Federal Register / Vol. 78, No. 117 / Tuesday, June 18, 2013 / Proposed Rules 36449 

including a street address, phone 

number, and contact person(s) with 

email address(es) for each producer; 

(iii) A listing of all U.S. importers of 

the subject merchandise, including 

street addresses, email addresses, and 

phone numbers for each importer. 

* * * * * 

(v) A listing of all sales or revenue lost 

by each petitioning firm by reason of the 

subject merchandise during the three 

years preceding filing of the petition. 

For each named purchaser, petitioners 

must provide the email address of the 

specific contact person, street address, 

city, state, and 5-digit zip code with 

respect to each lost sales or lost revenue 

allegation. Petitioners must certify that 

all lost sales or lost revenue allegations 

identified in the petition will also be 

submitted electronically in the manner 

specified in the Commission’s 

Handbook on Filing Procedures. 

* * * * * 

■ 6. Amend § 207.20 by revising 

paragraph (b) to read as follows: 

§ 207.20 Investigative activity following 

preliminary determination. 

* * * * * 

(b) The Director shall circulate draft 

questionnaires for the final phase of an 

investigation to parties to the 

investigation for comment. Any party 

desiring to comment on draft 

questionnaires shall submit such 

comments in writing to the Commission 

within a time specified by the Director. 

All requests for collecting new 

information shall be presented at this 

time. The Commission will disregard 

subsequent requests for collection of 

new information absent a showing that 

there is a compelling need for the 

information and that the information 

could not have been requested in the 

comments on the draft questionnaires. 

■ 7. Amend § 207.45 by revising 

paragraph (c) to read as follows: 

§ 207.45 Investigation to review 

outstanding determination. 

* * * * * 

(c) Institution of an investigation. 

Within forty-five (45) days after the 

close of the period for public comments 

following publication of the receipt of a 

request, the Commission shall 

determine whether the request shows 

changed circumstances sufficient to 

warrant a review and, if so, shall 

institute a review investigation. The 

Commission may also institute a review 

investigation on its own initiative. The 

review investigation shall be instituted 

by notice published in the Federal 

Register and shall be completed within 

one hundred eighty (180) days of the 

date of such publication. If the 

Commission determines that a request 

does not show changed circumstances 

sufficient to warrant a review, the 

request shall be dismissed and a notice 

of the dismissal published in the 

Federal Register stating the reasons 

therefor. 

* * * * * 

By order of the Commission. 

Issued: June 7, 2013. 

Lisa R. Barton, 

Acting Secretary to the Commission. 

[FR Doc. 2013–14004 Filed 6–17–13; 8:45 am] 

BILLING CODE 7020–02–P 

DEPARTMENT OF HEALTH AND 

HUMAN SERVICES 

Administration on Aging 

45 CFR Parts 1321 and 1327 

RIN 0985–AA08 

State Long-Term Care Ombudsman 

Program 

AGENCY: Administration on Aging, 

Administration for Community Living, 

HHS. 

ACTION: Proposed rule. 

SUMMARY: The Administration on Aging 

(AoA) of the Administration for 

Community Living (ACL) within the 

Department of Health and Human 

Services (HHS) is issuing a Notice of 

Proposed Rulemaking, with request for 

comments, to implement provisions of 

the Older Americans Act, the State 

Long-Term Care Ombudsman program. 

This proposed rule replaces AoA’s 1994 

Notice of Proposed Rulemaking. 

Since 1992, the functions of this 

program have been delineated in the 

Older Americans Act; however, 

regulations have not been promulgated 

for any Title VII program. In the absence 

of regulatory guidance, there has been 

significant variation in the 

interpretation and implementation of 

these provisions among States. Recent 

inquiries from States and an AoA 

compliance review in one State have 

highlighted the difficulty of determining 

State compliance in carrying out the 

Long-Term Care Ombudsman program 

functions. This rulemaking provides the 

first regulatory guidance for States’ 

Long-Term Care Ombudsman programs 

to provide clarity about implementation. 

HHS estimates that a number of states 

may need to update their statutes, 

regulations, policies and/or practices in 

order to operate the program consistent 

with federal law and this proposed 

regulation. The effective date of the rule 

is anticipated to be one year after 

publication of any final rule to allow 

States appropriate time for such 

changes, if needed. AoA anticipates 

little or no financial impact on the 

providers of long-term care ombudsman 

services, the consumers served by the 

program, or long-term care providers 

through implementation of the proposed 

rules. 

AoA believes that consumers 

(particularly residents of long-term care 

facilities) and long-term care providers 

will benefit from the implementation of 

these proposed rules. Consumers and 

other complainants across the country 

will receive services from the LongTerm Care Ombudsman program with 

less variation in the quality, efficiency, 

and consistency of service delivery. 

Long-term care ombudsmen and 

States will also benefit from the 

implementation of these proposed rules 

in the establishment and operation of 

the Long-Term Care Ombudsman 

program at the State and local levels. 

For years, States and long-term care 

ombudsmen at every level have reported 

to AoA that they have found some 

provisions of the Act confusing to 

implement. The proposed rule seeks to 

provide the clarity that program 

stakeholders have requested. 

DATES: To be assured consideration, 

comments must be received at one of 

the addresses provided below, no later 

than 5 p.m. on August 19, 2013. 

ADDRESSES: Because of staff and 

resource limitations, we cannot accept 

comments by facsimile (FAX) 

transmission. You may submit 

comments in one of four ways (please 

choose only one of the ways listed): 

1. Electronically. You may submit 

electronic comments on this regulation 

to http://www.regulations.gov. Follow 

the instructions under the ‘‘More Search 

Options’’ tab. 

2. By regular mail. You may mail 

written comments to the following 

address: Administration for Community 

Living, Administration on Aging, US 

Department of Health and Human 

Services, Attention: Becky Kurtz, 

Washington, DC 20201. 

Please allow sufficient time for mailed 

comments to be received before the 

close of the comment period. 

3. By express or overnight mail. You 

may send written comments to the 

following address: Administration for 

Community Living, Administration on 

Aging, US Department of Health and 

Human Services, Attention: Becky 

Kurtz, 1 Massachusetts Avenue NW., 

5th Floor, Washington, DC 20001. 

4. By hand or courier. If you prefer, 

you may deliver (by hand or courier) 

your written comments before the close 


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36450 Federal Register / Vol. 78, No. 117 / Tuesday, June 18, 2013 / Proposed Rules 

1 Institute of Medicine, ‘‘Real People, Real 

Problems: An Evaluation of the Long-Term Care 

Ombudsman Programs under the Older Americans 

Act’’ (1995) (IOM Report (1995)). 

2 ‘‘Long-Term Care Ombudsman Strategy Session: 

Final Report,’’ December 2011, National 

Ombudsman Resource Center. Available at: http:// 

www.ltcombudsman.org/sites/default/files/norc/ 

ltcop-strategy-session.pdf. 

of the comment period to: 

Administration for Community Living, 

Administration on Aging, US 

Department of Health and Human 

Services, Attention: Becky Kurtz, 1 

Massachusetts Avenue NW., 5th Floor, 

Washington, DC 20001. 

If you intend to hand deliver your 

comments, please call telephone 

number 202–401–4541 in advance to 

schedule your arrival with one of our 

staff members. Comments mailed to the 

address indicated as appropriate for 

hand or courier delivery may be delayed 

and received after the comment period. 

FOR FURTHER INFORMATION CONTACT: 

Becky Kurtz, Director, Office of LongTerm Care Ombudsman Programs, 

Administration for Community Living, 

Administration on Aging, 1 

Massachusetts Avenue NW., 

Washington, DC 20001, 202–357–3586. 

SUPPLEMENTARY INFORMATION: The 

preamble to this notice of proposed 

rulemaking is organized as follows: 

I. Program Background 

A. AoA Authority 

B. Requests for Regulatory Guidance 

II. Proposed Changes to 42 CFR Part 1321 and 

Addition of New Part 1327 

A. State Agency Policies 

B. Definition of Immediate Family 

C. Definition of Office of the State LongTerm Care Ombudsman 

D. Definition of Representatives of the 

Office of the State Long-Term Care 

Ombudsman 

E. Establishment of the Office of the State 

Long-Term Care Ombudsman 

F. Functions and Responsibilities of the 

State Long-Term Care Ombudsman 

G. State Agency Responsibilities Related to 

the Long-Term Care Ombudsman 

Program 

H. Functions and Duties of the Office of the 

State Long-Term Care Ombudsman 

I. Conflicts of Interest 

J. Additional Considerations 

III. Required Regulatory Analyses Under 

Executive Orders 13563 and 12866 

IV. Other Administrative Requirements 

A. Paperwork Reduction Act of 1995 

B. Executive Order 13132 

C. Unfunded Mandates Reform Act of 1995 

D. Assessment of Federal Regulations and 

Policies on Families 

E. Plain Language in Government Writing 

I. Program Background 

State Long-Term Care Ombudsman 

programs (Ombudsman programs) serve 

as advocates for residents of nursing 

homes, board and care homes, assisted 

living facilities and similar adult care 

facilities. They work to resolve 

problems of individual residents and to 

bring about improvements to residents’ 

care and quality of life at the local, state 

and national levels. 

Begun in 1972 as a demonstration 

program, Ombudsman programs today 

exist in all States, the District of 

Columbia, Puerto Rico and Guam, under 

the authorization of, and appropriations 

to implement, the Older Americans Act 

(the Act). These States and territories 

have an Office of the State Long-Term 

Care Ombudsman (the Office), headed 

by a full-time State Long-Term Care 

Ombudsman (the Ombudsman). 

Nationally, in FY 2011 there were 

nearly 1,200 full-time equivalent staff 

ombudsmen; more than 9,000 certified 

volunteer ombudsmen, and more than 

3,300 other volunteers working with 

Ombudsman offices. 

A. AoA Authority 

This NPRM is proposed under the 

authority of sections 201(e), 307(a), 712 

and 713 of the Older Americans Act 

(OAA or the Act) (42 U.S.C. 3011(e), 

3027, 3058g, and 3058h, respectively). 

These provisions authorize the Assistant 

Secretary for Aging to prescribe 

regulations regarding coordination of 

elder justice activities, the development 

of State plans on aging, and Long-Term 

Care Ombudsman programs. 

B. Requests for Regulatory Guidance 

In addition to its statutory authority, 

AoA received a 2011 inquiry from the 

Senate Special Committee on Aging 

regarding regulations for Ombudsman 

programs. AoA responded that 

regulations for the Older Americans Act 

were last promulgated in 1988 and are 

found at 45 CFR Parts 1321, 1326 and 

1328. Part 1321 constitutes the 

regulations for Title III of the Act, which 

at that time included the Long-Term 

Care Ombudsman Program. In the 1992 

reauthorization of the Older Americans 

Act, Congress created Title VII, 

Allotments for Vulnerable Elder Rights 

Protection Activities. While regulations 

for Title VII programs, which includes 

the Long-Term Care Ombudsman 

program, were proposed and published 

in the Federal Register by the 

Administration on Aging (AoA) in 1994, 

final regulations were not adopted. AoA 

indicated its intent to issue regulations 

for the Long-Term Care Ombudsman 

Program in order to provide clear and 

consistent guidance. 

In its evaluation of State Long-Term 

Care Ombudsman programs, the 

Institute of Medicine identified the lack 

of Federal guidance as a challenge for 

state implementation that contributed to 

an absence of fully-implemented state 

programs. The Institute of Medicine 

recommended that the Assistant 

Secretary for Aging ‘‘issue clearly stated 

policy and program guidance that sets 

forth the federal government’s 

expectations of state long-term care 

ombudsman programs. . . .’’ 1

In December, 2011, a stakeholder 

workgroup consisting of long-term care, 

elder abuse and Ombudsman program 

experts; national association 

representatives; and consumer 

advocates met to discuss issues 

impacting Ombudsman programs and 

requested guidance from the Assistant 

Secretary for Aging in areas related to: 

1. The roles, responsibilities and 

relationship of the State agency on aging 

and the Office of the State Long-Term 

Care Ombudsman; 

2. Conflicts of interest between a 

State’s Ombudsman program and other 

programs or services (such as survey 

and certification) provided by the 

agency in which Ombudsman program 

is located at the State or local levels; 

3. Conflicts of interest between the 

individual roles and responsibilities of 

the Ombudsman (or representatives of 

the Office) and other personal or 

professional interests (such as financial 

interest in a long-term care facility); 

4. Ability of the Office to provide 

public policy recommendations as 

required by statute; 

5. Ombudsman services to residents 

(including recommendations related to 

Ombudsman records, resident records, 

and services to individuals under age 

sixty); and 

6. Training and certification/ 

designation of representatives of the 

Office.2

II. Proposed Changes to 45 CFR Part 

1321 and Addition of New Part 1327 

In its 1992 Older Americans Act 

reauthorization, Congress created Title 

VII—Allotments for Vulnerable Elder 

Rights Protection Activities, and 

incorporated the provisions related to 

the activities of Long-Term Care 

Ombudsman programs into Title VII. 

Previously some of these provisions had 

been within Title III. Therefore, the rule 

governing Title III of the Act (i.e. 45 CFR 

1321) and last updated in 1988, 

includes some minimal provisions 

which govern the Long-Term Care 

Ombudsman Program. Since its creation 

in 1992, Title VII has included the 

provisions related to Ombudsman 

program activities. These proposed 

changes update 42 CFR part 1321 to 

reflect the most recent (2006) 

reauthorization of the Act. 


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There has been significant variation in 

the interpretation and implementation 

of the provisions of the Act among 

States. This has resulted in residents of 

long-term care facilities receiving 

inconsistent services from Ombudsman 

programs in some states compared to 

other states. An example of this 

inconsistency in approach is the way 

that various States respond to 

complaints to the Ombudsman program 

that a facility has abused a resident: 

• In most States, the Ombudsman 

program is available to assist and 

resolve the complaint to the satisfaction 

of the resident, working with the 

resident to assure his or her well-being. 

In those States, the Ombudsman 

program explains to the complainant 

that another agency represents the State 

as the official finder of fact, but that the 

Ombudsman serves as a victim advocate 

to support the resident through the 

official investigation process and to 

assist the resident in voicing and 

realizing his or her goals. 

• However, in some States, the same 

abuse complaint gets the same response 

that the Ombudsman program is not the 

official finder of fact for abuse 

complaints, and the complainant is 

immediately referred to another State or 

local agency. However, in some cases, 

the resident receives no additional 

assistance from the Ombudsman 

program related to the abuse allegation. 

• In still other States, the 

Ombudsman program is designated by 

the State as the official finder of fact to 

determine whether the abuse is 

substantiated. It refers substantiated 

cases to law enforcement, at times 

without (or even in violation of) the 

wishes of the resident. 

• In still other States, the 

Ombudsman is designated by the State 

as the official finder of fact, but in order 

to not violate the wishes of the resident 

or the disclosure provisions of the Act, 

it does not refer substantiated cases to 

law enforcement without resident 

consent. 

• The Act requires that Ombudsman 

programs both assist residents in 

protecting their health, safety, welfare 

and rights as well as to provide the 

resident with the option to consent to 

disclosure of information about his or 

her complaint. This proposed rule is 

intended to provide the clarity and 

consistency needed to ensure that 

residents receive needed protections, 

and, at the same time, that resident 

choice is honored, regardless of the 

State in which a resident lives. 

Long-Term Care Ombudsman 

programs were designed by Congress to 

have several features which are 

uncharacteristic of other programs 

created by and funded under the Act. 

Among those features are independence 

(a characteristic of any type of 

ombudsman program), unusually 

stringent disclosure requirements, a 

public policy advocacy function, and 

the Ombudsman responsibility to 

designate local staff and volunteers to 

serve as representatives of the Office 

even if they do not report to the 

Ombudsman for personnel management 

purposes. These distinct features often 

create confusion in implementation 

which this rule is designed to address. 

Summary of the Provisions of the NPRM 

The State Long-Term Care 

Ombudsman program was originally 

created within Title III of the Older 

Americans Act, and there are 

regulations affecting this program in 

Part 1321, Grants to State and 

Community Programs on Aging. This 

rule proposes to amend the following 

section of Part 1321: 

Sec. 1321.11 State Agency Policies 

In addition, the proposed rule 

develops new regulations for the 

Ombudsman program where it currently 

resides in Subtitle A, Chapter 2, of Title 

VII of the OAA, Allotments for 

Vulnerable Elder Rights Protection 

Activities. AoA proposes a new Part 

1327 in order to provide States with 

clarity regarding the operation of the 

Ombudsman program. 

Topics addressed in the newly 

proposed Part 1327 include definitions 

of: 

• Immediate family, 

• Office of the State Long-Term Care 

Ombudsman, and 

• Representative of the Office of the 

State Long-Term Care Ombudsman. 

Other topics addressed in proposed 

Part 1327 include: 

• Establishment of the Office of the 

State Long-Term Care Ombudsman, 

• Functions and Responsibilities of 

the State Long-Term Care Ombudsman, 

• State Agency Responsibilities 

Related to the Long-Term Care 

Ombudsman Program, 

• Functions and Duties of the Office 

of the State Long-Term Care 

Ombudsman, and 

• Conflicts of Interest. 

A. State Agency Policies 

Currently, federal regulations require 

State agencies to monitor the 

performance of programs and activities, 

including, but not limited to, Long-Term 

Care Ombudsman programs. 

With respect to disclosure of 

Ombudsman program files and records, 

Section 712(d) of the Act requires that 

the State agency on aging (also referred 

to as ‘‘State unit on aging’’ and, for 

purposes of these regulations, ‘‘State 

agency’’) establish procedures for 

disclosure and indicates that these 

procedures provide that the files and 

records ‘‘may be disclosed only at the 

discretion of the Ombudsman (or the 

person designated by the Ombudsman 

to disclose the files and records).’’ 

Further, they must prohibit disclosure 

of the identity of any complainant or 

resident with the limited exceptions set 

forth in the Act. See Section 

712(d)(2)(B) of the Act. AoA proposes 

revising section 1321.11 to reflect this 

provision of the Act. 

AoA proposes revising the current 

regulation with respect to State agency 

access to the files, records and other 

information maintained by the 

Ombudsman program in order to 

accommodate the increased use of 

digital information and incorporate 

information obtained verbally and by 

other means while maintaining 

protections for residents. AoA proposes 

use of the term ‘‘files, records, and other 

information’’ in these regulations rather 

than ‘‘files’’ as used in the current 

regulation. The term ‘‘files, records, and 

other information’’ more clearly 

indicates that the disclosure provision 

of Section 712(d) of the Act is not 

dependent on any particular format of 

the files and not limited to information 

contained in case files. For example, 

information collected during individual 

consultation activities which are not 

part of case files also would be subject 

to this provision. 

AoA proposes replacing the following 

provisions in the current regulation at 

45 CFR 1321.11(b) with the following 

provision: 

‘‘The State Long-Term Care 

Ombudsman and his or her designee 

shall be responsible for monitoring the 

files, records, and other information 

maintained by the Office, and shall not 

disclose the identity of any complainant 

or long-term care facility resident to 

individuals outside of the Office, except 

as otherwise specifically provided in 

section 712(d)(2)(B) of the Act.’’ 

This proposal more closely reflects 

the provisions of the Act. However, we 

are aware that State agencies need 

certain information from the 

Ombudsman program in order to fulfill 

their responsibilities related to oversight 

of Ombudsman program operations and 

personnel and/or contract management. 

Aggregate data on Ombudsman program 

activities and complaint processing may 

be sufficient for this purpose and do not 

reveal the identities of any 

complainants or residents. We invite 

comments for the final rule that will 

help us identify an appropriate balance 


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between Ombudsman protection of 

confidential information and State 

oversight responsibilities. 

In addition, AoA proposes to omit 

from 45 CFR 1321.11, the reference to 

Section 307(a)(12). The provision 

numbers have changed in subsequent 

reauthorizations of the Act, and this 

statutory reference is no longer 

necessary within the context of the 

proposed revision. 

B. Definition of Immediate Family 

The term ‘‘immediate family’’ is used 

repeatedly in Section 712(f) of the Act 

but is not defined in the statute. Absent 

a definition, this term has created 

uncertainty and inconsistency among 

States related to the scope of conflicts 

that are required to be identified and 

removed under Section 712(f)(4) of the 

Act. 

AoA proposes to describe 

relationships that could impair the 

judgment or give the appearance of bias 

on the part of an individual who is 

responsible to objectively designate an 

individual as the Ombudsman (under 

Section 712(f)(1) of the Act) or on the 

part of the Ombudsman or officers, 

employees or representatives of the 

Office (under section 712(f)(2) of the 

Act). Therefore, AoA proposes the 

definition of ‘‘Immediate family’’ 

pertaining to conflicts of interest as used 

in section 712 of the Act, means a 

member of the household or a relative 

with whom there is a close personal or 

significant financial relationship. 

The proposed regulation is adapted 

from the federal standards of ethical 

conduct which prohibit federal 

executive branch employees from 

participating in a matter where the 

circumstances would raise a question 

regarding the employee’s impartiality. 

Federal regulations indicate that it 

would be difficult for a federal 

employee to be impartial regarding ‘‘a 

person who is a member of the 

employee’s household or who is a 

relative with whom the employee has a 

close personal relationship’’ or where 

the matter is likely to have a ‘‘direct and 

predictable effect on the financial 

interest of a member of his household.’’ 

5 CFR Section 2635.502(a),(b). 

C. Definition of Office of the State LongTerm Care Ombudsman 

The Older Americans Act requires 

that State Offices of the State Long-Term 

Care Ombudsman make certain 

determinations. These Offices and their 

responsibilities are referenced in 

Section 712, as well as in Sections 

207(b)(3)(E) and 307(a)(9), of the Act. 

Section 711(1) of the Act defines 

‘‘Office’’ as ‘‘the office established in 

section 712(a)(1)(A). There is a need for 

further clarification of the scope of the 

definition of ‘‘Office of the State LongTerm Care Ombudsman’’ due to 

inconsistencies among States and 

confusion regarding the interpretation of 

which individual or individuals 

constitute the ‘‘Office.’’ For example, 

States would benefit from clarification 

regarding who is responsible for making 

determinations specifically required of 

the Office by the Act. 

With respect to several functions, the 

statute indicates that determinations 

must be made by the Office. Interference 

with these determinations could 

constitute interference with the Office, 

which is prohibited under Section 712(j) 

of the Act. 

States have repeatedly requested that 

AoA provide clarification on the 

question of which individual or 

individuals constitute the ‘‘Office.’’ 

Some States have interpreted the 

‘‘Office’’ to mean the Ombudsman and 

representatives of the Office; others 

have interpreted ‘‘Office’’ to mean the 

State agency on aging. 

A 2011 State compliance review 

revealed that AoA’s provision of 

technical assistance and education on 

this question may not have provided 

sufficient clarity to States regarding the 

decision-making authority expected of 

the Office of the State Long-Term Care 

Ombudsman, and more specifically of 

the State Long-Term Care Ombudsman, 

as the head of that Office. Thus, this 

proposed rule clarifies and codifies the 

definition. 

Section 712(a)(2) of the Act states that 

the Office of the State Long-Term Care 

Ombudsman shall be ‘‘headed by an 

individual, to be known as the State 

Long-Term Care Ombudsman.’’ In 

addition, under Section 712(a)(5) of the 

Act, the State Long-Term Care 

Ombudsman has the authority to 

designate local Ombudsman entities and 

employees and/or volunteers to 

represent these entities. The proposed 

definition seeks to clarify for States that 

the State Long-Term Care Ombudsman 

and his or her representatives shall 

constitute the ‘‘Office.’’ Therefore, AoA 

proposes the definition of ‘‘Office of the 

State Long-Term Care Ombudsman’’ as 

set forth at section 1327.1, which 

includes the organizational unit headed 

by the State Long-Term Care 

Ombudsman, including representatives 

of the Office. 

D. Definition of Representatives of the 

Office of the State Long-Term Care 

Ombudsman 

The term ‘‘representatives of the 

Office of the State Long-Term Care 

Ombudsman’’ is used throughout 

Section 712 of the Act. For purposes of 

Subtitle A, Chapter 2, of Title VII, 

Section 711(5) of the Act. The term 

‘representative’ includes an employee or 

volunteer who represents an entity 

designated under section 712(a)(5)(A) 

and who is individually designated by 

the Ombudsman. 

Section 712(a)(5)(A) of the Act further 

indicates that the Ombudsman ‘‘may 

designate an employee or volunteer to 

represent the [local Ombudsman] 

entity.’’ These provisions of the Act 

have created confusion in States’ 

operation of the Ombudsman Program 

because it is unclear whether the 

‘‘representatives of the Office’’ are to 

represent the Office of the State LongTerm Care Ombudsman or to represent 

the local Ombudsman entity or both. 

AoA intends to clarify that the 

representatives of the Office, including 

local staff and volunteers designated by 

the Ombudsman, indeed represent the 

Office (as opposed to the entity by 

which they may be employed or 

managed) when they are carrying out 

duties of the Office. These duties of the 

representatives of the Office are set forth 

in Section 712(a)(5)(B) of the statute. For 

convenience, ACL has included this 

statutory definition of duties at section 

1327.17(a) of the proposed rule. The 

inclusion of these duties into the 

proposed rule does not and is not 

intended to amend the statutory 

language. 

The practical implication of this 

clarification is that the ‘‘representatives 

of the Office’’ are accountable to the 

head of the Office, which is the State 

Long-Term Care Ombudsman under 

Section 712(a)(2) of the Act, for 

purposes of Ombudsman program 

operations. For all programmatic 

operations, the representative represents 

the Office (for example, they must 

follow the policies, procedures and 

guidance of the Ombudsman regarding 

complaint processing and other 

Ombudsman program activities). 

Simultaneously, representatives 

represent the entity (i.e. the ‘‘local 

Ombudsman entity’’) that employs or 

oversees them for personnel 

management matters (for example, they 

must follow the entity’s personnel 

policies so long as those policies do not 

conflict with Ombudsman program law 

and policy). 

Therefore, AoA proposes the 

definition of ‘‘Representatives of the 

Office of the State Long-Term Care 

Ombudsman’’ set forth at section 1327.1 

to clarify that designated employees and 

volunteers serve as representatives of 

the Office. 


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E. Establishment of the Office of the 

State Long-Term Care Ombudsman 

Proposed section 1327.11 governs the 

establishment of the Office pursuant to 

Section 712(a)(1) of the Act and as 

defined in proposed regulation 1327.1. 

See section ‘‘D, Definition of Office of 

the State Long-Term Care Ombudsman,’’ 

above. 

The Act requires that certain 

determinations be made by the Office. 

As proposed in section 1327.11(c)(4), 

AoA clarifies which determinations are 

the responsibilities of the Office, and by 

logical extension, by the head of the 

Office, the Ombudsman, pursuant to 

Section 712(h) of the Act. Because these 

determinations are frequently outside 

the scope of the authority of most State 

employees (most, though not all, State 

Ombudsmen are State employees), 

clarification would assist States in full 

implementation of the Act. 

Specifically, these determinations 

include: 

• Determinations regarding disclosure 

of information maintained by the 

program within the limitations as set 

forth in Section 712(d) of the Act; 

• Recommendations to changes in 

Federal, State and local laws, 

regulations, policies and actions 

pertaining to the health, safety, welfare, 

and rights of residents as set forth in 

Section 712(h)(2) of the Act; and 

• Provision of information to public 

and private agencies, legislators, and 

other persons, regarding the problems 

and concerns of residents and 

recommendations related to the 

problems and concerns as set forth in 

Section 712(h)(3) of the Act. 

The Act indicates that the 

recommendations made by and the 

information provided by the Office are 

limited to issues impacting residents of 

long-term care facilities and services. 

See, e.g., 712(a)(3)(G), 712(h)(2). In order 

to reduce confusion at the State level 

where the recommendations of an 

Ombudsman might be mistaken for the 

position of the Governor or the State 

agency, another agency carrying out the 

Ombudsman program, or any other State 

agency, AoA proposes the provision in 

section 1327.11(c)(4) to indicate 

determinations are those of the Office of 

the State Long-Term Care Ombudsman 

and do not represent other state 

governmental entities. 

F. Functions and Responsibilities of the 

State Long-Term Care Ombudsman 

AoA proposes clarification regarding 

the appropriate role and responsibilities 

of the Ombudsman, as the ‘‘head of the 

Office.’’ The functions of the 

Ombudsman are set forth in Section 

712(a)(3) of the statute. For 

convenience, ACL has included this 

statutory text at section 1327.13(a) of the 

proposed rule. The inclusion of these 

functions into the proposed rule does 

not and is not intended to amend the 

statutory language. 

AoA has indicated in a letter to a 

State that the State Unit on Aging (SUA) 

and the Office of the State Long-Term 

Care Ombudsman are distinct entities 

within the OAA. Section 305(a) of the 

OAA, requires the State to designate a 

single State agency to carry out the 

requirements of the Act. Whether the 

Long-Term Care Ombudsman is placed 

within the single State agency, or by 

contract with an entity outside the State 

agency, the OAA is explicit that the 

Long-Term Care Ombudsman is to be 

established in, and is to carry out his or 

her functions in, a separate ‘Office.’ 42 

U.S.C. 3058f(1); 3058g(a)(1)(A). 

Ombudsman Responsibility With 

Respect to Designation and Dedesignation of Representatives 

Some States have indicated the need 

for more clarification about who has 

authority to de-designate ombudsman 

employees and volunteers so that a 

formerly designated individual is no 

longer authorized to act as a 

representative of the Office. Other States 

have established policies and 

procedures to clarify that the 

Ombudsman has the sole authority to 

designate and, consistent with that 

authority, also the sole authority to dedesignate representatives of the Office. 

Since the Ombudsman is the 

individual solely authorized to 

designate representatives pursuant to 

Section 712(a)(5) of the Act, the 

Ombudsman has sole authorization to 

de-designate representatives of the 

Office. Without such authority, the 

Ombudsman would have significant 

limitations in his or her ability to 

determine the individuals qualified to 

represent the Office and to remove such 

designation where a representative fails 

to adhere to program requirements. In 

order to respond to this inconsistency 

among States in the understanding of 

the authority of the Ombudsman to dedesignate, AoA proposes to clarify that 

the Ombudsman has the sole authority 

both to designate and de-designate in 

section 1327.13(c). This provision is not 

intended to limit the authority of the 

Ombudsman to delegate certification 

training and examination processes or to 

receive recommendations of designation 

or de-designation from representatives 

of the Office, but clarifies that the 

Ombudsman is responsible to make the 

final determination of designation and 

de-designation of representatives of the 

Office. 

Ombudsman Responsibility With 

Respect to Area Plans 

Although the Ombudsman has 

statutory authority to designate local 

Ombudsman entities, the involvement 

of the Ombudsman in the planning of 

Ombudsman program operations by 

such local Ombudsman entities is not 

directly addressed in the Act. In many 

States, local Ombudsman entities 

include area agencies on aging (AAAs) 

and/or AAAs subcontract to non-profit 

agencies to serve as local Ombudsman 

entities. In these States, area plans 

include fiscal and programmatic 

provisions related to the operation of 

the Ombudsman program by the local 

Ombudsman entity. Those individuals 

working for the local Ombudsman entity 

and designated by the Ombudsman 

serve as representatives of the 

Ombudsman and, therefore, are within 

the definition of the ‘‘Office’’ as set forth 

in section 1327.1. AoA proposes that the 

Ombudsman, as head of the Office, be 

held responsible to review and approve 

the portions of area plans, submitted 

pursuant to section 306 of the Act, 

which are related to the Ombudsman 

program so that the work of Office is 

coordinated by—and the local 

Ombudsman entities are held 

accountable to—the Ombudsman. In 

addition, given the State agency role in 

reviewing and approving area plans 

pursuant to section 306 of the Act, the 

Ombudsman should conduct such 

review and approval in coordination 

with the State agency. These 

requirements are set forth at section 

1327.13(d). 

Ombudsman Responsibility With 

Respect to Ombudsman Program 

Information 

Section 712(d)(2)(A) of the Act 

indicates that ‘‘files and records 

[maintained by the Ombudsman 

program] may be disclosed only at the 

discretion of the Ombudsman (or the 

person designated by the Ombudsman 

to disclose the files and records).’’ 

Many of the files, records, and other 

information maintained by the 

representatives of the Office are 

physically maintained at the offices of 

the designated local Ombudsman 

entities (including, but not limited to, 

AAAs). This can create confusion about 

who has the authority to make 

determinations about the disclosure and 

maintenance of the files, records, and 

other information of the Office even 

though the Act clearly gives the sole 

discretion for their disclosure to the 

Ombudsman or his or her designee. 


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3 IOM Report (1995) at pp. 199–200. 

Therefore, AoA proposes to clarify that 

the files, records, and other information 

of the Office shall be controlled by the 

Ombudsman and are the property of the 

Office, including when such files, 

records, and other information are 

maintained by a local Ombudsman 

entity or representatives of the Office. 

AoA uses the term ‘‘files, records, and 

other information’’ to indicate that the 

disclosure provision of Section 712(d) of 

the Act should not be dependent upon 

any particular format of the files. In 

addition, because the Act does not limit 

the disclosure of files, records and other 

information to paper copies—and since 

electronic recordkeeping is increasingly 

the norm—AoA proposes that the 

requirements related to files, records 

and other information apply to physical, 

electronic, or other formats. 

AoA proposes the provision regarding 

the responsibility of the Ombudsman to 

manage Ombudsman program 

information at section 1327.13(e). 

Ombudsman Responsibility With 

Respect to Disclosure of Files, Records 

and Other Information 

AoA proposes, at section 1327.13(f), 

to include within the responsibility of 

the Ombudsman, decisions related to 

disclosure of information in the 

possession of the Office in addition to 

information contained within case files 

(for example, information obtained 

during consultations with individuals or 

facilities). See also section ‘‘A. State 

Agency Policies,’’ above, and section 

‘‘H. State Agency Responsibilities 

Related to the Long-Term Care 

Ombudsman Program,’’ below. 

Ombudsman Responsibility With 

Respect to Determining the Use of the 

Fiscal Resources 

In its evaluation of Long-Term Care 

Ombudsman programs, the Institute of 

Medicine recommended to the Assistant 

Secretary for Aging: 

‘‘6.4 The committee recommends that 

the Assistant Secretary for Aging issue 

program guidance to states that stresses 

the importance of delegating to the 

Office of the State Long-Term Care 

Ombudsman responsibility for 

managing all of the human and fiscal 

resources earmarked for the state 

ombudsman program within the 

boundaries of what is permitted by state 

budget policy and procedures and 

required by federal mandates for 

compliance. . . .’’ 3. 

AoA agrees with the recommendation 

that the head of the Office should be 

responsible for managing the fiscal 

resources of the Office. AoA proposes 

that the Ombudsman be held 

responsible for determining the use of 

fiscal resources appropriated or 

otherwise designated for the Office, 

subject to applicable Federal and State 

laws and policies, as set forth at section 

1327.13(i). 

Ombudsman Responsibility With 

Respect To Monitoring Local 

Ombudsman Entities 

The Ombudsman, as head of the 

Office, has responsibility for designating 

local Ombudsman entities pursuant to 

section 712(a)(5) of the Act. So that the 

work of Office is coordinated by and the 

local Ombudsman entities are 

accountable to the Ombudsman, AoA 

proposes that, where an Ombudsman 

designates local Ombudsman entities, 

the Ombudsman be held responsible to 

monitor the Ombudsman program 

performance of such entities as set forth 

in section 1327.13(j). 

Ombudsman Responsibility With 

Respect To Coordination of 

Ombudsman Activities With Other 

Elder Rights, Disability Rights, and 

Elder Justice Entities 

The Act requires that the State agency 

require the Office to coordinate with 

protection and advocacy systems, legal 

assistance, State and local law 

enforcement agencies, and courts of 

competent jurisdiction. Section 

712(h)(6)–(8) of the Act. In another part 

of the Act, the Ombudsman program is 

listed among the programs and services 

which protect elder rights or promote 

elder justice and for which coordination 

of efforts is required by the Act. See 

Section 721(d) of the Act. 

In section 1327.13(l), AoA proposes a 

list of the relevant entities covered by 

the Act, including AAA programs, adult 

protective services programs, protection 

and advocacy systems, facility and longterm care provider licensure and 

certification programs, State Medicaid 

fraud control units, etc. The proposal 

also establishes the statewide leadership 

role of the Ombudsman in coordinating 

the activities of the Office with those of 

these elder rights and elder justice 

programs. 

G. State Agency Responsibilities Related 

to the Long-Term Care Ombudsman 

Program 

The proposed rule defines the 

appropriate role and responsibilities of 

the State agency on aging (also referred 

to as ‘‘State unit on aging’’ or, for 

purposes of these regulations, ‘‘State 

agency’’) related to the establishment 

and operation of the Ombudsman 

program. A primary responsibility of the 

State agency related to the operation of 

the Ombudsman program is to establish 

the policies and procedures which 

enable the Ombudsman program to 

operate in accordance with the Act. The 

Act requires that the State agency 

establish, in accordance with the Office, 

policies and procedures regarding how 

the Office will fulfill its functions. 

Section 712(a)(5)(D). AoA proposes 

consolidating the State agency 

responsibilities related to the 

Ombudsman that are included in the 

Act into section 1327.15. 

State Agency Responsibility With 

Respect to Standards for Complaint 

Response 

In its 1999 report, the HHS Inspector 

General recommended that AoA work 

with States to develop guidelines for 

complaint response and resolution 

times. . . .’’ While numerous States 

have developed such standards, others 

have not yet done so. Through section 

1327.15(a)(2)(B), AoA proposes that 

States develop standards related to 

complaint response times and further 

requires standards to assure prompt 

response that prioritize abuse, gross 

neglect, exploitation and time-sensitive 

complaints. AoA believes that States are 

best suited to establish these standards 

due to the wide variation among States 

in terms of resources available to the 

Ombudsman program, density of 

population centers, geographic 

distribution of facilities, and similar 

State-specific factors which would make 

a national standard difficult to 

implement. 

State Agency Responsibility With 

Respect to Disclosure of Resident or 

Complainant Identifying Information 

Under Section 712(d) of the Act, 

States must ensure that the Ombudsman 

and representatives of the Office are 

prohibited from disclosing the identity 

of any complainant or resident, except 

as specifically authorized in the statute. 

This requirement also applies to 

situations of reporting abuse, gross 

neglect or exploitation notwithstanding 

State laws to the contrary. This is 

consistent with AoA’s long-standing 

position. 

The Older Americans Act [Section 712(d)(2)] 

prohibits disclosure of the identity of any 

complainant or resident by the ombudsman, 

unless the complainant or resident, or the 

resident’s legal representative, consents, or a 

court orders the disclosure. In contrast to, 

and sometimes in conflict with, the Federal 

law, a number of States have mandatory 

reporting requirements for individuals— 

including ombudsmen—who know of or 

suspect adult abuse, neglect, or exploitation. 

AoA proposes that the disclosure 

procedures must comply with the 


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‘‘Complaint Processing’’ provisions of 

the proposed regulations, section 

1327.17(b), in which AoA clarifies 

exceptions (specifically related to 

suspected abuse, gross neglect and 

exploitation complaints), when 

disclosure of the identity of a resident 

by the Ombudsman may be permitted to 

appropriate entities. These include 

circumstances when the Ombudsman or 

representative of the Office is processing 

a complaint related to the resident, and: 

(a) The resident is unable to 

communicate informed consent to the 

Ombudsman or representative of the 

Office, has no guardian or other legal 

representative, and the Ombudsman or 

representative of the Office has reason 

to suspect that the resident is a victim 

of abuse, gross neglect, or exploitation; 

or 

(b) The resident is unable to 

communicate informed consent to the 

Ombudsman or representative of the 

Office, and the resident has a guardian 

or other legal representative who the 

Ombudsman or representative of the 

Office has reasonable cause to believe is 

a perpetrator of abuse, gross neglect, or 

exploitation of the resident. 

In addition, AoA proposes that the 

Ombudsman must disclose the identity 

of a resident where the Ombudsman or 

representative of the Office personally 

witnesses suspected abuse, gross neglect 

or exploitation of a resident, so long as 

(1) the resident at issue does not request 

the Ombudsman or representative to not 

make a report of the suspected activity 

witnessed by the Ombudsman or 

representative and (2) the Ombudsman 

determines it to be in the best interest 

of the resident. 

In both of these circumstances, the 

proposed rule requires that such 

disclosure only be permitted where the 

Ombudsman or representative of the 

Office has reasonable cause to believe 

that it is in the best interest of the 

resident to make a referral and the 

representative obtains the approval of 

the Ombudsman. 

AoA intends the proposed regulations 

to address areas where clarification is 

needed regarding access to files, 

records, and other information 

maintained by the Office. First, this 

provision addresses questions regarding 

whether State units on aging, area 

agencies on aging or any other entities 

with monitoring responsibility have 

access to Ombudsman information. See 

also section ‘‘A. State Agency Policies,’’ 

above. Note that this proposed 

regulation does not limit the disclosure 

of aggregate information, performance 

measures, and similar performance data 

to monitoring agencies. Instead, it 

implements the statutory provision that 

the Ombudsman is prohibited from 

disclosing the identities of residents or 

complainants without obtaining 

appropriate consent or unless required 

by court order, pursuant to Section 

712(d) of the Act. 

Second, the proposed regulation 

clarifies that the requirements related to 

files, records and information apply 

regardless of funding source, including 

funds from Title VII, Chapter 3, of the 

Act. The provision in Chapter 3 of the 

Act which has created confusion on this 

issue states: 

[A]ll information gathered in the course of 

receiving reports and making referrals shall 

remain confidential except. . . (ii) if the 

release of such information is to a law 

enforcement agency, public protective 

service agency, licensing or certification 

agency, ombudsman program, or protection 

or advocacy system. . . . 

Section 705(a)(6)(C) of the Act. 

While Title VII of the Act does 

provide for an exception which permits 

the release of otherwise confidential 

information with respect to the 

programs funded through Chapter 3, 

Chapter 2 (the chapter related to the 

Ombudsman Program) contains no 

similar exception for the release of 

confidential information to law 

enforcement and similar agencies absent 

appropriate consent or a court order. 

See Section 712 (d)(2) of the Act. 

AoA proposes use of the term ‘‘files, 

records, and other information’’ in these 

regulations rather than ‘‘files and 

records’’ as used in Section 712(d) of the 

Act. See section ‘‘G, Functions and 

Responsibilities of the State Long-Term 

Care Ombudsman,’’ above. The 

proposed rule clarifies that the State, in 

providing for Ombudsman program 

procedures for appropriate disclosure, 

shall develop procedures related to at 

least the following types of files, 

records, and information (each of which 

is specifically referenced within Section 

712 of the Act): medical and social 

records of residents; administrative 

records, policies, and documents of 

long-term care facilities; licensing and 

certification records maintained by the 

State with respect to long-term care 

facilities; and data collected in the 

statewide uniform reporting system of 

the Ombudsman program. 

This proposed regulation uses the 

term ‘‘communication of informed 

consent’’ to describe the manner in 

which Ombudsmen and representatives 

of the Office obtain consent from 

residents (or complainants or legal 

representatives, where applicable) for 

purposes of disclosure. The Act 

prohibits disclosure of the identity of 

any complainant or resident without 

appropriate ‘‘consent.’’ Section 

712(d)(2)(B) of the Act. Since the 

Ombudsman and representatives of the 

Office provide an advocacy service, but 

do not perform clinical assessments or 

make legal determinations related to 

ability to consent, the Ombudsman or 

representatives of the Office must rely 

on the ability of the individual to 

communicate consent (whether verbally 

or written, including through the use of 

assistive technology). In addition, the 

Ombudsman and representatives of the 

Office will want to be assured that the 

resident (or complainant or legal 

representative) appears to understand 

that to which he or she is consenting. 

Therefore, the proposed rule requires 

the State agency to maintain the 

confidentiality and protection of 

identifying information of residents or 

complainants and only allow disclosure 

consistent with the proposed rule. 

State Agency Responsibility With 

Respect to State Lobbying Prohibitions 

To be eligible for Older Americans 

Act funding, the State agency must 

require that the Office perform certain 

activities, set forth in section 

1327.15(h). These activities are 

identified in statute and required of 

entities receiving federal funding under 

the OAA. They include recommending 

changes in laws, regulations and policy 

and providing information to public and 

private agencies and legislators as the 

Office determines to be appropriate. 

These provisions must be carried out 

notwithstanding any State laws or 

regulations, such as restrictions on 

lobbying, which may be in conflict with 

such provisions. Section 

1327.15(a)(2)(E) establishes the State 

agency’s responsibilities with respect to 

excluding the Ombudsman and 

representatives of the Ombudsman 

Office from state lobbying prohibitions. 

State Agency Not Prohibited From 

Consulting on Ombudsman 

Determinations 

Questions have arisen from States 

regarding whether it is permissible for a 

State agency to require consultation 

regarding the determinations of the 

Office. AoA has long maintained that 

consultation, so long as it does not 

interfere with the functions of the 

Office, is not prohibited and has 

provided such guidance to States. The 

OAA does not prohibit States from 

seeking comments or in-put, including 

from the State Unit on Aging, provided 

that in the end the Ombudsman retains 

the absolute right to decide what finally 

should be presented by the Office. Such 

cooperation ensures that the SUA and 

the Ombudsman’s office would not 

needlessly duplicate their efforts. The 


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4AoA Program Issuance 94–02; see also AoA 

Fiscal Guide, Older Americans Act, Titles III and 

VII (May 2004). 

SUA may also have valuable 

information as well as recommendations 

to contribute which the Ombudsman 

might decide to accept. Even where the 

SUA and Ombudsman’s Office 

ultimately disagree, such advance notice 

and consultation permit both entities to 

coordinate their reports to the State 

legislature, thereby furthering a truly 

informed debate to the benefit of the 

legislature and other policy makers. 

The Act places the Ombudsman in a 

unique position within States. To 

eliminate confusion, the proposed rule 

seeks to clarify that States may 

appropriately coordinate with 

Ombudsman programs while, at the 

same time, the rule reaffirms that the 

Office makes independent 

determinations. Therefore, AoA 

proposes the provision clarifying that 

the State agency is not prohibited from 

consulting on Ombudsman 

determinations at section 

1327.15(a)(2)(E)(ii). The proposed rule 

further indicates that policies which 

promote consultation may not limit the 

ability of the Office to fulfill its 

functions and duties. Therefore, in 

circumstances in which advanced 

communication is impractical or would 

interfere with the independent 

determination of the Ombudsman, a 

State policy could not require advanced 

communication of the determinations of 

the Office. 

State Agency Responsibility To Provide 

Ombudsman Access to Training 

In response to questions from States 

regarding appropriate uses of Title III– 

B and Title VII, Subtitle A, Chapter 2 

funds, AoA proposes to clarify that a 

State agency may appropriately utilize, 

these funds to meet the State agency 

responsibility with respect to the 

training needs of the Ombudsman. In 

addition, Section 301(c) of the Act 

requires the Assistant Secretary for 

Aging (ASA) to provide training and 

technical assistance to State 

Ombudsman programs. In some cases, 

Ombudsmen are prevented from 

attending training provided by the AoAfunded National Ombudsman Resource 

Center because of limits on State 

administrative funds. Representatives of 

the Office may have difficulty accessing 

other necessary training to perform their 

duties without access to these resources. 

AoA has previously issued guidance 

saying that States may use Title III, Part 

B funds to fund any aspect of the 

statewide Ombudsman Program, as the 

program is defined in Section 712 of the 

Act. It has also said that States may not 

include any Title VII funding in their 

calculation of funds available for State 

plan administration. The programs 

under Title VII, unlike most of the 

programs under Title III, are established 

and operated as direct advocacy services 

by the State Agency on Aging and/or 

agencies with which the State Agency 

contracts or provides grants to operate 

the programs.4

Since the Title III–B and Title VII 

funds used for the Ombudsman program 

are considered service dollars, States 

may use these funds to carry out 

Ombudsman services. Adequate training 

in order to provide this service is a 

reasonable cost of providing the service. 

Through this proposed rule, AoA 

clarifies for States that Title III–B and/ 

or Title VII–2 (i.e. Ombudsman service) 

funds may be used for the purposes of 

the Ombudsman and representatives of 

the Office accessing and/or providing 

service-related training and, in fact, may 

be used in lieu of ‘‘administrative 

funds’’ provided to States under Title 

III–A. Therefore, AoA proposes the 

provision regarding responsibility of the 

State agency to provide Ombudsman 

and representatives of the Office access 

to training at section 1327.15(a)(3). 

State Agency Responsibilities With 

Respect to Personnel Management and 

Program Monitoring 

Where the Ombudsman and any 

representatives of the Office are 

employed by the State agency, AoA 

expects the State agency, as the 

employer, to provide supervision and 

management of Ombudsman program 

personnel, while respecting the limits 

on access to resident or complainantidentifying information, as included in 

the proposed rule. In addition, State 

agencies have a responsibility to 

establish policies for monitoring the 

performance of all programs and 

activities initiated under the Act for 

quality and effectiveness. Therefore, 

where the Office is outside of the State 

agency, the State agency has a 

responsibility to monitor the contract or 

other arrangement through which the 

Ombudsman program is carried out, 

while respecting the limits on access to 

information, as included in the 

proposed rule. 

In both its personnel management and 

program monitoring responsibilities, the 

State is subject to limits on its access to 

the files, records and other information 

of the Ombudsman program. While the 

State agency may review aggregate data 

and analyze reports of Ombudsman 

program performance, it may not have 

access to information that is prohibited 

to be shared outside of the Ombudsman 

program by the Act. The proposed 

regulation clarifies the State agency 

responsibility regarding personnel 

supervision and management and 

regarding program monitoring, 

including with respect to prohibitions 

related to disclosure of files and records 

in Section 712(d) in the Act. See also 

sections ‘‘A. State Agency Policies,’’ and 

‘‘G. Functions and Responsibilities of 

the State Long-Term Care Ombudsman,’’ 

above. Therefore, AoA proposes the 

provision regarding the responsibilities 

of the State agency with respect to 

personnel management and program 

monitoring at section 1327.15(a)(4),(5). 

State Agency Responsibility With 

Respect to Coordinating Elder Rights, 

Disability Rights, and Elder Justice 

Programs 

The Act requires the Assistant 

Secretary to ‘‘provide Federal leadership 

to support State efforts in carrying out 

elder justice program and activities.’’ 

Section 201(e)(2)(A)(ii) of the Act. This 

duty includes ‘‘promoting collaborative 

efforts and diminishing duplicative 

efforts in the development and carrying 

out of elder justice programs at the 

Federal, State and local levels.’’ Section 

201(e)(2)(A)(ix) of the Act. In addition, 

the Act requires State agencies to 

‘‘coordinate the programs [to address 

elder abuse, neglect and exploitation] 

with other State and local program and 

services for the protection of vulnerable 

adults. . . .’’ Section 721(d) of the Act. 

Among the programs specifically listed 

for coordination, are State Long-Term 

Care Ombudsman programs. Section 

721(d)(3) of the Act. 

The proposed rule emphasizes the 

importance of States’ coordinating role 

being integrated into the State plan 

process. It also requires coordination of 

Title VII program activities to promote 

State-level alignment with the duties of 

the Assistant Secretary as set forth in 

Section 201(e)(2) of the Act. Therefore, 

AoA proposes the provision regarding 

responsibility of the State agency to 

coordinate elder rights, disability rights, 

and elder justice programs at section 

1327.15(a)(6)–(7). 

State Agency Responsibility With 

Respect to Non-Interference 

States are required by the Act to 

ensure that willful interference with 

representatives of the Office in the 

performance of their official duties shall 

be unlawful. Section 712(j)(1) of the Act. 

These duties are set forth in section 

1327.17(a). Proposed section 

1327.15(a)(8) clarifies that interference 

is not limited to interference by 

facilities or other third parties, but that 

State agencies on aging and local 


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5AoA maintains the National Ombudsman 

Reporting System in order to receive reports on 

program activities, characteristics, and funding; 

complaint resolution; and recommendations for 

long-term care systems change from State LongTerm Care Ombudsman Programs. OMB No. 0985– 

0005. 

6OMB No. 0985–0005 at p. 5 

Ombudsman entities are also subject to 

the prohibition on interference. In 

fulfilling their statutory duty to protect 

the Ombudsman program from 

interference, State agencies may not 

themselves interfere with the 

Ombudsman program’s ability to 

perform its official duties. 

State Agency Responsibility With 

Respect to Access to Records 

The Act requires that the State agency 

ensure that representatives of the Office 

have access to facilities, residents, and 

resident records pursuant to Section 

712(b) of the Act. With respect to access 

to resident records, the Act states: 

The State shall ensure that 

representatives of the Office shall 

have * * * 

(i) appropriate access to review the 

medical and social records of a resident, 

if— 

(I) The representative has the 

permission of the resident, or the legal 

representative of the resident; or 

(II) the resident is unable to consent 

to the review and has no legal 

representative; or 

(ii) Access to the records as is 

necessary to investigate a complaint if— 

(I) A legal guardian of the resident 

refuses to give the permission; 

(II) A representative of the Office has 

reasonable cause to believe that the 

guardian is not acting in the best 

interests of the resident; and 

(III) The representative obtains the 

approval of the Ombudsman. * * * 

Section 712(b)(1)(B) of the Act. 

AoA has received reports of long-term 

care facilities, state government 

agencies, and other entities denying 

Ombudsmen or representatives of the 

Office access to resident records due to 

concerns that the Health Insurance 

Portability and Accountability Act of 

1996 (HIPAA) Privacy Rule does not 

permit the disclosure. AoA has 

previously provided program guidance 

to States that the HIPAA Privacy Rule, 

45 CFR Part 160 and Subparts A and E 

of Part 164, does not preclude release of 

residents’ medical and social records to 

the Office. AoA Information 

Memorandum 03–01, February 4, 2003 

(available at http://www.aoa.gov/ 

AOARoot/AoA_Programs/OAA/ 

Aging_Network/im/docs/ 

Info_Memoradum_%20HIPAA.pdf). 

Proposed section 1327.15(b)(1) clarifies 

that the State agency has a 

responsibility to establish policies and 

procedures consistent with this HIPAA 

guidance in order to provide 

representatives of the Office with 

appropriate access to resident records. 

State Agency Requirements of the Office 

The Act sets forth specified activities 

that States must require of the Office in 

the administration of the Ombudsman 

program. Section 712(h) of the Act. For 

convenience, ACL has included this 

statutory text at section 1327.15(c) of the 

proposed rule. The inclusion of these 

requirements into the proposed rule 

does not and is not intended to amend 

the statutory language. 

H. Functions and Duties of the Office of 

the State Long-Term Care Ombudsman 

Section 1327.17 includes provisions 

related to both the functions that may be 

performed by the State Long-Term Care 

Ombudsman (the ‘‘Ombudsman’’) and/ 

or the duties which may be performed 

by the representatives of the Office, as 

opposed to solely by the Ombudsman. 

(The functions which are the sole 

responsibility of the Ombudsman are 

found under section ‘‘G, Functions and 

Responsibilities of the State Long-Term 

Care Ombudsman,’’ above.) 

Proposed section 1327.17(a) sets forth 

the duties of the representatives of the 

Office as set forth in Section 712(a)(5)(B) 

of the statute. For convenience, ACL 

included this statutory text at section 

1327.17(a) of the proposed rule. The 

inclusion of these duties into the 

proposed rule does not and is not 

intended to amend the statutory 

language. The complete list of functions 

statutorily required of the Ombudsman 

is found above at section 1327.13(a). 

For convenience, AoA proposes 

compiling regulations which relate to 

both the functions of Ombudsman and 

the duties of the Office (i.e. those which 

may be performed by either the 

Ombudsman and/or the representatives 

of the Office) into this section. 

Complaint Processing 

The requirement to ‘‘identify, 

investigate, and resolve complaints 

made by or on behalf of residents’’ is a 

required function of the Ombudsman 

under Section 712(a)(3)(A) of the Act 

and a required duty of representatives of 

the Office under Section 712(a)(5)(B)(iii) 

of the Act. While facilities, family 

members, agencies, or other individuals 

may indirectly benefit from the 

complaint resolution work of the Office, 

complaint processing by the Office must 

focus on seeking an outcome that 

satisfies the resident. Therefore, section 

1327.17(b)(1) of the proposed rule 

defines the resident as the primary 

recipient of Ombudsman program 

services and sets forth the purposes of 

the Ombudsman program complaint 

process as follows: 

(1) Resolving the complaint to the 

resident’s satisfaction, and 

(2) assisting residents in protecting 

their health, safety, welfare, and rights. 

The Act provides that the resolution 

of complaints made by, or on behalf of, 

residents is a function of the 

Ombudsman and a duty of 

representatives of the Office. Sections 

712(a)(3)(A); 712(a)(5)(B)(iii) of the Act. 

Through its National Ombudsman 

Reporting System (NORS) 5 instructions, 

States report on resolved complaints 

only if they meet the following 

definition: ‘‘Definition of resolved 

complaint: The complaint/problem was 

addressed to the satisfaction of the 

resident or complainant.’’ 6

In proposed section 1327.17(b)(2)(A), 

AoA describes how this person-centered 

focus is implemented into complaint 

processing activities. The proposed rule 

indicates that, regardless of the source 

of the complaint, the Ombudsman or 

representative of the Office shall discuss 

the complaint with the resident in order 

to determine the perception of the 

resident, request consent in order to 

investigate the complaint, determine the 

wishes of the resident, advise the 

resident of his or her rights, work with 

the resident to develop a plan of action, 

investigate the complaint, and 

determine whether the complaint is 

resolved to the satisfaction of the 

resident. 

The Act also requires as a function of 

the Ombudsman: ‘‘provide services to 

assist the residents in protecting the 

health, safety, welfare, and rights of the 

residents;’’ and as a duty of the 

representatives of the Office: ‘‘provide 

services to protect the health, safety, 

welfare, and rights of residents.’’ 

Sections 712(a)(3)(B); 712(a)(5)(B)(i) of 

the Act. 

Minimal new burden will be placed 

on the States, State agencies on aging, 

AAAs, Ombudsmen, or the Office 

because these proposed regulations in 

section 1327.17(b) are largely consistent 

with the present practice as set forth in 

the National Ombudsman Reporting 

System (NORS) instructions which 

States currently follow in submitting 

Ombudsman program performance 

reports annually to AoA. 

Communication of Informed Consent by 

a Resident 

At several places in the Act, the 

Ombudsman and representatives of the 

Office must rely on the ‘‘permission’’ 


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7OMB No. 0985–0005 at p. 5. 

(see, e.g., Section 712(b) of the Act) or 

‘‘consent’’ (see, e.g., Section 712(d)(2)(B) 

of the Act) of the resident, (or legal 

representative, where applicable). Since 

the Ombudsman and representatives of 

the Office provide an advocacy service, 

but do not perform clinical assessments 

or make legal determinations related to 

ability to consent, the Ombudsman or 

representatives of the Office must rely 

on the ability of the individual to 

communicate consent (whether verbally 

or written including through the use of 

assistive technology). 

In addition, the Ombudsman and 

representatives of the Office will want 

to be assured that the resident (or legal 

representative, where applicable) 

appears to understand to what he or she 

is consenting. Therefore, throughout the 

regulations, the term ‘‘communication 

of informed consent’’ is used to describe 

the interaction between residents (or 

their legal representative, where 

applicable) and Ombudsmen and 

representatives of the Office. 

The Ombudsman and representatives 

of the Office have a duty to ‘‘provide 

services to protect the health, safety, 

welfare, and rights of residents.’’ 

Section 712(a)(5)(B)(i); see also 

712(a)(3)(B) of the Act. This may be 

impossible for the Ombudsman or 

representatives of the Office to 

accomplish where the resident is unable 

to provide informed consent and where 

there is no legal representative to 

provide informed consent on behalf of 

the resident. Therefore, AoA proposes, 

at section 1327.17(b)(2)(B), that the 

Ombudsman or representative of the 

Office shall determine whether the 

complaint was resolved ‘‘in a manner 

that is in the resident’s best interest’’ in 

circumstances where the resident is 

unable to provide informed consent and 

where there is no legal representative to 

provide informed consent on behalf of 

the resident. 

The ‘‘resident’s best interest’’ 

standard is proposed only in the 

circumstance where the resident is 

unable to provide informed consent and 

where there is no legal representative to 

provide informed consent on behalf of 

the resident. In all other circumstances, 

the current NORS instruction applies, 

which defines ‘‘resolved complaint’’ as 

‘‘The complaint/problem was addressed 

to the satisfaction of the resident or 

complainant.’’ 7 AoA seeks comment on 

this provision, noting that this proposed 

standard differs from the current NORS 

instruction in specified circumstances. 

As stated above regarding proposed 

section 1327.15(b)(2)(c), the proposed 

regulations provide that the State 

procedures for disclosure under Section 

712(d) of the Act must provide that the 

Ombudsman and representatives of the 

Office shall not be required to report 

abuse, neglect or exploitation, despite 

State laws to the contrary, where such 

report would constitute disclosure 

prohibited by the Act. Through 

proposed section 13271.17(b)(3), AoA 

seeks to clarify the disclosure 

requirements of the Act with respect to 

abuse reporting and provide limited 

circumstances in which disclosure is 

permitted, i.e. where an individual may 

be at risk and unable to indicate his or 

her wishes related to disclosure. 

Communication of Informed Consent by 

a Representative of a Resident 

Where an Ombudsman or 

representative of the Office is processing 

a complaint on behalf of a resident, but 

the resident is unable to communicate 

informed consent and has an authorized 

representative, the proposed regulations 

clarify that the Ombudsman or 

representative of the Office has the 

authority to rely on the guidance of a 

guardian or other legal representative. 

However, the provision qualifies this 

reliance ‘‘so long as the Ombudsman or 

representative of the Office has no 

reasonable cause to believe that the 

representative of the resident is not 

acting in the best interests of the 

resident.’’ The purpose of this limitation 

is to conform to the principle stated in 

Section 712(b)(1)(B)(ii) of the Act: 

‘‘The State shall ensure that 

representatives of the Office shall have 

. . . access to the records access to the 

records as is necessary to investigate a 

complaint if— 

(I) a legal guardian of the resident 

refuses to give the permission; 

(II) a representative of the Office has 

reasonable cause to believe that the 

guardian is not acting in the best 

interests of the resident; and 

(III) the representative obtains the 

approval of the Ombudsman. . . .’’ 

Section 712 of the Act at various 

places uses the terms ‘‘guardian’’ (e.g., 

712(a)(3)(A)(ii)) and ‘‘legal 

representative’’ (e.g., 712(b)(1)(B)(i)(I), 

712(d)(2)(B)(i)). AoA proposes to use the 

term ‘‘guardian or other legal 

representative’’ throughout the 

proposed regulations to clarify that the 

Ombudsman and representatives of the 

Office may rely, where appropriate, on 

the communications of a resident’s 

guardian or other legally authorized 

representative (such as a health care 

proxy or financial power of attorney 

authorized by the resident). In many 

cases, a resident may have previously 

authorized someone to make decisions 

on his or her behalf and, therefore, may 

not need a court-appointed guardian 

even if he or she meets the standard of 

incapacity for appointment of a 

guardian. Therefore, AoA proposes the 

provision regarding communication of 

informed consent by the representative 

of the resident at section 1327.17(b)(5). 

Abuse Reporting Where a Resident Is 

Unable To Communicate Informed 

Consent to Disclosure 

In fiscal year 2011, 9% of the 204,044 

complaints investigated, resolved and 

closed by Ombudsman programs were 

complaints of abuse, gross neglect or 

exploitation (represented by A, P–117, 

and P–121 codes in the National 

Ombudsman Reporting System (NORS)). 

NORS Instructions provide guidance 

and definitions to Ombudsman 

programs regarding the reporting of 

complaints related to abuse, gross 

neglect and exploitation. 

Under Sections 712(a)(3)(B) and 

712(a)(5)(B)(i) of the Act, the 

Ombudsman and representatives of the 

Office have a duty to ‘‘provide services 

to assist the residents in protecting the 

health, safety, welfare, and rights of the 

residents.’’ Where a resident is able to 

consent related to disclosure of his or 

her identity, the provisions of Section 

712(d) of the Act require the 

Ombudsman and the representatives of 

the Office to prohibit disclosure absent 

consent. 

The Act requires the Office to 

‘‘provide service to protect the health, 

safety, welfare, and rights of the 

residents.’’ Section 712(a)(5)(B)(i) of the 

Act. However, this requirement is 

particularly challenging to meet in 

situations where a resident is allegedly 

a victim of abuse, gross neglect or 

exploitation, and is unable to 

communicate informed consent to 

disclose his or her identity. 

Therefore, AoA proposes that the 

State-developed procedures for 

disclosure by the Ombudsman and 

representatives of the Office may 

provide authority to disclose the 

identity of the resident to appropriate 

authorities when the Ombudsman or 

representative of the Office is processing 

a complaint related to the resident when 

the disclosure would be in the best 

interest of the resident and meets at 

least one of the following criteria: 

(1) The resident is unable to 

communicate informed consent to the 

Ombudsman or representative of the 

Office, has no guardian or other legal 

representative, and the Ombudsman or 

representative of the Office has reason 

to suspect that the resident is a victim 

of abuse, gross neglect, or exploitation 

(as stated in proposed section 

1327.17(b)(6)) 


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8These percentages do not equal 100% due to 

rounding. 

(2) The resident is unable to 

communicate informed consent to the 

Ombudsman or representative of the 

Office, and the resident has a guardian 

or other legal representative who the 

Ombudsman or representative of the 

Office has reasonable cause to believe is 

a perpetrator of abuse, gross neglect, or 

exploitation of the resident (as stated in 

proposed section 1327.17(b)(7)). AoA 

proposes this provision as it is 

consistent with the statutory provision 

requiring that States provide the Office 

with access to the records of a resident 

where the representative of the Office 

has reasonable cause to believe a 

guardian is not acting in the best 

interest of the resident. Section 

712(b)(1)(B)(ii) of the Act. 

AoA seeks comment on this proposed 

approach. 

The proposed rule states that the 

disclosure procedures may permit the 

Ombudsman or representative of the 

Office to ‘‘refer the matter and disclose 

the identity of the resident’’ based on 

the determination of the best interest of 

the resident by the Ombudsman or 

representative of the Office in proposed 

sections 1327.17(b)(6)–(7). This 

proposal authorizes, but does not 

require, procedures related to disclosure 

to provide this authority in order to be 

consistent with Section 712(d)(2)(A) of 

the Act which provides for disclosure 

‘‘only at the discretion of the 

Ombudsman.’’ 

However, AoA proposes that the 

State-developed procedures for 

disclosure by the Ombudsman and 

representatives of the Office must 

require disclosure of the identity of the 

resident to appropriate authorities when 

the Ombudsman or representative of the 

Office is processing a complaint related 

to the resident in the narrow 

circumstance when: (1) The 

Ombudsman or representative of the 

Office personally witnesses suspected 

abuse, gross neglect or exploitation of a 

resident (as stated in proposed section 

1327.17(b)(8)) and (2) the representative 

has reasonable cause to believe that the 

disclosure would be in the best interest 

of the resident, and (3) the 

representative obtains the approval of 

the Ombudsman. 

A representative of the Office who 

personally witnesses suspected abuse 

would be required to obtain approval of 

the Ombudsman before disclosing the 

identity of the resident to appropriate 

authorities. This is analogous to the 

approval required by the Act for 

representatives seeking access to records 

to investigate a complaint related to a 

legal guardian for whom the 

representative of the Office has 

reasonable cause to believe is not acting 

the best interests of the resident. Section 

712(b)(1)(B)(ii) of the Act. In this 

situation of personally witnessing an 

incident, the Ombudsman or the 

representative of the Office may be the 

only person other than the victim with 

information on the incident. 

This is in contrast to the more 

common occurrence where complaints 

of suspected abuse, gross neglect or 

exploitation are brought to the attention 

of the Ombudsman program from 

another person with information 

regarding the incident. Where another 

person is bringing the information to the 

attention of the Office, such 

complainant or reporter is presumably 

able (and may be mandated under State 

law) to report to appropriate authorities 

for an official investigation of the 

allegations. As background, in fiscal 

year 2011, Ombudsman program cases 

(in all complaint categories, not only 

abuse-related complaints) were 

generated by the following types of 

complainants: Residents (38%), 

relatives or friends of residents (19%), 

facility staff (17%), Ombudsman 

program staff and volunteers (13%), and 

others (12%).8

Where the Ombudsman or 

representative of the Office personally 

witnesses the incident, and the resident 

is unable to communicate informed 

consent, the Ombudsman or 

representative of the Office may open a 

complaint with himself or herself as the 

complainant and work to resolve the 

issue but may incorrectly conclude that 

they are prohibited by the Act from 

disclosing the identity of the resident. 

AoA believes that the absence of 

disclosure of the resident’s identity in 

this situation could create a barrier to 

facility management which may need 

information to protect the resident and/ 

or to appropriate investigatory agencies 

which may need information in order to 

fulfill their protective, regulatory and/or 

law enforcement duties related to the 

alleged victim. 

Therefore, AoA proposes, at section 

1327.17(b)(8) that disclosure of the 

identity of a resident should be required 

in the situation where an Ombudsman 

or representative of the Office 

personally witnesses the incident, so 

long as (1) the resident at issue does not 

request the Ombudsman or 

representative to not make a report of 

the suspected activity witnessed by the 

Ombudsman or representative, (2) the 

representative has reasonable cause to 

believe that the disclosure would be in 

the best interest of the resident, and (3) 

the representative obtains the approval 

of the Ombudsman. 

Coordination of Ombudsman Activities 

With Other Elder Rights, Disability 

Rights, and Elder Justice Entities 

The Act requires the State agency to 

require the Office to coordinate with 

protection and advocacy systems, legal 

assistance, and State and local law 

enforcement agencies and courts of 

competent jurisdiction. Section 

712(h)(6)–(8) of the Act; see also Section 

721(d) of the Act, and section ‘‘G. 

Functions and Responsibilities of the 

State Long-Term Care Ombudsman’’ 

regarding ‘‘Ombudsman Responsibility 

with respect to Coordination of 

Ombudsman Activities with Other Elder 

Rights, Disability Rights, and Elder 

Justice Entities,’’ above. 

AoA proposes section 1327.17(c) in 

order to consolidate the list of the 

relevant entities covered by the Act into 

a comprehensive list and to clearly set 

forth its expectation that all levels of the 

Office should promote collaborative 

efforts and diminish duplicative efforts 

in the development and carrying out of 

elder rights and elder justice programs. 

See Section 201(e)(2)(A)(ix) of the Act. 

This provision addresses the duty to 

coordinate activities by representatives 

of the Office, including those 

representatives in a local Ombudsman 

entity, at the local level, in contrast to 

proposed rule section 1327.13(l), above, 

which relates specifically to the 

responsibility of the State Ombudsman 

to coordinate with relevant entities at 

the State level. 

Relation of Required Functions and 

Duties to Federal Lobbying Restrictions 

The Act requires the Ombudsman to 

perform functions that may be 

considered ‘‘lobbying’’ under some state 

laws, including recommending changes 

in laws pursuant to Section 

712(a)(3)(G)(ii) and providing 

information to legislators regarding 

recommendations related to the 

problems and concerns of residents of 

long-term care facilities pursuant to 

Section 712(h)(3) of the Act. 

As federal grantees, States are 

required to make certain certifications 

regarding lobbying under the 45 CFR 

Part 93. AoA proposes section 

1327.17(d) in order to clarify that the 

functions and duties required of the 

Office by the Act do not constitute a 

violation of this part (see 45 CFR 

§ 93.100). 

I. Conflicts of Interest 

The Act specifically requires the 

Assistant Secretary to issue regulations 

related to conflicts of interest at Section 


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9 IOM Report (1995), at p. 102. 10 IOM Report (1995) at pp. 124–125. 11OMB No. 0985–0005. 

713 of the Act. Freedom from conflicts 

of interest is critically important to the 

successful operation of Ombudsman 

programs. Ombudsman programs are 

effective only when they can provide 

credible representation of the interests 

of residents without conflicts of interest. 

In its evaluation of Long-Term Care 

Ombudsman programs, the Institute of 

Medicine dedicated a chapter to issues 

related to conflicts of interest, 

explaining: 

The Older Americans Act (OAA) mandates 

that the ombudsman work toward changing 

government and other institutions for the 

betterment of the residents of LTC facilities. 

. . . Thus, by accepting OAA monies, state 

governments agree to allow one of their own 

employees (or a contractor of the state) both 

to criticize openly and publicly their policies 

and procedures and to work toward 

implementing improvements. The directive 

to ‘‘seek administrative, legal, and other 

remedies’’ is broad enough to include the 

state government itself as a target of 

ombudsman advocacy. Conflicts of interest 

can easily occur in such situations.9

Organizational conflicts may arise 

from the organizational location of the 

Office and/or local Ombudsman 

entities, in which the work of the 

Ombudsman is unable to focus 

primarily on the interests of long-term 

care residents due to competing 

functions or priorities. For example, the 

Office might be located within an 

agency that makes determinations 

regarding resident eligibility for benefits 

or services. A resident who requests the 

Ombudsman to resolve a complaint 

related to the eligibility determination, 

and discovers that the Ombudsman is 

housed within the same entity, may not 

trust the Ombudsman to perform 

credible complaint resolution work on 

his or her behalf. 

Similarly, the Office might be located 

within an agency that is the official 

finder of fact regarding abuse allegations 

(such as adult protective services or the 

state licensing agency). If an 

Ombudsman identifies a pattern of 

inadequate abuse investigation taken by 

the agency, the agency may have a 

conflicting interest in protecting its 

reputation, which may cause it to 

interfere with the Ombudsman’s duty to 

address the issue systemically (for 

example, by making recommendations 

to policymakers outside of the agency). 

In some states, individual 

representatives of the Office have been 

assigned conflicting roles by a local 

Ombudsman entity with multiple 

service responsibilities. For example, 

the representative may have 

employment assignments both in the 

Ombudsman Program and protective 

services so may be called upon to 

provide protective services for a 

resident. But the actions taken to protect 

the resident and actions to advocate for 

what the resident desires may conflict 

with one another. As another example, 

a representative may be assigned 

conflicting duties of case management 

for long-term supports and services for 

a resident. If the resident wishes to file 

a complaint related to the service plan 

developed by the case manager, he or 

she would be in the position of 

requesting advocacy assistance of the 

very individual who made the case 

management decisions which the 

resident. 

The IOM recommended, among other 

things, the following: 

4.2 The committee recommends that the 

Assistant Secretary for Aging adopt a clear 

policy that prohibits parties who provide, 

purchase, or regulate services that are within 

the purview of the ombudsman program from 

membership on policy boards having 

governance over the long-term care 

ombudsman program. . . . 

4.3 The committee recommends that the 

Assistant Secretary for Aging establish 

procedures and resources by which to 

identify potential conflicts of interest in the 

areas of loyalty, commitment, and control 

that are pertinent to the long-term care 

ombudsman and ombudsman representatives 

and provide guidance on how to address 

such conflicts of interest.10

While AoA has provided States with 

technical assistance and education on 

questions related to conflicts of interest, 

a recent compliance review and 

recurring questions raised by States and 

Ombudsman programs suggest that clear 

regulations would assist in the effective 

and efficient determination of 

compliance with the conflict of interest 

principles in Section 712 of the Act. 

Proposed Process 

1. Identification of Conflicts 

The proposed regulations require a 

State agency to examine whether it has 

conflicts related to either the 

organizational placement of the 

Ombudsman program or the individuals 

selected to serve as Ombudsmen and 

representatives of the Office. If an 

organizational or individual conflict 

exists, the State agency must identify 

the conflict. See Section 712(f)(4) of the 

Act. 

AoA proposes the following process 

to assist States in complying with the 

Act. Ombudsmen annually report on 

program activities, characteristics, and 

funding; complaint resolution; and 

recommendations for long-term care 

systems change through NORS.11 The 

proposed regulations would utilize the 

current reporting process to provide 

States and Ombudsmen with a 

mechanism for submitting evidence of 

compliance with the Act’s requirements 

related to conflicts. It is AoA’s intent to 

include in future NORS Instructions a 

description of how to appropriately 

report the identification of any conflicts 

related to the implementation of the 

Ombudsman program and describe 

steps the State has taken to remove or 

remedy the conflict. 

For example, a State agency which 

houses both adult protective services 

and the Office of the State Long-Term 

Care Ombudsman should identify such 

conflict in NORS and indicate its plans 

to remove or remedy the conflict so that 

it does not interfere with the duties of 

the Office as set forth below. 

Section 712(f)(4) of the Act requires 

that State agencies ‘‘establish, and 

specify in writing, mechanisms to 

identify . . . conflicts of interest.’’ The 

proposed regulations provide a 

comprehensive, though not exhaustive, 

list of potential conflicts to assist States 

in this identification process. The list 

consists of conflicts identified in 

Section 712 of the Act, as well as others 

specified in the IOM report. 

2. Removal or Remedy of Conflicts 

The proposed regulations require a 

State agency to remove or remedy all 

identified organizational and individual 

conflicts. AoA realizes that many State 

agencies provide multiple programs and 

services, including adult protective 

services, guardianship services, 

licensing and regulation, and home and 

community-based services in board and 

care and assisted living settings. Some 

of these responsibilities create 

organizational conflicts with the 

functions and duties of Ombudsman 

programs. As the IOM reported: 

Since the list of duties for [State Units on 

Aging], area agencies on aging (AAAs), and 

ombudsmen has grown in length and 

specificity . . . , an even greater potential for 

conflict of interest exists between LTC 

ombudsman programs and the public 

agencies that typically house them. . . . The 

[Act] has clearly designated the LTC 

ombudsman program as the voice 

representing the LTC resident to government, 

yet in most cases the program continues to 

be housed within state and local 

governments that are increasingly 

responsible for service provisions to older 

persons. 

The ombudsman program has a mandate to 

focus on the individual resident. If the 

ombudsman finds him or herself in a conflict 

of interest situation . . . the resident, even 


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12 IOM (1995) at pp. 108–109. 

more than the program, may suffer. The 

resident’s problem may not be resolved, 

certain avenues of resolution may be 

foreclosed, the resident’s voice may not be 

heard by policy makers, and the resident’s 

interests will be inadequately represented or 

altogether absent from the table at which 

public policy is made.12

AoA proposes use of NORS reporting 

for States to describe the steps taken to 

remove or remedy conflicts of interest. 

For example, a State agency which 

houses both adult protective services 

and the Office of the State Long-Term 

Care Ombudsman might submit 

assurances that staff are not assigned 

conflicting responsibilities and submit 

policies and procedures demonstrating 

the distinct public roles and public 

information related to the respective 

programs; separate, secure, and 

confidential data collection systems; 

separate and confidential recordkeeping; and clear referral processes 

between the programs. 

AoA realizes that some States will 

face challenges in removing or 

remedying some organizational conflicts 

of interest. We welcome comments on 

the anticipated impact of this proposed 

regulation. In addition, AoA realizes 

that some of the provisions related to 

employment of the Ombudsman or 

representatives of the Office at proposed 

section 1327.19(d)(5) (i.e., one-year 

waiting period after serving in a 

licensing or long-term care provider 

responsibility) serve as a proxy for 

avoiding conflicts of interest but do not 

guarantee the outcome of an 

Ombudsman or representatives of the 

Office free of potential conflicts. AoA 

welcomes suggestions on alternative 

approaches that promote the conflictfree integrity of the Ombudsman and 

representatives of the Office, but do not 

arbitrarily disqualify excellent 

candidates for the position. 

AoA plans to engage with States in 

the provision of technical assistance, 

training and resources to assist them in 

crafting effective solutions to remedy 

conflicts that may impact the ability of 

the Ombudsman program to fulfill its 

duties to residents under the Act. AoA 

also recognizes that many States have 

already taken significant steps to avoid, 

identify and remedy conflicts. For 

example, in terms of organization, some 

have moved the Office into a distinctly 

identifiable and more independent 

office within the organizational 

structure of the State agency on aging. 

Some have moved it into another State 

agency. Others have moved the Office 

out of State government entirely. Some 

States have established laws, 

regulations, or policies that have clearly 

delineated an independent identity for 

the Office, providing the Ombudsman 

with the ability to represent resident 

interests to policymakers, the public, 

and others without interference. Others 

have implemented clear policies and 

procedures, within the designation 

process, for identifying and remedying 

conflicts of interest for current and 

potential representatives of the Office. 

J. Additional Considerations 

AoA proposes that this rule become 

effective one year after the publication 

of the final rule. This will provide States 

time to review their relevant laws, 

regulations, policies, standards, State 

plan on aging, and practices and to take 

any steps that might be necessary in 

order to achieve compliance with the 

rule. 

AoA has proposed regulations on 

operational issues for which it believes 

regulatory action is critical to assure 

successful Ombudsman program 

operation. AoA acknowledges that 

guidance in other areas related to 

Ombudsman program operation may 

also be beneficial to States but that the 

statute is sufficiently specific and/or 

sub-regulatory guidance, training, 

technical assistance or other types of 

assistance to the States may be sufficient 

to meet the need. One such area for 

which additional guidance may be 

necessary is the provision of legal 

counsel to the Ombudsman program. 

The Act provides: 

LEGAL COUNSEL.—The State agency 

shall ensure that— 

(1)(A) adequate legal counsel is 

available, and is able, without conflict 

of interest, to— 

(i) provide advice and consultation 

needed to protect the health, safety, 

welfare, and rights of residents; and 

(ii) assist the Ombudsman and 

representatives of the Office in the 

performance of the official duties of the 

Ombudsman and representatives; and 

(B) legal representation is provided to 

any representative of the Office against 

whom suit or other legal action is 

brought or threatened to be brought in 

connection with the performance of the 

official duties of the Ombudsman or 

such a representative; and 

(2) the Office pursues administrative, 

legal, and other appropriate remedies on 

behalf of residents. 

Section 712(g) of the Act. 

AoA believes that the statute is 

adequately specific to determine State 

compliance with regard to adequate 

legal counsel. In the past, AoA has 

determined that it has adequate 

authority under the statute, without a 

regulation in place, to cite a State 

agency deficiency in compliance with 

this provision. AoA Region IV 

Ombudsman Assessment Report, June 

13, 1994. AoA acknowledges that 

guidance could be helpful in defining 

competencies of legal counsel that may 

contribute to its adequacy and the 

application of the conflict of interest 

provisions in the proposed regulations 

to the legal counsel requirement. AoA 

believes this guidance could be 

provided to States without the need for 

regulation. However, AoA welcomes 

comments on the question of whether 

regulations are needed by States in 

order to more fully implement the Act’s 

requirements related to the provision of 

legal counsel to the Ombudsman 

program. 

III. Required Regulatory Analyses 

Under Executive Orders 13563 and 

12866 

Executive Orders 13563 and 12866 

direct agencies to assess all costs and 

benefits of available regulatory 

alternatives and, if regulation is 

necessary, to select regulatory 

approaches that maximize net benefits 

(including potential economic, 

environmental, public health and safety 

effects, distributive impacts, and 

equity). Executive Order 13563 

emphasizes the importance of 

quantifying both costs and benefits, of 

reducing costs, of harmonizing rules, 

and of promoting flexibility. This 

proposed rule has been designated a 

‘‘substantive, non-significant regulatory 

action’’ and not economically 

significant, under Section 3(f) of 

Executive Order 12866. The proposed 

rule has been reviewed by the Office of 

Management and Budget. 

Regulatory Flexibility Act 

Under the Regulatory Flexibility Act, 

as amended by the Small Business 

Regulatory Enforcement Fairness Act 

(SBREFA) (5 U.S.C. §§ 601 et seq.), 

agencies must consider the impact of 

regulations on small entities and 

analyze regulatory options that would 

minimize a rule’s impacts on these 

entities. Alternatively, the agency head 

may certify that the proposed rule will 

not have a significant economic impact 

on a substantial number of small 

entities. AoA does not anticipate that 

this NPRM will have a significant 

economic impact on a substantial 

number of small businesses and other 

small entities. 

IV. Other Administrative Requirements 

A. Paperwork Reduction Act of 1995 

Under the Paperwork Reduction Act, 

before an agency submits a proposed 


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13OMB No. 0985–0005. 

collection of information to the Office of 

Management and Budget (OMB) for 

approval, it must publish a document in 

the Federal Register providing notice of 

the proposed collection of information 

and a 60-day comment period, and must 

otherwise consult with members of the 

public and affected agencies concerning 

the proposed collection. In accordance 

with Section 3507(d) of the Paperwork 

Reduction Act of 1995 (44 U.S.C. 

§§ 3501 et seq.), AoA has determined 

there are limited new information 

collection requirements in the proposed 

rule. 

Currently, States are required to 

annually report on program activities, 

characteristics, and funding; complaint 

resolution; and recommendations for 

long-term care systems change of the 

Office of the State Long-Term Care 

Ombudsman through the National 

Ombudsman Reporting System 

(NORS).13 The proposed regulations 

would add one additional question to 

NORS: the identification of 

organizational conflicts of interest and a 

description of steps taken by the State 

to remove or remedy any identified 

conflict(s). Prior to the effective date of 

a final rule, AoA intends to request an 

amendment to current NORS 

instructions and to alter existing 

reporting software to capture data 

consistent with this requirement. 

AoA estimates that the proposed 

changes would expand the reporting 

requirement from 8569 hours to 8621 

hours. 

Title: State Annual Long-Term Care 

Ombudsman Report. 

OMB Control Number: 0985–0005. 

Type of Request: Modification of 

Information Collection Request. 

Respondents: 50 States, the District of 

Columbia and Puerto Rico. 

Frequency: Annually 

Estimated Annual Burden on 

Respondents: 52 hours (52 respondents 

× 1 hour per year). 

We invite comments on: (1) The 

necessity and utility of the information 

collection, (2) the accuracy of the 

estimate of the burden, (3) ways to 

enhance the quality, utility, and clarity 

of the information to be collected, and 

(4) ways to minimize the burden of 

collection without reducing the quality 

of the collected information. 

In addition, States are already 

required by Section 712 of the Act to 

develop policies and procedures for the 

operation of the Long-Term Care 

Ombudsman Program. The proposed 

regulations are intended to clarify this 

existing requirement without creating 

any additional burden on States. 

B. Executive Order 13132 

Executive Order 13132 prohibits an 

agency from publishing any rule that 

has federalism implications if the rule 

either, imposes substantial direct 

compliance costs on State and local 

governments and is not required by 

statute, or the rule preempts State law, 

unless the agency meets the 

consultation and funding requirements 

of Section 6 of the Executive Order. This 

rule does not have federalism impact as 

defined in the Executive Order. 

C. Unfunded Mandates Reform Act of 

1995 

Section 202 of the Unfunded 

Mandates Reform Act of 1995 requires 

that a covered agency prepare a 

budgetary impact statement before 

promulgating a rule that includes any 

Federal mandate that may result in the 

expenditure by State, local, and Tribal 

governments, in the aggregate, or by the 

private sector, of $100 million or more 

in any one year. If a covered agency 

must prepare a budgetary impact 

statement, Section 205 further requires 

that it select the most cost-effective and 

least burdensome alternative that 

achieves the objectives of the rule and 

is consistent with the statutory 

requirements. In addition, Section 203 

requires a plan for informing and 

advising any small governments that 

may be significantly or uniquely 

impacted by the rule. We have 

determined that this rule will not result 

in the expenditure by State, local, and 

Tribal governments, in the aggregate, or 

by the private sector, of more than $100 

million in any one year. Accordingly, 

we have not prepared a budgetary 

impact statement, specifically addressed 

the regulatory alternatives considered, 

or prepared a plan for informing and 

advising any significantly or uniquely 

impacted small governments. 

D. Assessment of Federal Regulations 

and Policies on Families 

Section 654 of the Treasury and 

General Government Appropriations 

Act of 1999 requires Federal agencies to 

determine whether a proposed policy or 

regulation may affect family well-being. 

If the agency’s determination is 

affirmative, then the agency must 

prepare an impact assessment 

addressing seven criteria specified in 

the law. This regulation protects the 

confidentiality of information contained 

in the records of State child support 

enforcement agencies. These regulations 

will not have an adverse impact on 

family well-being as defined in the 

legislation. 

E. Plain Language in Government 

Writing 

Pursuant to Executive Order 13563 of 

January 18, 2011, and Executive Order 

12866 of September 30, 1993, Executive 

Departments and Agencies are directed 

to use plain language in all proposed 

and final rules. AoA believes it has used 

plain language in drafting of the 

proposed rule and would welcome any 

comment from the public in this regard. 

List of Subjects 

45 CFR Part 1321 

Administrative practice and 

procedure, Aged, Grant programs— 

social programs, Reporting and 

recordkeeping requirements. 

45 CFR Part 1327 

Administrative practice and 

procedure, Aged, Long-term care. 

Dated: January 14, 2013. 

Kathy Greenlee, 

Administrator, Administration for 

Community Living, Assistant Secretary for 

Aging, Administration on Aging. 

Approved: January 25, 2013. 

Kathleen Sebelius, 

Secretary. 

Editorial Note: This document was 

received in the Office of the Federal Register 

on June 12, 2013. 

For the reasons stated in the 

preamble, the Administration on Aging, 

Administration for Community Living, 

U.S. Department of Health and Human 

Services, proposes to amend 45 CFR 

Part 1321 and add Part 1327 as follows: 

PART 1321—GRANTS TO STATE AND 

COMMUNITY PROGRAMS ON AGING 

■ 1. The authority citation for Part 1321 

continues to read as follows: 

Authority: 42 U.S.C. 3001 et seq.; title III 

of the Older Americans Act, as amended. 

■ 2. Section 1321.11 is amended by 

revising paragraph (b) to read as follows: 

§ 1321.11 State agency policies. 

* * * * * 

(b) The policies developed by the 

State agency shall address the manner 

in which the State agency will monitor 

the performance of all programs and 

activities initiated under this part for 

quality and effectiveness. The State 

Long-Term Care Ombudsman or his or 

her designee shall be responsible for 

monitoring the files, records and other 

information maintained by the Office, 

and shall not disclose the identity of 

any complainant or long-term care 

facility resident to individuals outside 

of the Office, except as otherwise 


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specifically provided in 

§ 1327.17(b)(2)(C) of this chapter. 

* * * * * 

■ 3. Part 1327 is added to read as 

follows: 

PART 1327—ALLOTMENTS FOR 

VULNERABLE ELDER RIGHTS 

PROTECTION ACTIVITIES 

Subpart A—State Long-Term Care 

Ombudsman Program 

Sec. 

1327.1 Definitions. 

1327.11 Establishment of the Office of the 

State Long-Term Care Ombudsman. 

1327.13 Functions and responsibilities of 

the State Long-Term Care Ombudsman. 

1327.15 State agency responsibilities 

related to the Ombudsman program. 

1327.17 Functions and duties of the Office 

of the State Long-Term Care 

Ombudsman. 

1327.19 Conflicts of interest. 

Subpart B—[Reserved] 

Authority: 42 U.S.C. 3001 et seq.; titles II, 

III and VII of the Older Americans Act, as 

amended. 

Subpart A—State Long-Term Care 

Ombudsman Program 

§ 1327.1 Definitions. 

The following definitons apply to this 

part. 

Immediate family, pertaining to 

conflicts of interest as used in section 

712 of the Act, means a member of the 

household or a relative with whom 

there is a close personal or significant 

financial relationship. 

Office of the State Long-Term Care 

Ombudsman, as used in section 712 of 

the Act, means the organizational unit 

headed by the State Long-Term Care 

Ombudsman, including the 

representatives of the Office. 

Representatives of the Office of the 

State Long-Term Care Ombudsman, as 

used in section 712 of the Act, means 

the employees or volunteers designated 

by the Ombudsman to fulfill the duties 

set forth in § 1327.17(a), whether 

supervised by the Ombudsman or his or 

her designees or by a local entity 

designated by the Ombudsman pursuant 

to section 712(a)(5) of the Act. 

§ 1327.11 Establishment of the Office of 

the State Long-Term Care Ombudsman. 

(a) The Office of the State Long-Term 

Care Ombudsman shall be an entity 

which shall be headed by the State 

Long-Term Care Ombudsman and carry 

out all of the functions and duties set 

forth in §§ 1327.13 and 1327.17. 

(b) The State agency shall establish 

the Office and, thereby carry out the 

Long-Term Care Ombudsman program 

in any of the following ways: 

(1) The Office is a distinct entity, 

separately identifiable, and located 

within or connected to the State agency; 

or 

(2) The State agency enters into a 

contract or other arrangement with any 

public agency or nonprofit organization 

which shall establish a separately 

identifiable, distinct entity as the Office. 

(c) The State agency and, where 

applicable, any other agency carrying 

out the Ombudsman program, shall 

ensure that the State Long-Term Care 

Ombudsman, as head of the Office, shall 

be able to independently make 

determinations and establish positions 

of the Office regarding: 

(1) Determinations regarding 

disclosure of information maintained by 

the program within the limitations set 

forth in section 712(d) of the Act; 

(2) Recommendations to changes in 

Federal, State and local laws, 

regulations, policies and actions 

pertaining to the health, safety, welfare, 

and rights of residents; 

(3) Provision of information to public 

and private agencies, legislators, and 

other persons, regarding the problems 

and concerns of residents and 

recommendations related to the 

problems and concerns. 

(4) Such determinations and positions 

shall be those of the Office and do not 

necessarily represent the determinations 

or positions of the State agency, another 

agency carrying out the Ombudsman 

program, or any other State agency. 

§ 1327.13 Functions and responsibilities of 

the State Long-Term Care Ombudsman. 

The Ombudsman, as head of the 

Office, shall have responsibility for the 

leadership and management of the 

Office in coordination with the State, 

and, where applicable, the other agency 

or agencies carrying out the 

Ombudsman program, as follows. 

(a) The Ombudsman shall serve on a 

fulltime basis, and shall, personally or 

through representatives of the Office— 

(1) Identify, investigate, and resolve 

complaints that— 

(i) Are made by, or on behalf of, 

residents; and 

(ii) Relate to action, inaction, or 

decisions, that may adversely affect the 

health, safety, welfare, or rights of the 

residents (including the welfare and 

rights of the residents with respect to 

the appointment and activities of 

guardians and representative payees), 

of— 

(A) Providers, or representatives of 

providers, of long-term care services; 

(B) Public agencies; or 

(C) Health and social service agencies; 

(2) Provide services to assist the 

residents in protecting the health, 

safety, welfare, and rights of the 

residents; 

(3) Inform the residents about means 

of obtaining services provided by 

providers or agencies described in 

paragraph (a)(1)(ii) of this section or 

services described in paragraph (a)(2) of 

this section; 

(4) Ensure that the residents have 

regular and timely access to the services 

provided through the Office and that the 

residents and complainants receive 

timely responses from representatives of 

the Office to complaints; 

(5) Represent the interests of the 

residents before governmental agencies 

and seek administrative, legal, and other 

remedies to protect the health, safety, 

welfare, and rights of the residents; 

(6) Provide administrative and 

technical assistance to entities 

designated under paragraph (a)(5) of this 

section to assist the entities in 

participating in the program; 

(7)(i) Analyze, comment on, and 

monitor the development and 

implementation of Federal, State, and 

local laws, regulations, and other 

governmental policies and actions, that 

pertain to the health, safety, welfare, 

and rights of the residents, with respect 

to the adequacy of long-term care 

facilities and services in the State; 

(ii) Recommend any changes in such 

laws, regulations, policies, and actions 

as the Office determines to be 

appropriate; and 

(iii) Facilitate public comment on the 

laws, regulations, policies, and actions; 

(8)(i) Provide for training 

representatives of the Office; 

(ii) Promote the development of 

citizen organizations, to participate in 

the program; and 

(iii) Provide technical support for the 

development of resident and family 

councils to protect the well-being and 

rights of residents; and carry out such 

other activities as the Assistant 

Secretary determines to be appropriate. 

(b) The Ombudsman shall oversee a 

unified statewide program in which 

representatives of the Office report to 

the Ombudsman regarding Ombudsman 

program functions and duties as set 

forth in §§ 1327.13(a) and 1327.17(a). 

(c) The Ombudsman shall determine 

designation and de-designation of local 

Ombudsman entities and 

representatives of the Office pursuant to 

section 712(a)(5) of the Act. 

(d) Where local Ombudsman entities 

are designated, the Ombudsman shall 

review and approve plans or contracts 

related to Ombudsman program 

operations, including, where applicable, 

through area agency on aging plans (in 

coordination with the State agency). 


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(e) The Ombudsman shall manage the 

files, records, and other information of 

the Office, whether in physical, 

electronic, or other formats, including 

information maintained by 

representatives of the Office and 

designated local Ombudsman entities 

pertaining to the cases and activities of 

the Ombudsman program. Such records 

are the property of the Office. 

(f) The Ombudsman shall comply 

with section 712(d) of the Act in 

responding to requests for disclosure of 

files, records, and other information, 

regardless of the format of such file, 

record, or other information, the source 

of the request, and the sources of 

funding to the Ombudsman program. 

(g) The Ombudsman shall propose to 

the State agency policies, procedures 

and standards for administration of the 

Ombudsman program. 

(h) The Ombudsman shall provide 

leadership to statewide advocacy efforts 

of the Office on behalf of long-term care 

facility residents. 

(i) The Ombudsman shall determine 

the use of the fiscal resources 

appropriated or otherwise designated 

for the Office, subject to applicable 

Federal and State laws and policies. 

(j) Where applicable, the Ombudsman 

shall monitor the Ombudsman program 

performance of local Ombudsman 

entities which the Ombudsman has 

designated to carry out the duties of the 

Office. 

(k) The Ombudsman shall develop 

and provide final approval of an annual 

report as set forth in section 712(h)(1) of 

the Act and as otherwise required by the 

Assistant Secretary. 

(l) The Ombudsman shall provide 

Ombudsman program leadership to 

statewide coordination efforts between 

the Office and other entities responsible 

for the protection of vulnerable adults 

including, but not limited to: 

(1) Area agency on aging programs; 

(2) Adult protective services 

programs; 

(3) Protection and advocacy systems 

for individuals with developmental 

disabilities and mental illnesses 

established under subtitle C of Title I of 

the Developmental Disabilities 

Assistance and Bill of Rights Act of 

2000; and the Protection and Advocacy 

of Mentally Ill Individuals Act of 1986 

(42 U.S.C. 10801 et seq.) 

(4) Facility and long-term care 

provider licensure and certification 

programs; 

(5) The State Medicaid fraud control 

unit, as defined in section 1903(q) of the 

Social Security Act (42 U.S.C. 1396b(q)); 

(6) Victim assistance programs; 

(7) Consumer protection and State 

and local law enforcement programs; as 

well as other State and local programs 

that identify and assist vulnerable 

adults and services provided by 

agencies and courts of competent 

jurisdiction; and 

(8) The State legal assistance 

developer and legal assistance 

programs, including those provided 

under section 306(a)(2)(C) of the Act, 

through adoption of memoranda of 

understanding and other means. 

§ 1327.15 State agency responsibilities 

related to the Ombudsman program. 

(a) The State agency shall: 

(1) Ensure, through the development 

of policies and other means, that the 

Ombudsman and the representatives of 

the Office are able to fully perform all 

of the duties specified in section 712 of 

the Act; 

(2) Establish policies and procedures, 

in consultation with the Office, to carry 

out the Ombudsman program in 

accordance with the Act. Where the 

designated local Ombudsman entities 

are grantees, and/or the representatives 

of the Office are employees, of area 

agencies on aging, the State agency shall 

develop the policies in consultation 

with the area agencies on aging. Such 

policies and procedures shall include, 

but not be limited to: 

(i) Requirements that the Ombudsman 

shall monitor the performance of local 

Ombudsman entities which the 

Ombudsman has designated to carry out 

the duties of the Office. 

(ii) Standards to assure prompt 

response which prioritize abuse, gross 

neglect, exploitation and time-sensitive 

complaints; 

(iii) Confidentiality and protection of 

identifying information of residents and 

complainants, including procedures 

related to the disclosure of files, records, 

and other information maintained by 

the Ombudsman program; 

(A) Such procedures shall provide 

that the files, records, and information 

maintained by the Ombudsman program 

may be disclosed only at the discretion 

of the Ombudsman or the person 

designated by the Ombudsman to 

disclose the files, records, and 

information. 

(B) Such procedures shall prohibit the 

disclosure of the identity of any 

complainant or resident with respect to 

whom the Office maintains files, 

records, or information unless: 

(1) The complainant or resident, or 

the legal representative of the 

complainant or resident, communicates 

informed consent to the disclosure and 

the consent is given in writing or 

through the use of assistive technology; 

(2) The complainant or resident 

communicates informed consent orally 

or through the use of assistive 

technology and such consent is 

documented contemporaneously in a 

writing made by a representative of the 

Office in accordance with such 

procedures; or 

(3) The disclosure is required by court 

order. 

(C) Such procedures shall provide 

that if the Ombudsman or his or her 

representative has reason to believe that 

the resident is unable to provide 

informed consent, disclosure of the 

resident identity shall be prohibited 

unless another exception applies. 

(D) Such procedures shall provide for 

procedures for appropriate disclosure of 

at least the following types of files, 

records, and information which may be 

maintained by the Office: medical and 

social records of residents; 

administrative records, policies, and 

documents of long-term care facilities; 

licensing and certification records 

maintained by the State with respect to 

long-term care facilities; and data 

collected in the statewide uniform 

reporting system of the Ombudsman 

program. 

(E) Such procedures shall exclude the 

Ombudsman and representatives of the 

Office from abuse reporting 

requirements when such reporting 

discloses the identity of a complainant 

or resident without appropriate consent 

or court order, except as otherwise 

provided in § 1327.17(b)(5)–(8). 

(F) Such procedures shall prohibit 

disclosure of the identity of a 

complainant or resident without 

appropriate consent or court order, 

except as otherwise provided in 

§ 1327.17(b)(5)–(8), regardless of the 

source of the request for information or 

the source of funding for the services of 

the Ombudsman program; and 

(iv) Mechanisms to identify and 

remove or remedy conflicts of interest 

pursuant to section 712(f) of the Act; 

and 

(v) Procedures that require the Office 

to carry out its requirement to analyze, 

comment on, and monitor the 

development and implementation of 

Federal, State, and local laws, 

regulations, and other government 

policies and actions that pertain to longterm care facilities and services, and to 

the health, safety, welfare, and rights of 

residents, in the State, and recommend 

any changes in such laws, regulations, 

and policies as the Office determines to 

be appropriate. 

(A) Such procedures shall exclude the 

Ombudsman and representatives of the 

Office from any state lobbying 

prohibitions to the extent that such 

requirements are inconsistent with 

section 712 of the Act. 


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(B) Nothing in this part shall prohibit 

the State agency or other agency 

carrying out the Ombudsman program 

from establishing policies which 

promote consultation regarding the 

determinations of the Office or 

otherwise require that the Ombudsman 

and representatives of the Office are 

held accountable to the policies and 

procedures of their respective employer, 

subject to applicable federal and state 

laws and policies. However, such 

policies may not limit the ability of the 

Ombudsman and representatives of the 

Office to fulfill all of the functions and 

duties set forth in section 712 of the Act 

and shall be in accordance with the 

requirement that the Ombudsman and 

representatives of the Office must 

remain free of interference in carrying 

out such functions and duties. 

(3) Provide opportunities for training 

for the Ombudsman and representatives 

of the Office in order to maintain 

expertise to serve as effective advocates 

for residents. The State agency may 

utilize funds appropriated under Title 

III and/or Title VII of the Act designated 

for direct services in order to provide 

access to such training opportunities. 

(4) Provide personnel supervision and 

management for the Ombudsman and 

representatives of the Office who are 

employees of the State agency, but such 

supervision shall not include review of 

files, records or other information 

maintained by the Office which could 

reveal the identity of any complainant 

or long-term care facility resident; 

(5) Provide monitoring and oversight, 

including but not limited to fiscal 

monitoring, where the Ombudsman or 

representatives of the Office are hired by 

an agency or entity that is under 

contract or other arrangement with the 

State agency, but such monitoring shall 

not include review of files, records, or 

other information maintained by the 

Office which could reveal the identity of 

any complainant or long-term care 

facility resident; and 

(6) Integrate the goals and objectives 

of the Office into the State plan; 

coordinate the goals and objectives of 

the Office with those of other programs 

established under Title VII of the Act 

and other State elder rights, disability 

rights, and elder justice programs, 

including legal assistance programs 

provided under section 306(a)(2)(C) of 

the Act, to promote collaborative efforts, 

diminish duplicative efforts, and, where 

applicable, require inclusion of goals 

and objectives related to representatives 

of the Office into area plans; 

(7) Require the coordination of 

Ombudsman program services with the 

activities of other programs authorized 

by Title VII of the Act as well as other 

state and local entities responsible for 

the protection of vulnerable adults as set 

forth in § 1327.13(l); and 

(8) Ensure that the Office has 

sufficient authority to perform its 

functions enumerated at § 1327.13 and 

duties enumerated at § 1327.17, and to 

make the determinations enumerated at 

§ 1327.11(c). Failure to do so shall 

constitute interference as prohibited by 

section 712(j) of the Act. 

(b) State policies, procedures or other 

mechanisms regarding access to records 

pursuant to section 712(b)(1) of the Act, 

shall: 

(1) Reaffirm that the Health Insurance 

Portability and Accountability Act of 

1996 (HIPAA) Privacy Rule, 45 CFR Part 

160 and Subparts A and E of Part 164, 

does not preclude release of residents’ 

medical and social records to the Office, 

and 

(2) Provide for representatives of the 

Office to have access to resident records, 

including when residents have 

guardians or other legal representatives. 

(c) The State agency shall require the 

Office to: 

(1) Prepare an annual report— 

(i) Describing the activities carried out 

by the Office in the year for which the 

report is prepared; 

(ii) Containing and analyzing the data 

collected under this paragraph (c); 

(iii) Evaluating the problems 

experienced by, and the complaints 

made by or on behalf of, residents; 

(iv) Containing recommendations 

for— 

(A) Improving quality of the care and 

life of the residents; and 

(B) Protecting the health, safety, 

welfare, and rights of the residents; 

(v)(A) Analyzing the success of the 

program including success in providing 

services to residents of board and care 

facilities and other similar adult care 

facilities; and 

(B) Identifying barriers that prevent 

the optimal operation of the program; 

and 

(vi) Providing policy, regulatory, and 

legislative recommendations to solve 

identified problems, to resolve the 

complaints, to improve the quality of 

care and life of residents, to protect the 

health, safety, welfare, and rights of 

residents, and to remove the barriers; 

(2) Analyze, comment on, and 

monitor the development and 

implementation of Federal, State, and 

local laws, regulations, and other 

government policies and actions that 

pertain to long-term care facilities and 

services, and to the health, safety, 

welfare, and rights of residents, in the 

State, and recommend any changes in 

such laws, regulations, and policies as 

the Office determines to be appropriate; 

(3)(i) Provide such information as the 

Office determines to be necessary to 

public and private agencies, legislators, 

and other persons, regarding— 

(A) The problems and concerns of 

older individuals residing in long-term 

care facilities; and 

(B) Recommendations related to the 

problems and concerns; and 

(ii) Make available to the public, and 

submit to the Assistant Secretary, the 

chief executive officer of the State, the 

State legislature, the State agency 

responsible for licensing or certifying 

long-term care facilities, and other 

appropriate governmental entities, each 

report prepared under paragraph (c)(1) 

of this section; 

(4)(i) Establish procedures for the 

training of the representatives of the 

Office, including unpaid volunteers, 

based on model standards established 

by the Director of the Office of LongTerm Care Ombudsman Programs as 

described in Section 201(d) of the Act, 

in consultation with representatives of 

citizen groups, long-term care providers, 

and the Office, that— 

(A) Specify a minimum number of 

hours of initial training; 

(B) Specify the content of the training, 

including training relating to— 

(1) Federal, State, and local laws, 

regulations, and policies, with respect to 

long-term care facilities in the State; 

(2) Investigative techniques; and 

(3) Such other matters as the State 

determines to be appropriate; and 

(C) Specify an annual number of 

hours of in-service training for all 

designated representatives; 

(5) Prohibit any representative of the 

Office (other than the Ombudsman) 

from carrying out any activity described 

in § 1327.13(a)(1) through (8) unless the 

representative— 

(i) Has received the training required 

under paragraph (c)(4) of this section; 

and 

(ii) Has been approved by the 

Ombudsman as qualified to carry out 

the activity on behalf of the Office; 

(6) Coordinate ombudsman services 

with the protection and advocacy 

systems for individuals with 

developmental disabilities and mental 

illnesses established under— 

(i) Subtitle C of the Developmental 

Disabilities Assistance and Bill of Rights 

Act of 2000; and 

(ii) The Protection and Advocacy for 

Mentally Ill Individuals Act of 1986 (42 

U.S.C. 10801 et seq.); 

(7) Coordinate, to the greatest extent 

possible, ombudsman services with 

legal assistance provided under section 

306(a)(2)(C) of the Act, through 

adoption of memoranda of 

understanding and other means; 


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(8) Coordinate services with State and 

local law enforcement agencies and 

courts of competent jurisdiction; and 

(9) Permit any local Ombudsman 

entity to carry out the responsibilities 

described in paragraph (c)(1), (2), (3), 

(6), or (7) of this section. 

§ 1327.17 Functions and duties of the 

Office of the State Long-Term Care 

Ombudsman. 

(a) An individual designated as a 

representative of the Office shall, in 

accordance with the policies and 

procedures established by the Office 

and the State agency: 

(1) Provide services to protect the 

health, safety, welfare, and rights of 

residents; 

(2) Ensure that residents in the service 

area of the entity have regular, timely 

access to representatives of the program 

and timely responses to complaints and 

requests for assistance; 

(3) Identify, investigate, and resolve 

complaints made by or on behalf of 

residents that relate to action, inaction, 

or decisions, that may adversely affect 

the health, safety, welfare, or rights of 

the residents; 

(4) Represent the interests of residents 

before government agencies and seek 

administrative, legal, and other 

remedies to protect the health, safety, 

welfare, and rights of the residents; 

(5)(i) Review, and if necessary, 

comment on any existing and proposed 

laws, regulations, and other government 

policies and actions, that pertain to the 

rights and well-being of residents; and 

(ii) Facilitate the ability of the public 

to comment on the laws, regulations, 

policies, and actions; 

(6) Support the development of 

resident and family councils; and 

(7) Carry out other activities that the 

Ombudsman determines to be 

appropriate. 

(b) Complaint processing. (1) With 

respect to identifying, investigating and 

resolving complaints, and regardless of 

the source of the complaint (i.e. 

complainant), the Ombudsman and/or 

the representatives of the Office serve 

the resident of a long-term care facility. 

The Ombudsman or representative of 

the Office shall investigate a complaint, 

including but not limited to a complaint 

related to abuse, gross neglect, or 

exploitation, for the purposes of 

resolving the complaint to the resident’s 

satisfaction and of protecting the health, 

welfare, and rights of the resident. 

(2) Regardless of the complainant who 

is the source of a complaint— 

(i) The Ombudsman or representative 

of the Office shall personally discuss the 

complaint with the resident (or, where 

the resident is unable to communicate 

informed consent, wishes, or 

perspective, the resident’s guardian or 

other legal representative) in order to: 

(A) Determine the perception of the 

resident (or resident representative, 

where applicable) of the complaint, 

(B) Request the resident (or resident 

representative, where applicable) to 

communicate informed consent in order 

to investigate the complaint, 

(C) Determine the wishes of the 

resident (or resident representative, 

where applicable) with respect to 

resolution of the complaint, including 

whether allegations are to be reported to 

other appropriate agencies, 

(D) Advise the resident (or resident’s 

representative, where applicable) of the 

resident’s rights, 

(E) Work with the resident (or 

resident representative, where 

applicable) to develop a plan of action 

for resolution of the complaint, 

(F) Investigate the complaint to 

determine whether the complaint can be 

verified, and 

(G) Determine whether the complaint 

is resolved to the satisfaction of the 

resident (or resident representative, 

where applicable). 

(ii) Where the resident is unable to 

communicate his or her perspective on 

the extent to which the matter has or 

has not been satisfactorily resolved, and 

where there is no legal representative, 

the Ombudsman or representative of the 

Office shall determine whether the 

complaint was resolved to the 

satisfaction of the complainant. 

(3) The Ombudsman or representative 

of the Office may provide information 

regarding the complaint to another 

agency in order for such agency to 

substantiate the facts for regulatory, 

protective services, law enforcement, or 

other purposes so long as the 

Ombudsman or representative of the 

Office adheres to the disclosure 

requirements of section 712(d) of the 

Act and the procedures set forth in 

§ 1327.15(a)(2)(C). 

(i) Where the goals of a resident are 

for regulatory, protective services or law 

enforcement action, and the 

Ombudsman or representative of the 

Office determines that the resident has 

communicated informed consent to the 

Office, the Office must assist the 

resident in contacting the appropriate 

agency and/or disclose the information 

for which the resident has provided 

consent to the appropriate agency for 

such purposes. 

(ii) In order to comply with the 

wishes of the resident, the Ombudsman 

and representatives of the Office shall 

not report suspected abuse, gross 

neglect or exploitation of a resident 

when a resident has not communicated 

informed consent to such report 

pursuant except as set forth in 

paragraphs (b)(5)–(7) of this section, 

notwithstanding state laws to the 

contrary. 

(4) For purposes of paragraphs (b)(1)– 

(3) of this section, communication of 

informed consent may be made verbally, 

(and documented contemporaneously in 

writing by the representative of the 

Office) or in writing, including through 

the use of assistive technology. 

(5) For purposes of paragraphs (b)(1)– 

(3) of this section, if a resident is unable 

to communicate his or her informed 

consent, or perspective on the extent to 

which the matter has or has not been 

satisfactorily resolved, the Ombudsman 

or representative of the Office may rely 

on the informed consent, or perspective 

on the extent to which the matter has or 

has not been satisfactorily resolved, of a 

guardian or other legal representative of 

the resident so long as the 

representative of the Office has no 

reasonable cause to believe that the 

guardian or other legal representative of 

the resident is not acting in the best 

interests of the resident. 

(6) For purposes of paragraphs (b)(1)– 

(3) of this section, the procedures for 

disclosure may provide that, when the 

resident is unable to communicate 

informed consent to the Ombudsman or 

representative of the Office, has no 

guardian or other legal representative, 

and the Ombudsman or representative 

of the Office has reason to suspect that 

the resident is a victim of abuse, gross 

neglect, or exploitation; the 

Ombudsman or representative of the 

Office has reasonable cause to believe 

that it is in the best interest of the 

resident to make a referral; and the 

representative obtains the approval of 

the Ombudsman, then the Ombudsman 

or representative of the Office may refer 

the matter and disclose the identity of 

the resident to the appropriate agency or 

agencies for regulatory oversight; 

protective services; access to 

administrative, legal, or other remedies; 

and/or law enforcement action. 

(7) For purposes of paragraphs (b)(1)– 

(3) of this section, the procedures for 

disclosure may provide that, when the 

resident is unable to communicate 

informed consent to the Ombudsman or 

representative of the Office; the resident 

has a guardian or other legal 

representative who the Ombudsman or 

representative of the Office has 

reasonable cause to believe is a 

perpetrator of abuse, gross neglect, or 

exploitation of the resident; the 

Ombudsman or representative of the 

Office has reasonable cause to believe 

that it is in the best interest of the 

resident to make a referral; and the 


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representative obtains the approval of 

the Ombudsman, then the Ombudsman 

or representative of the Office may refer 

the matter and disclose the identity of 

the resident to the appropriate agency or 

agencies for regulatory oversight; 

protective services; access to 

administrative, legal, or other remedies; 

and/or law enforcement action. 

(8) The procedures for disclosure 

shall provide that, if the Ombudsman or 

representative of the Office personally 

witnesses suspected abuse, gross 

neglect, or exploitation of a resident, the 

Ombudsman or representative shall seek 

communication of informed consent 

from such resident to disclose the 

identity of the resident to appropriate 

agencies; 

(i) Where such resident is able to 

communicate informed consent, or has 

a representative available to provide 

informed consent, the Ombudsman 

shall follow the direction of the resident 

(or representative, if applicable) as set 

forth paragraphs (b)(1)–(3) of this 

section; and 

(ii) Where the resident is unable to 

communicate informed consent, and has 

no representative available to provide 

informed consent, the Ombudsman or 

representative of the Office shall open a 

case with the Ombudsman or 

representative of the Office as the 

complainant, follow the Ombudsman 

program’s complaint resolution 

procedures, and (so long as the 

Ombudsman or representative has 

reasonable cause to believe that 

disclosure would be in the best interest 

of the resident and the representative 

obtains the approval of the 

Ombudsman) shall refer the matter and 

disclose the identity of the resident to 

the management of the facility in which 

the resident resides and/or to the 

appropriate agency or agencies for 

substantiation of abuse, gross neglect or 

exploitation. 

(iii) In addition, the Ombudsman may 

report the suspected abuse, gross 

neglect, or exploitation to other 

appropriate agencies for regulatory 

oversight; protective services; access to 

administrative, legal, or other remedies; 

and/or law enforcement action. 

(c) Coordination of Ombudsman 

activities with other elder rights, 

disability rights, and elder justice 

entities—The Ombudsman and 

representatives of the Office shall 

coordinate Ombudsman program 

services with those of other state and 

local entities responsible for the 

protection of vulnerable adults for the 

purpose of promoting collaborative 

efforts and diminishing duplicative 

efforts in the development and carrying 

out of elder rights, disability rights, and 

elder justice programs. Such entities 

shall include, but not be limited to: 

(1) Area agency on aging programs; 

(2) Adult protective services 

programs; 

(3) Protection and advocacy systems 

for individuals with developmental 

disabilities and mental illnesses 

established under subtitle C of Title I of 

the Developmental Disabilities 

Assistance and Bill of Rights Act of 

2000; and the Protection and Advocacy 

of Mentally Ill Individuals Act of 1986 

(42 U.S.C. 10801 et seq.); 

(4) Facility and long-term care 

provider licensure and certification 

programs; 

(5) The State Medicaid fraud control 

unit, as defined in section 1903(q) of the 

Social Security Act (42 U.S.C. 1396b(q)); 

(6) Victim assistance programs; 

(7) Consumer protection and State 

and local law enforcement programs; as 

well as other State and local programs 

that identify and assist vulnerable 

adults and services provided by 

agencies and courts of competent 

jurisdiction; and 

(8) Legal assistance programs 

provided under section 306(a)(c) of the 

Act. 

(d) Lobbying activities. In carrying out 

the functions and duties of the Office set 

forth in §§ 1327.13(a) and 1327.17(a) 

and pursuant to the receipt of grant 

funds under the Act, the Ombudsman’s 

provision of information, 

recommendations of changes of laws to 

legislators, and recommendations of 

changes of regulations and policies to 

government agencies, do not constitute 

lobbying activities as defined by 45 CFR 

Part 93. 

§ 1327.19 Conflicts of interest. 

The State agency shall consider both 

the organizational and individual 

conflicts that may impact the 

effectiveness and credibility of the work 

of the Office. In so doing, it shall 

identify actual and potential conflicts 

and, where a conflict has been 

identified, shall remove or remedy such 

conflict as set forth in paragraphs (b) 

and (d) of this section. 

(a) Identification of organizational 

conflicts. In identifying conflicts of 

interest pursuant to section 712(f) of the 

Act, the State agency shall consider the 

organizational conflicts that may impact 

the effectiveness and credibility of the 

work of the Office. Organizational 

conflicts of interest include, but are not 

limited to, placement of the Office in an 

organization that: 

(1) Is responsible for licensing, 

surveying, or certifying long-term care 

facilities; 

(2) Is an association (or an affiliate of 

such an association) of long-term care 

facilities, or of any other residential 

facilities for older individuals or 

individuals with disabilities; 

(3) Has an ownership or investment 

interest (represented by equity, debt, or 

other financial relationship) in, or 

receives grants or donations from, a 

long-term care facility; 

(4) Has governing board members 

with ownership, investment or 

employment interest in long-term care 

facilities; 

(5) Provides long-term care services, 

including the provision of personnel for 

long-term care facilities or the operation 

of programs which control access to or 

services for long-term care facilities; 

(6) Provides long-term care 

coordination or case management; 

(7) Sets reimbursement rates for longterm care services; 

(8) Provides adult protective services; 

(9) Is responsible for Medicaid 

eligibility determinations; 

(10) Conducts preadmission screening 

for long-term care residential 

placements; 

(11) Makes decisions regarding 

admission or discharge of individuals to 

or from long-term care facilities; or 

(12) Provides guardianship, 

conservatorship or other fiduciary or 

surrogate decision-making services for 

residents of long-term care facilities. 

(b) Removing or remedying 

organizational conflicts. The State 

agency shall identify and remove or 

remedy conflicts of interest between the 

Office and the State agency or other 

agency carrying out the Ombudsman 

program. 

(1) Where the Office is located within 

or otherwise organizationally attached 

to the State agency, the State agency 

shall: 

(i) Take reasonable steps to avoid 

internal conflicts of interest; 

(ii) Establish a process for review and 

identification of internal conflicts; 

(iii) Take steps to remove or remedy 

conflicts; 

(iv) Ensure that no individual, or 

member of the immediate family of an 

individual involved in the designating, 

appointing, otherwise selecting or 

terminating the Ombudsman is subject 

to a conflict of interest; and 

(v) Assure that the Ombudsman has 

disclosed such conflicts and described 

steps taken to remove or remedy 

conflicts within the annual report 

submitted to the Assistant Secretary 

through the National Ombudsman 

Reporting System. 

(2) Where a State agency is unable to 

adequately remove or remedy a conflict, 

it shall carry out the Ombudsman 

program by contract or other 

arrangement with a public agency or 


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nonprofit private organization, pursuant 

to section 712(a)(4) of the Act. The State 

agency may not operate the Office 

directly if it: 

(i) Is responsible for licensing, 

surveying, or certifying long-term care 

facilities; 

(ii) Is an association (or an affiliate of 

such an association) of long-term care 

facilities, or of any other residential 

facilities for older individuals or 

individuals with disabilities; or 

(ii) Has an ownership or investment 

interest (represented by equity, debt, or 

other financial relationship) in a longterm care facility or a long-term care 

service. 

(3) Where the State agency carries out 

the Ombudsman program by contract or 

other arrangement with a public agency 

or nonprofit private organization, 

pursuant to section 712(a)(4) of the Act, 

the State agency shall: 

(i) Prior to contracting or making 

another arrangement, take reasonable 

steps to avoid conflicts of interest in 

such agency or organization which is to 

carry out the Ombudsman program; 

(ii) Establish a process for periodic 

review and identification of conflicts in 

the agency or organization; 

(iii) Require that such agency or 

organization have a process in place to: 

(A) Take reasonable steps to avoid 

conflicts of interest, and 

(B) Disclose such conflicts and steps 

taken to remove or remedy conflicts to 

the State agency for review and 

approval; and 

(iv) Establish a process for State 

agency review of and criteria for 

approval of steps taken to remove or 

remedy conflicts in such agency or 

organization; and 

(4) Where an agency or organization 

carrying out the Ombudsman program 

by contract or other arrangement 

develops a conflict and is unable to 

adequately remove or remedy a conflict, 

the State agency shall either operate the 

Ombudsman program directly or by 

contract or other arrangement with 

another public agency or nonprofit 

private organization. The State agency 

may not enter into such contract or 

other arrangement with an agency or 

organization which is responsible for 

licensing or certifying long-term care 

services in the state or is an association 

(or affiliate of such an association) of 

long-term care facilities, or of any other 

residential facilities for older 

individuals. 

(5) Where local Ombudsman entities 

provide Ombudsman services, the 

Ombudsman shall: 

(i) Establish a process for periodic 

review and identification of conflicts in 

such entities, 

(ii) Require disclosure of conflicts to 

the Ombudsman by such entities, 

(iii) Establish a process for review of 

and criteria for approval of plans to 

remove or remedy conflicts in such 

entities; and 

(iv) Prior to designating or renewing 

designation, take reasonable steps to 

assure that any conflicts of interest in 

such entities have been removed or 

remedied, 

(6) Failure of a local Ombudsman 

entity to disclose a conflict to the Office 

or inability to adequately remove or 

remedy a conflict shall constitute 

grounds for de-designation of a local 

Ombudsman entity by the Ombudsman. 

(c) Identifying individual conflicts of 

interest. (1) In identifying conflicts of 

interest pursuant to section 712(f) of the 

Act, the State agency shall consider 

individual conflicts that may impact the 

effectiveness and credibility of the work 

of the Office. 

(2) Individual conflicts of interest for 

an Ombudsman, representatives of the 

Office, and members of their immediate 

family include, but are not limited to: 

(i) Direct involvement in the licensing 

or certification of a long-term care 

facility or of a provider of a long-term 

care service; 

(ii) Ownership or investment interest 

(represented by equity, debt, or other 

financial relationship) in an existing or 

proposed long-term care facility or longterm care service; 

(iii) Employment of an individual by, 

or participation in the management of, 

a long-term care facility in the service 

area or by the owner or operator of any 

long-term care facility in the service 

area within the previous year; 

(iv) Receipt of, or right to receive, 

directly or indirectly, remuneration (in 

cash or in kind) under a compensation 

arrangement with an owner or operator 

of a long-term care facility; 

(v) Accepting gifts or gratuities of 

significant value from a long-term care 

facility or its management, a resident or 

a resident representative; 

(vi) Accepting money or any other 

consideration from anyone other than 

the Office or an entity designated by the 

Ombudsman for the performance of an 

act in the regular course of the duties of 

the Ombudsman or the representatives 

of the Office without Ombudsman 

approval; 

(vii) Serving as guardian, conservator 

or in another fiduciary or surrogate 

decision-making capacity for a resident 

of a long-term care facility in the service 

area; 

(viii) Serving residents of a facility in 

which an immediate family member 

resides; and 

(ix) Participating in activities which 

negatively impact on the ability of the 

Ombudsman or the representatives of 

the Office to serve residents or are likely 

to create a perception that the primary 

interest of the Ombudsman or the 

representatives of the Office is other 

than as a resident advocate. 

(d) Removing or remedying individual 

conflicts. (1)The State agency shall 

develop and implement policies and 

procedures to ensure that no 

Ombudsman, representatives of the 

Office, or officer of the Office, are 

required to perform duties that would 

constitute a conflict of interest as set 

forth in § 1327.19(c). 

(2) When the State agency is 

considering the employment of an 

individual as the Ombudsman or a 

representative of the Office the State 

agency shall: 

(i) Take reasonable steps to avoid 

hiring an individual who has a conflict 

of interest or who has a member of the 

immediate family with a conflict of 

interest; 

(ii) Establish a process for periodic 

review and identification of conflicts of 

the Ombudsman and representatives of 

the Office, and 

(iii) Take steps to remove or remedy 

conflicts. 

(3) Where the candidate for 

Ombudsman or representative of the 

Office has a conflict that cannot be 

adequately removed or remedied, the 

State agency may not employ such 

candidate. 

(4) Where the Office is operated by 

another public agency or a nonprofit 

private organization, and/or where local 

Ombudsman entities employ 

representatives of the Office, the State 

agency shall ensure that the agency 

organization, or entity has policies in 

place to prohibit hiring of an 

Ombudsman or representatives of the 

Office with a conflict that cannot be 

adequately removed or remedied. 

(5) In no circumstance may the State 

agency; where applicable, the public 

agency or non-profit private 

organization which carries out the 

program; or a local Ombudsman entity 

employ an individual as the 

Ombudsman or representative of the 

Office who: 

(i) Has had direct involvement in the 

licensing or certification of a long-term 

care facility or of a provider of a longterm care service within the previous 

year; 

(ii) Has an ownership or investment 

interest (represented by equity, debt, or 

other financial relationship) in a longterm care facility or a long-term care 

service. Divestment within a reasonable 


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period may be considered an adequate 

remedy to this conflict; 

(iii) Has been employed by, or 

participating in the management of, a 

long-term care facility within the 

previous year; or 

(iv) Receives, or has the right to 

receive, directly or indirectly, 

remuneration (in cash or in kind) under 

a compensation arrangement with an 

owner or operator of a long-term care 

facility. 

(6) Where the Ombudsman or 

representative of the Office acquires a 

conflict that cannot be adequately 

removed or remedied, the State agency; 

where applicable, the public agency or 

non-profit private organization which 

carries out the program; or a local 

Ombudsman entity, may not continue to 

employ the individual as the 

Ombudsman or representative of the 

Office. 

(7) The State agency shall ensure that 

policies and procedures are in place so 

that, in designating representatives of 

the Office, the Ombudsman shall: 

(i) Take reasonable steps to avoid 

designation of an individual who has a 

conflict of interest or who has a member 

of the immediate family with a conflict 

of interest; 

(ii) Establish a process for periodic 

review and identification of conflicts of 

the representatives; and 

(iii) Take steps which remove or 

remedy individual conflicts. 

Subpart B—[Reserved] 

[FR Doc. 2013–14325 Filed 6–14–13; 11:15 am] 

BILLING CODE 4150–04–P 

FEDERAL COMMUNICATIONS 

COMMISSION 

47 CFR Parts 1 and 20 

[GN Docket No. 13–111; RM–11430; ET 

Docket No. 08–73; WT Docket No. 10–4; 

PRM09WT; PRM11WT; FCC 13–58] 

Promoting Technological Solutions to 

Combat Contraband Wireless Device 

Use in Correctional Facilities 

AGENCY: Federal Communications 

Commission. 

ACTION: Proposed rule. 

SUMMARY: In this document, the Federal 

Communications Commission proposes 

rules to encourage the development of 

multiple technological solutions to 

combat the use of contraband wireless 

devices in correctional facilities 

nationwide. Specifically, the 

Commission proposes rule 

modifications to facilitate spectrum 

lease agreements between wireless 

providers and providers or operators of 

managed access systems. The 

Commission further proposes to require 

wireless providers to terminate service 

to a contraband wireless device if an 

authorized correctional facility official 

notifies the provider of the presence of 

the contraband wireless device within 

the correctional facility. The 

Commission seeks comment on these 

proposals as well as other technological 

approaches for addressing the problem 

of contraband wireless device usage in 

correctional facilities. 

DATES: Interested parties may file 

comments on or before July 18, 2013, 

and reply comments on or before 

August 2, 2013. 

ADDRESSES: You may submit comments, 

identified by GN Docket No. 13–111, by 

any of the following methods: 

D Electronic Filers: Comments may be 

filed electronically using the Internet by 

accessing the Commission’s Electronic 

Comment Filing System (ECFS), through 

the Commission’s Web site http:// 

fjallfoss.fcc.gov/ecfs2/. Filers should 

follow the instructions provided on the 

Web site for submitting comments. For 

ECFS filers, in completing the 

transmittal screen, filers should include 

their full name, U.S. Postal service 

mailing address, and GN Docket No. 13– 

111. 

D Paper Filers: Parties who choose to 

file by paper must file an original and 

one copy of each filing. Generally if 

more than one docket or rulemaking 

number appears in the caption of this 

proceeding, filers must submit two 

additional copies for each additional 

docket or rulemaking number. Note that 

while multiple dockets are listed in the 

caption, commenters are only required 

to file copies in GN Docket No. 13–111. 

Filings can be sent by hand or 

messenger delivery, by commercial 

overnight courier, or by first-class or 

overnight U.S. Postal Service mail. All 

filings must be addressed to the 

Commission’s Secretary, Office of the 

Secretary, Federal Communications 

Commission. 

D All hand-delivered or messengerdelivered paper filings for the 

Commission’s Secretary must be 

delivered to FCC Headquarters at 445 

12th St. SW., Room TW–A325, 

Washington, DC 20554. The filing hours 

are 8:00 a.m. to 7:00 p.m. All hand 

deliveries must be held together with 

rubber bands or fasteners. Any 

envelopes and boxes must be disposed 

of before entering the building. 

D Commercial overnight mail (other 

than U.S. Postal Service Express Mail 

and Priority Mail) must be sent to 9300 

East Hampton Drive, Capitol Heights, 

MD 20743. 

D U.S. Postal Service first-class, 

Express, and Priority mail must be 

addressed to 445 12th Street SW., 

Washington, DC 20554. 

D In addition, parties must serve one 

copy of each pleading with the 

Commission’s duplicating contractor, 

Best Copy and Printing, Inc., 445 12th 

Street SW., Room CY–B402, 

Washington, DC 20554, or via email to 

fcc@bcpiweb.com. 

For detailed instructions for 

submitting comments and additional 

information on the rulemaking process, 

see the SUPPLEMENTARY INFORMATION

section of this document. 

FOR FURTHER INFORMATION CONTACT: 

Melissa Conway, 

Melissa.Conway@fcc.gov or (202) 418– 

2887, of the Wireless 

Telecommunications Bureau, Mobility 

Division. 

SUPPLEMENTARY INFORMATION: This is a 

synopsis of the Commission’s Notice of 

Proposed Rulemaking (NPRM), FCC 13– 

58, adopted on April 29, 2013, and 

released on May 1, 2013, in GN Docket 

No. 13–111; RM–11430; ET Docket No. 

08–73; WT Docket No. 10–4; PRM09WT; 

PRM11WT; and FCC 13–58. The full 

text of the NPRM and copies of any 

subsequently filed documents in this 

matter may also be purchased from the 

Commission’s duplicating contractor, 

Best Copy and Printing, Inc., Portals II, 

445 12th Street SW., Room CY–B402, 

Washington, DC 20554. Customers may 

contact the Commission’s duplication 

contractor at its Web site, 

www.bcpiweb.com, or by calling (202) 

488–5300. Document can also be 

downloaded in Word or Portable 

Document Format (PDF) at http:// 

www.fcc.gov/guides/crammingunauthorized-misleading-or-deceptivecharges-placed-your-telephone-bill. 

Pursuant to 47 CFR 1.1200 through 

1.1216, this matter shall be treated as a 

‘‘permit-but-disclose’’ proceeding in 

accordance with the Commission’s ex 

parte rules. Persons making ex parte 

presentations must file a copy of any 

written presentation or a memorandum 

summarizing any oral presentation 

within two business days after the 

presentation (unless a different deadline 

applicable to the Sunshine period 

applies). Persons making oral ex parte 

presentations are reminded that 

memoranda summarizing the 

presentation must: (1) List all persons 

attending or otherwise participating in 

the meeting at which the ex parte 

presentation was made; and (2) 

summarize all data presented and 

arguments made during the 


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