(Billing Code) 4130-02-U

DEPARTMENT OF HEALTH AND

HUMAN SERVICES

Administration on Aging

45 CFR Parts 1321 and 1327

RIN 0985-ZA01

Grants for State and Community Programs on Aging

Grants for Vulnerable Elder Rights Protection Activities

**AGENCY:** Department of Health and Human Services (HHS),
Administration on Aging (AoA).

**ACTION:** Notice of proposed rulemaking.

**SUMMARY:** This Notice of Proposed Rulemaking (NPRM) requests comments
from the public on proposed changes to 45 CFR Part 1321, deleting
certain references to the Long Term Care Ombudsman Program and amending
one provision regarding this program, and to a proposed new rule, 45 CFR
Part 1327, to clarify and implement the new Title VII for Vulnerable
Elder Rights Protection Activities enacted in the 1992 Amendments to the
Older Americans Act (Act). The references to the Ombudsman Program being
deleted have either been superseded in the law or are superseded by
provisions in the proposed new rule. One provision pertaining to
ombudsman confidentiality requirements is retained in 45 CFR Part 1321
and amended based on changes made in the 1992 amendments to the Act.

**Dates:** In order to be considered, comments on this proposed rule
must be received on or before \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_, 199\_\_.
\[60 days from publication in the [Federal Register]{.underline}\].

**ADDRESSES:** Please address comments to: John F. McCarthy, Deputy
Assistant Secretary on Aging, Administration on Aging, 330 Independence
Ave., SW., Washington, DC 20201.

Beginning 14 days after close of the comment period, comments will be
available for public inspection in room 4745, 330 Independence Ave.,
SW., Washington, DC 20201, Monday through Friday between the hours of 9
a.m. and 4 p.m.

**FOR FURTHER INFORMATION CONTACT**:

Sue Wheaton, Telephone (202)619-7585

**SUPPLEMENTARY INFORMATION**

**I. Program Background and Purpose**

Title VII of the Older Americans Act (Act), enacted in the 1992
Amendments to the Older Americans Act, brings together into one title
advocacy programs which were previously in Title III. The purpose of
Title VII is to foster activities to assist vulnerable older people to
exercise their rights; to secure the benefits to which they are
entitled; and to be protected from abuse, neglect and exploitation.
Subtitle A encompasses programs for which the State Agency on aging has
leadership responsibility; Subtitle B provides a means to assist Native
American organizations to prioritize the needs of their service
population relating to elder rights and make grants (when this Subtitle
is funded) to carry out vulnerable elder rights protection activities.

Title VII emphasizes the leadership role of the State agency in
planning, implementing and coordinating statewide programs and
activities designed to help older people understand their rights, know
their benefits and make informed choices. Title VII provides a framework
upon which States, without abrogating the particular mission and
legislative and regulatory requirements of each Title VII program, can
build a coordinated, integrated statewide system of advocacy and
assistance for vulnerable older people.

The State leadership role for Title VII is underscored by the fact that
States may use funds available under Title VII to directly carry out
vulnerable elder rights protection activities. The Congressional
Committees of Jurisdiction for the Act made clear that Title III
requirements governing the allocation of funds within States are not
applicable to funds made available under any part of Title VII and that,
unlike Title III, area agencies are not the only entities eligible to
receive grants from States under any part of Title VII. (138 CONG.REC.,
S125, 13503 (daily ed. September 15, 1992) (Joint Explanatory Statement
of the Committees of Jurisdiction, Older Americans Act Amendments of
1992))

**The Four Programs Under Title VII**

Title VII authorizes funding for four advocacy programs previously
included in Title III. Establishing each program in a separate chapter
of Title VII underscores the distinct mission and strengthens the
definition and function of each program; and combining them under a
single title fosters increased collaboration among advocates within a
State --- and between States --- to assist individual older people and
their families and representatives.

**The Long-Term Care Ombudsman Program (Chapter 2, Sections 711, 712 and
713 of the Act)** requires States to establish and operate an Office of
the State Long-Term Care Ombudsman, headed by the State Long-Term Care
Ombudsman. The Ombudsman Program identifies, investigates and resolves
complaints made by or on behalf of residents of nursing, board and care
and similar adult care homes; addresses major issues which affect
residents; works to educate residents, nursing home personnel and the
public about residents rights and other matters affecting residents; and
performs other functions specified in the Act to protect the health,
safety, welfare and rights of residents.

Building upon established law, the 1992 Amendments to the Act clarified
and strengthened State ombudsman programs in the following areas: the
functions of the State Ombudsman; criteria for the designation and
duties of local ombudsman entities designated by the State Ombudsman;
procedures for ombudsman access to residents and records, disclosure of
ombudsman records, and ensuring against conflicts of interest; legal
assistance for ombudsmen; reporting on ombudsman activities and
providing recommendations; training of ombudsman representatives; and
non-interference with the performance of ombudsman responsibilities.

The 1992 Amendments emphasized the role of local ombudsman programs and
the State Ombudsman\'s leadership of the statewide program; established
detailed requirements for identifying and resolving real and potential
conflicts of interest; and reinforced the role of the Ombudsman as an
advocate for change to improve the quality of care and quality of life
for residents of long-term care facilities.

The 1992 Amendments also added important Title II provisions to the
Ombudsman Program, including requirements for: the establishment in AoA
of an Office of Long-Term Care Ombudsman Programs headed by an Associate
Commissioner for Ombudsman Programs, with specific criteria for
appointment and detailed definition of duties; funding of a National
Ombudsman Resource Center at no less than the level at which it was
funded in 1990, to establish a national program to recruit ombudsman
volunteers, conduct research and assist State ombudsmen; establishment
of model ombudsman training standards; a study on the effectiveness of
the State long-term care ombudsman programs; and expansion of the
requirements for the annual ombudsman report to Congress.

New provisions in Title III require State and area agencies to fund
their ombudsman programs at not less than the level at which the
programs were funded in Fiscal Year 1991.

**The Chapter entitled Programs for Prevention of Elder Abuse, Neglect,
and Exploitation** (Chapter 3, Section 721) requires States to develop
and enhance programs for the prevention of elder abuse, neglect and
exploitation. The section enumerates activities which States may
undertake, including but not limited to providing funding for public
education, ensuring the coordination of services provided by area
agencies on aging and adult protective services programs, promoting the
development of information and data systems, and training of individuals
and professionals in the identification, prevention and treatment of
abuse, neglect and exploitation.

This chapter does not require the State agency on aging to establish a
State protective services system. Rather, the State agency is expected
to work to enhance and improve the State\'s overall system for the
prevention and treatment of elder abuse, neglect and exploitation,
including protection of individual elders\' dignity and rights in the
delivery of protective services. In this way, the State agency on aging
should be an ally of the State protective services agency in working for
more and better services for vulnerable older people through enlisting
the support and participation of other agencies and networks in
preventing elder abuse.

**The State Elder Rights and Legal Assistance Development Program
(Chapter 4, Section 731)** builds upon State legal and elder rights
development programs which were initiated through AoA Title IV
discretionary funds and addressed in Title III, Section 307(a)(18).
Section 731 requires the State agency to establish a program to provide
leadership for improving the quality and quantity of legal and advocacy
assistance as a means for ensuring a comprehensive elder rights system.
The State is to establish a focal point for conducting policy review,
analysis and advocacy on such issues as guardianship, age
discrimination, pension and health benefits, insurance, consumer
protection, surrogate decision-making, protective services, public
benefits and dispute resolution. In addition, the State is to provide a
legal assistance developer and other personnel sufficient to ensure
State leadership in securing and maintaining legal rights of older
individuals; State capacity for coordinating the provision of legal
assistance; State capacity to provide technical assistance, training and
other supportive functions to area agencies on aging, legal assistance
providers, ombudsmen and other persons as appropriate; and State
capacity to promote financial management services for older individuals
at risk of conservatorship.

**The Outreach, Counseling, and Assistance Program for Insurance and
Public Benefits (Chapter 5, Section 741)** requires the States to
establish programs of outreach, counseling and assistance to older
individuals related to obtaining insurance benefits and public benefits
to which they may be entitled. This chapter envisions a statewide
network of informed staff, including volunteers, who are informed about
insurance and public benefits and can assist older people and their
advocates --- including the advocates working under the other Title VII
programs --- to obtain needed benefits and make informed decisions on
insurance and pension matters.

**II. Purpose of the NPRM**

Prior to the 1992 amendments, the Long-Term Care Ombudsman Program and
parts of the other three programs in the new Title VII were in Title III
of the Older Americans Act. However, in most States, only the Ombudsman
Program was established and operating according to the basic design
provided in Title VII. In most States, the other three program areas are
still in a developmental stage. For this reason, the proposed rule for
part 45 CFR Part 1327 addresses only the Title VII mission of the State
and area agencies, general Title VII State plan and funding
requirements, consultation requirements, the Long-Term Care Ombudsman
Program (Title VII, Chapter 2), specific requirements for the Elder
Abuse, Neglect and Exploitation Prevention section of the Elder Rights
part of the State plan, and the requirement that States employ a Legal
Assistance Developer. AoA will develop more comprehensive regulations
for the programs under Title VII, Chapters 3, 4 and 5 at a later date,
based upon the regulatory needs identified as the activities under these
programs are implemented by the States.

Due to the transfer of the Ombudsman Program to Title VII and in order
to conform current regulations to the 1992 Amendments to the Act, the
proposed regulations would make the following changes in the Title III
regulations, 45 CFR Part 1321, Grants to State and Community Programs:
deletion of reference to the Ombudsman Program in three sections,
amendment of one section pertaining to confidentiality, and deletion of
another entire section which has been superseded by the 1992 Amendments
pertaining to award of Title III funds to the area agencies on aging.

The Ombudsman Program regulations (Subpart C, Sections 1327.21 through
1327.29) address areas where the States\' experience in administering
the program indicates the need for amplification of the statutory
requirements and/or the 1992 amendments to the Act require further
clarification.

**III. Summary of the Provisions of the NPRM**

*PART 1321 --- Grants to State and Community Programs on Aging*

Due to the transfer of the program requirements for the Long-Term Care
Ombudsman Program from Title III of the Act to the new Title VII,
references to the Ombudsman Program are deleted from 45 CFR PART 1321,
Grants to State and Community Programs on Aging, Sections 1321.9,
1321.11 and 1321.17. The definition of \"official duties\" pertaining to
the Ombudsman Program is deleted from Section 1321.3 and not transferred
to the Title VII regulation, as the statute sufficiently defines the
duties of the Ombudsman.

Section 1321.51, Confidentiality and disclosure of information --- is
amended to prohibit a State or area agency on aging from requiring
information related to reports of neglect, abuse and exploitation of
individuals to be divulged except as provided under Sections
705(a)(6)(C) and 721(e)(2) of the Act or an ombudsman or ombudsman
representative to disclose the identity of a complainant or resident
except as permitted under the Act and under section 1327.24 of these
regulations.

Section 1321.63, Purpose of service allotments under Title III ---
subsection (b) pertaining to award of Title III funds to area agencies
on aging is deleted in its entirety because it is superseded by Sections
304(d) and 308 of the Act, as amended in 1992.

*PART 1327 - VULNERABLE ELDER RIGHTS PROTECTION ACTIVITIES UNDER TITLE
VII OF THE OLDER AMERICANS ACT, AS AMENDED*

Subpart A - General Provisions

1327.1 Basis and purpose --- This section emphasizes the Title VII
mandate that States develop a conceptual framework for, and provide
leadership in implementing, comprehensive and coordinated statewide
elder rights systems to assist vulnerable older people to understand
their rights, know and secure their benefits and make informed choices.
It lists the types of programs and agencies that State agencies on aging
are expected to work with and through to develop statewide elder rights
systems.

Title VII is a new addition to the Act. Prior to the 1992 amendments,
the Ombudsman Program and parts of the other three programs now included
under Title VII were in Title III. However, in most States, only the
Ombudsman Program was established and operating according to the basic
design provided in the new Title VII. In most States, the other three
program areas are still in a developmental stage. For this reason, the
proposed rule for this part addresses only the Title VII mission of the
State and area agencies, general Title VII State plan and funding
requirements, consultation requirements, the Long-Term Care Ombudsman
Program, specific requirements for the Elder Abuse, Neglect and
Exploitation Prevention section of the Elder Rights part of the State
plan, and the requirement that States employ a Legal Assistance
Developer. AoA will develop more comprehensive regulations for Chapters
3, 4 and 5 at a later date, based upon the regulatory needs identified
as the activities under these programs are implemented by the States.

Section 1327.3 Definitions --- the definitions apply to the Ombudsman
Program. They explain the meaning of the statutory requirement that the
Ombudsman serve on a \"full-time basis,\" stipulate that the Ombudsman
Program is to be statewide in scope and define \"statewide ombudsman
coverage.\" They also amplify the meaning of \"immediate family\"
related to conflict of interest requirements, \"other similar adult
long-term care facility\" related to ombudsman coverage, \"regular and
timely access\" to the Ombudsman Program, \"timely response\" to
complaints and \"willful interference\" with the representatives of the
Office of the Ombudsman in the performance of the representatives\'
official duties.

Section 1327.5 Applicability of other regulations --- this section
requires compliance with the statutory and regulatory requirements of
the Medicare and Medicaid programs, including the Omnibus Nursing Home
Requirements; the Developmental Disabilities Assistance and Bill of
Rights Act; the Civil Rights Act; the Americans With Disabilities Act;
and other relevant Federal requirements.

Section 1327.7 Mission of the State agency --- this section underscores
the leadership role of the State agency to develop and carry out
throughout the State a system of programs, services and protections to
assist individual older persons and to advocate for policy, regulatory
and legislative changes to protect the rights, dignity and benefits of
vulnerable older individuals as a group.

Section 1327.9 Mission of the area agency --- this section emphasizes
the mission of the area agency to assure that viable, effective systems
of both individual and collective advocacy are established and operating
within their planning and services areas to protect the rights and
address the needs of vulnerable older individuals.

Subpart B --- General Title VII Requirements

1327.11 Title VII State Plan Requirements --- this section requires
States, by March 31, 1995, to describe, in an addendum to their State
plan, the manner in which they will carry out Title VII and stipulates
the content for the description, including: a conceptual framework for a
comprehensive, coordinated statewide system; the process by which Title
VII activities were identified and prioritized in consultation with
parties specified in the Act and in accordance with these regulations; a
description of the roles, processes and activities for elder abuse,
neglect and exploitation prevention activities specified in Subpart D,
Section 1327.31; a brief description of the activities carried out for
the other Title VII programs; and outcomes expected and methods by which
the State will periodically assess the status of elder rights in the
State. In accordance with Section 705(a)(4) of the Act, States are also
required to provide assurances and documentation that Title VII funding
has not been used to supplant funds from other sources.

1327.13 Consultation --- this section stipulates that the State agency
on aging shall develop policies governing the programs contained in
Title VII in consultation with specified individuals, agencies and
interested parties within the State.

1327.15 Funding requirements --- this section specifies rules for State
and area agencies (where applicable) regarding utilization of Title III
funding, minimum required ombudsman funding levels, and allowable uses
of funding provided for programs under Title VII. It also clarifies that
the Title III provisions related to funding for State and area plan
administration and intrastate distribution of Title III funding are not
applicable to Title VII funds. That is, States may not include any Title
VII funds in their calculation of Federal funds available for State plan
administration, and Title VII funds allotted to the States may not be
included in the base amount used to calculate the ten percent limitation
on the use of funds for area plan administration under the provisions of
Section 304(d)(1)(A) of the Act. However, the regulation clarifies that
Title VII funds may be used to support any activity directly related to
implementing the chapter for which they are appropriated.

Section 1327.15 (a)(1), (2)(ii) and (4)(iv) clarify that ombudsman
funding provided under Title III, Section 304(d)(1)(B), the ombudsman
minimum required funding level comprised of funds from all sources and
States\' Title VII ombudsman allotments are to be used only for the
Ombudsman Program as it is defined in the Act. We are aware of a few
ombudsman programs which conduct activities not directly related to the
Ombudsman Program as it is defined in Section 712 of the Act. For
example, some statewide ombudsman programs respond to complaints about
in-home care and hospital services.

However, it should be emphasized that there is no basis in the law, nor
does the legislative history support, States use of the funding provided
to conduct ombudsman services, as defined in Section 712 of the Act, to
fund ombudsman or advocacy services for individuals living in their own
homes (including homes in public housing units) or receiving acute
medical care in facilities not covered under the definition of long term
care facilities in the Older Americans Act.

AoA recognizes that there are abuses which occur in these other
settings. However, the law is clear about the scope of the Ombudsman
Program and the use of Ombudsman Program funding. Further, AoA is
concerned that when ombudsmen are required to provide coverage in
private homes, hospitals, public housing complexes or other
non-long-term care facility settings without sufficient staff resources,
coverage of long-term care facilities may be lessened and the entire
State ombudsman program may be weakened.

Both institutional long term care and these other residential or care
settings involve complicated and usually different sets of rules and
regulations and different benefit and oversight systems. It is unlikely
that the State Long-Term Care Ombudsman, and local ombudsman
representatives in areas where there are numerous long term care
facilities, could be involved in areas other than institutional
long-term care without compromising services to residents of long-term
care facilities and diverting the limited resources available to the
program designed to serve residents of nursing, board and care and
similar adult care facilities. An additional concern is that conflicts
of interest could arise if ombudsman programs investigate complaints
about in-home services which are provided by the same agency which funds
the Ombudsman Program.

If a State wishes to establish advocacy or ombudsman programs for
recipients of home or acute care services, or for older people living in
public housing units, the State should ensure that there are sufficient,
additional resources to provide these services. Additional staff should
be provided to carry out these expanded responsibilities. The State
should also ensure that any regional or local components of ombudsman
programs which investigate home-care complaints are located outside of
the organizational entities which provide the services the ombudsmen are
expected to monitor.

Subpart C - Long-Term Care Ombudsman Program

The sections on the Ombudsman Program are listed in the same order and
with the same headings as the ombudsman sections in Title VII of the
Act. Not all sections in the Act are covered in the regulation, as the
regulation addresses only those areas where the provision in the Act
requires clarification or amplification.

Section 1327.21 Establishment ---

1327.21(a) Ombudsman Access to Decision-Making Officials - In order to
increase the ability of the State Ombudsman Program to effectively
represent the interests of residents of long-term care facilities in
policy-making at the State level, the rule requires that the Ombudsman
have direct access to directors of governmental entities with
responsibilities which impact on residents of long-term care facilities.
Without such access, the Ombudsman\'s ability to \"represent the
interests of the residents before governmental agencies and seek
administrative, legal and other remedies to protect the health, safety,
welfare and rights of the residents\" as required under Section
712(a)(3)(E) of the Act would be diminished. The statutory organization
of the program into an [office]{.underline} indicates that Congress
intended it to have a high level of visibility and an effective voice in
policy deliberations affecting residents.

1327.21(b) Local Ombudsman Entities and Ombudsman Representatives ---
The rule outlines five areas in which the State agency must establish
criteria and develop policy for participation in the statewide Ombudsman
Program by local ombudsman entities and representatives. The overall
objective of the criteria and policies is to strengthen, through the
designation process, the working relationship between the State
ombudsman and local ombudsman entities and the effectiveness of the
local entities as part of the statewide Ombudsman Program.

1327.21(c) Representation of Residents\' Interests --- The Act requires
ombudsmen to represent the interests of residents before governmental
agencies, but administrative law judges in some States have barred
ombudsmen from carrying out this duty because the ombudsman\'s
involvement was interpreted as representing the client, a function
reserved for attorneys. The rule clarifies that the Ombudsman and
ombudsman representatives have the right and authority to advocate on
behalf of residents in transfer, discharge and other administrative
hearings by serving as a witness and presenting information and
testimony.

1327.21(d) Additional Ombudsman Duties --- The rule specifies that, in
addition to the ombudsman functions outlined in the Act, the Assistant
Secretary determines it appropriate for Ombudsmen to work to ensure that
board and care and similar adult care facilities are licensed and that
licensing standards are enforced.

1327.22 Procedures for Access - the rule requires the State agency to
ensure, through administrative policy, regulation or securing
legislation, if needed, that ombudsmen have the right and an established
procedure for access to: facilities; residents, including residents with
guardians; residents\' records; facility records and death certificates
and records, when these are necessary in the investigation of
complaints.

1327.24 Disclosure/Confidentiality --- this section replaces the current
rules at 45 CFR 1321.11 and 1321.51 promulgated in the 1988 regulation,
which permit the director of the State agency on aging and one senior
manager to have access to ombudsman files, minus the identity of any
complainant or resident of a long-term care facility, for program
monitoring purposes. The new rule stipulates that the director
[or]{.underline} a senior manager of the agency or organization in which
the Ombudsman Program is administratively located may have access to
ombudsman files for program monitoring purposes; that the individual who
performs the program monitoring must have no conflict of interest; and
that confidentiality requirements concerning any complainant or resident
must be strictly followed. This rule applies to ombudsman files at the
State and local level. As previously stated at the beginning of this
preamble, this NPRM proposes to delete the current reference to the
Ombudsman Program in 45 CFR Section 1321.11 and to amend 45 CFR 1321.51
to conform with confidentiality provisions in Sections 705, 712 and 721
of the Act and section 1327.24 of this proposed regulation.

This section also clarifies that Section 705(a)(6)(C) of the Act
pertains to information provided to the agencies and programs specified
in this statutory provision and does not require the Ombudsman Program
to abridge the confidentiality requirements specified in Section 712(d)
of the Act. The rule stipulates that representatives of the Ombudsman
Program may not be required to disclose the identity of a complainant or
resident except under conditions outlined in section 712(d) of the Act.

Some State abuse reporting laws mandate the reporting of all incidents
of abuse. These State laws may conflict with the Section 712(d)
requirement that ombudsmen not reveal the identity of complainants or
residents unless the complainant, resident or the resident\'s legal
representative consents to the disclosure or the disclosure is required
by court order. The rule clarifies that Federal law supersedes State law
in such instances and that ombudsmen must follow the disclosure
procedure outlined in Section 712(d). Section 1327.27(b)(3) of these
regulations requires the State Ombudsman, in coordination with the State
Adult Protective Services agency, to establish a protocol for reporting
complaints involving alleged abuse and exploitation which ensures prompt
response to those in need while protecting confidentiality, in
accordance with statutory and regulatory requirements.

1327.25 Conflict of Interest --- Subparagraph (a), Designation of the
Ombudsman and ombudsman entities and representatives - The
organizational location of State and local ombudsman programs is crucial
to those programs\' independence and access to decision-makers. Most
State ombudsman programs are located in State agencies on aging, and
more local programs are located in Area agencies on aging than in any
other organizations. While the Act prohibits contracting the Ombudsman
Program to agencies or organizations which regulate, own or operate
long-term care facilities, in the past AoA has permitted State agencies
on aging which regulate, own or administer long-term care facilities to
also operate the Ombudsman Program. This previous policy, stated in the
preamble to the 1988 regulations, was based on the construction of the
law.

In this rule, we are modifying this policy to comply with Section
712(f)(1) of the Act, which states that no individual, or member of the
individual\'s immediate family, involved in the designation of the
Ombudsman\...or the designation of an entity designated under subsection
(a)(5) (local ombudsman entity) may be subject to a conflict of
interest. We believe that officials and employees in any office which
directly licenses or certifies long-term care facilities, administers
facilities or provides long-term care services are subject to an
inherent conflict of interest disqualifying them from designating the
Ombudsman or ombudsman representatives. Accordingly, in order to comply
with Section 712(f)(1), this regulation requires that the individual who
designates, whether by appointment or otherwise, the Ombudsman and
ombudsman representatives may not be an official or employee of an
agency, including a State or area agency on aging, which directly
licenses or certifies long-term care facilities, administers facilities
or provides long-term care services. The rule also requires that where
State and area agencies contract the Ombudsman Program to another agency
or organization, the employees who oversee the contract must have no
conflict of interest.

Since the Ombudsman Program is responsible for investigating complaints
which are sometimes made against the licensing agency and recommending
changes in policies and procedures which frequently involve the
licensing agency, this rule is designed to prevent a situation in which
an individual directly involved in the licensing and certification of a
facility, or one who is involved in administering a facility or
providing long-term care services, is also in a position of authority or
responsibility concerning the designation of the Ombudsman or ombudsman
representatives.

1327.25(b) requires that where the State or area agency on aging
contracts with another agency to operate the Ombudsman Program, the
State or area agency staff persons who oversee the contract must not be
involved in licensing, certifying or administering long-term care
facilities or services.

1327.25(c) prohibits the State Ombudsman and ombudsman representatives
from also serving as adult protective services (APS) workers in APS
programs with responsibilities which might conflict with the
Ombudsman\'s role as advocate for the residents\' right to
self-determination and/or which might result in the representatives
becoming case workers for victims of abuse, neglect and exploitation and
not fulfilling the many other roles and responsibilities of the Office
of the Long Term Care Ombudsman. This section also prohibits the
Ombudsman and ombudsman representatives from serving as a resident\'s
agent, medical decision-maker or surrogate and from assuming other,
related roles which might place them in conflict with their primary role
as advocate for the rights of residents and/or consume their time to the
exclusion of other important duties.

1327.26 Legal Counsel --- this section requires the State agency to
develop and implement written policies and procedures which stipulate
how the State will fulfill its obligation to provide adequate legal
counsel to the Ombudsman and ombudsman representatives to assist them in
protecting the health, safety, welfare, and rights of residents and in
the performance of their official duties and to provide legal
representation to any representative of the Office against whom suit or
other legal action is brought or threatened to be brought in connection
with the performance of official duties. It requires the State to
disseminate the policies and procedures to all representatives of the
Office and regularly include the information in training provided to
ombudsman representatives.

1327.27 Administration --- Subparagraph (a) clarifies that the Ombudsman
Program may serve disabled individuals under the age of 60 who are
living in long-term care facilities, a majority of whose residents are
older adults, if such service does not weaken or decrease service to
older individuals covered under the Older Americans Act. The
Administration on Aging takes the view that by giving the Ombudsman and
ombudsman representatives discretion to serve those under age 60 and
thus address the needs of all residents in a facility, the Ombudsman
Program will better serve everyone living in the facility.

1327.27 (b) requires State ombudsmen to establish written agreements
with the State Adult Protective Services program and the State
Protection and Advocacy programs for individuals with developmental
disability and mental illnesses. The agreements are to stipulate how
resources shall be utilized to serve vulnerable people for which the
programs are responsible and policies and procedures to be followed in
referrals and investigation of complaints. The policies and procedures
regarding complaint referral and investigation must include a protocol
for reporting complaints involving alleged abuse or exploitation which
ensures prompt response to those in need while protecting
confidentiality, in accordance with statutory and regulatory
requirements.

1327.27(c) requires State ombudsmen to establish written agreements with
the State agencies responsible for licensing and/or certifying for
participation in Titles XVIII and XIX of the Social Security Act long
term care facilities covered by the statewide Ombudsman Program. The
agreements must include procedures for complaint investigation,
verification and resolution by both agencies; transmittal of information
about facilities; ombudsman participation in facility surveys; and
shared training of staff.

1327.28 Liability --- this section requires the State agency to arrange
for liability protection for representatives of the statewide Ombudsman
Program so that any representative of the program against whom legal
action is brought or threatened to be brought in connection with that
individual\'s performance of her/his official duties will be fully
indemnified for legal and other costs arising from the dispute. The
State may not transfer this responsibility to provide full liability
protection to the area agency or other local agency or leave the
individual ombudsman representative financially vulnerable or personally
responsible in case of a law suit.

1327.29(a) Noninterference --- This section augments the principle
enunciated in section 712(j) of the Act which requires States to ensure
that willful interference with ombudsman representatives in the
performance of official duties shall be unlawful. Subparagraph (a)
states, as a general principle, that in the conduct of all aspects of
the statewide Long Term Care Ombudsman Program, the integrity of the
work of the Ombudsman and ombudsman representatives must be maintained;
and there must be no inappropriate or improper influence from any
individual or entity, regardless of the source, which will in any way
compromise, decrease or negatively impact on the objectivity of the
investigation or outcome of complaints; the Ombudsman\'s primary role as
advocate for the rights and interests of the resident; the Ombudsman\'s
work to resolve issues related to the rights, quality of care and
quality of life of the residents of long-term care facilities; or the
Ombudsman\'s statutory responsibility to provide such information as the
Office of the Ombudsman determines to be necessary to public and private
agencies, legislators and other persons regarding the problems and
concerns of residents and recommendations related to residents\'
problems and concerns.

1327.29(b) makes it clear that any interference with the work of the
Ombudsman, as outlined in paragraph (a) of this section, by an
individual who is an official or employee of the State agency on aging
or of an organization or agency which operates the Ombudsman Program
under grant or contract with the State agency shall be deemed to be a
failure to comply with Section 705 and with the noninterference
requirements of Section 712 of the Act.

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

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

Subpart E - State Elder Rights and Legal Assistance Development Program

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

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

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

**Impact Analysis**

*Executive Order 12866*

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

*Regulatory Flexibility Act of 1980*

The Regulatory Flexibility Act of 1980, Pub. L. 96-354, requires that an
agency prepare a regulatory flexibility analysis for a proposed or final
rule if the rule would have significant economic impact on a substantial
number of \"small entities\", i.e. small businesses, small non-profit
organizations, or small governmental jurisdictions.

The responsibility for meeting the requirements of the regulations
proposed in this NPRM is on the State agencies and to a lesser extent on
area agencies. Actual delivery of services will be provided in some
circumstances by public and not-for-profit agencies or organizations
under grants or contracts from State or area agencies. Although area
agencies and most service delivery agencies and organizations are
\"small entities\" within the meaning of the Act, this rule will impose
no significant burdens on State agencies, area agencies or other
affected parties and will provide flexibility to State and area agencies
in implementing the provisions of the Act. For these reasons, the
Secretary hereby certifies that these regulations will not have a
significant economic impact on a substantial number of small entities.

*Paperwork Reduction Act*

This proposed rule contains information collection requirements which
are subject to review by the Office of Management and Budget (OMB) under
the Paperwork Reduction Act of 1980. The title, description, and
respondent description of the information collection are shown below
with an estimate of the time for reviewing instructions, searching
existing data sources, gathering and maintaining the data needed, and
completing and reviewing the collection of information.

*Title:* Vulnerable Elder Rights Protection Activities - Elder Rights
Plan

*Description*: Section 705(a)(8) of Older Americans Act as amended by
the 1992 amendments to the Act (Public Law 102-375) requires States to
include in their State plan submitted under Section 307 a description of
the manner in which the State will carry out Title VII in accordance
with assurances outlined in Section 705. Based upon this statutory
provision, the proposed regulations require States, by March 31, 1995,
to describe, in an addendum to their State plan and to all future State
plans, the manner in which they will carry out Title VII and stipulate
the content of the description, including: a conceptual framework for a
comprehensive, coordinated statewide system; the process by which Title
VII activities were identified and prioritized in consultation with
parties specified in the Act and in accordance with these regulations; a
description of the roles, processes and activities for elder abuse,
neglect and exploitation prevention activities specified in Subpart D,
Section 1327.31; a brief description of the activities carried out for
the other Title VII programs; outcomes expected and methods by which the
State will periodically assess the status of elder rights in the State.
In accordance with Section 705(a)(4) of the Act, States are also
required to provide assurances and documentation that Title VII funding
has not been used to supplant funds from other sources.

Total reporting burden is 4104 hours for FY 1995 and fewer than 4104 for
subsequent years.

*Basis for estimate:*

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

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

72 hours x 57 States/entities = 4104 hours for FY 1995

Development of the Elder Rights Plan in years subsequent to FY 1995 will
likely require fewer planning hours than the development of the initial
plan will require. The statute allows States to submit their State plans
every two, three, or four years. Therefore, the total burden will be
considerably fewer than 4104 hours in years after FY 1995.

**List of Subjects in 45 CFR Parts 1321 and 1327**

*45 CFR Part 1321*

The Long-Term Care Ombudsman Program, confidentiality of disclosure of
information, purpose of service allotments under Title III.

*45 CFR Part 1327*

Vulnerable Elder Rights Protection Activities; Title VII, Elder Rights
Plan; Mission of the State and area agency on aging; Consultation;
Funding requirements; Long-Term Care Ombudsman Program, including
ombudsman access to decision-making officials, local ombudsman entities
and representatives, representation of residents\' interests, additional
ombudsman duties, procedures for ombudsman access to residents and
records, disclosure/confidentiality, legal counsel for ombudsmen,
program administration, liability, and noninterference; Elder abuse,
neglect and exploitation section of Elder Rights Plan; State Elder
Rights and Legal Assistance program, including legal assistance
developer.

*Description of Respondents:* State and local governments, including
State and Area agencies on aging and ombudsman programs; non-profit
organizations; interested individuals.

Dated:

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

Fernando M. Torres-Gil

*Assistant Secretary for Aging*

Approved:

Dated:

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

Donna E. Shalala

Secretary of Health and Human Services.

For the reasons set forth in the preamble, 45 CFR Part 1321, Grants to
State and Community Programs on Aging, is amended as follows:

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

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

Subpart A - Introduction

2\. 1321.3, Definitions, is amended by deleting the definition of
\"official duties\" pertaining to the Long-Term Care Ombudsman.

Subpart B -

3\. Section 1321.9, Organization and Staffing of the State Agency, is
amended by deleting subparagraphs (c) and (d) pertaining to the
Long-Term Care Ombudsman Program in their entirety.

4\. Section 1321.11, State agency policies, subsection (a) is amended by
deleting the words \"including the ombudsman program\" to read as
follows:

> \(a\) The State agency on aging shall develop policies governing all
> aspects of programs operated under this part, whether operated
> directly by the State agency or under contract. These policies shall
> be developed in consultation with other appropriate parties in the
> State. The State agency is responsible for enforcement of these
> policies.

5\. Section 1321.11(b) is amended by deleting the two sentences
pertaining to the Ombudsman Program in their entirety to read as
follows:

> \(b\) 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.

6\. 1321.17, Content of State Plan, subsection (f)(7) is amended by
deleting the words \"including the manner in which the ombudsman program
operates at the State level and the relation of the ombudsman program to
area agencies where area agencies have been designated\" to read as
follows:

> (f)(7) The State agency on aging shall develop policies governing all
> aspects of programs operated under this part.

Alternate to 6. In the event that an amended version of section
1321.17(f) proposed by the Administration on Aging in a Notice of
Proposed Rulemaking published in the Federal Register on March 17, 1994
(59 FR 12728-12738) becomes final before this NPRM goes into effect as a
final rule, section 1321.17(f)(5) in that regulation is amended to
delete reference to the ombudsman program and read as follows:

(f)(5) The State agency on aging shall develop policies governing all
aspects of programs operated under this part.

7\. Section 1321.51, Confidentiality and disclosure of information,
subparagraph (c) is amended to read as follows:

\(c\) A State or area agency on aging may not require

\(i\) a provider of legal assistance under this part to reveal any
information that is protected by attorney client privilege;

\(ii\) information related to reports of neglect, abuse and exploitation
of individuals to be divulged except as provided under Sections
705(a)(6)(C) and 721(e)(2) of the Act; or

\(iii\) an ombudsman or ombudsman representative providing services
under Part 1327, Subpart C to disclose the identity of a complainant or
resident except as provided under

section 1327.24 of this regulation.\"

Subpart D - Service Requirements

8\. Section 1321.63, Purpose of service allotments under Title III, is
amended by deleting subparagraph (b) in its entirety.

For the reasons set forth in the preamble, a new part, 45 CFR part 1327,
is added to read as follows:

PART 1327 --- Vulnerable Elder Rights Protection Activities

The authority for part 1327 is as follows:

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

Subpart A - General Provisions

1327.1 Basis and purpose of this part

1327.3 Definitions

1327.5 Applicability of other regulations

1327.7 Mission of the State agency

1327.9 Mission of the Area agency

Subpart B - General Title VII Requirements

1327.11 Title VII State Elder Rights plan requirements

1327.13 Consultation

1327.15 Funding requirements

Subpart C - Long-Term Care Ombudsman Program

1327.21 Establishment

1327.22 Procedures for access

1321.24 Disclosure/Confidentiality

1327.25 Conflict of Interest

1327.26 Legal Counsel

1327.27 Administration

1327.28 Liability

1327.29 Noninterference

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

1327.31 Abuse Prevention Requirements for Elder Rights Plan

Subpart E - State Elder Rights and Legal Assistance Development Program

1327.41 Functions

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

1327.51 Coordination

PART 1327 --- Subpart A

1327.1 Basis and purpose of this part

\(a\) This part prescribes requirements State agencies shall meet to
receive grants for the establishment and development of Vulnerable Elder
Rights Protection activities under Title VII of the Older Americans Act
as amended (hereinafter referred to in this part as the Act). These
requirements include the responsibilities of State agencies, Area
agencies, and service providers.

\(b\) The requirements of this part are based on Title VII and relevant
sections of Titles III and VI of the Act. Title VII provides for formula
grants to State agencies on aging, under approved State plans, to carry
out Vulnerable Elder Rights Protection activities.

\(c\) Statewide Elder Rights Systems - Title VII provides an important
mandate to State agencies on aging, namely the development of an Elder
Rights system which coordinates and recognizes the inter-relatedness of
a variety of services, programs, and activities on the part of a number
of agencies and organizations to ensure the rights of vulnerable older
people in a State. Such an Elder Rights system will assist vulnerable
older people to understand their rights, know and secure their benefits
and make informed choices. In the development of this system, it is
expected that State agencies on aging will work through and with the
State Long-Term Care Ombudsman Program; State Elder Rights and Legal
Assistance Development Program; State Outreach, Counseling and
Assistance Program for Insurance and Public Benefits; Area agencies on
aging, information and referral programs; consumer protection and
advocacy agencies; guardianship programs; legal providers; adult
protective services; the court system; the attorney general; the State
equal employment opportunity commission; and other appropriate programs
and agencies.

1327.3 Definitions

\"Full-time basis,\" as used in Section 712(a)(3) of the Act with
respect to the State Ombudsman position, means the State Long-Term Care
Ombudsman position is full-time, and the individual who serves in the
position has no duties other than those directly related to the
Long-Term Care Ombudsman Program, as defined in Section 712 of the Act.

\"Immediate family,\" as used in Sections 201(d)(2)(B) and 712(f)(1) of
the Act pertaining to conflict-of-interest, means spouse, parents,
children and siblings.

\"Other similar adult long-term care facility,\" as used in Section
102(34)(D) of the Act with respect to the type of facilities which the
Ombudsman Program is authorized to cover, means any group facility which
provides room, board and personal care services to older individuals,
and which the State includes within the purview of its statewide Long
Term Care Ombudsman Program.

\"Regular and timely access,\" as used in Section 712(a)(3)(D) and
(5)(B)(ii) of the Act with respect to residents\' access to ombudsmen,
means that residents of long-term care facilities throughout the State
have access to knowledge of the Ombudsman Program and how to contact it
and that calls or letters to the program from residents or their
representatives are responded to in a timely manner.

\"State Long-Term Care Ombudsman Program\" means a program established
under Section 712(a)(1)(B) of the Act which provides statewide ombudsman
coverage for residents of long-term care facilities.

\"Statewide ombudsman coverage\", as used in the definition of \"State
Long-Term Care Ombudsman Program,\" means that: residents of long-term
care facilities and their representatives have access to knowledge of
the Ombudsman Program and how to contact it; and complaints received
from any part of the State are investigated and documented and steps are
taken to resolve problems in a timely manner, in accordance with Federal
and State requirements.

\"Timely responses,\" as used in Section 712(a)(3)(D) of the Act with
respect to ombudsman action on complaints, means that life-threatening
complaints are responded to within 24 hours of receipt and non-life
threatening complaints are responded to as promptly as can reasonably be
accomplished.

\"Willful interference,\" as used in Section 712(j)(1) of the Act with
respect to the work of representatives of the ombudsman office, means
any action taken, or deliberate omission of action, with the intention
of preventing the Ombudsman from carrying out his/her official duties,
as outlined in Section 712 of the Act and pursuant to State law. Acts of
retaliation, such as dismissal of the Ombudsman or ombudsman
representative or the removal and transfer of such person because of
conscientious performance of official ombudsman duties, are considered
willful interference.

1327.5 Applicability of other regulations

Several other regulations apply to all activities under this part. These
include but are not limited to:

\(a\) 42 CFR, Parts 483 and 488 - Medicare and Medicaid Programs;
Omnibus Budget Reconciliation Act of 1987 (OBRA) Nursing Home
Requirements;

\(b\) 45 CFR Part 16-Procedures of the Departmental Appeals Board;

\(c\) 45 CFR Part 74-Administration of Grants, except Subpart N;

\(d\) 45 CFR Part 80-Nondiscrimination under Programs Receiving Federal
Assistance through the Department of Health and Human Services:
Effectuation of Title VI of the Civil Rights Act of 1964;

\(e\) 45 CFR Part 81-Practice and Procedures for Hearings Under Part 80
of this Title;

\(f\) 45 CFR Part 84-Nondiscrimination on the Basis of Handicap in
Programs and Activities Receiving or Benefiting from Federal Financial
Participation;

\(g\) 45 CFR Part 91-Nondiscrimination on the Basis of Age in HHS
Programs or Activities Receiving Federal Financial Assistance;

\(h\) 45 CFR Part 92-Uniform Administrative Requirements for Grants and
Cooperative Agreements to State and Local Governments;

\(i\) 45 CFR Part 100-Intergovernmental Review of Department of Health
and Human Services Programs and Activities;

\(j\) 5 CFR Part 900, Subpart F, Standards for a Merit System of
Personnel Administration;

\(k\) 45 CFR, Part 1386 - Administration for Developmental Disabilities
and Developmental Disabilities Programs;

\(l\) 49 CFR, Parts 27, 37 and 38 - Transportation for Individuals with
Disabilities;

\(m\) 28 CFR, Parts 35 and 36 - Department of Justice;

\(n\) 29 CFR Part 1630 - Equal Employment Opportunity Commission.

1327.7 Mission of the State agency

The State agency on aging is responsible for advocating for the rights
of older individuals throughout the State. This responsibility is
paramount with respect to those who are unable to secure and protect
their own interests.

The Act intends that the State agency on aging shall be the leader
relative to Vulnerable Elder Rights Protection activities in the State.
This means that the State agency shall:

\(a\) Develop and actively carry out throughout the State a system of
programs, services and protections which assist older persons to:

\(1\) Understand and exercise their rights;

\(2\) Exercise choice through informed decision-making;

\(3\) Benefit from support and opportunities promised by law;

\(4\) Maintain autonomy consistent with capacity;

\(5\) Resolve grievances and disputes through appropriate representation
and assistance; and

\(b\) Work to secure the policy, regulatory and legislative changes
which are needed to protect the rights, dignity and benefits of
vulnerable older individuals.

1327.9 Mission of the Area agency

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

Subpart B - General Title VII Requirements

1327.11 Title VII State Elder Rights Plan Requirement

By March 31, 1995 the State agency on aging shall provide, as an
addendum to its current State plan, an Elder Rights plan. The Elder
Rights plan shall be included in all future State plans and shall
describe the manner in which the State will develop a comprehensive
Elder Rights system to carry out Title VII, in accordance with the
assurances in Section 705(a)(1) through (7) of the Act.

\(a\) The description shall include:

\(i\) A conceptual framework, which includes goals and priorities, for
how the State agency, without abrogating the specific mission and
statutory and regulatory requirements for each Title VII program, will
develop a coordinated, comprehensive system described in section
1327.1(c) which is designed to fulfill the elder rights mission of the
State agency, as described in section 1327.7;

\(ii\) The process through which the State, in consultation with the
parties specified in section 1327.13, identified and prioritized
statewide elder rights activities, including the process by which all
interested parties were notified of public hearings held in accordance
with Section 705(a)(2) of the Act and the conduct and results of such
hearings; as required under Title II of the Americans with Disabilities
Act, all hearings shall be accessible to the disabled;

\(iii\) A description of the roles, processes and activities for elder
abuse, neglect and exploitation prevention activities specified in
Subpart D, Section 1327.31;

\(iv\) A brief description of the activities carried out for the other
programs under Title VII;

\(v\) Outcomes expected during the period covered by the plan; and

\(vi\) Methods by which the State will periodically assess the status of
elder rights in the State, in compliance with Section 731(b)(8) of the
Act.

\(b\) The Elder Rights Plan shall also contain assurances and
documentation showing that Title VII funding has not been used to
supplant funds from other sources, as required in Section 705(a)(4) of
the Act.

1327.13 - Consultation

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

1327.15 Funding Requirements

\(a\) Requirements of State agencies

\(1\) The period of availability of funding for obligation is covered by
45 CFR Part 92.

\(2\) Use of Title III funds for Ombudsman Program - Title III funds
utilized by States under Section 304(d)(1)(B) must be used to support
activities of the Long Term Care Ombudsman Program, as defined in
Section 712 of the Act, at either the State level or at the local level.
These funds are not subject to the intrastate funding formula.

\(3\) Maintenance of FY 1991 ombudsman program funding level-

In carrying out the Ombudsman Program under Titles III and VII, States
must, at a minimum, expend not less than the total amount expended by
the State agency on aging from all sources in fiscal year 1991, with the
exception of funds received in a State\'s allotment of the budget line
item for abuse prevention (under the old Title III, Part G of the Older
Americans Act, as amended November 27, 1987) in the FY 1991 Departments
of Labor, Health and Human Services, and Education, and Related Agencies
Appropriation Act which the State elected to expend on ombudsman
activities in FY 1991. In addition, States should expend on their
Ombudsman Program the full amount of the increase in funding between
what they received and expended on ombudsman activities from the
State\'s allotment of the budget line item for ombudsman services in the
FY 1991 Departments of Labor, Health and Human Services, and Education,
and Related Agencies Appropriation Act and their Title VII ombudsman
allotment for a current fiscal year. This funding received under Titles
III and VII must be used solely for ombudsman services to residents of
long-term care facilities, as defined in Sections 102(19) and (34) of
the Act and Section 1327.3 of these regulations and pursuant to Sections
307(a)(12) and 712 of the Act, and may not be used for any other
purpose.

\(4\) Use of Title VII ombudsman and abuse prevention allotments -

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

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

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

\(iv\) Use of any of the Title VII ombudsman allotment to fund
activities which are not authorized under Section 712 of the Act and
conducted by the Long Term Care Ombudsman Program or a grantee or
contractor of the Ombudsman Program is prohibited. This includes, but is
not limited to, ombudsman services in settings other than long term care
facilities, as defined in Section 102(19) and (34) of the Act and
Section 1327.3 of these regulations, and activities under Title VII,
Chapters 3, 4 and 5 conducted by individuals or agencies other than the
Ombudsman or Ombudsman Program, or the Ombudsman\'s grantee or
contractor.

\(5\) Use of Title VII, Chapter 5 funding (Outreach, Counseling and
Assistance Program) - States may use funding under Chapter 5 to conduct
any of the activities outlined under Section 741(c) of the Act. If a
State determines that any area agency on aging are eligible to receive
funding to conduct activities under Chapter 5, the State is required by
Section 705(a)(7) to apply the eligibility and priority criteria set
forth in the statute.

\(6\) Non-applicability of Title III funding provisions -

\(i\) Effective October 1, 1994, States may not include any Title VII
funds in their calculation of Federal funds available for State plan
administration. Title VII funds may be used to support any activity
directly related to implementing the chapter for which they are
appropriated.

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

\(b\) Requirements of area agencies -

\(1\) Area agencies may use funds allocated under Section 304(d)(1)(D)
to support ombudsman program and other elder rights activities.

\(2\) Area agencies must expend on local or regional ombudsman program
activities for residents of long term care facilities, as defined in
Sections 102(19) and (34) and 712 of the Act and Section 1327.3 of these
regulations, not less than the total amount of Title III funds received
under Section 304(d)(1)(D) of the Act and expended by the area agency in
carrying out the Ombudsman Program under Title III in FY 1991.

Subpart C - Long-Term Care Ombudsman Program

1327.21 Establishment

\(a\) Ombudsman Access to Decision-Making Officials - The State must
ensure that the State Ombudsman has direct access to the directors of
State governmental entities with responsibilities which impact on
residents of long-term care facilities.

\(b\) Local Ombudsman Entities and Ombudsman

Representatives - The State agency shall establish criteria and a
process for participation in the statewide Ombudsman Program by local
ombudsman entities and ombudsman representatives. The criteria must:

\(1\) Stipulate that the State Ombudsman has the authority to designate
local ombudsman entities and ombudsman representatives and to revoke
designation, if necessary;

\(2\) Ensure that local entities designated to participate in the
Ombudsman Program have experience in advocating for the individual and
collective rights of vulnerable people and are not primarily service
providers;

\(3\) Establish a procedure for hiring, supervising, training,
evaluating and, if necessary, dismissing ombudsman representatives and
for evaluating the performance of the local ombudsman entity;

\(4\) Ensure that local ombudsman entities and ombudsman representatives
have no conflict of interest, as described in Section 1327.25 of these
regulations.

\(5\) Provide for an appeal procedure for local ombudsman entities or
representatives whose designation is revoked by the State Ombudsman in
order to ensure that ombudsman entities or designated representatives
which faithfully and effectively carry out the duties outlined in
Section 712(a)(5)(B) of the Act are retained as part of the statewide
Ombudsman Program, except when good cause is shown warranting their
removal.

\(c\) Representation of Residents Interests - Representatives
specifically designated by the Ombudsman for such purpose shall have the
right and authority to advocate on behalf of residents in transfer,
discharge and other administrative hearings by serving as witnesses and
presenting information and testimony.

\(d\) Additional Ombudsman Duties - In addition to the ombudsman
functions specified in Section 712 (a)(3)(A-H) of the Act, the Assistant
Secretary on Aging determines it appropriate that the Ombudsman and
ombudsman representatives work to ensure that board and care and similar
adult care facilities throughout the State are licensed, as appropriate
and in accordance with State and Federal laws and regulations, and that
licensing standards are enforced.

1327.22 Procedures for Access

The State agency shall ensure through administrative policy, regulation
or securing the enactment of State legislation, if necessary, that the
Ombudsman and all designated ombudsman representatives have the right
and an established process for access to:

\(1\) facilities covered by the statewide Ombudsman Program; (2)
residents, including residents with legal representatives or guardians;

\(3\) residents records, including residents with legal representatives
or guardians, with strict adherence to the consent procedures outlined
in Section 712 (b)(1) of the Act;

\(4\) long-term care facilities\' records, policies and documents to
which the residents or the general public have access;

\(5\) copies of all licensing and certification records maintained by
the State with respect to long-term care facilities; and

\(6\) death certificates and related records, when these are required in
the investigation of complaints.

1327.24 Disclosure/Confidentiality

\(a\) In monitoring the Ombudsman Program, access to files, minus the
identity of any complainant or resident of a long-term care facility,
shall be available only to the director or one senior manager of the
organization in which the Ombudsman Program is administratively located.
The individual who performs this monitoring function must have no
conflict of interest, as defined in section 712(f) of the Act and
paragraph 1327.25 of these regulations. In the conduct of the monitoring
of the Ombudsman Program, the confidentiality of complainants and
residents of a long-term care facility shall be protected, in accordance
with Section 712(d) of the Act. This rule applies to ombudsman files at
the State and local levels.

\(b\) The confidentiality provisions in Section 705(a)(6)(C) of the Act
pertain to information provided to the agencies and programs specified
in this section, including the Ombudsman Program. This provision does
not require the Ombudsman Program to abridge the confidentiality
requirements specified in Section 712(d) of the Act. Neither a State or
Area agency nor any other State agency may require a representative of
the State Long-Term Care Ombudsman Program to disclose the identity of a
complainant or resident except under conditions outlined in Section
712(d).

1327.25 Conflict of Interest

\(a\) Designation of the Ombudsman and ombudsman entities and
representatives --- As stated in Section 712(f)(1) of the Act, any
individual, or member of the immediate family of an individual involved
in the designation, by appointment or otherwise, of the Ombudsman or
ombudsman entities or representatives (and who correspondingly has the
authority to remove the Ombudsman and ombudsman representatives from
office), must be free of any conflict of interest. It would be a
conflict of interest for an official or employee of any agency at either
the State or local level, including State and area agencies on aging,
which directly administers the licensing and certification of long-term
care facilities, owns or operates such facilities, or provides long-term
care services to designate or remove from office the Ombudsman or
ombudsman representatives.

\(b\) Oversight of Ombudsman contract - Where the State or area agency
on aging contracts with another agency to operate the Ombudsman Program,
the State or area agency staff person or persons who oversee the
contract must not be involved in licensing, certifying or administering
long-term care facilities or services.

\(c\) Prohibitions on ombudsman assignments -

\(i\) The State Ombudsman and ombudsman representatives may not work for
or otherwise represent adult protective services programs or program
units which develop and carry out care plans for; provide involuntary
services to; are authorized to take temporary custody of; or serve as
guardians, conservators or legal representatives for any clients.

\(ii\) The State Ombudsman and ombudsman representatives may not serve
as a resident\'s agent, medical decision-maker or surrogate; the sole
witness for Do Not Resuscitate (DNR) orders or other medical directives;
or as a member of a facility\'s ethics committee which makes medical
decisions for residents without the capacity to evidence their
preference, although ombudsmen may serve on such committees in an
advisory capacity.

1327.26 Legal Counsel

The State agency shall develop and implement written policies and
procedures which stipulate how the state will fulfill its obligation to

\(a\) provide adequate legal counsel to the Ombudsman and ombudsman
representatives to assist them in protecting the health, safety,
welfare, and rights of residents and in the performance of their
official duties; and

\(b\) provide legal representation to any representative of the Office
against whom suit or other legal action is brought or threatened to be
brought in connection with the performance of the official duties of the
Ombudsman or such representative.

The policies and procedures shall be disseminated to all representatives
of the Office and regularly included in training provided to ombudsman
representatives.

1327.27 Administration

\(a\) The Ombudsman and ombudsman representatives may serve disabled
individuals under the age of 60 who are living in long-term care
facilities, if such service does not weaken or decrease service to older
individuals covered under the Act.

\(b\) Coordination with State Adult Protective Services programs and
Protection and Advocacy programs - The State Ombudsman shall establish
written agreements with the State Adult Protective Services Program and
the State Protection and Advocacy Program for individuals with
developmental disabilities and mental illnesses. The agreements shall
stipulate:

\(1\) How the staff and financial resources of the various programs
shall be utilized to meet needs of the vulnerable adults which the
programs are responsible to serve;

\(2\) The policies and procedures which the statewide Ombudsman Program
and the other programs will follow regarding referral of requests for
assistance and investigation of complaints involving:

\(i\) residents of long-term care facilities who have been or may have
been abused or exploited; and

\(ii\) developmentally disabled and/or mentally ill individuals living
in long-term care facilities or in need of long-term care services;

\(3\) a protocol for reporting complaints involving alleged abuse and
exploitation which ensures prompt response to those in need while
protecting confidentiality, in accordance with statutory and regulatory
requirements.

\(c\) Coordination with State Licensing and Certification Agencies - The
State Ombudsman shall establish written agreements with the State
agencies responsible for licensing and/or certifying for participation
in Titles XVIII and XIX of the Social Security Act long term care
facilities covered by the statewide Ombudsman Program. The agreements
shall include, but not be limited to, procedures for complaint
investigation, verification and resolution by both agencies; transmittal
of information about facilities; ombudsman participation in facility
surveys and shared training of staff.

1327.28 Liability

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

1327.29 Noninterference

\(a\) General principles governing noninterference - In the conduct of
all aspects of the statewide Long Term Care Ombudsman Program, the
integrity of the work of the Ombudsman and ombudsman representatives
must be maintained; and there must be no inappropriate or improper
influence from any individual or entity, regardless of the source, which
will in any way compromise, decrease or negatively impact on:

\(1\) the objectivity of the investigation or outcome of complaints;

\(2\) the Ombudsman\'s primary role as advocate for the rights and
interests of the resident;

\(3\) the Ombudsman\'s work to resolve issues related to the rights,
quality of care and quality of life of the residents of long-term care
facilities; or

\(4\) the Ombudsman\'s statutory responsibility to provide such
information as the Office of the Ombudsman determines to be necessary to
public and private agencies, legislators and other persons regarding the
problems and concerns of residents and recommendations related to
residents\' problems and concerns.

\(b\) Any interference with the work of the Ombudsman, as outlined in
paragraph (a) of this section, by an individual who is an official or
employee of the State agency on aging or of an organization or agency
which operates the Ombudsman Program under grant or contract with the
State agency shall be deemed to be a failure to comply with the State\'s
duty under Section 705(a) of the Act to carry out the Ombudsman Program
in accordance with the requirements of Chapters 1 and 2 of the Act.

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

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

In the Elder Rights plan required in Section 1327.11, States shall
describe:

\(1\) The specific roles of the various agencies in the development and
implementation of the abuse, neglect and exploitation prevention part of
the Title VII plan;

\(2\) The process used to determine how the elder abuse prevention funds
are to be spent and how this use complements, strengthens, or otherwise
enhances the State\'s adult protective services activities; and

\(3\) How activities conducted with elder abuse prevention funds will be
regularly monitored and evaluated for their effectiveness in preventing,
reducing or remedying elder abuse, neglect and exploitation.

Subpart E - State Elder Rights and Legal Assistance Development Program

1327.41 - Functions

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

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

1327.51 - Coordination

The State unit implementing outreach and counseling activities
authorized under Chapter 5, Section 741 of the Act shall coordinate
their efforts with the State unit which is the recipient of funds for
health insurance information, counseling and assistance authorized under
Section 4360 of the Omnibus Reconciliation Act of 1990 (42 U.S.C. 1395
et seq.).