Act prohibits contracting the 
Ombudsman Program to agencies or organizations which regulate, own or 
operate long-term care facilities, in the past AoA has permitted State 
agencies on aging which regulate, own or administer long-term care 
facilities to also operate the Ombudsman Program. This previous policy, 
stated in the preamble to the 1988 regulations, was based on the 
construction of the law.
    In this rule, we are modifying this policy to comply with Section 
712(f)(1) of the Act, which states that no individual, or member of the 
individual's immediate family, involved in the designation of the 
Ombudsman * * * or the designation of an entity designated under 
subsection (a)(5) (local ombudsman entity) may be subject to a conflict 
of interest. We believe that officials and employees in any office 
which directly licenses or certifies long-term care facilities, 
administers facilities or provides long-term care services are subject 
to an inherent conflict of interest disqualifying them from designating 
the Ombudsman or ombudsman representatives. Accordingly, in order to 
comply with Section 712(f)(1), this regulation requires that the 
individual who designates, whether by appointment or otherwise, the 
Ombudsman and ombudsman representatives may not be an official or 
employee of an agency, including a State or area agency on aging, which 
directly licenses or certifies long-term care facilities, administers 
facilities or provides long-term care services. The rule also requires 
that where State and area agencies contract the Ombudsman Program to 
another agency or organization, the employees who oversee the contract 
must have no conflict of interest.
    Since the Ombudsman Program is responsible for investigating 
complaints which are sometimes made against the licensing agency and 
recommending changes in policies and procedures which frequently 
involve the licensing agency, this rule is designed to prevent a 
situation in which an individual directly involved in the licensing and 
certification of a facility, or one who is involved in administering a 
facility or providing long-term care services, is also in a position of 
authority or responsibility concerning the designation of the Ombudsman 
or ombudsman representatives.
    1327.25(b)  Requires that where the State or area agency on aging 
contracts with another agency to operate the Ombudsman Program, the 
State or area agency staff persons who oversee the contract must not be 
involved in licensing, certifying or administering long-term care 
facilities or services.
    1327.25(c)  Prohibits the State Ombudsman and ombudsman 
representatives from also serving as adult protective services (APS) 
workers in APS programs with responsibilities which might conflict with 
the Ombudsman's role as advocate for the residents' right to self-
determination and/or which might result in the representatives becoming 
case workers for victims of abuse, neglect and exploitation and not 
fulfilling the many other roles and responsibilities of the Office of 
the Long-Term Care Ombudsman. This section also prohibits the Ombudsman 
and ombudsman representatives from serving as a resident's agent, 
medical decision-maker or surrogate and from assuming other, related 
roles which might place them in conflict with their primary role as 
advocate for the rights of residents and/or consume their time to the 
exclusion of other important duties.
    1327.26  Legal Counsel--This section requires the State agency to 
develop and implement written policies and procedures which stipulate 
how the State will fulfill its obligation to provide adequate legal 
counsel to the Ombudsman and ombudsman representatives to assist them 
in protecting the health, safety, welfare, and rights of residents and 
in the performance of their official duties and to provide legal 
representation to any representative of the Office against whom suit or 
other legal action is brought or threatened to be brought in connection 
with the performance of official duties. It requires the State to 
disseminate the policies and procedures to all representatives of the 
Office and regularly include the information in training provided to 
ombudsman representatives.
    1327.27  Administration--Subparagraph (a) clarifies that the 
Ombudsman Program may serve disabled individuals under the age of 60 
who are living in long-term care facilities, a majority of whose 
residents are older adults, if such service does not weaken or decrease 
service to older individuals covered under the Older Americans Act. The 
Administration on Aging takes the view that by giving the Ombudsman and 
ombudsman representatives discretion to serve those under age 60 and 
thus address the needs of all residents in a facility, the Ombudsman 
Program will better serve everyone living in the facility.
    1327.27(b)  Requires State ombudsmen to establish written 
agreements with the State Adult Protective Services program and the 
State Protection and Advocacy programs for individuals with 
developmental disability and mental illnesses. The agreements are to 
stipulate how resources shall be utilized to serve vulnerable people 
for which the programs are responsible and policies and procedures to 
be followed in referrals and investigation of complaints. The policies 
and procedures regarding complaint referral and investigation must 
include a protocol for reporting complaints involving alleged abuse or 
exploitation which ensures prompt response to those in need while 
protecting confidentiality, in accordance with statutory and regulatory 
requirements.
    1327.27(c)  Requires State ombudsmen to establish written 
agreements with the State agencies responsible for licensing and/or 
certifying for participation in Titles XVIII and XIX of the Social 
Security Act long-term care facilities covered by the statewide 
Ombudsman Program. The agreements must include procedures for complaint 
investigation, verification and resolution by both agencies; 
transmittal of information about facilities; ombudsman participation in 
facility surveys; and shared training of staff.
    1327.28  Liability--This section requires the State agency to 
arrange for liability protection for representatives of the statewide 
Ombudsman Program so that any representative of the program against 
whom legal action is brought or threatened to be brought in connection 
with that individual's performance of her/his official duties will be 
fully indemnified for legal and other costs arising from the dispute. 
The State may not transfer this responsibility to provide full 
liability protection to the area agency or other local agency or leave 
the individual ombudsman representative financially vulnerable or 
personally responsible in case of a law suit.
    1327.29(a)  Noninterference--This section augments the principle 
enunciated in section 712(j) of the Act which requires States to ensure 
that willful interference with ombudsman representatives in the 
performance of official duties shall be unlawful. Subparagraph (a) 
states, as a general principle, that in the conduct of all aspects of 
the statewide Long-Term Care Ombudsman Program, the integrity of the 
work of the Ombudsman and ombudsman representatives must be maintained; 
and there must be no inappropriate or improper influence from any 
individual or entity, regardless of the source, which will in any way 
compromise, decrease or negatively impact on the objectivity of the 
investigation or outcome of complaints; the Ombudsman's primary role as 
advocate for the rights and interests of the resident; the Ombudsman's 
work to resolve issues related to the rights, quality of care and 
quality of life of the residents of long-term care facilities; or the 
Ombudsman's statutory responsibility to provide such information as the 
Office of the Ombudsman determines to be necessary to public and 
private agencies, legislators and other persons regarding the problems 
and concerns of residents and recommendations related to residents' 
problems and concerns.
    1327.29(b)  Makes it clear that any interference with the work of 
the Ombudsman, as outlined in paragraph (a) of this section, by an 
individual who is an official or employee of the State agency on aging 
or of an organization or agency which operates the Ombudsman Program 
under grant or contract with the State agency shall be deemed to be a 
failure to comply with Section 705 and with the noninterference 
requirements of Section 712 of the Act.

Subpart D--Programs for Prevention of Elder Abuse, Neglect and 
Exploitation

    Section 1327.31  Elder Abuse, Neglect and Exploitation Section of 
Elder Rights Plan--This section specifies that States shall provide, in 
the description of the Elder Rights plan, required in Section 1327.11 
of these regulations, a detailed description of the involvement of 
other agencies, use of funds and evaluation of activities conducted 
with funds provided for implementing Chapter 3, Section 721 of the Act.

Subpart E--State Elder Rights and Legal Assistance Development 
Program

    1327.41  Functions--This section requires States to provide, either 
directly or through contract, an individual to be identified as the 
State Legal Assistance Developer, in compliance with Sections 
307(a)(18) and 731(b)(2) of the Act. It stipulates that the Developer 
shall not serve the employing agency as house counsel. The rationale 
for this requirement is that serving as house counsel prevents the 
Legal Assistance Developer from carrying out the legal and elder rights 
development duties specified under Section 731 of the Act.

Subpart F--State Outreach, Counseling, and Assistance Program for 
Insurance and Public Benefits

    1327.51  Coordination--This section amplifies the requirement in 
Section 741(f) of the Act that outreach and counseling activities 
authorized under Chapter 5, Section 741 of the Act be coordinated with 
activities carried out by the State with funds received under the 
Health Insurance Information, Counseling and Assistance Grants 
authorized under Section 4360 of the Omnibus Budget Reconciliation Act 
of 1990.

Impact Analysis

Executive Order 12866

    Executive Order 12866 requires that regulations be reviewed to 
ensure that they are consistent with the priorities and principles set 
forth in the Executive Order. The Department of Health and Human 
Services has determined that this rule is consistent with these 
priorities and principles. An assessment of the costs and benefits of 
available regulatory alternatives (including not regulating) 
demonstrated that the approach taken in the regulation is the most 
cost-effective and least burdensome while still achieving the 
regulatory objectives.

Regulatory Flexibility Act of 1980

    The Regulatory Flexibility Act of 1980, Public Law 96-354, requires 
that an agency prepare a regulatory flexibility analysis for a proposed 
or final rule if the rule would have significant economic impact on a 
substantial number of ``small entities'', i.e. small businesses, small 
non-profit organizations, or small governmental jurisdictions.
    The responsibility for meeting the requirements of the regulations 
proposed in this NPRM is on the State agencies and to a lesser extent 
on area agencies. Actual delivery of services will be provided in some 
circumstances by public and not-for-profit agencies or organizations 
under grants or contracts from State or area agencies. Although area 
agencies and most service delivery agencies and organizations are 
``small entities'' within the meaning of the Act, this rule will impose 
no significant burdens on State agencies, area agencies or other 
affected parties and will provide flexibility to State and area 
agencies in implementing the provisions of the Act. For these reasons, 
the Secretary hereby certifies that these regulations will not have a 
significant economic impact on a substantial number of small entities.

Paperwork Reduction Act

    Section 1327.11 of this proposed rule contains information 
collection requirements which are subject to review by the Office of 
Management and Budget (OMB) under the Paperwork Reduction Act of 1980. 
The title, description, and respondent description of the information 
collection are shown below with an estimate of the time for reviewing 
instructions, searching existing data sources, gathering and 
maintaining the data needed, and completing and reviewing the 
collection of information. Comments on the proposed information 
collection requirements in Section 1327.11 should be addressed to the 
AoA Desk Officer at the Office of Management and Budget as well as to 
Deputy Assistant Secretary for Aging. See ADDRESSES section.
    Title: Vulnerable Elder Rights Protection Activities--Elder Rights 
Plan.
    Description: Section 705(a)(8) of Older Americans Act as amended by 
the 1992 amendments to the Act (Public Law 102-375) requires States to 
include in their State plan submitted under Section 307 a description 
of the manner in which the State will carry out Title VII in accordance 
with assurances outlined in Section 705. Based upon this statutory 
provision, Sec. 1327.11 of the proposed regulations requires States, by 
March 31, 1995, to describe, in an addendum to their State plan and to 
all future State plans, the manner in which they will carry out Title 
VII and stipulates the content of the description, including: a 
conceptual framework for a comprehensive, coordinated statewide system; 
the process by which Title VII activities were identified and 
prioritized in consultation with parties specified in the Act and in 
accordance with these regulations; a description of the roles, 
processes and activities for elder abuse, neglect and exploitation 
prevention activities specified in Subpart D, Sec. 1327.31; a brief 
description of the activities carried out for the other Title VII 
programs; outcomes expected and methods by which the State will 
periodically assess the status of elder rights in the State. In 
accordance with Section 705(a)(4) of the Act, States are also required 
to provide assurances and documentation that Title VII funding has not 
been used to supplant funds from other sources.
    Total reporting burden is 4,104 hours for FY 1995 and fewer than 
4,104 for subsequent years.

Basis for Estimate:

    By March 31, 1995 each State agency and the five trust territories 
will be required to submit to the Administration on Aging an Elder 
Rights Plan. Estimate of burden is determined as follows:

------------------------------------------------------------------------
                                                 No.      No.           
                                                staff,   hours          
                   Activity                      per      per     Total 
                                                State/   staff    hours 
                                                entity   member         
------------------------------------------------------------------------
Planning.....................................        5        8       40
Writing/ Editing Plan........................        2       16       32
------------------------------------------------------------------------

72 hours x 57 States/entities = 4,104 hours for FY 1995

    Development of the Elder Rights Plan in years subsequent to FY 1995 
will likely require fewer planning hours than the development of the 
initial plan will require. The statute allows States to submit their 
State plans every two, three, or four years. Therefore, the total 
burden will be considerably fewer than 4104 hours in years after FY 
1995.
    Description of Respondents: State and local governments, including 
State and Area agencies on aging and ombudsman programs; non-profit 
organizations; interested individuals.

List of Subjects

45 CFR Part 1321

    Administrative practices and procedure, Aged, Grant programs--
Indians, Grant programs--social programs, Indians, Legal services, 
Nutrition, Nursing Homes, Reporting and recordkeeping requirements.

45 CFR Part 1327

    Administrative practices and procedure, Aged, Grant programs--
social programs, Health care, Legal services, Privacy, Reporting and 
recordkeeping requirements.
Fernando M. Torres-Gil,
Assistant Secretary for Aging.
    Dated: October 20, 1994.
Donna E. Shalala,
Secretary of Health and Human Services.
    For the reasons set forth in the preamble, 45 CFR Chapter XIII, 
subchapter C, is amended as follows:

PART 1321--GRANTS TO STATE AND COMMUNITY PROGRAMS ON AGING

    1. The authority for part 1321 continues to read as follows:

    Authority: 42 U.S.C. 3001 et seq.; title III of the Older 
Americans Act, as amended.

Subpart A--Introduction

    2. 1321.3, Definitions, is amended by removing the definition of 
``Official duties''.

Subpart B--State Agency Responsibilities

    3. Section 1321.9, Organization and Staffing of the State Agency, 
is amended by removing paragraphs (c) and (d).
    4. Section 1321.11 is revised to read as follows:


Sec. 1321.11  State agency policies.

    (a) The State agency on aging shall develop policies governing all 
aspects of programs operated under this part, whether operated directly 
by the State agency or under contract. These policies shall be 
developed in consultation with other appropriate parties in the State. 
The State agency is responsible for enforcement of these policies.
    (b) The policies developed by the State agency shall address the 
manner in which the State agency will monitor the performance of all 
programs and activities initiated under this part for quality and 
effectiveness.
    5. 1321.17 is amended by revising paragraph (f)(7) to read as 
follows:


Sec. 1321.17  Content of State plan.

* * * * *
    (f) * * *
    (7) The State agency on aging shall develop policies governing all 
aspects of programs operated under this part.
* * * * *
    6. Section 1321.51 is amended by revising paragraph (c) to read as 
follows:


1321.51  Confidentiality and disclosure of information.

* * * * *
    (c) A State or area agency on aging may not require:
    (1) A provider of legal assistance under this part to reveal any 
information that is protected by attorney client privilege;
    (2) Information related to reports of neglect, abuse and 
exploitation of individuals to be divulged except as provided under 
Sections 705(a)(6)(C) and 721(e)(2) of the Act; or
    (3) An ombudsman or ombudsman representative providing services 
under Part 1327, Subpart C, of this chapter to disclose the identity of 
a complainant or resident except as provided under Sec. 1327.24.

Subpart D--Service Requirements

    7. Section 1321.63 is amended by removing and reserving paragraph 
(b).
    8. Part 1327 is added to read as follows:

PART 1327--VULNERABLE ELDER RIGHTS PROTECTION ACTIVITIES

Sec.

Subpart A--General Provisions

1327.1  Basis and purpose of this part.
1327.3  Definitions.
1327.5  Applicability of other regulations.
1327.7  Mission of the State agency.
1327.9  Mission of the Area agency.

Subpart B--General Title VII Requirements

1327.11  Title VII State Elder Rights plan requirements.
1327.13  Consultation.
1327.15  Funding requirements.

Subpart C--Long-Term Care Ombudsman Program

1327.21  Establishment.
1327.22  Procedures for access.
1327.24  Disclosure/confidentiality.
1327.25  Conflict of interest.
1327.26  Legal counsel.
1327.27  Administration.
1327.28  Liability.
1327.29  Noninterference.
Subpart D--Programs for Prevention of Elder Abuse, Neglect, and 
Exploitation
1327.31  Elder Abuse, Neglect and Exploitation Prevention 
Requirements for Elder Rights Plan.

Subpart E--State Elder Rights and Legal Assistance Development Program

1327.41  Functions.
Subpart F--State Outreach, Counseling, and Assistance Program for 
Insurance and Public Benefits
1327.51  Coordination.

    Authority: 42 U.S.C. 3001 et seq.

Subpart A--General Provisions


Sec. 1327.1  Basis and purpose of this part.

    (a) This part prescribes requirements State agencies shall meet to 
receive grants for the establishment and development of Vulnerable 
Elder Rights Protection activities under Title VII of the Older 
Americans Act, as amended (hereinafter referred to in this part as the 
Act). These requirements include the responsibilities of State 
agencies, Area agencies, and service providers.
    (b) The requirements of this part are based on Title VII and 
relevant sections of Titles III and VI of the Act. Title VII provides 
for formula grants to State agencies on aging, under approved State 
plans, to carry out Vulnerable Elder Rights Protection activities.
    (c) Statewide Elder Rights Systems--Title VII provides an important 
mandate to State agencies on aging, namely the development of an Elder 
Rights system which coordinates and recognizes the inter-relatedness of 
a variety of services, programs, and activities on the part of a number 
of agencies and organizations to ensure the rights of vulnerable older 
people in a State. Such an Elder Rights system will assist vulnerable 
older people to understand their rights, know and secure their benefits 
and make informed choices. In the development of this system, it is 
expected that State agencies on aging will work through and with the 
State Long-Term Care Ombudsman Program; State Elder Rights and Legal 
Assistance Development Program; State Outreach, Counseling and 
Assistance Program for Insurance and Public Benefits; Area agencies on 
aging, information and referral programs; consumer protection and 
advocacy agencies; guardianship programs; legal providers; adult 
protective services; the court system; the attorney general; the State 
equal employment opportunity commission; and other appropriate programs 
and agencies.


Sec. 1327.3  Definitions.

    Full-time basis, as used in Section 712(a)(3) of the Act with 
respect to the State Ombudsman position, means the State Long-Term Care 
Ombudsman position is full-time, and the individual who serves in the 
position has no duties other than those directly related to the Long-
Term Care Ombudsman Program, as defined in Section 712 of the Act.
    Immediate family, as used in Sections 201(d)(2)(B) and 712(f)(1) of 
the Act pertaining to conflict-of-interest, means spouse, parents, 
children and siblings.
    Other similar adult long-term care facility, as used in Section 
102(34)(D) of the Act with respect to the type of facilities which the 
Ombudsman Program is authorized to cover, means any group facility 
which provides room, board and personal care services to older 
individuals, and which the State includes within the purview of its 
statewide Long-Term Care Ombudsman Program.
    Regular and timely access, as used in Section 712(a)(3)(D) and 
(5)(B)(ii) of the Act with respect to residents' access to ombudsmen, 
means that residents of long-term care facilities throughout the State 
have access to knowledge of the Ombudsman Program and how to contact it 
and that calls or letters to the program from residents or their 
representatives are responded to in a timely manner.
    State Long-Term Care Ombudsman Program means a program established 
under Section 712(a)(1)(B) of the Act which provides statewide 
ombudsman coverage for residents of long-term care facilities.
    Statewide ombudsman coverage, as used in the definition of ``State 
Long-Term Care Ombudsman Program,'' means that: residents of long-term 
care facilities and their representatives have access to knowledge of 
the Ombudsman Program and how to contact it; and complaints received 
from any part of the State are investigated and documented and steps 
are taken to resolve problems in a timely manner, in accordance with 
Federal and State requirements.
    Timely responses, as used in Section 712(a)(3)(D) of the Act with 
respect to ombudsman action on complaints, means that life-threatening 
complaints are responded to within 24 hours of receipt and non-life 
threatening complaints are responded to as promptly as can reasonably 
be accomplished.
    Willful interference, as used in Section 712(j)(1) of the Act with 
respect to the work of representatives of the ombudsman office, means 
any action taken, or deliberate omission of action, with the intention 
of preventing the Ombudsman from carrying out his/her official duties, 
as outlined in Section 712 of the Act and pursuant to State law. Acts 
of retaliation, such as dismissal of the Ombudsman or ombudsman 
representative or the removal and transfer of such person because of 
conscientious performance of official ombudsman duties, are considered 
willful interference.


Sec. 1327.5  Applicability of other regulations.

    Several other regulations apply to all activities under this part. 
These include but are not limited to:
    (a) 42 CFR Parts 483 and 488--Medicare and Medicaid Programs; 
Omnibus Budget Reconciliation Act of 1987 (OBRA) Nursing Home 
Requirements;
    (b) 45 CFR Part 16--Procedures of the Departmental Appeals Board;
    (c) 45 CFR Part 74--Administration of Grants, except Subpart N;
    (d) 45 CFR Part 80--Nondiscrimination under Programs Receiving 
Federal Assistance through the Department of Health and Human Services: 
Effectuation of Title VI of the Civil Rights Act of 1964;
    (e) 45 CFR Part 81--Practice and Procedures for Hearings Under Part 
80 of this Title;
    (f) 45 CFR Part 84--Nondiscrimination on the Basis of Handicap in 
Programs and Activities Receiving or Benefiting from Federal Financial 
Participation;
    (g) 45 CFR Part 91--Nondiscrimination on the Basis of Age in HHS 
Programs or Activities Receiving Federal Financial Assistance;
    (h) 45 CFR Part 92--Uniform Administrative Requirements for Grants 
and Cooperative Agreements to State and Local Governments;
    (i) 45 CFR Part 100--Intergovernmental Review of Department of 
Health and Human Services Programs and Activities;
    (j) 5 CFR Part 900, Subpart F, Standards for a Merit System of 
Personnel Administration;
    (k) 45 CFR Part 1386--Administration for Developmental Disabilities 
and Developmental Disabilities Programs;
    (l) 49 CFR Parts 27, 37 and 38--Transportation for Individuals with 
Disabilities;
    (m) 28 CFR Parts 35 and 36--Department of Justice;
    (n) 29 CFR Part 1630--Equal Employment Opportunity Commission.


Sec. 1327.7  Mission of the State agency.

    The State agency on aging is responsible for advocating for the 
rights of older individuals throughout the State. This responsibility 
is paramount with respect to those who are unable to secure and protect 
their own interests. The Act intends that the State agency on aging 
shall be the leader relative to Vulnerable Elder Rights Protection 
activities in the State. This means that the State agency shall:
    (a) Develop and actively carry out throughout the State a system of 
programs, services and protections which assist older persons to:
    (1) Understand and exercise their rights;
    (2) Exercise choice through informed decision-making;
    (3) Benefit from support and opportunities promised by law;
    (4) Maintain autonomy consistent with capacity;
    (5) Resolve grievances and disputes through appropriate 
representation and assistance; and
    (b) Work to secure the policy, regulatory and legislative changes 
which are needed to protect the rights, dignity and benefits of 
vulnerable older individuals.


Sec. 1327.9  Mission of the Area agency.

    The mission of the Area agency on aging under this part is to 
advocate for and work to establish a viable, effective system within 
the planning and service area to assist vulnerable older individuals 
living in both home and long-term care facility settings to secure and 
exercise their human and civil rights, protect their dignity, claim the 
benefits to which they are entitled and ensure the fulfillment of their 
contracts and covenants for care.

Subpart B--General Title VII Requirements


Sec. 1327.11  Title VII State Elder Rights Plan Requirement.

    By March 31, 1995 the State agency on aging shall provide, as an 
addendum to its current State plan, an Elder Rights plan. The Elder 
Rights plan shall be included in all future State plans and shall 
describe the manner in which the State will develop a comprehensive 
Elder Rights system to carry out Title VII, in accordance with the 
assurances in Section 705(a)(1) through (7) of the Act.
    (a) The description shall include:
    (1) A conceptual framework, which includes goals and priorities, 
for how the State agency, without abrogating the specific mission and 
statutory and regulatory requirements for each Title VII program, will 
develop a coordinated, comprehensive system described in Sec. 1327.1(c) 
which is designed to fulfill the elder rights mission of the State 
agency, as described in Sec. 1327.7;
    (2) The process through which the State, in consultation with the 
parties specified in Sec. 1327.13, identified and prioritized statewide 
elder rights activities, including the process by which all interested 
parties were notified of public hearings held in accordance with 
Section 705(a)(2) of the Act and the conduct and results of such 
hearings; as required under Title II of the Americans with Disabilities 
Act, all hearings shall be accessible to the disabled;
    (3) A description of the roles, processes and activities for elder 
abuse, neglect and exploitation prevention activities specified in 
Subpart D of this part, Sec. 1327.31;
    (4) A brief description of the activities carried out for the other 
programs under Title VII;
    (5) Outcomes expected during the period covered by the plan; and
    (6) Methods by which the State will periodically assess the status 
of elder rights in the State, in compliance with Section 731(b)(8) of 
the Act.
    (b) The Elder Rights Plan shall also contain assurances and 
documentation showing that Title VII funding has not been used to 
supplant funds from other sources, as required in Section 705(a)(4) of 
the Act.


Sec. 1327.13  Consultation.

    The State agency on aging shall develop policies governing all 
aspects of programs operated under this part, whether operated directly 
by the State agency or under contract. These policies shall be 
developed in consultation with the State Ombudsman, State Legal 
Assistance Developer and other State level agencies or staff with major 
responsibilities for programs related to Elder Rights, including State 
adult protective services staff; area agencies on aging and local 
agencies or staff with major responsibilities for programs related to 
Elder Rights; older people; organizations which advocate on behalf of 
vulnerable older persons; and service providers, including long-term 
care providers.


Sec. 1327.15  Funding requirements.

    (a) Requirements of State agencies. (1) The period of availability 
of funding for obligation is covered by 45 CFR part 92.
    (2) Use of Title III funds for Ombudsman Program. Title III funds 
utilized by States under Section 304(d)(1)(B) must be used to support 
activities of the Long-Term Care Ombudsman Program, as defined in 
Section 712 of the Act, at either the State level or at the local 
level. These funds are not subject to the intrastate funding formula.
    (3) Maintenance of FY 1991 ombudsman program funding level. In 
carrying out the Ombudsman Program under Titles III and VII, States 
must, at a minimum, expend not less than the total amount expended by 
the State agency on aging from all sources in fiscal year 1991, with 
the exception of funds received in a State's allotment of the budget 
line item for abuse prevention (under the old Title III, Part G of the 
Older Americans Act, as amended November 27, 1987) in the FY 1991 
Departments of Labor, Health and Human Services, and Education, and 
Related Agencies Appropriation Act which the State elected to expend on 
ombudsman activities in FY 1991. In addition, States should expend on 
their Ombudsman Program the full amount of the increase in funding 
between what they received and expended on ombudsman activities from 
the State's allotment of the budget line item for ombudsman services in 
the FY 1991 Departments of Labor, Health and Human Services, and 
Education, and Related Agencies Appropriation Act and their Title VII 
ombudsman allotment for a current fiscal year. This funding received 
under Titles III and VII must be used solely for ombudsman services to 
residents of long-term care facilities, as defined in Sections 102 (19) 
and (34) of the Act and Sec. 1327.3 and pursuant to Sections 307(a)(12) 
and 712 of the Act, and may not be used for any other purpose.
    (4) Use of Title VII ombudsman and abuse prevention allotments. (i) 
States may use any portion of their Title VII abuse prevention 
allotment to fund specific, identifiable activities conducted by any 
public or private non-profit program or agency, including adult 
protective services and ombudsman programs, which directly correspond 
to the abuse prevention activities outlined in Section 721(b) of the 
Act.
    (ii) States may not provide any of their Title VII abuse prevention 
allotment to adult protective services agencies to conduct activities 
or provide services not authorized in Section 721(b).
    (iii) Use of Title VII funding for involuntary services to, or 
coerced participation in, Title VII-funded programs by alleged victims, 
abusers or their households, is strictly prohibited.
    (iv) Use of any of the Title VII ombudsman allotment to fund 
activities which are not authorized under Section 712 of the Act and 
conducted by the Long Term Care Ombudsman Program or a grantee or 
contractor of the Ombudsman Program is prohibited. This includes, but 
is not limited to, ombudsman services in settings other than long term 
care facilities, as defined in Section 102(19) and (34) of the Act and 
Sec. 1327.3, and activities under Title VII, Chapters 3, 4 and 5 
conducted by individuals or agencies other than the Ombudsman or 
Ombudsman Program, or the Ombudsman's grantee or contractor.
    (5) Use of Title VII, Chapter 5 funding (Outreach, Counseling and 
Assistance Program). States may use funding under Chapter 5 to conduct 
any of the activities outlined under Section 741(c) of the Act. If a 
State determines that any area agency on aging is eligible to receive 
funding to conduct activities under Chapter 5, the State is required by 
Section 705(a)(7) to apply the eligibility and priority criteria set 
forth in the statute.
    (6) Non-applicability of Title III funding provisions. (i) 
Effective October 1, 1994, States may not include any Title VII funds 
in their calculation of Federal funds available for State plan 
administration. Title VII funds may be used to support any activity 
directly related to implementing the chapter for which they are 
appropriated.
    (ii) Title VII funds allotted to the States may not be included in 
the base amount used to calculate the ten percent limitation on the use 
of funds for area plan administration under the provisions of Section 
304(d)(1)(A) of the Act.
    (b) Requirements of area agencies. (1) Area agencies may use funds 
allocated under Section 304(d)(1)(D) to support ombudsman program and 
other elder rights activities.
    (2) Area agencies must expend on local or regional ombudsman 
program activities for residents of long term care facilities, as 
defined in Sections 102(19) and (34) and 712 of the Act and 
Sec. 1327.3, not less than the total amount of Title III funds received 
under Section 304(d)(1)(D) of the Act and expended by the area agency 
in carrying out the Ombudsman Program under Title III in FY 1991.

Subpart C--Long-Term Care Ombudsman Program


Sec. 1327.21  Establishment.

    (a) Ombudsman access to decision-making officials. The State must 
ensure that the State Ombudsman has direct access to the directors of 
State governmental entities with responsibilities which impact on 
residents of long-term care facilities.
    (b) Local Ombudsman entities and ombudsman representatives. The 
State agency shall establish criteria and a process for participation 
in the statewide Ombudsman Program by local ombudsman entities and 
ombudsman representatives. The criteria must:
    (1) Stipulate that the State Ombudsman has the authority to 
designate local ombudsman entities and ombudsman representatives and to 
revoke designation, if necessary;
    (2) Ensure that local entities designated to participate in the 
Ombudsman Program have experience in advocating for the individual and 
collective rights of vulnerable people and are not primarily service 
providers;
    (3) Establish a procedure for hiring, supervising, training, 
evaluating and, if necessary, dismissing ombudsman representatives and 
for evaluating the performance of the local ombudsman entity;
    (4) Ensure that local ombudsman entities and ombudsman 
representatives have no conflict of interest, as described in 
Sec. 1327.25;
    (5) Provide for an appeal procedure for local ombudsman entities or 
representatives whose designation is revoked by the State Ombudsman in 
order to ensure that ombudsman entities or designated representatives 
which faithfully and effectively carry out the duties outlined in 
Section 712(a)(5)(B) of the Act are retained as part of the statewide 
Ombudsman Program, except when good cause is shown warranting their 
removal.
    (c) Representation of residents interests. Representatives 
specifically designated by the Ombudsman for such purpose shall have 
the right and authority to advocate on behalf of residents in transfer, 
discharge and other administrative hearings by serving as witnesses and 
presenting information and testimony.
    (d) Additional Ombudsman duties. In addition to the ombudsman 
functions specified in Section 712(a)(3) (A-H) of the Act, the 
Assistant Secretary on Aging determines it appropriate that the 
Ombudsman and ombudsman representatives work to ensure that board and 
care and similar adult care facilities throughout the State are 
licensed, as appropriate and in accordance with State and Federal laws 
and regulations, and that licensing standards are enforced.


Sec. 1327.22  Procedures for access.

    The State agency shall ensure through administrative policy, 
regulation or securing the enactment of State legislation, if 
necessary, that the Ombudsman and all designated ombudsman 
representatives have the right and an established process for access 
to:
    (a) Facilities covered by the statewide Ombudsman Program;
    (b) Residents, including residents with legal representatives or 
guardians;
    (c) Residents records, including residents with legal 
representatives or guardians, with strict adherence to the consent 
procedures outlined in Section 712(b)(1) of the Act;
    (d) Long-term care facilities' records, policies and documents to 
which the residents or the general public have access;
    (e) Copies of all licensing and certification records maintained by 
the State with respect to long-term care facilities; and
    (f) Death certificates and related records, when these are required 
in the investigation of complaints.


Sec. 1327.24  Disclosure/confidentiality.

    (a) In monitoring the Ombudsman Program, access to files, minus the 
identity of any complainant or resident of a long-term care facility, 
shall be available only to the director or one senior manager of the 
organization in which the Ombudsman Program is administratively 
located. The individual who performs this monitoring function must have 
no conflict of interest, as defined in section 712(f) of the Act and 
Sec. 1327.25. In the conduct of the monitoring of the Ombudsman 
Program, the confidentiality of complainants and residents of a long-
term care facility shall be protected, in accordance with Section 
712(d) of the Act. This rule applies to ombudsman files at the State 
and local levels.
    (b) The confidentiality provisions in Section 705(a)(6)(C) of the 
Act pertain to information provided to the agencies and programs 
specified in this section, including the Ombudsman Program. This 
provision does not require the Ombudsman Program to abridge the 
confidentiality requirements specified in Section 712(d) of the Act. 
Neither a State or Area agency nor any other State agency may require a 
representative of the State Long-Term Care Ombudsman Program to 
disclose the identity of a complainant or resident except under 
conditions outlined in Section 712(d).


Sec. 1327.25  Conflict of interest.

    (a) Designation of the Ombudsman and ombudsman entities and 
representatives. As stated in Section 712(f)(1) of the Act, any 
individual, or member of the immediate family of an individual involved 
in the designation, by appointment or otherwise, of the Ombudsman or 
ombudsman entities or representatives (and who correspondingly has the 
authority to remove the Ombudsman and ombudsman representatives from 
office), must be free of any conflict of interest. It would be a 
conflict of interest for an official or employee of any agency at 
either the State or local level, including State and area agencies on 
aging, which directly administers the licensing and certification of 
long-term care facilities, owns or operates such facilities, or 
provides long-term care services to designate or remove from office the 
Ombudsman or ombudsman representatives.
    (b) Oversight of Ombudsman contract. Where the State or area agency 
on aging contracts with another agency to operate the Ombudsman 
Program, the State or area agency staff person or persons who oversee 
the contract must not be involved in licensing, certifying or 
administering long-term care facilities or services.
    (c) Prohibitions on ombudsman assignments. (1) The State Ombudsman 
and ombudsman representatives may not work for or otherwise represent 
adult protective services programs or program units which develop and 
carry out care plans for; provide involuntary services to; are 
authorized to take temporary custody of; or serve as guardians, 
conservators or legal representatives for any clients.
    (2) The State Ombudsman and ombudsman representatives may not serve 
as a resident's agent, medical decision-maker or surrogate; the sole 
witness for Do Not Resuscitate (DNR) orders or other medical 
directives; or as a member of a facility's ethics committee which makes 
medical decisions for residents without the capacity to evidence their 
preference, although ombudsmen may serve on such committees in an 
advisory capacity.


Sec. 1327.26  Legal counsel.

    (a) The State agency shall develop and implement written policies 
and procedures which stipulate how the State will fulfill its 
obligation to:
    (1) Provide adequate legal counsel to the Ombudsman and ombudsman 
representatives to assist them in protecting the health, safety, 
welfare, and rights of residents and in the performance of their 
official duties; and
    (2) Provide legal representation to any representative of the 
Office against whom suit or other legal action is brought or threatened 
to be brought in connection with the performance of the official duties 
of the Ombudsman or such representative.
    (b) The policies and procedures required in paragraph (a) of this 
section shall be disseminated to all representatives of the Office and 
regularly included in training provided to ombudsman representatives.


Sec. 1327.27  Administration.

    (a) The Ombudsman and ombudsman representatives may serve disabled 
individuals under the age of 60 who are living in long-term care 
facilities, if such service does not weaken or decrease service to 
older individuals covered under the Act.
    (b) Coordination with State Adult Protective Services programs and 
Protection and Advocacy programs. The State Ombudsman shall establish 
written agreements with the State Adult Protective Services Program and 
the State Protection and Advocacy Program for individuals with 
developmental disabilities and mental illnesses. The agreements shall 
stipulate:
    (1) How the staff and financial resources of the various programs 
shall be utilized to meet needs of the vulnerable adults which the 
programs are responsible to serve;
    (2) The policies and procedures which the statewide Ombudsman 
Program and the other programs will follow regarding referral of 
requests for assistance and investigation of complaints involving:
    (i) Residents of long-term care facilities who have been or may 
have been abused or exploited; and
    (ii) Developmentally disabled and/or mentally ill individuals 
living in long-term care facilities or in need of long-term care 
services;
    (3) A protocol for reporting complaints involving alleged abuse and 
exploitation which ensures prompt response to those in need while 
protecting confidentiality, in accordance with statutory and regulatory 
requirements.
    (c) Coordination with State Licensing and Certification Agencies. 
The State Ombudsman shall establish written agreements with the State 
agencies responsible for licensing and/or certifying for participation 
in Titles XVIII and XIX of the Social Security Act long term care 
facilities covered by the statewide Ombudsman Program. The agreements 
shall include, but not be limited to, procedures for complaint 
investigation, verification and resolution by both agencies; 
transmittal of information about facilities; ombudsman participation in 
facility surveys and shared training of staff.


Sec. 1327.28  Liability.

    The State agency must ensure that no representative of the Office 
will be liable under State law for the good faith performance of 
official duties and shall indemnify and hold harmless any Ombudsman or 
ombudsman representative against whom suit or other legal action is 
brought or threatened to be brought in connection with the performance 
of the official duties of the Ombudsman or such representative. In no 
case may the State agency on aging require any substate agency or 
organization to fulfill this State agency responsibility.


Sec. 1327.29  Noninterference.

    (a) General principles governing noninterference. In the conduct of 
all aspects of the statewide Long Term Care Ombudsman Program, the 
integrity of the work of the Ombudsman and ombudsman representatives 
must be maintained; and there must be no inappropriate or improper 
influence from any individual or entity, regardless of the source, 
which will in any way compromise, decrease or negatively impact on:
    (1) The objectivity of the investigation or outcome of complaints;
    (2) The Ombudsman's primary role as advocate for the rights and 
interests of the resident;
    (3) The Ombudsman's work to resolve issues related to the rights, 
quality of care and quality of life of the residents of long-term care 
facilities; or
    (4) The Ombudsman's statutory responsibility to provide such 
information as the Office of the Ombudsman determines to be necessary 
to public and private agencies, legislators and other persons regarding 
the problems and concerns of residents and recommendations related to 
residents' problems and concerns.
    (b) Any interference with the work of the Ombudsman, as outlined in 
paragraph (a) of this section, by an individual who is an official or 
employee of the State agency on aging or of an organization or agency 
which operates the Ombudsman Program under grant or contract with the 
State agency shall be deemed to be a failure to comply with the State's 
duty under Section 705(a) of the Act to carry out the Ombudsman Program 
in accordance with the requirements of Chapters 1 and 2 of the Act.

Subpart D--Programs for Prevention of Elder Abuse, Neglect, and 
Exploitation


Sec. 1327.31  Elder Abuse, Neglect and Exploitation Prevention Section 
of Elder Rights Plan.

    In the Elder Rights plan required in Sec. 1327.11, States shall 
describe:
    (a) The specific roles of the various agencies in the development 
and implementation of the abuse, neglect and exploitation prevention 
part of the Title VII plan;
    (b) The process used to determine how the elder abuse prevention 
funds are to be spent and how this use complements, strengthens, or 
otherwise enhances the State's adult protective services activities; 
and
    (c) How activities conducted with elder abuse prevention funds will 
be regularly monitored and evaluated for their effectiveness in 
preventing, reducing or remedying elder abuse, neglect and 
exploitation.

Subpart E--State Elder Rights and Legal Assistance Development 
Program


Sec. 1327.41  Functions.

    The State shall provide, either directly or through contract, an 
individual who shall be known as the State Legal Assistance Developer 
to provide leadership in areas outlined in Section 731(b)(2) of the 
Act. This individual may not serve as house counsel to the State agency 
on aging or any other agency which employs the individual.

Subpart F--State Outreach, Counseling, and Assistance Program for 
Insurance and Public Benefits


Sec. 1327.51  Coordination.

    The State unit implementing outreach and counseling activities 
authorized under Chapter 5, Section 741 of the Act shall coordinate 
their efforts with the State unit which is the recipient of funds for 
health insurance information, counseling and assistance authorized 
under Section 4360 of the Omnibus Reconciliation Act of 1990 (42 U.S.C. 
1395 et seq.).
[FR Doc. 94-28163 Filed 11-14-94; 8:45 am]
BILLING CODE 4150-04-P