**State Long-Term Care Ombudsman Provisions**

**In the Older Americas Act, as Amended in 2000**

**By Topic, With Policy Interpretations**

**State Long-Term Care Ombudsman Provisions**

**In the Older Americas Act, as Amended in 2000**

**By Topic, With Policy Interpretations**

**Table of Contents**

**General Title VII Requirements** [3](#GeneralTitleVII)

> Title VII -- Establishment, Authorization of Appropriations,
> Allotments for Vulnerable Elder Rights Protection Activities
> ([5)](#TitleVIIEstab); Organization. ([5)](#organization); Additional
> State Plan Requirements. ([5](#additional-state-plan-requirements)).

**Title VII, Chapter 2 -- Ombudsman Programs** [6](#TitleVIIChapter2)

> Definitions ([6)](#definitions); Establishment and Program Placement
> ([7)](#establishment-and-program-placement); Contracts & Arrangements
> for Operating the Program: Prohibition Against Contracting with
> Licensing/Certification Agency or Association of Facilities
> [(7](#ContractsArrangements)); Full-Time Ombudsman Requirement
> [(8)](#FullTimeOmb); Facilities Covered ([8)](#FacilitiesCovered);
> Program Clients and Functions ([9)](#ProgramClients); Local Ombudsman
> Entities and Representatives ([10)](#LocalOmbudsman); State Ombudsman
> Program Policies and Procedures ([11)](#StateOmbudProgram);
> Confidentiality and Disclosure ([12)](#Confidentiality); Access to
> Facilities and Residents ([13)](#AccesstoFacilities); Access to
> Records ([14)](#AccesstoRecords); Statewide Uniform Reporting System
> and Reports ([15)](#StatewideUniform); Consultation with Area Agencies
> ([16);](#ConsultationwithAA) Conflict-of-Interest
> ([16)](#ConflictofInterest); Legal Counsel ([18)](#LegalCounsel);
> Training ([18)](#Training); Coordination with Protection and Advocacy
> Systems for Individuals with Developmental Disabilities and Mental
> Illnesses and Legal Services ([19)](#CoordinationwithProtection);
> Liability ([19)](#Liability); Noninterference
> ([20)](#Noninterference); Regulations ([20](#regulations)).

**Funding/Fiscal Policies** [20](#FundingFiscal)

> Title III Social Services (III-B) Funds for Ombudsman Activities
> ([20)](#TitleIIISocialSer); Minimum Required Ombudsman Program Funding
> Level for State and Area Agencies on Aging ([21](#MinimumReqOmb));
> Non-Supplantation Provisions ([22)](#NonSupplantation); Allowable Uses
> of Title VII Abuse Prevention and Ombudsman Program Funding
> ([23)](#AllowableUses); Non-Applicability of the Intrastate Funding
> Formula to Title VII Funding ([25)](#NonApplicability); Non-Inclusion
> of Title VII Funds in the Calculation of State Administrative Costs
> ([26)](#NonInclusion); Non-Inclusion of Title VII Funds in the
> Calculation of Funds for Area Plan Administration
> ([27)](#NonInclusionTitleVII); No Title VII Matching Requirement
> ([27)](#NoTitleVII)

**Office of Long-Term Care Ombudsman Programs in the Administration on
Aging** [27](#OfficeofLongTerm)

**The National Long-Term Care Ombudsman Resource Center**
[29](#Generated_Bookmark35)

**Annual Ombudsman Report to Congress and Others**
[[30]{.underline}](#AnnualOmbudReport)

References are to PL 106-501, 42 U.S.C. 3058f. Italics indicate new or
revised provisions in the 2000 Amendments to the Older Americans Act
(OAA).

[]{#GeneralTitleVII .anchor}**General Title VII Requirements**

[]{#TitleVIIEstab .anchor}**[Title VII -- Establishment, Authorization
of Appropriations, Allotments for Vulnerable Elder Rights Protection
Activities]{.smallcaps}**

### Older Americans Act Language

**SUBTITLE A -- STATE PROVISIONS**

**CHAPTER 1 -- GENERAL STATE PROVISIONS**

**Sec. 701**

**SEC. 701. ESTABLISHMENT.**

The Assistant Secretary, acting through the Administration, shall
establish and carry out a program for making allotments to States to pay
for the cost of carrying out vulnerable elder rights protection
activities.

**Sec. 702**

**SEC. 702. AUTHORIZATION OF APPROPRIATIONS.**

\(a\) Ombudsman Program.\--There are authorized to be appropriated to
carry out chapter 2, *such sums as may be necessary for fiscal year
2001, and such sums as may be necessary for subsequent fiscal years*.

\(b\) Prevention of Elder Abuse, Neglect, and Exploitation.\--There are
authorized to be appropriated to carry out chapter 3, *such sums as may
be necessary for fiscal year 2001, and such sums as may be necessary for
subsequent fiscal years*.

\(c\) Legal Assistance Development Program.\--There are authorized to be
appropriated to carry out chapter 4, *such sums as may be necessary for
fiscal year 2001, and such sums as may be necessary for subsequent
fiscal years*.

**Sec. 703**

**SEC. 703. ALLOTMENT.**

\(a\) In General.\--

\(1\) Population.\--In carrying out the program described in section
701, the Assistant Secretary shall initially allot to each State, from
the funds appropriated under section 702 for each fiscal year, an amount
that bears the same ratio to the funds as the population of older
individuals in the State bears to the population of older individuals in
all States.

\(2\) Minimum allotments.\--

\(A\) In general.\--After making the initial allotments described in
paragraph (1), the Assistant Secretary shall adjust the allotments on a
pro rata basis in accordance with subparagraphs (B) and (C).

\(B\) General minimum allotments.\--

\(i\) Minimum allotment for states.\--No State shall be allotted less
than one-half of 1 percent of the funds appropriated under section 702
for the fiscal year for which the determination is made.

\(ii\) Minimum allotment for territories.\--Guam, the United States
Virgin Islands, and the Trust Territory of the Pacific Islands, shall
each be allotted not less than one-fourth of 1 percent of the funds
appropriated under section 702 for the fiscal year for which the
determination is made. American Samoa and the Commonwealth of the
Northern Mariana Islands shall each be allotted not less than
one-sixteenth of 1 percent of the sum appropriated under section 702 for
the fiscal year for which the determination is made.

\(C\) Minimum allotments for ombudsman and elder abuse programs.\--

\(i\) Ombudsman program.\--No State shall be allotted for a fiscal year,
from the funds appropriated under *section 702 and made available to
carry out chapter 2*, less than the amount allotted to the State under
section 304 in fiscal year *2000* to carry out the State Long-Term Care
Ombudsman program under title III.

\(ii\) Elder abuse programs.\--No State shall be allotted for a fiscal
year, from the funds appropriated under *section 702 and made available
to carry out chapter 3*, less than the amount allotted to the State
under section 304 in fiscal year *2000* to carry out programs with
respect to the prevention of elder abuse, neglect, and exploitation
under title III.

\(D\) Definition.\--For the purposes of this paragraph, the term
\`\`State\'\' does not include Guam, American Samoa, the United States
Virgin Islands, the Trust Territory of the Pacific Islands, and the
Commonwealth of the Northern Mariana Islands.

\(b\) Reallotment.\--

\(1\) In general.\--If the Assistant Secretary determines that any
amount allotted to a State for a fiscal year under this section will not
be used by the State for carrying out the purpose for which the
allotment was made, the Assistant Secretary shall make the amount
available to a State that the Assistant Secretary determines will be
able to use the amount for carrying out the purpose.

\(2\) Availability.\--Any amount made available to a State from an
appropriation for a fiscal year in accordance with paragraph (1) shall,
for purposes of this subtitle, be regarded as part of the allotment of
the State (as determined under subsection (a)) for the year, but shall
remain available until the end of the succeeding fiscal year.

\(c\) Withholding.\--If the Assistant Secretary finds that any State has
failed to carry out this title in accordance with the assurances made
and description provided under section 705, the Assistant Secretary
shall withhold the allotment of funds to the State. The Assistant
Secretary shall disburse the funds withheld directly to any public or
nonprofit private institution or organization, agency, or political
subdivision of the State submitting an approved plan containing the
assurances and description.

##### Organization

**Sec. 704**

**SEC. 704. ORGANIZATION.**

In order for a State to be eligible to receive allotments under this
subtitle\--

\(1\) the State shall demonstrate eligibility under section 305;

\(2\) the State agency designated by the State shall demonstrate
compliance with the applicable requirements of section 305; and

\(3\) each area agency on aging designated by the State agency and
participating in such a program shall demonstrate compliance with the
applicable requirements of section 305.

##### Additional State Plan Requirements

**Sec. 705**

**SEC. 705. ADDITIONAL STATE PLAN REQUIREMENTS.**

\(a\) Eligibility.\--In order to be eligible to receive an allotment
under this subtitle, a State shall include in the State plan submitted
under section 307\--

\(1\) an assurance that the State, in carrying out any chapter of this
subtitle for which the State receives funding under this subtitle, will
establish programs in accordance with the requirements of the chapter
and this chapter;

\(2\) an assurance that the State will hold public hearings, and use
other means, to obtain the views of older individuals, area agencies on
aging, recipients of grants under title VI, and other interested persons
and entities regarding programs carried out under this subtitle;

\(3\) an assurance that the State, in consultation with area agencies on
aging, will identify and prioritize statewide activities aimed at
ensuring that older individuals have access to, and assistance in
securing and maintaining, benefits and rights;

\(4\) an assurance that the State will use funds made available under
this subtitle for a chapter in addition to, and will not supplant, any
funds that are expended under any Federal or State law in existence on
the day before the date of the enactment of this subtitle, to carry out
*each of* the vulnerable elder rights protection activities described in
the chapter;

\(5\) an assurance that the State will place no restrictions, other than
the requirements referred to in clauses (i) through (iv) of section
712(a)(5)(C), on the eligibility of entities for designation as local
Ombudsman entities under section 712(a)(5);

\(6\) an assurance that, with respect to programs for the prevention of
elder abuse, neglect, and exploitation under chapter 3\--

\(A\) in carrying out such programs the State agency will conduct a
program of services consistent with relevant State law and coordinated
with existing State adult protective service activities for\--

\(i\) public education to identify and prevent elder abuse;

\(ii\) receipt of reports of elder abuse;

\(iii\) active participation of older individuals participating in
programs under this Act through outreach, conferences, and referral of
such individuals to other social service agencies or sources of
assistance if appropriate and if the individuals to be referred consent;
and

\(iv\) referral of complaints to law enforcement or public protective
service agencies if appropriate;

\(B\) the State will not permit involuntary or coerced participation in
the program of services described in subparagraph (A) by alleged
victims, abusers, or their households; and

\(C\) all information gathered in the course of receiving reports and
making referrals shall remain confidential except\--

\(i\) if all parties to such complaint consent in writing to the release
of such information;

\(ii\) if the release of such information is to a law enforcement
agency, public protective service agency, licensing or certification
agency, ombudsman program, or protection or advocacy system; or

\(iii\) upon court order *;and*

( *7*) a description of the manner in which the State agency will carry
out this title in accordance with the assurances described in
*paragraphs (1) through (6)*.

\(b\) Privilege.\--Neither a State, nor a State agency, may require any
provider of legal assistance under this subtitle to reveal any
information that is protected by the attorney-client privilege.

[]{#TitleVIIChapter2 .anchor}**Title VII, Chapter 2 -- Ombudsman
Programs**

#### [Definitions]{.smallcaps}

**[Older Americans Act Language]{.underline}**

**Sec. 711**

**SEC. 711. DEFINITIONS.**

As used in this chapter:

\(1\) Office.\--The term \`\`Office\'\' means the office established in
section 712(a)(1)(A).

\(2\) Ombudsman.\--The term \`\`Ombudsman\'\' means the individual
described in section 712(a)(2).

\(3\) Local ombudsman entity.\--The term \`\`local Ombudsman entity\'\'
means an entity designated under section 712(a)(5)(A) to carry out the
duties described in section 712(a)(5)(B) with respect to a planning and
service area or other substate area.

\(4\) Program.\--The term \`\`program\'\' means the State Long-Term Care
Ombudsman program established in section 712(a)(1)(B).

\(5\) Representative.\--The term \`\`representative\'\' includes an
employee or volunteer who represents an entity designated under section
712(a)(5)(A) and who is individually designated by the Ombudsman.

\(6\) Resident.\--The term \`\`resident\'\' means an older individual
who resides in a long-term care facility.

***Note: All provisions which follow are in Sec. 712**, **unless
otherwise indicated**.*

## [Establishment and Program Placement]{.smallcaps}

# Older Americans Act Language

**Sec. 712. Establishment.**\--

(a)(1) In general.\-- In order to be eligible to receive an allotment
under section 703 from funds appropriated under section 702(a), a State
agency shall, in accordance with this section\--

\(A\) establish and operate an Office of the State Long-Term Care
Ombudsman; and

\(B\) carry out through the Office a State Long-Term Care Ombudsman
program.

[]{#ContractsArrangements .anchor}**[Contracts and Arrangements for
Operating the Program: Prohibition Against Contracting with
Licensing/Certification Agency or Association of
Facilities]{.smallcaps}**

# Older Americans Act Language

(a)(4)(A) In general.\--Except as provided in subparagraph (B), the
state agency may establish and operate the Office, and carry out the
program, directly, or by contract or other arrangement with any public
agency or nonprofit private organization.

\(B\) Licensing and certification organizations; associations.\--The
State agency may not enter into the contract or other arrangement
described in subparagraph (A) with\--

\(i\) an agency or organization that is responsible for licensing or
certifying long-term care services in the State; or

\(ii\) an association (or an affiliate of such an association) of
long-term care facilities, or of any other residential facilities for
older individuals.

[]{#FullTimeOmb .anchor}**[Full-Time Ombudsman
Requirement]{.smallcaps}**

# Older Americans Act Language

(a)(2) Ombudsman.\--The Office shall be headed by an individual, to be
known as the State Long-Term Care Ombudsman, who shall be selected from
among individuals with expertise and experience in the fields of
long-term care and advocacy.

\(3\) Functions.\--The Ombudsman shall serve on a full-time basis\....

# AoA Policy Interpretation

"Full-time basis" means the position is full-time, and the individual
who serves in the position has no duties other than those directly
related to the Long-Term Care Ombudsman Program, as defined in Section
712 of the Act.

[]{#FacilitiesCovered .anchor}**[Facilities Covered]{.smallcaps}**

# Older Americans Act Language

Sec.102 (32) 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. 1395i093(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 similar to a facility or institution
described in subparagraphs (A) through (C).

Sec. 102 (18) The term "board and care facility" means an institution
regulated by a State persuant to section 1616(e) of the Social Security
Act (42U.S.C. 1382e(e)).

# AoA Policy Interpretation

Assisted living facilities are included under Sec. 102 (32)(D). Nursing
homes and adult care homes similar to board and care homes where all
residents are private-pay are included. Rationale: the Older Americans
Act is for all older people in the U.S. age 60 plus and above, and the
definition of "resident" in Section 711(6) is "an older individual who
resides in a long-term care facility." (See policy under program
clients, below.)

[]{#ProgramClients .anchor}**[Program Clients and
Functions]{.smallcaps}**

# Older Americans Act Language

(a)(3) Functions.-- The Ombudsman shall\...personally or through
representatives of the Office\--

\(A\) identify, investigate, and resolve complaints that\--

\(i\) are made by, or on behalf of, residents;

[**AoA Policy Interpretation Regarding Clients**]{.underline}

The primary role of the Ombudsman is to advocate for the rights and
interests of residents of long-term care facilities.

The Ombudsman may serve residents in facilities which are all private
pay. The Older Americans Act is for all older people in the U.S. age 60
and above, and the definition of "resident" is "an older individual who
resides in a long-term care facility." (OAA Section 711(6))

Long-standing AoA policy is that the Ombudsman and ombudsman
representatives may serve disabled individuals under the age of 60 who
are living in long-term care facilities, if such service does not weaken
or decrease service to older individuals covered under the Act.

**[Program Functions (continued)]{.smallcaps}**

# Older Americans Act Language

\(A\) identify, investigate, and resolve complaints that\--

\(i\) are made by, or on behalf of, residents

and (ii) relate to action, inaction, or decisions, that may adversely
affect the health, safety, welfare, or rights of the residents
(including the welfare and rights of the residents with respect to the
appointment and activities of guardians and representative payees),
of\--

\(I\) providers, or representatives of providers, of long-term care
services;

\(II\) public agencies; or

\(III\) health and social service agencies;

\(B\) provide services to assist the residents in protecting the health,
safety, welfare, and rights of the residents;

\(C\) inform the residents about means of obtaining services provided by
providers or agencies described in subparagraph (A)(ii) or services
described in subparagraph (B);

\(D\) ensure that the residents have regular and timely access to the
services provided through the Office and that the residents and
complainants receive timely responses from representatives of the Office
to complaints;

\(E\) represent the interests of the residents before governmental
agencies and seek administrative, legal, and other remedies to protect
the health, safety, welfare, and rights of the residents;

\(F\) provide administrative and technical assistance to entities
designated under paragraph (5) to assist the entities in participating
in the program;

(G)(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;

(H)(i) provide for training representatives of the Office;

\(ii\) promote the development of citizen organizations, to participate
in the program; and

\(iii\) provide technical support for the development of resident and
family councils to protect the well-being and rights of residents; and

\(I\) carry out such other activities as the Assistant Secretary
determines to be appropriate.

[]{#LocalOmbudsman .anchor}**[Local Ombudsman Entities and
Representatives]{.smallcaps}**

# Older Americans Act Language

(a)(5) Designation of local ombudsman entities and representatives.\--

\(A\) Designation.\--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 to represent the entity.

# Policy Interpretation on State Ombudsman Authority 

The State Ombudsman has the authority to designate local Ombudsman
entities and ombudsman representatives to participate in the statewide
Ombudsman Program and to revoke designation, if necessary.

# Older Americans Language

\(B\) Duties.\--An individual so designated shall, in accordance with
the policies and procedures established by the Office and the State
agency\--

\(i\) provide services to protect the health, safety, welfare and rights
of residents;

\(ii\) ensure that residents in the service area of the entity have
regular, timely access to representatives of the program and timely
responses to complaints and requests for assistance;

\(iii\) 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;

\(iv\) represent the interests of residents before government agencies
and seek administrative, legal, and other remedies to protect the
health, safety, welfare, and rights of the residents;

(v)(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;

\(vi\) support the development of resident and family councils; and

\(vii\) carry out other activities that the Ombudsman determines to be
appropriate.

\(C\) Eligibility for designation.\--Entities eligible to be designated
as local Ombudsman entities, and individuals eligible to be designated
as representatives of such entities, shall\--

\(i\) have demonstrated capability to carry out the responsibilities of
the Office;

\(ii\) be free of conflicts of interest *and not stand to gain
financially through an action or potential action brought on behalf of
individuals the Ombudsman serves*;

# Policy Interpretation of Local Ombudsman Conflict-of-Interest

Local Ombudsman entities and representatives must have no
conflict-of-interest, as defined in the conflict-of-interest section of
the Act.

# Older Americans Act Language

\(iii\) in the case of the entities, be public or nonprofit private
entities; and

\(iv\) meet such additional requirements as the Ombudsman may specify.

[]{#StateOmbudProgram .anchor}**[State Ombudsman Program Policies and
Procedures]{.smallcaps}**

# Older Americans Act Language

(a)(5)(D) Policies and procedures.\--

\(i\) In general.\--The State agency shall establish, in accordance with
the Office, policies and procedures for monitoring local Ombudsman
entities designated to carry out the duties of the Office.

\(ii\) Policies.\--In a case in which the entities are grantees, or the
representatives are employees, of area agencies on aging, the State
agency shall develop the policies in consultation with the area agencies
on aging. The policies shall provide for participation and comment by
the agencies and for resolution of concerns with respect to case
activity.

[]{#Confidentiality .anchor}[**Confidentiality and
Disclosure**]{.smallcaps}

# 

# Older Americans Act Language

(a)(5)(D)(iii) Confidentiality and disclosure.\--The State agency shall
develop the policies and procedures in accordance with all provisions of
this subtitle regarding confidentiality and conflict of interest.

(Skip to 712(d)(1) for disclosure.)

(d)(1) In general.\--The State agency shall establish procedures for the
disclosure by the Ombudsman or local Ombudsman entities of files
maintained by the program, including records described in subsection
(b)(1) or (c).

\(2\) Identity of complainant or resident.\--The procedures described in
paragraph (1) shall\--

\(A\) provide that, subject to subparagraph (B), the files and records
described in paragraph (1) may be disclosed only at the discretion of
the Ombudsman (or the person designated by the Ombudsman to disclose the
files and records); and

\(B\) prohibit the disclosure of the identity of any complainant or
resident with respect to whom the Office maintains such files or records
unless\--

\(i\) the complainant or resident, or the legal representative of the
complainant or resident, consents to the disclosure and the consent is
given in writing;

(ii)(I) the complainant or resident gives consent orally; and

\(II\) the consent is documented contemporaneously in a writing made by
a representative of the Office in accordance with such requirements as
the State agency shall establish; or

\(iii\) the disclosure is required by court order.

Policy Interpretation on Mandatory State Abuse Reporting Laws and
Ombudsman Disclosure

Representatives of the Ombudsman Program may not be required to disclose
the identity of a complainant or resident except under conditions
outlined in section 712(d) of the Act. Federal law supersedes states law
in instances where state law mandates that ombudsmen report all
incidents of abuse. In such instances, ombudsmen must follow the
disclosure procedure outlined in Section 712 (d).

# Policy Interpretation on Freedom of Information Act Requests

Ombudsman records are not subject to the federal Freedom of Information
Act (FOIA), inasmuch as the FOIA applies only to federal agency records,
and records maintained by a state ombudsman are not federal records.
Regarding state FOIA statutes, which many legislatures have enacted for
purposes of disclosure of state records, the requirements and exemptions
are similar but not necessarily identical to those in the federal FOIA.
If disclosure were requested pursuant to such a state statute, it is
likely but not certain that there would be an exemption for records,
such as ombudsman records, that are made confidential by statute. If
there were no such exemption in the state FOIA statute and a conflict
between the state statute and the OAA could not be avoided, then the
federal position would be that the OAA prevails under the Supremacy
Clause of the U.S. Constitution*.*

[]{#AccesstoFacilities .anchor}**[Access to Facilities and
Residents]{.smallcaps}**

# Older Americans Act Language

\(b\) Procedures for Access.\--

\(1\) In general.\--The State shall ensure that representatives of the
Office shall have\--

\(A\) access to long-term care facilities and residents;\...

\(2\) Procedures.\--The State agency shall establish procedures to
ensure the access described in paragraph (1).

[**OBRA Statutory Requirement Regarding Ombudsman Access to Facilities
and Residents**]{.underline}

The Omnibus Budget and Reconciliation Act of 1987 (OBRA '87), known as
the Nursing Home Reform Act, amended Sections 1819 (Medicare) and 1919
(Medicaid) (c)(3)(A) of the Social Security Act as follows: "(3) ACCESS
AND VISITATION RIGHTS.- A nursing facility must-(A) permit immediate
access to any resident by any representative of the Secretary, by any
representative of the State, by an ombudsman\...or by the resident's
individual physician." Since board and care and similar facilities (such
as assisted living facilities) are not covered under OBRA and are
regulated entirely by state government, states must ensure ombudsman
access to these facilities through state statute, regulation, executive
order or policy.

[]{#AccesstoRecords .anchor}**[Access to Records]{.smallcaps}**

# Older Americans Act Language

\(b\) Procedures for Access.\--

\(1\) In general.\--The State shall ensure that representatives of the
Office shall have\--

(B)(i) appropriate access to review the medical and social records of a
resident, if\--

\(I\) the representative has the permission of the resident, or the
legal representative of the resident; or

\(II\) the resident is unable to consent to the review and has no legal
representative; or

\(ii\) access to the records as is necessary to investigate a complaint
if\--

\(I\) a legal guardian of the resident refuses to give the permission;

\(II\) a representative of the Office has reasonable cause to believe
that the guardian is not acting in the best interests of the resident;
and

\(III\) the representative obtains the approval of the Ombudsman;

\(C\) access to the administrative records, policies, and documents, to
which the residents have, or the general public has access, of long-term
care facilities; and

\(D\) access to and, on request, copies of all licensing and
certification records maintained by the State with respect to long-term
care facilities.

\(2\) Procedures.\--The State agency shall establish procedures to
ensure the access described in paragraph (1).

[**OBRA Statutory Requirement Regarding Ombudsman Access to
Records**]{.underline}

The Omnibus Budget and Reconciliation Act of 1987 (OBRA '87), known as
the Nursing Home Reform Act, amended Sections 1819 (Medicare) and 1919
(Medicaid) (c)(3)(E) of the Social Security Act as follows: "ACCESS AND
VISITATION RIGHTS.- A nursing facility must - (E) permit representatives
of the state ombudsman\...with the permission of the resident (or the
resident's legal representative) and consistent with State law, to
examine a resident's clinical records."

**Note:** Since board and care and similar facilities (such as assisted
living facilities) are not covered under OBRA and are regulated entirely
by state government, to be in compliance with the Older Americans Act,
states must ensure ombudsman access to resident and other records for
these facilities through state statute, regulation, executive order or
policy.

[]{#StatewideUniform .anchor}**[Statewide Uniform Reporting System and
Reports]{.smallcaps}**

# Older Americans Act Language

\(c\) Reporting System.\--The State agency shall establish a statewide
uniform reporting system to\--

\(1\) collect and analyze data relating to complaints and conditions in
long-term care facilities and to residents for the purpose of
identifying and resolving significant problems; and

\(2\) submit the data, on a regular basis, to\--

\(A\) the agency of the State responsible for licensing or certifying
long-term care facilities in the State;

\(B\) other State and Federal entities that the Ombudsman determines to
be appropriate;

\(C\) the Commissioner; and

\(D\) the National Ombudsman Resource Center established in section
202(a)(21).

\(h\) Administration.\--The State agency shall require the Office to\--

\(1\) prepare an annual report\--

\(A\) describing the activities carried out by the Office in the year
for which the report is prepared;

\(B\) containing and analyzing the data collected under subsection (c);

\(C\) evaluating the problems experienced by, and the complaints made by
or on behalf of, residents;

\(D\) containing recommendations for\--

\(i\) improving quality of the care and life of the residents; and (ii)
protecting the health, safety, welfare, and rights of the residents;

(E)(i) analyzing the success of the program including success in
providing services to residents of board and care facilities and other
similar adult care facilities; and

\(ii\) identifying barriers that prevent the optimal operation of the
program; and

\(F\) providing policy, regulatory, and legislative recommendations to
solve identified problems, to resolve the complaints, to improve the
quality of care and life of residents, to protect the health, safety,
welfare, and rights of residents, and to remove the barriers;

\(2\) analyze, comment on, and monitor the development and
implementation of Federal, State, and local laws, regulations, and other
government policies and actions that pertain to long-term care
facilities and services, and to the health, safety, welfare, and rights
of residents, in the State, and recommend any changes in such laws,
regulations, and policies as the Office determines to be appropriate;

(3)(A) provide such information as the Office determines to be necessary
to public and private agencies, legislators, and other persons,
regarding\--

\(i\) the problems and concerns of older individuals residing in
long-term care facilities; and

\(ii\) recommendations related to the problems and concerns; and

\(B\) make available to the public, and submit to the Commissioner, the
chief executive officer of the State, the State legislature, the State
agency responsible for licensing or certifying long-term care
facilities, and other appropriate governmental entities, each report
prepared under paragraph (1);

(The AoA reporting requirement is in section 207(b) of the OAA.)

[**Background and AoA Policy Regarding Ombudsman
Reporting**]{.underline}

States must submit annual ombudsman reports to AoA by a specified date
early each year for the previous fiscal year, Oct. 1 through Sept. 30.
To ensure compatibility of data, AoA and state ombudsmen jointly
developed a standard reporting system, the National Ombudsman Reporting
System (NORS), which was initiated in 1995-96. States must submit their
reports on a diskette or by e-mail on a standard computer format
entitled the National Ombudsman Reporting Data Input Application
(NORDIA). AoA issues instructions each year regarding submission of the
report. States have developed and use a variety of different software
systems to collect case and complaint data and other information.
Typically, these systems involve data entry at the local ombudsman
program level and compilation at the state level. The most useful
systems are relational, in that they can relate one set of data to
another set of data.

[]{#ConsultationwithAA .anchor}**[Consultation with Area
Agencies]{.smallcaps}**

# Older Americans Act Language

\(e\) Consultation.\--In planning and operating the program, the State
agency shall consider the views of area agencies on aging, older
individuals, and providers of long-term care.

[]{#ConflictofInterest .anchor}**[Conflict-of-Interest]{.smallcaps}**

# Older Americans Act Language

\(f\) Conflict of Interest.\--The State agency shall\--

\(1\) ensure that no individual, or member of the immediate family of an
individual, involved in the designation of the Ombudsman (whether by
appointment or otherwise) or the designation of an entity designated
under subsection (a)(5), is subject to a conflict of interest;

\(2\) ensure that no officer or employee of the Office, representative
of a local Ombudsman entity, or member of the immediate family of the
officer, employee, or representative, is subject to a conflict of
interest;

\(3\) ensure that the Ombudsman\--

\(A\) does not have a direct involvement in the licensing or
certification of a long-term care facility or of a provider of a
long-term care service;

\(B\) does not have an ownership or investment interest (represented by
equity, debt, or other financial relationship) in a long-term care
facility or a long-term care service;

\(C\) is not employed by, or participating in the management of, a
long-term care facility; and

\(D\) does not receive, or have 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; and

\(4\) establish, and specify in writing, mechanisms to identify and
remove conflicts of interest referred to in paragraphs (1) and (2), and
to identify and eliminate the relationships described in subparagraphs
(A) through (D) of paragraph (3), including such mechanisms as\--

\(A\) the methods by which the State agency will examine individuals,
and immediate family members, to identify the conflicts; and

\(B\) the actions that the State agency will require the individuals and
such family members to take to remove such conflicts.

[**AoA Policies Regarding Conflict-of-Interest**]{.underline}

"Immediate family" means spouse, parents, children and siblings.

It would be a conflict of interest for an official or employee of any
agency at either the state or local level which directly administers the
licensing and certification of long-term care facilities or owns or
operates such facilities, or provides services to residents of such
facilities, to designate or remove from office the ombudsman or
ombudsman representatives.

Employment by a long-term care facility or otherwise receiving, directly
or indirectly, remuneration from an owner or operator of a long-term
care facility is a clear conflict of interest for any representative of
the ombudsman program. Individuals employed by a long-term care
facility, an association of facilities, a business or agency which
provides services in long-term care facilities or to residents or an
agency which licenses or certifies facilities or facility administrators
must not be permitted to serve the statewide ombudsman program in any
decision-making, policy-setting or program operation capacity. This
applies to both paid and volunteer ombudsman staff and ombudsman program
boards. The ombudsman program may, of course, seek both information and
advice from such individuals.

It is incumbent upon the state agency on aging and the established
office of the ombudsman in a state to ensure that, in the conduct of all
aspects of the statewide long-term care ombudsman program, the integrity
of the work of the ombudsman and ombudsman representatives is
maintained. There must be no inappropriate or improper influence from
any individual or entity, regardless of the source, which will impact on
the objectivity of the investigation or outcome of complaints or the
ombudsman's work to resolve major issues related to the rights, quality
of care and quality of life of the residents of long-term care
facilities.

[]{#LegalCounsel .anchor}**[Legal Counsel]{.smallcaps}**

# Older Americans Act Language

\(g\) Legal Counsel.\--The State agency shall ensure that\--

(1)(A) adequate legal counsel is available, and is able, without
conflict of interest, to\--

\(i\) provide advice and consultation needed to protect the health,
safety, welfare, and rights of residents; and

\(ii\) assist the Ombudsman and representatives of the Office in the
performance of the official duties of the Ombudsman and representatives;
and

\(B\) legal representation is provided to any representative of the
Office against whom suit or other legal action is brought or threatened
to be brought in connection with the performance of the official duties
of the Ombudsman or such a representative; and

\(2\) the Office pursues administrative, legal, and other appropriate
remedies on behalf of residents.

[]{#Training .anchor}**[Training]{.smallcaps}**

# Older Americans Act Language

\(h\) Administration.\--The State agency shall require the Office to\--

(4)(A) *strengthen and update* procedures for the training of the
representatives of the Office, including unpaid volunteers, based on
model standards established by the Director of the Office of Long-Term
Care Ombudsman Programs, in consultation with representatives of citizen
groups, long-term care providers, and the Office, that\--

\(A\) specify a minimum number of hours of initial training;

\(B\) specify the content of the training, including training relating
to\--

\(i\) Federal, State, and local laws, regulations, and policies, with
respect to long-term care facilities in the State;

\(ii\) investigative techniques; and

\(iii\) such other matters as the State determines to be appropriate;
and

\(C\) specify an annual number of hours of in-service training for all
designated representatives; and

\(5\) prohibit any representative of the Office (other than the
Ombudsman) from carrying out any activity described in subparagraphs (A)
through (G) of subsection (a)(3) unless the representative\--

\(A\) has received the training required under paragraph (4); and

\(B\) has been approved by the Ombudsman as qualified to carry out the
activity on behalf of the Office;

[]{#CoordinationwithProtection .anchor}**[Coordination with Protection
and Advocacy Systems for Individuals with Developmental Disabilities and
Mental Illnesses and Legal Services]{.smallcaps}**

# Older Americans Act Language

(h)(6) coordinate ombudsman services with the protection and advocacy
systems for individuals with developmental disabilities and mental
illnesses established under\--

\(A\) part A of the Developmental Disabilities Assistance and Bill of
Rights Act (42 U.S.C. 6001 et seq.); and

\(B\) the Protection and Advocacy for Mentally Ill Individuals Act of
1986 (42 U.S.C. 10801 et seq.);

\(7\) coordinate, to the greatest extent possible, ombudsman services
with legal assistance provided under section 306(a)(2)(C), through
adoption of memoranda of understanding and other means;

\(8\) *coordinate services with State and local law enforcement aencies
and courts of competent jurisdiction and*

\(9\) permit any local Ombudsman entity to carry out the
responsibilities described in paragraph (1), (2), (3), (6), or (7).

[]{#Liability .anchor}**[Liability]{.smallcaps}**

# Older Americans Act Language

\(i\) Liability.\--The State shall ensure that no representative of the
Office will be liable under State law for the good faith performance of
official duties.

[]{#Noninterference .anchor}**[Noninterference]{.smallcaps}**

# Older Americans Act Language

\(j\) Noninterference.\--The State shall\--

\(1\) ensure that willful interference with representatives of the
Office in the performance of the official duties of the representatives
(as defined by the Commissioner) shall be unlawful;

\(2\) 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; and

\(3\) provide for appropriate sanctions with respect to the
interference, retaliation, and reprisals.

## [Regulations]{.smallcaps}

# Older Americans Act Language

**Sec. 713**

**SEC. 713. REGULATIONS.**

The Assistant Secretary shall issue and periodically update regulations
respecting\--

\(1\) conflicts of interest by persons described in paragraphs (1) and
(2) of section 712(f); and

\(2\) the relationships described in subparagraphs (A) through (D) of
section 712(f)(3).

[]{#FundingFiscal .anchor}**Funding/Fiscal Policies**

(Fiscal requirements for the Ombudsman Program are in Title III and
Title VII. The source of much of the funding policy provided below is
AoA PI 94-2, issued April 5, 1994.)

[]{#TitleIIISocialSer .anchor}**[Title III Social Services (III-B) Funds
for Ombudsman Activities]{.smallcaps}**

# Older Americans Act Language

Section 304(d)(1) From any State\'s allotment, after the application of
section 308(b), under this section for any fiscal year\--

\(A\) such amount as the State agency determines, but not more than 10
percent thereof, shall be available for paying such percentage as the
agency determines, but not more than 75 percent, of the cost of
administration of area plans;

**(B) such amount (excluding any amount attributable to funds
appropriated under section 303(a)(3)) as the State agency determines to
be adequate for conducting an effective ombudsman program under section
307(a)(9) shall be available for conducting such program**; (emphasis
added)

[**Background and Policy Interpretation**]{.underline}

This is the statutory provision under which states provide most of the
Ombudsman Program funding. It means that of the funds Congress
appropriates each year to the states for social services under the Older
Americans Act, after state and area agency administration funding is
provided, states may use "such amount as the State agency determines to
be adequate for conducting an effective Ombudsman Program" before this
money is distributed to the area agencies through the Title III
intrastate funding formula. States may use these funds for their
statewide ombudsman activities at the state or local level. There is no
separate match for ombudsman funds taken "off the top." Area agencies
may also use Title III funds which they receive through the intrastate
funding formula for ombudsman activities.

[]{#MinimumReqOmb .anchor}**[Minimum Required Ombudsman Program Funding
Level for State and Area Agencies on Aging]{.smallcaps}**

**For States**

# Older Americans Act Language -- State Plans

*Sec. 307(a)(9) The plan shall provide assurances that the State agency
will carry out, through the Office of the State Long-Term Care
Ombudsman, a State Long-Term Care Ombudsman program in accordance with
section 712 and this title, and will expend for such purposes an amount
that is not less than an amount expended by the State agency with funds
received under this title for fiscal year 2000, and an amount that is
not less than the amount expended by the State agency with funds
received under title VII for fiscal year 2000.* (Replaced Sec.
307(a)(21))

**For Area Agencies**

# Older Americans Act Language -- Area Agencies

*Sec. 306(a)(9) (The area plan must) provide assurances that the area
agency, in carrying out the State Long-Term Care Ombudsman Program under
section 307(a)(9), will expend not less than the total amount of funds
appropriated under this Act and expended by the agency in fiscal year
2000 in carrying out such a program under this title.* (Replaced Section
306(a)(11))

[]{#NonSupplantation .anchor}**[Non-Supplantation
Provisions]{.smallcaps}**

# Older Americans Act Language

*Section 321(d) Funds made available under this part shall supplement,
and not supplant, any federal, State, or local funds expended by a State
or unit of general purpose local government (including an area agency on
aging) to provide services described in subsection (a).*

705(a)(4) In order to be eligible to receive an allotment under this
subtitle, a State shall include in the State plan submitted under
section 307B an assurance that the State will use funds made available
under this subtitle in addition to, and will not supplant, any funds
that are expended under any Federal or State law in existence on the day
before the date of enactment of this subtitle, to carry out *each of*
the vulnerable elder rights protections activities described in this
chapter.

# Discussion of Minimum Funding and Non-Supplantation Provisions

The 2000 amendments to the OAA retained and updated the state and area
agency ombudsman minimum funding requirements and the Title VII
non-supplantation provision and added a new non-supplantation provision
to Title III.

The Senate Committee report elaborated on that body\'s intent relative
to the funding provisions for ombudsman programs:

> It is the committee\'s intent for a State to expend in subsequent
> years, at a minimum, the amount spent by the State on its Long Term
> Care Ombudsman Program in FY 2000, in addition to any increase in
> funding provided for ombudsman activities in each fiscal year under
> Title VII. (The Senate Committee on Health, Education, Labor and
> Pensions \[HELP\] report \"Older Americans Act Amendments of 1999,\"
> Senate Committee Report 106-399, page 5)

Taken together, the minimum funding and non-supplantation requirements
mean that States must expend on their statewide ombudsman programs no
less than they expended in Title III funds (federal and 15% non-federal
match) for FY 2000, plus provide increases in funding when Title VII
long-term care ombudsman program appropriations increase. This amount
must be expended annually on ombudsman services to residents of long
term care facilities, as defined in Sections 102(18) and (32),
307(a)(12) and 711(6) of the Act. All of the Title VII ombudsman funding
appropriated by Congress and allotted to a State for a specific year
must be expended on direct costs of the Ombudsman Program.

Area agencies must expend on activities of the Ombudsman Program, as
defined in Section 712 of the Act, not less than the total amount of
Title III funds received under Section 304(d)(1)(D) and expended by the
area agency in carrying out the Ombudsman Program under Title III in FY
2000.

State or unit of general purpose local government (including area
agencies on aging) may not use ombudsman Title VII funds to supplant,
replace, or in substitution for, any other federal, State or local
funding expended pursuant to federal, State or local funding laws that
were in effect on or before 11/12/00, which was one day before the date
of the enactment of Public Law 106-510.

[]{#AllowableUses .anchor}**[Allowable Uses of Title VII Abuse
Prevention and Ombudsman Program Funding]{.smallcaps}**

States may use any portion of their Title VII abuse prevention allotment
to fund specific, identifiable activities conducted by any public or
private non-profit program or agency, including adult protective
services and ombudsman programs, which directly correspond to the abuse
prevention activities outlined in Section 721(b) of the OAA.

States may not provide any of their Title VII abuse prevention allotment
to adult protective services agencies to conduct activities or provide
services not authorized in Section 721(b).

Use of Title VII funding for involuntary services to, or coerced
participation in, Title VII-funded programs by alleged victims, abusers
or their households, is strictly prohibited.

Use of any of the Title VII ombudsman allotment to fund activities which
are not authorized under Section 712 of the OAA and conducted by the
Ombudsman Program or a grantee or contractor of the Ombudsman Program is
prohibited. This includes, but is not limited to, ombudsman services in
settings other than long term care facilities, as defined in Section
102(18) and (32) of the OAA, and activities under Title VII, Chapters 3,
and 4 conducted by individuals or agencies other than the Ombudsman or
Ombudsman Program, or the Ombudsman\'s grantee or contractor.

#### [Rationale for Policy on Use of Abuse Prevention and Ombudsman Funds]{.underline}

Section 721(d)(3) specifically requires coordination of elder abuse,
neglect and exploitation prevention activities with the Long Term Care
Ombudsman Program in the state. Many ombudsman activities help prevent
elder abuse, neglect and exploitation in nursing homes, board and care
homes and similar adult care facilities; and ombudsmen routinely carry
out several of the activities listed in Section 721(b), as applicable to
these settings. Such activities include:

1.  public education and outreach to help identify and prevent elder
    abuse, neglect and exploitation;

2.  coordination of services with the State adult protection service
    program;

3.  data collection on the extent of abuse, neglect and exploitation in
    long-term care facilities;

4.  analysis of information and identification of service, enforcement
    or intervention needs;

5.  training for individuals, professionals and paraprofessionals on
    prevention of abuse and enhancement of residents\'
    self-determination and autonomy; and

6.  technical assistance and training for individuals, including local
    ombudsman representatives, who provide services for victims of abuse
    and their families.

Prior to enactment of the 1992 OAA amendments, the elder abuse
prevention provision was in Title III, Part G of the Act. The Fiscal
Year 1991 appropriation provided separate funding for both abuse
prevention activities under Part G and ombudsman activities. The
conference report for the FY 1991 appropriation stated:

> It is the expectation of the conferees that the States be given
> discretion in the allocation of the elder abuse funds so as to provide
> for the most effective elder abuse prevention efforts. It is further
> the conferees\' expectation that portions of the elder abuse funds
> will be made available to State long-term care ombudsman programs to
> address complaints of abuse in long-term care facilities, including
> board and care homes. (Congressional Record H.10798, October 20,
> 1990.)

The 1992 OAA amendments moved both the ombudsman and elder abuse program
provisions from Title III to the new Title VII, and the Fiscal Year 1993
Departments of Labor, Health and Human Services, and Education, and
Related Agencies Appropriation Act provided Title VII funding for both
programs.

The logic of the use of elder abuse prevention funds, as expressed in
the legislative history, carries over from Title III, Part G to Title
VII. There is no basis in the legislative history or in practical
application for states to use Ombudsman Program money to fund abuse
prevention activities conducted outside of the Ombudsman Program.

There is no basis in the law or the legislative history for states to
use funding provided to conduct ombudsman services, as defined in
Section 712 of the OAA, to fund ombudsman or advocacy services for
individuals living in their own homes or receiving acute medical care in
facilities not covered under the definitions of long term care
facilities in the OAA**.**

[]{#NonApplicability .anchor}**[Non-Applicability of the Intrastate
Funding Formula to Title VII Funding]{.smallcaps}**

# Policy

The intrastate funding formula applies only to Title III funds under
Section 304(d)(1)(D) and does not apply to Title VII.

# Discussion

The purpose of Title VII is to focus attention on advocacy programs
which the states, not the area agencies, have the responsibility to
establish and operate. States may designate funding under the various
chapters of Title VII for area agency activities or activities conducted
by other local or regional agencies or organizations which correlate
with the purpose of the funding under a particular chapter, but this
should be done for targeted and approved activities, not by the
established Title III formula. The Joint Explanatory Statement of the
Committees of Jurisdiction, Older Americans Act Amendments of 1992
states:

> \...the current Title III requirements governing the allocation of
> funds within states are not applicable to funds made available under
> any part of Title VII nor are area agencies the only entities eligible
> to receive grants from states under any part of Title VII. In
> addition, states may use funds available under Title VII to directly
> carry out vulnerable elder rights protection activities. (138
> Congressional Record, S125, 13503 \[daily ed. September 15,1992\])

Section 762 of the OAA makes it clear that a state may carry out Title
VII activities either directly or through contracts or agreements with
public or nonprofit private agencies or organizations, including but not
limited to area agencies. The intent is that states direct the use of
Title VII money for activities within the state which are planned and
coordinated by the State Agency on Aging. Section 705(a)(1) and (2) make
clear that states are to consult with area agencies and others in
identifying and prioritizing statewide activities conducted under Title
VII.

In fact, the nature of the intrastate funding formula is such that it is
not applicable to the Title VII chapters. For example, in distributing
funds under Chapter 2, it would be reasonable for states to provide
funding to stimulate development of new local ombudsman programs and
take into account the location and size of long term care facilities,
which are the major influence on workload for local ombudsmen and
volunteers. The distribution of nursing and board and care homes might
be different than the distribution of older people in the state and the
other factors which affect the intrastate funding formula.

[]{#NonInclusion .anchor}**[Non-inclusion of Title VII Funds in the
Calculation of State Administrative Costs]{.smallcaps}**

# Policy

States may not include any Title VII funding in their calculation of
funds available for state plan administration.

[**Discussion**]{.underline}

There is absent any reference in the OAA to Title VII allotments in
calculating funding for administration of state plans. On the other
hand, it is quite clear that the OAA authorizes States to allocate five
percent, or \$800,000, whichever is greater, of their cumulative total
Title III allotments for meeting administrative costs.

The programs under Title VII, unlike most of the programs under Title
III, are established and operated as direct advocacy services by the
State Agency on Aging and/or agencies with which the State Agency
contracts or provides grants to operate the programs. Thus, at least
some, if not all, of the Title VII funds are used to pay directly for
such administrative costs as staff, offices expenses, travel, etc.
Therefore, a major funding principle to which States need to adhere with
regard to Title VII is that all funding allotted for a particular Title
VII chapter must be used to carry out the requirements and activities
specified for that chapter in the OAA.

[]{#NonInclusionTitleVII .anchor}**[Non-inclusion of Title VII Funds in
the Calculation of Funds for Area Plan Administration]{.smallcaps}**

# Policy 

Title VII funds allotted to the States should not and may not be
included in the base amount used to calculate the limitation on the use
of funds for area plan administration under the provisions of Section
304(d)(1)(A) of the OAA.

**[Discussion]{.underline}**

There is no legislative basis for inclusion of Title VII funding in the
calculation for determining area agency funding for administration of
area plans. The provisions of Section 304 apply to Title III funds, not
Title VII funds. Title VII funds are excluded from funds distributed to
area agencies through the intrastate funding formula. Therefore, the
Title III formula for calculation of funding for area plan
administration may not be applied to the Title VII funding allotted to a
state.

[]{#NoTitleVII .anchor}**[No Title VII Matching
Requirement]{.smallcaps}**

The provisions in the OAA regarding matching funds, Sections
304(d)(1)(D) and 308(a)(1), apply to Title III funds. There is no
statutory base to require states to match federal funding they receive
under Title VII; therefore, there is no federal matching requirement for
Title VII funds. States, however, are not precluded from requesting a
match to Title VII funds which they award by grant or contract to
another agency or organization.

[]{#OfficeofLongTerm .anchor}**Office of Long-Term Care Ombudsman
Programs in The Administration on Aging**

# Older Americans Act Language

Sec. 201(d)(1) There is established in the Administration the Office of
Long-Term Care Ombudsman Programs (in this subsection referred to as the
\`\`Office\'\').

(2)(A) The Office shall be headed by a Director of the Office of
Long-Term Care Ombudsman Programs (in this subsection referred to as the
\`\`Director\'\') who shall be appointed by the Assistant Secretary from
among individuals who have expertise and background in the fields of
long-term care advocacy and management. The Director shall report
directly to the Assistant Secretary.

\(B\) No individual shall be appointed Director if\--

\(i\) the individual has been employed within the previous 2 years by\--

\(I\) a long-term care facility;

\(II\) a corporation that then owned or operated a long-term care
facility; or

\(III\) an association of long-term care facilities;

\(ii\) the individual\--

\(I\) has an ownership or investment interest (represented by equity,
debt, or other financial relationship) in a long-term care facility or
long-term care service; or

\(II\) 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; or

\(iii\) the individual, or any member of the immediate family of the
individual, is subject to a conflict of interest.

\(3\) The Director shall\--

\(A\) serve as an effective and visible advocate on behalf of older
individuals who reside in long-term care facilities, within the
Department of Health and Human Services and with other departments,
agencies, and instrumentalities of the Federal Government regarding all
Federal policies affecting such individuals;

\(B\) review and make recommendations to the Assistant Secretary
regarding\--

\(i\) the approval of the provisions in State plans submitted under
section 307(a) that relate to State Long-Term Care Ombudsman programs;
and

\(ii\) the adequacy of State budgets and policies relating to the
programs;

\(C\) after consultation with State Long-Term Care Ombudsmen and the
State agencies, make recommendations to the Assistant Secretary
regarding\--

\(i\) policies designed to assist State Long-Term Care Ombudsmen; and

\(ii\) methods to periodically monitor and evaluate the operation of
State Long-Term Care Ombudsman programs, to ensure that the programs
satisfy the requirements of section *307(a)(9)* and section 712,
including provision of service to residents of board and care facilities
and of similar adult care facilities;

\(D\) keep the Assistant Secretary and the Secretary fully and currently
informed about\--

\(i\) problems relating to State Long-Term Care Ombudsman programs; and

\(ii\) the necessity for, and the progress toward, solving the problems;

\(E\) review, and make recommendations to the Secretary and the
Assistant Secretary regarding, existing and proposed Federal
legislation, regulations, and policies regarding the operation of State
Long-Term Care Ombudsman programs;

\(F\) make recommendations to the Assistant Secretary and the Secretary
regarding the policies of the Administration, and coordinate the
activities of the Administration with the activities of other Federal
entities, State and local entities, and nongovernmental entities,
relating to State Long-Term Care Ombudsman programs;

\(G\) supervise the activities carried out under the authority of the
Administration that relate to State Long-Term Care Ombudsman programs;

\(H\) administer the National Ombudsman Resource Center established
under section 202(a)(21) and make recommendations to the Assistant
Secretary regarding the operation of the National Ombudsman Resource
Center;

\(I\) advocate, monitor, and coordinate Federal and State activities of
Long-Term Care Ombudsmen under this Act;

\(J\) submit to the Speaker of the House of Representatives and the
President pro tempore of the Senate an annual report on the
effectiveness of services provided under section *307(a)(9)* and section
712;

\(K\) have authority to investigate the operation or violation of any
Federal law administered by the Department of Health and Human Services
that may adversely affect the health, safety, welfare, or rights of
older individuals; and

\(L\) not later than 180 days after the date of the enactment of the
Older Americans Act Amendments of 1992, establish standards applicable
to the training required by section 712(h)(4).

[]{#Generated_Bookmark35 .anchor}

**The National Long-Term Care Ombudsman Resource Center**

### Older Americans Act Language

Section 202. (a) It shall be the duty and function of the Administration
to\--

(*18*)(A) establish and operate the National Ombudsman Resource Center
(in this paragraph referred to as the \`\`Center\'\'), under the
administration of the Director of the Office of Long-Term Care Ombudsman
Programs, that will\--

\(i\) by grant or contract\--

\(I\) conduct research;

\(II\) provide training, technical assistance, and information to State
Long-Term Care Ombudsmen;

\(III\) analyze laws, regulations, programs, and practices; and

\(IV\) provide assistance in recruiting and retaining volunteers for
State Long-Term Care Ombudsman programs by establishing a national
program for recruitment efforts that utilizes the organizations that
have established a successful record in recruiting and retaining
volunteers for ombudsman or other programs;

relating to Federal, State, and local long-term care ombudsman policies;
and

\(ii\) assist State Long-Term Care Ombudsmen in the implementation of
State Long-Term Care Ombudsman programs; and

\(B\) make available to the Center not less than the amount of resources
made available to the Long-Term Care Ombudsman National Resource Center
for fiscal year *2000*;

[]{#AnnualOmbudReport .anchor}**Annual Ombudsman Report to Congress and
Others**

# Older Americans Act Language

Sec. 207. (b)(1) Not later than March 1 of each year, the Assistant
Secretary shall compile a report\--

\(A\) summarizing and analyzing the data collected under titles III and
VII in accordance with section 712(c) for the then most recently
concluded fiscal year;

\(B\) identifying significant problems and issues revealed by such data
(with special emphasis on problems relating to quality of care and
residents\' rights);

\(C\) discussing current issues concerning the long-term care ombudsman
programs of the States; and

\(D\) making recommendations regarding legislation and administrative
actions to resolve such problems.

\(2\) The Assistant Secretary shall submit the report required by
paragraph (1) to\--

\(A\) the Select Committee on Aging of the House of Representatives;

\(B\) the Special Committee on Aging of the Senate;

\(C\) the Committee on Education and Labor of the House of
Representatives; and

\(D\) the Committee on Labor and Human Resources of the Senate.

\(3\) The Assistant Secretary shall provide the report required by
paragraph (1), and make the State reports required under titles III and
VII in accordance with section 712(h)(1) available, to\--

\(A\) the Administrator of the Health Care Financing Administration;

\(B\) the Office of the Inspector General of the Department of Health
and Human Services;

\(C\) the Office of Civil Rights of the Department of Health and Human
Services;

\(D\) the Secretary of Veterans Affairs; and

\(E\) each public agency or private organization designated as an Office
of the State Long-Term Care Ombudsman under title III or VII in
accordance with section 712(a)(4)(A).

This document was compiled in October 1999 by Administration on Aging
(AoA) Ombudsman Program Specialist Sue Wheaton and updated following
enactment of the 2000 Amendments to the Older Americans Act. The
policies included were developed by AoA over a period of many years.