[Federal Register Volume 80, Number 28 (Wednesday, February 11, 2015)]
[Rules and Regulations]
[Pages 7704-7767]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-01914]



[[Page 7703]]

Vol. 80

Wednesday,

No. 28

February 11, 2015

Part II





Department of Health and Human Services





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 Administration on Aging





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45 CFR Parts 1321 and 1327





State Long-Term Care Ombudsman Programs; Final Rule

  Federal Register / Vol. 80 , No. 28 / Wednesday, February 11, 2015 / 
Rules and Regulations  

[[Page 7704]]


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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 Programs

AGENCY: Administration on Aging, Administration for Community Living, 
HHS.

ACTION: Final 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 this final rule in order to implement 
provisions of the Older Americans Act (the Act) regarding States' Long-
Term Care Ombudsman programs (Ombudsman programs). Since its creation 
in the 1970s, the functions of the Nursing Home Ombudsman program 
(later, changed to Long-Term Care Ombudsman program) have been 
delineated in the Act; however, regulations have not been promulgated 
specifically focused on States' implementation of this program. In the 
absence of regulation, there has been significant variation in the 
interpretation and implementation of these provisions among States. HHS 
expects that a number of States may need to update their statutes, 
regulations, policies, procedures and/or practices in order to operate 
the Ombudsman program consistent with Federal law and this final rule.

DATES: Effective date: These regulations are effective on July 1, 2016.

FOR FURTHER INFORMATION CONTACT: Becky Kurtz, Director, Office of Long-
Term Care Ombudsman Programs, Administration for Community Living, 
Administration on Aging, Atlanta Federal Center, 61 Forsyth Street SW., 
Suite 5M69, Atlanta, Georgia 30303-8909, 404-562-7592.

SUPPLEMENTARY INFORMATION: This final rule responds to public comments 
on the proposed rule published in the June 18, 2013, Federal Register 
(78 FR 36449) related to the State Long-Term Care Ombudsman Program.
    Consistent with AoA's proposal in the proposed rule, the effective 
date of the final rule is July 1, 2016. AoA intends to provide 
technical assistance and training to States during this time and to 
allow States appropriate time to make any changes to their laws, 
regulations, policies, procedures, or practices that may be necessary 
in order to comply with this final rule.
    AoA anticipates little or no financial impact on the State agencies 
or other agencies carrying out the Ombudsman program, the consumers 
served by the Ombudsman program, or long-term care facilities through 
implementation of this rule.
    AoA believes that consumers (particularly residents of long-term 
care facilities) and long-term care providers will benefit from the 
implementation of this rule. Consumers and other complainants across 
the country will receive services from Ombudsman programs with more 
consistent quality and efficiency of service delivery.
    States, Ombudsmen, agencies hosting local Ombudsman entities, and 
representatives of Offices of State Long-Term Care Ombudsmen will also 
benefit from the implementation of this rule in the establishment and 
operation of the Ombudsman program at the State and local levels. For 
years, States, Ombudsmen, and representatives of the Offices of State 
Long-Term Care Ombudsmen have reported to AoA that they have found some 
provisions of the Act confusing to implement. This rule seeks to 
provide the clarity that Ombudsman program stakeholders have requested.

Table of Contents

I. Background
II. Provisions of Proposed Regulations and Analysis of and Responses to 
Public Comments
    A. State Agency Policies (Sec.  1321.11)
    B. Definitions (Sec.  1327.1)
    C. Establishment of the Office of the State Long-Term Care 
Ombudsman (Sec.  1327.11)
    D. Functions and Responsibilities of the State Long-Term Care 
Ombudsman (Sec.  1327.13)
    E. State Agency Responsibilities Related to the Ombudsman Program 
(Sec.  1327.15)
    F. Responsibilities of Agencies Hosting Local Ombudsman Entities 
(Sec.  1327.17)
    G. Duties of the Representatives of the Office (Sec.  1327.19)
    H. Conflicts of Interest (Sec.  1327.21)
    I. 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. Background

    State Long-Term Care Ombudsman programs (Ombudsman programs) serve 
as advocates for residents of nursing homes, board and care homes, 
assisted living 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).
    This regulation is promulgated under the authority of sections 
201(e), 307(a), and 712-713 of the Older Americans Act (OAA, or the 
Act) (42 U.S.C. 3011(e), 3027, and 3058g-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 Ombudsman programs.
    In its 1992 OAA reauthorization, Congress created Title VII--
Allotments for Vulnerable Elder Rights Protection Activities, and 
incorporated the provisions related to the activities of 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 part 1321) and last updated in 1988, includes minimal 
provisions which relate to the Ombudsman program. Congress made its 
most recent reauthorization of the Older Americans Act in 2006. The 
changes in this final rule update 45 CFR part 1321--as well as the new 
part 1327--to reflect the 2006 reauthorization of the Act.
    There has been significant variation in the interpretation and 
implementation of the provisions of the Act related to the Ombudsman 
program 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.
    Ombudsman programs were designed by Congress to have several 
features which are uncharacteristic of other programs and services 
created by and funded under the Act. Among those features are 
independence (a characteristic of any type of ombudsman program, not 
only the Long-Term Care

[[Page 7705]]

Ombudsman Program), unusually stringent disclosure restrictions, a 
public policy advocacy function, and the Ombudsman responsibility to 
designate 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 have been implemented with 
substantial variation across states, including variations which are 
inconsistent with the provisions of the Act. This rule is designed to 
address those variations which AoA has determined are inconsistent with 
the provisions of the Act.

II. Analysis of and Responses to Public Comments

    The Administration on Aging/Administration for Community Living 
(AoA) received 85 unduplicated comments during the public comment 
period from State agencies, advocacy groups, long-term care providers 
and associations, State Long-Term Care Ombudsmen, local Ombudsman 
entities, representatives of Offices, Ombudsman program-related 
associations, and the general public. Brief summaries of each proposed 
provision, a summary of public comments we received, and our responses 
to the comments follow.
    The following summarizes comments about the rule, in general, or 
regarding issues not contained in specific provisions:
    Comments: A significant proportion of comments indicated general 
support for publication of a final rule and for the overall content of 
the proposed rule. The comments in support made one or more of the 
following points:
    1. Need for rule--Numerous commenters indicated appreciation for 
AoA's efforts in proposing the rule, indicating that a finalized rule 
would fill a gap that has existed for many years. Some described the 
proposed rule as a long-awaited and critically-needed milestone in the 
development of Ombudsman program services to individuals living in 
long-term care facilities.
    2. Benefits to residents--Several commenters indicated support for 
the proposed rule's emphasis on the central role of the resident in 
directing program action. Some indicated that, when finalized, the rule 
would enable people with disabilities and older adults the ability to 
better understand and utilize Ombudsman program services. Some 
indicated that the rule is likely to result in benefits for individuals 
needing long-term services and supports, contribute to quality of care 
and life for long-term care residents, and/or more effectively 
implement consumer protections.
    3. Program quality--Numerous commenters indicated that the rule, as 
proposed, would likely result in improved Ombudsman program efficiency, 
stability, and/or effectiveness. Some indicated that a final rule would 
provide consistent policy on Ombudsman program responsibilities. One 
commenter indicated that the proposed rule provides service consistency 
while addressing diversity among States in Ombudsman program 
organizational placement.
    4. Needed clarifications--Several commenters described the proposed 
rule as a much needed clarification and amplification of the Act. Some 
commenters indicated appreciation for the proposed rule's clear 
indication that the Ombudsman program work is that of an advocate for 
residents. Some commenters found helpful the description of the 
respective roles of the State unit on aging and the Ombudsman, 
anticipating that the final rule will be helpful in guiding these 
relationships. Some commenters indicated that clarifications in the 
proposed rule would be helpful to long-term care providers to better 
understand the Ombudsman program and its services. One commenter 
indicated appreciation for several clarifications, indicating that 
State agencies, Ombudsmen and representatives of the Office have 
reported finding some OAA provisions confusing to implement, resulting 
in inconsistent services to residents and preventing some residents 
from having their rights protected.
    5. Assistance to States--Some commenters indicated that the final 
rule will assist States as they seek to comply with the OAA in 
implementing a program with a complex and unique character.
    Response: AoA appreciates that a significant proportion of 
commenters expressed support for promulgation of the rule.
    While no commenter indicated objection to promulgation of the rule, 
several comments expressed general concerns which were not limited to a 
specific provision of the proposed rule:
    Comment: One commenter indicated that the proposed rule would grant 
additional powers and authority to the Ombudsman without appropriate 
accountability. The commenter indicated concern that the experience, 
input and recommendations of local Ombudsman entities are not 
adequately recognized in the proposed rule. The commenter states that 
these changes could lessen the effectiveness of local Ombudsman 
entities and harm residents.
    Response: AoA is implementing a rule that reflects and is 
consistent with the intent of Congress as set forth in the OAA with 
respect to the role of the Ombudsman, who is the head of the Ombudsman 
program, and who is accountable for the overall Ombudsman program 
operations, determinations, and positions. The Act indicates that other 
individuals who are providing Ombudsman program services--whether they 
are directly supervised by the Ombudsman or work in an agency hosting a 
local Ombudsman entity--act in the capacity of representatives of the 
Office.
    This rule does not grant significant additional authority to, nor 
require additional functions of, the Ombudsman, but rather clarifies 
the responsibilities already set forth in the Act. Further, AoA holds 
States accountable, as its grantees, to assure operation of the State's 
Ombudsman program in accordance with the OAA, including assuring that a 
qualified and experienced Ombudsman is in place.
    AoA appreciates the experience and expertise of the thousands of 
committed staff and volunteers who serve residents as representatives 
of the Office. In every State, the Ombudsman is far more effective and 
knowledgeable if s/he regularly seeks and values the input of the 
representatives of the Office. We have reviewed the rule in light of 
this consideration and have included references to the representatives 
of the Office and/or local Ombudsman entities to emphasize the 
importance of their involvement at Sec.  1327.11(e) (regarding 
development of Ombudsman program policies and procedures) and at Sec.  
1327.15(g) (regarding inclusion of goals and objectives of local 
Ombudsman entities into area plans on aging, where applicable).
    Comment: One commenter indicated that the final rule should better 
accommodate Ombudsman programs organizationally located in State 
agencies that are separate from the State unit on aging.
    Response: While the majority of State Long-Term Care Ombudsmen are 
employed by State units on aging, and several are organizationally 
located in non-profit organizations under contract with the State unit 
on aging, there are a few States that have chosen to house the 
Ombudsman within another State agency. We believe that the vast 
majority of the provisions in the proposed rule apply to all of these 
organizational placements.
    However, we have reviewed the proposed rule in light of this 
comment.

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We acknowledge that the proposed rule did not adequately provide for 
instances where the Ombudsman has the legal authority to independently 
promulgate policies and procedures. We have provided for this 
circumstance in the final rule by moving the provision related to the 
establishment of Ombudsman program policies to Sec.  1327.11(e) 
(regarding Ombudsman program establishment), instead of Sec.  1327.15 
(regarding State agency responsibilities), to better provide for the 
variety of State authorities and structures related to Ombudsman 
program policy and procedures development. We have also included 
language in the new provision at Sec.  1327.11(e) to more accurately 
reflect the circumstances where the Ombudsman has the legal authority 
to establish program policies. Further, throughout the final rule, we 
have accounted for this variation in State organizational structure and 
authority.
    Comment: Numerous commenters indicated that the final rule should 
provide guidance related to ombudsman services for individuals who live 
in other settings. Some indicated that the ombudsman service should be 
expanded to these other settings. One indicated the need for a uniform 
system to monitor long-term services and supports, regardless of 
location. Others indicated the rule should address guidance regarding 
best practices and coordination with expanded services. Settings 
indicated in these comments included home and community-based services, 
in-home services, hospice, and PACE (Program for All-Inclusive Care for 
the Elderly).
    Response: The OAA provides authority for the Ombudsman program to 
serve residents living in ``long-term care facilities'' as defined at 
Section 102(35) of the Act (i.e. nursing facilities, board and care 
homes, assisted living, and similar adult care facilities). Congress 
has not authorized or funded Ombudsman program services to individuals 
receiving long-term supports and services in in-home settings or in 
non-residential settings such as adult day health centers.
    States which choose to expand the Ombudsman program to serve 
individuals in settings beyond those provided for in the OAA are not 
prohibited from doing so. In fact, thirteen States and the District of 
Columbia currently provide State-level authority and/or resources to 
support expansion of the Ombudsman program to serve individuals living 
in non-facility settings. In addition, some States have provided 
expanded Ombudsman program services to individuals served through 
Federally-created demonstration projects, such as the Money Follows the 
Person project and the Financial Alignment Initiative (a project 
serving individuals dually-eligible for Medicare and Medicaid). AoA has 
no objection to those States which choose to utilize resources other 
than those appropriated through the OAA to expand ombudsman services to 
individuals living in a variety of settings or receiving a variety of 
long-term services and supports. However, absent Congressional 
authorization for the Ombudsman program to expand its services to new 
settings, AoA does not believe that it has the authority to provide for 
such an expansion of services through this rule.
    As further clarification, Ombudsman programs, within the authority 
of the Act, already serve some individuals who live in long-term care 
facilities and receive some of the services indicated by commenters. 
For example, home and community based services (HCBS) services may be 
provided (depending on States' Medicaid waivers or other HCBS programs) 
in board and care or assisted living settings; and hospice services are 
available within many long-term care facilities. Home-health services 
may be available to supplement care in assisted living settings, 
depending on State policies. For individuals receiving these services 
while residing within long-term care facilities, Ombudsman program 
services are already available and authorized by the Act.
    Comment: Several commenters recommended that the rule should 
require that the Ombudsman program be completely separate and 
independent from State government.
    Response: Requiring all States to place the Ombudsman program 
outside of State government would be inconsistent with the provisions 
of the OAA. The OAA establishes the Ombudsman program through grants to 
State units on aging and specifically provides the option for the State 
agency to determine where the program should be organizationally 
located. While providing some limitations (such as conflicts of 
interest), the Act indicates that ``the State agency may establish and 
operate the Office, directly, or by contract or other arrangements with 
any public agency or nonprofit private organization.'' Section 
712(a)(4) of the Act.
    Some States have effective Ombudsman programs which are 
organizationally located, in whole or in part, inside of the State 
agency. In these States, the Ombudsman program is able to fully carry 
out the provisions of the OAA, even when the policies of the Office 
differ from the general policies in place for State employees. Examples 
of such practices are stringent disclosure limitations, making 
independent recommendations to legislators and other policymakers, and 
having direct access to the media to discuss long-term care policy 
matters. We realize that some States have had difficulty in carrying 
out all of the Ombudsman program provisions in the OAA. It is our 
intention that this rule will help those States have a better 
understanding of the OAA requirements and come into full compliance 
with the law. Where they are unable or unwilling to accommodate the 
provisions of the OAA which are necessary to provide for an effective 
Ombudsman program, State agencies will need to examine whether they are 
able to successfully operate the Ombudsman program directly or pursue 
an alternative course.
    Comment: One commenter indicated that AoA is wise to build into the 
process time to allow networks to make appropriate changes and 
construct effective remedies where conflicts exist.
    Response: AoA realizes that some States have implemented laws, 
regulations, policies, organizational structures, or other actions 
which are inconsistent with this rule. In the absence of regulation, 
States have by necessity moved forward with operating the Ombudsman 
program, resulting in significant inconsistencies among States. While 
accommodating a variety of organizational placements and approaches to 
Ombudsman program operations, we have focused, in this rule, on those 
areas which we believe are critical to full implementation of the OAA. 
In order to accommodate those States which will have to make changes to 
their laws or regulations, this rule becomes effective on July 1, 2016.
    This date provides most States with the benefit of two legislative 
sessions in order to make any needed changes. States with biennial 
legislative sessions will have an opportunity to make legislative 
changes to implement the rule whether the State has a legislative 
session in 2015 or in 2016. In addition, since most States begin their 
fiscal years on July 1, we believe that this date will provide a 
logical and convenient time frame for those States to implement 
legislative or regulatory changes. ACL notes that many States will not 
require legislative changes in order to comply with this rule.
    Comment: One commenter indicated concern about provisions that may 
necessitate State legislative action. Another commenter recommended 
that the period of one year for implementation be extended to provide

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States and local Ombudsman entities with adequate time to remedy 
conflicts.
    Response: For the reasons indicated above, ACL has changed the 
effective date of this rule to July 1, 2016.
    Comment: One commenter indicated that strict implementation of the 
rule could jeopardize State funding, which is used to supplement the 
Ombudsman program, impacting the Ombudsman program, facilities, 
residents, and the ability of the State to expand its program into in-
home settings.
    Response: AoA appreciates that a number of States provide 
additional resources in order to supplement the Ombudsman program. As a 
result of these States' commitment to this work, residents have 
improved access to Ombudsman program services. It is our intent that 
States will continue their commitment to serve long-term care facility 
residents regardless of the promulgation of this rule. We do not 
foresee how compliance with this rule would jeopardize any State's 
ability to support the work of the Ombudsman program.
    Comment: One commenter indicated that the proposed rule does not go 
far enough in addressing critical problems that Ombudsman programs 
face.
    Response: In promulgating this rule, AoA has attempted to address 
the issues that would most significantly benefit from regulatory 
clarity and authority. These issues were identified based on our 
experience with State operations of Ombudsman programs as well as 
recommendations of evaluators and stakeholders. We also considered the 
variety of State approaches to implementing the Ombudsman program, with 
a goal of minimizing disruption to Ombudsman program operations while 
adhering to the requirements of the OAA. We are not clear from the 
comment to which ``critical problems'' the commenter refers. However, 
we anticipate that responses to more specific comments, below, may 
respond more fully to the comment.
    Comment: One commenter indicated a desire for increased 
accessibility to more low-income persons and people with disabilities 
who have a hard time accessing Ombudsman program services. The 
commenter indicated support for re-evaluation of the poverty threshold.
    Response: The services of Ombudsman programs are available to all 
residents of long-term care facility residents, without regard to 
financial status or payment source. The OAA requires that the Ombudsman 
``ensure that the residents have regular and timely access to the 
services provided'' (Section 712(a)(3)(D) of the Act). In most States, 
access is provided to residents through regular visits to facilities by 
representatives of the Office--as well as through telephone, email, 
facsimile, Web site contacts, TTY (text telephone) and other 
communication services, and mail--so residents do not need to visit a 
physical office location to have access to Ombudsman program services.
    ACL does not have authority to evaluate or calculate the national 
poverty threshold.
    Comment: One commenter recommended that AoA take actions to monitor 
Ombudsman programs, formally assess compliance with the Act, and apply 
sanctions for continuing non-compliance, including the use of graduated 
remedies and including de-designation to replace the Office where the 
Ombudsman fails to address major concerns of residents.
    Response: It is our intention, through the implementation of this 
rule, that State agencies and Ombudsman programs will be better 
equipped to comply with the provisions of the Act. The State agency 
duty to provide for sanctions with respect to interference, retaliation 
and reprisals is addressed at Sec.  1327.15(i). In addition, Federal 
regulation provides options for HHS grant-awarding agencies, including 
AoA, to respond when a grantee (the State agency in this circumstance) 
fails to comply with any term of an award. 45 CFR 75.371.

A. State Agency Policies

    We proposed revision to Sec.  1321.11(b) in order to clarify the 
responsibility of the State agency on aging (also referred to as 
``State unit on aging'' and, for purposes of these regulations, ``State 
agency'') regarding appropriate access to the files, records and other 
information maintained by the Ombudsman program in its monitoring of 
the Ombudsman program. We substituted the term ``files'' with ``files, 
records and other information'' in order to accommodate the increased 
use of digital information and incorporate information obtained 
verbally and by other means, as well as to clarify that the disclosure 
provisions of the Act at section 712(d) are not limited to information 
that is contained in case (i.e. complaint resolution) records. For 
example, information collected during individual consultation 
activities which are not part of case files also would be subject to 
this provision.
    Comment: Several comments indicated support for the proposed 
revision to 45 CFR 1321.11(b). Several comments indicated appreciation 
for the clarification. Others described the proposed revision as a 
modernization since it provides for various formats of information--
including electronic formats and information obtained verbally. One 
comment indicated that the revision was an acceptable balance between 
Ombudsman program disclosure limitations and the needs of the State 
agency to provide oversight and monitoring of the Ombudsman program 
performance. One commenter indicated that this strengthens protection 
of resident-specific information. One commenter indicated support for 
removal of the provision that permits a State agency director or senior 
manager to review redacted files of the Ombudsman program. Other 
commenters indicated that the proposed revision supports and clarifies 
the responsibility of the Ombudsman to monitor the operations of the 
Office and to protect confidential information maintained in the files, 
records or other information of the Office.
    Response: AoA appreciates the supportive comments.
    Comment: Two commenters indicated that the final rule should 
include language that requires State agency and AoA to ``ensure that no 
conflicts of interest arise or persist.'' Another comment recommended 
that the rule require the State agency to develop a plan on how the 
Office of the State Long-Term Care Ombudsman is immunized from 
potential conflict of interest.
    Response: We have addressed conflict of interest issues in the 
provisions set forth in Sec.  1327.21 and believe the recommended 
changes would be redundant.
    Comment: Two commenters indicated that the State agency should 
develop a plan on how the Office of the State Long-Term Care Ombudsman 
is immunized from interference by the State agency or other outside 
agencies to ensure autonomous advocacy.
    Response: We have made changes to further clarify the manner in 
which States are to protect the Office from interference in other final 
rule provisions as a result of considering these and other related 
comments. Therefore, we believe that amending Sec.  1321.11(b) to 
address interference, as recommended by commenters, would be redundant. 
Specifically, we have added a definition of ``willful interference'' at 
Sec.  1327.1 and a new provision on State agency duties regarding 
interference, retaliation and reprisals at Sec.  1327.15(i) in the 
final rule.
    Comment: One comment indicated that AoA should clarify that it 
would be reasonable to require submission of aggregate data on 
complaint processing and activities and disclosure of

[[Page 7708]]

aggregate facility and provider-specific information by the Ombudsman 
to the State agency. Another commenter described that a local Ombudsman 
entity submits aggregate data to its respective area agency on aging 
(AAA), providing a balance of AAA need to have information and the 
Ombudsman program need to protect resident and complainant identifying 
information.
    Response: We agree with the commenter that the submission of 
aggregate data of the Ombudsman program to the State agency as well as 
to an agency hosting a local Ombudsman entity is appropriate. This is 
clarified in the final rule at Sec.  1327.15(e) with respect to the 
State agency.
    Comment: One commenter recommended limitations on the use of the 
Ombudsman program information by the State agency so that the 
information is used solely for the purpose of oversight, and that it 
not be released outside of the State agency or be used for quality 
improvement or monitoring of other programs administered by the State 
agency.
    Response: We do not agree that AoA should issue requirements 
regarding the appropriateness of the use of data which is permissible 
for disclosure by the State agency or other entities. The Act requires 
that Ombudsman program ``files and records . . . may be disclosed only 
at the discretion of the Ombudsman'' and prohibits disclosure of the 
identity of any complainant or resident except in limited 
circumstances. Section 712(d)(2) of the Act.
    We believe that the final rule provisions related to disclosure 
limitations (at Sec. Sec.  1327.11(e)(3),(8) and 1327.13(e)), as well 
as Ombudsman participation in the development of policies governing its 
operations (at Sec. Sec.  1327.11(e), 1327.13(b)(1)), provide 
sufficient authority to the Ombudsman, in coordination with the State 
agency, to develop parameters about appropriate uses of aggregate 
Ombudsman program data.
    Comment: One commenter suggested adding a provision encouraging 
Ombudsman programs to share non-confidential information with advocacy 
organizations and identifying information from a complainant with 
complainant permission.
    Response: The Act provides the Ombudsman with the authority to 
determine disclosure of Ombudsman program information where it is not 
otherwise prohibited. See Section 712(d) of the Act. The final rule 
addresses this statutory requirement at Sec.  1327.11(e)(3). We also 
note that aggregate data provided by each State's Ombudsman program to 
AoA through the National Ombudsman Reporting System is posted publicly 
on www.agidnet.acl.gov and www.acl.gov.
    The Act provides the Ombudsman with the responsibility to determine 
appropriate disclosure of program information (unless it is otherwise 
prohibited), and this rule (at Sec.  1327.11(e)(3)) requires 
development of policies and procedures regarding disclosure of program 
information. Beyond these requirements, AoA does not take a position on 
which specific information the Ombudsman should disclose to specific 
entities. However, we note that other provisions in this rule do 
require Ombudsman program coordination with other entities (see, e.g., 
Sec.  1327.13(h). Depending on the goals of coordinated activities, 
appropriate disclosure of information may support the success of such 
coordination.
    Comment: One commenter suggested that the rule use the terms 
``identity'' and ``identifying information'' consistently or provide 
explanation of the distinction in meaning.
    Response: We have made changes in the final rule to consistently 
use the term ``identifying information'' or ``resident-identifying 
information'' and have omitted the term ``identity'' in provisions 
related to disclosure of information.
    Comment: One commenter indicated that ``other information'' is 
ambiguous relative to which information is actually accessible and 
suggested adding ``retained by the Office.''
    Response: In the proposed rule, we used the language ``files, 
records and other information maintained by the Office'' for 
consistency with the language of the relevant provision of the Act 
(i.e. ``files maintained by the program''). OAA section 712(d). We do 
not agree that the term ``retained by the Office'' provides more 
clarity than ``maintained by the Office,'' so have not revised this 
language in the final rule.
    Comment: One commenter indicated that some States do not have a 
defined format for documenting consultations and that the proposed rule 
may suggest a specified procedure and documentation methodology for 
consultations.
    Response: AoA does not intend to suggest any need for change in the 
manner that States document or collect data related to consultations in 
this rule. AoA requires States, through the National Ombudsman 
Reporting System (NORS), to report the total number and most frequent 
areas of consultation to facilities and of consultations to 
individuals. OMB Control Number 0985-0005. This rule does not require 
States to make any changes to their documentation of consultations or 
related data through NORS. In order to make any change in NORS, AoA is 
required to publish a notice in the Federal Register pursuant to the 
Paperwork Reduction Act. This rule does not constitute such a notice.
    Comment: One commenter requested that language be added regarding 
the timeframe required to capture and retain records.
    Response: Since the Ombudsman program is operated by States 
pursuant to grants of the Department of Health and Human Services 
(HHS), the Federal requirements related to retention of records 
maintained pursuant to HHS grants apply to records retention of the 
Ombudsman program. In general, grant recipients and their sub-awardees 
under the grant must retain financial and programmatic records, 
supporting documents, statistical records, and all other records that 
are required by the terms of a grant, or may reasonably be considered 
pertinent to a grant, for a period of 3 years from the date the final 
Financial Status Report is submitted by States to HHS. The HHS 
requirements related to the retention of records are found at 45 CFR 
75.361. This Federal grant requirement does not prohibit State 
agencies, the Office of the State Long-Term Care Ombudsman, and/or a 
local Ombudsman entity from establishing record retention policies 
which are provide for longer retention periods than the Federal 
requirements.
    Comment: One commenter indicated that the files should be the 
property, not only of the Office, but also of the representative of the 
Office.
    Response: The final rule requires that the Ombudsman shall be 
responsible for the management of the files, records and other 
information of the Office, regardless of whether the files are 
physically maintained by representatives of the Office. We believe that 
indicating that the files, records, and other information are also the 
property of the representatives of the Office could create confusion. 
However, we have clarified that nothing in the final rule prohibits a 
representative of the Office or local Ombudsman entity from physically 
maintaining such information in accordance with Ombudsman program 
requirements at Sec.  1327.13(d).

B. Definitions

Definition of Immediate Family
    We proposed to define the term ``immediate family'' because it is 
used

[[Page 7709]]

repeatedly, but not defined, in section 712(f) of the Act related to 
conflict of interest. We proposed that ``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.''
    We selected this definition 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). In developing the definition, we 
were informed by the Federal standards of ethical conduct related to 
impartiality in an employee's conduct. See 5 CFR 2635.502(a),(b).
    We also note, that, under ACL's April 21, 2014 Guidance on Federal 
Recognition of Same-Sex Marriage (available at http://www.acl.gov/Funding_Opportunities/Grantee_Info/Index.aspx), an immediate family 
member who is a member of the household or a relative includes a spouse 
in a same-sex marriage.
    Comment: Eleven commenters indicated that they supported the 
proposed definition. Of those, three commenters indicated that the 
proposal provided helpful clarification. One indicated that the absence 
of a definition has left it up to State agencies to interpret. One 
indicated that the definition reflects the reality that non-blood and 
non-marital relations may cause conflicts of interest.
    Response: We appreciate the supportive comments.
    Comment: One commenter suggested that we add language to the 
definition indicating that the definition ``is not intended to restrict 
the authority of the Ombudsman to refuse to designate, or to de-
designate, other individuals whom the Ombudsman determines are not 
qualified or have a conflict of interest.''
    Response: As the commenter correctly states, AoA does not intend to 
restrict the authority of the Ombudsman to designate or de-designate 
other individuals whom the Ombudsman determines are not qualified or 
have a conflict of interest. The authority of the Ombudsman to 
designate and de-designate is provided in the final rule at Sec.  
1327.13(c), rather than in the definition.
    Comment: Eight commenters indicated that the proposed definition is 
not sufficiently clear or is too open to interpretation. Two commenters 
of these commenters asked for clarification of the terms ``immediate 
family,'' ``household,'' and ``direct and predictable effect.'' One 
commenter indicated that any relative working in a facility would pose 
a conflict for a representative of the Office who serves residents of 
that facility.
    Response: After consideration of these comments, we have retained 
the proposed definition. We note that neither the proposed rule nor 
this final rule utilizes the term ``direct and predictable effect'' 
(although the Federal standards for ethical conduct do utilize the 
term).
    We realize that not every question is addressed by this definition, 
but we believe it provides additional clarity to the provisions of the 
Act. In addition, while Federal interpretations of the regulation from 
which this definition was derived (5 CFR 2635.502(a),(b)) are not 
controlling, they may assist States in considering ways to apply this 
definition consistently with Federal government application to its 
employees.
    Comment: One commenter asked about why the ``immediate family'' 
term does not include the situation where the close friend of a 
representative of the Office works at a facility and the complaint is 
against that person.
    Response: The definition of the term ``immediate family'' is 
included in the rule in order to clarify the term, which is used in the 
Act. The term is used in the provisions of the OAA to specifically 
relate to conflicts of interest for the following situations:
    (1) An individual who designates the State Ombudsman or local 
Ombudsman entity (section 712(f)(1));
    (2) officers, employees, or representatives of the Office (section 
712(f)(2)). By defining ``immediate family,'' ACL does not intend to 
indicate that the State agency is limited in its ability to identify 
other conflicts of interest, including conflicts of interest related to 
complaints lodged against a close friend of the Ombudsman or a 
representative of the Office. Moreover, in the provisions related to 
conflict of interest, the rule specifically indicates that the State 
agency is required to identify conflicts of interest and provides 
examples, but not limitations, of the types of conflicts to be 
identified (Sec.  1327.21(a), (c)).
Definition of Office of the State Long-Term Care Ombudsman
    AoA proposed a definition of the ``Office of the State Long-Term 
Care Ombudsman'' due to inconsistencies among States and confusion 
regarding which individual or individuals constitutes the ``Office.'' 
For example, we believe that States will benefit from clarification 
regarding who is responsible for making determinations specifically 
required of the Office by the Act.
    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, and more specifically of the 
Ombudsman, as the head of that Office. Thus, this rule clarifies and 
codifies the definition.
    In the final rule, we have modified the definition to clarify that 
the Office is the organizational unit in a State or territory which is 
headed by the Ombudsman. We have provided an additional definition for 
``State Long-Term Care Ombudsman program'' in order to distinguish this 
term from the ``Office'' since the ``Office,'' in some States, is 
organizationally separate from local Ombudsman entities. We recognize 
that in other States where the Ombudsman does not designate local 
Ombudsman entities, the Office will be identical to the ``State Long-
Term Care Ombudsman program.'' Regardless of the organizational 
structure, the definition of ``State Long-Term Care Ombudsman program'' 
in Sec.  1327.1 is inclusive of the Ombudsman, the Office, and the 
representatives of the Office.
    Comment: We received ten supportive comments on the proposed 
definition. Several commenters indicated that the proposal would 
provide helpful clarity. Two commenters indicated that the proposed 
definition would enhance the concept that the Ombudsman program is to 
be a unified program within the State. Another indicated that the 
proposal would appropriately distinguish the Office and reinforce the 
responsibility of representatives of the Office.
    Response: We appreciate the supportive comments.
    Comment: One commenter suggested consideration of the addition of 
the following language: ``the Office of the State Long-Term Care 
Ombudsman is not the State agency on aging or State licensing agency.''
    Response: While we do not disagree with the comment, we do not 
believe a change from the proposed definition is needed. We believe 
that the definition as it was proposed, particularly when it is taken 
in context with the provisions of Sec.  1327.11 (regarding the 
establishment of the Office), provides adequate clarity that 
distinguishes the Office from both the State agency (while recognizing 
that the Office may be organizationally situated within or

[[Page 7710]]

attached to the State agency) or the State licensing entity.
    Comment: One commenter asked the question whether, since the 
definition of ``Office'' includes representatives, only the Ombudsman 
can determine these positions and whether a State agency or an 
Ombudsman could establish a policy that prohibits representatives of 
the Office from taking positions without approval or that prohibits 
positions that are different than the Office.
    Response: We have revised the definition of ``Office of the State 
Long-Term Care Ombudsman'' in the final rule so that it does not 
include the representatives of the Office. The Act indicates that ``The 
State agency shall require the Office to . . . recommend any changes in 
. . . laws, regulations, and policies as the Office determines to be 
appropriate;'' Section 712(h)(2) of the Act. We interpret this 
provision to mean that it would be inappropriate for a State agency to 
prohibit the Office from taking a particular position related to a 
recommendation in changes to relevant laws, regulations, and policies. 
Doing so would interfere with the responsibility of the Office to make 
such determinations. See Sec. Sec.  1327.11(e)(8); 1327.13(a)(7); 
1327.15(k)(2).
    The Act provides that the Office shall be headed by the Ombudsman 
in section 712(a)(2) and specifically defines the word ``Ombudsman'' as 
the ``individual described in section 712(a)(2).'' Section 711(2) of 
the Act. Taken together, we read the statute to indicate that, as the 
head of the Office, the Ombudsman has the authority to determine the 
positions of the Office as well as the processes by which such 
determinations are made within the Office. Therefore, we believe the 
Act would not prohibit an Ombudsman from establishing a policy that 
limits the ability of representatives of the Office from taking 
positions without approval of the Ombudsman or that are different than 
that of the Ombudsman.
    AoA encourages each Ombudsman to solicit and consider the views of 
representatives of the Office, to encourage dialogue among 
representatives of the Office in formulating the positions of the 
Office, and to empower representatives of the Office to carry out their 
duties under section 712(a)(5) of the Act, including duties to 
``represent the interest of residents before government agencies'' 
(section 712(a)(5)(B)(iv)) and ``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'' (section 712(a)(5)(B)(v)(I)).
Definition of Representatives of the Office of the State Long-Term Care 
Ombudsman
    In proposing a definition of ``Representatives of the Office of the 
State Long-Term Care Ombudsman,'' we intended to clarify that the 
representatives of the Office, including employees and volunteers 
designated by the Ombudsman, 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 set forth at Sec.  1327.19.
    We further intended to clarify that the ``representatives of the 
Office'' are to be accountable to the head of the Office (i.e. the 
Ombudsman) 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, those representatives of the Office who 
are organizationally located within local Ombudsman entities also 
represent the agency hosting the local Ombudsman entity, as this agency 
oversees them for personnel management matters (for example, the 
representative of the Office must follow the agency's personnel 
policies so long as those policies do not conflict with Ombudsman 
program law and policy).
    Comment: Ten commenters indicated support for the proposed 
definition. One commenter indicated that the proposal recognizes that 
both employees and volunteers are to be considered representatives of 
the Office, regardless of the entity that provides direct supervision. 
Two comments indicated that the proposal would clarify that 
representatives of the Office are to be held accountable to the 
Ombudsman, regardless of whether affiliated with another entity. 
Another commenter indicated that the proposal should serve to unify the 
Ombudsman program within a State. One commenter indicated that this 
definition helps clarify for facilities whether they may appropriately 
provide volunteer representatives of the Office with access to 
residents and to whom facilities should address inquiries.
    Response: We appreciate the supportive comments.
    Comment: One commenter indicated that the proposal did not go far 
enough to address the risks to the individual representative of the 
Office who is organizationally located within local Ombudsman entities, 
given that the individual is reporting to one authority for 
programmatic matters and another for personnel management matters.
    Response: We acknowledge that representatives of the Office who are 
employed by or who volunteer for a local Ombudsman entity can be in a 
difficult position when reporting to one authority for programmatic 
matters and another for personnel management matters. The OAA sets up a 
distinctive and highly unusual structure in which the Ombudsman is 
responsible for designating all representatives of the Office but is 
(depending on the State's chosen programmatic structure) not 
necessarily the authority for personnel management matters. We believe 
that those States which choose to utilize local Ombudsman entities may 
operationalize the requirements of the Act by dividing the authority 
between the personnel functions of the agency hosting the local 
Ombudsman entity, including hiring and firing, and the programmatic 
functions of the Ombudsman, including designation and de-designation. 
Despite the fact that the State agency (and/or the Office of the State 
Long-Term Care Ombudsman, depending on the organizational structure) 
contracts with an agency hosting the local Ombudsman entity to provide 
Ombudsman program services, the relationship is more complex than a 
typical contractual one. In addition to contract oversight for 
programmatic issues, the Ombudsman is also responsible for designation 
of the representatives of the Office. Further, the employees and 
volunteers of the local Ombudsman entity (i.e. representatives of the 
Office) have a direct representational relationship to the Office. As a 
result, this relationship between the Ombudsman and the agency hosting 
the local Ombudsman entity is not limited to merely a contract 
oversight function.
    We believe that, in the absence of regulation, many State agencies 
and agencies hosting local Ombudsman entities have found this 
distinctive relationship to be confusing and difficult to successfully 
implement. It is the intention of AoA to clarify this distinctive 
relationship through this definition, as well as through other 
provisions of this rule. We believe this clarification will help both 
States and agencies hosting local Ombudsman entities to operationalize 
the Ombudsman program in a manner consistent with what Congress 
intended and help to reduce the risks to the individual representatives 
of the Office. If all entities and individuals involved in operating 
the Ombudsman program understand that, where local Ombudsman entities 
are utilized in a

[[Page 7711]]

State, there is a separation between programmatic oversight and 
personnel management, and the policies of the Ombudsman program 
appropriately implement this separation, this should help the 
individual representatives know to whom they are accountable for 
programmatic matters (i.e. the Ombudsman) and to whom they are 
accountable for personnel management matters (i.e. the agency hosting 
the local Ombudsman entity). We believe that the proposed definition, 
and the context of the entire rule, provides clarity that directly 
relates to the cause of the risks identified by the commenter.
    Comment: One commenter indicated that in their State, Ombudsman 
program volunteers are appointed by county commissioners, not 
designated by the Ombudsman. As a result, when a volunteer does not 
appropriately perform programmatic duties, the appointing authority--
and not the Ombudsman--has the only authority to remove the volunteer 
from this role.
    Response: We appreciate the commenter bringing this issue to our 
attention in the comment. The Act is clear that the Ombudsman has the 
authority to designate representatives of the Office. Section 712(a)(5) 
of the Act. Further, this rule clarifies that the Ombudsman has the 
sole authority to designate and de-designate representatives of the 
Office. Sec.  1327.13(c). AoA plans to provide technical assistance to 
States to assist them in coming into compliance with this rule.
    Comment: One commenter suggested that the proposed definition could 
be strengthened with a citation to OAA section 711 and with inclusion 
of language regarding personnel management of the local Ombudsman 
entity which cannot conflict with Ombudsman law and policy.
    Response: We have included reference to section 711 of the Act in 
the definition of ``State Long-Term Care Ombudsman program'' in the 
final rule. We also agreed with the commenter's suggestion to 
incorporate into the final rule the inclusion of the concept, included 
in the preamble of our proposed rule, related to personnel management 
of the agency hosting the local Ombudsman entity not conflicting with 
Ombudsman law and policy. We have incorporated this concept into a new 
provision at Sec.  1327.17(b).
Additional Recommended Definitions
    Numerous commenters suggested the need for additional definitions 
of terms used in the proposed rule and/or the Act.
    Comment: Ten commenters recommended that the final rule define the 
term ``willful interference.'' Some of them indicated that the 
definition was needed to clarify and support the requirement in the Act 
that the Office and its representatives are free from interference in 
the course of performing required functions. Several commenters offered 
suggested language defining the term.
    Response: We have added a definition of ``willful interference'' at 
Sec.  1327.1. We have also developed new provisions regarding 
interference, retaliation, and reprisals in response to these and other 
comments at Sec.  1327.15(i).
    Comment: One commenter recommended that the final rule define the 
term ``long-term care Ombudsman program.'' The commenter indicated that 
the term ``program'' is commonly used to describe both the State Office 
and local Ombudsman entities and is described in the Act, at sections 
711(4) and 712(a)(1)(B), as the mechanism through which the Office 
carries out its duties.
    Response: We appreciate this helpful comment. We understand the use 
of these terms can be confusing due to the variety of organizational 
structures used by States. Therefore, in some States which use a 
centralized structure, the Office of the State Long-Term Care Ombudsman 
is made up of the individual who is the State Long-Term Care Ombudsman 
and representatives of the Office, and is structurally the same as the 
``program.'' In other, more decentralized organizational structures, 
the ``program'' is a combination of the ``Office of the State Long-Term 
Care Ombudsman'' and the ``representatives of the Office'' who are 
organizationally located within ``local Ombudsman entities.''
    In response to this comment, we have added a definition of ``State 
Long-Term Care Ombudsman program,'' revised the definition of ``Office 
of the State Long-Term Care Ombudsman'' in order to more clearly 
distinguish between the meanings of these terms, and separated out the 
provisions related to the agencies hosting local Ombudsman entities in 
a new section Sec.  1327.17.
    Specifically, to the definition of ``Office of the State Long-Term 
Care Ombudsman'' we have added the term ``in a State or territory'' and 
deleted ``including the representatives of the Office.'' We have 
included the provision regarding ``representatives of the Office'' 
within a new definition for the term ``State Long-Term Care Ombudsman 
program'' and indicated that it is through the State Long-Term Care 
Ombudsman program that the functions and duties of the Office are 
carried out.
    Comment: One commenter recommended that the term ``State agency'' 
be defined as it is used frequently in the proposed rule.
    Response: The final rule is part of subchapter C Administration on 
Aging, Older Americans Programs of chapter XIII of the Code of Federal 
Regulations. Part 1321 of subchapter C provides a detailed explanation 
of the responsibilities of the State agency which include, but are not 
limited to, its responsibilities in carrying out the State's Ombudsman 
program. We did not adopt the recommendation to include a definition 
for ``State agency'' within these regulations, which are limited to 
operations of the Ombudsman program.
    However, to provide additional clarity, we have included language 
in Sec.  1327.15(a),(e) to cross reference the term ``State agency'' to 
the related provision in 45 CFR part 1321.
    Comment: Seven commenters recommended that we add a definition for 
the term ``legal representative'' and/or clarify the distinction 
between ``legal representative'' and ``resident representative.'' One 
indicated that a reader might mistakenly interpret the term ``legal 
representative'' to mean a resident's lawyer.
    Response: We agree that it would be helpful to use one term 
consistently. While the Act uses the term ``legal representative,'' we 
agree that the term ``resident representative'' may be less confusing; 
since a reader is unlikely to interpret the use of ``resident 
representative'' to an attorney or court-appointed representative 
unlike ``legal representative.'' In response to these comments, we have 
consistently used the term ``resident representative'' throughout the 
final rule, and we have added a definition of the term in Sec.  1327.1. 
We also note that, under ACL's April 21, 2014 Guidance on Federal 
Recognition of Same-Sex Marriage (available at http://www.acl.gov/Funding_Opportunities/Grantee_Info/Index.aspx), a spouse in a same-sex 
marriage could serve as a resident representative.
    We intend for our definition of ``resident representative'' to be 
consistent with the person-centered approaches to Ombudsman program 
services. The ``resident representative'' is authorized to provide 
permission for a representative of the Office to perform the certain 
tasks when a resident is unable to communicate informed consent or 
prefers to have a representative act on his/her behalf. Those tasks 
include: Access to resident

[[Page 7712]]

records; disclosure of the resident identifying information; and 
initiation of the investigation a complaint, coordination of the 
investigation and resolution approach, and determination of the 
resolution of the complaint. Relevant provisions are found in the 
regulations related to complaint processing at Sec.  1327.19(b) and 
related to disclosure of resident-identifying information at Sec.  
1327.11(e)(3).
    Comment: One commenter recommended that we remove the use of the 
term ``resident representative'' because they found it confusing and 
ambiguous.
    Response: For the reasons indicated above, we have chosen to 
continue to use the term ``resident representative'' consistently and 
to replace the term ``legal representative'' where that was used in the 
proposed rule.
    Comment: Two commenters recommended that we add a definition for 
the term ``protection and advocacy systems.''
    Response: We did not add a definition of the term ``protection and 
advocacy systems'' but instead have revised the description of 
protection and advocacy systems in the final rule at Sec.  
1327.13(h)(4).
    Comments: One commenter recommending adding a definition to clarify 
that designation and de-designation includes certification and de-
certification. The commenter indicated that some States use the term 
``certification'' to apply to individuals and ``designation'' for the 
local Ombudsman entity.
    Response: We do not agree that a definition is needed, as we 
believe the commonly defined use of these terms is sufficient to 
explain the use of these terms. According to the Merriam Webster 
Dictionary, to ``certify'' means ``to say officially that something or 
someone has met certain standards or requirements'' and ``designation'' 
means ``appointment to or selection for an office, post, or service.''
    Therefore, in the context of the Ombudsman program, the Ombudsman 
certifies (i.e. officially says) that an individual has met the 
training and other requirements necessary for an individual to serve as 
a ``representative of the Office.'' Further, the Ombudsman designates 
(i.e. appoints or selects) an individual to be a ``representative of 
the Office'' and designates a ``local Ombudsman entity'' to assist in 
providing the Ombudsman program services at the local level. 
Certification that an individual has met required training requirements 
is one of the factors (along with other relevant factors, such as 
freedom from unremedied conflict of interest and employment by or 
volunteer agreement with a local Ombudsman entity, where applicable) to 
be considered in the Ombudsman's determination that the individual is 
qualified to be designated as a ``representative of the Office.''
    Comment: One commenter recommended that we add a definition for the 
term ``aggregate data,'' indicating that this relates to the scope of 
the State agency's access to Ombudsman program data while permitting 
the Ombudsman program to adhere to confidentiality requirements.
    Response: We do not agree that a definition is needed, because the 
common definitions of the words ``data'' and ``aggregate'' are 
sufficient. According to the Merriam Webster Dictionary, the adjective 
``aggregate'' means ``formed by adding together two or more amounts'' 
and ``taking all units as a whole.'' The word ``data'' means ``facts or 
information used usually to calculate, analyze, or plan something.'' 
Further, the provisions regarding establishment of policies and 
procedures regarding disclosure at Sec.  1327.11(e)(3) provide 
sufficient clarity on the relevant requirements of the Act.
    Comment: One commenter recommended that we add a definition for the 
term ``unable to communicate informed consent,'' indicating that the 
term is ambiguous.
    Response: We believe that the term ``unable to communicate informed 
consent'' improves the clarity of the term ``unable to consent'' which 
is used in the Act, related to Ombudsman program access to resident 
records. Section 712(b)(1)(B)(i)(II) of the Act. Our expectation is 
that States will operationalize the use of this term by incorporating 
it into the Ombudsman program's procedures for resident records and 
complaint processing. We are also available to provide States with 
technical assistance should the need arise for further clarity on how 
to operationalize this term within Ombudsman program operations.

C. Establishment of the Office of the State Long-Term Care Ombudsman

    The regulations at Sec.  1327.11 clarify for States how to 
appropriately establish the Office pursuant to section 712(a)(1) of the 
Act. This includes clarification regarding the determinations which are 
the responsibilities of the Office, and by the head of the Office (i.e. 
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 (many, though not all, Ombudsmen are State 
employees), we believe that this clarification will assist States in 
full implementation of the Act.
    Specifically, the Office is required by the Act to make 
determinations regarding:
     Disclosure of information maintained by the Ombudsman 
program;
     Recommendations to changes in Federal, State and local 
laws, regulations, policies and actions pertaining to the health, 
safety, welfare, and rights of residents; 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.
    The Act indicates that the recommendations made by, and the 
information provided by, the Office are limited to issues pertaining to 
residents of long-term care facilities and services. See section 
712(a)(3)(G), (h)(2)-(3) of the Act. 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 proposed clarification that these determinations are those of the 
Office of the State Long-Term Care Ombudsman and do not represent other 
State governmental entities.
    Comments: We received seven comments indicating general support for 
Sec.  1327.11 as proposed. Some of these commenters indicated that the 
proposed language provides critically needed clarity for the Ombudsman 
program to accomplish its intended role under the Act. Some commented 
that the proposal clarifies that the Office must operate as a 
separately identifiable Office, regardless of its organizational 
location. One commenter indicated that the proposed language confirms 
that the Ombudsman program should operate as an integrated whole with 
the Ombudsman providing direction, authority, and programmatic 
supervision to all designated representatives.
    Two of these commenters indicated that some State agencies have 
prohibited the Office from engaging in activities required in the Act 
because of concern that the Ombudsman would make determinations that 
would be contrary to those of the State agency or the executive branch; 
they indicated that the proposed language is necessary to address these 
concerns. One commenter indicated that the proposed language would 
strengthen the independence of the Office. Another

[[Page 7713]]

commenter indicated that the proposed language appropriately allows 
States flexibility to best serve residents and maintain compliance with 
the Act.
    Response: We appreciate the supportive comments.
    Comment: Two commenters indicated that AoA should require the 
Office to be placed outside of the State government. Another commenter 
disagreed with the proposed language permitting the Office to be 
located within or connected to the State agency, indicating that it is 
difficult to imagine what an Ombudsman faces in advocating for 
residents where he or she has a peer at a regulatory agency. Another 
commenter indicated that the final rule should require that the State 
contract the Ombudsman program with a nonprofit entity to ensure that 
the Ombudsman has the ability to operate independently. One of these 
commenters indicated that they are in a State where the Ombudsman 
program is independent of any State agency and that this has worked 
well to serve the interests of individuals served by the program.
    One of these commenters indicated that advocacy and government 
bureaucracies are rarely compatible and that residents would be better 
served if Ombudsman programs were contracted out to private nonprofit 
entities. In support of this perspective, this commenter cited a 2001 
study finding that of the nine Ombudsmen reporting conflicts of 
interest due to program placement, 100% were located in State agencies 
on aging. While eleven of thirty-seven (30%) Ombudsmen located within 
State agencies on aging reported that Office organizational placement 
limited their ability to speak with legislators and/or the media, one 
of fifteen (7%) Ombudsmen in other types of agencies reported 
experiencing limitation on autonomy due to the organizational placement 
of their Office. This commenter recognized that the Act permits State 
agencies to operate the Office and that the Act would need to be 
changed to achieve this recommendation.
    One of these commenters indicated that placement of the Ombudsman 
program within a non-profit entity allows for leveraging of private and 
other funds and supports effective investigation and intervention. This 
commenter indicated that the Ombudsman must be able to articulate 
positions that may be critical of a State agency in order to adequately 
represent residents.
    Response: Congress has indicated through the Act that it is the 
responsibility of the State agency to establish and operate an Office 
and has expressly provided the opportunity for the State agency to 
carry out the Ombudsman program directly or by contract or other 
arrangement with a public agency or nonprofit private organization. 
Section 712(a)(1), (4) of the Act. AoA recognizes that the advocacy 
function of the Office may be a difficult fit within government 
bureaucratic structures and under policies governing State employees in 
some States. It is our intent to assist States agencies, through this 
rule, to clarify their responsibilities to carry out all of the 
requirements of the Act and to assist them in considering whether their 
organizational structure and State employee policies can adequately 
support a fully functioning, effective Ombudsman program.
    We also recognize that effective consumer advocacy entities can and 
do successfully exist within some State governments. In some States, 
the Office is not the unique consumer advocacy entity located within 
State government.
    While we agree that a non-profit agency might be able to access 
diverse funding sources, we also note that a number of State agencies 
provide significant resources to the Office in addition to the Federal 
grant funds appropriated under the Act.
    Comment: One commenter expressed concern that the proposed rule 
grants excessive authority to the Ombudsman at the expense of local 
Ombudsman entities and that the Ombudsman is held accountable to no 
one. The commenter expressed concern about the ability of local 
Ombudsman entities to advocate for residents in States where the 
Ombudsman misuses this power and indicated that the proposed 
regulations provide for no recourse for situations in which the 
Ombudsman's actions violate the Act.
    Response: We believe that the proposed rule appropriately follows 
the provisions of the Act which clearly set forth the Ombudsman (i.e. 
State Ombudsman, not all representatives of the Office) as responsible 
for the leadership of the Office, as the head of the Office. Section 
712(a)(2) of the Act. We disagree with the assertion that the Ombudsman 
is accountable to no one. State agencies and other agencies which house 
the Office have the authority to provide personnel supervision and the 
ability to take personnel actions related to the performance of the 
Ombudsman as they would with any other employee. Some States have also 
set up additional mechanisms for accountability of the Ombudsman 
program, including governing or advisory boards. The Act does not 
prohibit the State agency or the Office from establishing additional 
mechanisms for accountability so long as the Ombudsman can fully 
perform his or her functions under the Act.
    The Ombudsman program is established through OAA grants to State 
agencies on aging. State agencies are required to assure AoA that the 
Ombudsman program is established and carried out consistent with the 
provisions of the Act. If AoA determines that a State fails to comply 
with any term of an award, AoA, as the granting agency, has several 
remedies available to it, including but not limited to wholly or partly 
suspending or terminating the award. 45 CFR 75.371.
    Comment: One commenter, in reference in Sec.  1327.13(a), 
questioned the ability of an Ombudsman to serve on a full-time basis if 
other populations are served beyond the scope of the Act.
    Response: We have added clarity to a new provision at Sec.  
1327.11(c) in the final rule by indicating that full-time shall mean 
that the functions and responsibilities set forth in this section are 
to constitute the entirety of the Ombudsman's work. AoA does not object 
to a State choosing to utilize non-OAA resources for the Ombudsman 
program to provide services to additional populations (for example, to 
recipients of in-home long-term services and supports), so long as the 
functions and responsibilities relating to the expanded population are 
consistent with the services of an ombudsman. The State agency or other 
agency carrying out the Ombudsman program shall not require or request 
the Ombudsman to be responsible for leading, managing or performing the 
work of non-ombudsman services or programs except on a time-limited, 
intermittent basis. This provision is not intended to limit the ability 
of an Ombudsman to access grants or otherwise perform special projects 
so long as the activities of the grant or project are consistent with 
the functions and responsibilities of the Ombudsman.
    Comment: Two commenters (one commenting on Sec.  1327.11 and the 
other commenting on Sec.  1327.13) recommended that the final rule 
include qualifications or criteria for hiring the Ombudsman. One of 
these commenters indicated that the Ombudsman program would benefit 
from strong Federal standards in this domain since Ombudsmen who lack 
basic qualifications for the position are likely to not perform well. 
This commenter recommended that Ombudsman candidates have a strong 
background in the Ombudsman program or ensure that a newly hired 
Ombudsman promptly complete State certification training, as required 
by representatives of the

[[Page 7714]]

Office, and complete an internship within a long-term care facility. 
Without qualifications, the commenter wondered how AoA could remedy 
situations in which the State hires an unqualified candidate.
    The other commenter suggested examples of recommended criteria: 
Knowledge of the long-term care system; demonstrated evidence of 
resident-focused advocacy on both an individual and systemic basis; 
knowledge of State and local government; communication, management, and 
conflict resolution skills; and clinical and/or direct health and human 
services experience.
    Response: We agree with the commenters that minimum qualifications 
for the Ombudsman could be helpful to ensure selection from among 
highly-qualified candidates with appropriate expertise. We note that 
AoA has provided States with guidance on Ombudsman minimum 
qualifications since 1981, when it indicated that the Ombudsman 
``should minimally possess the following qualifications:
    a. Demonstrated experience with long-term care systems or 
professional training in long-term care and institutions;
    b. Program development background and skills;
    c. Administrative, arbitration, conciliation and/or negotiation 
experience and skills;
    d. Experience or education in gerontology and/or aging programs.'' 
AoA Program Instruction 81-8.
    Based on the 1981 guidance, the qualifications indicated in the Act 
(i.e. ``expertise and experience in the fields of long-term care and 
advocacy.'' Section 712(a)(2)), and considering these comments, we have 
developed a new provision regarding minimum qualifications at Sec.  
1327.11(d).
    Comment: One commenter indicated that the proposed provisions at 
Sec.  1327.11 would be difficult for States to implement and for AoA to 
uphold. The commenter indicated that in their State, the Ombudsman is 
an employee of the State agency on aging and bound by its policies 
regarding communications with the legislature and the media. Therefore, 
the Ombudsman is currently unable to independently make determinations, 
make recommendations for changes to policies, or provide information to 
the public. The commenter indicated that, for AoA to suggest that the 
Ombudsman has authority to override his or her supervisor, agency 
director, and Governor, shows that AoA is not in touch with the 
realities of State government and the context in which Ombudsmen must 
work. Another commenter indicated that it is unrealistic for AoA to 
think that an Ombudsman employed by a State agency can make 
recommendations which conflict with those of the State agency or the 
Governor.
    Response: We appreciate the commenters' perspectives of the 
circumstances in their States. We would like to clarify that the rule 
does not suggest that the Ombudsman has the authority to override his 
or her supervisor, agency director, or Governor. However, the Act 
requires that any State, in order to receive grant funds under the Act, 
assure to AoA that, among other things, it will permit the Ombudsman to 
fulfill all of the functions under the Act. These include the ability 
to make certain determinations which represent the positions of the 
Office, and not necessarily those of the supervisor, agency director, 
or Governor. A number of State agencies or other agencies in which the 
Office is organizationally located already include language in their 
personnel policies or other relevant laws or policies which implement 
this requirement of the Act.
    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 any other agency, AoA has specifically indicated in the 
final rule that these determinations and positions are to be those of 
the Office and do not represent other State entities. Sec.  
1327.13(a)(7)(vi).
    We wish to remind the commenters that their States have previously 
provided to AoA assurances in its State plan on aging that they will 
carry out the Ombudsman program in compliance with the Act. These State 
plans were signed by their respective governors and submitted to AoA 
for approval and as a condition of receiving grant funds under the Act.
    We respectfully disagree with the comment that AoA is not in touch 
with the realities of State government and the context in which 
Ombudsmen must work. In fact, numerous AoA staff have had previous 
employment experience within State government entities, and AoA staff 
regularly communicate with State government entities. AoA is aware that 
the Act requires functions of the Ombudsman program that are 
uncharacteristic of other programs and services under the Act and that 
these requirements have been challenging for some States to 
successfully implement. AoA is also aware of the wide variations among 
States in their implementation of programs and services under the Act. 
Numerous States that have been able to successfully implement the 
Ombudsman program, even when the Office is organizationally located 
within State government.
    The Act specifically provides for the opportunity for the State 
agency to carry out the Office through a contract with a nonprofit 
entity. Section 712(a)(4) of the Act. Should any State government be 
unable to follow the requirements of the Act and this final rule when 
it houses the Office within State government, it has the opportunity to 
seek other arrangements to enable the Office to fulfill all of its 
statutory responsibilities and to, most importantly, effectively serve 
residents of the State's long-term care facilities. Currently, Offices 
in six States and the District of Columbia are organizationally located 
outside of State government.
    Comment: Eleven commenters indicated general support for the 
proposed language in Sec.  1327.11(b), describing the Office as a 
``distinct entity, separately identifiable'' regardless of its 
organizational placement. One of these commenters indicated support for 
the language as it assures autonomy of the Office to advocate for 
residents. Another indicated that the proposed language would ensure 
the independence of the Office and would strengthen the Ombudsman 
program. One commenter described the proposed language as an excellent 
clarification of the responsibilities of the Office that will benefit 
all levels of the organization in carrying out the Ombudsman program 
functions. Another commenter indicated support for the language in that 
it permits State agency flexibility to decide the best location for the 
Ombudsman program in order to best serve residents and maintain 
compliance with the requirements of the Act.
    Response: We appreciate the supportive comments.
    Comment: One commenter described challenges to implementation of 
Sec.  1327.11 where a representative of the Office is hosted within an 
area agency on aging with organizational conflicts of interest.
    Response: We have described this comment more fully and responded 
in more detail in section H. Conflicts of interest, below.
    Comment: Four commenters indicated general support for the proposed 
language of Sec.  1327.11(c) (moved in the final rule to Sec.  
1327.11(e)(8)) regarding the ability of the Ombudsman to independently 
make certain determinations and establish certain positions of the 
Office. One of these commenters indicated that this clarification will 
encourage Ombudsmen to work with

[[Page 7715]]

representatives of the Office to bring forth resident issues. Another 
indicated that the proposed language is helpful because independence is 
critical to the Ombudsman program's ability to carry out all of its 
functions and duties.
    Response: We appreciate the supportive comments.
    Comment: One commenter recommended that the final rule include a 
definition of the term ``determinations'' as used in proposed Sec.  
1327.11(c) (moved in the final rule to Sec.  1327.11(e)(8)).
    Response: We do not agree that a definition is needed because the 
common definition of the word ``determination'' is sufficient. 
According to the Merriam Webster Dictionary, ``determination'' means 
``the act of officially deciding something.'' Further, we believe that 
the provisions regarding determinations at Sec.  1327.11(e)(8), when 
read in the context of the provisions related to the functions and 
responsibilities of the Ombudsman (Sec.  1327.13) and the State agency 
responsibilities related to the Ombudsman program (Sec.  1327.15) 
provide sufficient guidance on the Act's requirements related to 
Ombudsman determinations.
    Comment: One commenter suggested the need for a definition of 
``independently.''
    Response: We do not agree that a definition is needed because the 
common definition of the word ``independent'' is sufficient. According 
to the Merriam Webster Dictionary, ``independent'' means ``not 
requiring or relying on something else; not contingent.'' Further, we 
believe that the provisions in the final rule regarding the Ombudsman 
independently making determinations and establishing positions, the 
functions and responsibilities of the Ombudsman, the State agency 
responsibilities, and conflicts of interest provide sufficient clarity 
on the Act's requirements related to Ombudsman independence.
    Comment: One commenter inquired about an appeal process if the 
Office organizational structure does not permit independence or 
adherence to the provisions of Sec.  1327.11.
    Response: No formal Federal appeal process exists for review of the 
independence of the Office. State agencies may develop appeal processes 
for these or other grievances. The final rule does require the 
development of a grievance process regarding determinations or actions 
of the Ombudsman or the representatives of the Office. Sec.  
1327.11(e)(7). Moreover, it is ACL's intention, through this final 
rule, to clarify the requirements in the Act so that States, in 
carrying out the Ombudsman program through OAA grants, will better 
understand their responsibility to assure that the Ombudsman has the 
ability to perform all of the functions and responsibilities set forth 
in the Act.
    Comment: One commenter inquired whether there may be other 
situations in which the Ombudsman may need to make determinations and 
whether the rule should provide for these other situations.
    Response: The final rule at Sec.  1327.11(e)(8) addresses all of 
the determinations of the Office which are specifically required in the 
Act.
    Comment: One commenter suggested that language be added to Sec.  
1327.11(c) (moved in the final rule to Sec.  1327.11(e)) to specify 
that a ``nonprofit organization'' could be carrying out the Ombudsman 
program.
    Response: The language in Sec.  1327.11(b)(2) is sufficiently clear 
that the State agency may enter into a contract or other arrangements 
with a ``nonprofit organization'' to establish the Office. We believe 
the term ``State agency or other agency'' is sufficient to cover the 
variety of entities in which the Office can be organizationally 
located.
    Comment: One commenter indicated that the proposed language 
regarding Ombudsman determinations could be interpreted to mean that 
the Ombudsman must individually approve all disclosures, testimony or 
information provided by any local Ombudsman representative on a public 
policy issue. The commenter indicated that an Ombudsman might choose to 
delegate some determinations to local Ombudsman entities.
    Response: We do not intend for the proposed provision to limit 
ability of Ombudsman to utilize representative of the Office for 
appropriate tasks in order carry out the determinations of the Office. 
We do not believe that the proposed or final rule, at Sec.  
1327.11(e)(8), limits this ability.
    Comment: With respect to Sec.  1327.11(c)(2) (moved in the final 
rule to Sec.  1327.11(e)(8)), regarding recommendation to changes in 
laws, regulations, etc., one commenter indicated that in their State, 
the Ombudsman is organizationally located within an umbrella State 
government structure and must adhere to State government protocols 
related to legislative action and lobbying. The commenter requested 
consideration for differences in structure of the Office from State to 
State.
    Response: The language in the final rule at Sec.  1327.11(e)(8) is 
derived directly from the Act which states that making recommendations 
to changes in laws, regulations, etc. is a function of the Ombudsman. 
Section 712(a)(3)(G)(ii) of the Act. Further, the Act requires State 
agencies to require the Office to analyze, comment on, monitor and 
recommend changes to laws, regulations, and policies, and provide 
information to, among others, legislators. Section 712(h)(2),(3) of the 
Act. We do not believe that AoA has the authority under the Act to make 
this provision optional for some States and not others.
    The Act creates the Ombudsman program to resolve problems for 
residents of long-term care facilities on individual as well as 
systemic levels. Therefore, the ability to take positions and make 
recommendations that reflect the interests of residents is critical to 
the effectiveness of the Ombudsman program.
    Comment: One commenter recommended that we add ``the media'' to the 
list of persons to whom information can be provided by the Office in 
proposed regulation Sec.  1327.11(c)(3). The commenter indicated that 
providing access to the media logically follows from the statutory 
authority of the Office to provide information and recommendations and 
to facilitate public comment. The commenter says that there have been 
instances of State agencies and local Ombudsman entities that have 
restricted Ombudsman program contact with the media and that explicit 
inclusion of this term in the regulation would be helpful.
    Response: We have accepted this recommendation in the final rule, 
revising Sec.  1327.11(c)(3) (moved in the final rule to Sec.  
1327.11(e)(8)(iii)). We believe it further clarifies implementation of 
the Act. Further, it is consistent with the AoA 2011 finding of non-
compliance regarding information dissemination in a State which 
required State agency and Governor prior approval of Ombudsman program 
press releases and which used orders and intimidation to ensure the 
cancellation of press conference activities. As we indicated in the AoA 
compliance review of this State, while we encourage Ombudsman programs 
to have excellent lines of communication with their State agency to 
avoid blind-side surprises, the Ombudsman must have the option to 
communicate with the media in order to advocate for residents and their 
interests.
    Comment: One commenter suggested that we move Sec.  1327.11(c)(4) 
so that it modifies subparagraphs (1)-(3) rather than standing alone as 
a separate activity.

[[Page 7716]]

    Response: We have moved this provision to Sec.  1327.13(a)(7)(vi) 
(regarding functions of the Ombudsman) in the final rule where it more 
clearly modifies the determinations of the Office related to 
recommendations and information dissemination.
    Comment: One commenter indicated that the proposed language in 
Sec.  1327.11(c)(4) is beneficial to State agencies in order to 
distinguish determinations and positions of the Office as not 
necessarily representing those of the State agency. The commenter 
indicated that the proposed language makes the reality of opposed 
positions and determinations understood and explainable.
    Response: We appreciate the supportive comment.
    Comment: One commenter suggested that the Ombudsman should have the 
authority to make autonomous hiring and firing decisions and should be 
solely responsible for determining the qualifications and positions 
necessary for the Ombudsman program to fulfill its mission. Without 
such a provision, the commenter indicated that States could 
significantly undermine the functions of the Ombudsman program by 
limiting who and what types of staff the Ombudsman is able to hire and 
retain.
    Response: The Act specifically gives the Ombudsman the authority to 
designate local Ombudsman entities and to designate representatives of 
the Office. Section 712(a)(5) of the Act. It does not, however, require 
an arrangement where representatives of the Office are directly hired 
or fired by the Ombudsman. In many States, local Ombudsman entities are 
hosted by an agency that is not the same agency that employs the 
Ombudsman. This arrangement is envisioned by the Act, not prohibited by 
it. In fact, the most frequently utilized organizational structure for 
Ombudsman programs is that the Office is organizationally located 
within or is attached to the State agency which contracts with agencies 
hosting local Ombudsman entities.
    In light of the Ombudsman responsibility to designate 
representatives of the Office, we encourage Ombudsmen and State 
agencies to develop policies and procedures that: (1) Coordinate the 
hiring and firing of individuals by agencies hosting local Ombudsman 
entities with the Ombudsman and (2) incorporate minimum qualifications. 
Such coordination will enable the Ombudsman to make designation and de-
designation determinations in ways that are coordinated with the 
employing agency which hosts the local Ombudsman entity.
    In addition, we require Ombudsmen or State agencies, in this final 
rule, to develop policies and procedures regarding conflicts of 
interest in employing or appointing representatives of the Office. 
Sec.  1327.11(e)(4)(ii). We have also added a new section regarding 
responsibilities of agencies hosting local Ombudsman entities at Sec.  
1327.17.

D. Functions and Responsibilities of the State Long-Term Care Ombudsman 
(Sec.  1327.13)

    In Sec.  1327.13, AoA provides clarification regarding the 
functions and responsibilities of the Ombudsman, as the head of the 
Office.
    Comment: Eight commenters indicated support for the proposed 
language in the proposed regulation Sec.  1327.13. Three of these 
commenters indicated that the language clearly describes the leadership 
role of the Ombudsman as the programmatic head of the Office. One 
commenter stated that the proposed language will identify the Ombudsman 
as responsible for the leadership and management of the Office. Three 
commenters stated that the language reflects the intent of Congress as 
set forth in the Act for the Office to be a unified entity. One 
commenter indicated that the language supports the concept that the 
Office speaks with one independent voice. One commenter indicated that 
they were pleased to see an emphasis on the independence of the Office 
in this proposed language. One commenter indicated that the proposed 
language is helpful in clarifying that there is only one State Long-
Term Care Ombudsman in each State, critical in situations where there 
are agencies hosting local Ombudsman entities which hire, fire, and 
supervise the representatives of the Office who must look to the 
Ombudsman for designation and programmatic guidance.
    Response: We appreciate the supportive comments.
    Comment: One commenter indicated support for the proposed 
provisions in this section but indicated that there will be challenges 
in upholding them at the State level. The commenter indicated that the 
Ombudsman program benefits from being within the State agency and that 
the Federal funds appropriated under the Act are not adequate to permit 
the Office to stand on its own separate and apart from the State 
agency. The commenter indicated that AoA must increase funding for the 
Ombudsman program before implementing this rule because moving the 
Ombudsman out of the State agency would result in loss of State agency 
resources and access to State general funds to the Ombudsman program.
    Response: Nowhere in this rule does AoA require State agencies 
which operate the Ombudsman program directly to move the Office out of 
the State agency. In fact, a number of States house the Office within 
or attached to the State agency and successfully fulfill the functions 
required by the Act. To the extent that this comment refers to 
conflicts of interest that may be present within a State agency, we 
address these comments more fully in the discussion related to Sec.  
1327.21, below. AoA is available to provide technical assistance to 
help States to fully implement the requirements of the Act, regardless 
of the organizational placement of the Office.
    AoA appreciates that many States provide resources to supplement 
the Ombudsman program. As a result of these States' commitment to this 
work, residents have improved access to ombudsman services. We fail to 
see how compliance with this rule would jeopardize any State's ability 
to support the work of the Ombudsman program.
    Comment: One commenter suggested that AoA amend the proposed 
language in Sec.  1327.13 to read ``The Ombudsman . . . shall have 
independent responsibility for the leadership and management . . . .''
    Response: We find the proposed language sufficiently clear. 
Moreover, depending on the structure of the Ombudsman program, some 
management tasks (for example, personnel, contracting, bookkeeping, or 
budgeting processes) may be the primary responsibility of other parts 
of the agency in which the Office is organizationally located. We do 
not wish to create confusion by implying that the Ombudsman must 
perform or oversee all of these functions directly and independently. 
An Ombudsman may certainly rely on others to perform these important 
management processes and work cooperatively with others outside of the 
Office to carry out certain management functions. To require otherwise 
could require significant time and energy from the Ombudsman and take 
away from his or her ability to focus on the functions that benefit 
residents as required by the Act.
    Comment: One commenter recommended that we omit the language ``in 
coordination with the State'' in Sec.  1327.13. The commenter indicated 
that there is no mention of coordination with the State agency in the 
list of Ombudsman functions in the Act at section 712(a)(3). In 
addition, using the word ``coordination'' only prolongs the enmeshing 
of the Ombudsman and the

[[Page 7717]]

Office with the State agency. The commenter contrasted the provision in 
section 712(a)(5)(B) of the Act related to local Ombudsman entities 
which are to act ``in accordance with the policies and procedures of 
the Office and the State agency.''
    Response: The Act sets forth a grantee relationship between AoA and 
the State agency, making the State agency accountable to the AoA for 
the appropriate establishment and operation of the Ombudsman program. 
See Section 712(a)(1) of the Act. We believe that there must, 
therefore, be a coordinated relationship between the State agency and 
the Ombudsman in order for the State agency to be able to fulfill its 
responsibilities as grantee. We further believe that coordination is 
only successful if all involved parties take responsibility for its 
success. Therefore, we believe that coordination with the State agency 
should be a responsibility of the Ombudsman as well as of the State 
agency and have not adopted these recommendations.
    We have made a revision in the final rule, changing ``State'' to 
``State agency'' to clarify that we are specifically referring to the 
State agency on aging as the AoA grantee. Should coordination with 
other State agencies be involved in carrying out the program, the rule 
directs the Ombudsman to coordinate with them as well.
    Comment: Two commenters recommended a new provision in Sec.  
1327.13 that establishes criteria to be used when selecting a State 
Ombudsman. One of these commenters indicated a need for strict guidance 
related to qualifications and conflicts of interest in selecting the 
Ombudsman.
    Response: We have established minimum qualifications for the 
Ombudsman in a new provision at Sec.  1327.11(d).
    Comment: Two commenters recommended that the Ombudsman not be a 
political appointee.
    Response: The Act provides States with significant latitude in how 
an Ombudsman is selected within a particular State. In AoA's 
experience, we have not seen, nor have we been presented with evidence 
of, a correlation between effective Ombudsman programs and the 
mechanism by which the Ombudsman in that State has been selected or 
appointed.
    While we have not prohibited political appointments in this rule, 
we do provide for minimum qualifications for the selection of an 
Ombudsman, in Sec.  1327.11(d), and clarify conflicts of interest 
considerations relative to the selection process in Sec.  1327.21.
    Comment: One commenter recommended that criteria be used when 
firing an Ombudsman. They indicated that such criteria are the logical 
extension of the independence and anti-retaliation provisions in the 
OAA. They further indicated that, since the Act establishes the role of 
the Ombudsman as a potential critic of facilities and government 
agencies, if the governor or State agency head could fire the Ombudsman 
(or terminate the contract with the host agency) whenever they wish, 
the Ombudsman cannot truly be independent and a voice for residents, as 
opposed to a cautious appointee.
    Response: After careful consideration, we have decided against 
providing specific criteria regarding the firing of the Ombudsman. We 
believe that the clarifications provided by this rule related to the 
operation of the program; organizational and individual conflicts of 
interest; and freedom from interference, retaliation, and reprisals 
provide sufficient clarity to protect the Ombudsman from retaliation 
for performing the duties required by the Act.
    The Act specifically provides State agencies with significant 
latitude in determining whether to operate the program directly (and 
how to structure the program within or attached to the State agency) or 
operate it through contract or other agreement with another agency. 
Therefore, States have appropriately structured a wide variety of 
organizational placements for the Ombudsman and, as a result, there is 
wide variation among applicable laws impacting employment, labor, 
government contracting, and interagency agreements that may apply to 
the firing of an Ombudsman or the termination of a contract for the 
operation of the Office. AoA believes that developing criteria 
regarding firing might create confusion in the context of the wide 
variety of applicable legal requirements.
    However, AoA is aware that a number of employment arrangements and 
organizational structures have been developed to protect employees 
within other types of ombudsman programs, inspectors general, and other 
entities where independent oversight or consumer advocacy are required 
activities. Therefore, AoA plans to provide States with further 
guidance and technical assistance regarding employment provisions and 
structures which they may consider in further strengthening the ability 
of the Ombudsman to fulfill his or her functions under the Act.
    Comment: Ten commenters recommended that the proposed language in 
Sec.  1327.13(a)(1) be revised to clarify that Ombudsman programs have 
authority to identify, investigate, and resolve complaints related to 
the actions, inactions, or decisions of guardians, legal 
representatives, family members, or other resident representatives. 
Some indicated that this should be a longer list of people whose 
actions may adversely impact a resident than merely guardians and 
representative payees.
    Response: We have maintained the statutory structure in the final 
rule at Sec.  1327.13(a)(1) regarding the types of entities which may 
be the object of Ombudsman program complaint investigation and 
resolution. See section 712(a)(3)(A) of the Act. However, we agree with 
commenters that other types of resident representatives, beyond 
guardians and representative payees specifically indicated in the Act, 
should be specifically added to the rule. It is reasonable to include 
issues related to activities of powers of attorney agents, for example, 
among the actions that may adversely affect the health, safety, 
welfare, or rights of residents, consistent with the Congressional 
examples of guardians and representative payees. Therefore, we have 
changed the language of this provision to use the term ``resident 
representative'' which we have defined in the final rule at Sec.  
1327.1, incorporating the categories of representatives indicated by 
the commenters.
    Comment: One commenter indicated that the Ombudsman for long-term 
care facility residents should serve on a full-time basis and solely on 
behalf of such residents as required in the Act. The commenter 
questioned the capacity of the one individual to adequately serve as 
the Ombudsman for both long-term care facility residents and for home 
care consumers, while noting that these individuals need access to 
ombudsman services. In addition, the commenter indicated that the 
Ombudsman program should be funded adequately and fully funded for its 
current work before it expands into the home setting.
    Response: As the commenter correctly notes, the Act provides 
authority for the Ombudsman program to serve residents living in 
``long-term care facilities'' as defined at OAA section 102(35) (i.e. 
nursing facilities, board and care homes, assisted living, and similar 
adult care facilities.) Congress has not chosen to authorize or fund 
Ombudsman program services to individuals receiving long-term supports 
and services in in-home settings or in non-residential settings such as 
adult day health centers.

[[Page 7718]]

    States which choose to expand the Ombudsman program to serve 
individuals in settings beyond those provided for in the OAA are not 
prohibited from doing so. AoA has no objection to those States which 
choose to utilize resources other than those appropriated through the 
OAA to expand ombudsman services to individuals living in a variety of 
settings or receiving a variety of long-term services and supports. 
However, absent Congressional authorization for the Ombudsman program 
to expand its services to new settings, AoA does not believe that it 
has the authority to provide for such an expansion of service through 
this rule.
    We note that historically Congress changed the title of Nursing 
Home Ombudsman to Long-Term Care Ombudsman in the 1981 reauthorization 
of the OAA, expanding the service population to include residents of 
board and care residents and other similar adult care facilities. Then, 
in the 2006 reauthorization, Congress clarified that the Ombudsman 
program service population includes residents of assisted living. 
However, Congress did not choose on either occasion to create separate 
ombudsman programs for these populations; instead, it choose to 
coordinate the efforts so that long-term care facility residents in a 
variety of residential settings had access to the services of the Long-
Term Care Ombudsman program. In addition, AoA has long held that States 
are not prohibited from using OAA funds to support Ombudsman services 
to younger residents of long-term care facilities, even though the Act 
is designed to primarily benefit individuals over age 60. AoA Program 
Instruction 81-8.
    Many of the individuals who would have lived in nursing homes in 
previous decades now live and receive long-term services and supports 
in a variety of other settings. Many of the long-term services and 
supports issues that impact individuals in one long-term care setting 
relate to individuals receiving services in other settings. Much of the 
expertise and experience of the Ombudsman and representatives of the 
Office is relevant to individuals receiving long-term services and 
supports in a variety of settings. Therefore, we believe there is good 
reason for a State to support this coordinated approach to serve 
individuals receiving long-term services and supports, regardless of 
setting, through the Long-Term Care Ombudsman program.
    The discussion regarding an Ombudsman serving on a full-time basis 
is found above related to Sec.  1327.11(c).
    Comments: Two commenters indicated that the scope of complaint 
investigations indicated in Sec.  1327.13(a)(1) should include 
complaints regarding a representative of the Ombudsman program.
    Response: Section 1327.13(a)(1) describes functions of the 
Ombudsman program to benefit long-term care facility residents. These 
complaints are reported to the National Ombudsman Reporting System, and 
inform AoA, States and other entities regarding issues facing residents 
and Ombudsman program services to resolve problems for residents. These 
complaints related to the resident's experience within a long-term care 
facility are qualitatively different than grievances regarding 
fulfillment of duties by a representative of the Office.
    While we have not revised this provision, we have included, in the 
final rule, a new provision at Sec.  1327.11(e)(7), to require the 
establishment of a grievance process within the Ombudsman program so 
that individuals served by the Ombudsman program have a clear process 
for filing a grievance, having their concern investigated, and 
receiving a response to the grievance. We note that some States already 
have such processes in place.
    Comments: Three commenters indicated that the scope of complaint 
investigations indicated in Sec.  1327.13(a)(1) should include 
complaints related to interference with a representative of the 
Ombudsman program. Two commenters indicated that the scope of complaint 
investigations indicated in Sec.  1327.13(a)(1) should include 
complaints regarding retaliation against any person who cooperates with 
the Ombudsman program.
    Response: Complaints related to interference with the work of a 
representative of the Office or to retaliation for cooperating with the 
Ombudsman program are qualitatively different from the types of 
resident-related complaints described in Sec.  1327.13(a)(1). We have 
added provisions related to protection from interference, reprisals and 
retaliation in Sec.  1327.15(i).
    Comment: One commenter suggested that we consider expanding 
complaint resolution work to include individuals who receive services 
from home care, hospice and Program for All-Inclusive Care for the 
Elderly (PACE) programs. Another commenter asked whether individuals 
who receive such services are included within the list of individuals 
to be served with complaint resolution services pursuant to Sec.  
1327.13(a)(1).
    Response: As noted above, the OAA provides authority for the 
Ombudsman program to serve residents living in ``long-term care 
facilities'' (i.e. nursing facilities, board and care homes, assisted 
living, and similar adult care facilities). Congress has not chosen to 
authorize or fund ombudsman services to individuals receiving long-term 
supports and services in in-home settings or in non-residential 
settings. Absent authorization for the Ombudsman program to expand its 
services to new settings, AoA does not believe that it has the 
authority to provide for such an expansion of service through this 
rule.
    Comment: One commenter suggested clarifying that the Ombudsman 
function of informing residents about the means of obtaining services 
does not duplicate work done by other OAA-funded programs or by Aging 
and Disability Resource Centers (ADRCs).
    Response: We agree that the Act's requirement that the Ombudsman 
inform residents about means of obtaining services does not duplicate 
the work of other OAA programs, including those providing information 
and assistance services, defined in section 102(a)(28) of the Act, or 
ADRCs, defined in section 102(a)(4) of the Act. While we agree with the 
comment that this provision does not create duplication of services, we 
do not agree that such an explanation needs to be incorporated into the 
final rule. However, we have added the ADRC as an entity with which the 
Ombudsman must coordinate, in the final rule at Sec.  1327.13(h), to 
enhance collaboration and reduce any risk of duplication.
    Comments: Two commenters recommended language to enhance the 
independence of the Ombudsman in describing the functions in Sec.  
1327.13(a).
    Response: We believe that we have adequately addressed the 
independence of the Ombudsman in other provisions of this rule.
    Comments: Two commenters suggested incorporation of language in 
Sec.  1327.13(a)(3), requiring the Ombudsman to inform residents of the 
services provided by the protection and advocacy system.
    Response: As ACL administers funds to States for protection and 
advocacy systems, we are aware that these systems provide critically 
important services, as do an array of other entities which are also not 
mentioned in this provision. We are choosing to retain the broad 
description in the rule regarding the function of the Ombudsman to 
``inform residents about means of obtaining services provided by 
providers or agencies,'' rather than

[[Page 7719]]

singling out any particular entity or service provider. We note that 
the final rule requires the Ombudsman to coordinate with protection and 
advocacy systems at Sec.  1327.13(h)(4).
    Comments: Three commenters suggested a need for additional guidance 
or definition of ``regular access'' in Sec.  1327.13(a)(4), indicating 
that the presence of a representative of the Office in facilities is 
critical for ensuring resident access, and recommending at least 
quarterly visits to each facility as a minimum standard.
    Response: Currently there is wide variation among States' Ombudsman 
programs in providing ``regular visits.'' For example, in 2012, 
Ombudsman programs in 10 States reported regular visits to 100% of all 
facilities, but, in three States, the Ombudsman program reported making 
regular visits to fewer than 10% of facilities. ACL, National Ombudsman 
Reporting System. (Note that, for reporting purposes, AoA asks 
Ombudsmen to report on the number of facilities that received ``regular 
visits'' at least once per quarter.)
    We encourage Ombudsman programs to provide residents with access to 
the Ombudsman program through, among other means, regular visits to 
facilities. However, we believe creating one national minimum standard 
for visits to facilities would be unrealistic, given the extremely 
different variables among States. While some in some States, Ombudsman 
programs are able to make weekly or monthly visits to many facilities 
because they have the volunteer and/or employee capacity to do so, in 
other States, Ombudsman programs are unable to make even quarterly 
visits. Ombudsman programs face significant variables such as program 
resources (including funding, staff, volunteers), geographic 
distribution of facilities, geographic distribution of staff and/or 
volunteers, as well as means of and cost of transportation (while most 
programs are able to visit facilities using automobiles or public 
transportation, others must use airplanes or boats to reach some 
facilities).
    Some Ombudsman programs have minimum standards related to frequency 
of these visits that are responsive to the variables in that State. We 
strongly encourage development of minimum standards to provide 
consumers, providers, and others with an expectation of the frequency 
of regular visits. We note that standards also provide an important 
mechanism for Ombudsman program accountability. We are available to 
provide technical assistance regarding development of such standards.
    We also encourage Ombudsman programs and States to consider, in 
developing minimum standards, that providing ``regular access'' 
requires more than providing visits to facilities by representatives of 
the Office. Ombudsman programs should be easily accessible to 
residents, complainants, and others--including individuals with limited 
English proficiency--because, among other things, they have multiple 
methods of communication available to the public (such as telephone, 
email, facsimile, Web site, TTY (text telephone) and other 
communication services, and mail, as well as in-person visits).
    Comments: One commenter suggested the need for a national standard 
on what constitutes ``timely access'' in Sec.  1327.13(a)(4).
    Response: The Act requires the Ombudsman to ensure that residents 
have timely access to the services of the Office. Section 712(a)(3)(D) 
of the Act. We interpret this provision to mean that a resident or 
other individual who reaches out to the Ombudsman program is able to 
communicate with the program to file a complaint or otherwise make a 
request in a reasonably prompt manner. Timely access is provided, for 
example, when the Ombudsman program returns telephone calls or emails 
in a reasonably prompt manner and a resident request for an in-person 
discussion with a representative of the Office is met in a reasonably 
prompt manner.
    We believe creating one national minimum standard for timely access 
would be unrealistic, given the extremely different variables among 
States, as described in the response to ``regular access,'' above. We 
note that some States have developed standards related to timely 
access, such as indicating maximum time frames in which representatives 
of the Office must return telephone or email messages. We strongly 
encourage the development of minimum standards to provide consumers, 
providers and others with an expectation of what constitutes timely 
access.
    We note that the Act and this rule also require that ``residents 
and complainants receive timely responses from representatives of the 
Office to complaints,'' distinguished from ``timely access.'' After a 
resident has received access and the opportunity to file a complaint, 
the ``timely response'' requirement envisions that a response (for 
example, initiating a complaint investigation) is done in a reasonably 
prompt manner. Some States have developed standards of promptness 
related to complaint response that are responsive to the realities in 
that State. Again, we strongly encourage the development of minimum 
standards to provide consumers, providers and others with an 
expectation of what constitutes a timely response to a complaint.
    Comment: Two commenters requested additional clarification of Sec.  
1327.13(a)(5) related to the statutory and proposed regulatory language 
requiring the Ombudsman to ``seek administrative, legal, and other 
remedies to protect the health, safety, welfare and rights of the 
residents.'' One of these commenters recommended that AoA add language 
to clarify that this requirement should include ``representation in 
administrative fair hearings, before legislative bodies, and on behalf 
of residents before judicial forums.'' This commenter indicated that 
this suggested language would clarify that the Ombudsman program would 
be able to go to court on behalf of a resident.
    Response: We agree with the commenters that the term used in the 
statutory and proposed regulatory language requiring the Ombudsman to 
``seek administrative, legal, and other remedies'' would benefit from 
further clarity. We note that this provision also relates to section 
712(g)(2) of the Act which requires that the ``State agency shall 
ensure that . . . the Office pursues administrative, legal, and other 
appropriate remedies on behalf of residents.''
    In the final rule we have replaced the term ``seek'' in order to 
clarify that the Ombudsman is required to assure that individual 
residents have access to and is required to pursue remedies, with a 
goal of protecting the health, safety, welfare and rights of residents. 
See Sec.  1327.13(a)(5).
    We do not agree with the commenter that the Ombudsman program 
should be required to provide legal representation of individual 
residents in administrative fair hearings or before courts. An 
ombudsman service is first and foremost a conflict resolution service 
and not a legal service. The primary role of any ombudsman (not only a 
Long-Term Care Ombudsman) is to investigate and resolve complaints, 
whether on an individual or systemic level.
    While we are aware of a few examples of States which have in-house 
legal counsel available (or which retain an attorney directly) to 
represent individual residents, these are exceptional arrangements. 
More often, Ombudsman programs have developed referral relationships 
with not-for-profit legal services providers and/or maintain lists of 
referral options of law offices

[[Page 7720]]

with relevant expertise so that they are able to assist residents in 
accessing appropriate legal representation when needed. We do not 
intend to prohibit in-house legal counsel representation of individual 
residents by the Ombudsman program, where a State provides this 
service, but rather we are acknowledging that this activity is 
currently the exception among States in their operation of the 
Ombudsman program. We also do not intend to prohibit a representative 
of the Office from serving as a spokesperson for a resident in an 
administrative hearing as provided in 42 CFR 431.206(b)(3).
    We have addressed the issue of legal counsel for the Ombudsman 
program more fully in a new provision at Sec.  1327.15(j) and in the 
related discussion found below.
    Comment: One commenter indicated that most Ombudsman programs are 
not adequately equipped to undertake the requirement to pursue 
``administrative, legal, and other remedies.''
    Response: We note that this is not a new requirement, but has long 
been required by the Act at section 712(a)(3)(D) and (g)(2). Our intent 
in finalizing this rule is to help provide additional clarity around 
this expectation. To further clarify the meaning of Sec.  
1327.13(a)(5), we provide the following examples of ways States can 
fulfill this requirement:
    1. Ombudsman assures individual resident access to an 
administrative remedy: A resident receives an involuntary discharge 
notice that provides a notice of right to a fair hearing. The Ombudsman 
makes sure the resident knows how to request the hearing and is 
informed of available supports to make sure his/her interests are 
represented in the process. The Ombudsman program could, for example, 
refer the resident to a non-profit legal services program to file the 
appeal and represent the resident interests at the hearing, or provide 
in-house legal counsel to represent the resident, and/or provide a 
representative of the Office to accompany the resident to the hearing 
as emotional support. Alternatively, a representative of the Office 
could serve as a spokesperson for a resident in a hearing as provided 
in 42 CFR 431.206(b)(3).
    2. Ombudsman assures individual resident access to a legal remedy: 
A resident wishes to have a power of attorney revoked to remedy 
financial exploitation by agent. The Ombudsman could, for example, 
refer the resident to a non-profit legal services program to provide 
legal advice to the resident and to execute the revocation of the power 
of attorney, or provide in-house legal counsel to provide legal advice 
to the resident and to execute the revocation of the power of attorney, 
and/or provide protocols to representatives of the Office regarding 
what actions could be taken directly by the representative consistent 
with State laws relating to revocations of powers of attorney and 
avoiding the unauthorized practice of law.
    3. Ombudsman pursues an administrative remedy to protect resident 
interests: The Ombudsman advocates before State-level policy makers to 
create a fair hearing process where the State that lacks a fair hearing 
process for involuntary transfer or discharge of nursing home residents 
(as required in Federal regulation at 42 CFR 431.200 et seq.) or for 
board and care/assisted living residents (as regulated under State 
law).
    4. Ombudsman pursues a legal remedy to protect resident interests: 
The Ombudsman program serves as the Patient Care Ombudsman in a long-
term care facility bankruptcy filing pursuant to the Federal Bankruptcy 
law.
    5. Ombudsman pursues a legal remedy to protect resident interests: 
The Ombudsman program files a mandamus action against the State, 
representing the collective interest of residents, to ask a court to 
require the State to enforce its regulatory requirements related to 
long-term care facilities.
    The above examples are some of the many possible ways that 
Ombudsman programs can, and currently do, fulfill this requirement. We 
are available to provide technical assistance to States to assist them 
in further meeting the requirements of Sec.  1327.13(a)(5).
    Comment: One commenter indicated the importance of the language in 
Sec.  1327.13(a)(5) related to assisting residents who face end-of-life 
decisions, indicating the important role of the Ombudsman program in 
assisting residents so that their wishes, as expressed in advance 
directives, are adhered to.
    Response: We appreciate the comment and note that Ombudsman program 
support for residents related to end-of-life decision-making is yet 
another example of ways that Ombudsman programs can, and currently do, 
fulfill the requirements of Sec.  1327.13(a)(5).
    Comment: One commenter recommended language defining adequate legal 
representation in Sec.  1327.13(a)(5).
    Response: We have added a new provision related to legal counsel at 
Sec.  1327.15(j) and have addressed this recommendation in the comments 
related to that provision below.
    Comment: Three commenters suggested that this provision include a 
requirement for, and/or a reference to, collaboration with the 
protection and advocacy system. One of these commenters indicated that 
such collaboration can be an efficient and cost-effective way for the 
Ombudsman program to meet this mandate.
    Response: While we have chosen not to specifically include 
protection and advocacy systems within this regulatory provision, ACL 
is committed to continuing to provide training and other support for 
Ombudsman programs related to appropriate referrals of resident issues 
to protection and advocacy systems. The final rule requirement for the 
Ombudsman to coordinate with protection and advocacy systems at Sec.  
1327.13(h) further supports this intent.
    Comment: Three commenters indicated support for the proposed 
language of Sec.  1327.13(a)(7). One of the commenters stated that the 
proposed language makes clear that Ombudsmen have authority for 
systemic advocacy, indicating that many Ombudsmen are restricted 
currently from taking systemic advocacy actions (such as communications 
with legislators, policymakers or the media) at all or without prior 
approval from the agency in which the Ombudsman is organizationally 
located.
    Response: We appreciate the supportive comments. We note that AoA 
is creating no additional requirements in this provision. Both the 
final rule and the proposed language are identical to the language that 
has long been in the Act. However, it is our hope that the final rule 
in its entirety will provide the clarity needed to enable Ombudsman 
programs to more adequately fulfill this function.
    Comment: One commenter recommended a separate paragraph be added to 
the final language of Sec.  1327.13(a)(7) to focus on consumer 
protection issues.
    Response: We believe that consumer protection issues fall within 
the purview of this provision, which provides for the Ombudsman program 
to make recommendations, and take other actions related to governmental 
policies and actions that pertain to ``the health, safety, welfare and 
rights of residents.'' Therefore, we do not believe that additional 
language is necessary to provide the Ombudsman program with this 
authority.
    Comment: Five commenters recommended that we add specific guidance 
regarding training requirements for certified representatives of the 
Office in the final

[[Page 7721]]

rule. Two commenters recommended sub-regulatory guidance related to 
training requirements. One commenter indicated that budgetary 
constraints have resulted in inadequate training of representatives of 
the Office in their State. Without consistent access to quality 
training, the commenter stated, the Ombudsman program is hampered in 
its ability to achieve positive outcomes for residents and the 
Ombudsman is hampered in his or her ability to advocate for resident 
interests on a policy level.
    Response: We appreciate the importance of consistent access to 
quality training by the Ombudsman and representatives of the Office. In 
Sec. Sec.  1327.13(c)(2) and 1327.15(c) of the final rule, we have 
clarified requirements related to training, including requiring State 
agencies to provide opportunities for training for the Ombudsman and 
representatives of the Office in order to maintain expertise to serve 
as effective advocates for residents. Further, we clarify that State 
agencies may utilize funds appropriated under Title III and/or Title 
VII of the Act in order to provide access to such training 
opportunities.
    While AoA has not incorporated training standards into this rule, 
it intends to develop training standards for the Ombudsman program. In 
the meantime, we recommend that Ombudsman programs refer to the AoA-
funded National Ombudsman Resource Center for training resources and a 
core curriculum designed for certification training of representatives 
of the Office.
    Comment: Two commenters indicated concern with the use of the term 
``citizen organizations.'' They indicated that the word ``citizen'' 
might mistakenly imply reference to United States citizenship. One of 
the commenters suggested that the term should be ``consumer 
organizations'' or ``resident and family organizations.''
    Response: We do not interpret the statutory requirement for the 
Ombudsman to ``promote the development of citizen organizations'' (at 
section 712(a)(3)(H) of the Act) to imply that the need for 
participants of such organizations must be determined to be United 
States citizens. We do not agree that a different term than that 
provided by Congress is necessary, as the commonly defined use of the 
word ``citizen'' is not limited to the context of national citizenship. 
According to the Merriam Webster Dictionary, definitions for 
``citizen'' include ``an inhabitant of a city or town'' and ``a 
civilian as distinguished from a specialized servant of the state.'' We 
believe that ``consumer organizations'' and ``resident and family 
organizations'' (alternative terms suggested by a commenter) are 
clearly included within the meaning of the broader term ``citizen 
organization'' used in the statute and in the final rule at Sec.  
1327.13(a)(8).
    Comment: Three commenters recommended that we eliminate the words 
``to participate in the program; and'' from proposed language at Sec.  
1327.13(a)(8)(ii). Two of the commenters indicated that this phrase 
could be misinterpreted to mean that the Ombudsman only develops or 
works with citizen organizations which work under the direct control of 
the Ombudsman program.
    Response: While we are unfamiliar with the existence of any citizen 
organizations which work under the direct control of the Ombudsman 
program, we agree that this language could lead to confusion. In 
addition, we read the corresponding language in the Act regarding 
participation in the program as support for coordination between the 
Ombudsman program and citizen organizations. Section 712(a)(3)(H) of 
the Act. Therefore we have revised the language in the final rule to 
require the Ombudsman to ``[c]oordinate with and promote the 
development of citizen organizations consistent with the interests of 
residents.'' Sec.  1327.13(a)(8).
    Comment: One commenter indicated that ``citizen organization'' 
should be inclusive of family councils.
    Response: While we agree that the term ``citizen organizations'' 
could be inclusive of groups consisting of or representing family 
members, we have not made a change to the final rule. Family councils 
are more specifically addressed at Sec.  1327.13(a)(9).
    Comment: Two commenters recommended that we add the language 
``actively promote'' to the provision related to the Ombudsman 
responsibilities towards resident and family councils. The commenters 
indicated that some family members do not know what a family council is 
or how it can be formed and, therefore, need support and encouragement 
to join or create a family council. Further, the commenters indicate 
that to require the Ombudsman to ``promote'' family councils would make 
the Ombudsman work with family councils more consistent with the 
requirement to ``promote'' citizen organizations.
    Response: We agree that it is appropriate for the Ombudsman to be 
responsible to promote the development of resident and family councils, 
similar to the requirement to promote citizen organizations, as 
required by Sec.  1327.13(a)(8). We have made the corresponding 
amendment at Sec.  1327.13(a)(9).
    Comment: Two commenters suggested language regarding Ombudsman duty 
to ensure the ability of resident and family councils to exercise their 
rights under Federal law. The commenters indicated that resident and 
family councils can be fragile entities that need support in the 
formation period as well as ongoing support.
    Response: We agree that Ombudsman program support to resident and 
family councils can be important to protect councils' rights under 
Federal law and to enhance their ongoing effectiveness. We believe the 
final rule adequately describes the Ombudsman responsibility to promote 
and provide technical support for the development of resident and 
family councils and is inclusive of Ombudsman program support for 
resident and family councils in the exercise of the rights provided to 
them by Federal law. Therefore, we do not see a need to further revise 
this provision as recommended.
    Comment: One commenter recommended adding language to support the 
maintenance or continuation, not merely the development of, resident 
and family councils.
    Response: We agree with the comment that it is appropriate for the 
Ombudsman program to be available to provide support to resident and 
family councils after they have been developed. However, given that 
resident and family councils should be led by residents and family 
members, respectively, and that AoA wishes to honor the autonomy of 
these councils, we indicate, at Sec.  1327.13(a)(9), that this support 
is to be provided as requested by the council.
    Comment: One commenter requested that we add a definition of family 
council to include past family members and that we provide reference to 
the Centers for Medicare and Medicaid Services (CMS) regulations 
regarding ``family groups.''
    Response: Terms such as ``family councils'' and ``family groups'' 
may be defined by relevant State licensure regulations governing long-
term care facilities. CMS regulations governing nursing facilities set 
out various rights for ``resident groups'' and ``family groups'' in 
such facilities, which are set out at 42 CFR 483.15(c). See also CMS 
Pub. 100-01, State Operations Manual, Appendix PP. Our intent in this 
rule is to clarify AoA's expectation of the Ombudsman program where 
such family councils or family groups exist, regardless of how they are 
defined by

[[Page 7722]]

the laws or regulations governing facilities.
    Comment: One commenter recommended that someone from the Ombudsman 
program should speak to all family members and residents at an annual 
event focused on increasing awareness of resident and family councils 
and how they affect quality of care.
    Response: We believe that the final rule permits this strategy 
within the Ombudsman function to ``promote, provide technical support 
for the development of, and provide ongoing support as requested by 
resident and family councils.'' Sec.  1327.13(a)(9). However, we do not 
believe it is advisable for AoA to specify which strategies an 
Ombudsman should pursue to fulfill this function. This may be a very 
successful strategy, but there may be other strategies that an 
Ombudsman may wish to employ.
    Comment: Seven commenters indicated support for the proposed 
language in Sec.  1327.13(b) requiring that the Ombudsman ``oversee a 
unified statewide program.'' One of these commenters indicated that 
this language is important to ensure effective, efficient, and 
consistent Ombudsman services throughout the country. Two of these 
commenters indicated that the proposed language clarifies that 
representatives of the Office are accountable to the Ombudsman 
regarding Ombudsman program duties; providing clarity for 
representatives of Office and local Ombudsman entities. Another 
commenter indicated that the proposed language recognizes the need for 
coordination and unity among operations at state and local levels, with 
the Ombudsman as the leader of the coordinated effort.
    Response: We appreciate the supportive comments.
    Comment: One commenter recommended that we add language indicating 
that representatives of the Office shall act ``in accordance with the 
policy and procedures of the Office and the State agency'' as set forth 
in Section 712(a)(5)(B) of the Act.
    Response: The provisions of Sec.  1327.13 specifically focus on the 
functions of the Ombudsman. The duties of the representatives of the 
Office are enumerated in Sec.  1327.19. The recommended language is 
found at Sec.  1327.19(a).
    Comment: Twelve commenters indicated support for the proposed 
language in Sec.  1327.13(c) regarding the Ombudsman responsibility for 
designation and de-designation of local Ombudsman entities and 
representatives of the Office. One of the commenters described the 
proposed language as an accurate and logical interpretation of the 
Ombudsman's authority, indicating that the authority to de-designate is 
the only logical reading of the Ombudsman's authority to designate a 
representative, and comparing this to the understanding that informed 
consent includes the right to say no (i.e. informed refusal). This 
commenter went on to say that, if another entity had the authority to 
de-designate an Ombudsman representative, then the Ombudsman would no 
longer be able to designate that individual, which is clearly contrary 
to the Act.
    Another commenter indicated that the proposed language clarifies 
that the Ombudsman can de-designate a representative of the Office who 
may not be appropriate for the role. Two commenters indicated support 
for the clarification that the Ombudsman has the sole authority to 
designate and de-designate representatives of the Office since the Act 
does not clearly indicate where authority for de-designation resides 
and indicated that the clarification will significantly improve the 
ability of the Ombudsman to meet program requirements. One commenter 
described the proposed language as an important clarification, 
essential to ensure the strength and integrity of the program.
    Response: We appreciate the supportive comments.
    Comment: One commenter asked whether this provision permits the 
Ombudsman to override the decision of an AAA to terminate an employee. 
Another commenter indicated concerns regarding lines of responsibility 
since, in the commenter's State, representatives of the Office are 
employees of AAAs who provide direct oversight and monitoring of their 
employees.
    Response: This provision is not intended to provide the Ombudsman 
with authority to override a personnel decision made by any other 
entity. However, we do expect that Ombudsmen who designate AAAs or 
other entities to operate as local Ombudsman entities have procedures 
in place to clearly delineate how the Ombudsman responsibilities to 
designate, or to refuse, suspend or remove designation of, 
representatives of the Office are coordinated with the personnel 
decisions of the agency hosting the local Ombudsman entity. A number of 
States have developed procedures to address this question, and we are 
available to provide States with technical assistance as needed.
    Comment: Four commenters suggested that the Ombudsman be required 
to have policies, protocols, and/or criteria in place regarding 
designation and de-designation actions to which the Ombudsman should be 
held accountable.
    Response: We have adopted this recommendation by adding a new 
provision to Sec.  1327.11(e)(6) requiring procedures which set forth 
the criteria and process implementing the Ombudsman responsibility to 
designate, or to refuse, suspend or remove designation, of 
representatives of the Office and local Ombudsman entities. We 
recognize that many States already have such procedures in place. In 
addition, the grievance process required by Sec.  1327.11(e)(7) can be 
utilized by any individual or entity with reason to believe that the 
procedures were not adhered to by the Ombudsman.
    Comment: One commenter recommended that we add definition or 
guidance regarding the term ``designation'' and that we distinguish 
between the term ``designation'' and the term ``certification.''
    Response: We do not agree that a definition of ``designation'' is 
needed, as we believe the commonly defined use of these terms is 
sufficient to explain their use. According to the Merriam Webster 
Dictionary, to ``certify'' means ``to say officially that something or 
someone has met certain standards or requirements'' and ``designation'' 
means ``appointment to or selection for an office, post, or service.''
    Comment: One commenter recommended that we add to Sec.  1327.13(c) 
language clarifying that the local Ombudsman entity must be a public or 
non-profit private entity as required by section 712(a)(5) of the Act.
    Response: We believe this recommendation adds additional clarity 
consistent with the Act and have made the recommended revision.
    Comment: One commenter recommended that we include the word 
``independently'' to describe the designation authority of the 
Ombudsman.
    Response: We believe that the final rule is sufficiently clear that 
the Ombudsman has sole authority for designation and de-designation of 
local Ombudsman entities and representatives of the Office.
    Comment: Two commenters recommended the need for a fair hearing 
process or appeal procedures for situations in which a representative 
of the Office is de-designated for good faith performance of their 
duties. One of these commenters recommended that representatives of the 
Office should

[[Page 7723]]

have an opportunity to appeal to AoA or that appeals be heard by an 
independent entity mutually selected by parties to the appeal.
    Response: We have added a requirement that Ombudsman program 
policies include the criteria and process for de-designation at Sec.  
1327.11(e)(6). In addition, we have added a grievance process 
requirement in Sec.  1327.11(e)(7) to address situations where an 
opportunity for review of an Ombudsman action or determination is 
warranted. Given that the Ombudsman has the sole authority 
responsibilities to designate, or to refuse, suspend or remove 
designation, of representatives of the Office, we do not agree that it 
is appropriate for AoA or another entity to override the designation 
decisions of the Ombudsman. However, we do believe that it is 
appropriate for there to be a process in which another entity or person 
reviews the grievance and makes recommendations to the Ombudsman for 
his or her re-consideration related to his or her decision to 
designate, or to refuse, suspend or remove designation.
    Comment: One commenter indicated that in their State, Ombudsman 
program volunteers are appointed by county commissioners, not 
designated by the Ombudsman. As a result, when a volunteer does not 
appropriately perform programmatic duties, the appointing authority--
and not the Ombudsman--has the only authority to remove the volunteer 
from this role.
    Response: We appreciate the commenter bringing this issue to our 
attention in the comment. The Act is clear that the Ombudsman has the 
authority to designate representatives of the Office. OAA section 
712(a)(5). Further, this rule clarifies that the Ombudsman has the sole 
authority to designate and to refuse, suspend or remove designation, of 
representatives of the Office. Sec.  1327.13(c). AoA plans to assist to 
States in coming into compliance with this rule.
    Comment: Six commenters indicated support for the proposed language 
related to Ombudsman approval of local Ombudsman entity plans or 
contracts related to Ombudsman program operations in Sec.  1327.13(d). 
One of these commenters indicated that this provision is critical in 
establishing a clear understanding among all parties regarding 
expectations of the local Ombudsman entities. Another indicated strong 
support, saying that the Ombudsman needs this authority to coordinate 
an effective program. Another indicated that the proposed language is 
critical in order to manage a unified statewide program. One commenter 
appreciated that the proposed language recognizes and supports 
meaningful input of Ombudsmen into area plans on aging as they relate 
to Ombudsman services.
    Response: We appreciate the supportive comments and note that the 
relevant provisions are in newly numbered Sec.  1327.13(c).
    Comment: Two commenters recommended the removal of the 
parenthetical ``(in coordination with the State agency)'' in Sec.  
1327.13(d) in order to bolster the Ombudsman's autonomy. The commenters 
indicated that the Ombudsman must have final right of approval for any 
Ombudsman program plans, contracts, or other agreements.
    Response: We disagree with this recommendation. The OAA establishes 
the Ombudsman program through grants to State units on aging. The most 
common model used in States is where the State agency directly operates 
the Office of the State Long-Term Care Ombudsman and contracts with 
AAAs for an array of services, including, but not limited to, operation 
of a local Ombudsman entity. In fact, the Act utilizes this aging 
network structure as the basis for the vast majority of programs and 
services provided through the Act.
    Although the Act specifically provides the option for the State 
agency to determine where the Office is to be organizationally located, 
there is no prohibition from using the aging network structure to also 
operate the Ombudsman program at state and local levels. Further, there 
is no prohibition from incorporating the Ombudsman program allocations 
and requirements into the standard contracts between the State agency 
and the AAAs, nor a prohibition from incorporating Ombudsman program 
activities into the area plans on aging of AAAs.
    When this model is utilized, close coordination between the 
Ombudsman and the State agency is absolutely critical to its success. 
There must be parallel and coordinated processes so that the Ombudsman 
retains the statutory ability to designate (or refuse, suspend, or 
remove designation of) AAAs or their subcontractors as local Ombudsman 
entities and employees and volunteers of AAAs or their subcontractors 
as representatives of the Office. Simultaneously, the State agency must 
retain its ability fulfill all of its duties under the Act and 
applicable State law.
    Comment: One commenter recommended that representatives of the 
Office be consulted in the development of all Ombudsman program-related 
policies, procedures, positions and reports, including establishment of 
area plans.
    Response: We agree that consultation with representatives of the 
Office can add significant value to the development of program-related 
policies and procedures. Therefore, we have incorporated a revision to 
Sec.  1327.11(e) which requires the Ombudsman or State agency, in 
developing policies and procedures, to consult with the representatives 
of the Office.
    We disagree with the recommendation to require the Ombudsman to 
consult with representatives of the Office for all positions and 
reports. Instead, we believe the benefit of such consultation should be 
left to the discretion of the Ombudsman or to relevant Ombudsman 
program policies and procedures.
    With respect to area plans, the final rule requires that, where 
applicable, the State agency shall require inclusion of goals and 
objectives of local Ombudsman entities into area plans on aging. Sec.  
1327.15(g)
    Comment: One commenter indicated that the proposed language would 
result in a cumbersome process related to area plan approval.
    Response: We are aware of a number of States which have 
successfully developed procedures that provide for Ombudsman review and 
approval of area plans as they relate to Ombudsman program operations. 
We are available to provide States with technical assistance as needed 
to implement this provision.
    Comment: One commenter indicated that the proposed language could 
be interpreted to require the Ombudsman to review every contract to 
which the local Ombudsman entity is a party, which would be a waste of 
resources.
    Response: Our intent is to provide the Ombudsman with the 
opportunity to review and approve those plans or contracts which 
establish the local Ombudsman entity and provide parameters governing 
the operation of the Ombudsman program, but not to require the 
Ombudsman to review every contract to which the agency hosting the 
local Ombudsman entity is a party.
    To clarify this intent, we have revised Sec.  1327.13(c) to 
indicate that this requirement only applies to those contracts which 
govern the local Ombudsman program. We have also clarified through a 
new Sec.  1327.17, and in other places in the final rule, that the 
agency hosting a local Ombudsman entity is not the same as the local 
Ombudsman entity but rather is the agency in which the local Ombudsman 
entity is organizationally located.
    Comment: Four commenters indicated support for the proposed 
language in

[[Page 7724]]

Sec.  1327.13(e) related to management of the information of the 
Office. One of these commenters called the proposed language a welcome 
clarification. One commenter indicated that the provision is consistent 
with the Ombudsman's responsibilities of disclosure of information and 
of statewide operation of the Ombudsman program. The commenter also 
noted that this provision ensures consistency with access to 
information should there be an agency change at the State level or 
changes in local Ombudsman entities. One of these commenters indicated 
that this clarification should eliminate current frictions and 
confusion regarding ownership and locus of decision-making with respect 
to record release in the Ombudsman program.
    Response: We appreciate the supportive comments.
    Comment: One commenter suggested that we add the language ``files 
and information'' in the last sentence of this provision.
    Response: We have added language to clarify that newly numbered 
Sec.  1327.13(d) refers to ``files, records, and other information.''
    Comment: One commenter recommended that we clarify that it is 
permissible for the local Ombudsman entity to retain physical records 
if done securely. One commenter indicated that the information should 
be the property of the Office of the Ombudsman, including the 
representative of the Office. Another commenter indicated that the 
proposed language erodes the independence and integrity of local 
Ombudsman entities, sending a sign that local Ombudsman entities are 
not trusted to perform basic ombudsman functions, such as maintaining 
records. The commenter indicated that this approach is likely to be 
divisive and harmful in some States.
    Response: We have added language indicating that nothing in this 
provision shall prohibit a local Ombudsman entity from maintaining such 
information in accordance with Ombudsman program requirements. This 
provision is intended neither to indicate a lack of trust in local 
Ombudsman entities nor to indicate that they are prohibited from 
maintaining records. On the contrary, we anticipate that most, if not 
all, Ombudsmen, will make no change regarding the ability of local 
Ombudsman entities to physically maintain Ombudsman program information 
as a result of this rule.
    We believe that, ultimately, the Ombudsman must be held responsible 
for the management of Ombudsman program information. Otherwise, the 
Ombudsman might lack sufficient access to records to meet the 
requirement to determine disclosure of Ombudsman program information. 
Section 712(d)(2)(A) of the Act. In addition, if the Ombudsman should 
determine that a local Ombudsman entity should no longer be designated, 
he or she might have difficulty retrieving necessary information in 
order to provide continued services to residents.
    Comment: One commenter indicated concern about additional security 
needed to ensure protection of confidential information and requested 
clarification on record retention requirements.
    Response: We do not anticipate that additional security, beyond 
that already required to meet the requirements of the Act, is required 
by this rule. As a reminder, this rule does not require the Ombudsman 
to physically maintain the program files and records. Nothing prohibits 
the Ombudsman from delegating that responsibility to representatives of 
the Office or to local Ombudsman entities as is done currently in many 
Ombudsman programs.
    Similarly, we do not anticipate any change in record retention 
requirements. The Federal requirements related to retention of records 
maintained pursuant to HHS grants apply to records retention of the 
Ombudsman program. While there are some exceptions, in general, grants 
recipients and their sub-awardees must retain financial and 
programmatic records, supporting documents, statistical records, and 
all other records that are required by the terms of a grant, or may 
reasonably be considered pertinent to a grant, for a period of 3 years 
from the date the final Financial Status Report is submitted by States 
to HHS. See 45 CFR 75.361. This Federal grant requirement does not 
prohibit a State agency, the Office, and/or a local Ombudsman entity 
from establishing record retention policies which provide for longer 
retention periods than the Federal requirements.
    Comment: Two commenters indicated support for the proposed language 
at Sec.  1327.13(f) regarding responses to requests for disclosure of 
information. One of these commenters indicated that the provision is 
important because it covers records and files regardless of format and 
because it applies to all funding sources for the Ombudsman program.
    Response: We appreciate the supportive comments and note that this 
provision is at newly numbered Sec.  1327.13(e).
    Comment: One commenter suggested adding a provision encouraging 
Ombudsman programs to share non-confidential information with advocacy 
organizations and identifying information from a complainant with 
complainant permission.
    Response: We do not agree that AoA should encourage Ombudsman 
programs to share information with any particular type of entity. We 
believe the Act leaves that determination up to the Ombudsman where it 
does not otherwise prohibit the disclosure of resident-identifying 
information. The circumstances under which the Ombudsman program is 
permitted to disclose resident-identifying information with any outside 
entity is more fully described in Sec.  1327.11(e)(3).
    Comment: One commenter indicated a need for further clarification 
that the Ombudsman is solely responsible for making decisions 
concerning disclosure.
    Response: We believe that the Act at section 712(d) does indicate 
that the Ombudsman has sole authority to make such determinations. We 
have amended Sec.  1327.13(e) to further clarify this authority in the 
final rule.
    Comment: One commenter indicated support for the proposed language 
at Sec.  1327.13(g).
    Response: We appreciate the supportive comment and note that this 
provision is at newly numbered Sec.  1327.13(b)(1).
    Comment: Nine commenters disagreed with proposed language at Sec.  
1327.13(g) and indicated that the Ombudsman, not the State agency, 
should be responsible for developing policies, procedures, and 
standards, regarding the administration of the Ombudsman program, 
rather than merely proposing them to the State agency. Five of these 
commenters indicated that the Office should develop the policies, 
procedures and standards and then consult with the State agency or seek 
State agency review to ensure consistency with the Act. One of these 
commenters described the proposed language as potentially dangerous, 
particularly where the Ombudsman program is organizationally located in 
a State government agency other than the State unit on aging. One 
commenter indicated that the proposed language should be amended to 
indicate that the Ombudsman shall ``independently'' propose policies, 
etc.
    Response: We have amended this provision to provide for the 
Ombudsman to ``establish or recommend'' policies, procedures, and 
standards. In addition, a new provision at Sec.  1327.11(e) more fully 
describes the process and responsibility for

[[Page 7725]]

establishing policies, procedures, and standards for the Ombudsman 
program.
    Comment: Two commenters recommended that policies should be 
developed in consultation with representatives of the Office who work 
at local Ombudsman entities. One of these commenters indicated that, 
since representatives of the Office deal daily with complaints, they 
can strengthen policies and provide valuable insight.
    Response: We agree with the comments and have incorporated 
consultation with representatives of the Office and local Ombudsman 
entities as part of the required process of establishing policies and 
procedures in a new provision at Sec.  1327.11(e).
    Comment: One commenter indicated support for the proposed language 
at Sec.  1327.13(h).
    Response: We appreciate the supportive comment and note that this 
provision is at newly numbered Sec.  1327.13(a)(7)(iv).
    Comment: Four commenters suggested language to enhance coordination 
of advocacy efforts with representatives of the Office, indicating that 
accountability for the positions of the Office lies with the Ombudsman, 
consistent with Sec.  1327.13(b) which provides for the representatives 
of the Office to report to the Ombudsman regarding Ombudsman program 
functions and duties.
    Response: We have accepted this recommendation by adding the 
language ``including coordination of systems advocacy efforts carried 
out by representatives of the Office'' to the functions of the 
Ombudsman set forth at Sec.  1327.13(a)(7)(iv).
    Comment: One commenter indicated that the proposed language should 
be amended to indicate that the Ombudsman shall ``independently'' 
provide leadership to statewide advocacy efforts.
    Response: We believe that this provision, along with the provision 
regarding the Ombudsman independently making determinations and 
establishing positions at Sec.  1327.11(e)(5) and (8), sufficiently 
describe the independence of the Ombudsman related to policy advocacy.
    Comment: Seven commenters indicated support for the proposed 
language regarding Ombudsman management of fiscal resources at Sec.  
1327.13(i). One of these commenters indicated that the provision is 
important to the Ombudsman's effective leadership of the Ombudsman 
program. One of the commenters noted that this provision is consistent 
with the 1995 Institute of Medicine recommendation that, without fiscal 
control, the Office cannot adequately manage the statewide program.
    Response: We appreciate the supportive comment and note that this 
provision is at newly numbered Sec.  1327.13(f).
    Comment: Two commenters recommended that the Ombudsman should 
determine the use of, or approve allocation of, funds to local 
Ombudsman entities at Sec.  1327.13(i).
    Response: The suggested language helps clarify our intent, so we 
have accepted the recommendation at Sec.  1327.13(f).
    Comment: One commenter suggested language that would clarify that 
the Ombudsman should determine that ``program expenditures of the 
Office and local Ombudsman entities are consistent with policies 
established by the Office'' at Sec.  1327.13(i).
    Response: The suggested language helps clarify our intent, so we 
have accepted the recommendation at Sec.  1327.13(f).
    Comment: One commenter recommended that the rule at Sec.  
1327.13(i) not prohibit the ability of the Office or local Ombudsman 
entities from seeking additional funds to support the Ombudsman 
program.
    Response: We agree with the comment, but we do not read the 
proposed language, nor that of the final rule at Sec.  1327.13(f), to 
prohibit fundraising efforts. We do note, however, that fundraising 
efforts need to be consistent with the policies and procedures 
established by the Office. For example, the Office might appropriately 
have a policy prohibiting the receipt of funds from a source that would 
pose a conflict of interest to the local Ombudsman program.
    Comment: Three commenters requested additional clarification on the 
extent of Ombudsman involvement in fiscal monitoring of local Ombudsman 
entities anticipated by the proposed provision at Sec.  1327.13(i). One 
commenter recommended that we require transparency in the management of 
the financial resources of the Office, including of local Ombudsman 
programs.
    Response: We believe that the organizational location of the Office 
as well as the nature of the relationship between the Office and the 
local Ombudsman entities will determine whether the Ombudsman should be 
responsible for fiscal monitoring of local Ombudsman entities. 
Depending on the organizational structure used to host the Office and 
local Ombudsman entities, the State agency or other agency may be most 
appropriately responsible for fiscal monitoring of area agencies on 
aging or other agencies hosting local Ombudsman entities.
    Rather than make one approach that may not adequately cover all 
States' organizational structures, we have clarified in Sec.  
1327.13(f) that the unique Ombudsman responsibility, regardless of 
organizational structure, is to determine that program budgets and 
expenditures of the Office and local Ombudsman entities are consistent 
with policies and procedures established by the Office. In order to 
assure that the Ombudsman has access to the information needed to 
perform this function, we have amended Sec.  1327.15(b) to require the 
State agency to assure that the Ombudsman has access to information 
needed to perform required functions and responsibilities.
    We encourage the Ombudsman to be involved in the fiscal monitoring 
of local Ombudsman entities. Where applicable, we encourage the State 
agency or other entity in which the Office is organizationally located 
to provide opportunities to the Ombudsman to be involved in its fiscal 
monitoring activities related to agencies hosting local Ombudsman 
entities.
    Comment: Three commenters did not support the provision at Sec.  
1327.13(i), indicating that the proposed language fails to address the 
issue of a representative of the Office's access to financial 
information related to the local Ombudsman entity. These commenters 
recommended that local Ombudsman entities should have fiscal oversight 
over their allocated funds or control over their own finances. One 
commenter recommended that we require transparency in the management of 
the financial resources of the Office, including of local Ombudsman 
programs. One commenter suggested that the provision require the 
Ombudsman to work in consultation with representatives of the Office 
and local Ombudsman entities in developing the fiscal determinations.
    Response: We believe that the revisions made in the final rule at 
Sec.  1327.13(f) adequately clarify the responsibility of the 
Ombudsman. In addition, we require that the policies and procedures of 
the Office should clarify for the local Ombudsman entity, among other 
things, the appropriate fiscal responsibilities and/or access to 
financial information at Sec.  1327.11(e)(1)(vi).
    Comment: One commenter suggested addition of language at Sec.  
1327.13(i) that clarifies the authority and autonomy of the Ombudsman 
to determine the use of fiscal resources. The commenter indicated that, 
given State budgetary constraints, the Ombudsman may be at

[[Page 7726]]

the mercy of the State agency for fiscal resources required to operate 
an effective Ombudsman program.
    Response: We agree that budgetary constraints (at any level, not 
only due to State budget constraints) can limit the ability of the 
Ombudsman program to have sufficient fiscal resources required to 
operate an effective Ombudsman program. However, we do not intend to 
suggest in this provision that the Ombudsman has the authority to 
appropriate funds (which is the duty of Congress at the Federal level 
and State legislatures at the State level). Therefore, in this 
provision, we intend to clarify that the Ombudsman is to have the 
authority to make fiscal determinations regarding those funds available 
to the Ombudsman program.
    We also note that it is appropriate for the Ombudsman to work with 
the State agency and other potential sources of funding to explain 
Ombudsman program resource needs and to seek ways to maximize resources 
available to operate the Ombudsman program.
    Comment: One commenter recommended that we use a word other than 
``designated'' when referring to funds, given that the term 
``designated'' has a specialized meaning in the context of designating 
local Ombudsman entities and representatives of the Office.
    Response: We have made a change in the wording at Sec.  1327.13(f) 
to reflect this comment, intending to avoid confusion around the 
meaning of the term ``designated.''
    Comment: Two commenters asked whether this provision will apply to 
funds raised locally. One of the commenters indicated that, while local 
fundraising should not be discouraged, it should be clarified what 
level of control the Ombudsman should have over locally raised funds. 
The other commenter recommended that the provision state that the 
Ombudsman should have control over only those funds allocated by the 
State agency, and not to funding for local Ombudsman entities. This 
commenter indicated that it would be inappropriate to give the 
Ombudsman control over funds raised locally to support the work of the 
local Ombudsman entity.
    Response: The Ombudsman is responsible with respect to fiscal 
management, as described in the final rule at Sec.  1327.13(f), for: 
(a) Determining the use of the fiscal resources appropriated or 
otherwise available for the operation of the Office, (b) where local 
Ombudsman entities are designated, approving the allocations of Federal 
and State funds provided to such entities, and (c) determining that 
program expenditures of the Office and local Ombudsman entities are 
consistent with policies and procedures established by the Office. We 
do not believe that this language limits the ability of local Ombudsman 
entities to seek diversified funding or other resources to support the 
operations of the Ombudsman program at the local or regional level.
    Comment: One commenter recommended that we include the word 
``independently'' to describe the fiscal determinations of the 
Ombudsman at Sec.  1327.13(i).
    Response: Depending on the organizational structure of the agency 
in which the Ombudsman is hosted, fiscal management may necessarily be 
coordinated with the State agency or other agency or non-profit entity 
in which the Ombudsman is located. We are not convinced that the term 
``independently'' would therefore be appropriate in this provision. 
While we intend to signal here that the Ombudsman should make 
determinations, including fiscal determinations regarding available 
funds, related to Ombudsman programmatic priorities, we are aware that 
the Ombudsman program is often one part of a larger entity with 
multiple services and programs that may manage the fiscal duties of the 
entity. We do not intend to suggest that the Ombudsman must 
independently perform all of these fiscal duties, which could include 
budgeting, tracking of expenditures, fiscal reporting to funders, 
responses to auditors, etc.
    Comment: Four commenters indicated support for the proposed 
language in Sec.  1327.13(j). One of these commenters indicated that 
the proposed language will strengthen the integrity of the program. 
Another indicated that monitoring is essential to a unified and 
effective statewide program. Another indicated that the proposed 
language would strengthen accountability.
    Response: We appreciate the supportive comments and note that this 
provision is found in the final rule at Sec.  1327.13(c)(1)(iii), 
related to designation of local Ombudsman entities.
    Comment: Two commenters suggested that monitoring, as required in 
Sec.  1327.13(j), should occur on a regular basis.
    Response: We agree that monitoring cannot be a one-time occurrence 
but should be on-going; therefore we have adopted this recommended 
language that monitoring be on a ``regular basis'' at the final rule at 
Sec.  1327.13(c)(1)(iii).
    Comment: One commenter recommended an added requirement, in Sec.  
1327.13(j), that the Ombudsman consult with the local supervisor of the 
Ombudsman representative when determining performance.
    Response: We agree that this approach is an important practice 
where it is applicable. Since the applicability of an Ombudsman 
consulting with others, such as area agency on aging directors, who may 
have responsibility for personnel supervision of a representative of 
the Office, depends upon the organizational structure of local 
Ombudsman entities, we believe that State agencies and Ombudsmen can 
most appropriately address this practice through State-specific 
policies and procedures. We plan to also promote this type of 
coordination in monitoring practices through technical assistance to 
States and Ombudsmen.
    Comment: One commenter indicated that the proposed language should 
be amended to indicate that the Ombudsman shall ``independently'' 
develop and provide final approval of an annual report at Sec.  
1327.13(k).
    Response: We have accepted this recommended change at Sec.  
1327.13(g). We are aware of circumstances in some States in which 
questions have arisen regarding the process by which this report is to 
be developed. Since the Act specifically requires this report and 
requires it to include some content which would be necessarily 
determined by the Ombudsman (e.g., evaluation of problems experienced 
by and complaints made by or on behalf of residents; providing relevant 
policy, regulatory, and legislative recommendations), we believe it is 
consistent with the Act that the Ombudsman, as head of the Office, be 
responsible to independently develop and approve the content of this 
report. See section 712(h)(1) of the Act.
    Comment: Three commenters indicated support for the proposed 
language in Sec.  1327.13(l). One of these commenters indicated that 
this provision will help establish clear lines of communication and 
education among programs and services. Another indicated that the 
proposed language effectively describes the critical and unique dynamic 
between the Office and the State agency, maintaining separation yet 
coordinating closely on the State's elder rights agenda.
    Response: We appreciate the supportive comments and note that the 
applicable provisions are in the final rule at Sec.  1327.13(h).
    Comment: Three commenters indicated that the proposed language is 
unclear. Two of the commenters questioned whether AoA is requiring a 
new, additional responsibility with

[[Page 7727]]

respect to other programs and with no resources. Since the Act already 
requires the State agency to coordinate programs for vulnerable adults, 
the commenter indicated that this responsibility is more appropriate 
for the State agency than the Ombudsman. Another commenter indicated 
that the proposed language is unclear whether the expectation for the 
Ombudsman to lead the statewide coordination or to lead the Ombudsman 
program-specific portion of that effort.
    Response: This provision is not intended to require a new 
undertaking of the Ombudsman, nor is it intended to detract from the 
State agency leadership role with respect to elder rights activities as 
set forth in section 721(d) of the Act. We have, therefore, revised 
this provision in order to further clarify our intent to implement the 
provisions of the Act which require coordination of Ombudsman program 
services with protection and advocacy networks, legal assistance 
programs, law enforcement agencies and courts of competent 
jurisdiction, as well as other entities with responsibilities which 
relate to the health, safety, welfare, or rights of residents of long-
term care facilities. See section 712(h)(6)-(8) of the Act.
    AoA's intent in this provision is for the Ombudsman to lead the 
coordination at the state level between the activities of the Ombudsman 
program and of the enumerated entities, not to be responsible for the 
statewide leadership of broader elder rights coordination, which is 
more appropriately the role of the State agency. We have revised 
language in the final rule at Sec. Sec.  1327.13(h); 1327.15(h), and 
(k)(5) to reflect this intent.
    Comment: One commenter suggested language to clarify that memoranda 
of understanding should not be limited to the coordination between the 
Office and the legal assistance developer and legal assistance programs 
as indicated in proposed language at Sec.  1327.13(l)(8).
    Response: We have adopted the recommended language at Sec.  
1327.13(h).
    Comment: Three commenters recommended that we use alternate 
language, rather than the language used in the Act at section 712(h)(6) 
for the reference to the protection and advocacy system in Sec.  
1327.13(l)(3). The commenters indicated that the proposed language is 
more descriptive and clear since the network serves people with all 
types of disabilities, not only individuals with developmental 
disabilities or mental illness that are referenced in the statutory 
references.
    Response: We have worked with the Administration for Intellectual 
and Developmental Disabilities to revise the description of 
``protection and advocacy system'' in the final rule at Sec.  
1327.13(h)(4).
    Comment: One commenter recommended that the final rule expressly 
acknowledge the existing relationship between protection and advocacy 
systems and Ombudsman program and should reflect the reality that the 
leadership of the coordination effort may lie in other entities.
    Response: We acknowledge and appreciate the existing coordination 
between many States' Ombudsman programs and protection and advocacy 
systems, as well as Ombudsman program coordination with the other 
entities listed in this provision. This provision is not intended to 
imply that such coordination does not exist, but rather to reflect the 
statutory requirement as well as to reinforce that such coordination is 
absolutely critical to the well-being of residents served by the 
respective entities. It is, therefore, an AoA expectation of the 
Ombudsman in every State.
    We also acknowledge and appreciate that the leadership for such 
coordination could happen in a variety of ways. Our intent in this 
provision is to indicate that the Ombudsman is responsible for 
providing state-level leadership within the statewide Ombudsman 
program, but not that the Ombudsman is to exclusively provide 
leadership across all of the entities in this coordinated effort, nor 
that this duty is to exclude leadership opportunities at the local or 
regional level of local Ombudsman entities.
    Comment: Two commenters requested that we add a duty of the 
Ombudsman to investigate allegations of inappropriate conduct by a 
representative of the Office.
    Response: We agree that this is should be the responsibility of an 
Ombudsman and inherent his or her duty to designate representatives of 
the Office. We have therefore added a provision reflecting this duty at 
a new Sec.  1327.13(c)(4). We also address the policies governing 
grievance processes at a new Sec.  1327.11(e)(7).
    Comment: One commenter recommended that we add protections that 
provide due process through a third party formal appeals process if 
representative of the Office faces de-designation.
    Response: We address this comment in a new provision regarding 
grievance processes at Sec.  1327.11(e)(7).

E. State Agency Responsibilities Related to the Ombudsman Program 
(Sec.  1327.15)

    In Sec.  1327.15, AoA provides clarification regarding the State 
unit on aging (State agency) and its responsibilities as OAA grantee in 
relation to the Long-Term Care Ombudsman Program.
    Comment: Four commenters indicated general support for the proposed 
provision at Sec.  1327.15. One indicated that the proposed language 
provided welcome clarifications.
    Response: We appreciate the supportive comments.
    Comment: One commenter indicated that they foresee challenges in 
implementing the proposed rule as there are several policies and 
protocols in place that would prohibit their State agency from meeting 
several of the requirements indicated in Sec.  1327.15.
    Response: The Act is clear on a number of these requirements of the 
State agency which are incorporated into this rule. It is our intent to 
further clarify these requirements. AoA plans to provide technical 
assistance to States regarding compliance with this rule.
    Comment: One commenter indicated that the proposed language could 
have unintended consequences for Ombudsman programs located outside of 
the State agency. The commenter recommended language to clarify that 
the State's responsibility is to ensure that the Ombudsman program has 
the resources necessary to meet the requirements of the Act and 
conforms to Federal and State law.
    Response: We have adopted the recommendation to add language in 
Sec.  1327.15(a) regarding the State agency duty to ensure that the 
Office complies with the relevant provisions of the Act and of this 
rule.
    Comment: Two commenters recommended that we add clarifying language 
in Sec.  1327.15(a)(1) to ensure the independence of the Ombudsman 
program.
    Response: We believe that the rule in its entirety supports the 
operation of the Office as a distinct entity and the ability of the 
Ombudsman to make independent determinations. Therefore, we do not 
believe that additional language regarding independence is necessary in 
Sec.  1327.15.
    Comment: One commenter suggested that where conflict of interest 
exists, the State agency should assist the Office in identifying and 
remedying the conflict.
    Response: We believe we have adequately described responsibilities 
of the State agency and the Office related to conflict of interest in 
Sec.  1327.19 of the final rule.
    Comment: In commenting on the definitions section, Sec.  1327.1, 
one commenter recommended that we define ``State agency.''

[[Page 7728]]

    Response: While we have not incorporated a definition within the 
final rule, we have added a cross-reference to part 1321 to clarify 
that references to the State agency found in part 1321 also apply to 
those references in part 1327.
    Comment: One commenter suggested that the language should be 
amended to indicate that ``[t]he State agency shall require the Office 
to'' perform the enumerated duties in Sec.  1327.15(c).
    Response: Our intent in Sec.  1327.15 is to describe the 
responsibilities of the State agency. The functions and 
responsibilities of the Ombudsman are enumerated in Sec.  1327.13. To 
further clarify this intent and with a goal of reducing confusion 
regarding which entity is responsible for which duty, we have reduced 
the level of detail for the Ombudsman responsibilities, which the Act 
requires the State agency to ensure (section 712(h) of the Act). These 
provisions are now found at Sec.  1327.15(k). We have moved many of the 
more detailed provisions that had been in Sec.  1327.15(c) to Sec.  
1327.13, in order to clarify that these are responsibilities of the 
Ombudsman to perform through the Office, and not of the State agency.
    In addition, we believe the responsibility of the State agency, at 
Sec.  1327.15(b), to ensure that the Ombudsman program has sufficient 
authority and access to information needed to fully perform all of the 
functions, responsibilities, and duties enumerated in the rule, 
sufficiently describes the State agency responsibilities related to 
these provisions.
    Comment: Twelve commenters recommended revisions to proposed 
language Sec.  1327.15(a)(2), recommending that the Ombudsman, rather 
than the State agency, should have primary responsibility for (or, at a 
minimum, the Ombudsman should have enhanced participation in) 
developing the policies, procedures, and standards of the Ombudsman 
program. One of the commenters indicated that if the State agency 
establishes the policies and procedures, the autonomy of the Ombudsman 
and of local Ombudsman entities would be at risk. Two commenters 
indicated that this provision is in direct contravention of the 
independence of the Office. One commenter indicated that it would be 
more realistic and effective if the Ombudsman would be primarily 
responsible for the development of policies and procedures. One of the 
commenters indicated that, where the Ombudsman is organizationally 
located in another State agency, for the State unit on aging to dictate 
the policies of another State agency would be problematic and 
potentially dangerous.
    Response: The final rule at Sec.  1327.11(e) more fully describes 
the process and responsibility for establishing policies, procedures, 
and standards for the Ombudsman program.
    Comment: One commenter recommended that we change the format of 
subparagraph Sec.  1327.15(a)(2) to make the language more readable.
    Response: We have adopted this recommendation within the new 
provision at paragraph Sec.  1327.11(e).
    Comment: Two commenters indicated support for the proposed language 
in Sec.  1327.15(a)(2)(i) requiring policies related to Ombudsman 
monitoring of local Ombudsman entities.
    Response: We appreciate the supportive comments and note that we 
have moved the relevant provision in the final rule to Sec.  
1327.11(e)(1)(iii).
    Comment: One commenter requested that we add the descriptor 
``periodically'' to indicate that monitoring in Sec.  1327.15(a)(2)(i) 
should be on-going.
    Response: We believe that the final rule at Sec.  
1327.11(e)(1)(iii) is adequate.
    Comment: One commenter recommended the development of a fair 
hearing process, indicating that, when representatives of the Office 
are employees of agencies hosting local Ombudsman entities, there is 
risk of conflict of interest or willful interference, and that 
employees may be caught between following policies of their employer 
and those of the Ombudsman.
    Response: We have addressed the requirement for a grievance process 
in Sec.  1327.11(e)(7).
    Comment: Three commenters indicated support for the proposed 
language at Sec.  1327.15(a)(2)(ii) regarding standards to assure 
prompt response to complaints. One of these commenters indicated that 
States are in the best position to determine any response time frames 
through policies and procedures, and that a more specific requirement 
would place some States which rely entirely on Federal funds to operate 
the Ombudsman program in an untenable position.
    Response: We appreciate the supportive comments and note that we 
have moved the relevant provision in the final rule to Sec.  
1327.11(e)(1)(v).
    Comment: Five commenters indicated a need for a national standard 
or additional guidance for what is considered a ``prompt response.''
    Response: We believe creating one national standard of promptness 
would be unrealistic, given the extremely different variables among 
States. Some States have developed standards of promptness related to 
complaint response that are responsive to the realities in that State. 
We strongly encourage the development of minimum standards to provide 
consumers, providers and others with an expectation of what constitutes 
a timely response to a complaint. We note that these standards provide 
an important mechanism for Ombudsman program accountability. We are 
available to provide technical assistance to States and Ombudsmen as 
they develop these standards.
    Comment: One commenter recommended that we refer to the 
availability of resources to the Ombudsman program, agreeing with the 
need for high standards, but not wanting to create unrealistic 
expectations.
    Response: We provide sufficient flexibility to the States for 
state-specific standards in this rule, providing opportunity for the 
State agency and Ombudsman program to consider available resources as 
they develop the standards.
    Comment: Eight commenters suggested that we use the term 
``neglect'' instead of ``gross neglect'' or provide further 
clarification of ``gross neglect'' in Sec.  1327.15(a)(2)(ii) and in 
other places where it occurs.
    Response: We have adopted this recommendation within Sec.  
1327.11(e)(1)(v). In both the proposed rule and the final rule, the 
Ombudsman program is required to respond to and work to resolve 
complaints of neglect. In contrast, this provision specifically relates 
to what AoA requires of State agencies and Ombudsmen as they develop 
standards of promptness to respond to these and other types of 
complaints. The final rule, rather than distinguishing between ``gross 
neglect'' and ``neglect'' for purposes of triage, requires development 
of standards of promptness which can guide the Ombudsman program to 
prioritize abuse, neglect, exploitation, and time-sensitive complaints. 
The rule also requires consideration of the severity of the risk to the 
resident, the imminence of the threat of harm to the resident, and the 
opportunity for mitigating harm to the resident by providing services 
of the Ombudsman program in response to a complaint. Rather than 
distinguishing between ``neglect'' and ``gross neglect'' in this 
provision, this rule provides States with the latitude to consider the 
use of the terms (and accompanying definitions) that are most 
appropriate to their State's Ombudsman program.
    For purposes of determining standards of promptness, States may

[[Page 7729]]

choose to use ``gross neglect,'' which is defined in NORS instructions, 
or ``neglect.'' We note that, ``neglect'' is defined in the Act at 
section 102(38) and by the Centers for Medicaid & Medicaid Services 
(CMS) regarding nursing facilities at 42 CFR 488.301. Alternatively, 
States may choose to rely on their relevant State definition of 
``neglect'' in developing their standard of promptness.
    Comment: One commenter indicated the need for the final rule to 
have a provision implementing section 712(b) of the Act (``Procedures 
for Access'') requiring States to have policies on Ombudsman program 
access to facilities, residents, and records and providing guidance on 
how to appropriately implement this statutory requirement. The 
commenter indicated that, before addressing disclosure of Ombudsman 
program records and files, Ombudsman program authority to access and 
obtain records should be addressed, and provided a number of related 
recommendations, including the need for the final rule to:
     Clarify times when the representative of the Office may 
have access to facilities and residents and providing for privacy in 
resident access.
     Provide for representatives of the Office to have access 
to the name and contact information of the resident representative, 
indicating that, when a resident is not competent to communicate with 
the Ombudsman, the resident representative is authorized by law to 
provide consent. The commenter indicated that, if the Ombudsman does 
not know how to contact the resident representative, he or she cannot 
fulfill his or her duties to the resident.
     Clarify that access to resident records should include 
``other records relating to the resident'' and maintained by the 
facility. The commenter indicated that, should a facility consider 
nursing, therapy, financial or other common records that the facility 
maintains which relate to the resident to be other than ``medical or 
social,'' there could be a question about whether a representative of 
the Office has access to such records.
     Clarify that the statutory provision providing Ombudsman 
access to ``all licensing and certification records maintained by the 
State'' (at section 712(b)(1)(D)) includes unredacted licensing, 
certification, and complaint investigation files maintained by the 
State regarding long-term care facilities. This would enable the 
Ombudsman to meet the Act's requirement to monitor and analyze the 
implementation of laws pertaining to the ``health, safety, welfare, or 
rights of the residents, with respect to the adequacy of long-term care 
facilities and services'' as required by section 712(a)(3)(G)(i) of the 
Act, since the primary way a State implements the laws is through 
licensing and certification inspections and complaint investigations. 
The commenter argues that, if the access in this provision of the 
statute were to be limited to redacted records, the Ombudsman would 
have no more access than the general public under the state's public 
disclosure laws.
    The commenter further notes that the confidential information in 
these State records would be subject to the disclosure limitations of 
section 712(d) of the Act.
    Other commenters, in comments related to proposed language at Sec.  
1327.15(b), recommended that the final rule require ``prompt'' access 
to resident records and clearly state that all persons acting under the 
authority of the Office have access to resident records as part of a 
health oversight agency pursuant to HIPAA. Three commenters recommended 
that we incorporate language to clarify that access to resident records 
by the Ombudsman program should include authority to view records in 
any format and to obtain copies of the records. Two commenters 
indicated the need for additional clarity regarding how a 
representative of the Office should carry out his or her duties when a 
resident representative opposes a request for access to records.
    Response: We agree that the rule is strengthened by incorporating 
provisions related to Ombudsman program access to facilities, residents 
and records and have added Sec.  1327.11(e)(2) to require policies and 
procedures related to access. We have also added a provision in Sec.  
1327.15(b) to clarify the State agency's responsibility, as required by 
section 712(b) of the Act, to ensure that the Ombudsman program has 
sufficient authority and access to facilities, residents and needed 
information in order to perform required functions, responsibilities, 
and duties.
    In addition, we have incorporated a provision at Sec.  
1327.11(e)(2)(vi) related to access of the Ombudsman to, and, upon 
request, copies of all licensing and certification records maintained 
by the State with respect to long-term care facilities, reflecting the 
statutory requirement in section 712(b)(1)(D) of the Act. While we are 
not suggesting that representatives of the Office be prohibited from 
this access, we anticipate that the Ombudsman and/or State agency will 
coordinate this policy and procedure development, and incorporate 
procedures for appropriate access of representatives of the Office, 
with the State agency or agencies which maintain such licensing and 
certification records. Ombudsman programs are not prohibited from 
access to unredacted licensing and certification records, which may 
include resident-identifying information, under the Health Insurance 
Portability and Accountability Act (HIPAA) of 1996. See HIPAA Privacy 
Rule, 45 CFR part 160 and subparts A and E of part 164; see also Sec.  
1327.11(e)(2)(vii) of this rule.
    Comment: Two commenters disagreed with the proposed language that 
the Ombudsman program be required to prioritize abuse complaints, 
indicating that investigation of abuse is a protective services 
responsibility. One of the commenters indicated that, in their State, 
where an individual is the victim of abuse or at imminent risk, the 
Ombudsman program refers to protective services for investigation, 
indicating that the Ombudsman program will report abuse on certain 
occasions without resident consent if the allegation would potentially 
impact the health and safety of the individual and/or other residents. 
Another commenter requested clarification regarding establishing policy 
and procedure for the Ombudsman program to respond to abuse complaints, 
as required in the proposed rule at Sec.  1327.11(a)(2)(ii), in light 
of the fact that the State agency that, in their State, serves as the 
official finder of fact related to allegations of abuse, neglect and 
exploitation.
    Response: The Act requires the Ombudsman program to ``identify, 
investigate, and resolve complaints that . . . relate to action, 
inaction or decisions that may adversely affect the health, safety, 
welfare, or rights of the residents.'' Section 712(a)(3)(A) and 
(5)(B)(iii) of the Act. Abuse, neglect and exploitation of residents 
are among the complaints that fall within this purview. Through NORS, 
States report on the types of complaints processed by the Ombudsman 
program, specifically including complaint codes and definitions related 
to abuse, gross neglect and exploitation. ``Long-Term Care Ombudsman 
Program Complaint Codes,'' OMB 0985-0005, at pp. 1-3, 17-18.
    The services of the Ombudsman program are distinct from, and as 
indicated in Sec.  1327.21(c), may even conflict with the 
responsibilities of protective services. An individual resident, may, 
for example, have a complaint about protective services or may seek 
support from the Ombudsman program to realize a goal that is

[[Page 7730]]

inconsistent with his or her protective services plan.
    While the complaint resolution function of the Ombudsman program 
requires ``investigation,'' an Ombudsman investigation is not for the 
same purposes as an investigation by protective services, licensing and 
regulatory agencies, law enforcement or other entities. This may result 
in confusion regarding the appropriate investigatory role of such 
entities. When an Ombudsman program receives any complaint (including, 
but not limited to, an abuse-related complaint), the goal is to resolve 
the complaint to the resident's satisfaction, rather than to 
substantiate whether the abuse or other allegation occurred. The 
Ombudsman program does not have a duty to collect sufficient evidence 
to meet the higher legal standards of proof that protective services, 
licensing or regulatory agencies, or law enforcement may need to meet 
their respective purposes. The Ombudsman program investigates solely 
for the purpose of gathering necessary information to resolve the 
complaint to the resident's satisfaction, not to determine whether any 
law or regulation has been violated for purposes of a potential civil 
or criminal enforcement action.
    With the Ombudsman program fulfilling its duties, the priorities 
and interests of the individual resident can be supported and advocated 
for. If the protective services and other government systems charged 
with taking protective or enforcement actions are not providing the 
outcomes that serve the health, safety, welfare or rights of residents, 
the Ombudsman program is available to address the larger systemic 
problems. Therefore, it is critically important that each of these 
agencies is able to fully and distinctly fulfill their duties.
    The provisions related to disclosure of resident identifying 
information, including exclusion from abuse reporting requirements, are 
set forth in Sec.  1327.11(e)(3).
    Comment: Three commenters indicated support for the proposed 
language at Sec.  1327.15(a)(2)(iii). One of these commenters indicated 
that the proposed language very effectively addresses the practical and 
achievable balance between Ombudsman program requirements regarding 
disclosure and the State agency's need to responsibly monitor for 
Ombudsman program integrity and effectiveness.
    Response: We appreciate the supportive comments and note that the 
provisions regarding disclosure policies and procedures are now found 
at Sec.  1327.11(e)(3).
    Comment: One commenter indicated that, since the State agency has 
the responsibility to monitor and provide oversight of the operation 
and performance of the Ombudsman program, it must be able to define, 
specify and require reports that reflect Ombudsman program activities 
and performance. While acknowledging the need to protect the identity 
of individuals served by the program, the commenter indicated that the 
State agency should be able to require the Ombudsman program to provide 
requested reports of aggregated program information.
    Response: We agree that the State agency, in order to provide 
monitoring and personnel management, as required in Sec. Sec.  1321.11 
and 1327.15, may need to reasonably request reports regarding the 
activities of the Ombudsman program which do not conflict with the 
disclosure provisions of Sec.  1327.11(e)(3). We have added language to 
the final rule at Sec.  1327.15(e), clarifying this requirement.
    Comment: One commenter requested further clarification regarding 
the decision point for disclosure of records and identities. Another 
commenter indicated that the discretion of the Ombudsman to decide 
whether to disclose any of the files or records maintained by the 
Ombudsman program, set forth in the proposed language at Sec.  
1327.15(a)(2)(iii)(A) and required by the Act at section 712(d)(2)(A), 
should also apply to the disclosure of the resident or complainant 
identifying information in the final rule, as required by the Act at 
section 712(d)(2)(B).
    Response: We agree that the final rule should be consistent with 
the requirement of the Act at section 712(d)(2)(B) regarding Ombudsman 
discretion and have revised Sec.  1327.11(e)(3) to provide that 
clarification.
    Comment: One commenter recommended that the final rule direct the 
Ombudsman to use criteria to guide his or her discretion in determining 
whether to disclose the files, records or other information of the 
Office and to include in procedure the different types of requests, 
source of the request, and identification of the appropriate designee 
for determination of the disclosure. For example, the commenter 
indicated that a representative of the Office should be able, with 
resident permission, to share with facility staff that the resident has 
requested a particular service. In contrast, the Ombudsman may wish to 
make a determination directly should a representative of the Office 
receive a subpoena to testify at and bring case records to a 
deposition.
    Response: We believe that the discretion described by the commenter 
is consistent with the proposed language, but the request to provide 
additional clarification has merit. We have revised the provision at 
Sec.  1327.13(e)(3) in the final rule to require that the Ombudsman, in 
carrying out the responsibility to use his or her discretion related to 
the disclosure of Ombudsman program information, be required to develop 
and adhere to criteria to guide this determination. In addition, we 
require the Ombudsman to develop and adhere to a process for 
determining which types of information, to whom, and under what 
circumstances, the Ombudsman may delegate determinations regarding the 
disclosure of information.
    Comment: One commenter recommended that some entity must have 
access to review basic file information to be sure that records are 
kept up to date and proper information maintained. They indicated 
familiarity with a situation in which an AAA determined that a number 
of representatives of the Office within a local Ombudsman entity were 
not keeping records updated and some did not know how to properly use 
case management software.
    Response: We agree that regular monitoring of the records and 
reporting of the representatives of the Office is important. It is the 
responsibility of the Ombudsman to monitor the performance of local 
Ombudsman entities in fulfilling their Ombudsman program duties, 
including maintaining updated and accurate records and reporting their 
work in a timely and accurate manner. See Sec.  1327.13(c)(1)(3).
    The State agency is required to monitor the performance of the 
Ombudsman program for quality and effectiveness; in so doing, it may 
request and review reports of aggregate data (see Sec.  1327.15(e)). 
However, we believe the Act is clear in limiting access to the 
identifying information of residents and complainants to the Office 
(i.e. the State Ombudsman and representatives of the Office) with very 
limited and specified exceptions. Section 712(d)(2)(B) of the Act.
    Comment: Six commenters recommended that language be added to 
provide for Ombudsman program disclosure to protection and advocacy 
systems (P&As). One of these commenters indicated that limiting access 
to information by the P&As may violate P&A authority to access records 
under Federal statute, may jeopardize

[[Page 7731]]

the work of the protection and advocacy network, and may be harmful to 
the people served. Another commenter recommended language clarifying 
that representatives of the Office must share records with P&As when 
confidentiality standards are met to assure cooperation between the two 
entities. Three of the commenters indicated the importance of the P&A 
mission to access Ombudsman information especially in light of 
residents who are unable to communicate informed consent. One commenter 
recommended that we require Ombudsman programs to report allegations of 
abuse, neglect and exploitation to P&As.
    Three commenters recommended specific language to permit disclosure 
of resident or complainant-identifying information to P&As in the 
proposed rule at Sec.  1327.15(a)(2)(iii) (the corresponding provisions 
are in the final rule at Sec.  1327.11(e)(3)). One of these commenters 
indicated some P&As have faced barriers in accessing needed documents 
from Ombudsman programs.
    Response: As ACL is the entity that administers grants to States 
both for the P&As and the Ombudsman program, we appreciate the 
significant value of both programs and understand the distinctions 
between them. We strongly support coordination of these programs, 
noting that such coordination is required in Sec.  1327.13(h) of this 
rule.
    Nothing in this rule prohibits the Ombudsman from making a 
determination to disclose information in response to a P&A request 
where the information:
     Does not provide resident-identifying information (for 
example, aggregated complaint trends);
     provides resident-identifying information where the 
resident indicates his or her consent to the Ombudsman to do so; or
     is provided consistent with a court order requiring such 
disclosure.
    Further, we have clarified that the Ombudsman has the authority to 
determine when resident-identifying information maintained by the 
Ombudsman program may be disclosed to appropriate agencies (which may 
include P&As) for, among other things, ``access to administrative, 
legal, or other remedies'' in specified circumstances in which the 
resident is unable to communicate informed consent. See Sec.  
1327.19(b)(6), (7), and (8).
    ACL understands that these provisions address some, but not all, of 
the recommendations of these commenters. In implementing the DD Act, 
ACL seeks to ensure that P&As have access to information and records as 
described in the DD Act. In implementing the OAA, ACL seeks to assist 
Ombudsman programs to fulfill their duty to protect resident and 
complainant privacy and to honor the preferences of residents and 
complainants to reveal (or not reveal) identifying information. In 
addition, ACL seeks to implement the statutory requirement that 
Ombudsman program files and records ``may be disclosed only at the 
discretion of the Ombudsman.'' OAA Section 712(d)(2)(A).
    Questions regarding P&A and Ombudsman program information sharing 
have understandably emerged in the context of implementation of these 
statutes and coordination of these programs. ACL plans to separately 
develop a process for additional public input focused on these 
questions in order to assist ACL in its implementation of these 
statutes and administration of these programs. However, since we did 
not include a request for comment regarding information sharing between 
P&A and Ombudsman programs in the notice of proposed rulemaking, ACL 
has made no change to the final rule on this topic.
    Comment: One commenter recommended language to incorporate the 
statutory provision protecting the identity of any complainant, 
including staff of a long-term care facility.
    Response: We agree that the Act, at section 712(d)(2) addresses 
protection of identifying information of the complainant as well as the 
resident at issue. We have, therefore, added a new provision at Sec.  
1327.11(e)(3)(iii) in the final rule that specifically addresses 
disclosure of identifying information of complainants. This provision 
is intended to protect the identity of any individual making a 
complaint to the Ombudsman program, including, but not limited to, the 
staff of a long-term care facility. We also note that the final rule 
includes a new provision requiring the prohibition and investigation of 
allegations of interference, reprisals and retaliation with respect to 
any resident, employee, or other person for filing a complaint with, 
providing information to, or otherwise cooperating with any 
representative of, the Office. Sec.  1327.15(i).
    Comment: One commenter recommended that Sec.  
1327.15(a)(2)(iii)(B)(1) and (2) include parallel provisions which 
clearly permit oral consent for disclosure by the resident 
representative.
    Response: We believe that the recommendation is consistent with the 
Act at section 712(d)(2)(B)(ii), which permits oral consent for 
disclosure with contemporaneous documentation by the representative of 
the Office and have made this revision in the final rule, in a newly 
numbered provision at Sec.  1327.11(e)(3)(ii)(B).
    Comment: One commenter indicated that the ability of an individual 
to communicate consent may be difficult to ascertain and recommended 
inclusion of language that permits visual consent, such as by use of 
video or other visual means, nods, blinks of eye, finger tapping, etc.
    Response: We agree that residents with varying abilities may 
communicate consent in a number of ways. This is why we did not limit 
communication to verbal communication and have added the use of 
auxiliary aids and services as an appropriate aid to communication. We 
believe that adoption of this recommendation appropriately adapts the 
services of the Ombudsman program to accommodate individuals with a 
variety of disabilities. In light of this recommendation, we have added 
``visually,'' to the final rule wherever ``consent orally'' is found, 
at Sec. Sec.  1327.11(e)(2)(iv)(B), (e)(3)(ii)(B), (e)(3)(iii)(B) and 
1327.19(b)(4).
    Comment: One commenter indicated that the proposed language at 
Sec.  1327.15(a)(2)(iii)(B)(2) should be amended to clarify that the 
resident's guardian or other legal representative may provide consent.
    Response: We agree that this recommendation provides for additional 
clarity and consistency among the consent-related provisions of the 
rule and the Act. We have made these amendments in the newly numbered 
provision at Sec.  1327.11(e)(3)(ii)(B).
    Comment: One commenter indicated support for the language of the 
proposed rule at Sec.  1327.15(a)(2)(iii)(D).
    Response: We appreciate the supportive comment and note that the 
corresponding provision is now found as part of the Ombudsman 
responsibilities related to disclosure at Sec.  1327.13(e).
    Comment: One commenter indicated that the language of the proposed 
rule at Sec.  1327.15(a)(2)(iii)(D) appears to require a separate 
procedure for disclosure of each type of file, rather than an over-
arching procedure.
    Response: We believe the revised language at in the newly numbered 
provision at Sec.  1327.13(e) addresses this comment.
    Comment: Two commenters indicated that the language of the proposed 
rule at Sec.  1327.15(a)(2)(iii)(D) should include the limitation that 
disclosure of facility records be limited to those which ``residents 
have, or the general public has access,'' referencing this language in 
section 712(b)(1)(C) of the Act.

[[Page 7732]]

    Response: The language cited by the commenter relates to Ombudsman 
program access to facility information, rather than disclosure of 
Ombudsman program information once it is obtained from the facility. 
However, we have incorporated this relevant statutory language into the 
new provision regarding ``procedures for access'' in the final rule at 
Sec.  1327.11(e)(2)(v).
    Comment: One commenter indicated that the language of the proposed 
rule at Sec.  1327.15(a)(2)(iii)(D) fails to put limitations on the 
Ombudsman's discretion regarding disclosure of Ombudsman records and 
files, that the term ``for appropriate disclosure'' is too vague, and 
that the requirement that the State agency must comply with section 
712(d) of the Act is omitted. The commenter recommended inclusion of 
the discretionary authority of the Ombudsman over Ombudsman program 
records and files in this provision.
    Response: We believe the revised language in the newly numbered 
provision at Sec.  1327.11(e)(3), regarding disclosure policies and 
procedures, and at Sec.  1327.13(e), regarding Ombudsman 
responsibilities related to disclosure, addresses this comment.
    Comment: Nine commenters indicated support for the language of the 
proposed rule at Sec.  1327.15(a)(2)(iii)(E) regarding abuse reporting 
requirements. One of these commenters indicated that the proposed 
language is essential for the Ombudsman to gain a resident's trust, 
given the unique role of the Ombudsman as the resident advocate and 
that, without the ability to assure confidentiality of resident 
information, the ability of the Ombudsman to gather information needed 
for successful resolution of problems would be impaired. One of these 
commenters indicated that some State laws currently conflict with the 
requirements of the Act and that this language would help clarify the 
need for changes in the language and/or interpretation of State laws 
with respect to Ombudsman reporting. Six commenters indicated that the 
proposed language is a welcome clarification since a number of States 
have experienced confusion in resolving the conflict between the Act's 
limitations on Ombudsman disclosure of resident identifying information 
and State mandated abuse reporting laws. One commenter indicated that 
the proposed language would strengthen the Ombudsman program ability to 
resolve complaints on behalf of residents.
    Response: We appreciate the supportive comments and note that the 
relevant provision is now incorporated into a newly numbered provision 
in the final rule at Sec.  1327.11(e)(3)(iv).
    Comment: Two commenters recommended the inclusion of penalties for 
a State agency which violates this provision.
    Response: We have not included penalties in this provision 
specifically; the broader topic of the State agency duty to provide for 
sanctions with respect to interference, retaliation and reprisals is 
addressed at Sec.  1327.15(i). In addition, the Federal regulation 
provides options for HHS grant awarding agencies such as AoA to respond 
when a grantee fails to comply with any term of an award ensure 
compliance by its grantees. 45 CFR 75.371.
    Comment: Two commenters disagreed with the language of the proposed 
rule at Sec.  1327.15(a)(2)(iii)(E) regarding abuse reporting 
requirements. One of these commenters indicated that the Ombudsman 
program should defer to State regulations with respect to mandatory 
reporting requirements in protective services matters. The other 
commenter asked why the Federal government would not want a system that 
requires advocates to keep people safe from further abuse.
    Response: Through the strict disclosure limitations within the OAA 
at section 712(d)(2)(B), Congress has indicated its intent for the 
Ombudsman program to be a safe place for the concerns of residents to 
be brought, knowing that their information will not be disclosed 
without their consent (or the consent of the resident representative). 
Despite numerous Congressional reauthorizations of the Act, Congress 
has never provided an exception for abuse reporting in the Act. While 
we have provided, in this final rule, limited exceptions for reporting 
resident-identifying information where residents are unable to 
communicate informed consent (see Sec.  1327.19(b)), we do not believe 
that the Act provides us with the authority to promulgate a rule that 
would permit Ombudsman program reporting of resident identifying 
information if the resident or resident representative, who is able to 
communicate informed consent, has not provided consent nor do we 
support such reporting over the resident's objection, as a matter of 
policy.
    Residents reaching out for assistance on an abuse, neglect or 
exploitation complaint may well want their information conveyed by the 
Ombudsman program to protective services, the licensing and regulatory 
agency, and/or law enforcement; indeed, the final rule clarifies that 
the Ombudsman program has a duty to make such a referral when requested 
by the resident. See Sec.  1327.19(b)(3)(i)). The Ombudsman program may 
inform complainants who report suspected abuse that they may (and, 
under some circumstances, must) report the complaint information to 
protective services, the licensing and regulatory agency, and/or law 
enforcement. The Ombudsman program may advise the resident of the 
appropriate role and limitations of the Ombudsman program, assist the 
resident in understanding his or her options, and encourage the 
resident to report--and/or consent to the Ombudsman program referral--
to protective services, the licensing and regulatory agency, and/or law 
enforcement.
    However, the Ombudsman program is designed to represent the 
interest of the resident (and not necessarily the interest of the 
State) in order to support the resident to make informed decisions 
about the disclosure of his or her own information. Residents may be 
concerned about retaliation if their concern is known or have other 
reasons why they do not want the Ombudsman program to disclose their 
private information. While Congress intends for the Ombudsman program 
to resolve complaints related to the health, safety, welfare and rights 
of residents, and while that intent logically includes response to and 
protection from abuse, Congress provided the resident--and not the 
Ombudsman program--with the authority to make the decision about when 
and where resident-identifying information can be disclosed by the 
Ombudsman program. That is as it should be.
    Comment: One commenter recommended adding the word ``including'' to 
modify ``when such reporting discloses the identity of a complainant or 
resident'' in the proposed rule at Sec.  1327.15(a)(2)(iii)(E) 
regarding abuse reporting requirements. According to the commenter, as 
proposed, the Ombudsman program could be included as a mandatory 
reporter under State law so long as they don't include resident or 
complainant identity.
    Response: We have adopted this recommendation in the provisions 
related to policies and procedures for disclosure at Sec.  
1327.11(e)(3)(iv). The circumstances which set forth appropriate 
parameters for Ombudsman program reporting of abuse as part of 
complaint processing are more fully described in the final rule at 
Sec.  1327.19(b).
    Comment: One commenter requested technical assistance to States for 
which the current State law is inconsistent with the Act regarding 
abuse reporting. Another commenter requested

[[Page 7733]]

additional clarification regarding State agency responsibility and 
Ombudsman authority related to abuse reporting.
    Response: AoA continues to be available to provide technical 
assistance to State agencies and Ombudsmen regarding compliance with 
these and other provisions of the Act.
    Comment: One commenter requested an exception related to reporting 
where an incident of abuse is witnessed by a representative of the 
Office.
    Response: We have provided clarity regarding this circumstance in 
the final rule at Sec.  1327.19(b)(8).
    Comment: One commenter recommended guidance regarding Ombudsman 
program responsibility related to attending consent for identity 
disclosure when a resident alleges suicidal ideation.
    Response: While we have not included a regulation regarding 
disclosure of resident identifying information when the resident 
alleges suicidal ideation into this rule, we appreciate the comment and 
have noted the need for technical assistance for State agencies and 
Ombudsman programs related to this issue.
    Comment: Three commenters indicated support for the language of the 
proposed rule at Sec.  1327.15(a)(2)(iii)(F) regarding the source of 
the request for information or source of funding for the Ombudsman 
program services.
    Response: We appreciate the supportive comments and note that the 
relevant provision is now incorporated into a newly numbered provision 
in the final rule at Sec.  1327.11(e)(3)(v).
    Comment: One commenter recommended that we add reference to the 
fact that the requirements of the proposed provision should be 
effective notwithstanding section 705(a)(6)(c) of the Act.
    Response: We are aware that some State agencies and other entities 
have found this provision (governing administration of the Title VII, 
Chapter 3, Prevention of Elder Abuse, Neglect and Exploitation Program, 
and not the Ombudsman program) confusing, particularly since both of 
these programs are established within Title VII of the Act. 
Additionally, in some States, Title VII, Chapter 3-funded activities 
are performed in whole or in part by the Ombudsman program. Therefore, 
we are including this recommendation to clarify our intent in the final 
rule at Sec.  1327.11(e)(3)(v).
    Comment: One commenter recommended that we clarify the protection 
of facility staff members who are willing to speak openly in Ombudsman 
program investigations and may be at risk of retaliation for their 
cooperation.
    Response: The Ombudsman is provided discretion by the Act to 
determine disclosure of files, records and other information of the 
Office. The policies and procedures regarding disclosure, required by 
Sec.  1327.11(e)(3), and the criteria developed by the Ombudsman 
related to disclosure, required by Sec.  1327.13(e), may appropriately 
include provisions related to protection of sources of information.
    The Act does not prohibit the Ombudsman program from disclosing 
identifying information for facility staff members or other individuals 
who provide information to the Ombudsman program. However, it does 
provide that ``[t]he State shall . . . (2) prohibit retaliation and 
reprisals by a long-term care facility or other entity with respect to 
any resident, employee, or other person for filing a complaint with, 
providing information to, or otherwise cooperating with any 
representative of, the Office.'' Section 712(j)(2) of the Act.
    Therefore, we have added a provision in this final rule at Sec.  
1327.15(i) regarding interference, retaliation and reprisals.
    Comment: One commenter recommended that we include the word 
``independently'' to describe the authority of the Ombudsman to 
recommend changes to laws, regulations, and policies as set forth in 
the proposed language of Sec.  1327.15(a)(2)(v).
    Response: We believe that the final rule, at Sec.  1327.11(e)(8) is 
sufficiently clear that the Ombudsman has discretion to make such 
recommendations. The Ombudsman is the head of the Office, and Act is 
clear that the Office is to make the determination regarding the 
appropriateness of recommendations. Therefore, we do not believe the 
recommended change is necessary.
    Comment: One commenter indicated that in their State, current 
policies and protocols prohibit the State agency from upholding this 
requirement.
    Response: We appreciate the commenter bringing this issue to our 
attention in the comment. The Act is clear that the Office has the 
authority to make recommendations regarding changes to laws, 
regulations, and policies pertaining to the interests of long-term care 
facility residents. This is both a required function of the Ombudsman 
(at section 712(a)(3)(G) of the Act) and an expectation of the State 
agency to require of the Office (section 712(h)(2) of the Act). AoA 
plans to provide assistance to State agencies and Ombudsmen to assist 
them in coming into compliance with this rule.
    Comment: Twelve commenters indicated support for the proposed 
language at Sec.  1327.15(a)(2)(v)(A) regarding the State's duty to 
exclude the Ombudsman and representatives of the Office from State 
lobbying prohibitions inconsistent with the Act. One of these 
commenters indicated that this is a welcome clarification since many 
States have experienced problems with implementing these provisions of 
the Act. One commenter indicated that the proposed language supports 
the independence of the Office and the ability of the Ombudsman to 
fulfill requirements of the Act. One commenter indicated that the 
proposed language is essential to shield the Ombudsman program from 
potential interference.
    Another commenter indicated that the Act is clear in its directive 
that the Ombudsman program is to provide input on public policy 
decisions that pertain to health, safety, welfare and rights of 
residents, and that the proposed language will help secure this vital 
voice for long-term care consumers in the public policy arena.
    Response: We appreciate the supportive comments and note that 
relevant provisions are found at Sec. Sec.  1327.11(e)(5) and 
1327.13(a)(7)(vii) of the final rule.
    Comment: One commenter recommended that we indicate that 
obstruction of the activity required at Sec.  1327.15(a)(2)(v)(A) (i.e. 
the State agency responsibility to exclude the Office Ombudsman and 
representatives of the Office from State lobbying prohibitions 
inconsistent with section 712 of the Act) by a host agency is willful 
interference and should be reported to AoA for investigation. Another 
recommended that the provision should include penalties for a State 
agency that violates this provision of the Act.
    Response: In the final rule, the corresponding provision related to 
State lobbying prohibitions is found at Sec.  1327.11(e)(5)(i). Federal 
regulation provides options for HHS grant awarding agencies such as AoA 
to respond when a grantee, such as a State agency, fails to comply with 
any term of an award. 45 CFR 75.371.
    Comment: One commenter recommended that the provision at Sec.  
1327.15(a)(2)(v)(A) indicate that the Ombudsman and representatives of 
the Office are excluded from lobbying restrictions within the State 
agency or local Ombudsman entities' personnel policies.

[[Page 7734]]

    Response: The final rule requires that the agency hosting the 
Office and any agency hosting local Ombudsman entities may not have 
personnel policies or practices which prohibit the Ombudsman or 
representatives of the Office, respectively, from carrying out their 
functions, responsibilities or duties required by this rule. Sec. Sec.  
1327.11(e)(1)(i), 1327.17(b).
    Comment: One commenter indicated that, in their State, the 
Ombudsman is organizationally located in a government umbrella agency 
and must adhere to State protocols related to legislative action and 
lobbying which apply to State employees. The commenter recommended that 
AoA consider differences in structure from State to State in finalizing 
this rule. Another commenter indicated that the Ombudsman in their 
State is a State employee and is therefore bound by policy that does 
not exclude the Ombudsman from State lobbying prohibitions. The 
commenter anticipates significant challenges in their State in 
upholding this proposed provision based on current State policy.
    Response: We appreciate the commenters bringing these issues to our 
attention. The Act is clear that Congress intends for the Office to 
have the authority to make recommendations regarding changes to laws, 
regulations, and policies pertaining to the interests of long-term care 
facility residents. This is both a required function of the Ombudsman 
(at section 712(a)(3)(G) of the Act) and an expectation of the State 
agency to require of the Office (section 712(h)(2) of the Act).
    Should a State not wish to have a State employee in the role of 
fulfilling the Ombudsman functions of the Act, the Act provides States 
with options to carry out the program by contract or other arrangement 
with another public agency or a nonprofit private organization. Section 
712(a)(4)(A) of the Act. AoA plans to assist State agencies and 
Ombudsmen to comply with this rule.
    Comment: One commenter indicated that the proposed language at 
Sec.  1327.15(a)(2)(v)(A) essentially negates the wisdom of input of 
others and questioned the wisdom of one person having unilateral 
authority to express their opinion about any legislative bill or legal 
matter. The commenter indicated that the State aging network is to be a 
comprehensive, coordinated system of care for older adults and that 
this proposed rule pits one part of the network against another. The 
commenter also questioned how the State agency can be required by the 
Act to advocate for older adults except where the Ombudsman program 
exists, describing this as an inconsistent message.
    Response: It is not the intent of AoA to negate the wisdom of input 
of others in the work of the Ombudsman program. On the contrary, we 
expressly provide (at newly numbered Sec.  1327.11(e)(5)(ii)) that 
policies which promote consultation regarding the determinations of the 
Office are not prohibited and we require that the Office coordinate its 
activities with a large number of relevant entities (at Sec.  
1327.13(h)). We strongly encourage collaboration between the Ombudsman 
and the State agency, as well as with other stakeholders.
    We intend to clarify in this rule how both the State agency and the 
Ombudsman program can successfully fulfill all of the functions and 
duties required by the Act. AoA is available to provide technical 
assistance to any State in its implementation of the final rule.
    Comment: One commenter requested additional clarification regarding 
the roles and responsibilities of the Ombudsman program with respect to 
lobbying and legislative advocacy as well as the interaction between 
the Ombudsman program and the State agency in its fulfillment of 
oversight duties. The commenter requested enhanced technical assistance 
and sub-regulatory guidance for gubernatorial, State agency, State 
legislative, and local levels regarding the proposed language at Sec.  
1327.15(a)(2)(v)(A).
    Response: We believe that the final rule assists in clarifying the 
responsibilities of the Ombudsman, the representatives of the Office, 
and the State agency. We are available to provide training and 
technical assistance regarding the implementation of the final rule.
    Comment: One commenter requested that we amend the proposed 
language regarding the Office making recommendations to ensure that 
local Ombudsman entities are able to carry out their duties freely and 
independently from the Office. The commenter indicated that, if the 
Ombudsman is given authority to veto positions of representatives of 
the Office, in many States residents of long-term care facilities may 
have no voice at all.
    Response: The Act sets out the Ombudsman as the head of the Office. 
Section 712(a)(2) of the Act. The Ombudsman has the authority to make 
determinations regarding the positions of the Office, including but not 
limited to recommendations for changes in laws, regulations and 
policies. See section 712(h)(2) of the Act. We note that there is 
nothing prohibiting the Ombudsman establishing policies that provide 
for representatives of the Office to also perform the function of 
making recommendations, and that the final rule requires procedures 
that exclude representatives of the Office from any state lobbying 
prohibitions inconsistent with section 712 of the Act.
    However, the duties of the representatives of the Office are to be 
performed in accordance with the policies and procedures established by 
the Office and the State agency. Section 712(a)(5)(B) of the Act. 
Therefore, we believe that requiring the State agency or the Ombudsman 
to permit representatives of the Office to make recommendations freely 
and independently from the Office would be inconsistent with the Act.
    Comment: One commenter indicated that, related to the proposed 
language at Sec.  1327.15(a)(2)(v)(A), some local Ombudsman entities 
are organizationally located within agencies funded by Legal Services 
Corporation (LSC) which prohibits lobbying. The commenter recommended 
that AoA require LSC-funded entities to comply with the Act or the 
Ombudsman should be required to ensure that advocacy for residents in 
areas served by legal services programs is being done by contracting 
with a separate entity to perform services prohibited by the LSC.
    Response: Congress has prohibited LSC-funded entities from 
participating in certain lobbying activities, except in limited 
situations. This prohibition also applies to activities performed with 
non-LSC funds. See 42 U.S.C. 2996e; section 504 (a)-(e), Public Law 
104-134, 110 Stat. 1321, 1321-53--1321-57; 45 CFR parts 1610, 1612. (We 
note that a transfer of non-LSC funds from a LSC entity to a non-LSC 
sub-grantee is not subject to LSC restrictions. See 45 CFR part 1610; 
see also 62 FR 27695-27597.) AoA does not have the authority to require 
LSC-funded entities to violate Federal requirements under the LSC laws 
and regulations in order to carry out the requirements of the Act.
    AoA has concluded that, in light of the current LSC limitations on 
policy work with a legislative body or other government offices or 
agencies, if an Office were to be organizationally located in a LSC-
funded entity, the Ombudsman would be unable to fulfill all of the 
functions required by the Act. Therefore, it would not be appropriate 
for a State to select an LSC-funded entity for organizational placement 
of the Office under current laws and regulations governing LSC-funded 
entities. Nonetheless, LSC-funded entities could host local Ombudsman

[[Page 7735]]

entities or representatives of the Office so long as the Ombudsman 
determines that the representatives of the Office can adequately 
fulfill their duties directly or in conjunction with the Office.
    We note that the functions which could violate the LSC provisions 
are specifically listed as required functions of the Office (i.e. the 
Office of the State Long-Term Care Ombudsman), as opposed to duties 
required of local Ombudsman entities or representatives of the Office. 
For example, the function to recommend any changes in such laws, 
regulations, policies, and actions (section 712(a)(3)(G)(ii) of the 
Act) is required of the Office, but not listed within the duties of the 
representatives of the Office as set forth in section 712(a)(5) of the 
Act. The State agency is required by the Act to require the Office to 
provide policy, regulatory, and legislative recommendations in its 
annual report (section 712(h)(1)(F)); recommend changes in laws, 
regulations and policies (section 712(h)(2)) and provide information to 
legislators regarding recommendations related to problems and concerns 
(section 712(h)(3)).
    We recommend that, if the Ombudsman is considering designating (or 
continuing to designate) an LSC-funded entity as a local Ombudsman 
entity, the Ombudsman be familiar with the relevant LSC requirements 
that may impact the ability of the representatives of the Office to 
perform some systems advocacy activities.
    The Ombudsman should evaluate whether the LSC requirements limit 
the ability of the representatives of the Office to adequately fulfill 
their requirements under the policies and procedures of that State's 
Ombudsman program. So long as the Office is able to fulfill all of its 
functions required by the Act, we do not interpret the Act to prohibit 
the Ombudsman from designating a local Ombudsman entity hosted by a 
LSC-funded entity. AoA is available to provide technical assistance to 
State agencies and Ombudsmen. Any LSC-funded entity which is requesting 
consideration to host (or continue to host) a local Ombudsman entity 
should similarly be familiar with these limitations, seek guidance from 
LSC regarding their interpretation, and evaluate its ability to support 
its employees and volunteers in fulfilling their duties as 
representatives of the Office. Ultimately, the LSC-funded entity is 
responsible for its compliance with LSC requirements and prohibitions. 
LSC has developed helpful guidance regarding these LSC lobbying 
restrictions that is available on its Web site at www.lsc.gov. The most 
recent guidance is at http://www.lsc.gov/sites/lsc.gov/files/AO-2014-005.pdf.
    Comment: One commenter supported the proposed language at Sec.  
1327.15(a)(2)(v)(B) regarding consultation on Ombudsman determinations 
by the State agency or other agency carrying out the Ombudsman program 
and regarding accountability of the Ombudsman and representatives of 
the Office to the policies and procedures of their employer. The 
commenter indicated that, while the State agency may not interfere with 
the Ombudsman's functions, and while the Ombudsman does have the 
authority to have a different agenda and position than that of the 
State agency, it is crucial that the State agency be permitted to 
request regular communication regarding the Ombudsman's determinations.
    Response: We appreciate the supportive comment and note that the 
relevant provision in the final rule is Sec.  1327.11(e)(5)(ii).
    Comment: One commenter indicated that the proposed rule at Sec.  
1327.15(a)(2)(v)(B) attempts to use the regulatory process to create a 
positive relationship. Where that already exists, this requirement is 
unnecessary and where there is tension, the State authority to create 
policies that force the Ombudsman to disclose and discuss policy 
strategies and determinations will make the relationship more 
difficult. The commenter indicated that the rule is silent on the State 
agency's responsibility to share its policy decisions and 
determinations with the Ombudsman.
    Response: Our intent in this provision is to clarify the 
appropriateness of the relationship between the State agency and the 
Ombudsman program, given that the State agency is the Federal grantee 
with responsibility for making sure that an Ombudsman program is 
appropriately carried out in the State and that the Office has the 
statutory authority and requirements to make determinations which are 
not typical of other programs for which the State agency has 
responsibility. We believe the provision appropriately describes this 
relationship so that the State agency and the Ombudsman--as well as the 
entity carrying out the Office, if other than the State agency--have 
more clarity regarding both the appropriateness of consultation and the 
inappropriateness of interference with Ombudsman determinations.
    Comment: One commenter suggested separation of the employer 
policies and procedures and the opportunity for consultation at Sec.  
1327.15(a)(2)(v)(B).
    Response: We agree that it would be clearer to separate these 
concepts, rather than combining them into one paragraph. Therefore, in 
the final rule the provisions related to personnel policies and the 
Office have been incorporated into Sec.  1327.11(e)(1)(ii). The 
provisions related to personnel policies of agencies hosting local 
Ombudsman entities are at Sec.  1327.17(b). We retain the amended 
provision related to consultation and systems advocacy at newly 
numbered provision at Sec.  1327.11(e)(5)(ii).
    Comment: One commenter provided suggested language focusing the 
consultation requirement Sec.  1327.15(a)(2)(v)(B) on public policy 
determinations of the Office.
    Response: We agree that the determinations of the Ombudsman most 
appropriate for consultation are those related to recommendations to 
laws, regulations and policies of government agencies and have made 
this amendment to the final rule and moved the provision to the 
subparagraph entitled ``Systems Advocacy'' in Sec.  1327.11(e)(5).
    Comment: One commenter objected to and suggested deletion of the 
proposed language at Sec.  1327.15(a)(2)(v)(B). The commenter indicated 
that the primary threat to the success and integrity of the Ombudsman 
program is its lack of independence and that the most common entity to 
threaten that independence is the State agency. The commenter indicated 
that AoA is unrealistic to believe that State agencies do not sometimes 
use consultation requirements to interfere with Ombudsman independence 
and, that, by authorizing the State agency to require consultation, AoA 
was putting Ombudsman independence into question. The commenter 
indicated that good communication can take place without putting this 
requirement into the final rule.
    Response: The provision regarding consultation, in the final rule 
at Sec.  1327.11(e)(5)(ii), permits the policies and procedures of a 
State's Ombudsman program to promote Ombudsman consultation with the 
State agency on systems advocacy. It is permissive, rather than a 
requirement. While we appreciate the commenter's concern regarding the 
Ombudsman program's ability to independently fulfill its functions, we 
believe that the rule in its entirety supports the commenter's concern 
that the Office should operate as a distinct entity (see, Sec.  
1327.11(b)) and that the Ombudsman be able to make independent 
determinations (see Sec.  1327.11(e)(8)).

[[Page 7736]]

    We believe that the final rule strikes the right balance between 
this independence and the opportunity for a State agency to be 
knowledgeable of the determinations of the Office, since the head of 
the Office (i.e. the Ombudsman) is necessarily either its employee, or 
employed by an entity with which it has a contract or other 
arrangement. In addition, without consultation, the State agency may be 
limited in its ability to make its own determinations with full 
knowledge of the perspectives of the Office related to resident 
interests.
    Comment: One commenter indicated that the provision at Sec.  
1327.15(a)(2)(v)(B) should be amended to indicate that an employer's 
policies must be in accordance with the access, confidentiality and 
disclosure provisions set forth in section 712 of the Act.
    Response: We agree with this recommendation and have incorporated 
related language into Sec.  1327.11(e)(1)(i) (regarding the Office) and 
Sec. Sec.  1327.11(e)(ii) and .17(b) (regarding agencies hosting local 
Ombudsman entities).
    Comment: One commenter indicated that the proposed language at 
Sec.  1327.15(a)(2)(v)(B) should be amended to indicate that a policy 
promoting consultation cannot require a right to review or pre-approve 
communications by the Ombudsman or representatives of the Office.
    Response: We agree with the recommendation and have made a 
corresponding amendment in the final rule at Sec.  1327.11(e)(5)(ii).
    Comment: One commenter recommended that the provision at Sec.  
1327.15(a)(2)(v)(B) require, rather than not prohibit, consultation. 
The commenter argued that such a requirement would promote effective 
Ombudsman program operation by ensuring that both the Ombudsman and 
State agency have an opportunity to discuss and review positions and so 
that neither is caught off guard in public arenas.
    Response: We agree that consultation can promote effective 
Ombudsman program operation if done in a manner supportive of the 
Office's responsibility to represent the interests of residents through 
recommended changes to laws, regulations and policies of government 
agencies. We believe that it is sufficient to clarify that such 
consultation is not prohibited and to leave the determination up to the 
State agency and Ombudsman of whether the parameters of consultation 
need to be formalized in state-level policies and procedures.
    Comment: One commenter indicated that the only way to make sure 
that political interference with the Ombudsman does not occur is to 
require that the State agency cannot fire the Ombudsman due to the 
nature or content of the Ombudsman's advocacy. The commenter 
recommended this be required in State policies.
    Response: After careful consideration, we have decided against 
providing specific criteria regarding the firing of the Ombudsman. We 
believe that the clarifications provided by this rule related to the 
operation of the Ombudsman program; organizational and individual 
conflicts of interest; and freedom from interference, retaliation, and 
reprisals provide sufficient clarity to protect the Ombudsman from 
retaliation for performing the duties required by the Act.
    The Act specifically provides State agencies with significant 
latitude in determining whether to operate the Ombudsman program 
directly (and how to structure the program within or attached to the 
State agency) or operate it through contract or other agreement with 
another agency. Therefore, States have appropriately structured a wide 
variety of organizational placements for the Ombudsman and, as a 
result, there is wide variation among applicable laws impacting 
employment, labor, government contracting, and interagency agreements 
that may apply to the firing of an Ombudsman or the termination of a 
contract for the operation of the Office. AoA believes that developing 
criteria regarding firing might create confusion in the context of the 
wide variety of applicable legal requirements.
    However, AoA is aware that a number of employment arrangements and 
organizational structures have been developed to protect employees 
within other types of ombudsman programs, inspectors general, and other 
entities where independent oversight or consumer advocacy are required 
activities. Therefore, AoA plans to provide States with further 
guidance and technical assistance regarding employment provisions and 
structures which they may consider in further strengthening the ability 
of the Ombudsman to fulfill his or her functions under the Act.
    Comment: Three commenters indicated support for the proposed 
language of Sec.  1327.15(a)(3) regarding the use of Title III and 
Title VII funds for access to training opportunities.
    Response: We appreciate the supportive comments and note that, in 
the final rule, this provision is at Sec.  1327.15(c).
    Comment: One commenter requested language that defines training 
standards and indicated that budgetary constraints have resulted in 
insufficient training availability to representatives of the Office. 
Another commenter indicated that current training is insufficient, 
creating inconsistencies among local Ombudsman entities.
    Response: We have decided to not incorporate training standards 
into this rule, but do plan to develop and implement training standards 
for the Ombudsman program. We also recommend that Ombudsman programs 
refer to the National Ombudsman Resource Center for training resources 
and a core curriculum.
    Comment: One commenter indicated support for the proposed language 
of Sec.  1327.15(a)(4) and (5) regarding the responsibilities of the 
State agency to provide personnel supervision and management, 
monitoring and oversight, and to clarify limitations on review of 
files, records or other information maintained by the Office.
    Response: We appreciate the supportive comment.
    Comment: One commenter indicated that the proposed language of 
Sec.  1327.15(a)(4) and (5) regarding limitations on the review of 
files, records or other information maintained by the Office is too 
broadly written and could open up virtually all of the of the Ombudsman 
program records, files and thought processes to the State agency, 
resulting in a chilling effect on the Ombudsman program. The commenter 
recommended that it would more appropriate to indicate to the State 
agency that access to aggregate data and required Ombudsman program 
reports is sufficient to fulfill these responsibilities.
    Response: In order to reduce confusion regarding disclosure of 
files, records or other information, we have revised these provisions 
in the final rule at newly numbered Sec.  1327.15(d)-(f).
    Comment: One commenter recommended that the provisions related to 
oversight of the Office at proposed Sec.  1327.15(a)(4) and (5) should 
include a process for investigating complaints against the Ombudsman 
and representatives of the Office and a mechanism for due process in 
the event of disciplinary action or de-designation.
    Response: We have included a new provision at Sec.  1327.11(e)(6) 
of the final rule to require that the development of designation 
policies and procedures, which include the criteria and process for de-
designation. In addition, we have added a grievance process requirement 
in Sec.  1327.11(e)(7) to address this and other situations where an 
opportunity

[[Page 7737]]

for review of an action or determination is warranted.
    Comment: One commenter indicated that the regulations include 
language specifying that allegations against the Ombudsman for failure 
to carry out his or her duties as required in the Act shall be filed 
with the State agency with concurrent notification to the Director of 
the Office of Long-Term Care Ombudsman Programs at AoA.
    Response: We do not believe that we have authority to require a 
person with an allegation related to the Ombudsman to report to the 
State agency, AoA, or any other entity. Instead, we have required in 
the final rule, at Sec.  1327.11(e)(7), that a grievance process be 
available to address this and other situations where an opportunity for 
review of an action or determination is warranted.
    Comment: Two commenters indicated that the monitoring by the State 
agency, required at proposed rule Sec.  1327.15(a)(5), should include 
an assessment of whether the Office is performing all required 
functions, including systems advocacy, but should be clear that such 
monitoring should not include monitoring the substance of any public 
comment or recommendation so it does not hinder the independent voice 
of the Ombudsman.
    Response: We agree that the monitoring required in proposed Sec.  
1327.15(a)(5) (newly numbered at Sec.  1327.15(e) shall include an 
assessment of whether the Office is performing all of its functions 
under the Act and have amended this provision accordingly. We have also 
made a parallel provision in the newly numbered Sec.  1327.15(d), 
regarding personnel supervision and management.
    In addition, we appreciate the commenter's concern regarding the 
Ombudsman program's ability to independently fulfill its function 
related to systems advocacy. We believe that the rule in its entirety 
supports the Act's requirement that the Ombudsman must be able to make 
independent determinations regarding recommended changes to laws, 
regulations or policies.
    Comment: One commenter indicated that the proposed language was a 
good clarification of the importance of integrating Ombudsman program 
operations into the State Plan. Another commenter appreciation for the 
proposed language at Sec.  1327.15(a)(6) regarding integration of the 
goals and objectives of the Office into the State plan and coordinate 
the goals of the Office with those of other programs and services, 
indicating that, as an Office operating outside of the State agency, 
such integration and coordination does not currently occur.
    Response: We appreciate the supportive comments and note that the 
corresponding provision in the final rule is at Sec.  1327.15(g).
    Comment: One commenter recommended that we substitute the term 
``promote collaborative efforts'' with ``require collaborative 
efforts'' in Sec.  1327.15(a)(6) of the proposed rule.
    Response: Given that the range of programs and services referenced 
in this provision include some entities over which the State agency may 
have no authority, we believe the term ``promote'' is more appropriate 
than ``require.'' We note that the corresponding provision in the final 
rule is at Sec.  1327.15(g).
    Comment: One commenter indicated that the proposed language at 
Sec.  1327.15(a)(7) effectively describes the critical and unique 
dynamic between the Office and State agency, simultaneously maintaining 
an important separateness while coordinating closely on the State's 
elder rights agenda.
    Response: We appreciate the supportive comments and note that the 
corresponding provision in the final rule is at Sec.  1327.15(h).
    We also note that we have added in the final rule the 
responsibility for the State agency to ``provide elder rights 
leadership'' in order to distinguish the role of the State agency from 
that of the Ombudsman, in response to comments made in response to 
proposed language at Sec.  1327.13(l). We believe that this revision 
more accurately reflects the Act's requirement of the State agency 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.
    We have amended the term ``responsibilities relevant to the health, 
safety, well-being, or rights of older adults, including residents of 
long-term care facilities'' for ``protection of vulnerable adults'' in 
order to more closely correspond to the language of Sec.  1327.13(h). 
Additionally, we note that we have maintained the term ``older'' in 
this provision (though not in Sec.  1327.13(h)) since this provision 
specifically relates to the duty of the State agency (i.e. the State 
unit on aging).
    Comment: Nine commenters indicated support for the proposed 
language at Sec.  1327.15(a)(8). One of these commenters indicated that 
independence of the Office to conduct advocacy on both individual and 
systemic levels without interference of State agencies, facilities or 
others is of primary importance. Two of these commenters indicated that 
Ombudsmen and representatives of the Office have experienced 
limitations on their ability to act due to policies or practices of 
their host agencies which have made them unable to fulfill their 
mandates under the Act. Two commenters indicated appreciation for the 
preamble language related to potential interference by State agencies. 
One commenter indicated that the proposed language reference to duties 
of the representatives of the Office (i.e. at the local level) is 
particularly helpful.
    Response: We appreciate the supportive comments and note that the 
corresponding provision in the final rule is at Sec.  1327.15(b).
    Comment: Nine commenters recommended that a mechanism be developed 
and implemented to protect the Office whenever State agencies attempt 
to curtail the advocacy of Ombudsmen for people the Ombudsman program 
was created to serve. Some commenters recommended penalties for willful 
interference be included, such as civil money penalties or intermediate 
sanctions including directed plans of correction; others recommended 
that AoA provide a grievance process for review and action where 
interference is found.
    Another commenter recommended that the final rule address sanctions 
for other parties, in addition to the State agency, that willfully 
interfere with representatives of the Office in the performance of 
their duties or retaliate against residents or other persons who 
complain to or cooperate with representatives of the Office as 
prohibited by 712(j) of OAA.
    Response: The final rule includes a new provision requiring that 
the State agency prohibit interference with the Office in the 
performance of its functions and duties, as a result of considering 
these and other related comments. Specifically, we have addressed the 
issue of interference in new provisions at Sec.  1327.1 (defining 
``willful interference'') and Sec.  1327.15(i) (related to 
interference, reprisals, and retaliation).
    We note that the relationship between AoA and the State agency is 
one of a grant awarding agency to a grantee. Federal regulation 
provides options for HHS grant awarding agencies such as AoA to respond 
when a grantee fails to comply with any term of an award. 45 CFR 75.371
    Comment: One commenter recommended that the final rule include the 
requirements in section 712(j)(2) and (3) of the Act which require the 
State to

[[Page 7738]]

prohibit retaliation or reprisals by any entity, including the State 
and local agencies as well as to long-term care facilities, and which 
require the State to provide for appropriate sanctions. Another 
commenter recommended that the rule provide the Office with the 
authority and ability to perform all duties and ensure that allegations 
of willful interference are investigated, and, as appropriate, referred 
to outside agencies. Another commenter recommended that the State 
agency be responsible to identify and remedy allegations of willful 
interference.
    Response: We have incorporated provisions related to this 
recommendation at Sec.  1327.15(b) and (i) of the final rule.
    Comment: One commenter recommended that the proposed language at 
Sec.  1327.15(b) regarding Ombudsman access to records be amended to 
require long-term care facilities to disclose the name and contact 
information of the resident's legal representative or guardian, 
indicating that this is necessary in order for a representative of the 
Office to identify whether a legal representative exists in order to 
make a contact when necessary. In addition, the commenter indicated 
that the provision should require ``prompt'' access to records as well 
as identify actions to be taken by the State agency where facilities 
violate this requirement.
    Response: We have added a new provision in the final rule at Sec.  
1327.11(e)(2) requiring Ombudsman program policies and procedures which 
relate to timely access to facilities, residents and records, including 
contact information for the resident's representative.
    We have also added a new paragraph in Sec.  1327.15(b) to clarify 
the State agency's responsibility to assure that Ombudsman authority to 
access to facilities, residents and records is adequately provided for 
in State law. We recognize that, in many States, the State agency does 
not have the authority to make requirements of long-term care 
facilities, but we expect that it can work with other appropriate State 
agencies to provide for this authority.
    Comment: Three commenters indicated support for the proposed 
language at Sec.  1327.15(b)(1) regarding the relationship between the 
Health Insurance Portability and Accountability Act of 1996 (HIPAA) and 
Ombudsman program access to records. One of these commenters indicated 
that this provision will help support Ombudsman program education to 
facilities and reduce delays in complaint resolution for residents.
    Response: We appreciate the supportive comments and note that the 
corresponding provision is at Sec.  1327.11(e)(2)(vii).
    Comment: One commenter recommended that the language in the final 
rule should clearly state that all persons acting under the authority 
of the Office have access to resident records as part of a health 
oversight agency pursuant to HIPAA.
    Response: We have clarified that both Ombudsmen and representatives 
of the Office have access to resident records, as well as other 
appropriate access to facilities, residents and records, in the new 
provision regarding ``procedures for access'' in the final rule at 
Sec.  1327.11(e)(2).
    Comment: One commenter recommended that AoA communicate with CMS 
regarding the importance of enforcing the HIPAA provision.
    Response: We have shared this comment with CMS Division of Nursing 
Homes within the Center for Clinical Quality and Standards, as 
recommended. We also note that the HHS Office for Civil Rights enforces 
the HIPAA Privacy Rule, which protects the privacy of individually 
identifiable health information (www.ocr.hhs.gov).
    Comment: One commenter recommended that the final rule include 
language to clarify that HIPAA does not prohibit covered entities (such 
as nursing facilities) from releasing to the Office:
    (1) Other records related to the resident,
    (2) a list of resident names and room numbers (indicating that, 
while this may not be considered private health information, some 
facilities have used HIPAA to deny Ombudsman program access to such 
information), or
    (3) access to survey-related information, including at exit 
conferences during nursing facility surveys.
    Response: We have amended the final rule at Sec.  
1327.11(e)(2)(vii) to clarify that the HIPAA Privacy Rule does not 
preclude release by covered entities of resident private health 
information or other resident identifying information to the Office, 
including but not limited to residents' medical, social, or other 
records, a list of resident names and room numbers, or information 
collected in the course of a State or Federal survey or inspection 
process.
    Comment: One commenter indicated support for the proposed language 
in Sec.  1327.15(b)(2), indicating that it assists the Ombudsman in 
performing essential functions of complaint investigations when a 
resident has a guardian or other legal representative.
    Response: We appreciate the supportive comment and note that the 
related provisions are incorporated in the final rule at Sec.  
1327.11(e)(2)(iv) regarding procedures for access.
    Comment: One commenter indicated that the proposed language in 
Sec.  1327.15(b)(2) is inadequate with regards to Ombudsman program 
access to records and fails to mention access to residents, facilities 
or licensing agency records. The commenter recommended inclusion of the 
provisions of section 712(b) of the Act and additional provisions 
described in comments related to Sec.  1327.15(a)(2). Another commenter 
recommended the need for provisions related to access to residents, as 
well as records. Two commenters indicated the need for additional 
clarity in the proposed language at Sec.  1327.15(b)(2) regarding how a 
representative of the Office should carry out his or her duties when a 
legal representative opposes a request for access to records. One 
commenter recommended that the proposed language at Sec.  1327.15(b)(2) 
be amended to provide for ``appropriate access to resident medical and 
social records.''
    Response: We have incorporated new provisions related to procedures 
for access in the final rule at Sec.  1327.11(e)(2) in response to 
these comments.
    Comment: Three commenters recommended that we incorporate language 
to clarify that access to resident records by the Ombudsman program 
should include authority to view records in any format and to obtain 
copies of the records.
    Response: In response to these comments, we have added the language 
``regardless of format and including, upon request, copies of such 
records'' to the procedures for access provision in the final rule at 
Sec.  1327.11(e)(2).
    Comment: One commenter indicated that the proposed language at 
Sec.  1327.15(c)(1) regarding the annual report is useful.
    Response: We appreciate the supportive comment and note that the 
corresponding provision is in the final rule at Sec.  1327.15(k)(1).
    Comment: One commenter recommended that we change the proposed 
language to require the Office to ``independently prepare an annual 
report'' in Sec.  1327.15(c)(1).
    Response: We have made the recommended change in Sec.  1327.13(g).
    Comment: One commenter recommended that we change the proposed 
language to require the Office to ``independently analyze, comment on, 
and monitor'' in Sec.  1327.15(c)(2).
    Response: We have not made the recommended change in this 
provision.

[[Page 7739]]

Instead, we believe that this recommendation is adequately addressed 
within other provisions of the final rule, which requires that the 
policies and procedures of the Office must provide that the Ombudsman, 
as head of the Office, shall be able to independently make 
determinations and establish positions of the Office regarding (among 
other things) recommendations to changes in Federal, State and local 
laws, regulations, policies and actions pertaining to the health, 
safety, welfare, and rights of residents; and provision of information 
to legislators, regarding the problems and concerns of residents and 
recommendations related to the problems and concerns. Further, the 
final rule clarifies that these determinations and positions of the 
Office shall be those of the Office and shall not necessarily represent 
the determinations or positions of the State agency, or entity carrying 
out the Ombudsman program, or any other State agency. See Sec.  
1327.11(e)(8).
    Comment: Two commenters recommended that we omit the word ``older'' 
in the proposed language at Sec.  1327.15(c)(3)(i)(A).
    Response: We have made the recommended amendment in the final rule 
at Sec.  1327.13(a)(7)(v).
    Comment: One commenter indicated that the proposed language at 
Sec.  1327.13(c)(3)(ii) is a good clarification of the intended 
recipients of information contained in the reports prepared under 
paragraph (c)(1).
    Response: We appreciate the supportive comment. We note that this 
language is identical to the provision at section 712(h)(3)(B) of the 
Act and that the corresponding provision is at Sec.  1327.13(g) of the 
final rule.
    Comment: One commenter indicated support for the proposed language 
at Sec.  1327.15(c)(4) regarding procedures for training.
    Response: We appreciate the supportive comment and note that the 
corresponding provision is at Sec.  1327.13(c)(2) of the final rule.
    Comment: One commenter recommended the need for additional guidance 
regarding minimum hours for initial training and continuing education 
as well as the content of such training. The commenter noted that 
training requirements vary widely among States and that this is a 
detriment to Ombudsman program consistency.
    Response: We appreciate the commenter's perspective on the 
importance of consistency and minimum standards related to training for 
the Ombudsman program. In Sec.  1327.15(c) in the final rule, we have 
clarified that States must provide opportunities for training for the 
Ombudsman and representatives of the Office in order to maintain 
expertise to serve as effective advocates for residents and that they 
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.
    While we have not incorporated training standards into this rule, 
we plan to develop and implement training standards for the Ombudsman 
program in the future. We also recommend that Ombudsman programs refer 
to the National Ombudsman Resource Center for training resources and a 
core curriculum.
    Comment: One commenter recommended that we add to the categories of 
representatives with which the State agency must require the Office to 
consult in establishing Ombudsman program training procedures, 
specifically including representatives of residents of facilities and 
families of residents in Sec.  1327.15(c)(4)(i).
    Response: We have adopted this recommendation in the final rule by 
adding residents and resident representatives in Sec.  1327.13(c)(2) of 
the final rule. We used the term ``resident representatives'' since 
friends, partners, and others whom a resident may authorize to 
represent them may include, but not be limited to, family members.
    Comment: One commenter recommended that we add a new provision to 
the proposed language at Sec.  1327.15(c)(4) to require that the 
representative of the Office must be a ``certified ombudsman.''
    Response: We have not adopted this recommendation since we believe 
this is already provided for in the final rule. The provision refers to 
the term ``representative of the Office,'' which is defined in this 
rule at Sec.  1327.1 to mean ``designated by the Ombudsman.'' In the 
context of the Ombudsman program, the Ombudsman certifies that an 
individual has met the training and other requirements necessary for an 
individual to serve as a ``representative of the Office.''
    Comment: One commenter requested that we revise the reference in 
Sec.  1327.15(c)(6)(ii) to protection and advocacy systems. Another 
commenter recommended that we include reference to the Protection and 
Advocacy of Individual Rights (PAIR) Act, 29 U.S.C. 794e.
    Response: We have revised this reference in the final rule to be 
consistent with the broader references to protection and advocacy 
systems; the relevant provision is at Sec.  1327.13(h)(4).

F. Responsibilities of Agencies Hosting Local Ombudsman Entities (Sec.  
1327.17)

    We have added a new section in the final rule, Sec.  1327.17, in 
order for AoA to provide clarification regarding the responsibilities 
of agencies in which local Ombudsman entities are organizationally 
located.
    Comment: One commenter recommended that we incorporate into the 
final rule the inclusion of the concept, included in the preamble of 
the proposed rule, that personnel management of the local Ombudsman 
entity not conflict with Ombudsman law and policy.
    Response: We have incorporated this concept into a new Sec.  
1327.17 regarding ``Responsibilities of agencies hosting local 
Ombudsman entities.''

G. Duties of the Representatives of the Office (Sec.  1327.19)

    At Sec.  1327.19, AoA provides clarification regarding the duties 
of the representatives of the Office, particularly related to the core 
Ombudsman program service of complaint resolution. Through this rule, 
AoA emphasizes the person-centered nature of the Ombudsman program and 
its services to residents of long-term care facilities.
    Comment: One commenter indicated that the title of Sec.  
1327.17would be clearer if titled ``Functions and Duties of Ombudsman 
Entities and Representatives,'' which more closely reflects the 
language in the Act. The commenter indicated that the ``Office of the 
State Long-Term Care Ombudsman'' is more closely identified with the 
State Ombudsman and the functions and responsibilities set forth in 
Sec.  1327.13.
    Response: In the proposed rule, this subsection was titled 
``Functions and duties of the Office of the State Long-Term Care 
Ombudsman.'' We have titled the corresponding subsection, newly 
numbered as Sec.  1327.19, ``Duties of the representatives of the 
Office'' in the final rule.
    Comment: One commenter recommended that introductory language to 
Sec.  1327.17 be included to more closely reflect the language of the 
Act at section 712(a)(5)(A) and (B).
    Response: We have adopted this recommendation in the final rule, at 
Sec.  1327.19, so that it more closely reflects the applicable language 
of the Act.
    Comment: Three commenters expressed support for the proposed 
language in Sec.  1327.17(a). Two of the commenters indicated that 
proposed language clarifies the role of the

[[Page 7740]]

representatives of the Office, including staff and volunteers. Another 
commenter indicated that the proposed language is helpful in that it 
clarifies that there is one Office of the State Long-Term Care 
Ombudsman within the State, made up of the Ombudsman and 
representatives of the Office.
    Response: We appreciate the supportive comments and note that the 
relevant provisions are at Sec.  1327.19(a) in the final rule.
    Comment: One commenter indicated that Sec.  1327.17(a) should 
include additional duties of representatives of the Office including 
survey involvement and transfer and discharge hearings.
    Response: We have not included survey participation as a duty in 
Sec.  1327.19(a) since it is not specifically required by the Act. 
However, we encourage Ombudsman program participation in survey process 
in the role of resident advocate (for example, by consulting with State 
survey agencies and providing relevant information to the survey agency 
prior to a facility survey subject to disclosure limitations, and by 
participating in resident group meetings or exit conferences). We note 
that many Ombudsman programs do participate in long-term care survey 
processes and that the AoA requires reporting of this activity in NORS. 
OMB NO.: 0985-0005.
    Where the representative of the Office receives a discharge or 
transfer complaint, he or she is required to work to resolve this 
complaint. In fact, this complaint category ranks among the most 
frequently received and processed complaints reported in NORS. OMB NO.: 
0985-0005. However, whether a representative of the Office participates 
in a resident hearing, as part of the resolution of such a complaint, 
and in what capacity, depends on a number of factors, including the 
wishes of the resident, the availability of legal representation for 
the resident, and the policies and procedures of the Ombudsman program 
in that State.
    Comment: Two commenters indicated support for the proposed language 
at Sec.  1327.17(a)(2). One commenter indicated that the provision 
would provide representatives of the Office with unimpeded, private 
access to residents, noting that in some States, representatives of the 
Office face challenges gaining access to a resident or having the 
opportunity to privately communicate with a resident.
    Response: We appreciate the supportive comments and note that the 
relevant provisions are in the final rule at Sec.  1327.19(a)(3).
    Comment: One commenter requested more clarity around the term 
``regular access.''
    Response: We encourage Ombudsman programs to provide residents with 
access to the Ombudsman program through, among other means, regular 
visits to facilities. However, we believe creating one national minimum 
standard for visits to facilities would be unrealistic, given the 
extremely different variables among States. We strongly encourage the 
development of minimum standards to provide consumers, providers and 
others with an expectation of what constitutes regular visits. We also 
encourage Ombudsman programs to consider that providing ``regular 
access'' requires more than providing visits to facilities by 
representatives of the Office. Ombudsman programs should be easily 
accessible to residents, complainants, and others--including 
individuals with limited English proficiency--because, among other 
things, they have multiple methods of communication available to the 
public (including telephone, email, facsimile, Web site contacts, TTY 
(text telephone) and other communication services, and mail).
    Comment: Two commenters indicated that the proposed language in 
Sec.  1327.17(a)(4) regarding representing the interests of residents 
before government agencies and seeking remedies is overlooked or 
disregarded by many States. The comment suggested that the 
responsibility needs to be emphasized and stringently enforced by AoA. 
The commenters indicated that failure by a State to remedy the 
organizational conflicts that prevent performance of this duty must be 
resolved immediately, that AoA should create a certification program 
for Ombudsman programs with an auditing component.
    Response: AoA expects that this final rule will help to clarify 
expectations of State agencies and Ombudsman programs related to this 
and other duties required by the Act. The Long-Term Care Ombudsman 
Program is established through Federal grants to State agencies. The 
State agency must assure AoA that the Ombudsman program is established 
and carried out consistent with the provisions of the Act. If AoA 
determines that a State fails to comply with any term of an award, AoA, 
as the granting agency, has several remedies available to it, including 
but not limited to wholly or partly suspending or terminating the 
award. 45 CFR 75.371.
    The issue of organizational conflicts, as described in these 
comments, is more fully discussed at Sec.  1327.21 of the final rule.
    Comment: One commenter indicated that the proposed language in 
Sec.  1327.17(a)(4) and (5) is unclear regarding whether the Ombudsman 
can override a representative of the Office in its duty to carry out 
these duties. The commenter indicated that it would be a grave mistake 
if the Ombudsman is the only one who is able to determine the positions 
of the Office or if the Ombudsman could prohibit representatives of the 
Office from taking positions without approval or from taking positions 
that are inconsistent with those of the Office. The commenter described 
a State in which the Ombudsman was not engaged with the legislature or 
government agencies related to resident issues but where local 
Ombudsman entities have made significant contributions to the interests 
of residents through their systems advocacy. The commenter indicated 
that the only reason why the Ombudsman is now able to take public 
positions in that State is due to the systems advocacy efforts of local 
Ombudsman entities.
    Response: The Act sets out the Ombudsman as the head of the Office. 
Section 712(a)(2) of the Act. The Ombudsman has the authority to make 
determinations regarding the positions of the Office, including but not 
limited to recommendations for changes in laws, regulations and 
policies. See section 712(h)(2) of the Act. We note that there is 
nothing prohibiting the Ombudsman establishing policies that provide 
for representatives of the Office to also perform the function of 
making recommendations, and that the final rule requires procedures 
that exclude representatives of the Office from any State lobbying 
prohibitions inconsistent with section 712 of the Act.
    However, the duties of the representatives of the Office are to be 
performed in accordance with the policies and procedures established by 
the Office and the State agency. Section 712(a)(5)(B) of the Act. 
Therefore, we believe that it would be inappropriate for this rule to 
require the State agency or the Ombudsman to permit representatives of 
the Office to make recommendations which are inconsistent with the 
positions of the Office. Instead, we conclude that Congress intended 
that the Ombudsman, as head of the Ombudsman program, to provide 
leadership to the statewide advocacy efforts of the Office on behalf of 
long-term care facility residents, including coordination of advocacy 
efforts carried

[[Page 7741]]

out by representatives of the Office. See final rule at Sec.  
1327.13(a)(7)(iv) and (b).
    Comment: One commenter recommended that the final rule at Sec.  
1327.17(a)(4) include a definition of adequate legal representation.
    Response: We have addressed this and similar comments in the 
provisions related to Sec.  1327.15(j) of the final rule.
    Comment: One commenter supported the use of the phrase ``if 
necessary'' in the proposed language that indicates that the 
representative of the Office shall ``review, and if necessary, comment 
on any existing and proposed laws, regulations policies and actions . . 
.'' in Sec.  1327.17(a)(4). The commenter indicated that this provision 
supports the concept that the Ombudsman is expected to provide comments 
on behalf of the Office and that representatives of the Office would 
only comment as necessary as determined by the Ombudsman. The commenter 
indicated that this provision allows for designation of local Ombudsman 
entities that may be restricted from certain public policy activities, 
such as those funded through the LSC.
    Response: We appreciate the supportive comment. We note that we 
have provided a more in-depth discussion of our analysis of lobbying by 
local Ombudsman entities within LSC-funded entities in the comments 
related to Sec.  1327.15.
    Comment: Two commenters recommended greater specificity regarding 
what is expected of the Office with respect to the language in section 
712(a)(5)(B)(v)(II) of the Act and the proposed language at Sec.  
1327.17(a)(5)(ii).
    Response: We are available to provide State agencies and Ombudsman 
programs with technical assistance regarding this provision of the law 
and regulation, found at Sec.  1327.19(a)(5)(ii) of the final rule.
    Comment: Three commenters indicated support for the proposed 
language at Sec.  1327.17(b). One of these commenters indicated that 
the provision clarifies that the Ombudsman program serves the resident 
in complaint investigation and resolution. One commenter indicated that 
it is important that the Ombudsman program serve resident in a person-
centered manner; including where the resident is unable to express 
wishes but the wishes have been made clear previously, such as in an 
advance directive. One commenter supported inclusion of phrase ``the 
Ombudsman and/or the representative of the Office serve the resident of 
a long-term care facility,'' describing it as a clear statement of 
whose satisfaction the Ombudsman program is trying to achieve.
    Response: We appreciate the supportive comments and note that the 
relevant provisions are at Sec.  1327.19(b) in the final rule.
    Comment: One commenter indicated that a resident should not have to 
suffer abuse or neglect to benefit from Ombudsman program services.
    Response: We agree with this comment; both the proposed rule and 
final rule support this perspective. In fact, AoA requires Ombudsmen to 
report on Ombudsman program resolution using numerous types of 
complaint codes, only a few of which are complaints with abuse, gross 
neglect, or exploitation codes. OMB NO.: 0985-0005.
    We use the language ``including but not limited to a complaint 
related to abuse, neglect, or exploitation'' in Sec.  1327.19(b)(1) in 
order to clarify that the Ombudsman program does have a role to play in 
complaints related to abuse, neglect and exploitation. We have included 
this language in response to the policies and practices of a few States 
in which all complaints of abuse, gross neglect or exploitation are 
immediately referred to protective services, law enforcement, and/or a 
regulatory agency, with no further Ombudsman program service made 
available to the resident related to such a complaint. This practice 
deprives the resident of the services of the Ombudsman program and we 
intend, through this rule, to signal that such a practice is not an 
appropriate interpretation of the Act.
    Comment: Five commenters recommended that the rule use the term 
``neglect'' instead of ``gross neglect'' in Sec.  1327.17(b)(1). One of 
these commenters indicated that Ombudsman program purview should 
encompass any complaint of neglect without having to meet additional 
elements to demonstrate ``gross neglect.'' Another commenter indicated 
that, by using the term ``neglect,'' the rule would better support the 
Ombudsman program's ability to resolve potentially dangerous problems 
before they escalate, describing this as one of the hallmarks of the 
Ombudsman program.
    Response: We agree that working to resolve ``neglect'' complaints 
are within the purview of the Ombudsman program. We also agree that one 
of the hallmarks of the Ombudsman program is its ability to resolve 
potentially dangerous problems before they escalate. To avoid any 
confusion on this point, we have omitted the term ``gross'' in the 
final rule at the corresponding provision, Sec.  1327.19(b)(1).
    Comment: Six commenters indicated that the reference in Sec.  
1327.17(b)(1) that Ombudsman program investigation includes 
investigation of abuse complaints conflicts with their State's 
requirement to separate the job duties of protective services from 
duties of representatives of the Office. Three of these commenters felt 
that, if the Ombudsman program is responsible for investigation of 
abuse, this is a conflict of interest. One of these commenters 
indicated that the provision would negatively impact the integrity of 
the Ombudsman program as the provision would require the Ombudsman 
program to substantiate abuse cases in conflict with the State 
protective services functions and the advocacy function of the 
Ombudsman program.
    Response: The Act requires the Ombudsman program to ``identify, 
investigate, and resolve complaints that . . . relate to action, 
inaction or decisions, that may adversely affect the health, safety, 
welfare, or rights of the residents.'' Section 712(a)(3)(A) and 
(5)(B)(iii) of the Act. Abuse, neglect and exploitation of residents 
are among the complaints that fall within this purview. AoA requires 
Ombudsmen to report in NORS the types of complaints processed by the 
Ombudsman program, specifically including complaint codes and 
definitions related to abuse, gross neglect and exploitation. ``Long-
Term Care Ombudsman Program Complaint Codes,'' OMB 0985-0005, at pp. 1-
3, 17-18.
    The services of the Ombudsman program are distinct from, and as 
indicated in Sec.  1327.21(a), at times may conflict with the 
responsibilities of protective services. An individual resident, may, 
for example, have a complaint about protective services or may seek 
support from the Ombudsman program for a goal that is inconsistent with 
his or her protective services plan.
    Some of the functions of the Ombudsman program use the same terms, 
such as ``investigation,'' which are not always used for consistent 
purposes among Ombudsman programs, protective services, licensing and 
regulatory agencies, or other programs. This may result in confusion 
regarding the appropriate role of such programs. When an Ombudsman 
program receives any complaint (including, but not limited to, an 
abuse-related complaint), its goal is to resolve the complaint to the 
resident's satisfaction, but not to substantiate whether the abuse or 
other allegation occurred. The Ombudsman program does not have a duty 
to collect sufficient evidence to meet the higher legal standards of 
proof that protective services, licensing or regulatory

[[Page 7742]]

agencies, or law enforcement may need to meet their respective 
purposes. The Ombudsman program investigates solely for the purpose of 
gathering necessary information to resolve the complaint to the 
resident's satisfaction, not to determine whether any law or regulation 
has been violated for purposes of a potential civil or criminal 
enforcement action.
    With the Ombudsman program fulfilling its duties, the priorities 
and interests of the individual resident can be supported and advocated 
for. If the protective services and other government systems charged 
with taking protective or enforcement actions are not providing the 
outcomes that serve the health, safety, welfare or rights of residents, 
the Ombudsman program is available to advocate for improvements to the 
system. Therefore, it is critically important that each of these 
agencies is able to fully and distinctly fulfill their duties.
    Comment: One commenter indicated that the proposed language is 
suited to States where the Ombudsman program is the finder of fact for 
abuse. The commenter recommended that we add language to include that 
the Ombudsman program should report abuse to the State entity which is 
the finder of fact for abuse complaints.
    Response: We intend, through this rule, to clarify that the 
Ombudsman program is not appropriately the finder of fact for abuse 
complaints. The requirements related to Ombudsman program referral of 
abuse complaints to other agencies for substantiation of the facts are 
set forth in Sec.  1327.19(b)(3)-(8).
    Comment: Three commenters indicated support for the person-centered 
approach of the proposed language in Sec.  1327.17(b)(1). One of these 
commenters indicated that the language strikes an appropriate balance 
between ensuring resident preference and encouraging family involvement 
(by using the term ``guardian and other legal representative''). 
Another commenter indicated that the person-centered approach driven by 
the wishes and goals of an individual resident is appropriate and 
necessary for individualized complaints. Another commenter indicated 
that the proposed rule is helpful in clarifying that perception of the 
resident and wishes of the resident are paramount for the Ombudsman 
program.
    Response: We appreciate the supportive comments and note that the 
corresponding provision is at Sec.  1327.19(b)(1) in the final rule.
    Comment: One commenter indicated that not all complaints are 
individual and recommended that the final rule should support the 
broader authority to advocate for residents for facility-wide 
complaints or observations. The commenter indicated that some 
representatives of the Office do not believe they have authority to 
respond to complaints regarding facility-wide problems without the 
written consent of the resident.
    Response: We agree with the commenter that some complaints may be 
facility-wide. It is not our intent to imply otherwise with the 
proposed language. We note that some complaints may impact multiple 
residents, even if they are not relevant to the facility as a whole. We 
have added language in the final rule at Sec.  1327.19(b)(1) in order 
to clarify that the Ombudsman or representative of the Office may 
identify, investigate and resolve a complaint impacting multiple 
residents or all of the residents who live in a facility.
    We note that the representative of the Office may be considered a 
complainant. In order to avoid any confusion on this point, we have 
modified the language in the final rule at Sec.  1327.19(b)(2) to 
clarify that the complainant may include the Ombudsman or 
representative of the Office. We further note that the provisions 
related to adequate evidence of resident or resident representative 
consent are found at Sec.  1327.19(b)(4).
    Comment: One commenter indicated appreciation for the resident-
centered focus of the proposed language at Sec.  1327.17(b)(2).
    Response: We appreciate the supportive comment and note that the 
corresponding provision is at Sec.  1327.19(b)(2) in the final rule.
    Comment: One commenter indicated that the Ombudsman program should 
be able to initiate as well as receive complaints.
    Response: We agree with the comment; the proposed language was not 
intended to limit or prohibit the Ombudsman or representative of the 
Office from initiating a complaint (i.e. from being the complainant) 
where they pro-actively identify a complaint that needs Ombudsman 
program intervention. In NORS, AoA requires Ombudsmen to report on the 
number of ``Ombudsman/ombudsman volunteer'' complainants among the 
categories of complainants for cases closed by the Ombudsman program. 
OMB NO.: 0985-0005. In order to avoid any confusion on this point, we 
have modified the language in the final rule at Sec.  1327.19(b)(2) to 
clarify that the complainant may include the Ombudsman or 
representative of the Office.
    Comment: One commenter indicated that the proposed language 
``informed consent, wishes, or perspectives'' at Sec.  1327.17(b)(2)(i) 
may be confusing and difficult to implement. The commenter recommended 
that we omit the term ``wish'' and consider omitting ``perspective,'' 
noting that these terms may be inconsistent with State surrogate 
decision-making rules.
    Response: We agree with this recommendation and have amended the 
phrase at Sec.  1327.19(b)(2)(i) to omit ``wishes, or perspective.''
    Comment: One commenter recommended the addition of a statement 
that, where a resident has a court-appointed guardian or conservator, 
the resident may have already been determined unable to give informed 
consent, so the Ombudsman program should check the extent of the court 
order. The commenter recommended that, regardless of whether the 
resident has a representative, the right to participate in their care 
and resolution of a complaint should be supported by the Ombudsman 
program, since the greater the involvement of the resident in the 
resolution of the complaint, the higher the likelihood of its success.
    Response: We agree with these recommendations and have made the 
following revisions to the final rule as a result:
    (1) We have added language at Sec.  1327.19(b)(2) that requires the 
Ombudsman or representative of the Office to support and maximize 
resident participation in the process of resolving a complaint.
    (2) We have added a new paragraph at Sec.  1327.19(b)(2)(iv) to 
clarify that the Ombudsman or representative of the Office must 
ascertain the extent of the authority that has been granted to the 
resident representative when determining whether to rely on a resident 
representative's communications or determinations.
    Comment: Three commenters indicated that the terms ``legal 
representative'' and ``resident representative'' and ``guardian'' are 
used inconsistently and recommended further clarification of the terms.
    Response: In the final rule, we have used the term ``resident 
representative'' consistently and have defined the term at Sec.  
1327.1.
    Comment: One commenter recommended revising the proposed language 
to replace the word ``or, where'' at Sec.  1327.17(b)(2)(i) with ``and 
in the case where.'' The commenter indicated that the change will make 
sure that both the resident and the resident's representative 
viewpoints are to be

[[Page 7743]]

considered. Without the change, the commenter indicated that the 
representative of the Office could choose to consult with the resident 
or the resident representative but might omit consultation to the 
resident.
    Response: We have amended the corresponding Sec.  1327.19(b)(2)(ii) 
in the final rule, replacing the ``or, where'' with ``and, if'').
    Comment: One commenter recommended that, since advising the 
resident of his or her rights does not require communication of 
informed consent, the ``or'' in proposed Sec.  1327.17(b)(2)(i)(D) 
should be changed to an ``and'' so that every resident is advised of 
his or her rights.
    Response: We believe that the suggested language helps to clarify 
the intent of AoA and have amended the corresponding provision at Sec.  
1327.19(b)(2)(ii)(D) accordingly.
    Comment: One commenter indicated support for the proposed language 
at Sec.  1327.17(b)(2)(i)(C) regarding reporting of allegations to 
other appropriate agencies, but recommended that the provision be 
amended to include a reference to the statutory or regulatory 
parameters for disclosure of resident identifying information.
    Response: We have amended the language at Sec.  
1327.19(b)(2)(ii)(C) in the final rule to indicate that ``Such report 
and disclosure shall be consistent with paragraph (b)(3).''
    Comment: Two commenters recommended that we add clarity that the 
representative of the Office may investigate a complaint even where the 
resident is unable to provide consent and has no resident 
representative. One of the commenters indicated that, as proposed, the 
rule implies that the representative of the Office may not take action 
unless the complaint relates to an allegation of abuse, neglect, or 
exploitation. The other commenter indicated that this authority is 
implied in the provision related to resolution at Sec.  
1327.17(b)(2)(ii) but needs to be explicitly stated.
    Response: We agree that explicit statement of this authority would 
be helpful and note that it is consistent with the ``Procedures for 
Access'' provision of the Act which provides that the State shall 
ensure that representatives of the Office shall have ``appropriate 
access to review the medical and social records of a resident . . . if 
the resident is unable to consent to the review and has no legal 
representative.'' Section 712(b)(1)(B)(i)(II) of the Act. We have 
modified the corresponding provision at Sec.  1327.19(b)(2)(iii) in the 
final rule accordingly.
    Comment: Eight commenters expressed concerns related to the use of 
the ``best interest'' standard referenced in several places in the 
proposed language of Sec.  1327.17(b). One of these commenters 
recommended that, in situations where the resident is unable to 
communicate informed consent, AoA should require that the Ombudsman 
program to attempt to obtain information about what the resident had 
expressed prior to being unable to communicate or having diminished 
capacity, or alternatively determine what the resident would have 
wanted, instead of using a ``best interest'' standard. Two commenters 
recommended that we use a ``substituted judgment'' or ``substitute 
decision making'' standard instead of a ``best interest'' standard in 
the final rule. One commenter indicated that the ``best interest'' 
standard weakens the relationship between the resident and the 
representative of the Office in their capacity as resident advocate, 
does not support resident choice, and will weaken the resident's voice. 
Four commenters indicated that ``best interest'' is subjective and 
could be applied inconsistently. Several commenters recommended that we 
add an objective framework for determining ``best interest.'' One 
commenter recommended that, if we use the ``best interest'' standard, 
that we link its use to the safety of the resident.
    Response: We agree with the commenters' concern that Ombudsman 
programs should be cautious in using a paternalistic ``best interest'' 
standard, as opposed to a ``substituted judgment'' standard which is 
more consistent with the person-centered focus of the Ombudsman 
program. We agree that, where evidence exists of a resident's previous 
expressions of values and choices or evidence of what the resident 
would have wanted, a ``substituted judgment'' standard is preferable. 
In light of this comment, in both Sec.  1327.19(b)(6) and (7), we have 
added the language: ``The Ombudsman or representative of the Office has 
no evidence indicating that the resident would not wish a referral to 
be made.''
    However, when the Ombudsman or representative of the Office has no 
evidence to rely on, and has no resident representative available or 
appropriate, we believe that the Ombudsman or representative of the 
Office must consider what action is in the ``best interest'' of the 
resident. Therefore we have retained the provisions indicating that the 
Ombudsman or representative of the Office may make a referral, where 
all of the other provisions are met and 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. See Sec.  
1327.19(b)(6)(v) and (7)(iv).
    We understand that determining ``best interest'' does necessarily 
require some judgment, but we believe that Ombudsmen and 
representatives of the Office are required to use sound judgment in 
their work on a frequent basis. We further note that Ombudsman programs 
should be familiar with the use of this standard since the Act provides 
for use of the ``best interest'' standard in the situation where ``a 
representative of the Office has reasonable cause to believe that the 
guardian is not acting in the best interests of the resident.'' Section 
712(b)(1)(B)(ii)(II) of the Act. Moreover, the ``best interest'' 
standard is commonly used in ethical and professional literature. We 
are available to provide technical assistance regarding its use in the 
context of Ombudsman program practice.
    Comment: One commenter recommended language to ensure that the 
Ombudsman program can investigate and take action on a complaint in 
addition to disclose the resident name to other agencies.
    Response: We read Sec.  1327.19(b)(1) and (2) in the final rule to 
provide authority to the Ombudsman program to investigate and take 
action on a complaint in addition to disclosing the resident name to 
other agencies.
    Comment: One commenter recommended that we use the term 
``perspective of resident'' regarding a complaint rather than 
``perception of resident'' in the proposed language at Sec.  
1327.17(b)(2)(i)(A), arguing that the term ``perception'' is vague. 
Another commenter recommended the use of the term ``description of the 
problem.''
    Response: We believe that ``perspective'' is a more appropriate 
term in this context and have adopted this change in the final rule at 
Sec.  1327.19(b)(2)(ii)(A).
    Comment: One commenter recommended that we further explain what 
evidence of satisfaction might be appropriate in order for a 
representative of the Office to determine that a complaint has been 
resolved. The commenter indicated that an example of evidence could be 
an affirmative response to a standard question.
    Response: We agree that an affirmative response to a question could 
be evidence of satisfaction of resolution of a complaint. We do not 
believe that a regulation is necessary in order to provide examples of 
evidence. However, a State agency or Ombudsman may

[[Page 7744]]

choose to develop policies to provide further specificity regarding 
adequate evidence of satisfaction for purposes of complaint resolution.
    Comment: One commenter recommended that anonymous complaints should 
be allowed in order to protect resident confidentiality.
    Response: Nothing in the proposed or final rule would limit the 
ability of the Ombudsman program to receive complaints from anonymous 
sources. Currently, the AoA requires States, through NORS, to report 
the types of complainants, including anonymous complainants, for closed 
cases of the Ombudsman program. OMB NO.: 0985-0005. We note, however, 
that the Ombudsman program must protect against inappropriate 
disclosure of resident and complainant-identifying information 
regardless of whether the complainant wishes to remain anonymous. See 
Sec.  1327.11(e)(3).
    Comment: One commenter recommended that we add guidance to ensure 
that representatives of the Ombudsman program report complaint results 
to the complainant if known and other than the resident. The commenter 
indicated that family members and other complainants have criticized 
the Ombudsman program for not providing a report back to the 
complainant, leading them to incorrectly believe that the Ombudsman 
program failed to process the complaint.
    Response: We appreciate that complainants may wish to understand 
the results of their complaint. While we have not required this in the 
final rule, we note that Ombudsmen and State agencies, in developing 
Ombudsman program policies and procedures, may choose to provide 
guidance to representatives of the Office on the appropriateness of 
providing follow up with complainants consistent with the disclosure 
limitations of the Act and this final rule. We note that the guidance 
might also apply to follow up with resident representatives.
    Comment: One commenter recommended that we address the question of 
appropriate Ombudsman program response where a resident does not wish 
the representative of Office to act on a complaint.
    Response: We agree that the Ombudsman program should follow the 
direction of the resident regarding whether to act on a complaint. We 
believe that this issue is adequately addressed in the final rule at 
Sec.  1327.19(b)(2)(ii), which requires the Ombudsman or representative 
of the Office to determine and follow resident direction through every 
step of the complaint process.
    Comment: One commenter indicated that the introductory wording of 
the proposed rule at Sec.  1327.17(b)(2) is confusing and recommended 
that we use ``Regardless of the source of the complaint.''
    Response: We have adopted the recommended language at Sec.  
1327.19(b)(2) in the final rule.
    Comment: Four commenters indicated support for the proposed 
language in Sec.  1327.17(b)(3). One of these commenters indicated that 
the proposed language is helpful in clarifying that the Ombudsman and 
representatives of the Office are not mandated reporters and that many 
States have had long-standing tensions around this question. Another 
commenter indicated that this is helpful in determining the 
circumstances under which it is appropriate for the Ombudsman program 
to share information with oversight agencies. Another commenter 
indicated that the proposed rule empowers residents to retain control 
over their own information while providing the Ombudsman with 
discretion in instances when the resident is at risk due to abuse but 
the resident lacks capacity (or a representative available) to provide 
consent.
    Response: We appreciate the supportive comments and note that the 
relevant provision is found at Sec.  1327.19(b)(3) in the final rule.
    Comment: One commenter recommended deleting or modifying the 
proposed provision at Sec.  1327.17(b)(3)(ii) to include that, where 
adult protective services exists, the representative of the Office can 
and should advocate on the resident's behalf as long as the individual 
provides consent.
    Response: We believe the final rule at Sec.  1327.19(b) adequately 
describes the appropriate relationship between the Ombudsman program 
and adult protective services, including the circumstances in which 
Ombudsman program referrals may, may not, or must be made to adult 
protective services or other entities.
    Comment: Four commenters recommended that we require that the 
Ombudsman or representatives of the Office report suspected abuse. One 
of these commenters indicated that the Ombudsman program has a duty to 
all residents of a facility, not only one resident. Two commenters 
indicated that reporting could protect other residents in some 
circumstances. One commenter indicated that, by not reporting, the 
representative of the Office would be subject to liability if the 
suspected abuse put other residents at risk. One commenter indicated 
deep concern if the Ombudsman program is unable to fulfill its very 
purpose where the representative of the Office is aware of allegations 
of abuse but is forced to be silent if informed consent is not 
obtained.
    Response: Through the strict disclosure limitations within the Act 
at section 712(d)(2)(B), Congress has indicated its intent for the 
Ombudsman program to be a safe place for residents to bring their 
concerns, knowing that their information will not be disclosed without 
their consent (or the consent of their representative). Through 
numerous reauthorizations of the Act, Congress has never chosen to 
provide an exception for abuse reporting in the Act. While we have 
provided, in Sec.  1327.19(b) of the final rule, limited exceptions for 
reporting resident-identifying information where residents are unable 
to communicate informed consent, we do not believe that the Act 
provides us with the authority to promulgate a rule that would permit 
reporting of a resident's identifying information when the resident (or 
resident representative) who is able to communicate informed consent 
has not done so. Nor would we support a rule that would permit such 
reporting, as a matter of policy
    Residents reaching out for assistance on an abuse, neglect or 
exploitation complaint may well want their information conveyed by the 
Ombudsman program to protective services, the licensing and regulatory 
agency, and/or law enforcement; indeed, the final rule clarifies that 
the Ombudsman program has a duty to make such a referral when requested 
by the resident (see Sec.  1327.19(b)(3)(i)). The Ombudsman program may 
inform complainants who report suspected abuse that they may (and, 
under some circumstances, must) report the complaint information to 
protective services, the licensing and regulatory agency and/or law 
enforcement. The Ombudsman program may advise the resident of the 
appropriate role and limitations of the Ombudsman program, assist the 
resident in understanding his or her options, and encourage the 
resident to report--and/or consent to the Ombudsman program referral--
to protective services, the licensing and regulatory agency and/or law 
enforcement.
    However, the Ombudsman program is designed to represent the 
interest of the resident (and not necessarily the interest of the 
State) in order to support the resident to make informed decisions 
about the disclosure of his or her own information. Residents may be 
concerned about retaliation if their concern is known or have other 
reasons why they do not want the Ombudsman

[[Page 7745]]

program to share their information. While Congress intends for the 
Ombudsman program to resolve complaints related to the health, safety, 
welfare and rights of residents, and while that intent logically 
includes protection from abuse, Congress provided the resident--and not 
the Ombudsman program--with the authority to make the decision about 
when and where the resident's information can be disclosed.
    Comment: One commenter indicated that the proposed rule should have 
included provision for the consent of the resident's legal 
representative at Sec.  1327.17(b)(3).
    Response: We agree that this recommendation provides further 
clarity so have added ``or resident representative'' in Sec.  
1327.19(b)(3)(i),(ii) of the final rule.
    Comment: One commenter indicated that, by giving a short list of 
types of assistance (i.e. regulatory, protective, or law enforcement) 
available under proposed rule Sec.  1327.17(b)(3)(i), the provision 
implies that the Ombudsman program could not contact various other 
entities who could assist the resident and whom the resident or 
resident's representative wishes to contact.
    Response: We believe that the language in Sec.  1327.19(b)(3) 
adequately provides the Ombudsman program with discretion to provide 
information to other agencies for ``other purposes'' (i.e. not limited 
to regulatory, protective, or law enforcement purposes), where 
disclosure limitations are met. The reference to regulatory, 
protective, or law enforcement assistance in Sec.  1327.19(b)(3)(i) is 
to require the Ombudsman program to make referrals and disclose 
information in certain circumstances.
    To provide further clarity, as a result of this recommendation, we 
have added a new provision in the final rule at Sec.  
1327.19(b)(3)(ii). This provision provides authority for the provision 
of contact information and/or referrals to other types of entities than 
those indicated in paragraph (b)(3)(i).
    Comment: One commenter indicated that the proposed language at 
Sec.  1327.17(b)(3)(ii) is an appropriate reminder that the Ombudsman 
program must respect the resident's wishes.
    Response: We appreciate the supportive comment and note that this 
provision is now in a newly numbered provision in the final rule at 
Sec.  1327.19(b)(3)(iii).
    Comment: One commenter recommended that the proposed language at 
Sec.  1327.17(b)(3)(ii) should extend to the resident's representative 
when a resident lacks capacity.
    Response: We agree with this recommendation and have added the 
phrase: ``(or, in the case where the resident is unable to communicate 
informed consent, the wishes of the resident representative)'' into 
newly numbered provision in the final rule at Sec.  1327.19(b)(3)(iii).
    Comment: One commenter recommended that the reports referenced in 
the proposed language at Sec.  1327.17(b)(3)(ii) not be limited to 
suspected abuse, gross neglect or exploitation.
    Response: We believe that Sec.  1327.19(b)(3) adequately provides 
authority for the Ombudsman program to provide information regarding 
any type of complaint to another appropriate entity so long as the 
disclosure requirements are adhered to. The provision in newly numbered 
Sec.  1327.19(b)(3)(iii) of the final rule is intentionally limited in 
order to clarify this provision specifically related to abuse, neglect, 
or exploitation reporting, given need for additional clarity on this 
point.
    Comment: One commenter recommended that the final rule at Sec.  
1327.17(b)(3) expressly state that the confidentiality and disclosure 
provisions in the Act preempt State mandatory reporting laws.
    Response: The Act specifically requires the State agency to 
establish the procedures for the appropriate disclosure of files 
maintained by the Ombudsman program, as a condition of receiving the 
grant to operate the Ombudsman program (Section 712(d)(1) of the Act) 
and to assure that it will carry out the provisions of section 712 in 
its State Plan on Aging (Section 307(a)(9) of the Act). We believe that 
the final rule appropriately describes the Ombudsman program duty to 
carry out (as well as the State duty to assure adherence to) the 
disclosure provisions in the Act.
    Comment: One commenter recommended that the final rule expressly 
state that the Ombudsman has sole discretion over the release of the 
program's records and files, not only control over the release of files 
with resident or complainant identities.
    Response: We believe the language at Sec.  1327.11(e)(3)(i), 
regarding Ombudsman discretion over release of information maintained 
by the Ombudsman program, addresses this comment.
    Comment: Three commenters recommended that we add language to Sec.  
1327.17(b)(3) to specifically include licensing agencies and protection 
and advocacy systems.
    Response: We agree that licensing agencies and protection and 
advocacy systems are among the other agencies to which an Ombudsman 
program may provide information as appropriate, but do not see a need 
to amend the provision in order to specifically list two examples of 
agencies potentially relevant to this provision.
    Comment: One commenter indicated support for the proposed language 
at Sec.  1327.17(b)(4).
    Response: We appreciate the supportive comment and note that the 
corresponding provision is at Sec.  1327.19(b)(4) in the final rule.
    Comment: One commenter recommended that informed consent can be 
provided orally or in writing without preference. The commenter 
indicated that oral consent allows the representative of the Office an 
opportunity to act more efficiently than waiting for exchange of 
written consent documents.
    Response: We do not believe that the proposed language implied a 
preference for the method of communication for consent.
    Comment: One commenter indicated that the proposed language at 
Sec.  1327.17(b)(4) appears to be a restatement of Sec.  
1327.15(a)(2)(iii)(B)(2), which establishes the range of options for 
communication of informed consent, and indicated that the reason for 
restatement in this section is unclear.
    Response: This provision (in Sec.  1327.19(b)(4) of the final rule) 
is not intended to be a duplication, but rather a consistent 
requirement regarding disclosure within (1) requirements related to 
development of Ombudsman program policies and procedures (in the final 
rule at Sec.  1327.11(e)(3)(ii)) and (2) provisions related to the 
duties of the representatives of the Office and local Ombudsman 
entities (in the final rule at Sec.  1327.19(b)(4)). While the 
parameters related to appropriate disclosure found in these provisions 
are consistent (and therefore may appear redundant), the purposes of 
these sections are distinct.
    Comment: One commenter indicated that the ability of an individual 
to communicate consent may be difficult to ascertain and recommended 
inclusion of language at Sec.  1327.17(b)(4) that permits visual 
consent, such as by use of video or other visual means, nods, blinks of 
eye, finger tapping, etc.
    Response: We agree that residents with varying abilities may 
communicate consent in a number of ways. This is why we did not limit 
communication to verbal communication and have added the use of 
auxiliary aids and services as an appropriate aid to communication. We 
believe that adoption of this

[[Page 7746]]

recommendation appropriately adapts the services of the Ombudsman 
program to accommodate individuals with a variety of disabilities. In 
light of this recommendation, we have added ``visually,'' to the final 
rule wherever ``consent orally'' is found.
    Comment: Seven commenters indicated support for the proposed 
language at Sec.  1327.17(b)(5). One of these commenters indicated that 
the specificity of the proposed language is helpful in setting out what 
a representative of the Office may do if a resident is unable to 
communicate informed consent and has no authorized representative. The 
commenter indicated that the provision appropriately appreciates the 
central role of the resident in giving consent while recognizing the 
need for a process when the resident lacks capacity to provide consent. 
One commenter applauded the clarification that representatives of the 
Office are able to speak for vulnerable elders who cannot speak for 
themselves or have anyone available or willing to speak for them.
    Response: We appreciate the supportive comments and note that the 
corresponding language is at Sec.  1327.19(b)(6)) in the final rule.
    Comment: One commenter indicated that use of the term ``unable to 
communicate informed consent'' is problematic in determining when a 
representative of the Office should disclose identifying information of 
a resident, potentially weakening the core client advocate role of the 
Ombudsman program. The commenter indicated that it is paramount that 
the representative of the Office obtains permission from the resident 
prior to identifying them.
    Response: We agree that the representative of the Office must 
obtain consent from the resident whenever possible prior to identifying 
them; this requirement is consistent throughout this final rule. 
However, without the opportunity to disclose resident-identifying 
information, the Ombudsman program may be powerless to work with the 
facility or other agencies that may be needed in order to protect the 
health, safety, welfare or rights of the resident. In these cases, we 
disagree that taking such action weakens the core client advocate role 
of the Ombudsman program.
    Comment: Two commenters indicated support for the proposed language 
at Sec.  1327.17(b)(6). One commenter indicated that the proposed rule 
helps resolve the logical gap, contained in the Act, in that it allows 
the representative of the Office to access the records of an 
incompetent resident who has no guardian or legal representative but 
does not say what the representative of the Office can do with that 
information.
    Response: We appreciate the supportive comments and note that the 
corresponding provision is at Sec.  1327.19(b)(6) in the final rule.
    Comment: One commenter indicated appreciation for the clarification 
of the exception for the disclosure of resident identifying information 
in the proposed language at Sec.  1327.17(b)(6)-(8). The commenter 
indicated that this provision will promote protection of vulnerable 
adults and enhance the capacity of the Ombudsman program to fulfill its 
duties to protect the health, safety, welfare, and rights of residents.
    Response: We appreciate the supportive comment and note that the 
corresponding provision is at Sec.  1327.19(b)(6)-(8) in the final 
rule.
    Comment: One commenter indicated that requiring approval of the 
Ombudsman for disclosure in Sec.  1327.17(b)(6) is appropriate.
    Response: We appreciate the supportive comment and note that the 
corresponding provision is at Sec.  1327.19(b)(6) in the final rule.
    Comment: Eight commenters indicated that obtaining approval from 
the Ombudsman for disclosure in Sec.  1327.17(b)(6)-(8) might delay 
referrals to law enforcement, adult protective services or the facility 
and suggested elimination of this requirement. One of these commenters 
indicated that this would especially be burdensome in a large State, 
recommending that standards be developed by the Office requiring the 
representative of the Office to notify the Ombudsman of the report. One 
of these commenters suggested that, alternatively, the final rule 
should require a time limit for Ombudsman decision on the approval. One 
of the commenters indicated that it is not practical, necessary or 
efficient to require approval of the Ombudsman for such disclosure.
    Response: We believe that the circumstances in which disclosure is 
made without resident or resident representative permission, as 
described in Sec.  1327.19(b)(6)-(8) of the final rule, should be made 
with great caution. Ideally, the Ombudsman would be made aware of these 
circumstances and provide or deny approval. However, we understand 
that, particularly in States with large resident populations, this 
requirement could foreseeably create delays that could inhibit the 
ability of the representative of the Office, as well as other 
appropriate agencies, to protect the health, safety, welfare or rights 
of residents.
    Therefore, we have added the option, in Sec.  1327.19(b)(6) and 
(8), for the representative of the Office to follow the relevant 
policies and procedures of the Office regarding disclosure and added a 
new paragraph at Sec.  1327.19(b)(9) to provide additional clarity 
related to these policies and procedures of the Ombudsman program 
disclosure approval process.
    The final rule maintains the requirement for Ombudsman approval, 
however, in Sec.  1327.19(b)(7) in circumstances where the resident has 
a resident representative who is not acting in the best interest of the 
resident. This requirement is maintained because it is consistent with 
the statutory requirement for the representative of the Office to 
obtain Ombudsman approval prior to accessing resident records when a 
resident's guardian is not acting in the resident's best interest. 
Section 712(b)(1)(B)(ii) of the Act. Since these circumstances are 
likely to be less frequent, and since the provision related to records 
access already exists in the law so should be the current practice in 
States, we do not believe that this provision will be burdensome, even 
to States with large resident populations.
    Comment: Two commenters recommended that the final rule compel 
Ombudsman program disclosure in the circumstances set forth in the 
proposed language at Sec.  1327.17(b)(6), replacing the ``may refer'' 
with ``shall refer.''
    Response: The Act indicates that determinations regarding 
disclosure of Ombudsman program information may be disclosed only at 
the discretion of the Ombudsman or the person designated by the 
Ombudsman. Section 712(d)(2)(A) of the Act. We believe that maintaining 
the proposed language ``may refer'' in the final rule at Sec.  
1327.19(b)(7) reflects this statutory provision, so have not made the 
recommended change.
    Comment: One commenter recommended that the authority for the 
Ombudsman program to act in the circumstances described in Sec.  
1327.17(b)(6) not be limited to circumstances of abuse, gross neglect, 
or exploitation, indicating that the Act is not similarly limiting.
    Response: We agree with this recommendation and have instead more 
closely reflected the statutory language from section 712(a)(3)(A)(ii) 
and (5)(B)(iii) of the Act, to read ``has reasonable cause to believe 
that an action, inaction or decision may adversely affect the health, 
safety, welfare, or rights of the resident'' in the final rule at Sec.  
1327.19(b)(6).
    Comment: One commenter indicated that the P&A system should be 
explicitly included as an appropriate referral in Sec.  
1327.17(b)(6),(7) and (8).

[[Page 7747]]

    Response: As ACL administers funds to States for P&A systems, we 
are aware that they provide critically important services, as do other 
entities which are also not specified in this provision. We are 
choosing to retain the broad description in the final rule at Sec.  
1327.19(b)(6),(7), and (8) regarding referrals for ``access to 
administrative, legal, or other remedies,'' rather than specifying any 
particular entity or service provider. In addition, the final rule 
requirements at Sec.  1327.13(h)(4) for the Ombudsman to coordinate 
with P&A systems will support these referrals.
    Comment: One commenter recommended that we replace the word ``may'' 
with ``shall'' in the proposed language in Sec.  1327.17(b)(6) and (7): 
``the procedures for disclosure may provide.'' The commenter indicated 
the need for consistency across Ombudsman programs.
    Response: We have accepted this recommendation in the final rule at 
Sec.  1327.17(b)(6) and (7). While we have maintained the discretion of 
the Ombudsman regarding when to make such referrals, we agree that it 
is appropriate to require these policies and procedures regarding 
disclosure in order to promote quality ombudsman services for 
residents.
    Comment: Two commenters indicated support for the proposed language 
at Sec.  1327.17(b)(7). One commenter indicated that the Act contains a 
logical gap in that it allows the representative of the Office to 
access the records of an incompetent resident over the protests of a 
guardian or legal representative who is not acting in the resident's 
best interest, but does not say what the representative of the Office 
can do with that information.
    Response: We appreciate the supportive comments and note that the 
corresponding provision in the final rule is Sec.  1327.19(b)(7).
    Comment: One commenter recommended that the authority for the 
Ombudsman program to act in the circumstances described in Sec.  
1327.17(b)(7) not be limited to circumstances of abuse, gross neglect, 
or exploitation, indicating that the Act is not similarly limiting.
    Response: We agree with this recommendation and have instead more 
closely reflected the statutory language from section 712(a)(3)(A)(ii) 
and (5)(B)(iii) of the Act, to read ``a resident representative who has 
taken an action, inaction or decision that the Ombudsman or 
representative of the Office has reasonable cause to believe may 
adversely affect the health, safety, welfare, or rights of the 
resident'' at Sec.  1327.19(b)(7).
    Comment: Two commenters indicated that the final rule should compel 
Ombudsman program disclosure in Sec.  1327.17(b)(6), replacing the 
``may'' with ``shall.'' One of the commenters indicated that it is 
inconceivable that reporting to protective services and/or law 
enforcement would be anything but in the resident's best interest.
    Response: The Act indicates that determinations regarding 
disclosure of Ombudsman program information may be disclosed only at 
the discretion of the Ombudsman or the person designated by the 
Ombudsman. Section 712(d)(2)(A) of the Act. We believe that maintaining 
the proposed language ``may refer'' in the final rule at Sec.  
1327.19(b)(7) reflects this statutory provision, so have not made the 
recommended change.
    Comment: Five commenters indicated support for the proposed 
provision at Sec.  1327.17(b)(8). One of these commenters indicated 
agreement with the process, appreciation of the detail and careful 
weighing of competing values reflected in the proposed rule, and 
expectation that the proposed rule will give the Ombudsman program 
clear guidance in handling these difficult situations.
    Response: We appreciate the supportive comments and note that the 
corresponding provision in the final rule is Sec.  1327.19(b)(8).
    Comment: Seven commenters recommended that the final rule should 
require implementation of policies that require the representative of 
the Office who witnesses abuse, gross neglect, or exploitation to 
report the observation. Several of these commenters indicated that, if 
any representative of the Office personally witnesses an event and 
takes no action, it gives the perpetrator permission to continue the 
behavior, and that the witness has the responsibility to report as a 
firsthand observer of the incident. One of the commenters indicated 
that reporting is not a violation of the Act since, by witnessing the 
event, the representative of the Office has not been provided 
information from a third party.
    Response: Both the proposed language and the final rule clarify 
that the procedures for disclosure shall provide that--where the 
Ombudsman or representative of the Office personally witnesses 
suspected abuse, neglect or exploitation of a resident--the 
representative of the Office shall follow the direction of the resident 
or resident representative. We believe this approach is consistent with 
the Act which permits disclosure of resident identifying information 
only with consent or in other very limited situations.
    The Act is silent on how to best handle this situation when the 
Ombudsman or representative of the Office personally witnesses an 
incident and the resident at issue is unable to communicate informed 
consent (and has no resident representative available to do so). In 
these cases, we have described the circumstances in the final rule, at 
Sec.  1327.19(b)(8), that the Ombudsman or representative shall refer 
the matter and disclose the identifying information of the resident to 
the facility and/or appropriate agency for substantiation of abuse and 
may refer the matter to other appropriate agencies.
    Comment: One commenter indicated that, if the representative of the 
Office witnesses an issue, he or she must have the authority to 
initiate a complaint.
    Response: There is nothing in the rule that would limit the ability 
of the representative of the Office to initiate a complaint (i.e. open 
a case with one or more complaints). This rule at Sec.  1327.19(b)(8) 
addresses procedures for disclosure of resident-identifying information 
in the work to resolve such a complaint.
    Comment: Five commenters indicated that the proposed language at 
Sec.  1327.17(b)(8) appears to require representatives of the Office to 
be mandatory abuse reporters, at least in certain circumstances. One of 
these commenters described this as contrary to their State law. Two of 
these commenters indicated mandated reporting runs counter to the 
principles of the Ombudsman program and its unique role as resident 
advocate under the Act. Two of these commenters requested clarification 
to ensure that representatives of the Office are not mandated reporters 
in facilities where the resident has the ability to grant or deny 
consent. One commenter expressed that personally witnessing abuse 
versus being told or otherwise discovering evidence of abuse is an 
artificial distinction.
    Response: In the final rule at Sec.  1327.19(b)(8), we describe 
circumstances when an Ombudsman or representative of the Office has 
personal knowledge of circumstances that others may not have. This 
information is likely relevant to the ability of the facility to 
protect the resident and to the ability of the official finder of fact 
to determine whether the alleged abuse, gross neglect or exploitation 
can be substantiated.
    When an Ombudsman program receives any complaint (including, but 
not limited to, an abuse-related complaint), its goal is to resolve the 
complaint to the resident's satisfaction, but not to serve as the 
official finder of

[[Page 7748]]

fact to substantiate whether the abuse or other allegation occurred. In 
most States, the substantiation decision is made either by adult 
protective services and/or the licensing and regulatory agency. By 
contrast, when a report has been made to the Ombudsman program or when 
a representative of the Office discovers information through review of 
resident records, someone else is necessarily aware of the 
circumstances and can (and in many instances is mandated to) report 
this information to the agency which is responsible for substantiating 
abuse. Therefore, absent an indication from the resident or resident 
representative that there is not consent for this information to be 
shared, we believe that the representative of the Office should be 
required to disclose such information.
    Comment: One of the commenters recommended that the proposed 
language at Sec.  1327.17(b)(8) should require that reporting of 
Ombudsman program information remain within the discretion of the 
Ombudsman.
    Response: For the reasons mentioned above, we believe that the 
disclosure procedures should require reporting in the narrow 
circumstances provided in the final rule at Sec.  1327.19(b)(8). We do, 
however, provide for Ombudsman discretion in determining whether the 
required reporting is in the best interest of the resident in Sec.  
1327.19(b)(8)(ii)(B). We further provide for Ombudsman discretion 
regarding referring or reporting to other agencies for regulatory 
oversight, protective services, access to remedies and/or law 
enforcement in Sec.  1327.19(b)(8)(iii).
    Comment: One commenter requested definition of the term ``suspected 
abuse, gross neglect, or exploitation'' since States have differing 
interpretations and definitions of these terms. Some commenters 
recommended that we omit the term ``gross'' from the term ``gross 
neglect.''
    Response: The rationale for our maintaining the use of ``gross 
neglect'' in the final rule at Sec.  1327.19(b)(8)(iii) is consistent 
with the rationale used in AoA's instructions for Ombudsman program 
reporting in the NORS. OMB NO.: 0985-0005. AoA provides a separate code 
for complaints of ``gross neglect'' (defined as ``willful deprivation 
by a person, including a caregiver, of goods or services that are 
necessary to avoid physical harm, mental anguish, or mental illness''). 
This distinction in NORS instructions is intended to differentiate 
``gross neglect'' from other complaint codes which the Ombudsman 
program receives related to facility care and practices, many of which 
could also reasonably be considered ``neglect.''
    Comment: One commenter recommended deletion of proposed paragraph 
Sec.  1327.17(c), questioning how realistic it is to expect local 
Ombudsman entities to coordinate with this long list of programs and 
agencies.
    Response: We have accepted this recommendation by deleting this 
provision and incorporating into the final rule a responsibility for 
the Ombudsman to ``support appropriate local Ombudsman entity 
coordination'' with the listed entities at Sec.  1327.13(h).
    Comment: Several commenters indicated support for the proposed 
language at Sec.  1327.17(d). Some commenters indicated that providing 
information and speaking directly to legislators, including making 
recommendations for changes to laws, are critical to the Ombudsman 
program work. Some commenters indicated that this provision supports 
the premise that the Ombudsman has the ability to act independently, 
even if the target of the advocacy is the State government itself.
    Response: We appreciate the supportive comments and note that the 
corresponding provision is found at Sec.  1327.13(a)(7)(vii).
    Comment: One commenter indicated that they foresee challenges in 
States upholding the requirement related to lobbying activities found 
in the proposed language at Sec.  1327.17(d).
    Response: The Act is clear that Congress intends for the Office to 
have the authority to make recommendations regarding changes to laws, 
regulations, and policies pertaining to the interests of long-term care 
facility residents. This is both a required function of the Ombudsman 
(at section 712(a)(3)(G) of the Act) and an expectation of the State 
agency to require of the Office (section 712(h)(2) of the Act). AoA's 
intent in the final rule at Sec.  1327.13(a)(7)(vii) is to clarify that 
by performing these statutorily required functions, the Office is not 
violating the federal lobbying restrictions of 45 CFR part 93.
    Comment: Two commenters recommended that we add a provision to 
Sec.  1327.17 which adds penalties and a process for reporting to AoA 
for interference with the Ombudsman program.
    Response: While we have not included penalties in this provision, 
we have addressed interference, retaliation and reprisals, including 
sanctions for interference, in the final rule at Sec.  1327.15(i).

H. Conflicts of Interest (Sec.  1327.21)

    In Sec.  1327.21, AoA provides clarification to State agencies and 
Ombudsman programs regarding the process of identifying conflicts of 
interest with the Ombudsman program, as required by the Act. This 
section provides examples of conflicts of interest at both the 
organizational and individual levels. It also provides clarification 
regarding the statutorily-required process of removing or remedying 
identified conflicts.
    Comment: Sixteen commenters expressed support for Sec.  1327.19 
(Sec.  1327.21 in the final rule) as proposed. One of these commenters 
indicated that this proposed regulation is critical to promoting and 
maintaining the autonomy and integrity of the Ombudsman program. Two 
commenters indicated that the proposed language provides avenues for 
State agencies to address scenarios where the Ombudsman program is 
compromised by conflicts of interest. One commenter congratulated AoA 
on taking on this complicated issue which becomes increasingly complex 
as agencies become more diversified in provision of services. The 
commenter indicated that recognizing placement raises inherent 
conflicts is first step to finding ways to ensure that policies are in 
place to address conflicts when they do arise, ensuring that resident 
concerns are fully and appropriately addressed.
    Another indicated that the proposed language gives clarity 
regarding potential conflicts of interest and guidance for eliminating 
or remedying it. The commenter indicated that Ombudsmen in some State 
agencies have other job responsibilities or are located in agencies 
where responsibilities can appear to or actually compete with resident 
interests, resulting in residents perceiving that the Ombudsman is not 
truly representing their interests.
    One commenter indicated appreciation for AoA building in time to 
allow networks to make appropriate changes and construct effective 
remedies where conflicts exist. Several commenters requested further 
guidance and training to help States craft remedies or expressed 
appreciation for AoA's indication of its intent to do so in advance of 
final rule implementation.
    Response: We appreciate the supportive comments and note that the 
corresponding provisions are at Sec.  1327.21 of the final rule.
    Comment: Two commenters indicated that the proposed rule is too 
weak given the reality of many of the enumerated conflicts of interest.
    Response: It is our intent that through the implementation of the 
final rule, State agencies and Ombudsman programs will be better 
equipped to

[[Page 7749]]

comply with the provisions related to conflicts of interest as required 
by section 712(f) of the Act.
    Comment: Seven commenters recommended that the final rule describe 
consequences for non-compliance with reporting or interference and 
indicated the need for AoA enforcement. Several of the commenters 
indicated that, unless AoA monitors and reinforces the requirements, 
compliance cannot be assured.
    Response: We have addressed the State agency responsibilities 
related to interference, retaliation and reprisals at Sec.  1327.15(i). 
In addition, Federal regulation provides options for HHS grant awarding 
agencies, including AoA, to respond when a grantee fails to comply with 
any term of an award. 45 CFR 75.371.
    Comment: Three commenters indicated concern for adequate staffing 
in agencies housing local Ombudsman entities where every staff person 
must perform multiple roles and responsibilities, with insufficient 
funding for a full-time representative of the Office, or in entities 
with conflicting responsibilities which must share the same work space. 
Two of these commenters indicated that this is particularly a challenge 
in rural areas.
    Response: We acknowledge the significant challenges faced by 
individuals who must perform multiple roles and responsibilities. 
Multiple roles and responsibilities do not necessarily pose a conflict 
of interest. However, where they do, the Act, and this final rule in 
implementing the Act, require that the conflicts be identified and 
remedied or removed. We intend to provide additional technical 
assistance to State agencies and Ombudsman programs to assist them in 
complying with this rule.
    Comment: One commenter indicated that the benefits of coordination 
among programs (e.g., adult protective services and Ombudsman programs) 
may outweigh the potential conflicts of interest.
    Response: We agree that coordination between adult protective 
services and Ombudsman programs can and does benefit the individuals 
whom they serve. In fact, the Act (at section 712(h)(6)-(8)) and this 
final rule (at Sec.  1327.13(h)) require the Ombudsman to coordinate 
Ombudsman program services with various entities; the rule requires 
coordination with adult protective services. We believe that the 
identification of a conflict of interest does not diminish the 
importance of coordination among relevant programs.
    Comment: Seven commenters recommended clarification related to 
conflict of interest and legal counsel for the Ombudsman program, 
requesting a requirement that any individual providing legal counsel to 
the Office is not subject to a conflict of interest.
    Response: As a result of these and other comments, we have included 
in the final regulation a provision that the State agency ensure the 
provision of conflict-free legal counsel at Sec.  1327.15(j).
    Comment: One commenter indicated that the best way to minimize 
conflicts is to legislatively require the Office to be moved outside of 
State government. Another commenter indicated that the rule should 
explicitly state that the Ombudsman program not be located within or 
connected to the State agency.
    Response: The Act specifically provides State agencies with 
significant latitude in determining whether to operate the program 
directly or operate it through contract or other agreement with another 
agency. Section 712(a)(4) of the Act. Therefore, we do not believe the 
Act provides us with the authority to promulgate a rule which would 
prohibit State agencies from operating the Office directly or from 
arranging for another State agency to operate the Office. Further, we 
have observed examples of Ombudsman programs located within or attached 
to State agencies which have been successfully able to perform the 
functions required in the Act.
    Comment: One commenter requested that AoA be flexible in addressing 
States' unique programmatic concerns. Another recommended that AoA 
provide examples of acceptable remedies and situations which cannot be 
remedied. One commenter recommended that AoA provide oversight to 
enable States agencies and local Ombudsman entities to properly 
implement this rule without undermining existing infrastructure.
    Response: We plan to provide training and technical assistance to 
assist State agencies and Ombudsmen to implement the final rule.
    Comment: One commenter recommended that the Ombudsman, in addition 
to the State agency, be required in the final rule to identify possible 
conflicts and develop policies to remedy the conflicts.
    Response: We have adopted this recommended change in the final rule 
at Sec.  1327.21. In addition, the final rule provides for Ombudsman 
involvement in developing and/or collaborating on the development of 
Ombudsman program conflict of interest policy at Sec.  1327.11(e)(4).
    Comment: One commenter recommended that we include language 
requiring the State agency to have written policies and methods to 
identify and remove conflicts of interest and other influences that 
could limit the Ombudsman program's ability to carry out its assigned 
functions. They recommended including methods by which the State agency 
will examine individuals and their immediate family members to identify 
conflicts and actions the State agency will require the individuals and 
such family members to take to remove such conflicts.
    Response: We have included language that incorporates this 
recommendation in the final rule at Sec.  1327.11(e)(4) related to 
development of policies and procedures. We note that the recommended 
language is taken largely from the statutory provision at section 
712(f)(4) of the Act and agree that it is appropriate to reflect that 
statutory language in the rule.
    Comment: One commenter recommended that we include language 
requiring the State agency to have policies regarding interference, 
prohibiting retaliation and reprisals and providing for appropriate 
sanctions.
    Response: Provisions related to State agency development of 
policies and procedures on interference, retaliation, and reprisals, 
and providing for appropriate sanctions have been included in the final 
rule at Sec.  1327.15(i).
    Comment: Eight commenters indicated support for the proposed 
language regarding identification of organizational conflicts at Sec.  
1327.19(a). Two commenters commended AoA for including surrogate 
decision-makers in the list of examples at Sec.  1327.19(a)(12).
    Response: We appreciate the supportive comments and note that the 
corresponding provisions are in the final rule at Sec.  1327.21(a).
    Comment: Several commenters interpreted the proposed rule to 
prohibit the operation of the Ombudsman program in a host agency with 
one or more of the conflicts enumerated in Sec.  1327.19(a). One 
commenter indicated concern that the proposed rule would prohibit the 
Office from being located in a host agency responsible for public 
guardianship or Medicaid assessments, given current locations of 
Ombudsman programs in agencies that have these responsibilities. One 
commenter recommended that the final rule clarify that a remedy might 
be found that does not require moving out of the agency with a 
conflicting responsibility. Another indicated that, if the Ombudsman 
program should be separated from the State unit on aging and its 
funding stream, this would have

[[Page 7750]]

a significant financial impact on the program as significant funds do 
not come from Federal sources.
    Response: We recognize that some States have organizationally 
located the Office and/or local Ombudsman entities inside agencies with 
duties which are identified as examples of conflicting duties under the 
final rule. The final rule does not prohibit the Office or local 
Ombudsman entities from being hosted in the entities enumerated in 
Sec.  1327.21(a), except for those conflicts enumerated in Sec.  
1327.21(b)(3). However, the final rule does require the State agency 
and Ombudsman to identify these conflicts and take steps to remove or 
remedy the conflicts. Further, the Ombudsman must report on these steps 
to AoA. See Sec.  1327.21(b)(1).
    Comment: One commenter recommended defining ``long-term care 
services'' where it appears in Sec.  1327.19, suggesting it be limited 
to services provided to residents and applicants of long-term care 
facilities but not services provided in the applicant or residents' 
home outside of a long-term care facility.
    Response: We have added language in the final rule at Sec.  
1327.21(a) to clarify that a potential or actual conflict exists where 
the services are provided to residents of long-term care facilities, as 
defined by the Act at section 102(35), but not necessarily for services 
provided to individuals receiving long-term care (or long-term services 
and supports) in other settings. For consistency, we have also removed 
the term ``long-term care services'' from the other places where it was 
found in the proposed rule.
    We understand that some States have expanded the Ombudsman 
program's jurisdiction to serve individuals in adult day health 
centers, in their own homes, and other settings, beyond the scope of 
the Act. While this rule does not restrict those State decisions which 
have expanded the Ombudsman program scope, it is equally important for 
the State agency and the Ombudsman program to identify and remedy or 
remove additional conflicts of interest that may exist where the 
Ombudsman program serves individuals receiving long-term care in 
settings other the long-term care facilities.
    Comment: One commenter indicated that, at the local level, a 
representative of the Office hosted by an AAA faces conflicts with the 
agency when the representative of the Office makes recommendations or 
investigates problems at county-based facilities. This is especially 
challenging, according to the commenter, where the representative of 
the Office is co-located with workers with roles such as guardians, 
protective services workers, and care managers.
    Response: Section 1327.21(b)(6) of the final rule requires the 
identification of such conflicts of interest and requires that the 
agency hosting a local Ombudsman entity take steps to remedy or remove 
such conflicts.
    Comment: One commenter recommended that the final rule indicate 
that conflicting activities performed by an Ombudsman or 
representatives of the Office are not permissible.
    Response: We have adopted this recommendation at Sec.  1327.21(a) 
of the final rule.
    Comment: One commenter recommended that the final rule include 
``supported decision makers'' to the list of surrogate decision-makers 
in Sec.  1327.19(a)(12).
    Response: Since supported decision-makers are designed to support 
the wishes of the individual, we do not understand this function to be 
a conflict of interest with the Ombudsman program. This is in contrast 
to surrogate decision-makers which may focus on the best interest of 
the individual and may have the authority to override the wishes of the 
individual.
    Comment: One commenter indicated that, since a number of States and 
AAAs provide both Ombudsman services and protective services, the final 
regulation should recognize that such an arrangement does not 
inherently present a conflict of interest.
    Response: While there may be remedies available to address this 
conflict of interest, we do not agree that the fact that these two 
programs are co-located in some States or AAAs eliminates the conflict.
    Comment: Several commenters recommended that AoA provide further 
guidance on implementation of this regulation, including clarification 
of terms such as ``placement'' in Sec.  1327.19(a), clarifying and 
distinguishing between ``remedy'' and ``removal,'' to assist States as 
they identify conflicts.
    Response: We plan to provide additional training and technical 
assistance to assist State agencies and Ombudsmen to implement the 
final rule.
    Comment: One commenter recommended that the final rule indicate 
that ``any aspect of licensing'' be included in Sec.  1327.19(a)(1) and 
(a)(2)(i) to address the circumstance where various regulatory 
responsibilities are divided among various agencies.
    Response: We believe that the proposed language is sufficiently 
clear to apply to more than one entity with functions of licensing, 
surveying or certifying long-term care facilities, so have not made 
this change in the final rule in the corresponding provisions at Sec.  
1327.21(a)(1) and (a)(2)(i).
    Comment: One commenter indicated that some AAAs which 
organizationally house local Ombudsman programs receive donations from 
long-term care facilities. Another commenter indicated that some AAAs 
are county agencies in counties that own, operate and/or manage long-
term care facilities and where the facility and the AAA report to the 
same leadership.
    Response: We acknowledge that conflicts of interest exist currently 
in some State agencies and agencies hosting local Ombudsman entities. 
It is our intent that the final rule will clarify the process by which 
State agencies and Ombudsmen can appropriately carry out their 
responsibilities to identify, remedy and/or remove such conflicts.
    Comment: One commenter indicated that co-locating care coordination 
services, protective services, guardianship services, and a local 
Ombudsman entity within an AAA has been positive and has strengthened 
working relationships. Another commenter indicated that co-location of 
protective services and a local Ombudsman entity has allowed for 
greater advocacy and efficiency.
    Response: We believe that positive relationships between the 
individuals who work for various programs and agencies--even those 
which provide potentially conflicting services--can be extremely 
beneficial for recipients. In fact, Ombudsman program coordination with 
many of these entities is required in the final rule at Sec.  
1327.13(h).
    Comment: One commenter recommended that the final rule include as a 
conflict: ``determining training requirements for long-term care 
service providers.''
    Response: Since training requirements for long-term care facilities 
are typically established as part of licensing or certification 
requirements, we believe that the provision related to ``licensing, 
surveying, or certifying long-term care facilities'' (in the final rule 
at Sec.  1327.21(a)(1)) would typically be inclusive of this activity. 
The list of organizational conflicts of interest in the final rule is 
not exhaustive and does not preclude the identification of additional 
conflicts.
    Comment: Several commenters recommended approaches to remedying 
identified organizational conflicts. One commenter recommended that the 
final rule require development of firewalls to protect the Ombudsman 
program and

[[Page 7751]]

personnel from interference, intimidation and retaliation by State 
officials. Another commenter recommended that the rule indicate that 
each entity must ensure administrative separateness of all programs as 
a remedy. Another indicated that separating out AAA staff functions 
could help remedy conflicts with a local Ombudsman entity. One 
commenter recommended that all local Ombudsman entities have their own 
brand identity (e.g., signage, stationary, business cards, outreach 
materials) separate from the AAA to reduce perceived conflicts of 
interest and confusion (including questions from residents about why 
representatives of the Office wear name tags with the AAA name on 
them).
    One comment recommended that the final rule include criteria for 
steps that should be taken by the State agency as evidence of a process 
to remedy or remove conflicts. The commenter noted that some of these 
are included in the preamble to the proposed rule and proposed 
additional criteria.
    Response: We acknowledge that administrative structures, such as 
firewalls, may be appropriate remedies in some circumstances. AoA plans 
to provide additional technical assistance to States as they develop 
plans to remove and remedy existing conflicts of interest. Provisions 
related to development of policies and procedures on interference, 
retaliation and reprisals, and providing for appropriate sanctions have 
been included in Sec.  1327.15(i).
    Comment: One commenter recommended that the final rule should 
emphasize removal of conflicts, as opposed to remedy of conflicts, 
which may be superficial. The commenter recommended that, where 
conflicts exist, the Ombudsman program or the conflicting service 
should be relocated within a reasonable time frame.
    Response: We disagree. We are aware of examples where remedies have 
been effective in ensuring the credibility of the Ombudsman program. We 
plan to provide additional technical assistance to State agencies and 
to Ombudsman programs to assist them in developing effective steps to 
remedy or remove conflicts.
    Comment: One commenter recommended that the State agency and the 
Ombudsman should describe the organizational placement of the Office, 
identify any organizational conflicts, develop a proposal for removing 
or remedying the conflict, and submit their plan to AoA for approval, 
indicating the State's plan to continue operating under the approved 
plan until there is some change in the Office that requires reporting.
    Response: The final rule at Sec.  1327.21(b)(1) requires the 
Ombudsman to report on any identified conflicts and steps taken to 
remedy the conflicts through the NORS.
    Comment: One commenter recommended that we add the term 
``periodic'' to describe the review process required in Sec.  
1327.19(b)(1)(ii) of the proposed rule in order to require that review 
be made on a regular basis.
    Response: We agree that periodic reviews are reasonable. The final 
rule provides flexibility for a State agency and Ombudsman program to 
develop a review process that includes periodic reviews.
    Comment: One commenter recommended clarity on enforcement actions 
that might be taken where conflicts exist.
    Response: Determinations regarding organizational placement of the 
Office and/or local Ombudsman entities may remove conflicts of 
interest. Further, the final rule at Sec.  1327.21(b)(7) provides that 
failure to disclose a conflict by an agency hosting a local Ombudsman 
entity is adequate grounds for the Ombudsman to refuse, suspend, or 
remove the entity's designation.
    In addition, the relationship between AoA and the State agency is 
one of a grant awarding agency to a grantee. Federal regulation 
provides options for HHS grant awarding agencies such as AoA to respond 
when a grantee fails to comply with any term of an award. 45 CFR 
75.371.
    Comment: Three commenters indicated support for the proposed 
requirement for reporting of conflicts into the NORS.
    Response: We appreciate the supportive comments.
    Comment: One commenter recommended language that would require 
submission of and approval of a plan for removing or remedying 
organizational conflicts.
    Response: The final rule at Sec.  1327.21(b)(1) requires the 
reporting of organizational conflicts and steps taken to remove or 
remedy them through the NORS.
    Comment: One commenter requested information on how AoA intends to 
use the information regarding disclosure of conflicts of interest 
reported in the NORS. Two commenters expressed concern for possible 
retaliation against the Ombudsman who submits information in NORS.
    Response: AoA intends to use the reports in order to assist it in 
assuring that State agencies and Ombudsman programs are complying with 
the requirements in the Act and in this rule to identify and remedy or 
remove conflicts of interest. We would also review the circumstances if 
we were to receive any reports of retaliation against an Ombudsman who 
truthfully submits information required by Federal rule, and we would 
take appropriate steps to address any such allegations.
    Comment: One commenter indicated that not all States use the NORS 
system. Another commenter recommended that AoA consider the cost to 
States if this reporting requires updating of NORS.
    Response: While not all States use the same software to collect 
their data, all States are required to report into NORS as a condition 
of receiving OAA funds. OMB NO.: 0985-0005. In order to make changes to 
NORS, the AoA is required to publish, and invite public comment on, the 
proposal as well as provide estimates of any cost impact, as required 
by the Paperwork Reduction Act. We will invite public comment on any 
proposed changes to NORS as a result of the implementation of this 
rule.
    Comment: Four commenters indicated that, in addition to NORS 
reporting, conflicts at the state level should be immediately reported 
to AoA. One of these commenters indicated that annual reporting in NORS 
is untimely to report a matter of such great significance. Instead, the 
commenter recommended that the rule at Sec.  1327.19(b)(1)(v) require 
the State agency to immediately report (in no later than ten days) 
conflicts to AoA, indicating that the State agency is likely to be the 
source of the conflict. The commenter proposed that State agency 
failure to immediately disclose and adequately remedy or remove 
conflict should be grounds to remove State agency authority to operate 
the Office, and that the same penalty be applied to a local Ombudsman 
entity under Sec.  1327.19(b)(6). Another commenter recommended that 
all Ombudsmen and representatives of the Office should be required in 
the final rule to report any perceived or real conflict of interest 
directly to a neutral third party.
    Response: We believe that the approach we have taken in the final 
rule at Sec.  1327.21, which provides for annual identification of 
organizational conflicts and description of steps taken to remedy or 
remove conflicts, will provide an orderly process that will implement 
the requirements of the Act, enhance transparency, avoid burdensome 
reporting requirements on Ombudsman programs, and emphasize the 
importance of States providing credible, conflict-free Ombudsman 
programs for residents.

[[Page 7752]]

    Comment: One commenter recommended that all conflicts of interest 
at state or local levels should be included in the NORS report.
    Response: The rule does not limit reporting in NORS to state-level 
organizational conflicts of interest.
    Comment: One of the commenters recommended that the final rule 
include stronger language to protect the Ombudsman from retaliation, 
indicating that retaliation occurs in spite of prohibitions under the 
Act.
    Response: Provisions related to development of policies and 
procedures on interference, retaliation, and reprisals, and providing 
for appropriate sanctions have been included in Sec.  1327.15(i).
    Comment: One commenter noted that the proposed rule at Sec.  
1327.19(b)(2) prohibits co-location of the Ombudsman program with only 
three of the twelve examples listed in Sec.  1327.19(a). The commenter 
recommended that the final rule include a prohibition of co-location of 
the Ombudsman program with adult protective services and entities 
making admission or discharge decisions regarding long-term care 
facility residents. The commenter indicated that the actions of these 
entities may be too directly coercive for most residents or their 
families to be able to feel that the Ombudsman could be impartial.
    Response: A State agency or Ombudsman program may choose to 
implement policies that prohibit the co-location of the Ombudsman 
program with adult protective services and entities making admission or 
discharge decisions regarding long-term care facility residents. 
However, we have not amended the final rule to adopt this 
recommendation.
    Comment: One commenter recommended that there should not be an 
absolute prohibition of the Office being co-located with the entity 
responsible for licensing, surveying or certifying long-term care 
facilities as proposed in Sec.  1327.19(b)(2)(i).
    Response: The Act prohibits a State agency to enter into a contract 
or other arrangement to carry out the Office with ``an agency or 
organization that is responsible for licensing or certifying long-term 
care services in the State.'' Section 712(a)(4)(B)(i) of the Act. We 
have narrowed the applicability of this provision to ``long-term 
facilities'' in the final rule. However, we believe that same 
prohibition to co-locate the Office with a licensing or certification 
agency where the State agency contracts out the Office, should also 
apply to the State agency when it houses the Office, since the same 
conflicts of interest exist in either organizational placement.
    Comment: Three commenters recommended that AoA, rather than the 
State agency, be responsible for determining whether the State agency 
has adequately remedied or removed a conflict. The commenters indicated 
concerns that conflicts have increased as State agencies and AAAs 
increasingly take on additional direct service provision, including 
through Medicaid waiver programs.
    Response: The Act requires that the State agency establish 
mechanisms to identify and remove conflicts of interest. Section 
712(f)(4) of the Act. We are available to provide technical assistance 
to support States in fulfilling this requirement. Moreover, the final 
rule, at Sec.  1327.21(b), provides AoA with a mechanism to become more 
aware of existing conflicts and steps States and Ombudsman programs 
have taken to remedy or remove the conflicts through regular reports.
    Comment: One commenter recommended that we add the term 
``operational'' to the proposed language at Sec.  1327.19(b)(2)(iii).
    Response: We have accepted this recommended language in the final 
rule at Sec.  1327.21(b)(3)(iii).
    Comment: One commenter recommended that the final rule address the 
situation of conflicts when the State agency has responsibility for 
oversight of a contract to operate the Office.
    Response: We have accepted this recommended language in the final 
rule at Sec.  1327.21(b)(4)(i).
    Comment: One commenter indicated support for the State agency and 
the Ombudsman being in the best position to identify a process to 
remove and/or remedy any organizational conflicts within local 
agencies.
    Response: We appreciate the supportive comment.
    Comment: Two commenters indicated support for the proposed language 
at Sec.  1327.19(c). One of these commenters indicated appreciation for 
AoA's indication of the importance of promoting conflict-free integrity 
of the Ombudsman program.
    Response: We appreciate the supportive comments and note that the 
corresponding provisions are in the final rule at Sec.  1327.21(c).
    Comment: One commenter indicated that the proposed rule will create 
a challenge in rural areas where employees of long-term care facilities 
are neighbors, friends and family of representatives of the Office.
    Response: The Act requires the State to ensure that no 
representative of the Office or member of his or her immediate family 
is subject to a conflict of interest. Section 712(f)(2) of the Act. We 
appreciate that this requirement may create challenges to some 
Ombudsman programs and local Ombudsman entities, including in rural 
areas. Our intent is to help States and Ombudsman programs carry out 
this statutory requirement and to enhance the credibility of the 
Ombudsman program. We plan to provide additional technical assistance 
to State agencies and Ombudsman programs as they develop approaches to 
remove and remedy existing conflicts of interest.
    Comment: One commenter recommended that AoA provide States with 
deference in their hiring practices and not limit States from selecting 
otherwise qualified candidates from serving in the Office.
    Response: Under the final rule, State agencies and other entities 
responsible for employing or appointing the Ombudsman do have 
significant latitude to select a person who meets the qualifications of 
the position. See Sec.  1327.11(d). The Act requires that the State 
agency shall ensure that the Ombudsman be free of conflict of interest 
and provides a number of specific examples of prohibited interests or 
relationships. Section 712(f) of the Act. Our intent in this rule is to 
assist States to implement this statutory provision, but not to limit 
them from selecting qualified candidates.
    Comment: One commenter recommended that we add a new provision to 
the proposed language at Sec.  1327.19(c)(2) which prohibits the 
ability to gain financially through an action or potential action 
brought on behalf of individuals the Ombudsman serves. The commenter 
indicated that this language reflects the language of the Act at 
Section 712(a)(5)(C)(ii) and provide additional clarity.
    Response: We have not added this recommended provision in the final 
rule but note that other provisions, including Sec.  1327.21(c)(2)(iv), 
(v), and (vi) in the final rule, include examples of conflicting 
financial gains.
    Comment: One commenter recommended that individual conflicts 
identified in the proposed rule at Sec.  1327.19(c)(2)(i)-(vi) should 
have a one-year ban and that States may impose longer periods of 
disqualification.
    Response: We have not adopted this recommendation. However, the 
rule does not prohibit States from imposing periods of disqualification 
for these or other conflicts.
    Comment: One commenter recommended that the final rule require a 
period of two to five years before an individual can be employed as an 
Ombudsman or representative of the

[[Page 7753]]

Office after direct involvement with licensing or certification of a 
facility or provider.
    Response: We have not adopted this recommendation. However, the 
rule does not prohibit States from imposing periods of disqualification 
for this or other conflicts.
    Comment: One commenter recommended that the final rule require a 
cooling off period of two to five years for ownership or investment 
interest in an existing or proposed long-term care facility or service.
    Response: We have not adopted this recommendation. However, the 
rule does not prohibit States from imposing periods of disqualification 
for this or other conflicts.
    Comment: Several commenters recommended that the conflict 
identified in the proposed rule at Sec.  1327.19(c)(2)(iii) regarding 
employment in a long-term care facility, should not be limited to the 
service area, but statewide. One of the commenters indicated that their 
State has had several Ombudsmen which had been hired directly from 
long-term care provider employment, some of whom have exhibited 
sympathy with providers over consumers, and depriving residents of an 
autonomous and independent advocate. One commenter recommended that the 
final rule require a cooling off period of two to five years after 
employment in a long-term care facility.
    Response: We have eliminated the reference to employment in a long-
term care facility ``within the previous year'' in the final rule at 
Sec.  1327.21(c)(2)(iii), as this provision relates to identification 
of an existing conflict of interest. However, we have maintained for 
the Ombudsman a cooling off period of twelve months for previous 
employment in a long-term care facility in the final rule at Sec.  
1327.21(d)(3).
    Comment: One commenter recommended that we eliminate the 
prohibition on hiring representatives of the Office who have been 
employed in a long-term care facility within the previous year at Sec.  
1327.19(c)(2)(iii), and limit the prohibition to the Ombudsman, as 
qualified staff and volunteers are difficult to recruit. Another 
commenter recommended that we amend the provision in the proposed rule 
at Sec.  1327.19(c)(2)(iii) to reduce the restriction to a six-month 
period after being employed at a long-term care facility for 
representatives of the Office (as opposed to the Ombudsman).
    Response: We have eliminated the reference to employment in a long-
term care facility ``within the previous year'' in the final rule at 
Sec.  1327.21(c)(2)(iii), as this provision relates to identification 
of an existing conflict of interest. In the final rule at Sec.  
1327.21(d)(3), we have limited the twelve month cooling off period to 
employment or appointment to the Ombudsman only. We encourage, but 
don't require, that States apply a cooling off period to the 
representatives of the Office in the final rule at Sec.  
1327.21(d)(4)(iv)(A).
    Comment: One commenter recommended that we provide additional 
clarity regarding what constitutes ``significant value'' related to 
gifts or gratuities of a facility, management, resident or resident 
representative in the proposed rule at Sec.  1327.19(c)(2)(v).
    Response: Some States define ``significant value'' or similar terms 
in the context of gifts or gratuities. Rather than requiring States to 
replace existing definitions and standards, we have chosen to use the 
final rule (at Sec.  1327.21(c)(2)(v)) to establish the general 
expectation and defer to State agencies and Ombudsman programs to 
develop more specific definitions and standards as needed.
    Comment: Two commenters indicated support for the identification of 
a conflict where the Ombudsman or representative of the Office serves 
as a surrogate decision-maker for a resident in the service area in the 
proposed rule at Sec.  1327.19(c)(2)(vii).
    Response: We appreciate the supportive comments and note that the 
corresponding provision appears in the final rule at Sec.  
1327.21(c)(2)(vii).
    Comment: Two commenters recommended that the conflict identified in 
the proposed rule at Sec.  1327.19(c)(2)(vii), regarding serving as a 
surrogate decision-maker, be more specific. One of the commenters 
indicated that this conflict should apply only to facilities served by 
the representative of the Office. The commenter indicated that a 
representative may hold a power of attorney for a family member who 
lives in the same county and that this would not create a conflict. The 
commenter indicated concern that this proposal would discourage 
qualified people from serving as representatives of the Office.
    Response: The cited provision provides an example of an existing 
conflict of interest. The commenter indicates an example of a remedy to 
that conflict (i.e. that the representative of the Office not serve the 
facility where a conflict exists). To prevent confusion, however, we 
have clarified that the conflict exists in a facility ``in which the 
Ombudsman or representative of the Office provides services'' in Sec.  
1327.21(c)(2)(vii) of the final rule.
    Comment: One commenter indicated that the proposed language at 
Sec.  1327.19(c)(2)(viii) regarding immediate family residing in a 
facility is impractical and would limit the ability of the Ombudsman 
program to provide services in smaller communities where a large 
percentage of individuals are related. The commenter indicated that 
this provision would make it especially difficult to have Native 
Americans serve as representatives of the Office and serve residents of 
Tribal facilities. Instead, the commenter recommended that States be 
permitted to develop policies on how to mitigate the conflict.
    Response: The Act requires the State to ensure that no 
representative of the Office or member of his or her immediate family 
is subject to a conflict of interest. Section 712(f)(2) of the Act. We 
appreciate that this requirement may create challenges to some 
Ombudsman programs and local Ombudsman entities, including in Tribal 
areas. Our intent is to help State agencies and Ombudsman programs 
carry out this statutory requirement and to enhance the credibility of 
the Ombudsman program. We plan to provide additional technical 
assistance to State agencies and Ombudsman programs as they develop 
approaches to remove and remedy existing conflicts of interest.
    Comment: Two commenters recommended we delete the provision of the 
proposed rule at Sec.  1327.19(c)(2)(ix) regarding participation in 
activities which negatively impact the Ombudsman or the perception of 
the Office. One of the commenters indicated that this provision is too 
vague and could lead to unwarranted scrutiny by agencies who do not 
like the actions of the Ombudsman. Another commenter indicated that the 
provision could be used to unjustifiably discredit or retaliate against 
the Ombudsman.
    Response: We have accepted the recommended revision.
    Comment: One commenter recommended that the final rule include as 
an enumerated conflict, in Sec.  1327.19(c)(2), employment by a long-
term care trade association or Medicaid managed care organization.
    Response: We agree with the commenter that there are circumstances, 
including employment by a long-term care provider trade association or 
by a managed care organization providing coverage for managed long-term 
services and supports, which are not listed in the rule but would 
constitute an individual conflict of interest. We created a list of 
examples, indicating that the list is not

[[Page 7754]]

exhaustive, in the final rule at Sec.  1327.21(c)(2).
    Comment: One commenter recommended that we add the term ``or 
permitted'' after ``required'' in the final rule at Sec.  
1327.19(d)(1).
    Response: This is a helpful clarification. We have revised the 
final rule at Sec.  1327.21(d)(1) accordingly.
    Comment: Two commenters recommended that the final rule clarify 
that the provisions at Sec.  1327.19(d)(1) apply to appointment by the 
Governor or other State official.
    Response: In light of this recommendation, we have revised the 
final rule at Sec.  1327.21(d) to apply to circumstances of appointment 
as well as employment.
    Comment: One commenter recommended that a neutral third party with 
no stake in the Ombudsman program, not the State agency, be ultimately 
responsible for identifying, removing or remedying a conflict of 
interest.
    Response: The Act provides that the State agency has the duty to 
ensure that the Ombudsman and representatives of the Office are free of 
conflicts of interest as well as to establish mechanisms to identify 
and remove conflicts. Section 712(f) of the Act. As the grantee, the 
State agency is held accountable by AoA for adherence to the terms and 
conditions of this grant.
    Comment: One commenter recommended that the final rule include a 
provision which would allow the State agency to de-designate a 
representative of the Office if there is an unremedied conflict of 
interest and the Ombudsman chooses not to de-designate the individual.
    Response: The Act provides that the Ombudsman has the authority to 
designate representatives of the Office. We interpret the Act to 
require that the Ombudsman should also be responsible to refuse, 
suspend or remove designation of the representatives of the Office. See 
section 712(a)(5) of the Act and Sec.  1327.13(c) of the final rule.
    Comment: Several commenters recommended approaches to remedying 
identified individual conflicts.
    Response: We appreciate that commenters have provided suggested 
remedies. We plan to provide additional technical assistance to States 
as they develop approaches to remove and remedy existing conflicts of 
interest.
    Comment: Three commenters recommended deletion of or clarification 
of the term ``officer'' in the proposed language at Sec.  1327.19(d)(1)
    Response: The Act uses the term ``officer'' in section 712(f)(2) of 
the Act. However, we have adopted this recommendation in the final rule 
at Sec.  1327.21(d)(1), because we believe that the final rule's 
provisions covering the Ombudsman and representatives of the Office 
cover the relevant individuals envisioned by Congress in this provision 
of the Act.
    Comment: One commenter recommended that we add ``The State agency 
and the Ombudsman shall develop and implement policies'' at Sec.  
1327.19(d)(1).
    Response: For consistency with the provisions related to 
development of policies in Sec.  1327.11(e)(4), we have provided that 
either the State agency or the Ombudsman may develop policies and 
procedures on conflicts of interest. In addition, we have removed 
proposed language at Sec.  1327.21(d)(4) and (8) so that all provisions 
related to required content of conflict of interest policies and 
procedures are found at Sec.  1327.11(e)(4).
    Comment: One commenter recommended that we clarify that the 
requirements of the proposed rule at Sec.  1327.19(d)(2) apply to the 
State entity or other entity that hires the Ombudsman.
    Response: We have added, in the final rule at Sec.  1327.21(d)(2), 
the language ``or other employing or appointing entity'' in response to 
this recommendation.
    Comment: One commenter recommended that we add language to the 
proposed rule at Sec.  1327.19(d)(2)(i) as a reminder that the 
Ombudsman, not the State agency or local entity, is the person with 
authority to designate and de-designate individuals as representatives 
of the Office.
    Response: We believe the authority of the Ombudsman to designate 
representatives of the Office is adequately set forth in other 
provisions of the final rule. This authority is also re-iterated at 
Sec.  1327.11(e)(4)(iii) of the final rule regarding policies on 
conflicts of interest.
    Comment: One commenter recommended that we add a clarification that 
the proposed provision at Sec.  1327.19(d)(2)(i) does not pre-empt 
stronger State laws.
    Response: Stronger State laws or regulations are not prohibited by 
this Federal regulation.
    Comment: One commenter indicated that the proposed rule at Sec.  
1327.19(d)(2)(i) (prohibiting hiring of an individual with an immediate 
family member with a conflict of interest) ignores the possibility of 
an extension of the traditional definition of ``family.''
    Response: We believe that the definition of ``immediate family 
member'' in the final rule at Sec.  1327.1 provides flexibility which 
covers non-traditional families and households. We also note, that, 
under ACL's April 21, 2014 Guidance on Federal Recognition of Same-Sex 
Marriage (available at http://www.acl.gov/Funding_Opportunities/Grantee_Info/Index.aspx), an immediate family member who is a member of 
the household or a relative includes a spouse in a same-sex marriage.
    Comment: One commenter described the proposed prohibitions on 
employment of individuals (in proposed Sec.  1327.19(d)(5)) as overly 
broad and precluding of significant numbers of individuals with 
expertise and experience in the fields of long-term care and advocacy. 
Another commenter indicated that when a conflict of interest exists in 
one facility, it should not prohibit individual representatives of the 
Office from serving in other facilities.
    Response: In the final rule at Sec.  1327.21(d)(4), we have 
modified the provision to prohibit the employment or appointment of an 
Ombudsman or representative of the Office under some circumstances. For 
example, we have deleted the cooling off period for individuals with 
direct involvement in licensing or certification and narrowed the scope 
of conflicting ownership or investment interest to long-term care 
facilities (rather than services). The rule does not prohibit States 
from imposing periods of disqualification or other more stringent 
requirements related to these or other conflicts.
    Comment: One commenter recommended the final rule should require 
that, should an individual be employed as Ombudsman or representative 
of the Office with a conflict of interest as described in proposed 
Sec.  1327.19(d)(5), the State agency should provide a plan to AoA for 
remedying or removing the conflict, and AoA should determine whether 
the conflict has been adequately removed or remedied.
    Response: The final rule requires the Ombudsman to report on any 
identified conflicts and steps taken to remedy the conflicts through 
NORS at Sec.  1327.21(b)(1).
    Comment: One commenter indicated that proposed Sec.  1327.19(d)(5) 
is unnecessary in light of subsection (2) and might incorrectly imply 
that some of the provisions in subsection (2) do not apply to the 
Ombudsman.
    Response: The provision in the final rule at Sec.  1327.21(d)(2) 
broadly describes the process of employment or appointment related to 
conflict of interest and the Ombudsman program at any level. In 
contrast, the corresponding provision in the final rule at

[[Page 7755]]

Sec.  1327.21(d)(4) identifies specific prohibited conflicts regarding 
representatives of the Office. We note that the provision in the final 
rule at Sec.  1327.21(d)(3) identifies specific prohibited conflicts 
regarding the Ombudsman.
    Comment: One commenter recommended that we add a period of two 
years to five years to the proposed language at Sec.  1327.19(d)(5)(ii) 
regarding ownership or investment interest in a long-term care facility 
or service.
    Response: In the final rule, at Sec.  1327.21(d)(4)(ii), we have 
modified the provision to prohibit the employment or appointment of an 
Ombudsman or representative of the Office in circumstances which more 
closely reflect the provisions of the Act, including by taking out 
references to the individual having had specified conflicts within the 
previous year. We note that the rule does not prohibit States from 
imposing periods of disqualification for these or other conflicts.
    Comment: Two commenters expressed support for the proposed rule at 
Sec.  1327.19(d)(5)(iii) regarding the one-year period before employing 
individuals who have been employed by, or participated in the 
management of, a long-term care facility.
    Response: We appreciate the supportive comments. The relevant 
provision in the final rule provides for a twelve month period and is 
limited to the Ombudsman. Sec.  1327.21(d)(3)(iii). The final rule does 
not require a twelve month cooling off period for representatives of 
the Office at Sec.  1327.21(d)(4)(iv) of the final rule. We note that 
the rule does not prohibit States from imposing periods of 
disqualification for these or other conflicts.
    Comment: Five commenters expressed concerns regarding the proposed 
rule at Sec.  1327.19(d)(5)(iii) regarding the one-year period before 
employing individuals who have been employed by, or participated in the 
management of, a long-term care facility. Several indicated that the 
proposed provision unnecessarily limits the ability of a State or 
Ombudsman program to recruit representatives with expertise. One of 
these commenters recommended the ability to permit a remedy. Two 
commenters recommended that States be provided with latitude to 
determine the best candidates and self-monitor for conflict-free 
assurance. Another recommended limiting the prohibition to the service 
area to avoid unduly limiting the pool of candidates.
    Response: The relevant provision in the final rule provides for a 
twelve-month period and is limited to the Ombudsman. Sec.  
1327.21(d)(3)(iii). The final rule does not require a twelve-month 
cooling off period for representatives of the Office at Sec.  
1327.21(d)(4)(iv) of the final rule. We note that the rule does not 
prohibit States from imposing periods of disqualification for these or 
other conflicts.
    AoA realizes that this required twelve-month cooling off period 
serves as a proxy for avoiding conflicts of interest and does not 
guarantee the outcome of an Ombudsman free of potential conflicts. We 
also realize that this rule could--and likely would--disqualify some 
excellent and otherwise qualified candidates from the position of 
Ombudsman. However, we are convinced that the final rule will bolster 
the credibility of the Ombudsman program, particularly among residents 
and their representatives, when the Ombudsman is not selected from 
among individuals who are employed in long-term care facilities at or 
near the time of their selection. The Ombudsman is the head of a 
program with responsibility to identify, investigate, and resolve 
complaints of residents who live in these settings and to represent the 
interests of the residents. Residents must be able to trust that the 
Ombudsman has their interests as his or her primary focus, without a 
sense of loyalty to a previous employer or coworkers.
    Comment: Four commenters recommended that the final rule prohibit 
employment of individuals who have been employed by, or participated in 
the management of, a long-term care facility for a period longer than 
one year. Recommendations ranged from two years to five years before 
employing individuals as the Ombudsman or representative of the Office 
who have been employed by, or participated in the management of, a 
long-term care facility.
    Response: We believe that a twelve-month cooling off period should 
be the minimum requirement when an Ombudsman is employed or appointed 
who has been previously employed by a long-term care facility. We note 
that the rule does not prohibit States from imposing periods of 
disqualification for these or other conflicts.
    Comment: Two commenters recommended the proposed rule at Sec.  
1327.19(d)(7) be amended to add a requirement that AoA ensure that 
policies and procedures are in place. Two commenters indicated that, 
unless AoA monitors and provides Federal oversight, compliance with the 
conflict of interest provisions cannot be assured. Another commenter 
recommended that the proposed rule at Sec.  1327.19(d)(7) be amended to 
add a requirement that the Ombudsman be required to comply with this 
provision, as opposed to the State agency ensuring that the Ombudsman 
complies.
    Response: The Act designed the Ombudsman program to be operated 
through grants to States. Therefore, AoA requires that State agencies 
(the grantee) ensure compliance by the Ombudsman with the requirements 
set forth in the final rule. We note that the provisions regarding the 
development of conflict of interest policies and procedures are in the 
final rule at Sec.  1327.11(e)(4).
    Comment: One commenter requested AoA to adopt a regulation 
prohibiting the State agency from imposing restrictions on the actions 
of the attorney of the Ombudsman program under the guise of conflicts 
of interest.
    Response: The provisions related to legal counsel for the Ombudsman 
program are provided in a new provision at Sec.  1327.15(j).
    Comment: One commenter recommended that the final rule include a 
provision that identifies conflicts relating to individuals involved in 
the designation of the Ombudsman as required by section 712(f)(1) of 
the Act.
    Response: In the final rule at Sec.  1327.11(e)(4)(i), we have 
added language requiring that policies and procedures ensure that no 
individual, or member of the immediate family of an individual, 
involved in the employment or appointment of the Ombudsman is subject 
to a conflict of interest.

I. Additional Considerations

Legal Counsel
    Comment: In the NPRM, we indicated that we believe the Act is 
adequately specific regarding what constitutes adequate legal counsel 
for the Ombudsman program but invited comments on the question of 
whether regulations are needed by States in order to more fully 
implement the Act's requirements. Many commenters offered comments in 
response. All of them indicated the need for regulations to clarify 
what constitutes adequate legal counsel. No commenters indicated that a 
rule was unnecessary. Among the reasons cited for the need were:
     It is rare that Ombudsman programs have adequate access to 
legal counsel.
     Current policies and practices have not fulfilled this 
requirement of the Act.
     The Act does not provide guidance to States regarding what 
functions should be performed, how counsel

[[Page 7756]]

should be financed, and identifying conflicts for purposes of legal 
counsel.
     Conflicted legal counsel has contributed to misguided 
policies.
     Conflicts exist when the legal counsel for the Office also 
represents the interest of State government programs such as Medicaid 
or public guardians.
     It is critical for Ombudsman programs to have conflict-
free legal counsel in order to ensure that resident rights are 
protected.
     The authority and capacity of the Ombudsman program to 
provide individual representation for residents in administrative and 
legal proceedings is virtually non-existent in some States.
     The Act requires that the Ombudsman program pursue legal 
remedies on behalf of residents.
    Response: In response to these comments, we have added a provision 
regarding legal counsel in the final rule at Sec.  1327.15(j).
    Comment: Two commenters recommended that the final rule require 
that legal counsel not be part of the State agency or limited to an 
Attorney General's office. One of these commenters indicated that in-
house counsel in State agencies represents the interests of the State 
rather than of the residents or the Ombudsman program.
    Response: We have not prohibited legal counsel from being part of 
the State agency or limited to an Attorney General's office. There are 
some legal issues for which attorneys in these entities may be quite 
appropriate and the issue at hand does not present a conflict of 
interest. However, where an in-house counsel in a State agency or the 
Attorney General's office has a conflicting interest from the interest 
of the Ombudsman program or the residents it serves, the final rule 
requires that the State agency has a duty to ensure that the Ombudsman 
program has access to conflict-free legal counsel.
    Comment: One commenter recommended that the Ombudsman have access 
to independent legal counsel of the Ombudsman's choosing. The commenter 
described how the legal counsel in their State has been extremely 
important to the success of the Ombudsman program in providing 
credible, effective services at both the systemic and individual 
levels.
    Response: The Act requires that the State agency shall ensure the 
provision of adequate and conflict-free legal counsel. While some 
States will choose to provide the opportunity for the Ombudsman to 
choose the legal counsel for the Ombudsman program, other States may 
choose to ensure the provision of legal counsel through a more 
collaborative process. We do not read the Act to require that legal 
counsel be selected solely by the Ombudsman but neither does it 
prohibit a State from providing that opportunity to the Ombudsman.
Other Comments
    Comment: One commenter recommended that AoA, through NORS, require 
collection and reporting of demographic data including English as a 
second language (ESL); lesbian, gay, bi-sexual, transgender (LGBT); 
intellectual and developmental disabilities (I/DD), chronic mental 
illness and persons of color. The commenter indicated that collection 
of such data would better inform the work of the Ombudsman program, 
provide for new and creative approaches, and demonstrate the need for 
increased funding. Another commenter recommended that NORS require 
collection and reporting of the number of people residing in facilities 
in addition to the number of beds as is currently required.
    Response: AoA does not require reporting of any demographic 
information regarding individual residents through NORS. Currently AoA 
is reviewing the data elements it requires to be reported in NORS, and 
we will include these comments in that review process. Please note that 
any changes proposed to NORS by AoA will be published in the Federal 
Register with opportunity for public comment prior to their final 
adoption.
    Comment: One commenter recommended that, throughout the rule, we 
acknowledge that the term ``family'' includes domestic partners and 
significant others who are considered as members of families by 
residents.
    Response: In the definitions of ``immediate family member'' and 
``resident representative'' in the final rule at Sec.  1327.1, we have 
adopted language intended to be inclusive of domestic partners and 
significant others.
    Comment: One commenter recommended the use of ``ombuds'' instead of 
``ombudsman,'' indicating that at least one State has done so through 
its State law.
    Response: AoA utilizes the same term as in the Act (i.e. 
``Ombudsman'') in this rule, but States are not prohibited from using 
the term ``ombuds'' to describe the program.
    Comment: Two commenters recommended clarification of whether the 
Ombudsman program should serve residents under age sixty in the final 
rule.
    Response: AoA has long held that States are not prohibited from 
using OAA funds to support Ombudsman services to younger residents of 
long-term care facilities, even though the Act is designed to primarily 
benefit individuals over age 60. AoA Program Instruction 81-8.
    There are no provisions in the final rule which limit Ombudsman 
program services to individuals based on age. Although the proposed 
rule contained one reference to ``older individuals'' (at Sec.  
1327.15(c)(3)(i)(A)), we have omitted the word ``older'' in the 
corresponding provision in the final rule at Sec.  1327.15(k)(3).
    Comment: One commenter recommended clarification of the types of 
facilities in which Ombudsman programs services are delivered in the 
final rule. Another commenter indicated that the local Ombudsman entity 
in which they serve does not visit board and care homes, asking whether 
States would be required in the final rule to visit board and care 
homes. The commenter recommended that the Ombudsman should determine 
the type of facilities to be visited within the respective State.
    Response: The term ``long-term care facility''--i.e. the settings 
in which the Ombudsman program has jurisdiction to serve residents--is 
defined in section 102(a)(35) of the Act:
    The term ``long-term care facility'' means--
    (A) Any skilled nursing facility, as defined in section 1819(a) of 
the Social Security Act (42 U.S.C. 1395i-3(a));
    (B) any nursing facility, as defined in section 1919(a) of the 
Social Security Act (42 U.S.C. 1396r(a));
    (C) for purposes of sections 307(a)(9) and 712, a board and care 
facility; and
    (D) any other adult care home, including an assisted living 
facility, similar to a facility or institution described in 
subparagraphs (A) through (C).
    Comment: One commenter recommended guidance regarding how Ombudsman 
programs could access nursing home ownership information as provided by 
the Affordable Care Act.
    Response: This rule implements the provisions of the Act, not the 
Affordable Care Act. We have noted the need for technical assistance 
regarding the issue of Ombudsman programs accessing nursing home 
ownership information.

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

[[Page 7757]]

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 rule has been designated a 
``significant regulatory action'' under Executive Order 12866; as such, 
this 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. 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 rule will not have a significant economic impact on a 
substantial number of small entities. AoA does not anticipate that this 
rule 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 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. 3501 et seq.), AoA determined there were limited new 
information collection requirements in the proposed rule. Therefore, 
AoA sought comments on these information collections at the time of 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).\1\ The final regulations would add one additional 
question to NORS: the identification of organizational conflicts of 
interest and a description of steps taken to remove or remedy any 
identified conflict(s). Prior to the effective date of the final rule, 
AoA intends to request OMB approval for an amendment to current NORS 
instructions. It also plans to alter existing reporting software to 
capture data consistent with this requirement.
---------------------------------------------------------------------------

    \1\ OMB No. 0985-0005.
---------------------------------------------------------------------------

    Comment: One commenter recommended that AoA consider the cost to 
States if this reporting requires updating of NORS.
    Response: While not all States use the same software to collect 
their data, all States are required to report into NORS as a condition 
of receiving OAA funds. OMB Control Number: 0985-0005. In order to make 
changes to NORS, the AoA is required to publish, and invite public 
comment on, the proposal as well as provide estimates of any cost 
impact, as required by the Paperwork Reduction Act. We will invite 
additional public comment on any proposed changes to NORS as a result 
of the implementation of this rule. 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).
    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 final 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 $100,000,000 or more (adjusted 
annually for inflation) 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 $100,000,000 or more (adjusted annually 
for inflation) 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 rule 
protects the confidentiality of information contained in the records of 
State child support enforcement agencies. This rule 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 the final 
rule, and has incorporated a number of revisions in the rule in order 
to respond to comments requesting further clarity.

[[Page 7758]]

List of Subjects

45 CFR Part 1321

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

45 CFR Part 1327

    Administrative practice and procedure, Aged, Long-term care.

    Dated: September 15, 2014.
Kathy Greenlee,
Administrator, Administration for Community Living. Assistant Secretary 
for Aging, Administration on Aging.
    Approved: October 9, 2014.
Sylvia M. Burwell,
Secretary.

    For the reasons stated in the preamble, the Administration on 
Aging, Administration for Community Living, U.S. Department of Health 
and Human Services, amends 45 CFR subchapter C 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 shall be responsible 
for monitoring the files, records and other information maintained by 
the Ombudsman program. Such monitoring may be conducted by a designee 
of the Ombudsman. Neither the Ombudsman nor a designee shall disclose 
identifying information of any complainant or long-term care facility 
resident to individuals outside of the Ombudsman program, except as 
otherwise specifically provided in Sec.  1327.11(e)(3) 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 Responsibilities of agencies hosting local Ombudsman 
entities.
1327.19 Duties of the representatives of the Office.
1327.21 Conflicts of interest.
Subpart B--[Reserved]

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

Subpart A--State Long-Term Care Ombudsman Program


Sec.  1327.1  Definitions.

    The following definitions 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 sections 
711 and 712 of the Act, means the organizational unit in a State or 
territory which is headed by a State Long-Term Care Ombudsman.
    Representatives of the Office of the State Long-Term Care 
Ombudsman, as used in sections 711 and 712 of the Act, means the 
employees or volunteers designated by the Ombudsman to fulfill the 
duties set forth in Sec.  1327.19(a), whether personnel supervision is 
provided by the Ombudsman or his or her designees or by an agency 
hosting a local Ombudsman entity designated by the Ombudsman pursuant 
to section 712(a)(5) of the Act.
    Resident representative means any of the following:
    (1) An individual chosen by the resident to act on behalf of the 
resident in order to support the resident in decision-making; access 
medical, social or other personal information of the resident; manage 
financial matters; or receive notifications;
    (2) A person authorized by State or Federal law (including but not 
limited to agents under power of attorney, representative payees, and 
other fiduciaries) to act on behalf of the resident in order to support 
the resident in decision-making; access medical, social or other 
personal information of the resident; manage financial matters; or 
receive notifications;
    (3) Legal representative, as used in section 712 of the Act; or
    (4) The court-appointed guardian or conservator of a resident.
    (5) Nothing in this rule is intended to expand the scope of 
authority of any resident representative beyond that authority 
specifically authorized by the resident, State or Federal law, or a 
court of competent jurisdiction.
    State Long-Term Care Ombudsman, or Ombudsman, as used in sections 
711 and 712 of the Act, means the individual who heads the Office and 
is responsible to personally, or through representatives of the Office, 
fulfill the functions, responsibilities and duties set forth in 
Sec. Sec.  1327.13 and 1327.19.
    State Long-Term Care Ombudsman program, Ombudsman program, or 
program, as used in sections 711 and 712 of the Act, means the program 
through which the functions and duties of the Office are carried out, 
consisting of the Ombudsman, the Office headed by the Ombudsman, and 
the representatives of the Office.
    Willful interference means actions or inactions taken by an 
individual in an attempt to intentionally prevent, interfere with, or 
attempt to impede the Ombudsman from performing any of the functions or 
responsibilities set forth in Sec.  1327.13, or the Ombudsman or a 
representative of the Office from performing any of the duties set 
forth in Sec.  1327.19.


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, who 
shall carry out all of the functions and responsibilities set forth in 
Sec.  1327.13 and shall carry out, directly and/or through local 
Ombudsman entities, the duties set forth in Sec.  1327.19.
    (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 shall require that the Ombudsman serve on a 
full-time basis. In providing leadership and management of the Office, 
the functions, responsibilities, and duties, as set forth

[[Page 7759]]

in Sec. Sec.  1327.13 and 1327.19 are to constitute the entirety of the 
Ombudsman's work. The State agency or other agency carrying out the 
Office shall not require or request the Ombudsman to be responsible for 
leading, managing or performing the work of non-ombudsman services or 
programs except on a time-limited, intermittent basis.
    (1) This provision does not limit the authority of the Ombudsman 
program to provide ombudsman services to populations other than 
residents of long-term care facilities so long as the appropriations 
under the Act are utilized to serve residents of long-term care 
facilities, as authorized by the Act.
    (2) [Reserved]
    (d) The State agency, and other entity selecting the Ombudsman, if 
applicable, shall ensure that the Ombudsman meets minimum 
qualifications which shall include, but not be limited to, demonstrated 
expertise in:
    (1) Long-term services and supports or other direct services for 
older persons or individuals with disabilities;
    (2) Consumer-oriented public policy advocacy;
    (3) Leadership and program management skills; and
    (4) Negotiation and problem resolution skills.
    (e) Policies and procedures. Where the Ombudsman has the legal 
authority to do so, he or she shall establish policies and procedures, 
in consultation with the State agency, to carry out the Ombudsman 
program in accordance with the Act. Where State law does not provide 
the Ombudsman with legal authority to establish policies and 
procedures, the Ombudsman shall recommend policies and procedures to 
the State agency or other agency in which the Office is 
organizationally located, and such agency shall establish Ombudsman 
program policies and procedures. Where local Ombudsman entities are 
designated within area agencies on aging or other entities, the 
Ombudsman and/or appropriate agency shall develop such policies and 
procedures in consultation with the agencies hosting local Ombudsman 
entities and with representatives of the Office. The policies and 
procedures must address the matters within this subsection.
    (1) Program administration. Policies and procedures regarding 
program administration must include, but not be limited to:
    (i) A requirement that the agency in which the Office is 
organizationally located must not have personnel policies or practices 
which prohibit the Ombudsman from performing the functions and 
responsibilities of the Ombudsman, as set forth in Sec.  1327.13, or 
from adhering to the requirements of section 712 of the Act. Nothing in 
this provision shall prohibit such agency from requiring that the 
Ombudsman, or other employees or volunteers of the Office, adhere to 
the personnel policies and procedures of the entity which are otherwise 
lawful.
    (ii) A requirement that an agency hosting a local Ombudsman entity 
must not have personnel policies or practices which prohibit a 
representative of the Office from performing the duties of the 
Ombudsman program or from adhering to the requirements of section 712 
of the Act. Nothing in this provision shall prohibit such agency from 
requiring that representatives of the Office adhere to the personnel 
policies and procedures of the host agency which are otherwise lawful.
    (iii) A requirement that the Ombudsman shall monitor the 
performance of local Ombudsman entities which the Ombudsman has 
designated to carry out the duties of the Office.
    (iv) A description of the process by which the agencies hosting 
local Ombudsman entities will coordinate with the Ombudsman in the 
employment or appointment of representatives of the Office.
    (v) Standards to assure prompt response to complaints by the Office 
and/or local Ombudsman entities which prioritize abuse, neglect, 
exploitation and time-sensitive complaints and which consider the 
severity of the risk to the resident, the imminence of the threat of 
harm to the resident, and the opportunity for mitigating harm to the 
resident through provision of Ombudsman program services.
    (vi) Procedures that clarify appropriate fiscal responsibilities of 
the local Ombudsman entity, including but not limited to clarifications 
regarding access to programmatic fiscal information by appropriate 
representatives of the Office.
    (2) Procedures for access. Policies and procedures regarding timely 
access to facilities, residents, and appropriate records (regardless of 
format and including, upon request, copies of such records) by the 
Ombudsman and representatives of the Office must include, but not be 
limited to:
    (i) Access to enter all long-term care facilities at any time 
during a facility's regular business hours or regular visiting hours, 
and at any other time when access may be required by the circumstances 
to be investigated;
    (ii) Access to all residents to perform the functions and duties 
set forth in Sec. Sec.  1327.13 and 1327.19;
    (iii) Access to the name and contact information of the resident 
representative, if any, where needed to perform the functions and 
duties set forth in Sec. Sec.  1327.13 and 1327.19;
    (iv) Access to review the medical, social and other records 
relating to a resident, if--
    (A) The resident or resident representative communicates informed 
consent to the access and the consent is given in writing or through 
the use of auxiliary aids and services;
    (B) The resident or resident representative communicates informed 
consent orally, visually, or through the use of auxiliary aids and 
services, and such consent is documented contemporaneously by a 
representative of the Office in accordance with such procedures; and
    (C) Access is necessary in order to investigate a complaint, the 
resident representative refuses to consent to the access, a 
representative of the Office has reasonable cause to believe that the 
resident representative is not acting in the best interests of the 
resident, and the representative of the Office obtains the approval of 
the Ombudsman;
    (v) Access to the administrative records, policies, and documents, 
to which the residents have, or the general public has access, of long-
term care facilities;
    (vi) Access of the Ombudsman to, and, upon request, copies of all 
licensing and certification records maintained by the State with 
respect to long-term care facilities; and
    (vii) Reaffirmation that the Health Insurance Portability and 
Accountability Act of 1996 (HIPAA) Privacy Rule, 45 CFR part 160 and 45 
CFR part 164, subparts A and E, does not preclude release by covered 
entities of resident private health information or other resident 
identifying information to the Ombudsman program, including but not 
limited to residents' medical, social, or other records, a list of 
resident names and room numbers, or information collected in the course 
of a State or Federal survey or inspection process.
    (3) Disclosure. Policies and procedures regarding disclosure of 
files, records and other information maintained by the Ombudsman 
program must include, but not be limited to:
    (i) Provision that the files, records, and information maintained 
by the Ombudsman program may be disclosed only at the discretion of the 
Ombudsman or designee of the Ombudsman for such purpose and in 
accordance with the criteria developed

[[Page 7760]]

by the Ombudsman, as required by Sec.  1327.13(e);
    (ii) Prohibition of the disclosure of identifying information of 
any resident with respect to whom the Ombudsman program maintains 
files, records, or information, except as otherwise provided by Sec.  
1327.19(b)(5) through (8), unless:
    (A) The resident or the resident representative communicates 
informed consent to the disclosure and the consent is given in writing 
or through the use of auxiliary aids and services;
    (B) The resident or resident representative communicates informed 
consent orally, visually, or through the use of auxiliary aids and 
services and such consent is documented contemporaneously by a 
representative of the Office in accordance with such procedures; or
    (C) The disclosure is required by court order;
    (iii) Prohibition of the disclosure of identifying information of 
any complainant with respect to whom the Ombudsman program maintains 
files, records, or information, unless:
    (A) The complainant communicates informed consent to the disclosure 
and the consent is given in writing or through the use of auxiliary 
aids and services;
    (B) The complainant communicates informed consent orally, visually, 
or through the use of auxiliary aids and services and such consent is 
documented contemporaneously by a representative of the Office in 
accordance with such procedures; or
    (C) The disclosure is required by court order;
    (iv) Exclusion of the Ombudsman and representatives of the Office 
from abuse reporting requirements, including when such reporting would 
disclose identifying information of a complainant or resident without 
appropriate consent or court order, except as otherwise provided in 
Sec.  1327.19(b)(5) through (8); and
    (v) Adherence to the provisions of paragraph (e)(3) of this 
section, regardless of the source of the request for information or the 
source of funding for the services of the Ombudsman program, 
notwithstanding section 705(a)(6)(c) of the Act.
    (4) Conflicts of interest. Policies and procedures regarding 
conflicts of interest must establish mechanisms to identify and remove 
or remedy conflicts of interest as provided in Sec.  1327.21, 
including:
    (i) Ensuring that no individual, or member of the immediate family 
of an individual, involved in the employment or appointment of the 
Ombudsman is subject to a conflict of interest;
    (ii) Requiring that other agencies in which the Office or local 
Ombudsman entities are organizationally located have policies in place 
to prohibit the employment or appointment of an Ombudsman or 
representatives of the Office with a conflict that cannot be adequately 
removed or remedied;
    (iii) Requiring that the Ombudsman take reasonable steps to refuse, 
suspend or remove designation of an individual who has a conflict of 
interest, or who has a member of the immediate family with a conflict 
of interest, which cannot be adequately removed or remedied;
    (iv) Establishing the methods by which the Office and/or State 
agency will periodically review and identify conflicts of the Ombudsman 
and representatives of the Office; and
    (v) Establishing the actions the Office and/or State agency will 
require the Ombudsman or representatives of the Office to take in order 
to remedy or remove such conflicts.
    (5) Systems advocacy. Policies and procedures related to systems 
advocacy must assure that the Office is required and has sufficient 
authority to carry out its responsibility 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, and to recommend any changes 
in such laws, regulations, and policies as the Office determines to be 
appropriate.
    (i) Such procedures must 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.
    (ii) Nothing in this part shall prohibit the Ombudsman or the State 
agency or other agency in which the Office is organizationally located 
from establishing policies which promote consultation regarding the 
determinations of the Office related to recommended changes in laws, 
regulations, and policies. However, such a policy shall not require a 
right to review or pre-approve positions or communications of the 
Office.
    (6) Designation. Policies and procedures related to designation 
must establish the criteria and process by which the Ombudsman shall 
designate and refuse, suspend or remove designation of local Ombudsman 
entities and representatives of the Office.
    (i) Such criteria should include, but not be limited to, the 
authority to refuse, suspend or remove designation a local Ombudsman 
entity or representative of the Office in situations in which an 
identified conflict of interest cannot be adequately removed or 
remedied as set forth in Sec.  1327.21.
    (ii) [Reserved]
    (7) Grievance process. Policies and procedures related to 
grievances must establish a grievance process for the receipt and 
review of grievances regarding the determinations or actions of the 
Ombudsman and representatives of the Office.
    (i) Such process shall include an opportunity for reconsideration 
of the Ombudsman decision to refuse, suspend, or remove designation of 
a local Ombudsman entity or representative of the Office. 
Notwithstanding the grievance process, the Ombudsman shall make the 
final determination to designate or to refuse, suspend, or remove 
designation of a local Ombudsman entity or representative of the 
Office.
    (ii) [Reserved]
    (8) Determinations of the Office. Policies and procedures related 
to the determinations of the Office must ensure that the Ombudsman, as 
head of the Office, shall be able to independently make determinations 
and establish positions of the Office, without necessarily representing 
the determinations or positions of the State agency or other agency in 
which the Office is organizationally located, regarding:
    (i) Disclosure of information maintained by the Ombudsman program 
within the limitations set forth in section 712(d) of the Act;
    (ii) Recommendations to changes in Federal, State and local laws, 
regulations, policies and actions pertaining to the health, safety, 
welfare, and rights of residents; and
    (iii) Provision of information to public and private agencies, 
legislators, the media, and other persons, regarding the problems and 
concerns of residents and recommendations related to the problems and 
concerns.


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 agency, and, where applicable, any other agency carrying out the 
Ombudsman program, as follows.
    (a) Functions. The Ombudsman shall, personally or through 
representatives of the Office--

[[Page 7761]]

    (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 residents (including 
the welfare and rights of residents with respect to the appointment and 
activities of resident representatives) of--
    (A) Providers, or representatives of providers, of long-term care;
    (B) Public agencies; or
    (C) Health and social service agencies.
    (2) Provide services to protect the health, safety, welfare, and 
rights of the residents;
    (3) Inform residents about means of obtaining services provided by 
the Ombudsman program;
    (4) Ensure that residents have regular and timely access to the 
services provided through the Ombudsman program and that residents and 
complainants receive timely responses from representatives of the 
Office to requests for information and complaints;
    (5) Represent the interests of residents before governmental 
agencies, assure that individual residents have access to, and pursue 
(as the Ombudsman determines as necessary and consistent with resident 
interests) administrative, legal, and other remedies to protect the 
health, safety, welfare, and rights of residents;
    (6) Provide administrative and technical assistance to 
representatives of the Office and agencies hosting local Ombudsman 
entities;
    (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;
    (iv) Provide leadership to statewide systems advocacy efforts of 
the Office on behalf of long-term care facility residents, including 
coordination of systems advocacy efforts carried out by representatives 
of the Office; and
    (v) Provide information to public and private agencies, 
legislators, the media, and other persons, regarding the problems and 
concerns of residents and recommendations related to the problems and 
concerns.
    (vi) Such determinations and positions shall be those of the Office 
and shall not necessarily represent the determinations or positions of 
the State agency or other agency in which the Office is 
organizationally located.
    (vii) In carrying out systems advocacy efforts of the Office on 
behalf of long-term care facility residents and pursuant to the receipt 
of grant funds under the Act, the provision of information, 
recommendations of changes of laws to legislators, and recommendations 
of changes of regulations and policies to government agencies by the 
Ombudsman or representatives of the Office do not constitute lobbying 
activities as defined by 45 CFR part 93.
    (8) Coordinate with and promote the development of citizen 
organizations consistent with the interests of residents; and
    (9) Promote, provide technical support for the development of, and 
provide ongoing support as requested by resident and family councils to 
protect the well-being and rights of residents; and
    (b) The Ombudsman shall be the head of a unified statewide program 
and shall:
    (1) Establish or recommend policies, procedures and standards for 
administration of the Ombudsman program pursuant to Sec.  1327.11(e);
    (2) Require representatives of the Office to fulfill the duties set 
forth in Sec.  1327.19 in accordance with Ombudsman program policies 
and procedures.
    (c) Designation. The Ombudsman shall determine designation, and 
refusal, suspension, or removal of designation, of local Ombudsman 
entities and representatives of the Office pursuant to section 
712(a)(5) of the Act and the policies and procedures set forth in Sec.  
1327.11(e)(6).
    (1) Where an Ombudsman chooses to designate local Ombudsman 
entities, the Ombudsman shall:
    (i) Designate local Ombudsman entities to be organizationally 
located within public or non-profit private entities;
    (ii) Review and approve plans or contracts governing local 
Ombudsman entity operations, including, where applicable, through area 
agency on aging plans, in coordination with the State agency; and
    (iii) Monitor, on a regular basis, the Ombudsman program 
performance of local Ombudsman entities.
    (2) Training requirements. The Ombudsman shall establish procedures 
for training for certification and continuing education of the 
representatives of the Office, 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 residents, 
resident representatives, citizen organizations, long-term care 
providers, and the State agency, that--
    (i) Specify a minimum number of hours of initial training;
    (ii) Specify the content of the training, including training 
relating to Federal, State, and local laws, regulations, and policies, 
with respect to long-term care facilities in the State; investigative 
and resolution techniques; and such other matters as the Office 
determines to be appropriate; and
    (iii) Specify an annual number of hours of in-service training for 
all representatives of the Office;
    (3) Prohibit any representative of the Office from carrying out the 
duties described in Sec.  1327.19 unless the representative--
    (i) Has received the training required under paragraph (c)(2) of 
this section or is performing such duties under supervision of the 
Ombudsman or a designated representative of the Office as part of 
certification training requirements; and
    (ii) Has been approved by the Ombudsman as qualified to carry out 
the activity on behalf of the Office;
    (4) The Ombudsman shall investigate allegations of misconduct by 
representatives of the Office in the performance of Ombudsman program 
duties and, as applicable, coordinate such investigations with the 
State agency in which the Office is organizationally located, agency 
hosting the local Ombudsman entity and/or the local Ombudsman entity.
    (5) Policies, procedures, or practices which the Ombudsman 
determines to be in conflict with the laws, policies, or procedures 
governing the Ombudsman program shall be sufficient grounds for 
refusal, suspension, or removal of designation of the representative of 
the Office and/or the local Ombudsman entity.
    (d) Ombudsman program information. The Ombudsman shall manage the 
files, records, and other information of the Ombudsman program, whether 
in physical, electronic, or other formats, including information 
maintained by representatives of the Office and local Ombudsman 
entities pertaining to the cases and activities of the Ombudsman 
program. Such files, records, and other information are the property of 
the Office. Nothing in this provision shall prohibit a representative 
of the Office or a local Ombudsman entity from

[[Page 7762]]

maintaining such information in accordance with Ombudsman program 
requirements.
    (e) Disclosure. In making determinations regarding the disclosure 
of files, records and other information maintained by the Ombudsman 
program, the Ombudsman shall:
    (1) Have the sole authority to make or delegate determinations 
concerning the disclosure of the files, records, and other information 
maintained by the Ombudsman program. 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;
    (2) Develop and adhere to criteria to guide the Ombudsman's 
discretion in determining whether to disclose the files, records or 
other information of the Office; and
    (3) Develop and adhere to a process for the appropriate disclosure 
of information maintained by the Office, including:
    (i) Classification of at least the following types of files, 
records, and information: medical, social and other 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 Ombudsman program reporting system; and
    (ii) Identification of the appropriate individual designee or 
category of designee, if other than the Ombudsman, authorized to 
determine the disclosure of specific categories of information in 
accordance with the criteria described in paragraph (e) of this 
section.
    (f) Fiscal management. The Ombudsman shall determine the use of the 
fiscal resources appropriated or otherwise available for the operation 
of the Office. Where local Ombudsman entities are designated, the 
Ombudsman shall approve the allocations of Federal and State funds 
provided to such entities, subject to applicable Federal and State laws 
and policies. The Ombudsman shall determine that program budgets and 
expenditures of the Office and local Ombudsman entities are consistent 
with laws, policies and procedures governing the Ombudsman program.
    (g) Annual report. The Ombudsman shall independently 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.
    (1) Such report shall:
    (i) Describe the activities carried out by the Office in the year 
for which the report is prepared;
    (ii) Contain analysis of Ombudsman program data;
    (iii) Describe evaluation of the problems experienced by, and the 
complaints made by or on behalf of, residents;
    (iv) Contain policy, regulatory, and/or legislative recommendations 
for improving quality of the care and life of the residents; protecting 
the health, safety, welfare, and rights of the residents; and resolving 
resident complaints and identified problems or barriers;
    (v) Contain analysis of the success of the Ombudsman program, 
including success in providing services to residents of, assisted 
living, board and care facilities and other similar adult care 
facilities; and
    (vi) Describe barriers that prevent the optimal operation of the 
Ombudsman program.
    (2) The Ombudsman shall make such report available to the public 
and submit it 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.
    (h) Through adoption of memoranda of understanding and other means, 
the Ombudsman shall lead state-level coordination, and support 
appropriate local Ombudsman entity coordination, between the Ombudsman 
program and other entities with responsibilities relevant to the 
health, safety, well-being or rights of residents of long-term care 
facilities including, but not limited to:
    (1) Area agency on aging programs;
    (2) Aging and disability resource centers;
    (3) Adult protective services programs;
    (4) Protection and advocacy systems, as designated by the State, 
and as established under the Developmental Disabilities Assistance and 
Bill of Rights Act of 2000 (42 U.S.C. 15001 et seq.);
    (5) Facility and long-term care provider licensure and 
certification programs;
    (6) The State Medicaid fraud control unit, as defined in section 
1903(q) of the Social Security Act (42 U.S.C. 1396b(q));
    (7) Victim assistance programs;
    (8) State and local law enforcement agencies;
    (9) Courts of competent jurisdiction; and
    (10) The State legal assistance developer and legal assistance 
programs, including those provided under section 306(a)(2)(C) of the 
Act.
    (i) The Ombudsman shall carry out such other activities as the 
Assistant Secretary determines to be appropriate.


Sec.  1327.15  State agency responsibilities related to the Ombudsman 
program.

    (a) In addition to the responsibilities set forth in part 1321 of 
this chapter, the State agency shall ensure that the Ombudsman complies 
with the relevant provisions of the Act and of this rule.
    (b) The State agency shall ensure, through the development of 
policies, procedures, and other means, consistent with Sec.  
1327.11(e)(2), that the Ombudsman program has sufficient authority and 
access to facilities, residents, and information needed to fully 
perform all of the functions, responsibilities, and duties of the 
Office.
    (c) The State agency shall 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.
    (d) The State agency shall provide personnel supervision and 
management for the Ombudsman and representatives of the Office who are 
employees of the State agency. Such management shall include an 
assessment of whether the Office is performing all of its functions 
under the Act.
    (e) The State agency shall provide monitoring, as required by Sec.  
1321.11(b) of this chapter, including but not limited to fiscal 
monitoring, where the Office and/or local Ombudsman entity is 
organizationally located within an agency under contract or other 
arrangement with the State agency. Such monitoring shall include an 
assessment of whether the Ombudsman program is performing all of the 
functions, responsibilities and duties set forth in Sec. Sec.  1327.13 
and 1327.19. The State agency may make reasonable requests of reports, 
including aggregated data regarding Ombudsman program activities, to 
meet the requirements of this provision.
    (f) The State agency shall ensure that any review of files, records 
or other information maintained by the Ombudsman program is consistent 
with the disclosure limitations set forth in Sec. Sec.  1327.11(e)(3) 
and 1327.13(e).
    (g) The State agency shall integrate the goals and objectives of 
the Office into the State plan and coordinate the goals and objectives 
of the Office with those of other programs established

[[Page 7763]]

under Title VII of the Act and other State elder rights, disability 
rights, and elder justice programs, including, but not limited to, 
legal assistance programs provided under section 306(a)(2)(C) of the 
Act, to promote collaborative efforts and diminish duplicative efforts. 
Where applicable, the State agency shall require inclusion of goals and 
objectives of local Ombudsman entities into area plans on aging.
    (h) The State agency shall provide elder rights leadership. In so 
doing, it shall 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 with responsibilities 
relevant to the health, safety, well-being or rights of older adults, 
including residents of long-term care facilities as set forth in Sec.  
1327.13(h).
    (i) Interference, retaliation and reprisals. The State agency 
shall:
    (1) Ensure that it has mechanisms to prohibit and investigate 
allegations of interference, retaliation and reprisals:
    (i) by a long-term care facility, other entity, or individual with 
respect to any resident, employee, or other person for filing a 
complaint with, providing information to, or otherwise cooperating with 
any representative of the Office; or
    (ii) by a long-term care facility, other entity or individual 
against the Ombudsman or representatives of the Office for fulfillment 
of the functions, responsibilities, or duties enumerated at Sec. Sec.  
1327.13 and 1327.19; and
    (2) Provide for appropriate sanctions with respect to interference, 
retaliation and reprisals.
    (j) Legal counsel. (1) The State agency shall ensure that:
    (i) Legal counsel for the Ombudsman program is adequate, available, 
has competencies relevant to the legal needs of the program and of 
residents, and is without conflict of interest (as defined by the State 
ethical standards governing the legal profession), in order to--
    (A) Provide consultation and representation as needed in order for 
the Ombudsman program to protect the health, safety, welfare, and 
rights of residents; and
    (B) Provide consultation and/or representation as needed to assist 
the Ombudsman and representatives of the Office in the performance of 
their official functions, responsibilities, and duties, including, but 
not limited to, complaint resolution and systems advocacy;
    (ii) The Ombudsman and representatives of the Office assist 
residents in seeking administrative, legal, and other appropriate 
remedies. In so doing, the Ombudsman shall coordinate with the legal 
services developer, legal services providers, and victim assistance 
services to promote the availability of legal counsel to residents; and
    (iii) Legal representation, arranged by or with the approval of the 
Ombudsman, is provided to the Ombudsman or 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.
    (2) Such legal counsel may be provided by one or more entities, 
depending on the nature of the competencies and services needed and as 
necessary to avoid conflicts of interest (as defined by the State 
ethical standards governing the legal profession). However, at a 
minimum, the Office shall have access to an attorney knowledgeable 
about the Federal and State laws protecting the rights of residents and 
governing long-term care facilities.
    (3) Legal representation of the Ombudsman program by the Ombudsman 
or representative of the Office who is a licensed attorney shall not by 
itself constitute sufficiently adequate legal counsel.
    (4) The communications between the Ombudsman and legal counsel are 
subject to attorney-client privilege.
    (k) The State agency shall require the Office to:
    (1) Develop and provide final approval of an annual report as set 
forth in section 712(h)(1) of the Act and Sec.  1327.13(g) and as 
otherwise required by the Assistant Secretary.
    (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) Provide such information as the Office determines to be 
necessary to public and private agencies, legislators, the media, and 
other persons, regarding the problems and concerns of individuals 
residing in long-term care facilities; and recommendations related to 
such problems and concerns; and
    (4) Establish procedures for the training of the representatives of 
the Office, as set forth in Sec.  1327.13(c)(2).
    (5) Coordinate Ombudsman program services with entities with 
responsibilities relevant to the health, safety, welfare, and rights of 
residents of long-term care facilities, as set forth in Sec.  
1327.13(h).


Sec.  1327.17  Responsibilities of agencies hosting local Ombudsman 
entities.

    (a) The agency in which a local Ombudsman entity is 
organizationally located shall be responsible for the personnel 
management, but not the programmatic oversight, of representatives, 
including employee and volunteer representatives, of the Office.
    (b) The agency in which a local Ombudsman entity is 
organizationally located shall not have personnel policies or practices 
which prohibit the representatives of the Office from performing the 
duties, or from adhering to the access, confidentiality and disclosure 
requirements of section 712 of the Act, as implemented through this 
rule and the policies and procedures of the Office.
    (1) Policies, procedures and practices, including personnel 
management practices of the host agency, which the Ombudsman determines 
conflict with the laws or policies governing the Ombudsman program 
shall be sufficient grounds for the refusal, suspension, or removal of 
the designation of local Ombudsman entity by the Ombudsman.
    (2) Nothing in this provision shall prohibit the host agency from 
requiring that the representatives of the Office adhere to the 
personnel policies and procedures of the agency which are otherwise 
lawful.


Sec.  1327.19  Duties of the representatives of the Office.

    In carrying out the duties of the Office, the Ombudsman may 
designate an entity as a local Ombudsman entity and may designate an 
employee or volunteer of the local Ombudsman entity as a representative 
of the Office. Representatives of the Office may also be designated 
employees or volunteers within the Office.
    (a) Duties. An individual so designated as a representative of the 
Office shall, in accordance with the policies and procedures 
established by the Office and the State agency:
    (1) 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;
    (2) Provide services to protect the health, safety, welfare, and 
rights of residents;
    (3) Ensure that residents in the service area of the local 
Ombudsman entity have regular and timely access to the services 
provided through the Ombudsman program and that residents

[[Page 7764]]

and complainants receive timely responses to requests for information 
and complaints;
    (4) Represent the interests of residents before government agencies 
and assure that individual residents have access to, and pursue (as the 
representative of the Office determines necessary and consistent with 
resident interest) 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) Promote, provide technical support for the development of, and 
provide ongoing support as requested by 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 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, 
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. The Ombudsman or representative of the 
Office may identify, investigate and resolve a complaint impacting 
multiple residents or all residents of a facility.
    (2) Regardless of the source of the complaint (i.e. the 
complainant), including when the source is the Ombudsman or 
representative of the Office, the Ombudsman or representative of the 
Office must support and maximize resident participation in the process 
of resolving the complaint as follows:
    (i) The Ombudsman or representative of Office shall offer privacy 
to the resident for the purpose of confidentially providing information 
and hearing, investigating and resolving complaints.
    (ii) The Ombudsman or representative of the Office shall personally 
discuss the complaint with the resident (and, if the resident is unable 
to communicate informed consent, the resident's representative) in 
order to:
    (A) Determine the perspective 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 the allegations are to be reported and, if 
so, whether Ombudsman or representative of the Office may disclose 
resident identifying information or other relevant information to the 
facility and/or appropriate agencies. Such report and disclosure shall 
be consistent with paragraph (b)(3) of this section;
    (D) Advise the resident (and resident 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).
    (iii) Where the resident is unable to communicate informed consent, 
and has no resident representative, the Ombudsman or representative of 
the Office shall:
    (A) Take appropriate steps to investigate and work to resolve the 
complaint in order to protect the health, safety, welfare and rights of 
the resident; and
    (B) Determine whether the complaint was resolved to the 
satisfaction of the complainant.
    (iv) In determining whether to rely upon a resident representative 
to communicate or make determinations on behalf of the resident related 
to complaint processing, the Ombudsman or representative of the Office 
shall ascertain the extent of the authority that has been granted to 
the resident representative under court order (in the case of a 
guardian or conservator), by power of attorney or other document by 
which the resident has granted authority to the representative, or 
under other applicable State or Federal law.
    (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.  
1327.11(e)(3).
    (i) Where the goals of a resident or resident representative are 
for regulatory, protective services or law enforcement action, and the 
Ombudsman or representative of the Office determines that the resident 
or resident representative has communicated informed consent to the 
Office, the Office must assist the resident or resident representative 
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) Where the goals of a resident or resident representative can 
be served by disclosing information to a facility representative and/or 
referrals to an entity other than those referenced in paragraph 
(b)(3)(i) of this section, and the Ombudsman or representative of the 
Office determines that the resident or resident representative has 
communicated informed consent to the Ombudsman program, the Ombudsman 
or representative of the Office may assist the resident or resident 
representative in contacting the appropriate facility representative or 
the entity, provide information on how a resident or representative may 
obtain contact information of such facility representatives or 
entities, and/or disclose the information for which the resident has 
provided consent to an appropriate facility representative or entity, 
consistent with Ombudsman program procedures.
    (iii) In order to comply with the wishes of the resident, (or, in 
the case where the resident is unable to communicate informed consent, 
the wishes of the resident representative), the Ombudsman and 
representatives of the Office shall not report suspected abuse, neglect 
or exploitation of a resident when a resident or resident 
representative has not communicated informed consent to such report 
except as set forth in paragraphs (b)(5) through (7) of this section, 
notwithstanding State laws to the contrary.
    (4) For purposes of paragraphs (b)(1) through (3) of this section, 
communication of informed consent may be made in writing, including 
through the use of auxiliary aids and services. Alternatively, 
communication may be made orally or visually, including through the use 
of auxiliary aids and services, and such consent must be documented 
contemporaneously by the Ombudsman or a representative of the Office, 
in

[[Page 7765]]

accordance with the procedures of the Office;
    (5) For purposes of paragraphs (b)(1) paragraph (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 been 
satisfactorily resolved, the Ombudsman or representative of the Office 
may rely on the communication of informed consent and/or perspective 
regarding the resolution of the complaint of a resident representative 
so long as the Ombudsman or representative of the Office has no 
reasonable cause to believe that the resident representative is not 
acting in the best interests of the resident.
    (6) For purposes of paragraphs (b)(1) through (3) of this section, 
the procedures for disclosure, as required by Sec.  1327.11(e)(3), 
shall provide that the Ombudsman or representative of the Office may 
refer the matter and disclose resident-identifying information to the 
appropriate agency or agencies for regulatory oversight; protective 
services; access to administrative, legal, or other remedies; and/or 
law enforcement action in the following circumstances:
    (i) The resident is unable to communicate informed consent to the 
Ombudsman or representative of the Office;
    (ii) The resident has no resident representative;
    (iii) The Ombudsman or representative of the Office has reasonable 
cause to believe that an action, inaction or decision may adversely 
affect the health, safety, welfare, or rights of the resident;
    (iv) The Ombudsman or representative of the Office has no evidence 
indicating that the resident would not wish a referral to be made;
    (v) 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
    (vi) The representative of the Office obtains the approval of the 
Ombudsman or otherwise follows the policies and procedures of the 
Office described in paragraph (b)(9) of this section.
    (7) For purposes of paragraphs (b)(1) through (3) of this section, 
the procedures for disclosure, as required by Sec.  1327.11(e)(3), 
shall provide that, the Ombudsman or representative of the Office may 
refer the matter and disclose resident-identifying information to the 
appropriate agency or agencies for regulatory oversight; protective 
services; access to administrative, legal, or other remedies; and/or 
law enforcement action in the following circumstances:
    (i) The resident is unable to communicate informed consent to the 
Ombudsman or representative of the Office and has no resident 
representative, or the Ombudsman or representative of the Office has 
reasonable cause to believe that the resident representative has taken 
an action, inaction or decision that may adversely affect the health, 
safety, welfare, or rights of the resident;
    (ii) The Ombudsman or representative of the Office has no evidence 
indicating that the resident would not wish a referral to be made;
    (iii) 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
    (iv) The representative of the Ombudsman obtains the approval of 
the Ombudsman.
    (8) The procedures for disclosure, as required by Sec.  
1327.11(e)(3), 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 of the 
Office shall seek communication of informed consent from such resident 
to disclose resident-identifying information to appropriate agencies;
    (i) Where such resident is able to communicate informed consent, or 
has a resident representative available to provide informed consent, 
the Ombudsman or representative of the Office shall follow the 
direction of the resident or resident representative as set forth 
paragraphs (b)(1) through (3) of this section; and
    (ii) Where the resident is unable to communicate informed consent, 
and has no resident 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 shall refer the matter and disclose identifying 
information 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 in the following 
circumstances:
    (A) The Ombudsman or representative of the Office has no evidence 
indicating that the resident would not wish a referral to be made;
    (B) The Ombudsman or representative of the Office has reasonable 
cause to believe that disclosure would be in the best interest of the 
resident; and
    (C) The representative of the Office obtains the approval of the 
Ombudsman or otherwise follows the policies and procedures of the 
Office described in paragraph (b)(9) of this section.
    (iii) In addition, the Ombudsman or representative of the Office, 
following the policies and procedures of the Office described in 
paragraph (b)(9) of this section, 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.
    (9) Prior to disclosing resident-identifying information pursuant 
to paragraph (b)(6) or (8) of this section, a representative of the 
Office must obtain approval by the Ombudsman or, alternatively, follow 
policies and procedures of the Office which provide for such 
disclosure.
    (i) Where the policies and procedures require Ombudsman approval, 
they shall include a time frame in which the Ombudsman is required to 
communicate approval or disapproval in order to assure that the 
representative of the Office has the ability to promptly take actions 
to protect the health, safety, welfare or rights of residents.
    (ii) Where the policies and procedures do not require Ombudsman 
approval prior to disclosure, they shall require that the 
representative of the Office promptly notify the Ombudsman of any 
disclosure of resident-identifying information under the circumstances 
set forth in paragraph (b)(6) or (8) of this section.
    (iii) Disclosure of resident-identifying information under 
paragraph (b)(7) of this section shall require Ombudsman approval.


Sec.  1327.21  Conflicts of interest.

    The State agency and the Ombudsman shall consider both the 
organizational and individual conflicts of interest that may impact the 
effectiveness and credibility of the work of the Office. In so doing, 
both the State agency and the Ombudsman shall be responsible to 
identify actual and potential conflicts and, where a conflict has been 
identified, to 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 and the Ombudsman 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, or requiring that an Ombudsman or 
representative of the Office perform

[[Page 7766]]

conflicting activities, 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 any 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 any ownership, investment or 
employment interest in long-term care facilities;
    (5) Provides long-term care to residents of long-term care 
facilities, 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 for 
residents of long-term care facilities;
    (7) Sets reimbursement rates for long-term care facilities;
    (8) Provides adult protective services;
    (9) Is responsible for eligibility determinations regarding 
Medicaid or other public benefits for residents of long-term care 
facilities;
    (10) Conducts preadmission screening for long-term care facility 
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 and the Ombudsman shall identify and take steps to remove or 
remedy conflicts of interest between the Office and the State agency or 
other agency carrying out the Ombudsman program.
    (1) The Ombudsman shall identify organizational conflicts of 
interest in the Ombudsman program and describe steps taken to remove or 
remedy conflicts within the annual report submitted to the Assistant 
Secretary through the National Ombudsman Reporting System.
    (2) 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.
    (3) 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 nonprofit private organization, 
pursuant to section 712(a)(4) of the Act. The State agency may not 
enter into a contract or other arrangement to carry out the Ombudsman 
program if the other entity, and 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
    (iii) Has any ownership, operational, or investment interest 
(represented by equity, debt, or other financial relationship) in a 
long-term care facility.
    (4) 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 and to avoid 
conflicts of interest in the State agency's oversight of the contract 
or arrangement;
    (ii) Establish a process for periodic review and identification of 
conflicts;
    (iii) Establish criteria for approval of steps taken by the agency 
or organization to remedy or remove conflicts;
    (iv) Require that such agency or organization have a process in 
place to:
    (A) Take reasonable steps to avoid conflicts of interest, and
    (B) Disclose identified conflicts and steps taken to remove or 
remedy conflicts to the State agency for review and approval.
    (5) 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 shall not enter into such contract or 
other arrangement with an agency or organization which is responsible 
for licensing or certifying long-term care facilities in the state or 
is an association (or affiliate of such an association) of long-term 
care facilities.
    (6) Where local Ombudsman entities provide Ombudsman services, the 
Ombudsman shall:
    (i) Prior to designating or renewing designation, take reasonable 
steps to avoid conflicts of interest in any agency which may host a 
local Ombudsman entity.
    (ii) Establish a process for periodic review and identification of 
conflicts of interest with the local Ombudsman entity in any agencies 
hosting a local Ombudsman entity,
    (iii) Require that such agencies disclose identified conflicts of 
interest with the local Ombudsman entity and steps taken to remove or 
remedy conflicts within such agency to the Ombudsman,
    (iv) Establish criteria for approval of steps taken to remedy or 
remove conflicts in such agencies, and
    (v) Establish a process for review of and criteria for approval of 
plans to remove or remedy conflicts with the local Ombudsman entity in 
such agencies.
    (7) Failure of an agency hosting a local Ombudsman entity to 
disclose a conflict to the Office or inability to adequately remove or 
remedy a conflict shall constitute grounds for refusal, suspension or 
removal of designation of the 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 and the Ombudsman 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;
    (ii) Ownership, operational, or investment interest (represented by 
equity, debt, or other financial relationship) in an existing or 
proposed long-term care facility;

[[Page 7767]]

    (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;
    (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 of a long-term care facility in which the Ombudsman or 
representative of the Office provides services (except where there is a 
personal relationship with a resident or resident representative which 
is separate from the individual's role as Ombudsman or representative 
of the Office);
    (vi) Accepting money or any other consideration from anyone other 
than the Office, or an entity approved 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 which the Ombudsman or representative of the Office 
provides services; and
    (viii) Serving residents of a facility in which an immediate family 
member resides.
    (d) Removing or remedying individual conflicts. (1) The State 
agency or Ombudsman shall develop and implement policies and 
procedures, pursuant to Sec.  1327.11(e)(4), to ensure that no 
Ombudsman or representatives of the Office are required or permitted to 
hold positions or perform duties that would constitute a conflict of 
interest as set forth in Sec.  1327.21(c). This rule does not prohibit 
a State agency or Ombudsman from having policies or procedures that 
exceed these requirements.
    (2) When considering the employment or appointment of an individual 
as the Ombudsman or as a representative of the Office, the State agency 
or other employing or appointing entity shall:
    (i) Take reasonable steps to avoid employing or appointing an 
individual who has an unremedied conflict of interest or who has a 
member of the immediate family with an unremedied conflict of interest;
    (ii) Take reasonable steps to avoid assigning an individual to 
perform duties which would constitute an unremedied conflict of 
interest;
    (iii) Establish a process for periodic review and identification of 
conflicts of the Ombudsman and representatives of the Office, and
    (iv) Take steps to remove or remedy conflicts.
    (3) In no circumstance shall the entity, which appoints or employs 
the Ombudsman, appoint or employ an individual as the Ombudsman who:
    (i) Has direct involvement in the licensing or certification of a 
long-term care facility;
    (ii) Has an ownership or investment interest (represented by 
equity, debt, or other financial relationship) in a long-term care 
facility. Divestment within a reasonable 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 twelve months.
    (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.
    (4) In no circumstance shall the State agency, other agency which 
carries out the Office, or an agency hosting a local Ombudsman entity 
appoint or employ an individual, nor shall the Ombudsman designate an 
individual, as a representative of the Office who:
    (i) Has direct involvement in the licensing or certification of a 
long-term care facility;
    (ii) Has an ownership or investment interest (represented by 
equity, debt, or other financial relationship) in a long-term care 
facility. Divestment within a reasonable period may be considered an 
adequate remedy to this conflict;
    (iii) Receives, directly or indirectly, remuneration (in cash or in 
kind) under a compensation arrangement with an owner or operator of a 
long-term care facility; or
    (iv) Is employed by, or participating in the management of, a long-
term care facility.
    (A) An agency which appoints or employs representatives of the 
Office shall make efforts to avoid appointing or employing an 
individual as a representative of the Office who has been employed by 
or participating in the management of a long-term care facility within 
the previous twelve months.
    (B) Where such individual is appointed or employed, the agency 
shall take steps to remedy the conflict.

Subpart B--[Reserved]

[FR Doc. 2015-01914 Filed 2-10-15; 8:45 am]
BILLING CODE 4150-04-P