[Federal Register Volume 78, Number 117 (Tuesday, June 18, 2013)]
[Proposed Rules]
[Pages 36449-36469]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-14325]
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DEPARTMENT OF HEALTH AND HUMAN SERVICES
Administration on Aging
45 CFR Parts 1321 and 1327
RIN 0985-AA08
State Long-Term Care Ombudsman Program
AGENCY: Administration on Aging, Administration for Community Living,
HHS.
ACTION: Proposed rule.
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SUMMARY: The Administration on Aging (AoA) of the Administration for
Community Living (ACL) within the Department of Health and Human
Services (HHS) is issuing a Notice of Proposed Rulemaking, with request
for comments, to implement provisions of the Older Americans Act, the
State Long-Term Care Ombudsman program. This proposed rule replaces
AoA's 1994 Notice of Proposed Rulemaking.
Since 1992, the functions of this program have been delineated in
the Older Americans Act; however, regulations have not been promulgated
for any Title VII program. In the absence of regulatory guidance, there
has been significant variation in the interpretation and implementation
of these provisions among States. Recent inquiries from States and an
AoA compliance review in one State have highlighted the difficulty of
determining State compliance in carrying out the Long-Term Care
Ombudsman program functions. This rulemaking provides the first
regulatory guidance for States' Long-Term Care Ombudsman programs to
provide clarity about implementation.
HHS estimates that a number of states may need to update their
statutes, regulations, policies and/or practices in order to operate
the program consistent with federal law and this proposed regulation.
The effective date of the rule is anticipated to be one year after
publication of any final rule to allow States appropriate time for such
changes, if needed. AoA anticipates little or no financial impact on
the providers of long-term care ombudsman services, the consumers
served by the program, or long-term care providers through
implementation of the proposed rules.
AoA believes that consumers (particularly residents of long-term
care facilities) and long-term care providers will benefit from the
implementation of these proposed rules. Consumers and other
complainants across the country will receive services from the Long-
Term Care Ombudsman program with less variation in the quality,
efficiency, and consistency of service delivery.
Long-term care ombudsmen and States will also benefit from the
implementation of these proposed rules in the establishment and
operation of the Long-Term Care Ombudsman program at the State and
local levels. For years, States and long-term care ombudsmen at every
level have reported to AoA that they have found some provisions of the
Act confusing to implement. The proposed rule seeks to provide the
clarity that program stakeholders have requested.
DATES: To be assured consideration, comments must be received at one of
the addresses provided below, no later than 5 p.m. on August 19, 2013.
ADDRESSES: Because of staff and resource limitations, we cannot accept
comments by facsimile (FAX) transmission. You may submit comments in
one of four ways (please choose only one of the ways listed):
1. Electronically. You may submit electronic comments on this
regulation to http://www.regulations.gov. Follow the instructions under
the ``More Search Options'' tab.
2. By regular mail. You may mail written comments to the following
address: Administration for Community Living, Administration on Aging,
US Department of Health and Human Services, Attention: Becky Kurtz,
Washington, DC 20201.
Please allow sufficient time for mailed comments to be received
before the close of the comment period.
3. By express or overnight mail. You may send written comments to
the following address: Administration for Community Living,
Administration on Aging, US Department of Health and Human Services,
Attention: Becky Kurtz, 1 Massachusetts Avenue NW., 5th Floor,
Washington, DC 20001.
4. By hand or courier. If you prefer, you may deliver (by hand or
courier) your written comments before the close
[[Page 36450]]
of the comment period to: Administration for Community Living,
Administration on Aging, US Department of Health and Human Services,
Attention: Becky Kurtz, 1 Massachusetts Avenue NW., 5th Floor,
Washington, DC 20001.
If you intend to hand deliver your comments, please call telephone
number 202-401-4541 in advance to schedule your arrival with one of our
staff members. Comments mailed to the address indicated as appropriate
for hand or courier delivery may be delayed and received after the
comment period.
FOR FURTHER INFORMATION CONTACT: Becky Kurtz, Director, Office of Long-
Term Care Ombudsman Programs, Administration for Community Living,
Administration on Aging, 1 Massachusetts Avenue NW., Washington, DC
20001, 202-357-3586.
SUPPLEMENTARY INFORMATION: The preamble to this notice of proposed
rulemaking is organized as follows:
I. Program Background
A. AoA Authority
B. Requests for Regulatory Guidance
II. Proposed Changes to 42 CFR Part 1321 and Addition of New Part
1327
A. State Agency Policies
B. Definition of Immediate Family
C. Definition of Office of the State Long-Term Care Ombudsman
D. Definition of Representatives of the Office of the State
Long-Term Care Ombudsman
E. Establishment of the Office of the State Long-Term Care
Ombudsman
F. Functions and Responsibilities of the State Long-Term Care
Ombudsman
G. State Agency Responsibilities Related to the Long-Term Care
Ombudsman Program
H. Functions and Duties of the Office of the State Long-Term
Care Ombudsman
I. Conflicts of Interest
J. Additional Considerations
III. Required Regulatory Analyses Under Executive Orders 13563 and
12866
IV. Other Administrative Requirements
A. Paperwork Reduction Act of 1995
B. Executive Order 13132
C. Unfunded Mandates Reform Act of 1995
D. Assessment of Federal Regulations and Policies on Families
E. Plain Language in Government Writing
I. Program Background
State Long-Term Care Ombudsman programs (Ombudsman programs) serve
as advocates for residents of nursing homes, board and care homes,
assisted living facilities and similar adult care facilities. They work
to resolve problems of individual residents and to bring about
improvements to residents' care and quality of life at the local, state
and national levels.
Begun in 1972 as a demonstration program, Ombudsman programs today
exist in all States, the District of Columbia, Puerto Rico and Guam,
under the authorization of, and appropriations to implement, the Older
Americans Act (the Act). These States and territories have an Office of
the State Long-Term Care Ombudsman (the Office), headed by a full-time
State Long-Term Care Ombudsman (the Ombudsman). Nationally, in FY 2011
there were nearly 1,200 full-time equivalent staff ombudsmen; more than
9,000 certified volunteer ombudsmen, and more than 3,300 other
volunteers working with Ombudsman offices.
A. AoA Authority
This NPRM is proposed under the authority of sections 201(e),
307(a), 712 and 713 of the Older Americans Act (OAA or the Act) (42
U.S.C. 3011(e), 3027, 3058g, and 3058h, respectively). These provisions
authorize the Assistant Secretary for Aging to prescribe regulations
regarding coordination of elder justice activities, the development of
State plans on aging, and Long-Term Care Ombudsman programs.
B. Requests for Regulatory Guidance
In addition to its statutory authority, AoA received a 2011 inquiry
from the Senate Special Committee on Aging regarding regulations for
Ombudsman programs. AoA responded that regulations for the Older
Americans Act were last promulgated in 1988 and are found at 45 CFR
Parts 1321, 1326 and 1328. Part 1321 constitutes the regulations for
Title III of the Act, which at that time included the Long-Term Care
Ombudsman Program. In the 1992 reauthorization of the Older Americans
Act, Congress created Title VII, Allotments for Vulnerable Elder Rights
Protection Activities. While regulations for Title VII programs, which
includes the Long-Term Care Ombudsman program, were proposed and
published in the Federal Register by the Administration on Aging (AoA)
in 1994, final regulations were not adopted. AoA indicated its intent
to issue regulations for the Long-Term Care Ombudsman Program in order
to provide clear and consistent guidance.
In its evaluation of State Long-Term Care Ombudsman programs, the
Institute of Medicine identified the lack of Federal guidance as a
challenge for state implementation that contributed to an absence of
fully-implemented state programs. The Institute of Medicine recommended
that the Assistant Secretary for Aging ``issue clearly stated policy
and program guidance that sets forth the federal government's
expectations of state long-term care ombudsman programs. . . .'' \1\
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\1\ Institute of Medicine, ``Real People, Real Problems: An
Evaluation of the Long-Term Care Ombudsman Programs under the Older
Americans Act'' (1995) (IOM Report (1995)).
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In December, 2011, a stakeholder workgroup consisting of long-term
care, elder abuse and Ombudsman program experts; national association
representatives; and consumer advocates met to discuss issues impacting
Ombudsman programs and requested guidance from the Assistant Secretary
for Aging in areas related to:
1. The roles, responsibilities and relationship of the State agency
on aging and the Office of the State Long-Term Care Ombudsman;
2. Conflicts of interest between a State's Ombudsman program and
other programs or services (such as survey and certification) provided
by the agency in which Ombudsman program is located at the State or
local levels;
3. Conflicts of interest between the individual roles and
responsibilities of the Ombudsman (or representatives of the Office)
and other personal or professional interests (such as financial
interest in a long-term care facility);
4. Ability of the Office to provide public policy recommendations
as required by statute;
5. Ombudsman services to residents (including recommendations
related to Ombudsman records, resident records, and services to
individuals under age sixty); and
6. Training and certification/designation of representatives of the
Office.\2\
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\2\ ``Long-Term Care Ombudsman Strategy Session: Final Report,''
December 2011, National Ombudsman Resource Center. Available at:
http://www.ltcombudsman.org/sites/default/files/norc/ltcop-strategy-session.pdf.
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II. Proposed Changes to 45 CFR Part 1321 and Addition of New Part 1327
In its 1992 Older Americans Act reauthorization, Congress created
Title VII--Allotments for Vulnerable Elder Rights Protection
Activities, and incorporated the provisions related to the activities
of Long-Term Care Ombudsman programs into Title VII. Previously some of
these provisions had been within Title III. Therefore, the rule
governing Title III of the Act (i.e. 45 CFR 1321) and last updated in
1988, includes some minimal provisions which govern the Long-Term Care
Ombudsman Program. Since its creation in 1992, Title VII has included
the provisions related to Ombudsman program activities. These proposed
changes update 42 CFR part 1321 to reflect the most recent (2006)
reauthorization of the Act.
[[Page 36451]]
There has been significant variation in the interpretation and
implementation of the provisions of the Act among States. This has
resulted in residents of long-term care facilities receiving
inconsistent services from Ombudsman programs in some states compared
to other states. An example of this inconsistency in approach is the
way that various States respond to complaints to the Ombudsman program
that a facility has abused a resident:
In most States, the Ombudsman program is available to
assist and resolve the complaint to the satisfaction of the resident,
working with the resident to assure his or her well-being. In those
States, the Ombudsman program explains to the complainant that another
agency represents the State as the official finder of fact, but that
the Ombudsman serves as a victim advocate to support the resident
through the official investigation process and to assist the resident
in voicing and realizing his or her goals.
However, in some States, the same abuse complaint gets the
same response that the Ombudsman program is not the official finder of
fact for abuse complaints, and the complainant is immediately referred
to another State or local agency. However, in some cases, the resident
receives no additional assistance from the Ombudsman program related to
the abuse allegation.
In still other States, the Ombudsman program is designated
by the State as the official finder of fact to determine whether the
abuse is substantiated. It refers substantiated cases to law
enforcement, at times without (or even in violation of) the wishes of
the resident.
In still other States, the Ombudsman is designated by the
State as the official finder of fact, but in order to not violate the
wishes of the resident or the disclosure provisions of the Act, it does
not refer substantiated cases to law enforcement without resident
consent.
The Act requires that Ombudsman programs both assist
residents in protecting their health, safety, welfare and rights as
well as to provide the resident with the option to consent to
disclosure of information about his or her complaint. This proposed
rule is intended to provide the clarity and consistency needed to
ensure that residents receive needed protections, and, at the same
time, that resident choice is honored, regardless of the State in which
a resident lives.
Long-Term Care Ombudsman programs were designed by Congress to have
several features which are uncharacteristic of other programs created
by and funded under the Act. Among those features are independence (a
characteristic of any type of ombudsman program), unusually stringent
disclosure requirements, a public policy advocacy function, and the
Ombudsman responsibility to designate local staff and volunteers to
serve as representatives of the Office even if they do not report to
the Ombudsman for personnel management purposes. These distinct
features often create confusion in implementation which this rule is
designed to address.
Summary of the Provisions of the NPRM
The State Long-Term Care Ombudsman program was originally created
within Title III of the Older Americans Act, and there are regulations
affecting this program in Part 1321, Grants to State and Community
Programs on Aging. This rule proposes to amend the following section of
Part 1321:
Sec. 1321.11 State Agency Policies
In addition, the proposed rule develops new regulations for the
Ombudsman program where it currently resides in Subtitle A, Chapter 2,
of Title VII of the OAA, Allotments for Vulnerable Elder Rights
Protection Activities. AoA proposes a new Part 1327 in order to provide
States with clarity regarding the operation of the Ombudsman program.
Topics addressed in the newly proposed Part 1327 include
definitions of:
Immediate family,
Office of the State Long-Term Care Ombudsman, and
Representative of the Office of the State Long-Term Care
Ombudsman.
Other topics addressed in proposed Part 1327 include:
Establishment of the Office of the State Long-Term Care
Ombudsman,
Functions and Responsibilities of the State Long-Term Care
Ombudsman,
State Agency Responsibilities Related to the Long-Term
Care Ombudsman Program,
Functions and Duties of the Office of the State Long-Term
Care Ombudsman, and
Conflicts of Interest.
A. State Agency Policies
Currently, federal regulations require State agencies to monitor
the performance of programs and activities, including, but not limited
to, Long-Term Care Ombudsman programs.
With respect to disclosure of Ombudsman program files and records,
Section 712(d) of the Act requires that the State agency on aging (also
referred to as ``State unit on aging'' and, for purposes of these
regulations, ``State agency'') establish procedures for disclosure and
indicates that these procedures provide that the files and records
``may be disclosed only at the discretion of the Ombudsman (or the
person designated by the Ombudsman to disclose the files and
records).'' Further, they must prohibit disclosure of the identity of
any complainant or resident with the limited exceptions set forth in
the Act. See Section 712(d)(2)(B) of the Act. AoA proposes revising
section 1321.11 to reflect this provision of the Act.
AoA proposes revising the current regulation with respect to State
agency access to the files, records and other information maintained by
the Ombudsman program in order to accommodate the increased use of
digital information and incorporate information obtained verbally and
by other means while maintaining protections for residents. AoA
proposes use of the term ``files, records, and other information'' in
these regulations rather than ``files'' as used in the current
regulation. The term ``files, records, and other information'' more
clearly indicates that the disclosure provision of Section 712(d) of
the Act is not dependent on any particular format of the files and not
limited to information contained in case files. For example,
information collected during individual consultation activities which
are not part of case files also would be subject to this provision.
AoA proposes replacing the following provisions in the current
regulation at 45 CFR 1321.11(b) with the following provision:
``The State Long-Term Care Ombudsman and his or her designee shall
be responsible for monitoring the files, records, and other information
maintained by the Office, and shall not disclose the identity of any
complainant or long-term care facility resident to individuals outside
of the Office, except as otherwise specifically provided in section
712(d)(2)(B) of the Act.''
This proposal more closely reflects the provisions of the Act.
However, we are aware that State agencies need certain information from
the Ombudsman program in order to fulfill their responsibilities
related to oversight of Ombudsman program operations and personnel and/
or contract management. Aggregate data on Ombudsman program activities
and complaint processing may be sufficient for this purpose and do not
reveal the identities of any complainants or residents. We invite
comments for the final rule that will help us identify an appropriate
balance
[[Page 36452]]
between Ombudsman protection of confidential information and State
oversight responsibilities.
In addition, AoA proposes to omit from 45 CFR 1321.11, the
reference to Section 307(a)(12). The provision numbers have changed in
subsequent reauthorizations of the Act, and this statutory reference is
no longer necessary within the context of the proposed revision.
B. Definition of Immediate Family
The term ``immediate family'' is used repeatedly in Section 712(f)
of the Act but is not defined in the statute. Absent a definition, this
term has created uncertainty and inconsistency among States related to
the scope of conflicts that are required to be identified and removed
under Section 712(f)(4) of the Act.
AoA proposes to describe relationships that could impair the
judgment or give the appearance of bias on the part of an individual
who is responsible to objectively designate an individual as the
Ombudsman (under Section 712(f)(1) of the Act) or on the part of the
Ombudsman or officers, employees or representatives of the Office
(under section 712(f)(2) of the Act). Therefore, AoA proposes the
definition of ``Immediate family'' pertaining to conflicts of interest
as used in section 712 of the Act, means a member of the household or a
relative with whom there is a close personal or significant financial
relationship.
The proposed regulation is adapted from the federal standards of
ethical conduct which prohibit federal executive branch employees from
participating in a matter where the circumstances would raise a
question regarding the employee's impartiality. Federal regulations
indicate that it would be difficult for a federal employee to be
impartial regarding ``a person who is a member of the employee's
household or who is a relative with whom the employee has a close
personal relationship'' or where the matter is likely to have a
``direct and predictable effect on the financial interest of a member
of his household.'' 5 CFR Section 2635.502(a),(b).
C. Definition of Office of the State Long-Term Care Ombudsman
The Older Americans Act requires that State Offices of the State
Long-Term Care Ombudsman make certain determinations. These Offices and
their responsibilities are referenced in Section 712, as well as in
Sections 207(b)(3)(E) and 307(a)(9), of the Act. Section 711(1) of the
Act defines ``Office'' as ``the office established in section
712(a)(1)(A). There is a need for further clarification of the scope of
the definition of ``Office of the State Long-Term Care Ombudsman'' due
to inconsistencies among States and confusion regarding the
interpretation of which individual or individuals constitute the
``Office.'' For example, States would benefit from clarification
regarding who is responsible for making determinations specifically
required of the Office by the Act.
With respect to several functions, the statute indicates that
determinations must be made by the Office. Interference with these
determinations could constitute interference with the Office, which is
prohibited under Section 712(j) of the Act.
States have repeatedly requested that AoA provide clarification on
the question of which individual or individuals constitute the
``Office.'' Some States have interpreted the ``Office'' to mean the
Ombudsman and representatives of the Office; others have interpreted
``Office'' to mean the State agency on aging.
A 2011 State compliance review revealed that AoA's provision of
technical assistance and education on this question may not have
provided sufficient clarity to States regarding the decision-making
authority expected of the Office of the State Long-Term Care Ombudsman,
and more specifically of the State Long-Term Care Ombudsman, as the
head of that Office. Thus, this proposed rule clarifies and codifies
the definition.
Section 712(a)(2) of the Act states that the Office of the State
Long-Term Care Ombudsman shall be ``headed by an individual, to be
known as the State Long-Term Care Ombudsman.'' In addition, under
Section 712(a)(5) of the Act, the State Long-Term Care Ombudsman has
the authority to designate local Ombudsman entities and employees and/
or volunteers to represent these entities. The proposed definition
seeks to clarify for States that the State Long-Term Care Ombudsman and
his or her representatives shall constitute the ``Office.'' Therefore,
AoA proposes the definition of ``Office of the State Long-Term Care
Ombudsman'' as set forth at section 1327.1, which includes the
organizational unit headed by the State Long-Term Care Ombudsman,
including representatives of the Office.
D. Definition of Representatives of the Office of the State Long-Term
Care Ombudsman
The term ``representatives of the Office of the State Long-Term
Care Ombudsman'' is used throughout Section 712 of the Act. For
purposes of Subtitle A, Chapter 2, of Title VII, Section 711(5) of the
Act. The term `representative' includes an employee or volunteer who
represents an entity designated under section 712(a)(5)(A) and who is
individually designated by the Ombudsman.
Section 712(a)(5)(A) of the Act further indicates that the
Ombudsman ``may designate an employee or volunteer to represent the
[local Ombudsman] entity.'' These provisions of the Act have created
confusion in States' operation of the Ombudsman Program because it is
unclear whether the ``representatives of the Office'' are to represent
the Office of the State Long-Term Care Ombudsman or to represent the
local Ombudsman entity or both.
AoA intends to clarify that the representatives of the Office,
including local staff and volunteers designated by the Ombudsman,
indeed represent the Office (as opposed to the entity by which they may
be employed or managed) when they are carrying out duties of the
Office. These duties of the representatives of the Office are set forth
in Section 712(a)(5)(B) of the statute. For convenience, ACL has
included this statutory definition of duties at section 1327.17(a) of
the proposed rule. The inclusion of these duties into the proposed rule
does not and is not intended to amend the statutory language.
The practical implication of this clarification is that the
``representatives of the Office'' are accountable to the head of the
Office, which is the State Long-Term Care Ombudsman under Section
712(a)(2) of the Act, for purposes of Ombudsman program operations. For
all programmatic operations, the representative represents the Office
(for example, they must follow the policies, procedures and guidance of
the Ombudsman regarding complaint processing and other Ombudsman
program activities). Simultaneously, representatives represent the
entity (i.e. the ``local Ombudsman entity'') that employs or oversees
them for personnel management matters (for example, they must follow
the entity's personnel policies so long as those policies do not
conflict with Ombudsman program law and policy).
Therefore, AoA proposes the definition of ``Representatives of the
Office of the State Long-Term Care Ombudsman'' set forth at section
1327.1 to clarify that designated employees and volunteers serve as
representatives of the Office.
[[Page 36453]]
E. Establishment of the Office of the State Long-Term Care Ombudsman
Proposed section 1327.11 governs the establishment of the Office
pursuant to Section 712(a)(1) of the Act and as defined in proposed
regulation 1327.1. See section ``D, Definition of Office of the State
Long-Term Care Ombudsman,'' above.
The Act requires that certain determinations be made by the Office.
As proposed in section 1327.11(c)(4), AoA clarifies which
determinations are the responsibilities of the Office, and by logical
extension, by the head of the Office, the Ombudsman, pursuant to
Section 712(h) of the Act. Because these determinations are frequently
outside the scope of the authority of most State employees (most,
though not all, State Ombudsmen are State employees), clarification
would assist States in full implementation of the Act.
Specifically, these determinations include:
Determinations regarding disclosure of information
maintained by the program within the limitations as set forth in
Section 712(d) of the Act;
Recommendations to changes in Federal, State and local
laws, regulations, policies and actions pertaining to the health,
safety, welfare, and rights of residents as set forth in Section
712(h)(2) of the Act; and
Provision of information to public and private agencies,
legislators, and other persons, regarding the problems and concerns of
residents and recommendations related to the problems and concerns as
set forth in Section 712(h)(3) of the Act.
The Act indicates that the recommendations made by and the
information provided by the Office are limited to issues impacting
residents of long-term care facilities and services. See, e.g.,
712(a)(3)(G), 712(h)(2). In order to reduce confusion at the State
level where the recommendations of an Ombudsman might be mistaken for
the position of the Governor or the State agency, another agency
carrying out the Ombudsman program, or any other State agency, AoA
proposes the provision in section 1327.11(c)(4) to indicate
determinations are those of the Office of the State Long-Term Care
Ombudsman and do not represent other state governmental entities.
F. Functions and Responsibilities of the State Long-Term Care Ombudsman
AoA proposes clarification regarding the appropriate role and
responsibilities of the Ombudsman, as the ``head of the Office.'' The
functions of the Ombudsman are set forth in Section 712(a)(3) of the
statute. For convenience, ACL has included this statutory text at
section 1327.13(a) of the proposed rule. The inclusion of these
functions into the proposed rule does not and is not intended to amend
the statutory language.
AoA has indicated in a letter to a State that the State Unit on
Aging (SUA) and the Office of the State Long-Term Care Ombudsman are
distinct entities within the OAA. Section 305(a) of the OAA, requires
the State to designate a single State agency to carry out the
requirements of the Act. Whether the Long-Term Care Ombudsman is placed
within the single State agency, or by contract with an entity outside
the State agency, the OAA is explicit that the Long-Term Care Ombudsman
is to be established in, and is to carry out his or her functions in, a
separate `Office.' 42 U.S.C. 3058f(1); 3058g(a)(1)(A).
Ombudsman Responsibility With Respect to Designation and De-designation
of Representatives
Some States have indicated the need for more clarification about
who has authority to de-designate ombudsman employees and volunteers so
that a formerly designated individual is no longer authorized to act as
a representative of the Office. Other States have established policies
and procedures to clarify that the Ombudsman has the sole authority to
designate and, consistent with that authority, also the sole authority
to de-designate representatives of the Office.
Since the Ombudsman is the individual solely authorized to
designate representatives pursuant to Section 712(a)(5) of the Act, the
Ombudsman has sole authorization to de-designate representatives of the
Office. Without such authority, the Ombudsman would have significant
limitations in his or her ability to determine the individuals
qualified to represent the Office and to remove such designation where
a representative fails to adhere to program requirements. In order to
respond to this inconsistency among States in the understanding of the
authority of the Ombudsman to de-designate, AoA proposes to clarify
that the Ombudsman has the sole authority both to designate and de-
designate in section 1327.13(c). This provision is not intended to
limit the authority of the Ombudsman to delegate certification training
and examination processes or to receive recommendations of designation
or de-designation from representatives of the Office, but clarifies
that the Ombudsman is responsible to make the final determination of
designation and de-designation of representatives of the Office.
Ombudsman Responsibility With Respect to Area Plans
Although the Ombudsman has statutory authority to designate local
Ombudsman entities, the involvement of the Ombudsman in the planning of
Ombudsman program operations by such local Ombudsman entities is not
directly addressed in the Act. In many States, local Ombudsman entities
include area agencies on aging (AAAs) and/or AAAs subcontract to non-
profit agencies to serve as local Ombudsman entities. In these States,
area plans include fiscal and programmatic provisions related to the
operation of the Ombudsman program by the local Ombudsman entity. Those
individuals working for the local Ombudsman entity and designated by
the Ombudsman serve as representatives of the Ombudsman and, therefore,
are within the definition of the ``Office'' as set forth in section
1327.1. AoA proposes that the Ombudsman, as head of the Office, be held
responsible to review and approve the portions of area plans, submitted
pursuant to section 306 of the Act, which are related to the Ombudsman
program so that the work of Office is coordinated by--and the local
Ombudsman entities are held accountable to--the Ombudsman. In addition,
given the State agency role in reviewing and approving area plans
pursuant to section 306 of the Act, the Ombudsman should conduct such
review and approval in coordination with the State agency. These
requirements are set forth at section 1327.13(d).
Ombudsman Responsibility With Respect to Ombudsman Program Information
Section 712(d)(2)(A) of the Act indicates that ``files and records
[maintained by the Ombudsman program] may be disclosed only at the
discretion of the Ombudsman (or the person designated by the Ombudsman
to disclose the files and records).''
Many of the files, records, and other information maintained by the
representatives of the Office are physically maintained at the offices
of the designated local Ombudsman entities (including, but not limited
to, AAAs). This can create confusion about who has the authority to
make determinations about the disclosure and maintenance of the files,
records, and other information of the Office even though the Act
clearly gives the sole discretion for their disclosure to the Ombudsman
or his or her designee.
[[Page 36454]]
Therefore, AoA proposes to clarify that the files, records, and other
information of the Office shall be controlled by the Ombudsman and are
the property of the Office, including when such files, records, and
other information are maintained by a local Ombudsman entity or
representatives of the Office.
AoA uses the term ``files, records, and other information'' to
indicate that the disclosure provision of Section 712(d) of the Act
should not be dependent upon any particular format of the files. In
addition, because the Act does not limit the disclosure of files,
records and other information to paper copies--and since electronic
recordkeeping is increasingly the norm--AoA proposes that the
requirements related to files, records and other information apply to
physical, electronic, or other formats.
AoA proposes the provision regarding the responsibility of the
Ombudsman to manage Ombudsman program information at section
1327.13(e).
Ombudsman Responsibility With Respect to Disclosure of Files, Records
and Other Information
AoA proposes, at section 1327.13(f), to include within the
responsibility of the Ombudsman, decisions related to disclosure of
information in the possession of the Office in addition to information
contained within case files (for example, information obtained during
consultations with individuals or facilities). See also section ``A.
State Agency Policies,'' above, and section ``H. State Agency
Responsibilities Related to the Long-Term Care Ombudsman Program,''
below.
Ombudsman Responsibility With Respect to Determining the Use of the
Fiscal Resources
In its evaluation of Long-Term Care Ombudsman programs, the
Institute of Medicine recommended to the Assistant Secretary for Aging:
``6.4 The committee recommends that the Assistant Secretary for
Aging issue program guidance to states that stresses the importance of
delegating to the Office of the State Long-Term Care Ombudsman
responsibility for managing all of the human and fiscal resources
earmarked for the state ombudsman program within the boundaries of what
is permitted by state budget policy and procedures and required by
federal mandates for compliance. . . .'' \3\.
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\3\ IOM Report (1995) at pp. 199-200.
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AoA agrees with the recommendation that the head of the Office
should be responsible for managing the fiscal resources of the Office.
AoA proposes that the Ombudsman be held responsible for determining the
use of fiscal resources appropriated or otherwise designated for the
Office, subject to applicable Federal and State laws and policies, as
set forth at section 1327.13(i).
Ombudsman Responsibility With Respect To Monitoring Local Ombudsman
Entities
The Ombudsman, as head of the Office, has responsibility for
designating local Ombudsman entities pursuant to section 712(a)(5) of
the Act. So that the work of Office is coordinated by and the local
Ombudsman entities are accountable to the Ombudsman, AoA proposes that,
where an Ombudsman designates local Ombudsman entities, the Ombudsman
be held responsible to monitor the Ombudsman program performance of
such entities as set forth in section 1327.13(j).
Ombudsman Responsibility With Respect To Coordination of Ombudsman
Activities With Other Elder Rights, Disability Rights, and Elder
Justice Entities
The Act requires that the State agency require the Office to
coordinate with protection and advocacy systems, legal assistance,
State and local law enforcement agencies, and courts of competent
jurisdiction. Section 712(h)(6)-(8) of the Act. In another part of the
Act, the Ombudsman program is listed among the programs and services
which protect elder rights or promote elder justice and for which
coordination of efforts is required by the Act. See Section 721(d) of
the Act.
In section 1327.13(l), AoA proposes a list of the relevant entities
covered by the Act, including AAA programs, adult protective services
programs, protection and advocacy systems, facility and long-term care
provider licensure and certification programs, State Medicaid fraud
control units, etc. The proposal also establishes the statewide
leadership role of the Ombudsman in coordinating the activities of the
Office with those of these elder rights and elder justice programs.
G. State Agency Responsibilities Related to the Long-Term Care
Ombudsman Program
The proposed rule defines the appropriate role and responsibilities
of the State agency on aging (also referred to as ``State unit on
aging'' or, for purposes of these regulations, ``State agency'')
related to the establishment and operation of the Ombudsman program. A
primary responsibility of the State agency related to the operation of
the Ombudsman program is to establish the policies and procedures which
enable the Ombudsman program to operate in accordance with the Act. The
Act requires that the State agency establish, in accordance with the
Office, policies and procedures regarding how the Office will fulfill
its functions. Section 712(a)(5)(D). AoA proposes consolidating the
State agency responsibilities related to the Ombudsman that are
included in the Act into section 1327.15.
State Agency Responsibility With Respect to Standards for Complaint
Response
In its 1999 report, the HHS Inspector General recommended that AoA
work with States to develop guidelines for complaint response and
resolution times. . . .'' While numerous States have developed such
standards, others have not yet done so. Through section
1327.15(a)(2)(B), AoA proposes that States develop standards related to
complaint response times and further requires standards to assure
prompt response that prioritize abuse, gross neglect, exploitation and
time-sensitive complaints. AoA believes that States are best suited to
establish these standards due to the wide variation among States in
terms of resources available to the Ombudsman program, density of
population centers, geographic distribution of facilities, and similar
State-specific factors which would make a national standard difficult
to implement.
State Agency Responsibility With Respect to Disclosure of Resident or
Complainant Identifying Information
Under Section 712(d) of the Act, States must ensure that the
Ombudsman and representatives of the Office are prohibited from
disclosing the identity of any complainant or resident, except as
specifically authorized in the statute.
This requirement also applies to situations of reporting abuse,
gross neglect or exploitation notwithstanding State laws to the
contrary. This is consistent with AoA's long-standing position.
The Older Americans Act [Section 712(d)(2)] prohibits disclosure of
the identity of any complainant or resident by the ombudsman, unless
the complainant or resident, or the resident's legal representative,
consents, or a court orders the disclosure. In contrast to, and
sometimes in conflict with, the Federal law, a number of States have
mandatory reporting requirements for individuals--including
ombudsmen--who know of or suspect adult abuse, neglect, or
exploitation.
AoA proposes that the disclosure procedures must comply with the
[[Page 36455]]
``Complaint Processing'' provisions of the proposed regulations,
section 1327.17(b), in which AoA clarifies exceptions (specifically
related to suspected abuse, gross neglect and exploitation complaints),
when disclosure of the identity of a resident by the Ombudsman may be
permitted to appropriate entities. These include circumstances when the
Ombudsman or representative of the Office is processing a complaint
related to the resident, and:
(a) The resident is unable to communicate informed consent to the
Ombudsman or representative of the Office, has no guardian or other
legal representative, and the Ombudsman or representative of the Office
has reason to suspect that the resident is a victim of abuse, gross
neglect, or exploitation; or
(b) The resident is unable to communicate informed consent to the
Ombudsman or representative of the Office, and the resident has a
guardian or other legal representative who the Ombudsman or
representative of the Office has reasonable cause to believe is a
perpetrator of abuse, gross neglect, or exploitation of the resident.
In addition, AoA proposes that the Ombudsman must disclose the
identity of a resident where the Ombudsman or representative of the
Office personally witnesses suspected abuse, gross neglect or
exploitation of a resident, so long as (1) the resident at issue does
not request the Ombudsman or representative to not make a report of the
suspected activity witnessed by the Ombudsman or representative and (2)
the Ombudsman determines it to be in the best interest of the resident.
In both of these circumstances, the proposed rule requires that
such disclosure only be permitted where the Ombudsman or representative
of the Office has reasonable cause to believe that it is in the best
interest of the resident to make a referral and the representative
obtains the approval of the Ombudsman.
AoA intends the proposed regulations to address areas where
clarification is needed regarding access to files, records, and other
information maintained by the Office. First, this provision addresses
questions regarding whether State units on aging, area agencies on
aging or any other entities with monitoring responsibility have access
to Ombudsman information. See also section ``A. State Agency
Policies,'' above. Note that this proposed regulation does not limit
the disclosure of aggregate information, performance measures, and
similar performance data to monitoring agencies. Instead, it implements
the statutory provision that the Ombudsman is prohibited from
disclosing the identities of residents or complainants without
obtaining appropriate consent or unless required by court order,
pursuant to Section 712(d) of the Act.
Second, the proposed regulation clarifies that the requirements
related to files, records and information apply regardless of funding
source, including funds from Title VII, Chapter 3, of the Act. The
provision in Chapter 3 of the Act which has created confusion on this
issue states:
[A]ll information gathered in the course of receiving reports and
making referrals shall remain confidential except. . . (ii) if the
release of such information is to a law enforcement agency, public
protective service agency, licensing or certification agency,
ombudsman program, or protection or advocacy system. . . .
Section 705(a)(6)(C) of the Act.
While Title VII of the Act does provide for an exception which
permits the release of otherwise confidential information with respect
to the programs funded through Chapter 3, Chapter 2 (the chapter
related to the Ombudsman Program) contains no similar exception for the
release of confidential information to law enforcement and similar
agencies absent appropriate consent or a court order. See Section 712
(d)(2) of the Act.
AoA proposes use of the term ``files, records, and other
information'' in these regulations rather than ``files and records'' as
used in Section 712(d) of the Act. See section ``G, Functions and
Responsibilities of the State Long-Term Care Ombudsman,'' above. The
proposed rule clarifies that the State, in providing for Ombudsman
program procedures for appropriate disclosure, shall develop procedures
related to at least the following types of files, records, and
information (each of which is specifically referenced within Section
712 of the Act): medical and social records of residents;
administrative records, policies, and documents of long-term care
facilities; licensing and certification records maintained by the State
with respect to long-term care facilities; and data collected in the
statewide uniform reporting system of the Ombudsman program.
This proposed regulation uses the term ``communication of informed
consent'' to describe the manner in which Ombudsmen and representatives
of the Office obtain consent from residents (or complainants or legal
representatives, where applicable) for purposes of disclosure. The Act
prohibits disclosure of the identity of any complainant or resident
without appropriate ``consent.'' Section 712(d)(2)(B) of the Act. Since
the Ombudsman and representatives of the Office provide an advocacy
service, but do not perform clinical assessments or make legal
determinations related to ability to consent, the Ombudsman or
representatives of the Office must rely on the ability of the
individual to communicate consent (whether verbally or written,
including through the use of assistive technology). In addition, the
Ombudsman and representatives of the Office will want to be assured
that the resident (or complainant or legal representative) appears to
understand that to which he or she is consenting. Therefore, the
proposed rule requires the State agency to maintain the confidentiality
and protection of identifying information of residents or complainants
and only allow disclosure consistent with the proposed rule.
State Agency Responsibility With Respect to State Lobbying Prohibitions
To be eligible for Older Americans Act funding, the State agency
must require that the Office perform certain activities, set forth in
section 1327.15(h). These activities are identified in statute and
required of entities receiving federal funding under the OAA. They
include recommending changes in laws, regulations and policy and
providing information to public and private agencies and legislators as
the Office determines to be appropriate. These provisions must be
carried out notwithstanding any State laws or regulations, such as
restrictions on lobbying, which may be in conflict with such
provisions. Section 1327.15(a)(2)(E) establishes the State agency's
responsibilities with respect to excluding the Ombudsman and
representatives of the Ombudsman Office from state lobbying
prohibitions.
State Agency Not Prohibited From Consulting on Ombudsman Determinations
Questions have arisen from States regarding whether it is
permissible for a State agency to require consultation regarding the
determinations of the Office. AoA has long maintained that
consultation, so long as it does not interfere with the functions of
the Office, is not prohibited and has provided such guidance to States.
The OAA does not prohibit States from seeking comments or in-put,
including from the State Unit on Aging, provided that in the end the
Ombudsman retains the absolute right to decide what finally should be
presented by the Office. Such cooperation ensures that the SUA and the
Ombudsman's office would not needlessly duplicate their efforts. The
[[Page 36456]]
SUA may also have valuable information as well as recommendations to
contribute which the Ombudsman might decide to accept. Even where the
SUA and Ombudsman's Office ultimately disagree, such advance notice and
consultation permit both entities to coordinate their reports to the
State legislature, thereby furthering a truly informed debate to the
benefit of the legislature and other policy makers.
The Act places the Ombudsman in a unique position within States. To
eliminate confusion, the proposed rule seeks to clarify that States may
appropriately coordinate with Ombudsman programs while, at the same
time, the rule reaffirms that the Office makes independent
determinations. Therefore, AoA proposes the provision clarifying that
the State agency is not prohibited from consulting on Ombudsman
determinations at section 1327.15(a)(2)(E)(ii). The proposed rule
further indicates that policies which promote consultation may not
limit the ability of the Office to fulfill its functions and duties.
Therefore, in circumstances in which advanced communication is
impractical or would interfere with the independent determination of
the Ombudsman, a State policy could not require advanced communication
of the determinations of the Office.
State Agency Responsibility To Provide Ombudsman Access to Training
In response to questions from States regarding appropriate uses of
Title III-B and Title VII, Subtitle A, Chapter 2 funds, AoA proposes to
clarify that a State agency may appropriately utilize, these funds to
meet the State agency responsibility with respect to the training needs
of the Ombudsman. In addition, Section 301(c) of the Act requires the
Assistant Secretary for Aging (ASA) to provide training and technical
assistance to State Ombudsman programs. In some cases, Ombudsmen are
prevented from attending training provided by the AoA-funded National
Ombudsman Resource Center because of limits on State administrative
funds. Representatives of the Office may have difficulty accessing
other necessary training to perform their duties without access to
these resources.
AoA has previously issued guidance saying that States may use Title
III, Part B funds to fund any aspect of the statewide Ombudsman
Program, as the program is defined in Section 712 of the Act. It has
also said that States may not include any Title VII funding in their
calculation of funds available for State plan administration. The
programs under Title VII, unlike most of the programs under Title III,
are established and operated as direct advocacy services by the State
Agency on Aging and/or agencies with which the State Agency contracts
or provides grants to operate the programs.\4\
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\4\ AoA Program Issuance 94-02; see also AoA Fiscal Guide, Older
Americans Act, Titles III and VII (May 2004).
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Since the Title III-B and Title VII funds used for the Ombudsman
program are considered service dollars, States may use these funds to
carry out Ombudsman services. Adequate training in order to provide
this service is a reasonable cost of providing the service. Through
this proposed rule, AoA clarifies for States that Title III-B and/or
Title VII-2 (i.e. Ombudsman service) funds may be used for the purposes
of the Ombudsman and representatives of the Office accessing and/or
providing service-related training and, in fact, may be used in lieu of
``administrative funds'' provided to States under Title III-A.
Therefore, AoA proposes the provision regarding responsibility of the
State agency to provide Ombudsman and representatives of the Office
access to training at section 1327.15(a)(3).
State Agency Responsibilities With Respect to Personnel Management and
Program Monitoring
Where the Ombudsman and any representatives of the Office are
employed by the State agency, AoA expects the State agency, as the
employer, to provide supervision and management of Ombudsman program
personnel, while respecting the limits on access to resident or
complainant-identifying information, as included in the proposed rule.
In addition, State agencies have a responsibility to establish policies
for monitoring the performance of all programs and activities initiated
under the Act for quality and effectiveness. Therefore, where the
Office is outside of the State agency, the State agency has a
responsibility to monitor the contract or other arrangement through
which the Ombudsman program is carried out, while respecting the limits
on access to information, as included in the proposed rule.
In both its personnel management and program monitoring
responsibilities, the State is subject to limits on its access to the
files, records and other information of the Ombudsman program. While
the State agency may review aggregate data and analyze reports of
Ombudsman program performance, it may not have access to information
that is prohibited to be shared outside of the Ombudsman program by the
Act. The proposed regulation clarifies the State agency responsibility
regarding personnel supervision and management and regarding program
monitoring, including with respect to prohibitions related to
disclosure of files and records in Section 712(d) in the Act. See also
sections ``A. State Agency Policies,'' and ``G. Functions and
Responsibilities of the State Long-Term Care Ombudsman,'' above.
Therefore, AoA proposes the provision regarding the responsibilities of
the State agency with respect to personnel management and program
monitoring at section 1327.15(a)(4),(5).
State Agency Responsibility With Respect to Coordinating Elder Rights,
Disability Rights, and Elder Justice Programs
The Act requires the Assistant Secretary to ``provide Federal
leadership to support State efforts in carrying out elder justice
program and activities.'' Section 201(e)(2)(A)(ii) of the Act. This
duty includes ``promoting collaborative efforts and diminishing
duplicative efforts in the development and carrying out of elder
justice programs at the Federal, State and local levels.'' Section
201(e)(2)(A)(ix) of the Act. In addition, the Act requires State
agencies to ``coordinate the programs [to address elder abuse, neglect
and exploitation] with other State and local program and services for
the protection of vulnerable adults. . . .'' Section 721(d) of the Act.
Among the programs specifically listed for coordination, are State
Long-Term Care Ombudsman programs. Section 721(d)(3) of the Act.
The proposed rule emphasizes the importance of States' coordinating
role being integrated into the State plan process. It also requires
coordination of Title VII program activities to promote State-level
alignment with the duties of the Assistant Secretary as set forth in
Section 201(e)(2) of the Act. Therefore, AoA proposes the provision
regarding responsibility of the State agency to coordinate elder
rights, disability rights, and elder justice programs at section
1327.15(a)(6)-(7).
State Agency Responsibility With Respect to Non-Interference
States are required by the Act to ensure that willful interference
with representatives of the Office in the performance of their official
duties shall be unlawful. Section 712(j)(1) of the Act. These duties
are set forth in section 1327.17(a). Proposed section 1327.15(a)(8)
clarifies that interference is not limited to interference by
facilities or other third parties, but that State agencies on aging and
local
[[Page 36457]]
Ombudsman entities are also subject to the prohibition on interference.
In fulfilling their statutory duty to protect the Ombudsman program
from interference, State agencies may not themselves interfere with the
Ombudsman program's ability to perform its official duties.
State Agency Responsibility With Respect to Access to Records
The Act requires that the State agency ensure that representatives
of the Office have access to facilities, residents, and resident
records pursuant to Section 712(b) of the Act. With respect to access
to resident records, the Act states:
The State shall ensure that representatives of the Office shall
have * * *
(i) appropriate access to review the medical and social records of
a resident, if--
(I) The representative has the permission of the resident, or the
legal representative of the resident; or
(II) the resident is unable to consent to the review and has no
legal representative; or
(ii) Access to the records as is necessary to investigate a
complaint if--
(I) A legal guardian of the resident refuses to give the
permission;
(II) A representative of the Office has reasonable cause to believe
that the guardian is not acting in the best interests of the resident;
and
(III) The representative obtains the approval of the Ombudsman. * *
*
Section 712(b)(1)(B) of the Act.
AoA has received reports of long-term care facilities, state
government agencies, and other entities denying Ombudsmen or
representatives of the Office access to resident records due to
concerns that the Health Insurance Portability and Accountability Act
of 1996 (HIPAA) Privacy Rule does not permit the disclosure. AoA has
previously provided program guidance to States that the HIPAA Privacy
Rule, 45 CFR Part 160 and Subparts A and E of Part 164, does not
preclude release of residents' medical and social records to the
Office. AoA Information Memorandum 03-01, February 4, 2003 (available
at http://www.aoa.gov/AOARoot/AoA_Programs/OAA/Aging_Network/im/docs/Info_Memoradum_%20HIPAA.pdf). Proposed section 1327.15(b)(1)
clarifies that the State agency has a responsibility to establish
policies and procedures consistent with this HIPAA guidance in order to
provide representatives of the Office with appropriate access to
resident records.
State Agency Requirements of the Office
The Act sets forth specified activities that States must require of
the Office in the administration of the Ombudsman program. Section
712(h) of the Act. For convenience, ACL has included this statutory
text at section 1327.15(c) of the proposed rule. The inclusion of these
requirements into the proposed rule does not and is not intended to
amend the statutory language.
H. Functions and Duties of the Office of the State Long-Term Care
Ombudsman
Section 1327.17 includes provisions related to both the functions
that may be performed by the State Long-Term Care Ombudsman (the
``Ombudsman'') and/or the duties which may be performed by the
representatives of the Office, as opposed to solely by the Ombudsman.
(The functions which are the sole responsibility of the Ombudsman are
found under section ``G, Functions and Responsibilities of the State
Long-Term Care Ombudsman,'' above.)
Proposed section 1327.17(a) sets forth the duties of the
representatives of the Office as set forth in Section 712(a)(5)(B) of
the statute. For convenience, ACL included this statutory text at
section 1327.17(a) of the proposed rule. The inclusion of these duties
into the proposed rule does not and is not intended to amend the
statutory language. The complete list of functions statutorily required
of the Ombudsman is found above at section 1327.13(a).
For convenience, AoA proposes compiling regulations which relate to
both the functions of Ombudsman and the duties of the Office (i.e.
those which may be performed by either the Ombudsman and/or the
representatives of the Office) into this section.
Complaint Processing
The requirement to ``identify, investigate, and resolve complaints
made by or on behalf of residents'' is a required function of the
Ombudsman under Section 712(a)(3)(A) of the Act and a required duty of
representatives of the Office under Section 712(a)(5)(B)(iii) of the
Act. While facilities, family members, agencies, or other individuals
may indirectly benefit from the complaint resolution work of the
Office, complaint processing by the Office must focus on seeking an
outcome that satisfies the resident. Therefore, section 1327.17(b)(1)
of the proposed rule defines the resident as the primary recipient of
Ombudsman program services and sets forth the purposes of the Ombudsman
program complaint process as follows:
(1) Resolving the complaint to the resident's satisfaction, and
(2) assisting residents in protecting their health, safety,
welfare, and rights.
The Act provides that the resolution of complaints made by, or on
behalf of, residents is a function of the Ombudsman and a duty of
representatives of the Office. Sections 712(a)(3)(A); 712(a)(5)(B)(iii)
of the Act. Through its National Ombudsman Reporting System (NORS) \5\
instructions, States report on resolved complaints only if they meet
the following definition: ``Definition of resolved complaint: The
complaint/problem was addressed to the satisfaction of the resident or
complainant.'' \6\
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\5\ AoA maintains the National Ombudsman Reporting System in
order to receive reports on program activities, characteristics, and
funding; complaint resolution; and recommendations for long-term
care systems change from State Long-Term Care Ombudsman Programs.
OMB No. 0985-0005.
\6\ OMB No. 0985-0005 at p. 5
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In proposed section 1327.17(b)(2)(A), AoA describes how this
person-centered focus is implemented into complaint processing
activities. The proposed rule indicates that, regardless of the source
of the complaint, the Ombudsman or representative of the Office shall
discuss the complaint with the resident in order to determine the
perception of the resident, request consent in order to investigate the
complaint, determine the wishes of the resident, advise the resident of
his or her rights, work with the resident to develop a plan of action,
investigate the complaint, and determine whether the complaint is
resolved to the satisfaction of the resident.
The Act also requires as a function of the Ombudsman: ``provide
services to assist the residents in protecting the health, safety,
welfare, and rights of the residents;'' and as a duty of the
representatives of the Office: ``provide services to protect the
health, safety, welfare, and rights of residents.'' Sections
712(a)(3)(B); 712(a)(5)(B)(i) of the Act.
Minimal new burden will be placed on the States, State agencies on
aging, AAAs, Ombudsmen, or the Office because these proposed
regulations in section 1327.17(b) are largely consistent with the
present practice as set forth in the National Ombudsman Reporting
System (NORS) instructions which States currently follow in submitting
Ombudsman program performance reports annually to AoA.
Communication of Informed Consent by a Resident
At several places in the Act, the Ombudsman and representatives of
the Office must rely on the ``permission''
[[Page 36458]]
(see, e.g., Section 712(b) of the Act) or ``consent'' (see, e.g.,
Section 712(d)(2)(B) of the Act) of the resident, (or legal
representative, where applicable). Since the Ombudsman and
representatives of the Office provide an advocacy service, but do not
perform clinical assessments or make legal determinations related to
ability to consent, the Ombudsman or representatives of the Office must
rely on the ability of the individual to communicate consent (whether
verbally or written including through the use of assistive technology).
In addition, the Ombudsman and representatives of the Office will
want to be assured that the resident (or legal representative, where
applicable) appears to understand to what he or she is consenting.
Therefore, throughout the regulations, the term ``communication of
informed consent'' is used to describe the interaction between
residents (or their legal representative, where applicable) and
Ombudsmen and representatives of the Office.
The Ombudsman and representatives of the Office have a duty to
``provide services to protect the health, safety, welfare, and rights
of residents.'' Section 712(a)(5)(B)(i); see also 712(a)(3)(B) of the
Act. This may be impossible for the Ombudsman or representatives of the
Office to accomplish where the resident is unable to provide informed
consent and where there is no legal representative to provide informed
consent on behalf of the resident. Therefore, AoA proposes, at section
1327.17(b)(2)(B), that the Ombudsman or representative of the Office
shall determine whether the complaint was resolved ``in a manner that
is in the resident's best interest'' in circumstances where the
resident is unable to provide informed consent and where there is no
legal representative to provide informed consent on behalf of the
resident.
The ``resident's best interest'' standard is proposed only in the
circumstance where the resident is unable to provide informed consent
and where there is no legal representative to provide informed consent
on behalf of the resident. In all other circumstances, the current NORS
instruction applies, which defines ``resolved complaint'' as ``The
complaint/problem was addressed to the satisfaction of the resident or
complainant.'' \7\ AoA seeks comment on this provision, noting that
this proposed standard differs from the current NORS instruction in
specified circumstances.
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\7\ OMB No. 0985-0005 at p. 5.
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As stated above regarding proposed section 1327.15(b)(2)(c), the
proposed regulations provide that the State procedures for disclosure
under Section 712(d) of the Act must provide that the Ombudsman and
representatives of the Office shall not be required to report abuse,
neglect or exploitation, despite State laws to the contrary, where such
report would constitute disclosure prohibited by the Act. Through
proposed section 13271.17(b)(3), AoA seeks to clarify the disclosure
requirements of the Act with respect to abuse reporting and provide
limited circumstances in which disclosure is permitted, i.e. where an
individual may be at risk and unable to indicate his or her wishes
related to disclosure.
Communication of Informed Consent by a Representative of a Resident
Where an Ombudsman or representative of the Office is processing a
complaint on behalf of a resident, but the resident is unable to
communicate informed consent and has an authorized representative, the
proposed regulations clarify that the Ombudsman or representative of
the Office has the authority to rely on the guidance of a guardian or
other legal representative. However, the provision qualifies this
reliance ``so long as the Ombudsman or representative of the Office has
no reasonable cause to believe that the representative of the resident
is not acting in the best interests of the resident.'' The purpose of
this limitation is to conform to the principle stated in Section
712(b)(1)(B)(ii) of the Act:
``The State shall ensure that representatives of the Office shall
have . . . access to the records access to the records as is necessary
to investigate a complaint if--
(I) a legal guardian of the resident refuses to give the
permission;
(II) a representative of the Office has reasonable cause to believe
that the guardian is not acting in the best interests of the resident;
and
(III) the representative obtains the approval of the Ombudsman. . .
.''
Section 712 of the Act at various places uses the terms
``guardian'' (e.g., 712(a)(3)(A)(ii)) and ``legal representative''
(e.g., 712(b)(1)(B)(i)(I), 712(d)(2)(B)(i)). AoA proposes to use the
term ``guardian or other legal representative'' throughout the proposed
regulations to clarify that the Ombudsman and representatives of the
Office may rely, where appropriate, on the communications of a
resident's guardian or other legally authorized representative (such as
a health care proxy or financial power of attorney authorized by the
resident). In many cases, a resident may have previously authorized
someone to make decisions on his or her behalf and, therefore, may not
need a court-appointed guardian even if he or she meets the standard of
incapacity for appointment of a guardian. Therefore, AoA proposes the
provision regarding communication of informed consent by the
representative of the resident at section 1327.17(b)(5).
Abuse Reporting Where a Resident Is Unable To Communicate Informed
Consent to Disclosure
In fiscal year 2011, 9% of the 204,044 complaints investigated,
resolved and closed by Ombudsman programs were complaints of abuse,
gross neglect or exploitation (represented by A, P-117, and P-121 codes
in the National Ombudsman Reporting System (NORS)). NORS Instructions
provide guidance and definitions to Ombudsman programs regarding the
reporting of complaints related to abuse, gross neglect and
exploitation.
Under Sections 712(a)(3)(B) and 712(a)(5)(B)(i) of the Act, the
Ombudsman and representatives of the Office have a duty to ``provide
services to assist the residents in protecting the health, safety,
welfare, and rights of the residents.'' Where a resident is able to
consent related to disclosure of his or her identity, the provisions of
Section 712(d) of the Act require the Ombudsman and the representatives
of the Office to prohibit disclosure absent consent.
The Act requires the Office to ``provide service to protect the
health, safety, welfare, and rights of the residents.'' Section
712(a)(5)(B)(i) of the Act. However, this requirement is particularly
challenging to meet in situations where a resident is allegedly a
victim of abuse, gross neglect or exploitation, and is unable to
communicate informed consent to disclose his or her identity.
Therefore, AoA proposes that the State-developed procedures for
disclosure by the Ombudsman and representatives of the Office may
provide authority to disclose the identity of the resident to
appropriate authorities when the Ombudsman or representative of the
Office is processing a complaint related to the resident when the
disclosure would be in the best interest of the resident and meets at
least one of the following criteria:
(1) The resident is unable to communicate informed consent to the
Ombudsman or representative of the Office, has no guardian or other
legal representative, and the Ombudsman or representative of the Office
has reason to suspect that the resident is a victim of abuse, gross
neglect, or exploitation (as stated in proposed section 1327.17(b)(6))
[[Page 36459]]
(2) The resident is unable to communicate informed consent to the
Ombudsman or representative of the Office, and the resident has a
guardian or other legal representative who the Ombudsman or
representative of the Office has reasonable cause to believe is a
perpetrator of abuse, gross neglect, or exploitation of the resident
(as stated in proposed section 1327.17(b)(7)). AoA proposes this
provision as it is consistent with the statutory provision requiring
that States provide the Office with access to the records of a resident
where the representative of the Office has reasonable cause to believe
a guardian is not acting in the best interest of the resident. Section
712(b)(1)(B)(ii) of the Act.
AoA seeks comment on this proposed approach.
The proposed rule states that the disclosure procedures may permit
the Ombudsman or representative of the Office to ``refer the matter and
disclose the identity of the resident'' based on the determination of
the best interest of the resident by the Ombudsman or representative of
the Office in proposed sections 1327.17(b)(6)-(7). This proposal
authorizes, but does not require, procedures related to disclosure to
provide this authority in order to be consistent with Section
712(d)(2)(A) of the Act which provides for disclosure ``only at the
discretion of the Ombudsman.''
However, AoA proposes that the State-developed procedures for
disclosure by the Ombudsman and representatives of the Office must
require disclosure of the identity of the resident to appropriate
authorities when the Ombudsman or representative of the Office is
processing a complaint related to the resident in the narrow
circumstance when: (1) The Ombudsman or representative of the Office
personally witnesses suspected abuse, gross neglect or exploitation of
a resident (as stated in proposed section 1327.17(b)(8)) and (2) the
representative has reasonable cause to believe that the disclosure
would be in the best interest of the resident, and (3) the
representative obtains the approval of the Ombudsman.
A representative of the Office who personally witnesses suspected
abuse would be required to obtain approval of the Ombudsman before
disclosing the identity of the resident to appropriate authorities.
This is analogous to the approval required by the Act for
representatives seeking access to records to investigate a complaint
related to a legal guardian for whom the representative of the Office
has reasonable cause to believe is not acting the best interests of the
resident. Section 712(b)(1)(B)(ii) of the Act. In this situation of
personally witnessing an incident, the Ombudsman or the representative
of the Office may be the only person other than the victim with
information on the incident.
This is in contrast to the more common occurrence where complaints
of suspected abuse, gross neglect or exploitation are brought to the
attention of the Ombudsman program from another person with information
regarding the incident. Where another person is bringing the
information to the attention of the Office, such complainant or
reporter is presumably able (and may be mandated under State law) to
report to appropriate authorities for an official investigation of the
allegations. As background, in fiscal year 2011, Ombudsman program
cases (in all complaint categories, not only abuse-related complaints)
were generated by the following types of complainants: Residents (38%),
relatives or friends of residents (19%), facility staff (17%),
Ombudsman program staff and volunteers (13%), and others (12%).\8\
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\8\ These percentages do not equal 100% due to rounding.
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Where the Ombudsman or representative of the Office personally
witnesses the incident, and the resident is unable to communicate
informed consent, the Ombudsman or representative of the Office may
open a complaint with himself or herself as the complainant and work to
resolve the issue but may incorrectly conclude that they are prohibited
by the Act from disclosing the identity of the resident. AoA believes
that the absence of disclosure of the resident's identity in this
situation could create a barrier to facility management which may need
information to protect the resident and/or to appropriate investigatory
agencies which may need information in order to fulfill their
protective, regulatory and/or law enforcement duties related to the
alleged victim.
Therefore, AoA proposes, at section 1327.17(b)(8) that disclosure
of the identity of a resident should be required in the situation where
an Ombudsman or representative of the Office personally witnesses the
incident, so long as (1) the resident at issue does not request the
Ombudsman or representative to not make a report of the suspected
activity witnessed by the Ombudsman or representative, (2) the
representative has reasonable cause to believe that the disclosure
would be in the best interest of the resident, and (3) the
representative obtains the approval of the Ombudsman.
Coordination of Ombudsman Activities With Other Elder Rights,
Disability Rights, and Elder Justice Entities
The Act requires the State agency to require the Office to
coordinate with protection and advocacy systems, legal assistance, and
State and local law enforcement agencies and courts of competent
jurisdiction. Section 712(h)(6)-(8) of the Act; see also Section 721(d)
of the Act, and section ``G. Functions and Responsibilities of the
State Long-Term Care Ombudsman'' regarding ``Ombudsman Responsibility
with respect to Coordination of Ombudsman Activities with Other Elder
Rights, Disability Rights, and Elder Justice Entities,'' above.
AoA proposes section 1327.17(c) in order to consolidate the list of
the relevant entities covered by the Act into a comprehensive list and
to clearly set forth its expectation that all levels of the Office
should promote collaborative efforts and diminish duplicative efforts
in the development and carrying out of elder rights and elder justice
programs. See Section 201(e)(2)(A)(ix) of the Act. This provision
addresses the duty to coordinate activities by representatives of the
Office, including those representatives in a local Ombudsman entity, at
the local level, in contrast to proposed rule section 1327.13(l),
above, which relates specifically to the responsibility of the State
Ombudsman to coordinate with relevant entities at the State level.
Relation of Required Functions and Duties to Federal Lobbying
Restrictions
The Act requires the Ombudsman to perform functions that may be
considered ``lobbying'' under some state laws, including recommending
changes in laws pursuant to Section 712(a)(3)(G)(ii) and providing
information to legislators regarding recommendations related to the
problems and concerns of residents of long-term care facilities
pursuant to Section 712(h)(3) of the Act.
As federal grantees, States are required to make certain
certifications regarding lobbying under the 45 CFR Part 93. AoA
proposes section 1327.17(d) in order to clarify that the functions and
duties required of the Office by the Act do not constitute a violation
of this part (see 45 CFR Sec. 93.100).
I. Conflicts of Interest
The Act specifically requires the Assistant Secretary to issue
regulations related to conflicts of interest at Section
[[Page 36460]]
713 of the Act. Freedom from conflicts of interest is critically
important to the successful operation of Ombudsman programs. Ombudsman
programs are effective only when they can provide credible
representation of the interests of residents without conflicts of
interest.
In its evaluation of Long-Term Care Ombudsman programs, the
Institute of Medicine dedicated a chapter to issues related to
conflicts of interest, explaining:
The Older Americans Act (OAA) mandates that the ombudsman work
toward changing government and other institutions for the betterment
of the residents of LTC facilities. . . . Thus, by accepting OAA
monies, state governments agree to allow one of their own employees
(or a contractor of the state) both to criticize openly and publicly
their policies and procedures and to work toward implementing
improvements. The directive to ``seek administrative, legal, and
other remedies'' is broad enough to include the state government
itself as a target of ombudsman advocacy. Conflicts of interest can
easily occur in such situations.\9\
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\9\ IOM Report (1995), at p. 102.
Organizational conflicts may arise from the organizational location
of the Office and/or local Ombudsman entities, in which the work of the
Ombudsman is unable to focus primarily on the interests of long-term
care residents due to competing functions or priorities. For example,
the Office might be located within an agency that makes determinations
regarding resident eligibility for benefits or services. A resident who
requests the Ombudsman to resolve a complaint related to the
eligibility determination, and discovers that the Ombudsman is housed
within the same entity, may not trust the Ombudsman to perform credible
complaint resolution work on his or her behalf.
Similarly, the Office might be located within an agency that is the
official finder of fact regarding abuse allegations (such as adult
protective services or the state licensing agency). If an Ombudsman
identifies a pattern of inadequate abuse investigation taken by the
agency, the agency may have a conflicting interest in protecting its
reputation, which may cause it to interfere with the Ombudsman's duty
to address the issue systemically (for example, by making
recommendations to policymakers outside of the agency).
In some states, individual representatives of the Office have been
assigned conflicting roles by a local Ombudsman entity with multiple
service responsibilities. For example, the representative may have
employment assignments both in the Ombudsman Program and protective
services so may be called upon to provide protective services for a
resident. But the actions taken to protect the resident and actions to
advocate for what the resident desires may conflict with one another.
As another example, a representative may be assigned conflicting duties
of case management for long-term supports and services for a resident.
If the resident wishes to file a complaint related to the service plan
developed by the case manager, he or she would be in the position of
requesting advocacy assistance of the very individual who made the case
management decisions which the resident.
The IOM recommended, among other things, the following:
4.2 The committee recommends that the Assistant Secretary for
Aging adopt a clear policy that prohibits parties who provide,
purchase, or regulate services that are within the purview of the
ombudsman program from membership on policy boards having governance
over the long-term care ombudsman program. . . .
4.3 The committee recommends that the Assistant Secretary for
Aging establish procedures and resources by which to identify
potential conflicts of interest in the areas of loyalty, commitment,
and control that are pertinent to the long-term care ombudsman and
ombudsman representatives and provide guidance on how to address
such conflicts of interest.\10\
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\10\ IOM Report (1995) at pp. 124-125.
While AoA has provided States with technical assistance and
education on questions related to conflicts of interest, a recent
compliance review and recurring questions raised by States and
Ombudsman programs suggest that clear regulations would assist in the
effective and efficient determination of compliance with the conflict
of interest principles in Section 712 of the Act.
Proposed Process
1. Identification of Conflicts
The proposed regulations require a State agency to examine whether
it has conflicts related to either the organizational placement of the
Ombudsman program or the individuals selected to serve as Ombudsmen and
representatives of the Office. If an organizational or individual
conflict exists, the State agency must identify the conflict. See
Section 712(f)(4) of the Act.
AoA proposes the following process to assist States in complying
with the Act. Ombudsmen annually report on program activities,
characteristics, and funding; complaint resolution; and recommendations
for long-term care systems change through NORS.\11\ The proposed
regulations would utilize the current reporting process to provide
States and Ombudsmen with a mechanism for submitting evidence of
compliance with the Act's requirements related to conflicts. It is
AoA's intent to include in future NORS Instructions a description of
how to appropriately report the identification of any conflicts related
to the implementation of the Ombudsman program and describe steps the
State has taken to remove or remedy the conflict.
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\11\ OMB No. 0985-0005.
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For example, a State agency which houses both adult protective
services and the Office of the State Long-Term Care Ombudsman should
identify such conflict in NORS and indicate its plans to remove or
remedy the conflict so that it does not interfere with the duties of
the Office as set forth below.
Section 712(f)(4) of the Act requires that State agencies
``establish, and specify in writing, mechanisms to identify . . .
conflicts of interest.'' The proposed regulations provide a
comprehensive, though not exhaustive, list of potential conflicts to
assist States in this identification process. The list consists of
conflicts identified in Section 712 of the Act, as well as others
specified in the IOM report.
2. Removal or Remedy of Conflicts
The proposed regulations require a State agency to remove or remedy
all identified organizational and individual conflicts. AoA realizes
that many State agencies provide multiple programs and services,
including adult protective services, guardianship services, licensing
and regulation, and home and community-based services in board and care
and assisted living settings. Some of these responsibilities create
organizational conflicts with the functions and duties of Ombudsman
programs. As the IOM reported:
Since the list of duties for [State Units on Aging], area
agencies on aging (AAAs), and ombudsmen has grown in length and
specificity . . . , an even greater potential for conflict of
interest exists between LTC ombudsman programs and the public
agencies that typically house them. . . . The [Act] has clearly
designated the LTC ombudsman program as the voice representing the
LTC resident to government, yet in most cases the program continues
to be housed within state and local governments that are
increasingly responsible for service provisions to older persons.
The ombudsman program has a mandate to focus on the individual
resident. If the ombudsman finds him or herself in a conflict of
interest situation . . . the resident, even
[[Page 36461]]
more than the program, may suffer. The resident's problem may not be
resolved, certain avenues of resolution may be foreclosed, the
resident's voice may not be heard by policy makers, and the
resident's interests will be inadequately represented or altogether
absent from the table at which public policy is made.\12\
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\12\ IOM (1995) at pp. 108-109.
AoA proposes use of NORS reporting for States to describe the steps
taken to remove or remedy conflicts of interest. For example, a State
agency which houses both adult protective services and the Office of
the State Long-Term Care Ombudsman might submit assurances that staff
are not assigned conflicting responsibilities and submit policies and
procedures demonstrating the distinct public roles and public
information related to the respective programs; separate, secure, and
confidential data collection systems; separate and confidential record-
keeping; and clear referral processes between the programs.
AoA realizes that some States will face challenges in removing or
remedying some organizational conflicts of interest. We welcome
comments on the anticipated impact of this proposed regulation. In
addition, AoA realizes that some of the provisions related to
employment of the Ombudsman or representatives of the Office at
proposed section 1327.19(d)(5) (i.e., one-year waiting period after
serving in a licensing or long-term care provider responsibility) serve
as a proxy for avoiding conflicts of interest but do not guarantee the
outcome of an Ombudsman or representatives of the Office free of
potential conflicts. AoA welcomes suggestions on alternative approaches
that promote the conflict-free integrity of the Ombudsman and
representatives of the Office, but do not arbitrarily disqualify
excellent candidates for the position.
AoA plans to engage with States in the provision of technical
assistance, training and resources to assist them in crafting effective
solutions to remedy conflicts that may impact the ability of the
Ombudsman program to fulfill its duties to residents under the Act. AoA
also recognizes that many States have already taken significant steps
to avoid, identify and remedy conflicts. For example, in terms of
organization, some have moved the Office into a distinctly identifiable
and more independent office within the organizational structure of the
State agency on aging. Some have moved it into another State agency.
Others have moved the Office out of State government entirely. Some
States have established laws, regulations, or policies that have
clearly delineated an independent identity for the Office, providing
the Ombudsman with the ability to represent resident interests to
policymakers, the public, and others without interference. Others have
implemented clear policies and procedures, within the designation
process, for identifying and remedying conflicts of interest for
current and potential representatives of the Office.
J. Additional Considerations
AoA proposes that this rule become effective one year after the
publication of the final rule. This will provide States time to review
their relevant laws, regulations, policies, standards, State plan on
aging, and practices and to take any steps that might be necessary in
order to achieve compliance with the rule.
AoA has proposed regulations on operational issues for which it
believes regulatory action is critical to assure successful Ombudsman
program operation. AoA acknowledges that guidance in other areas
related to Ombudsman program operation may also be beneficial to States
but that the statute is sufficiently specific and/or sub-regulatory
guidance, training, technical assistance or other types of assistance
to the States may be sufficient to meet the need. One such area for
which additional guidance may be necessary is the provision of legal
counsel to the Ombudsman program.
The Act provides:
LEGAL COUNSEL.--The State agency shall ensure that--
(1)(A) adequate legal counsel is available, and is able, without
conflict of interest, to--
(i) provide advice and consultation needed to protect the health,
safety, welfare, and rights of residents; and
(ii) assist the Ombudsman and representatives of the Office in the
performance of the official duties of the Ombudsman and
representatives; and
(B) legal representation is provided 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 a representative; and
(2) the Office pursues administrative, legal, and other appropriate
remedies on behalf of residents.
Section 712(g) of the Act.
AoA believes that the statute is adequately specific to determine
State compliance with regard to adequate legal counsel. In the past,
AoA has determined that it has adequate authority under the statute,
without a regulation in place, to cite a State agency deficiency in
compliance with this provision. AoA Region IV Ombudsman Assessment
Report, June 13, 1994. AoA acknowledges that guidance could be helpful
in defining competencies of legal counsel that may contribute to its
adequacy and the application of the conflict of interest provisions in
the proposed regulations to the legal counsel requirement. AoA believes
this guidance could be provided to States without the need for
regulation. However, AoA welcomes comments on the question of whether
regulations are needed by States in order to more fully implement the
Act's requirements related to the provision of legal counsel to the
Ombudsman program.
III. Required Regulatory Analyses Under Executive Orders 13563 and
12866
Executive Orders 13563 and 12866 direct agencies to assess all
costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and equity). Executive
Order 13563 emphasizes the importance of quantifying both costs and
benefits, of reducing costs, of harmonizing rules, and of promoting
flexibility. This proposed rule has been designated a ``substantive,
non-significant regulatory action'' and not economically significant,
under Section 3(f) of Executive Order 12866. The proposed rule has been
reviewed by the Office of Management and Budget.
Regulatory Flexibility Act
Under the Regulatory Flexibility Act, as amended by the Small
Business Regulatory Enforcement Fairness Act (SBREFA) (5 U.S.C.
Sec. Sec. 601 et seq.), agencies must consider the impact of
regulations on small entities and analyze regulatory options that would
minimize a rule's impacts on these entities. Alternatively, the agency
head may certify that the proposed rule will not have a significant
economic impact on a substantial number of small entities. AoA does not
anticipate that this NPRM will have a significant economic impact on a
substantial number of small businesses and other small entities.
IV. Other Administrative Requirements
A. Paperwork Reduction Act of 1995
Under the Paperwork Reduction Act, before an agency submits a
proposed
[[Page 36462]]
collection of information to the Office of Management and Budget (OMB)
for approval, it must publish a document in the Federal Register
providing notice of the proposed collection of information and a 60-day
comment period, and must otherwise consult with members of the public
and affected agencies concerning the proposed collection. In accordance
with Section 3507(d) of the Paperwork Reduction Act of 1995 (44 U.S.C.
Sec. Sec. 3501 et seq.), AoA has determined there are limited new
information collection requirements in the proposed rule.
Currently, States are required to annually report on program
activities, characteristics, and funding; complaint resolution; and
recommendations for long-term care systems change of the Office of the
State Long-Term Care Ombudsman through the National Ombudsman Reporting
System (NORS).\13\ The proposed regulations would add one additional
question to NORS: the identification of organizational conflicts of
interest and a description of steps taken by the State to remove or
remedy any identified conflict(s). Prior to the effective date of a
final rule, AoA intends to request an amendment to current NORS
instructions and to alter existing reporting software to capture data
consistent with this requirement.
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\13\ OMB No. 0985-0005.
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AoA estimates that the proposed changes would expand the reporting
requirement from 8569 hours to 8621 hours.
Title: State Annual Long-Term Care Ombudsman Report.
OMB Control Number: 0985-0005.
Type of Request: Modification of Information Collection Request.
Respondents: 50 States, the District of Columbia and Puerto Rico.
Frequency: Annually
Estimated Annual Burden on Respondents: 52 hours (52 respondents x
1 hour per year).
We invite comments on: (1) The necessity and utility of the
information collection, (2) the accuracy of the estimate of the burden,
(3) ways to enhance the quality, utility, and clarity of the
information to be collected, and (4) ways to minimize the burden of
collection without reducing the quality of the collected information.
In addition, States are already required by Section 712 of the Act
to develop policies and procedures for the operation of the Long-Term
Care Ombudsman Program. The proposed regulations are intended to
clarify this existing requirement without creating any additional
burden on States.
B. Executive Order 13132
Executive Order 13132 prohibits an agency from publishing any rule
that has federalism implications if the rule either, imposes
substantial direct compliance costs on State and local governments and
is not required by statute, or the rule preempts State law, unless the
agency meets the consultation and funding requirements of Section 6 of
the Executive Order. This rule does not have federalism impact as
defined in the Executive Order.
C. Unfunded Mandates Reform Act of 1995
Section 202 of the Unfunded Mandates Reform Act of 1995 requires
that a covered agency prepare a budgetary impact statement before
promulgating a rule that includes any Federal mandate that may result
in the expenditure by State, local, and Tribal governments, in the
aggregate, or by the private sector, of $100 million or more in any one
year. If a covered agency must prepare a budgetary impact statement,
Section 205 further requires that it select the most cost-effective and
least burdensome alternative that achieves the objectives of the rule
and is consistent with the statutory requirements. In addition, Section
203 requires a plan for informing and advising any small governments
that may be significantly or uniquely impacted by the rule. We have
determined that this rule will not result in the expenditure by State,
local, and Tribal governments, in the aggregate, or by the private
sector, of more than $100 million in any one year. Accordingly, we have
not prepared a budgetary impact statement, specifically addressed the
regulatory alternatives considered, or prepared a plan for informing
and advising any significantly or uniquely impacted small governments.
D. Assessment of Federal Regulations and Policies on Families
Section 654 of the Treasury and General Government Appropriations
Act of 1999 requires Federal agencies to determine whether a proposed
policy or regulation may affect family well-being. If the agency's
determination is affirmative, then the agency must prepare an impact
assessment addressing seven criteria specified in the law. This
regulation protects the confidentiality of information contained in the
records of State child support enforcement agencies. These regulations
will not have an adverse impact on family well-being as defined in the
legislation.
E. Plain Language in Government Writing
Pursuant to Executive Order 13563 of January 18, 2011, and
Executive Order 12866 of September 30, 1993, Executive Departments and
Agencies are directed to use plain language in all proposed and final
rules. AoA believes it has used plain language in drafting of the
proposed rule and would welcome any comment from the public in this
regard.
List of Subjects
45 CFR Part 1321
Administrative practice and procedure, Aged, Grant programs--social
programs, Reporting and recordkeeping requirements.
45 CFR Part 1327
Administrative practice and procedure, Aged, Long-term care.
Dated: January 14, 2013.
Kathy Greenlee,
Administrator, Administration for Community Living, Assistant Secretary
for Aging, Administration on Aging.
Approved: January 25, 2013.
Kathleen Sebelius,
Secretary.
Editorial Note: This document was received in the Office of the
Federal Register on June 12, 2013.
For the reasons stated in the preamble, the Administration on
Aging, Administration for Community Living, U.S. Department of Health
and Human Services, proposes to amend 45 CFR Part 1321 and add Part
1327 as follows:
PART 1321--GRANTS TO STATE AND COMMUNITY PROGRAMS ON AGING
0
1. The authority citation 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.
0
2. Section 1321.11 is amended by revising paragraph (b) to read as
follows:
Sec. 1321.11 State agency 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. The State Long-Term Care Ombudsman or his or her
designee shall be responsible for monitoring the files, records and
other information maintained by the Office, and shall not disclose the
identity of any complainant or long-term care facility resident to
individuals outside of the Office, except as otherwise
[[Page 36463]]
specifically provided in Sec. 1327.17(b)(2)(C) of this chapter.
* * * * *
0
3. Part 1327 is added to read as follows:
PART 1327--ALLOTMENTS FOR VULNERABLE ELDER RIGHTS PROTECTION
ACTIVITIES
Subpart A--State Long-Term Care Ombudsman Program
Sec.
1327.1 Definitions.
1327.11 Establishment of the Office of the State Long-Term Care
Ombudsman.
1327.13 Functions and responsibilities of the State Long-Term Care
Ombudsman.
1327.15 State agency responsibilities related to the Ombudsman
program.
1327.17 Functions and duties of the Office of the State Long-Term
Care Ombudsman.
1327.19 Conflicts of interest.
Subpart B--[Reserved]
Authority: 42 U.S.C. 3001 et seq.; titles II, III and VII of the
Older Americans Act, as amended.
Subpart A--State Long-Term Care Ombudsman Program
Sec. 1327.1 Definitions.
The following definitons apply to this part.
Immediate family, pertaining to conflicts of interest as used in
section 712 of the Act, means a member of the household or a relative
with whom there is a close personal or significant financial
relationship.
Office of the State Long-Term Care Ombudsman, as used in section
712 of the Act, means the organizational unit headed by the State Long-
Term Care Ombudsman, including the representatives of the Office.
Representatives of the Office of the State Long-Term Care
Ombudsman, as used in section 712 of the Act, means the employees or
volunteers designated by the Ombudsman to fulfill the duties set forth
in Sec. 1327.17(a), whether supervised by the Ombudsman or his or her
designees or by a local entity designated by the Ombudsman pursuant to
section 712(a)(5) of the Act.
Sec. 1327.11 Establishment of the Office of the State Long-Term Care
Ombudsman.
(a) The Office of the State Long-Term Care Ombudsman shall be an
entity which shall be headed by the State Long-Term Care Ombudsman and
carry out all of the functions and duties set forth in Sec. Sec.
1327.13 and 1327.17.
(b) The State agency shall establish the Office and, thereby carry
out the Long-Term Care Ombudsman program in any of the following ways:
(1) The Office is a distinct entity, separately identifiable, and
located within or connected to the State agency; or
(2) The State agency enters into a contract or other arrangement
with any public agency or nonprofit organization which shall establish
a separately identifiable, distinct entity as the Office.
(c) The State agency and, where applicable, any other agency
carrying out the Ombudsman program, shall ensure that the State Long-
Term Care Ombudsman, as head of the Office, shall be able to
independently make determinations and establish positions of the Office
regarding:
(1) Determinations regarding disclosure of information maintained
by the program within the limitations set forth in section 712(d) of
the Act;
(2) Recommendations to changes in Federal, State and local laws,
regulations, policies and actions pertaining to the health, safety,
welfare, and rights of residents;
(3) Provision of information to public and private agencies,
legislators, and other persons, regarding the problems and concerns of
residents and recommendations related to the problems and concerns.
(4) Such determinations and positions shall be those of the Office
and do not necessarily represent the determinations or positions of the
State agency, another agency carrying out the Ombudsman program, or any
other State agency.
Sec. 1327.13 Functions and responsibilities of the State Long-Term
Care Ombudsman.
The Ombudsman, as head of the Office, shall have responsibility for
the leadership and management of the Office in coordination with the
State, and, where applicable, the other agency or agencies carrying out
the Ombudsman program, as follows.
(a) The Ombudsman shall serve on a fulltime basis, and shall,
personally or through representatives of the Office--
(1) Identify, investigate, and resolve complaints that--
(i) Are made by, or on behalf of, residents; and
(ii) Relate to action, inaction, or decisions, that may adversely
affect the health, safety, welfare, or rights of the residents
(including the welfare and rights of the residents with respect to the
appointment and activities of guardians and representative payees),
of--
(A) Providers, or representatives of providers, of long-term care
services;
(B) Public agencies; or
(C) Health and social service agencies;
(2) Provide services to assist the residents in protecting the
health, safety, welfare, and rights of the residents;
(3) Inform the residents about means of obtaining services provided
by providers or agencies described in paragraph (a)(1)(ii) of this
section or services described in paragraph (a)(2) of this section;
(4) Ensure that the residents have regular and timely access to the
services provided through the Office and that the residents and
complainants receive timely responses from representatives of the
Office to complaints;
(5) 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;
(6) Provide administrative and technical assistance to entities
designated under paragraph (a)(5) of this section to assist the
entities in participating in the program;
(7)(i) Analyze, comment on, and monitor the development and
implementation of Federal, State, and local laws, regulations, and
other governmental policies and actions, that pertain to the health,
safety, welfare, and rights of the residents, with respect to the
adequacy of long-term care facilities and services in the State;
(ii) Recommend any changes in such laws, regulations, policies, and
actions as the Office determines to be appropriate; and
(iii) Facilitate public comment on the laws, regulations, policies,
and actions;
(8)(i) Provide for training representatives of the Office;
(ii) Promote the development of citizen organizations, to
participate in the program; and
(iii) Provide technical support for the development of resident and
family councils to protect the well-being and rights of residents; and
carry out such other activities as the Assistant Secretary determines
to be appropriate.
(b) The Ombudsman shall oversee a unified statewide program in
which representatives of the Office report to the Ombudsman regarding
Ombudsman program functions and duties as set forth in Sec. Sec.
1327.13(a) and 1327.17(a).
(c) The Ombudsman shall determine designation and de-designation of
local Ombudsman entities and representatives of the Office pursuant to
section 712(a)(5) of the Act.
(d) Where local Ombudsman entities are designated, the Ombudsman
shall review and approve plans or contracts related to Ombudsman
program operations, including, where applicable, through area agency on
aging plans (in coordination with the State agency).
[[Page 36464]]
(e) The Ombudsman shall manage the files, records, and other
information of the Office, whether in physical, electronic, or other
formats, including information maintained by representatives of the
Office and designated local Ombudsman entities pertaining to the cases
and activities of the Ombudsman program. Such records are the property
of the Office.
(f) The Ombudsman shall comply with section 712(d) of the Act in
responding to requests for disclosure of files, records, and other
information, regardless of the format of such file, record, or other
information, the source of the request, and the sources of funding to
the Ombudsman program.
(g) The Ombudsman shall propose to the State agency policies,
procedures and standards for administration of the Ombudsman program.
(h) The Ombudsman shall provide leadership to statewide advocacy
efforts of the Office on behalf of long-term care facility residents.
(i) The Ombudsman shall determine the use of the fiscal resources
appropriated or otherwise designated for the Office, subject to
applicable Federal and State laws and policies.
(j) Where applicable, the Ombudsman shall monitor the Ombudsman
program performance of local Ombudsman entities which the Ombudsman has
designated to carry out the duties of the Office.
(k) The Ombudsman shall develop and provide final approval of an
annual report as set forth in section 712(h)(1) of the Act and as
otherwise required by the Assistant Secretary.
(l) The Ombudsman shall provide Ombudsman program leadership to
statewide coordination efforts between the Office and other entities
responsible for the protection of vulnerable adults including, but not
limited to:
(1) Area agency on aging programs;
(2) Adult protective services programs;
(3) Protection and advocacy systems for individuals with
developmental disabilities and mental illnesses established under
subtitle C of Title I of the Developmental Disabilities Assistance and
Bill of Rights Act of 2000; and the Protection and Advocacy of Mentally
Ill Individuals Act of 1986 (42 U.S.C. 10801 et seq.)
(4) Facility and long-term care provider licensure and
certification programs;
(5) The State Medicaid fraud control unit, as defined in section
1903(q) of the Social Security Act (42 U.S.C. 1396b(q));
(6) Victim assistance programs;
(7) Consumer protection and State and local law enforcement
programs; as well as other State and local programs that identify and
assist vulnerable adults and services provided by agencies and courts
of competent jurisdiction; and
(8) The State legal assistance developer and legal assistance
programs, including those provided under section 306(a)(2)(C) of the
Act, through adoption of memoranda of understanding and other means.
Sec. 1327.15 State agency responsibilities related to the Ombudsman
program.
(a) The State agency shall:
(1) Ensure, through the development of policies and other means,
that the Ombudsman and the representatives of the Office are able to
fully perform all of the duties specified in section 712 of the Act;
(2) Establish policies and procedures, in consultation with the
Office, to carry out the Ombudsman program in accordance with the Act.
Where the designated local Ombudsman entities are grantees, and/or the
representatives of the Office are employees, of area agencies on aging,
the State agency shall develop the policies in consultation with the
area agencies on aging. Such policies and procedures shall include, but
not be limited to:
(i) Requirements that the Ombudsman shall monitor the performance
of local Ombudsman entities which the Ombudsman has designated to carry
out the duties of the Office.
(ii) Standards to assure prompt response which prioritize abuse,
gross neglect, exploitation and time-sensitive complaints;
(iii) Confidentiality and protection of identifying information of
residents and complainants, including procedures related to the
disclosure of files, records, and other information maintained by the
Ombudsman program;
(A) Such procedures shall provide that the files, records, and
information maintained by the Ombudsman program may be disclosed only
at the discretion of the Ombudsman or the person designated by the
Ombudsman to disclose the files, records, and information.
(B) Such procedures shall prohibit the disclosure of the identity
of any complainant or resident with respect to whom the Office
maintains files, records, or information unless:
(1) The complainant or resident, or the legal representative of the
complainant or resident, communicates informed consent to the
disclosure and the consent is given in writing or through the use of
assistive technology;
(2) The complainant or resident communicates informed consent
orally or through the use of assistive technology and such consent is
documented contemporaneously in a writing made by a representative of
the Office in accordance with such procedures; or
(3) The disclosure is required by court order.
(C) Such procedures shall provide that if the Ombudsman or his or
her representative has reason to believe that the resident is unable to
provide informed consent, disclosure of the resident identity shall be
prohibited unless another exception applies.
(D) Such procedures shall provide for procedures for appropriate
disclosure of at least the following types of files, records, and
information which may be maintained by the Office: medical and social
records of residents; administrative records, policies, and documents
of long-term care facilities; licensing and certification records
maintained by the State with respect to long-term care facilities; and
data collected in the statewide uniform reporting system of the
Ombudsman program.
(E) Such procedures shall exclude the Ombudsman and representatives
of the Office from abuse reporting requirements when such reporting
discloses the identity of a complainant or resident without appropriate
consent or court order, except as otherwise provided in Sec.
1327.17(b)(5)-(8).
(F) Such procedures shall prohibit disclosure of the identity of a
complainant or resident without appropriate consent or court order,
except as otherwise provided in Sec. 1327.17(b)(5)-(8), regardless of
the source of the request for information or the source of funding for
the services of the Ombudsman program; and
(iv) Mechanisms to identify and remove or remedy conflicts of
interest pursuant to section 712(f) of the Act; and
(v) Procedures that require the Office to carry out its requirement
to analyze, comment on, and monitor the development and implementation
of Federal, State, and local laws, regulations, and other government
policies and actions that pertain to long-term care facilities and
services, and to the health, safety, welfare, and rights of residents,
in the State, and recommend any changes in such laws, regulations, and
policies as the Office determines to be appropriate.
(A) Such procedures shall exclude the Ombudsman and representatives
of the Office from any state lobbying prohibitions to the extent that
such requirements are inconsistent with section 712 of the Act.
[[Page 36465]]
(B) Nothing in this part shall prohibit the State agency or other
agency carrying out the Ombudsman program from establishing policies
which promote consultation regarding the determinations of the Office
or otherwise require that the Ombudsman and representatives of the
Office are held accountable to the policies and procedures of their
respective employer, subject to applicable federal and state laws and
policies. However, such policies may not limit the ability of the
Ombudsman and representatives of the Office to fulfill all of the
functions and duties set forth in section 712 of the Act and shall be
in accordance with the requirement that the Ombudsman and
representatives of the Office must remain free of interference in
carrying out such functions and duties.
(3) Provide opportunities for training for the Ombudsman and
representatives of the Office in order to maintain expertise to serve
as effective advocates for residents. The State agency may utilize
funds appropriated under Title III and/or Title VII of the Act
designated for direct services in order to provide access to such
training opportunities.
(4) Provide personnel supervision and management for the Ombudsman
and representatives of the Office who are employees of the State
agency, but such supervision shall not include review of files, records
or other information maintained by the Office which could reveal the
identity of any complainant or long-term care facility resident;
(5) Provide monitoring and oversight, including but not limited to
fiscal monitoring, where the Ombudsman or representatives of the Office
are hired by an agency or entity that is under contract or other
arrangement with the State agency, but such monitoring shall not
include review of files, records, or other information maintained by
the Office which could reveal the identity of any complainant or long-
term care facility resident; and
(6) Integrate the goals and objectives of the Office into the State
plan; coordinate the goals and objectives of the Office with those of
other programs established under Title VII of the Act and other State
elder rights, disability rights, and elder justice programs, including
legal assistance programs provided under section 306(a)(2)(C) of the
Act, to promote collaborative efforts, diminish duplicative efforts,
and, where applicable, require inclusion of goals and objectives
related to representatives of the Office into area plans;
(7) Require the coordination of Ombudsman program services with the
activities of other programs authorized by Title VII of the Act as well
as other state and local entities responsible for the protection of
vulnerable adults as set forth in Sec. 1327.13(l); and
(8) Ensure that the Office has sufficient authority to perform its
functions enumerated at Sec. 1327.13 and duties enumerated at Sec.
1327.17, and to make the determinations enumerated at Sec. 1327.11(c).
Failure to do so shall constitute interference as prohibited by section
712(j) of the Act.
(b) State policies, procedures or other mechanisms regarding access
to records pursuant to section 712(b)(1) of the Act, shall:
(1) Reaffirm that the Health Insurance Portability and
Accountability Act of 1996 (HIPAA) Privacy Rule, 45 CFR Part 160 and
Subparts A and E of Part 164, does not preclude release of residents'
medical and social records to the Office, and
(2) Provide for representatives of the Office to have access to
resident records, including when residents have guardians or other
legal representatives.
(c) The State agency shall require the Office to:
(1) Prepare an annual report--
(i) Describing the activities carried out by the Office in the year
for which the report is prepared;
(ii) Containing and analyzing the data collected under this
paragraph (c);
(iii) Evaluating the problems experienced by, and the complaints
made by or on behalf of, residents;
(iv) Containing recommendations for--
(A) Improving quality of the care and life of the residents; and
(B) Protecting the health, safety, welfare, and rights of the
residents;
(v)(A) Analyzing the success of the program including success in
providing services to residents of board and care facilities and other
similar adult care facilities; and
(B) Identifying barriers that prevent the optimal operation of the
program; and
(vi) Providing policy, regulatory, and legislative recommendations
to solve identified problems, to resolve the complaints, to improve the
quality of care and life of residents, to protect the health, safety,
welfare, and rights of residents, and to remove the barriers;
(2) Analyze, comment on, and monitor the development and
implementation of Federal, State, and local laws, regulations, and
other government policies and actions that pertain to long-term care
facilities and services, and to the health, safety, welfare, and rights
of residents, in the State, and recommend any changes in such laws,
regulations, and policies as the Office determines to be appropriate;
(3)(i) Provide such information as the Office determines to be
necessary to public and private agencies, legislators, and other
persons, regarding--
(A) The problems and concerns of older individuals residing in
long-term care facilities; and
(B) Recommendations related to the problems and concerns; and
(ii) Make available to the public, and submit to the Assistant
Secretary, the chief executive officer of the State, the State
legislature, the State agency responsible for licensing or certifying
long-term care facilities, and other appropriate governmental entities,
each report prepared under paragraph (c)(1) of this section;
(4)(i) Establish procedures for the training of the representatives
of the Office, including unpaid volunteers, based on model standards
established by the Director of the Office of Long-Term Care Ombudsman
Programs as described in Section 201(d) of the Act, in consultation
with representatives of citizen groups, long-term care providers, and
the Office, that--
(A) Specify a minimum number of hours of initial training;
(B) Specify the content of the training, including training
relating to--
(1) Federal, State, and local laws, regulations, and policies, with
respect to long-term care facilities in the State;
(2) Investigative techniques; and
(3) Such other matters as the State determines to be appropriate;
and
(C) Specify an annual number of hours of in-service training for
all designated representatives;
(5) Prohibit any representative of the Office (other than the
Ombudsman) from carrying out any activity described in Sec.
1327.13(a)(1) through (8) unless the representative--
(i) Has received the training required under paragraph (c)(4) of
this section; and
(ii) Has been approved by the Ombudsman as qualified to carry out
the activity on behalf of the Office;
(6) Coordinate ombudsman services with the protection and advocacy
systems for individuals with developmental disabilities and mental
illnesses established under--
(i) Subtitle C of the Developmental Disabilities Assistance and
Bill of Rights Act of 2000; and
(ii) The Protection and Advocacy for Mentally Ill Individuals Act
of 1986 (42 U.S.C. 10801 et seq.);
(7) Coordinate, to the greatest extent possible, ombudsman services
with legal assistance provided under section 306(a)(2)(C) of the Act,
through adoption of memoranda of understanding and other means;
[[Page 36466]]
(8) Coordinate services with State and local law enforcement
agencies and courts of competent jurisdiction; and
(9) Permit any local Ombudsman entity to carry out the
responsibilities described in paragraph (c)(1), (2), (3), (6), or (7)
of this section.
Sec. 1327.17 Functions and duties of the Office of the State Long-
Term Care Ombudsman.
(a) An individual designated as a representative of the Office
shall, in accordance with the policies and procedures established by
the Office and the State agency:
(1) Provide services to protect the health, safety, welfare, and
rights of residents;
(2) Ensure that residents in the service area of the entity have
regular, timely access to representatives of the program and timely
responses to complaints and requests for assistance;
(3) Identify, investigate, and resolve complaints made by or on
behalf of residents that relate to action, inaction, or decisions, that
may adversely affect the health, safety, welfare, or rights of the
residents;
(4) Represent the interests of residents before government agencies
and seek administrative, legal, and other remedies to protect the
health, safety, welfare, and rights of the residents;
(5)(i) Review, and if necessary, comment on any existing and
proposed laws, regulations, and other government policies and actions,
that pertain to the rights and well-being of residents; and
(ii) Facilitate the ability of the public to comment on the laws,
regulations, policies, and actions;
(6) Support the development of resident and family councils; and
(7) Carry out other activities that the Ombudsman determines to be
appropriate.
(b) Complaint processing. (1) With respect to identifying,
investigating and resolving complaints, and regardless of the source of
the complaint (i.e. complainant), the Ombudsman and/or the
representatives of the Office serve the resident of a long-term care
facility. The Ombudsman or representative of the Office shall
investigate a complaint, including but not limited to a complaint
related to abuse, gross neglect, or exploitation, for the purposes of
resolving the complaint to the resident's satisfaction and of
protecting the health, welfare, and rights of the resident.
(2) Regardless of the complainant who is the source of a
complaint--
(i) The Ombudsman or representative of the Office shall personally
discuss the complaint with the resident (or, where the resident is
unable to communicate informed consent, wishes, or perspective, the
resident's guardian or other legal representative) in order to:
(A) Determine the perception of the resident (or resident
representative, where applicable) of the complaint,
(B) Request the resident (or resident representative, where
applicable) to communicate informed consent in order to investigate the
complaint,
(C) Determine the wishes of the resident (or resident
representative, where applicable) with respect to resolution of the
complaint, including whether allegations are to be reported to other
appropriate agencies,
(D) Advise the resident (or resident's representative, where
applicable) of the resident's rights,
(E) Work with the resident (or resident representative, where
applicable) to develop a plan of action for resolution of the
complaint,
(F) Investigate the complaint to determine whether the complaint
can be verified, and
(G) Determine whether the complaint is resolved to the satisfaction
of the resident (or resident representative, where applicable).
(ii) Where the resident is unable to communicate his or her
perspective on the extent to which the matter has or has not been
satisfactorily resolved, and where there is no legal representative,
the Ombudsman or representative of the Office shall determine whether
the complaint was resolved to the satisfaction of the complainant.
(3) The Ombudsman or representative of the Office may provide
information regarding the complaint to another agency in order for such
agency to substantiate the facts for regulatory, protective services,
law enforcement, or other purposes so long as the Ombudsman or
representative of the Office adheres to the disclosure requirements of
section 712(d) of the Act and the procedures set forth in Sec.
1327.15(a)(2)(C).
(i) Where the goals of a resident are for regulatory, protective
services or law enforcement action, and the Ombudsman or representative
of the Office determines that the resident has communicated informed
consent to the Office, the Office must assist the resident in
contacting the appropriate agency and/or disclose the information for
which the resident has provided consent to the appropriate agency for
such purposes.
(ii) In order to comply with the wishes of the resident, the
Ombudsman and representatives of the Office shall not report suspected
abuse, gross neglect or exploitation of a resident when a resident has
not communicated informed consent to such report pursuant except as set
forth in paragraphs (b)(5)-(7) of this section, notwithstanding state
laws to the contrary.
(4) For purposes of paragraphs (b)(1)-(3) of this section,
communication of informed consent may be made verbally, (and documented
contemporaneously in writing by the representative of the Office) or in
writing, including through the use of assistive technology.
(5) For purposes of paragraphs (b)(1)-(3) of this section, if a
resident is unable to communicate his or her informed consent, or
perspective on the extent to which the matter has or has not been
satisfactorily resolved, the Ombudsman or representative of the Office
may rely on the informed consent, or perspective on the extent to which
the matter has or has not been satisfactorily resolved, of a guardian
or other legal representative of the resident so long as the
representative of the Office has no reasonable cause to believe that
the guardian or other legal representative of the resident is not
acting in the best interests of the resident.
(6) For purposes of paragraphs (b)(1)-(3) of this section, the
procedures for disclosure may provide that, when the resident is unable
to communicate informed consent to the Ombudsman or representative of
the Office, has no guardian or other legal representative, and the
Ombudsman or representative of the Office has reason to suspect that
the resident is a victim of abuse, gross neglect, or exploitation; the
Ombudsman or representative of the Office has reasonable cause to
believe that it is in the best interest of the resident to make a
referral; and the representative obtains the approval of the Ombudsman,
then the Ombudsman or representative of the Office may refer the matter
and disclose the identity of the resident to the appropriate agency or
agencies for regulatory oversight; protective services; access to
administrative, legal, or other remedies; and/or law enforcement
action.
(7) For purposes of paragraphs (b)(1)-(3) of this section, the
procedures for disclosure may provide that, when the resident is unable
to communicate informed consent to the Ombudsman or representative of
the Office; the resident has a guardian or other legal representative
who the Ombudsman or representative of the Office has reasonable cause
to believe is a perpetrator of abuse, gross neglect, or exploitation of
the resident; the Ombudsman or representative of the Office has
reasonable cause to believe that it is in the best interest of the
resident to make a referral; and the
[[Page 36467]]
representative obtains the approval of the Ombudsman, then the
Ombudsman or representative of the Office may refer the matter and
disclose the identity of the resident to the appropriate agency or
agencies for regulatory oversight; protective services; access to
administrative, legal, or other remedies; and/or law enforcement
action.
(8) The procedures for disclosure shall provide that, if the
Ombudsman or representative of the Office personally witnesses
suspected abuse, gross neglect, or exploitation of a resident, the
Ombudsman or representative shall seek communication of informed
consent from such resident to disclose the identity of the resident to
appropriate agencies;
(i) Where such resident is able to communicate informed consent, or
has a representative available to provide informed consent, the
Ombudsman shall follow the direction of the resident (or
representative, if applicable) as set forth paragraphs (b)(1)-(3) of
this section; and
(ii) Where the resident is unable to communicate informed consent,
and has no representative available to provide informed consent, the
Ombudsman or representative of the Office shall open a case with the
Ombudsman or representative of the Office as the complainant, follow
the Ombudsman program's complaint resolution procedures, and (so long
as the Ombudsman or representative has reasonable cause to believe that
disclosure would be in the best interest of the resident and the
representative obtains the approval of the Ombudsman) shall refer the
matter and disclose the identity of the resident to the management of
the facility in which the resident resides and/or to the appropriate
agency or agencies for substantiation of abuse, gross neglect or
exploitation.
(iii) In addition, the Ombudsman may report the suspected abuse,
gross neglect, or exploitation to other appropriate agencies for
regulatory oversight; protective services; access to administrative,
legal, or other remedies; and/or law enforcement action.
(c) Coordination of Ombudsman activities with other elder rights,
disability rights, and elder justice entities--The Ombudsman and
representatives of the Office shall coordinate Ombudsman program
services with those of other state and local entities responsible for
the protection of vulnerable adults for the purpose of promoting
collaborative efforts and diminishing duplicative efforts in the
development and carrying out of elder rights, disability rights, and
elder justice programs. Such entities shall include, but not be limited
to:
(1) Area agency on aging programs;
(2) Adult protective services programs;
(3) Protection and advocacy systems for individuals with
developmental disabilities and mental illnesses established under
subtitle C of Title I of the Developmental Disabilities Assistance and
Bill of Rights Act of 2000; and the Protection and Advocacy of Mentally
Ill Individuals Act of 1986 (42 U.S.C. 10801 et seq.);
(4) Facility and long-term care provider licensure and
certification programs;
(5) The State Medicaid fraud control unit, as defined in section
1903(q) of the Social Security Act (42 U.S.C. 1396b(q));
(6) Victim assistance programs;
(7) Consumer protection and State and local law enforcement
programs; as well as other State and local programs that identify and
assist vulnerable adults and services provided by agencies and courts
of competent jurisdiction; and
(8) Legal assistance programs provided under section 306(a)(c) of
the Act.
(d) Lobbying activities. In carrying out the functions and duties
of the Office set forth in Sec. Sec. 1327.13(a) and 1327.17(a) and
pursuant to the receipt of grant funds under the Act, the Ombudsman's
provision of information, recommendations of changes of laws to
legislators, and recommendations of changes of regulations and policies
to government agencies, do not constitute lobbying activities as
defined by 45 CFR Part 93.
Sec. 1327.19 Conflicts of interest.
The State agency shall consider both the organizational and
individual conflicts that may impact the effectiveness and credibility
of the work of the Office. In so doing, it shall identify actual and
potential conflicts and, where a conflict has been identified, shall
remove or remedy such conflict as set forth in paragraphs (b) and (d)
of this section.
(a) Identification of organizational conflicts. In identifying
conflicts of interest pursuant to section 712(f) of the Act, the State
agency shall consider the organizational conflicts that may impact the
effectiveness and credibility of the work of the Office. Organizational
conflicts of interest include, but are not limited to, placement of the
Office in an organization that:
(1) Is responsible for licensing, surveying, or certifying long-
term care facilities;
(2) Is an association (or an affiliate of such an association) of
long-term care facilities, or of any other residential facilities for
older individuals or individuals with disabilities;
(3) Has an ownership or investment interest (represented by equity,
debt, or other financial relationship) in, or receives grants or
donations from, a long-term care facility;
(4) Has governing board members with ownership, investment or
employment interest in long-term care facilities;
(5) Provides long-term care services, including the provision of
personnel for long-term care facilities or the operation of programs
which control access to or services for long-term care facilities;
(6) Provides long-term care coordination or case management;
(7) Sets reimbursement rates for long-term care services;
(8) Provides adult protective services;
(9) Is responsible for Medicaid eligibility determinations;
(10) Conducts preadmission screening for long-term care residential
placements;
(11) Makes decisions regarding admission or discharge of
individuals to or from long-term care facilities; or
(12) Provides guardianship, conservatorship or other fiduciary or
surrogate decision-making services for residents of long-term care
facilities.
(b) Removing or remedying organizational conflicts. The State
agency shall identify and remove or remedy conflicts of interest
between the Office and the State agency or other agency carrying out
the Ombudsman program.
(1) Where the Office is located within or otherwise
organizationally attached to the State agency, the State agency shall:
(i) Take reasonable steps to avoid internal conflicts of interest;
(ii) Establish a process for review and identification of internal
conflicts;
(iii) Take steps to remove or remedy conflicts;
(iv) Ensure that no individual, or member of the immediate family
of an individual involved in the designating, appointing, otherwise
selecting or terminating the Ombudsman is subject to a conflict of
interest; and
(v) Assure that the Ombudsman has disclosed such conflicts and
described steps taken to remove or remedy conflicts within the annual
report submitted to the Assistant Secretary through the National
Ombudsman Reporting System.
(2) Where a State agency is unable to adequately remove or remedy a
conflict, it shall carry out the Ombudsman program by contract or other
arrangement with a public agency or
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nonprofit private organization, pursuant to section 712(a)(4) of the
Act. The State agency may not operate the Office directly if it:
(i) Is responsible for licensing, surveying, or certifying long-
term care facilities;
(ii) Is an association (or an affiliate of such an association) of
long-term care facilities, or of any other residential facilities for
older individuals or individuals with disabilities; or
(ii) Has an ownership or investment interest (represented by
equity, debt, or other financial relationship) in a long-term care
facility or a long-term care service.
(3) Where the State agency carries out the Ombudsman program by
contract or other arrangement with a public agency or nonprofit private
organization, pursuant to section 712(a)(4) of the Act, the State
agency shall:
(i) Prior to contracting or making another arrangement, take
reasonable steps to avoid conflicts of interest in such agency or
organization which is to carry out the Ombudsman program;
(ii) Establish a process for periodic review and identification of
conflicts in the agency or organization;
(iii) Require that such agency or organization have a process in
place to:
(A) Take reasonable steps to avoid conflicts of interest, and
(B) Disclose such conflicts and steps taken to remove or remedy
conflicts to the State agency for review and approval; and
(iv) Establish a process for State agency review of and criteria
for approval of steps taken to remove or remedy conflicts in such
agency or organization; and
(4) Where an agency or organization carrying out the Ombudsman
program by contract or other arrangement develops a conflict and is
unable to adequately remove or remedy a conflict, the State agency
shall either operate the Ombudsman program directly or by contract or
other arrangement with another public agency or nonprofit private
organization. The State agency may not enter into such contract or
other arrangement with an agency or organization which is responsible
for licensing or certifying long-term care services in the state or is
an association (or affiliate of such an association) of long-term care
facilities, or of any other residential facilities for older
individuals.
(5) Where local Ombudsman entities provide Ombudsman services, the
Ombudsman shall:
(i) Establish a process for periodic review and identification of
conflicts in such entities,
(ii) Require disclosure of conflicts to the Ombudsman by such
entities,
(iii) Establish a process for review of and criteria for approval
of plans to remove or remedy conflicts in such entities; and
(iv) Prior to designating or renewing designation, take reasonable
steps to assure that any conflicts of interest in such entities have
been removed or remedied,
(6) Failure of a local Ombudsman entity to disclose a conflict to
the Office or inability to adequately remove or remedy a conflict shall
constitute grounds for de-designation of a local Ombudsman entity by
the Ombudsman.
(c) Identifying individual conflicts of interest. (1) In
identifying conflicts of interest pursuant to section 712(f) of the
Act, the State agency shall consider individual conflicts that may
impact the effectiveness and credibility of the work of the Office.
(2) Individual conflicts of interest for an Ombudsman,
representatives of the Office, and members of their immediate family
include, but are not limited to:
(i) Direct involvement in the licensing or certification of a long-
term care facility or of a provider of a long-term care service;
(ii) Ownership or investment interest (represented by equity, debt,
or other financial relationship) in an existing or proposed long-term
care facility or long-term care service;
(iii) Employment of an individual by, or participation in the
management of, a long-term care facility in the service area or by the
owner or operator of any long-term care facility in the service area
within the previous year;
(iv) Receipt of, or right to receive, directly or indirectly,
remuneration (in cash or in kind) under a compensation arrangement with
an owner or operator of a long-term care facility;
(v) Accepting gifts or gratuities of significant value from a long-
term care facility or its management, a resident or a resident
representative;
(vi) Accepting money or any other consideration from anyone other
than the Office or an entity designated by the Ombudsman for the
performance of an act in the regular course of the duties of the
Ombudsman or the representatives of the Office without Ombudsman
approval;
(vii) Serving as guardian, conservator or in another fiduciary or
surrogate decision-making capacity for a resident of a long-term care
facility in the service area;
(viii) Serving residents of a facility in which an immediate family
member resides; and
(ix) Participating in activities which negatively impact on the
ability of the Ombudsman or the representatives of the Office to serve
residents or are likely to create a perception that the primary
interest of the Ombudsman or the representatives of the Office is other
than as a resident advocate.
(d) Removing or remedying individual conflicts. (1)The State agency
shall develop and implement policies and procedures to ensure that no
Ombudsman, representatives of the Office, or officer of the Office, are
required to perform duties that would constitute a conflict of interest
as set forth in Sec. 1327.19(c).
(2) When the State agency is considering the employment of an
individual as the Ombudsman or a representative of the Office the State
agency shall:
(i) Take reasonable steps to avoid hiring an individual who has a
conflict of interest or who has a member of the immediate family with a
conflict of interest;
(ii) Establish a process for periodic review and identification of
conflicts of the Ombudsman and representatives of the Office, and
(iii) Take steps to remove or remedy conflicts.
(3) Where the candidate for Ombudsman or representative of the
Office has a conflict that cannot be adequately removed or remedied,
the State agency may not employ such candidate.
(4) Where the Office is operated by another public agency or a
nonprofit private organization, and/or where local Ombudsman entities
employ representatives of the Office, the State agency shall ensure
that the agency organization, or entity has policies in place to
prohibit hiring of an Ombudsman or representatives of the Office with a
conflict that cannot be adequately removed or remedied.
(5) In no circumstance may the State agency; where applicable, the
public agency or non-profit private organization which carries out the
program; or a local Ombudsman entity employ an individual as the
Ombudsman or representative of the Office who:
(i) Has had direct involvement in the licensing or certification of
a long-term care facility or of a provider of a long-term care service
within the previous year;
(ii) Has an ownership or investment interest (represented by
equity, debt, or other financial relationship) in a long-term care
facility or a long-term care service. Divestment within a reasonable
[[Page 36469]]
period may be considered an adequate remedy to this conflict;
(iii) Has been employed by, or participating in the management of,
a long-term care facility within the previous year; or
(iv) Receives, or has the right to receive, directly or indirectly,
remuneration (in cash or in kind) under a compensation arrangement with
an owner or operator of a long-term care facility.
(6) Where the Ombudsman or representative of the Office acquires a
conflict that cannot be adequately removed or remedied, the State
agency; where applicable, the public agency or non-profit private
organization which carries out the program; or a local Ombudsman
entity, may not continue to employ the individual as the Ombudsman or
representative of the Office.
(7) The State agency shall ensure that policies and procedures are
in place so that, in designating representatives of the Office, the
Ombudsman shall:
(i) Take reasonable steps to avoid designation of an individual who
has a conflict of interest or who has a member of the immediate family
with a conflict of interest;
(ii) Establish a process for periodic review and identification of
conflicts of the representatives; and
(iii) Take steps which remove or remedy individual conflicts.
Subpart B--[Reserved]
[FR Doc. 2013-14325 Filed 6-14-13; 11:15 am]
BILLING CODE 4150-04-P