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[Federal Register Volume 78, Number 117 (Tuesday, June 18, 2013)]
[Proposed Rules]
[Pages 36449-36469]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-14325]

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DEPARTMENT OF HEALTH AND HUMAN SERVICES

Administration on Aging

45 CFR Parts 1321 and 1327

RIN 0985-AA08

State Long-Term Care Ombudsman Program

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

ACTION: Proposed rule.

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SUMMARY: The Administration on Aging (AoA) of the Administration for 
Community Living (ACL) within the Department of Health and Human 
Services (HHS) is issuing a Notice of Proposed Rulemaking, with request 
for comments, to implement provisions of the Older Americans Act, the 
State Long-Term Care Ombudsman program. This proposed rule replaces 
AoA's 1994 Notice of Proposed Rulemaking.
    Since 1992, the functions of this program have been delineated in 
the Older Americans Act; however, regulations have not been promulgated 
for any Title VII program. In the absence of regulatory guidance, there 
has been significant variation in the interpretation and implementation 
of these provisions among States. Recent inquiries from States and an 
AoA compliance review in one State have highlighted the difficulty of 
determining State compliance in carrying out the Long-Term Care 
Ombudsman program functions. This rulemaking provides the first 
regulatory guidance for States' Long-Term Care Ombudsman programs to 
provide clarity about implementation.
    HHS estimates that a number of states may need to update their 
statutes, regulations, policies and/or practices in order to operate 
the program consistent with federal law and this proposed regulation. 
The effective date of the rule is anticipated to be one year after 
publication of any final rule to allow States appropriate time for such 
changes, if needed. AoA anticipates little or no financial impact on 
the providers of long-term care ombudsman services, the consumers 
served by the program, or long-term care providers through 
implementation of the proposed rules.
    AoA believes that consumers (particularly residents of long-term 
care facilities) and long-term care providers will benefit from the 
implementation of these proposed rules. Consumers and other 
complainants across the country will receive services from the Long-
Term Care Ombudsman program with less variation in the quality, 
efficiency, and consistency of service delivery.
    Long-term care ombudsmen and States will also benefit from the 
implementation of these proposed rules in the establishment and 
operation of the Long-Term Care Ombudsman program at the State and 
local levels. For years, States and long-term care ombudsmen at every 
level have reported to AoA that they have found some provisions of the 
Act confusing to implement. The proposed rule seeks to provide the 
clarity that program stakeholders have requested.

DATES: To be assured consideration, comments must be received at one of 
the addresses provided below, no later than 5 p.m. on August 19, 2013.

ADDRESSES: Because of staff and resource limitations, we cannot accept 
comments by facsimile (FAX) transmission. You may submit comments in 
one of four ways (please choose only one of the ways listed):
    1. Electronically. You may submit electronic comments on this 
regulation to http://www.regulations.gov. Follow the instructions under 
the ``More Search Options'' tab.
    2. By regular mail. You may mail written comments to the following 
address: Administration for Community Living, Administration on Aging, 
US Department of Health and Human Services, Attention: Becky Kurtz, 
Washington, DC 20201.
    Please allow sufficient time for mailed comments to be received 
before the close of the comment period.
    3. By express or overnight mail. You may send written comments to 
the following address: Administration for Community Living, 
Administration on Aging, US Department of Health and Human Services, 
Attention: Becky Kurtz, 1 Massachusetts Avenue NW., 5th Floor, 
Washington, DC 20001.
    4. By hand or courier. If you prefer, you may deliver (by hand or 
courier) your written comments before the close

[[Page 36450]]

of the comment period to: Administration for Community Living, 
Administration on Aging, US Department of Health and Human Services, 
Attention: Becky Kurtz, 1 Massachusetts Avenue NW., 5th Floor, 
Washington, DC 20001.
    If you intend to hand deliver your comments, please call telephone 
number 202-401-4541 in advance to schedule your arrival with one of our 
staff members. Comments mailed to the address indicated as appropriate 
for hand or courier delivery may be delayed and received after the 
comment period.

FOR FURTHER INFORMATION CONTACT: Becky Kurtz, Director, Office of Long-
Term Care Ombudsman Programs, Administration for Community Living, 
Administration on Aging, 1 Massachusetts Avenue NW., Washington, DC 
20001, 202-357-3586.

SUPPLEMENTARY INFORMATION: The preamble to this notice of proposed 
rulemaking is organized as follows:

I. Program Background
    A. AoA Authority
    B. Requests for Regulatory Guidance
II. Proposed Changes to 42 CFR Part 1321 and Addition of New Part 
1327
    A. State Agency Policies
    B. Definition of Immediate Family
    C. Definition of Office of the State Long-Term Care Ombudsman
    D. Definition of Representatives of the Office of the State 
Long-Term Care Ombudsman
    E. Establishment of the Office of the State Long-Term Care 
Ombudsman
    F. Functions and Responsibilities of the State Long-Term Care 
Ombudsman
    G. State Agency Responsibilities Related to the Long-Term Care 
Ombudsman Program
    H. Functions and Duties of the Office of the State Long-Term 
Care Ombudsman
    I. Conflicts of Interest
    J. Additional Considerations
III. Required Regulatory Analyses Under Executive Orders 13563 and 
12866
IV. Other Administrative Requirements
    A. Paperwork Reduction Act of 1995
    B. Executive Order 13132
    C. Unfunded Mandates Reform Act of 1995
    D. Assessment of Federal Regulations and Policies on Families
    E. Plain Language in Government Writing

I. Program Background

    State Long-Term Care Ombudsman programs (Ombudsman programs) serve 
as advocates for residents of nursing homes, board and care homes, 
assisted living facilities and similar adult care facilities. They work 
to resolve problems of individual residents and to bring about 
improvements to residents' care and quality of life at the local, state 
and national levels.
    Begun in 1972 as a demonstration program, Ombudsman programs today 
exist in all States, the District of Columbia, Puerto Rico and Guam, 
under the authorization of, and appropriations to implement, the Older 
Americans Act (the Act). These States and territories have an Office of 
the State Long-Term Care Ombudsman (the Office), headed by a full-time 
State Long-Term Care Ombudsman (the Ombudsman). Nationally, in FY 2011 
there were nearly 1,200 full-time equivalent staff ombudsmen; more than 
9,000 certified volunteer ombudsmen, and more than 3,300 other 
volunteers working with Ombudsman offices.

A. AoA Authority

    This NPRM is proposed under the authority of sections 201(e), 
307(a), 712 and 713 of the Older Americans Act (OAA or the Act) (42 
U.S.C. 3011(e), 3027, 3058g, and 3058h, respectively). These provisions 
authorize the Assistant Secretary for Aging to prescribe regulations 
regarding coordination of elder justice activities, the development of 
State plans on aging, and Long-Term Care Ombudsman programs.

B. Requests for Regulatory Guidance

    In addition to its statutory authority, AoA received a 2011 inquiry 
from the Senate Special Committee on Aging regarding regulations for 
Ombudsman programs. AoA responded that regulations for the Older 
Americans Act were last promulgated in 1988 and are found at 45 CFR 
Parts 1321, 1326 and 1328. Part 1321 constitutes the regulations for 
Title III of the Act, which at that time included the Long-Term Care 
Ombudsman Program. In the 1992 reauthorization of the Older Americans 
Act, Congress created Title VII, Allotments for Vulnerable Elder Rights 
Protection Activities. While regulations for Title VII programs, which 
includes the Long-Term Care Ombudsman program, were proposed and 
published in the Federal Register by the Administration on Aging (AoA) 
in 1994, final regulations were not adopted. AoA indicated its intent 
to issue regulations for the Long-Term Care Ombudsman Program in order 
to provide clear and consistent guidance.
    In its evaluation of State Long-Term Care Ombudsman programs, the 
Institute of Medicine identified the lack of Federal guidance as a 
challenge for state implementation that contributed to an absence of 
fully-implemented state programs. The Institute of Medicine recommended 
that the Assistant Secretary for Aging ``issue clearly stated policy 
and program guidance that sets forth the federal government's 
expectations of state long-term care ombudsman programs. . . .'' \1\
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    \1\ Institute of Medicine, ``Real People, Real Problems: An 
Evaluation of the Long-Term Care Ombudsman Programs under the Older 
Americans Act'' (1995) (IOM Report (1995)).
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    In December, 2011, a stakeholder workgroup consisting of long-term 
care, elder abuse and Ombudsman program experts; national association 
representatives; and consumer advocates met to discuss issues impacting 
Ombudsman programs and requested guidance from the Assistant Secretary 
for Aging in areas related to:
    1. The roles, responsibilities and relationship of the State agency 
on aging and the Office of the State Long-Term Care Ombudsman;
    2. Conflicts of interest between a State's Ombudsman program and 
other programs or services (such as survey and certification) provided 
by the agency in which Ombudsman program is located at the State or 
local levels;
    3. Conflicts of interest between the individual roles and 
responsibilities of the Ombudsman (or representatives of the Office) 
and other personal or professional interests (such as financial 
interest in a long-term care facility);
    4. Ability of the Office to provide public policy recommendations 
as required by statute;
    5. Ombudsman services to residents (including recommendations 
related to Ombudsman records, resident records, and services to 
individuals under age sixty); and
    6. Training and certification/designation of representatives of the 
Office.\2\
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    \2\ ``Long-Term Care Ombudsman Strategy Session: Final Report,'' 
December 2011, National Ombudsman Resource Center. Available at: 
http://www.ltcombudsman.org/sites/default/files/norc/ltcop-strategy-session.pdf.
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II. Proposed Changes to 45 CFR Part 1321 and Addition of New Part 1327

    In its 1992 Older Americans Act reauthorization, Congress created 
Title VII--Allotments for Vulnerable Elder Rights Protection 
Activities, and incorporated the provisions related to the activities 
of Long-Term Care Ombudsman programs into Title VII. Previously some of 
these provisions had been within Title III. Therefore, the rule 
governing Title III of the Act (i.e. 45 CFR 1321) and last updated in 
1988, includes some minimal provisions which govern the Long-Term Care 
Ombudsman Program. Since its creation in 1992, Title VII has included 
the provisions related to Ombudsman program activities. These proposed 
changes update 42 CFR part 1321 to reflect the most recent (2006) 
reauthorization of the Act.

[[Page 36451]]

    There has been significant variation in the interpretation and 
implementation of the provisions of the Act among States. This has 
resulted in residents of long-term care facilities receiving 
inconsistent services from Ombudsman programs in some states compared 
to other states. An example of this inconsistency in approach is the 
way that various States respond to complaints to the Ombudsman program 
that a facility has abused a resident:
     In most States, the Ombudsman program is available to 
assist and resolve the complaint to the satisfaction of the resident, 
working with the resident to assure his or her well-being. In those 
States, the Ombudsman program explains to the complainant that another 
agency represents the State as the official finder of fact, but that 
the Ombudsman serves as a victim advocate to support the resident 
through the official investigation process and to assist the resident 
in voicing and realizing his or her goals.
     However, in some States, the same abuse complaint gets the 
same response that the Ombudsman program is not the official finder of 
fact for abuse complaints, and the complainant is immediately referred 
to another State or local agency. However, in some cases, the resident 
receives no additional assistance from the Ombudsman program related to 
the abuse allegation.
     In still other States, the Ombudsman program is designated 
by the State as the official finder of fact to determine whether the 
abuse is substantiated. It refers substantiated cases to law 
enforcement, at times without (or even in violation of) the wishes of 
the resident.
     In still other States, the Ombudsman is designated by the 
State as the official finder of fact, but in order to not violate the 
wishes of the resident or the disclosure provisions of the Act, it does 
not refer substantiated cases to law enforcement without resident 
consent.
     The Act requires that Ombudsman programs both assist 
residents in protecting their health, safety, welfare and rights as 
well as to provide the resident with the option to consent to 
disclosure of information about his or her complaint. This proposed 
rule is intended to provide the clarity and consistency needed to 
ensure that residents receive needed protections, and, at the same 
time, that resident choice is honored, regardless of the State in which 
a resident lives.
    Long-Term Care Ombudsman programs were designed by Congress to have 
several features which are uncharacteristic of other programs created 
by and funded under the Act. Among those features are independence (a 
characteristic of any type of ombudsman program), unusually stringent 
disclosure requirements, a public policy advocacy function, and the 
Ombudsman responsibility to designate local staff and volunteers to 
serve as representatives of the Office even if they do not report to 
the Ombudsman for personnel management purposes. These distinct 
features often create confusion in implementation which this rule is 
designed to address.

Summary of the Provisions of the NPRM

    The State Long-Term Care Ombudsman program was originally created 
within Title III of the Older Americans Act, and there are regulations 
affecting this program in Part 1321, Grants to State and Community 
Programs on Aging. This rule proposes to amend the following section of 
Part 1321:
Sec. 1321.11 State Agency Policies
    In addition, the proposed rule develops new regulations for the 
Ombudsman program where it currently resides in Subtitle A, Chapter 2, 
of Title VII of the OAA, Allotments for Vulnerable Elder Rights 
Protection Activities. AoA proposes a new Part 1327 in order to provide 
States with clarity regarding the operation of the Ombudsman program.
    Topics addressed in the newly proposed Part 1327 include 
definitions of:
     Immediate family,
     Office of the State Long-Term Care Ombudsman, and
     Representative of the Office of the State Long-Term Care 
Ombudsman.
    Other topics addressed in proposed Part 1327 include:
     Establishment of the Office of the State Long-Term Care 
Ombudsman,
     Functions and Responsibilities of the State Long-Term Care 
Ombudsman,
     State Agency Responsibilities Related to the Long-Term 
Care Ombudsman Program,
     Functions and Duties of the Office of the State Long-Term 
Care Ombudsman, and
     Conflicts of Interest.

A. State Agency Policies

    Currently, federal regulations require State agencies to monitor 
the performance of programs and activities, including, but not limited 
to, Long-Term Care Ombudsman programs.
    With respect to disclosure of Ombudsman program files and records, 
Section 712(d) of the Act requires that the State agency on aging (also 
referred to as ``State unit on aging'' and, for purposes of these 
regulations, ``State agency'') establish procedures for disclosure and 
indicates that these procedures provide that the files and records 
``may be disclosed only at the discretion of the Ombudsman (or the 
person designated by the Ombudsman to disclose the files and 
records).'' Further, they must prohibit disclosure of the identity of 
any complainant or resident with the limited exceptions set forth in 
the Act. See Section 712(d)(2)(B) of the Act. AoA proposes revising 
section 1321.11 to reflect this provision of the Act.
    AoA proposes revising the current regulation with respect to State 
agency access to the files, records and other information maintained by 
the Ombudsman program in order to accommodate the increased use of 
digital information and incorporate information obtained verbally and 
by other means while maintaining protections for residents. AoA 
proposes use of the term ``files, records, and other information'' in 
these regulations rather than ``files'' as used in the current 
regulation. The term ``files, records, and other information'' more 
clearly indicates that the disclosure provision of Section 712(d) of 
the Act is not dependent on any particular format of the files and not 
limited to information contained in case files. For example, 
information collected during individual consultation activities which 
are not part of case files also would be subject to this provision.
    AoA proposes replacing the following provisions in the current 
regulation at 45 CFR 1321.11(b) with the following provision:
    ``The State Long-Term Care Ombudsman and his or her designee shall 
be responsible for monitoring the files, records, and other information 
maintained by the Office, and shall not disclose the identity of any 
complainant or long-term care facility resident to individuals outside 
of the Office, except as otherwise specifically provided in section 
712(d)(2)(B) of the Act.''
    This proposal more closely reflects the provisions of the Act. 
However, we are aware that State agencies need certain information from 
the Ombudsman program in order to fulfill their responsibilities 
related to oversight of Ombudsman program operations and personnel and/
or contract management. Aggregate data on Ombudsman program activities 
and complaint processing may be sufficient for this purpose and do not 
reveal the identities of any complainants or residents. We invite 
comments for the final rule that will help us identify an appropriate 
balance

[[Page 36452]]

between Ombudsman protection of confidential information and State 
oversight responsibilities.
    In addition, AoA proposes to omit from 45 CFR 1321.11, the 
reference to Section 307(a)(12). The provision numbers have changed in 
subsequent reauthorizations of the Act, and this statutory reference is 
no longer necessary within the context of the proposed revision.

B. Definition of Immediate Family

    The term ``immediate family'' is used repeatedly in Section 712(f) 
of the Act but is not defined in the statute. Absent a definition, this 
term has created uncertainty and inconsistency among States related to 
the scope of conflicts that are required to be identified and removed 
under Section 712(f)(4) of the Act.
    AoA proposes to describe relationships that could impair the 
judgment or give the appearance of bias on the part of an individual 
who is responsible to objectively designate an individual as the 
Ombudsman (under Section 712(f)(1) of the Act) or on the part of the 
Ombudsman or officers, employees or representatives of the Office 
(under section 712(f)(2) of the Act). Therefore, AoA proposes the 
definition of ``Immediate family'' pertaining to conflicts of interest 
as used in section 712 of the Act, means a member of the household or a 
relative with whom there is a close personal or significant financial 
relationship.
    The proposed regulation is adapted from the federal standards of 
ethical conduct which prohibit federal executive branch employees from 
participating in a matter where the circumstances would raise a 
question regarding the employee's impartiality. Federal regulations 
indicate that it would be difficult for a federal employee to be 
impartial regarding ``a person who is a member of the employee's 
household or who is a relative with whom the employee has a close 
personal relationship'' or where the matter is likely to have a 
``direct and predictable effect on the financial interest of a member 
of his household.'' 5 CFR Section 2635.502(a),(b).

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

    The Older Americans Act requires that State Offices of the State 
Long-Term Care Ombudsman make certain determinations. These Offices and 
their responsibilities are referenced in Section 712, as well as in 
Sections 207(b)(3)(E) and 307(a)(9), of the Act. Section 711(1) of the 
Act defines ``Office'' as ``the office established in section 
712(a)(1)(A). There is a need for further clarification of the scope of 
the definition of ``Office of the State Long-Term Care Ombudsman'' due 
to inconsistencies among States and confusion regarding the 
interpretation of which individual or individuals constitute the 
``Office.'' For example, States would benefit from clarification 
regarding who is responsible for making determinations specifically 
required of the Office by the Act.
    With respect to several functions, the statute indicates that 
determinations must be made by the Office. Interference with these 
determinations could constitute interference with the Office, which is 
prohibited under Section 712(j) of the Act.
    States have repeatedly requested that AoA provide clarification on 
the question of which individual or individuals constitute the 
``Office.'' Some States have interpreted the ``Office'' to mean the 
Ombudsman and representatives of the Office; others have interpreted 
``Office'' to mean the State agency on aging.
    A 2011 State compliance review revealed that AoA's provision of 
technical assistance and education on this question may not have 
provided sufficient clarity to States regarding the decision-making 
authority expected of the Office of the State Long-Term Care Ombudsman, 
and more specifically of the State Long-Term Care Ombudsman, as the 
head of that Office. Thus, this proposed rule clarifies and codifies 
the definition.
    Section 712(a)(2) of the Act states that the Office of the State 
Long-Term Care Ombudsman shall be ``headed by an individual, to be 
known as the State Long-Term Care Ombudsman.'' In addition, under 
Section 712(a)(5) of the Act, the State Long-Term Care Ombudsman has 
the authority to designate local Ombudsman entities and employees and/
or volunteers to represent these entities. The proposed definition 
seeks to clarify for States that the State Long-Term Care Ombudsman and 
his or her representatives shall constitute the ``Office.'' Therefore, 
AoA proposes the definition of ``Office of the State Long-Term Care 
Ombudsman'' as set forth at section 1327.1, which includes the 
organizational unit headed by the State Long-Term Care Ombudsman, 
including representatives of the Office.

D. Definition of Representatives of the Office of the State Long-Term 
Care Ombudsman

    The term ``representatives of the Office of the State Long-Term 
Care Ombudsman'' is used throughout Section 712 of the Act. For 
purposes of Subtitle A, Chapter 2, of Title VII, Section 711(5) of the 
Act. The term `representative' includes an employee or volunteer who 
represents an entity designated under section 712(a)(5)(A) and who is 
individually designated by the Ombudsman.
    Section 712(a)(5)(A) of the Act further indicates that the 
Ombudsman ``may designate an employee or volunteer to represent the 
[local Ombudsman] entity.'' These provisions of the Act have created 
confusion in States' operation of the Ombudsman Program because it is 
unclear whether the ``representatives of the Office'' are to represent 
the Office of the State Long-Term Care Ombudsman or to represent the 
local Ombudsman entity or both.
    AoA intends to clarify that the representatives of the Office, 
including local staff and volunteers designated by the Ombudsman, 
indeed represent the Office (as opposed to the entity by which they may 
be employed or managed) when they are carrying out duties of the 
Office. These duties of the representatives of the Office are set forth 
in Section 712(a)(5)(B) of the statute. For convenience, ACL has 
included this statutory definition of duties at section 1327.17(a) of 
the proposed rule. The inclusion of these duties into the proposed rule 
does not and is not intended to amend the statutory language.
    The practical implication of this clarification is that the 
``representatives of the Office'' are accountable to the head of the 
Office, which is the State Long-Term Care Ombudsman under Section 
712(a)(2) of the Act, for purposes of Ombudsman program operations. For 
all programmatic operations, the representative represents the Office 
(for example, they must follow the policies, procedures and guidance of 
the Ombudsman regarding complaint processing and other Ombudsman 
program activities). Simultaneously, representatives represent the 
entity (i.e. the ``local Ombudsman entity'') that employs or oversees 
them for personnel management matters (for example, they must follow 
the entity's personnel policies so long as those policies do not 
conflict with Ombudsman program law and policy).
    Therefore, AoA proposes the definition of ``Representatives of the 
Office of the State Long-Term Care Ombudsman'' set forth at section 
1327.1 to clarify that designated employees and volunteers serve as 
representatives of the Office.

[[Page 36453]]

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

    Proposed section 1327.11 governs the establishment of the Office 
pursuant to Section 712(a)(1) of the Act and as defined in proposed 
regulation 1327.1. See section ``D, Definition of Office of the State 
Long-Term Care Ombudsman,'' above.
    The Act requires that certain determinations be made by the Office. 
As proposed in section 1327.11(c)(4), AoA clarifies which 
determinations are the responsibilities of the Office, and by logical 
extension, by the head of the Office, the Ombudsman, pursuant to 
Section 712(h) of the Act. Because these determinations are frequently 
outside the scope of the authority of most State employees (most, 
though not all, State Ombudsmen are State employees), clarification 
would assist States in full implementation of the Act.
    Specifically, these determinations include:
     Determinations regarding disclosure of information 
maintained by the program within the limitations as set forth in 
Section 712(d) of the Act;
     Recommendations to changes in Federal, State and local 
laws, regulations, policies and actions pertaining to the health, 
safety, welfare, and rights of residents as set forth in Section 
712(h)(2) of the Act; and
     Provision of information to public and private agencies, 
legislators, and other persons, regarding the problems and concerns of 
residents and recommendations related to the problems and concerns as 
set forth in Section 712(h)(3) of the Act.
    The Act indicates that the recommendations made by and the 
information provided by the Office are limited to issues impacting 
residents of long-term care facilities and services. See, e.g., 
712(a)(3)(G), 712(h)(2). In order to reduce confusion at the State 
level where the recommendations of an Ombudsman might be mistaken for 
the position of the Governor or the State agency, another agency 
carrying out the Ombudsman program, or any other State agency, AoA 
proposes the provision in section 1327.11(c)(4) to indicate 
determinations are those of the Office of the State Long-Term Care 
Ombudsman and do not represent other state governmental entities.

F. Functions and Responsibilities of the State Long-Term Care Ombudsman

    AoA proposes clarification regarding the appropriate role and 
responsibilities of the Ombudsman, as the ``head of the Office.'' The 
functions of the Ombudsman are set forth in Section 712(a)(3) of the 
statute. For convenience, ACL has included this statutory text at 
section 1327.13(a) of the proposed rule. The inclusion of these 
functions into the proposed rule does not and is not intended to amend 
the statutory language.
    AoA has indicated in a letter to a State that the State Unit on 
Aging (SUA) and the Office of the State Long-Term Care Ombudsman are 
distinct entities within the OAA. Section 305(a) of the OAA, requires 
the State to designate a single State agency to carry out the 
requirements of the Act. Whether the Long-Term Care Ombudsman is placed 
within the single State agency, or by contract with an entity outside 
the State agency, the OAA is explicit that the Long-Term Care Ombudsman 
is to be established in, and is to carry out his or her functions in, a 
separate `Office.' 42 U.S.C. 3058f(1); 3058g(a)(1)(A).
Ombudsman Responsibility With Respect to Designation and De-designation 
of Representatives
    Some States have indicated the need for more clarification about 
who has authority to de-designate ombudsman employees and volunteers so 
that a formerly designated individual is no longer authorized to act as 
a representative of the Office. Other States have established policies 
and procedures to clarify that the Ombudsman has the sole authority to 
designate and, consistent with that authority, also the sole authority 
to de-designate representatives of the Office.
    Since the Ombudsman is the individual solely authorized to 
designate representatives pursuant to Section 712(a)(5) of the Act, the 
Ombudsman has sole authorization to de-designate representatives of the 
Office. Without such authority, the Ombudsman would have significant 
limitations in his or her ability to determine the individuals 
qualified to represent the Office and to remove such designation where 
a representative fails to adhere to program requirements. In order to 
respond to this inconsistency among States in the understanding of the 
authority of the Ombudsman to de-designate, AoA proposes to clarify 
that the Ombudsman has the sole authority both to designate and de-
designate in section 1327.13(c). This provision is not intended to 
limit the authority of the Ombudsman to delegate certification training 
and examination processes or to receive recommendations of designation 
or de-designation from representatives of the Office, but clarifies 
that the Ombudsman is responsible to make the final determination of 
designation and de-designation of representatives of the Office.
Ombudsman Responsibility With Respect to Area Plans
    Although the Ombudsman has statutory authority to designate local 
Ombudsman entities, the involvement of the Ombudsman in the planning of 
Ombudsman program operations by such local Ombudsman entities is not 
directly addressed in the Act. In many States, local Ombudsman entities 
include area agencies on aging (AAAs) and/or AAAs subcontract to non-
profit agencies to serve as local Ombudsman entities. In these States, 
area plans include fiscal and programmatic provisions related to the 
operation of the Ombudsman program by the local Ombudsman entity. Those 
individuals working for the local Ombudsman entity and designated by 
the Ombudsman serve as representatives of the Ombudsman and, therefore, 
are within the definition of the ``Office'' as set forth in section 
1327.1. AoA proposes that the Ombudsman, as head of the Office, be held 
responsible to review and approve the portions of area plans, submitted 
pursuant to section 306 of the Act, which are related to the Ombudsman 
program so that the work of Office is coordinated by--and the local 
Ombudsman entities are held accountable to--the Ombudsman. In addition, 
given the State agency role in reviewing and approving area plans 
pursuant to section 306 of the Act, the Ombudsman should conduct such 
review and approval in coordination with the State agency. These 
requirements are set forth at section 1327.13(d).
Ombudsman Responsibility With Respect to Ombudsman Program Information
    Section 712(d)(2)(A) of the Act indicates that ``files and records 
[maintained by the Ombudsman program] may be disclosed only at the 
discretion of the Ombudsman (or the person designated by the Ombudsman 
to disclose the files and records).''
    Many of the files, records, and other information maintained by the 
representatives of the Office are physically maintained at the offices 
of the designated local Ombudsman entities (including, but not limited 
to, AAAs). This can create confusion about who has the authority to 
make determinations about the disclosure and maintenance of the files, 
records, and other information of the Office even though the Act 
clearly gives the sole discretion for their disclosure to the Ombudsman 
or his or her designee.

[[Page 36454]]

Therefore, AoA proposes to clarify that the files, records, and other 
information of the Office shall be controlled by the Ombudsman and are 
the property of the Office, including when such files, records, and 
other information are maintained by a local Ombudsman entity or 
representatives of the Office.
    AoA uses the term ``files, records, and other information'' to 
indicate that the disclosure provision of Section 712(d) of the Act 
should not be dependent upon any particular format of the files. In 
addition, because the Act does not limit the disclosure of files, 
records and other information to paper copies--and since electronic 
recordkeeping is increasingly the norm--AoA proposes that the 
requirements related to files, records and other information apply to 
physical, electronic, or other formats.
    AoA proposes the provision regarding the responsibility of the 
Ombudsman to manage Ombudsman program information at section 
1327.13(e).
Ombudsman Responsibility With Respect to Disclosure of Files, Records 
and Other Information
    AoA proposes, at section 1327.13(f), to include within the 
responsibility of the Ombudsman, decisions related to disclosure of 
information in the possession of the Office in addition to information 
contained within case files (for example, information obtained during 
consultations with individuals or facilities). See also section ``A. 
State Agency Policies,'' above, and section ``H. State Agency 
Responsibilities Related to the Long-Term Care Ombudsman Program,'' 
below.
Ombudsman Responsibility With Respect to Determining the Use of the 
Fiscal Resources
    In its evaluation of Long-Term Care Ombudsman programs, the 
Institute of Medicine recommended to the Assistant Secretary for Aging:
    ``6.4 The committee recommends that the Assistant Secretary for 
Aging issue program guidance to states that stresses the importance of 
delegating to the Office of the State Long-Term Care Ombudsman 
responsibility for managing all of the human and fiscal resources 
earmarked for the state ombudsman program within the boundaries of what 
is permitted by state budget policy and procedures and required by 
federal mandates for compliance. . . .'' \3\.
---------------------------------------------------------------------------

    \3\ IOM Report (1995) at pp. 199-200.
---------------------------------------------------------------------------

    AoA agrees with the recommendation that the head of the Office 
should be responsible for managing the fiscal resources of the Office. 
AoA proposes that the Ombudsman be held responsible for determining the 
use of fiscal resources appropriated or otherwise designated for the 
Office, subject to applicable Federal and State laws and policies, as 
set forth at section 1327.13(i).
Ombudsman Responsibility With Respect To Monitoring Local Ombudsman 
Entities
    The Ombudsman, as head of the Office, has responsibility for 
designating local Ombudsman entities pursuant to section 712(a)(5) of 
the Act. So that the work of Office is coordinated by and the local 
Ombudsman entities are accountable to the Ombudsman, AoA proposes that, 
where an Ombudsman designates local Ombudsman entities, the Ombudsman 
be held responsible to monitor the Ombudsman program performance of 
such entities as set forth in section 1327.13(j).
Ombudsman Responsibility With Respect To Coordination of Ombudsman 
Activities With Other Elder Rights, Disability Rights, and Elder 
Justice Entities
    The Act requires that the State agency require the Office to 
coordinate with protection and advocacy systems, legal assistance, 
State and local law enforcement agencies, and courts of competent 
jurisdiction. Section 712(h)(6)-(8) of the Act. In another part of the 
Act, the Ombudsman program is listed among the programs and services 
which protect elder rights or promote elder justice and for which 
coordination of efforts is required by the Act. See Section 721(d) of 
the Act.
    In section 1327.13(l), AoA proposes a list of the relevant entities 
covered by the Act, including AAA programs, adult protective services 
programs, protection and advocacy systems, facility and long-term care 
provider licensure and certification programs, State Medicaid fraud 
control units, etc. The proposal also establishes the statewide 
leadership role of the Ombudsman in coordinating the activities of the 
Office with those of these elder rights and elder justice programs.

G. State Agency Responsibilities Related to the Long-Term Care 
Ombudsman Program

    The proposed rule defines the appropriate role and responsibilities 
of the State agency on aging (also referred to as ``State unit on 
aging'' or, for purposes of these regulations, ``State agency'') 
related to the establishment and operation of the Ombudsman program. A 
primary responsibility of the State agency related to the operation of 
the Ombudsman program is to establish the policies and procedures which 
enable the Ombudsman program to operate in accordance with the Act. The 
Act requires that the State agency establish, in accordance with the 
Office, policies and procedures regarding how the Office will fulfill 
its functions. Section 712(a)(5)(D). AoA proposes consolidating the 
State agency responsibilities related to the Ombudsman that are 
included in the Act into section 1327.15.
State Agency Responsibility With Respect to Standards for Complaint 
Response
    In its 1999 report, the HHS Inspector General recommended that AoA 
work with States to develop guidelines for complaint response and 
resolution times. . . .'' While numerous States have developed such 
standards, others have not yet done so. Through section 
1327.15(a)(2)(B), AoA proposes that States develop standards related to 
complaint response times and further requires standards to assure 
prompt response that prioritize abuse, gross neglect, exploitation and 
time-sensitive complaints. AoA believes that States are best suited to 
establish these standards due to the wide variation among States in 
terms of resources available to the Ombudsman program, density of 
population centers, geographic distribution of facilities, and similar 
State-specific factors which would make a national standard difficult 
to implement.
State Agency Responsibility With Respect to Disclosure of Resident or 
Complainant Identifying Information
    Under Section 712(d) of the Act, States must ensure that the 
Ombudsman and representatives of the Office are prohibited from 
disclosing the identity of any complainant or resident, except as 
specifically authorized in the statute.
    This requirement also applies to situations of reporting abuse, 
gross neglect or exploitation notwithstanding State laws to the 
contrary. This is consistent with AoA's long-standing position.

The Older Americans Act [Section 712(d)(2)] prohibits disclosure of 
the identity of any complainant or resident by the ombudsman, unless 
the complainant or resident, or the resident's legal representative, 
consents, or a court orders the disclosure. In contrast to, and 
sometimes in conflict with, the Federal law, a number of States have 
mandatory reporting requirements for individuals--including 
ombudsmen--who know of or suspect adult abuse, neglect, or 
exploitation.

    AoA proposes that the disclosure procedures must comply with the

[[Page 36455]]

``Complaint Processing'' provisions of the proposed regulations, 
section 1327.17(b), in which AoA clarifies exceptions (specifically 
related to suspected abuse, gross neglect and exploitation complaints), 
when disclosure of the identity of a resident by the Ombudsman may be 
permitted to appropriate entities. These include circumstances when the 
Ombudsman or representative of the Office is processing a complaint 
related to the resident, and:
    (a) The resident is unable to communicate informed consent to the 
Ombudsman or representative of the Office, has no guardian or other 
legal representative, and the Ombudsman or representative of the Office 
has reason to suspect that the resident is a victim of abuse, gross 
neglect, or exploitation; or
    (b) The resident is unable to communicate informed consent to the 
Ombudsman or representative of the Office, and the resident has a 
guardian or other legal representative who the Ombudsman or 
representative of the Office has reasonable cause to believe is a 
perpetrator of abuse, gross neglect, or exploitation of the resident.
    In addition, AoA proposes that the Ombudsman must disclose the 
identity of a resident where the Ombudsman or representative of the 
Office personally witnesses suspected abuse, gross neglect or 
exploitation of a resident, so long as (1) the resident at issue does 
not request the Ombudsman or representative to not make a report of the 
suspected activity witnessed by the Ombudsman or representative and (2) 
the Ombudsman determines it to be in the best interest of the resident.
    In both of these circumstances, the proposed rule requires that 
such disclosure only be permitted where the Ombudsman or representative 
of the Office has reasonable cause to believe that it is in the best 
interest of the resident to make a referral and the representative 
obtains the approval of the Ombudsman.
    AoA intends the proposed regulations to address areas where 
clarification is needed regarding access to files, records, and other 
information maintained by the Office. First, this provision addresses 
questions regarding whether State units on aging, area agencies on 
aging or any other entities with monitoring responsibility have access 
to Ombudsman information. See also section ``A. State Agency 
Policies,'' above. Note that this proposed regulation does not limit 
the disclosure of aggregate information, performance measures, and 
similar performance data to monitoring agencies. Instead, it implements 
the statutory provision that the Ombudsman is prohibited from 
disclosing the identities of residents or complainants without 
obtaining appropriate consent or unless required by court order, 
pursuant to Section 712(d) of the Act.
    Second, the proposed regulation clarifies that the requirements 
related to files, records and information apply regardless of funding 
source, including funds from Title VII, Chapter 3, of the Act. The 
provision in Chapter 3 of the Act which has created confusion on this 
issue states:

[A]ll information gathered in the course of receiving reports and 
making referrals shall remain confidential except. . . (ii) if the 
release of such information is to a law enforcement agency, public 
protective service agency, licensing or certification agency, 
ombudsman program, or protection or advocacy system. . . .
Section 705(a)(6)(C) of the Act.

    While Title VII of the Act does provide for an exception which 
permits the release of otherwise confidential information with respect 
to the programs funded through Chapter 3, Chapter 2 (the chapter 
related to the Ombudsman Program) contains no similar exception for the 
release of confidential information to law enforcement and similar 
agencies absent appropriate consent or a court order. See Section 712 
(d)(2) of the Act.
    AoA proposes use of the term ``files, records, and other 
information'' in these regulations rather than ``files and records'' as 
used in Section 712(d) of the Act. See section ``G, Functions and 
Responsibilities of the State Long-Term Care Ombudsman,'' above. The 
proposed rule clarifies that the State, in providing for Ombudsman 
program procedures for appropriate disclosure, shall develop procedures 
related to at least the following types of files, records, and 
information (each of which is specifically referenced within Section 
712 of the Act): medical and social records of residents; 
administrative records, policies, and documents of long-term care 
facilities; licensing and certification records maintained by the State 
with respect to long-term care facilities; and data collected in the 
statewide uniform reporting system of the Ombudsman program.
    This proposed regulation uses the term ``communication of informed 
consent'' to describe the manner in which Ombudsmen and representatives 
of the Office obtain consent from residents (or complainants or legal 
representatives, where applicable) for purposes of disclosure. The Act 
prohibits disclosure of the identity of any complainant or resident 
without appropriate ``consent.'' Section 712(d)(2)(B) of the Act. Since 
the Ombudsman and representatives of the Office provide an advocacy 
service, but do not perform clinical assessments or make legal 
determinations related to ability to consent, the Ombudsman or 
representatives of the Office must rely on the ability of the 
individual to communicate consent (whether verbally or written, 
including through the use of assistive technology). In addition, the 
Ombudsman and representatives of the Office will want to be assured 
that the resident (or complainant or legal representative) appears to 
understand that to which he or she is consenting. Therefore, the 
proposed rule requires the State agency to maintain the confidentiality 
and protection of identifying information of residents or complainants 
and only allow disclosure consistent with the proposed rule.
State Agency Responsibility With Respect to State Lobbying Prohibitions
    To be eligible for Older Americans Act funding, the State agency 
must require that the Office perform certain activities, set forth in 
section 1327.15(h). These activities are identified in statute and 
required of entities receiving federal funding under the OAA. They 
include recommending changes in laws, regulations and policy and 
providing information to public and private agencies and legislators as 
the Office determines to be appropriate. These provisions must be 
carried out notwithstanding any State laws or regulations, such as 
restrictions on lobbying, which may be in conflict with such 
provisions. Section 1327.15(a)(2)(E) establishes the State agency's 
responsibilities with respect to excluding the Ombudsman and 
representatives of the Ombudsman Office from state lobbying 
prohibitions.
State Agency Not Prohibited From Consulting on Ombudsman Determinations
    Questions have arisen from States regarding whether it is 
permissible for a State agency to require consultation regarding the 
determinations of the Office. AoA has long maintained that 
consultation, so long as it does not interfere with the functions of 
the Office, is not prohibited and has provided such guidance to States. 
The OAA does not prohibit States from seeking comments or in-put, 
including from the State Unit on Aging, provided that in the end the 
Ombudsman retains the absolute right to decide what finally should be 
presented by the Office. Such cooperation ensures that the SUA and the 
Ombudsman's office would not needlessly duplicate their efforts. The

[[Page 36456]]

SUA may also have valuable information as well as recommendations to 
contribute which the Ombudsman might decide to accept. Even where the 
SUA and Ombudsman's Office ultimately disagree, such advance notice and 
consultation permit both entities to coordinate their reports to the 
State legislature, thereby furthering a truly informed debate to the 
benefit of the legislature and other policy makers.
    The Act places the Ombudsman in a unique position within States. To 
eliminate confusion, the proposed rule seeks to clarify that States may 
appropriately coordinate with Ombudsman programs while, at the same 
time, the rule reaffirms that the Office makes independent 
determinations. Therefore, AoA proposes the provision clarifying that 
the State agency is not prohibited from consulting on Ombudsman 
determinations at section 1327.15(a)(2)(E)(ii). The proposed rule 
further indicates that policies which promote consultation may not 
limit the ability of the Office to fulfill its functions and duties. 
Therefore, in circumstances in which advanced communication is 
impractical or would interfere with the independent determination of 
the Ombudsman, a State policy could not require advanced communication 
of the determinations of the Office.
State Agency Responsibility To Provide Ombudsman Access to Training
    In response to questions from States regarding appropriate uses of 
Title III-B and Title VII, Subtitle A, Chapter 2 funds, AoA proposes to 
clarify that a State agency may appropriately utilize, these funds to 
meet the State agency responsibility with respect to the training needs 
of the Ombudsman. In addition, Section 301(c) of the Act requires the 
Assistant Secretary for Aging (ASA) to provide training and technical 
assistance to State Ombudsman programs. In some cases, Ombudsmen are 
prevented from attending training provided by the AoA-funded National 
Ombudsman Resource Center because of limits on State administrative 
funds. Representatives of the Office may have difficulty accessing 
other necessary training to perform their duties without access to 
these resources.
    AoA has previously issued guidance saying that States may use Title 
III, Part B funds to fund any aspect of the statewide Ombudsman 
Program, as the program is defined in Section 712 of the Act. It has 
also said that States may not include any Title VII funding in their 
calculation of funds available for State plan administration. The 
programs under Title VII, unlike most of the programs under Title III, 
are established and operated as direct advocacy services by the State 
Agency on Aging and/or agencies with which the State Agency contracts 
or provides grants to operate the programs.\4\
---------------------------------------------------------------------------

    \4\ AoA Program Issuance 94-02; see also AoA Fiscal Guide, Older 
Americans Act, Titles III and VII (May 2004).
---------------------------------------------------------------------------

    Since the Title III-B and Title VII funds used for the Ombudsman 
program are considered service dollars, States may use these funds to 
carry out Ombudsman services. Adequate training in order to provide 
this service is a reasonable cost of providing the service. Through 
this proposed rule, AoA clarifies for States that Title III-B and/or 
Title VII-2 (i.e. Ombudsman service) funds may be used for the purposes 
of the Ombudsman and representatives of the Office accessing and/or 
providing service-related training and, in fact, may be used in lieu of 
``administrative funds'' provided to States under Title III-A. 
Therefore, AoA proposes the provision regarding responsibility of the 
State agency to provide Ombudsman and representatives of the Office 
access to training at section 1327.15(a)(3).
State Agency Responsibilities With Respect to Personnel Management and 
Program Monitoring
    Where the Ombudsman and any representatives of the Office are 
employed by the State agency, AoA expects the State agency, as the 
employer, to provide supervision and management of Ombudsman program 
personnel, while respecting the limits on access to resident or 
complainant-identifying information, as included in the proposed rule. 
In addition, State agencies have a responsibility to establish policies 
for monitoring the performance of all programs and activities initiated 
under the Act for quality and effectiveness. Therefore, where the 
Office is outside of the State agency, the State agency has a 
responsibility to monitor the contract or other arrangement through 
which the Ombudsman program is carried out, while respecting the limits 
on access to information, as included in the proposed rule.
    In both its personnel management and program monitoring 
responsibilities, the State is subject to limits on its access to the 
files, records and other information of the Ombudsman program. While 
the State agency may review aggregate data and analyze reports of 
Ombudsman program performance, it may not have access to information 
that is prohibited to be shared outside of the Ombudsman program by the 
Act. The proposed regulation clarifies the State agency responsibility 
regarding personnel supervision and management and regarding program 
monitoring, including with respect to prohibitions related to 
disclosure of files and records in Section 712(d) in the Act. See also 
sections ``A. State Agency Policies,'' and ``G. Functions and 
Responsibilities of the State Long-Term Care Ombudsman,'' above. 
Therefore, AoA proposes the provision regarding the responsibilities of 
the State agency with respect to personnel management and program 
monitoring at section 1327.15(a)(4),(5).
State Agency Responsibility With Respect to Coordinating Elder Rights, 
Disability Rights, and Elder Justice Programs
    The Act requires the Assistant Secretary to ``provide Federal 
leadership to support State efforts in carrying out elder justice 
program and activities.'' Section 201(e)(2)(A)(ii) of the Act. This 
duty includes ``promoting collaborative efforts and diminishing 
duplicative efforts in the development and carrying out of elder 
justice programs at the Federal, State and local levels.'' Section 
201(e)(2)(A)(ix) of the Act. In addition, the Act requires State 
agencies to ``coordinate the programs [to address elder abuse, neglect 
and exploitation] with other State and local program and services for 
the protection of vulnerable adults. . . .'' Section 721(d) of the Act. 
Among the programs specifically listed for coordination, are State 
Long-Term Care Ombudsman programs. Section 721(d)(3) of the Act.
    The proposed rule emphasizes the importance of States' coordinating 
role being integrated into the State plan process. It also requires 
coordination of Title VII program activities to promote State-level 
alignment with the duties of the Assistant Secretary as set forth in 
Section 201(e)(2) of the Act. Therefore, AoA proposes the provision 
regarding responsibility of the State agency to coordinate elder 
rights, disability rights, and elder justice programs at section 
1327.15(a)(6)-(7).
State Agency Responsibility With Respect to Non-Interference
    States are required by the Act to ensure that willful interference 
with representatives of the Office in the performance of their official 
duties shall be unlawful. Section 712(j)(1) of the Act. These duties 
are set forth in section 1327.17(a). Proposed section 1327.15(a)(8) 
clarifies that interference is not limited to interference by 
facilities or other third parties, but that State agencies on aging and 
local

[[Page 36457]]

Ombudsman entities are also subject to the prohibition on interference. 
In fulfilling their statutory duty to protect the Ombudsman program 
from interference, State agencies may not themselves interfere with the 
Ombudsman program's ability to perform its official duties.
State Agency Responsibility With Respect to Access to Records
    The Act requires that the State agency ensure that representatives 
of the Office have access to facilities, residents, and resident 
records pursuant to Section 712(b) of the Act. With respect to access 
to resident records, the Act states:
    The State shall ensure that representatives of the Office shall 
have * * *
    (i) appropriate access to review the medical and social records of 
a resident, if--
    (I) The representative has the permission of the resident, or the 
legal representative of the resident; or
    (II) the resident is unable to consent to the review and has no 
legal representative; or
    (ii) Access to the records as is necessary to investigate a 
complaint if--
    (I) A legal guardian of the resident refuses to give the 
permission;
    (II) A representative of the Office has reasonable cause to believe 
that the guardian is not acting in the best interests of the resident; 
and
    (III) The representative obtains the approval of the Ombudsman. * * 
*

Section 712(b)(1)(B) of the Act.
    AoA has received reports of long-term care facilities, state 
government agencies, and other entities denying Ombudsmen or 
representatives of the Office access to resident records due to 
concerns that the Health Insurance Portability and Accountability Act 
of 1996 (HIPAA) Privacy Rule does not permit the disclosure. AoA has 
previously provided program guidance to States that the HIPAA Privacy 
Rule, 45 CFR Part 160 and Subparts A and E of Part 164, does not 
preclude release of residents' medical and social records to the 
Office. AoA Information Memorandum 03-01, February 4, 2003 (available 
at http://www.aoa.gov/AOARoot/AoA_Programs/OAA/Aging_Network/im/docs/Info_Memoradum_%20HIPAA.pdf). Proposed section 1327.15(b)(1) 
clarifies that the State agency has a responsibility to establish 
policies and procedures consistent with this HIPAA guidance in order to 
provide representatives of the Office with appropriate access to 
resident records.
State Agency Requirements of the Office
    The Act sets forth specified activities that States must require of 
the Office in the administration of the Ombudsman program. Section 
712(h) of the Act. For convenience, ACL has included this statutory 
text at section 1327.15(c) of the proposed rule. The inclusion of these 
requirements into the proposed rule does not and is not intended to 
amend the statutory language.

H. Functions and Duties of the Office of the State Long-Term Care 
Ombudsman

    Section 1327.17 includes provisions related to both the functions 
that may be performed by the State Long-Term Care Ombudsman (the 
``Ombudsman'') and/or the duties which may be performed by the 
representatives of the Office, as opposed to solely by the Ombudsman. 
(The functions which are the sole responsibility of the Ombudsman are 
found under section ``G, Functions and Responsibilities of the State 
Long-Term Care Ombudsman,'' above.)
    Proposed section 1327.17(a) sets forth the duties of the 
representatives of the Office as set forth in Section 712(a)(5)(B) of 
the statute. For convenience, ACL included this statutory text at 
section 1327.17(a) of the proposed rule. The inclusion of these duties 
into the proposed rule does not and is not intended to amend the 
statutory language. The complete list of functions statutorily required 
of the Ombudsman is found above at section 1327.13(a).
    For convenience, AoA proposes compiling regulations which relate to 
both the functions of Ombudsman and the duties of the Office (i.e. 
those which may be performed by either the Ombudsman and/or the 
representatives of the Office) into this section.
Complaint Processing
    The requirement to ``identify, investigate, and resolve complaints 
made by or on behalf of residents'' is a required function of the 
Ombudsman under Section 712(a)(3)(A) of the Act and a required duty of 
representatives of the Office under Section 712(a)(5)(B)(iii) of the 
Act. While facilities, family members, agencies, or other individuals 
may indirectly benefit from the complaint resolution work of the 
Office, complaint processing by the Office must focus on seeking an 
outcome that satisfies the resident. Therefore, section 1327.17(b)(1) 
of the proposed rule defines the resident as the primary recipient of 
Ombudsman program services and sets forth the purposes of the Ombudsman 
program complaint process as follows:
    (1) Resolving the complaint to the resident's satisfaction, and
    (2) assisting residents in protecting their health, safety, 
welfare, and rights.
    The Act provides that the resolution of complaints made by, or on 
behalf of, residents is a function of the Ombudsman and a duty of 
representatives of the Office. Sections 712(a)(3)(A); 712(a)(5)(B)(iii) 
of the Act. Through its National Ombudsman Reporting System (NORS) \5\ 
instructions, States report on resolved complaints only if they meet 
the following definition: ``Definition of resolved complaint: The 
complaint/problem was addressed to the satisfaction of the resident or 
complainant.'' \6\
---------------------------------------------------------------------------

    \5\ AoA maintains the National Ombudsman Reporting System in 
order to receive reports on program activities, characteristics, and 
funding; complaint resolution; and recommendations for long-term 
care systems change from State Long-Term Care Ombudsman Programs. 
OMB No. 0985-0005.
    \6\ OMB No. 0985-0005 at p. 5
---------------------------------------------------------------------------

    In proposed section 1327.17(b)(2)(A), AoA describes how this 
person-centered focus is implemented into complaint processing 
activities. The proposed rule indicates that, regardless of the source 
of the complaint, the Ombudsman or representative of the Office shall 
discuss the complaint with the resident in order to determine the 
perception of the resident, request consent in order to investigate the 
complaint, determine the wishes of the resident, advise the resident of 
his or her rights, work with the resident to develop a plan of action, 
investigate the complaint, and determine whether the complaint is 
resolved to the satisfaction of the resident.
    The Act also requires as a function of the Ombudsman: ``provide 
services to assist the residents in protecting the health, safety, 
welfare, and rights of the residents;'' and as a duty of the 
representatives of the Office: ``provide services to protect the 
health, safety, welfare, and rights of residents.'' Sections 
712(a)(3)(B); 712(a)(5)(B)(i) of the Act.
    Minimal new burden will be placed on the States, State agencies on 
aging, AAAs, Ombudsmen, or the Office because these proposed 
regulations in section 1327.17(b) are largely consistent with the 
present practice as set forth in the National Ombudsman Reporting 
System (NORS) instructions which States currently follow in submitting 
Ombudsman program performance reports annually to AoA.
Communication of Informed Consent by a Resident
    At several places in the Act, the Ombudsman and representatives of 
the Office must rely on the ``permission''

[[Page 36458]]

(see, e.g., Section 712(b) of the Act) or ``consent'' (see, e.g., 
Section 712(d)(2)(B) of the Act) of the resident, (or legal 
representative, where applicable). Since the Ombudsman and 
representatives of the Office provide an advocacy service, but do not 
perform clinical assessments or make legal determinations related to 
ability to consent, the Ombudsman or representatives of the Office must 
rely on the ability of the individual to communicate consent (whether 
verbally or written including through the use of assistive technology).
    In addition, the Ombudsman and representatives of the Office will 
want to be assured that the resident (or legal representative, where 
applicable) appears to understand to what he or she is consenting. 
Therefore, throughout the regulations, the term ``communication of 
informed consent'' is used to describe the interaction between 
residents (or their legal representative, where applicable) and 
Ombudsmen and representatives of the Office.
    The Ombudsman and representatives of the Office have a duty to 
``provide services to protect the health, safety, welfare, and rights 
of residents.'' Section 712(a)(5)(B)(i); see also 712(a)(3)(B) of the 
Act. This may be impossible for the Ombudsman or representatives of the 
Office to accomplish where the resident is unable to provide informed 
consent and where there is no legal representative to provide informed 
consent on behalf of the resident. Therefore, AoA proposes, at section 
1327.17(b)(2)(B), that the Ombudsman or representative of the Office 
shall determine whether the complaint was resolved ``in a manner that 
is in the resident's best interest'' in circumstances where the 
resident is unable to provide informed consent and where there is no 
legal representative to provide informed consent on behalf of the 
resident.
    The ``resident's best interest'' standard is proposed only in the 
circumstance where the resident is unable to provide informed consent 
and where there is no legal representative to provide informed consent 
on behalf of the resident. In all other circumstances, the current NORS 
instruction applies, which defines ``resolved complaint'' as ``The 
complaint/problem was addressed to the satisfaction of the resident or 
complainant.'' \7\ AoA seeks comment on this provision, noting that 
this proposed standard differs from the current NORS instruction in 
specified circumstances.
---------------------------------------------------------------------------

    \7\ OMB No. 0985-0005 at p. 5.
---------------------------------------------------------------------------

    As stated above regarding proposed section 1327.15(b)(2)(c), the 
proposed regulations provide that the State procedures for disclosure 
under Section 712(d) of the Act must provide that the Ombudsman and 
representatives of the Office shall not be required to report abuse, 
neglect or exploitation, despite State laws to the contrary, where such 
report would constitute disclosure prohibited by the Act. Through 
proposed section 13271.17(b)(3), AoA seeks to clarify the disclosure 
requirements of the Act with respect to abuse reporting and provide 
limited circumstances in which disclosure is permitted, i.e. where an 
individual may be at risk and unable to indicate his or her wishes 
related to disclosure.
Communication of Informed Consent by a Representative of a Resident
    Where an Ombudsman or representative of the Office is processing a 
complaint on behalf of a resident, but the resident is unable to 
communicate informed consent and has an authorized representative, the 
proposed regulations clarify that the Ombudsman or representative of 
the Office has the authority to rely on the guidance of a guardian or 
other legal representative. However, the provision qualifies this 
reliance ``so long as the Ombudsman or representative of the Office has 
no reasonable cause to believe that the representative of the resident 
is not acting in the best interests of the resident.'' The purpose of 
this limitation is to conform to the principle stated in Section 
712(b)(1)(B)(ii) of the Act:
    ``The State shall ensure that representatives of the Office shall 
have . . . access to the records access to the records as is necessary 
to investigate a complaint if--
    (I) a legal guardian of the resident refuses to give the 
permission;
    (II) a representative of the Office has reasonable cause to believe 
that the guardian is not acting in the best interests of the resident; 
and
    (III) the representative obtains the approval of the Ombudsman. . . 
.''
    Section 712 of the Act at various places uses the terms 
``guardian'' (e.g., 712(a)(3)(A)(ii)) and ``legal representative'' 
(e.g., 712(b)(1)(B)(i)(I), 712(d)(2)(B)(i)). AoA proposes to use the 
term ``guardian or other legal representative'' throughout the proposed 
regulations to clarify that the Ombudsman and representatives of the 
Office may rely, where appropriate, on the communications of a 
resident's guardian or other legally authorized representative (such as 
a health care proxy or financial power of attorney authorized by the 
resident). In many cases, a resident may have previously authorized 
someone to make decisions on his or her behalf and, therefore, may not 
need a court-appointed guardian even if he or she meets the standard of 
incapacity for appointment of a guardian. Therefore, AoA proposes the 
provision regarding communication of informed consent by the 
representative of the resident at section 1327.17(b)(5).
Abuse Reporting Where a Resident Is Unable To Communicate Informed 
Consent to Disclosure
    In fiscal year 2011, 9% of the 204,044 complaints investigated, 
resolved and closed by Ombudsman programs were complaints of abuse, 
gross neglect or exploitation (represented by A, P-117, and P-121 codes 
in the National Ombudsman Reporting System (NORS)). NORS Instructions 
provide guidance and definitions to Ombudsman programs regarding the 
reporting of complaints related to abuse, gross neglect and 
exploitation.
    Under Sections 712(a)(3)(B) and 712(a)(5)(B)(i) of the Act, the 
Ombudsman and representatives of the Office have a duty to ``provide 
services to assist the residents in protecting the health, safety, 
welfare, and rights of the residents.'' Where a resident is able to 
consent related to disclosure of his or her identity, the provisions of 
Section 712(d) of the Act require the Ombudsman and the representatives 
of the Office to prohibit disclosure absent consent.
    The Act requires the Office to ``provide service to protect the 
health, safety, welfare, and rights of the residents.'' Section 
712(a)(5)(B)(i) of the Act. However, this requirement is particularly 
challenging to meet in situations where a resident is allegedly a 
victim of abuse, gross neglect or exploitation, and is unable to 
communicate informed consent to disclose his or her identity.
    Therefore, AoA proposes that the State-developed procedures for 
disclosure by the Ombudsman and representatives of the Office may 
provide authority to disclose the identity of the resident to 
appropriate authorities when the Ombudsman or representative of the 
Office is processing a complaint related to the resident when the 
disclosure would be in the best interest of the resident and meets at 
least one of the following criteria:
    (1) The resident is unable to communicate informed consent to the 
Ombudsman or representative of the Office, has no guardian or other 
legal representative, and the Ombudsman or representative of the Office 
has reason to suspect that the resident is a victim of abuse, gross 
neglect, or exploitation (as stated in proposed section 1327.17(b)(6))

[[Page 36459]]

    (2) The resident is unable to communicate informed consent to the 
Ombudsman or representative of the Office, and the resident has a 
guardian or other legal representative who the Ombudsman or 
representative of the Office has reasonable cause to believe is a 
perpetrator of abuse, gross neglect, or exploitation of the resident 
(as stated in proposed section 1327.17(b)(7)). AoA proposes this 
provision as it is consistent with the statutory provision requiring 
that States provide the Office with access to the records of a resident 
where the representative of the Office has reasonable cause to believe 
a guardian is not acting in the best interest of the resident. Section 
712(b)(1)(B)(ii) of the Act.

AoA seeks comment on this proposed approach.
    The proposed rule states that the disclosure procedures may permit 
the Ombudsman or representative of the Office to ``refer the matter and 
disclose the identity of the resident'' based on the determination of 
the best interest of the resident by the Ombudsman or representative of 
the Office in proposed sections 1327.17(b)(6)-(7). This proposal 
authorizes, but does not require, procedures related to disclosure to 
provide this authority in order to be consistent with Section 
712(d)(2)(A) of the Act which provides for disclosure ``only at the 
discretion of the Ombudsman.''
    However, AoA proposes that the State-developed procedures for 
disclosure by the Ombudsman and representatives of the Office must 
require disclosure of the identity of the resident to appropriate 
authorities when the Ombudsman or representative of the Office is 
processing a complaint related to the resident in the narrow 
circumstance when: (1) The Ombudsman or representative of the Office 
personally witnesses suspected abuse, gross neglect or exploitation of 
a resident (as stated in proposed section 1327.17(b)(8)) and (2) the 
representative has reasonable cause to believe that the disclosure 
would be in the best interest of the resident, and (3) the 
representative obtains the approval of the Ombudsman.
    A representative of the Office who personally witnesses suspected 
abuse would be required to obtain approval of the Ombudsman before 
disclosing the identity of the resident to appropriate authorities. 
This is analogous to the approval required by the Act for 
representatives seeking access to records to investigate a complaint 
related to a legal guardian for whom the representative of the Office 
has reasonable cause to believe is not acting the best interests of the 
resident. Section 712(b)(1)(B)(ii) of the Act. In this situation of 
personally witnessing an incident, the Ombudsman or the representative 
of the Office may be the only person other than the victim with 
information on the incident.
    This is in contrast to the more common occurrence where complaints 
of suspected abuse, gross neglect or exploitation are brought to the 
attention of the Ombudsman program from another person with information 
regarding the incident. Where another person is bringing the 
information to the attention of the Office, such complainant or 
reporter is presumably able (and may be mandated under State law) to 
report to appropriate authorities for an official investigation of the 
allegations. As background, in fiscal year 2011, Ombudsman program 
cases (in all complaint categories, not only abuse-related complaints) 
were generated by the following types of complainants: Residents (38%), 
relatives or friends of residents (19%), facility staff (17%), 
Ombudsman program staff and volunteers (13%), and others (12%).\8\
---------------------------------------------------------------------------

    \8\ These percentages do not equal 100% due to rounding.
---------------------------------------------------------------------------

    Where the Ombudsman or representative of the Office personally 
witnesses the incident, and the resident is unable to communicate 
informed consent, the Ombudsman or representative of the Office may 
open a complaint with himself or herself as the complainant and work to 
resolve the issue but may incorrectly conclude that they are prohibited 
by the Act from disclosing the identity of the resident. AoA believes 
that the absence of disclosure of the resident's identity in this 
situation could create a barrier to facility management which may need 
information to protect the resident and/or to appropriate investigatory 
agencies which may need information in order to fulfill their 
protective, regulatory and/or law enforcement duties related to the 
alleged victim.
    Therefore, AoA proposes, at section 1327.17(b)(8) that disclosure 
of the identity of a resident should be required in the situation where 
an Ombudsman or representative of the Office personally witnesses the 
incident, so long as (1) the resident at issue does not request the 
Ombudsman or representative to not make a report of the suspected 
activity witnessed by the Ombudsman or representative, (2) the 
representative has reasonable cause to believe that the disclosure 
would be in the best interest of the resident, and (3) the 
representative obtains the approval of the Ombudsman.
Coordination of Ombudsman Activities With Other Elder Rights, 
Disability Rights, and Elder Justice Entities
    The Act requires the State agency to require the Office to 
coordinate with protection and advocacy systems, legal assistance, and 
State and local law enforcement agencies and courts of competent 
jurisdiction. Section 712(h)(6)-(8) of the Act; see also Section 721(d) 
of the Act, and section ``G. Functions and Responsibilities of the 
State Long-Term Care Ombudsman'' regarding ``Ombudsman Responsibility 
with respect to Coordination of Ombudsman Activities with Other Elder 
Rights, Disability Rights, and Elder Justice Entities,'' above.
    AoA proposes section 1327.17(c) in order to consolidate the list of 
the relevant entities covered by the Act into a comprehensive list and 
to clearly set forth its expectation that all levels of the Office 
should promote collaborative efforts and diminish duplicative efforts 
in the development and carrying out of elder rights and elder justice 
programs. See Section 201(e)(2)(A)(ix) of the Act. This provision 
addresses the duty to coordinate activities by representatives of the 
Office, including those representatives in a local Ombudsman entity, at 
the local level, in contrast to proposed rule section 1327.13(l), 
above, which relates specifically to the responsibility of the State 
Ombudsman to coordinate with relevant entities at the State level.
Relation of Required Functions and Duties to Federal Lobbying 
Restrictions
    The Act requires the Ombudsman to perform functions that may be 
considered ``lobbying'' under some state laws, including recommending 
changes in laws pursuant to Section 712(a)(3)(G)(ii) and providing 
information to legislators regarding recommendations related to the 
problems and concerns of residents of long-term care facilities 
pursuant to Section 712(h)(3) of the Act.
    As federal grantees, States are required to make certain 
certifications regarding lobbying under the 45 CFR Part 93. AoA 
proposes section 1327.17(d) in order to clarify that the functions and 
duties required of the Office by the Act do not constitute a violation 
of this part (see 45 CFR Sec.  93.100).

I. Conflicts of Interest

    The Act specifically requires the Assistant Secretary to issue 
regulations related to conflicts of interest at Section

[[Page 36460]]

713 of the Act. Freedom from conflicts of interest is critically 
important to the successful operation of Ombudsman programs. Ombudsman 
programs are effective only when they can provide credible 
representation of the interests of residents without conflicts of 
interest.
    In its evaluation of Long-Term Care Ombudsman programs, the 
Institute of Medicine dedicated a chapter to issues related to 
conflicts of interest, explaining:

    The Older Americans Act (OAA) mandates that the ombudsman work 
toward changing government and other institutions for the betterment 
of the residents of LTC facilities. . . . Thus, by accepting OAA 
monies, state governments agree to allow one of their own employees 
(or a contractor of the state) both to criticize openly and publicly 
their policies and procedures and to work toward implementing 
improvements. The directive to ``seek administrative, legal, and 
other remedies'' is broad enough to include the state government 
itself as a target of ombudsman advocacy. Conflicts of interest can 
easily occur in such situations.\9\
---------------------------------------------------------------------------

    \9\ IOM Report (1995), at p. 102.

    Organizational conflicts may arise from the organizational location 
of the Office and/or local Ombudsman entities, in which the work of the 
Ombudsman is unable to focus primarily on the interests of long-term 
care residents due to competing functions or priorities. For example, 
the Office might be located within an agency that makes determinations 
regarding resident eligibility for benefits or services. A resident who 
requests the Ombudsman to resolve a complaint related to the 
eligibility determination, and discovers that the Ombudsman is housed 
within the same entity, may not trust the Ombudsman to perform credible 
complaint resolution work on his or her behalf.
    Similarly, the Office might be located within an agency that is the 
official finder of fact regarding abuse allegations (such as adult 
protective services or the state licensing agency). If an Ombudsman 
identifies a pattern of inadequate abuse investigation taken by the 
agency, the agency may have a conflicting interest in protecting its 
reputation, which may cause it to interfere with the Ombudsman's duty 
to address the issue systemically (for example, by making 
recommendations to policymakers outside of the agency).
    In some states, individual representatives of the Office have been 
assigned conflicting roles by a local Ombudsman entity with multiple 
service responsibilities. For example, the representative may have 
employment assignments both in the Ombudsman Program and protective 
services so may be called upon to provide protective services for a 
resident. But the actions taken to protect the resident and actions to 
advocate for what the resident desires may conflict with one another. 
As another example, a representative may be assigned conflicting duties 
of case management for long-term supports and services for a resident. 
If the resident wishes to file a complaint related to the service plan 
developed by the case manager, he or she would be in the position of 
requesting advocacy assistance of the very individual who made the case 
management decisions which the resident.
    The IOM recommended, among other things, the following:

    4.2 The committee recommends that the Assistant Secretary for 
Aging adopt a clear policy that prohibits parties who provide, 
purchase, or regulate services that are within the purview of the 
ombudsman program from membership on policy boards having governance 
over the long-term care ombudsman program. . . .
    4.3 The committee recommends that the Assistant Secretary for 
Aging establish procedures and resources by which to identify 
potential conflicts of interest in the areas of loyalty, commitment, 
and control that are pertinent to the long-term care ombudsman and 
ombudsman representatives and provide guidance on how to address 
such conflicts of interest.\10\
---------------------------------------------------------------------------

    \10\ IOM Report (1995) at pp. 124-125.

    While AoA has provided States with technical assistance and 
education on questions related to conflicts of interest, a recent 
compliance review and recurring questions raised by States and 
Ombudsman programs suggest that clear regulations would assist in the 
effective and efficient determination of compliance with the conflict 
of interest principles in Section 712 of the Act.
Proposed Process
1. Identification of Conflicts
    The proposed regulations require a State agency to examine whether 
it has conflicts related to either the organizational placement of the 
Ombudsman program or the individuals selected to serve as Ombudsmen and 
representatives of the Office. If an organizational or individual 
conflict exists, the State agency must identify the conflict. See 
Section 712(f)(4) of the Act.
    AoA proposes the following process to assist States in complying 
with the Act. Ombudsmen annually report on program activities, 
characteristics, and funding; complaint resolution; and recommendations 
for long-term care systems change through NORS.\11\ The proposed 
regulations would utilize the current reporting process to provide 
States and Ombudsmen with a mechanism for submitting evidence of 
compliance with the Act's requirements related to conflicts. It is 
AoA's intent to include in future NORS Instructions a description of 
how to appropriately report the identification of any conflicts related 
to the implementation of the Ombudsman program and describe steps the 
State has taken to remove or remedy the conflict.
---------------------------------------------------------------------------

    \11\ OMB No. 0985-0005.
---------------------------------------------------------------------------

    For example, a State agency which houses both adult protective 
services and the Office of the State Long-Term Care Ombudsman should 
identify such conflict in NORS and indicate its plans to remove or 
remedy the conflict so that it does not interfere with the duties of 
the Office as set forth below.
    Section 712(f)(4) of the Act requires that State agencies 
``establish, and specify in writing, mechanisms to identify . . . 
conflicts of interest.'' The proposed regulations provide a 
comprehensive, though not exhaustive, list of potential conflicts to 
assist States in this identification process. The list consists of 
conflicts identified in Section 712 of the Act, as well as others 
specified in the IOM report.
2. Removal or Remedy of Conflicts
    The proposed regulations require a State agency to remove or remedy 
all identified organizational and individual conflicts. AoA realizes 
that many State agencies provide multiple programs and services, 
including adult protective services, guardianship services, licensing 
and regulation, and home and community-based services in board and care 
and assisted living settings. Some of these responsibilities create 
organizational conflicts with the functions and duties of Ombudsman 
programs. As the IOM reported:

    Since the list of duties for [State Units on Aging], area 
agencies on aging (AAAs), and ombudsmen has grown in length and 
specificity . . . , an even greater potential for conflict of 
interest exists between LTC ombudsman programs and the public 
agencies that typically house them. . . . The [Act] has clearly 
designated the LTC ombudsman program as the voice representing the 
LTC resident to government, yet in most cases the program continues 
to be housed within state and local governments that are 
increasingly responsible for service provisions to older persons.
    The ombudsman program has a mandate to focus on the individual 
resident. If the ombudsman finds him or herself in a conflict of 
interest situation . . . the resident, even

[[Page 36461]]

more than the program, may suffer. The resident's problem may not be 
resolved, certain avenues of resolution may be foreclosed, the 
resident's voice may not be heard by policy makers, and the 
resident's interests will be inadequately represented or altogether 
absent from the table at which public policy is made.\12\
---------------------------------------------------------------------------

    \12\ IOM (1995) at pp. 108-109.

    AoA proposes use of NORS reporting for States to describe the steps 
taken to remove or remedy conflicts of interest. For example, a State 
agency which houses both adult protective services and the Office of 
the State Long-Term Care Ombudsman might submit assurances that staff 
are not assigned conflicting responsibilities and submit policies and 
procedures demonstrating the distinct public roles and public 
information related to the respective programs; separate, secure, and 
confidential data collection systems; separate and confidential record-
keeping; and clear referral processes between the programs.
    AoA realizes that some States will face challenges in removing or 
remedying some organizational conflicts of interest. We welcome 
comments on the anticipated impact of this proposed regulation. In 
addition, AoA realizes that some of the provisions related to 
employment of the Ombudsman or representatives of the Office at 
proposed section 1327.19(d)(5) (i.e., one-year waiting period after 
serving in a licensing or long-term care provider responsibility) serve 
as a proxy for avoiding conflicts of interest but do not guarantee the 
outcome of an Ombudsman or representatives of the Office free of 
potential conflicts. AoA welcomes suggestions on alternative approaches 
that promote the conflict-free integrity of the Ombudsman and 
representatives of the Office, but do not arbitrarily disqualify 
excellent candidates for the position.
    AoA plans to engage with States in the provision of technical 
assistance, training and resources to assist them in crafting effective 
solutions to remedy conflicts that may impact the ability of the 
Ombudsman program to fulfill its duties to residents under the Act. AoA 
also recognizes that many States have already taken significant steps 
to avoid, identify and remedy conflicts. For example, in terms of 
organization, some have moved the Office into a distinctly identifiable 
and more independent office within the organizational structure of the 
State agency on aging. Some have moved it into another State agency. 
Others have moved the Office out of State government entirely. Some 
States have established laws, regulations, or policies that have 
clearly delineated an independent identity for the Office, providing 
the Ombudsman with the ability to represent resident interests to 
policymakers, the public, and others without interference. Others have 
implemented clear policies and procedures, within the designation 
process, for identifying and remedying conflicts of interest for 
current and potential representatives of the Office.

J. Additional Considerations

    AoA proposes that this rule become effective one year after the 
publication of the final rule. This will provide States time to review 
their relevant laws, regulations, policies, standards, State plan on 
aging, and practices and to take any steps that might be necessary in 
order to achieve compliance with the rule.
    AoA has proposed regulations on operational issues for which it 
believes regulatory action is critical to assure successful Ombudsman 
program operation. AoA acknowledges that guidance in other areas 
related to Ombudsman program operation may also be beneficial to States 
but that the statute is sufficiently specific and/or sub-regulatory 
guidance, training, technical assistance or other types of assistance 
to the States may be sufficient to meet the need. One such area for 
which additional guidance may be necessary is the provision of legal 
counsel to the Ombudsman program.
    The Act provides:
    LEGAL COUNSEL.--The State agency shall ensure that--
    (1)(A) adequate legal counsel is available, and is able, without 
conflict of interest, to--
    (i) provide advice and consultation needed to protect the health, 
safety, welfare, and rights of residents; and
    (ii) assist the Ombudsman and representatives of the Office in the 
performance of the official duties of the Ombudsman and 
representatives; and
    (B) legal representation is provided to any representative of the 
Office against whom suit or other legal action is brought or threatened 
to be brought in connection with the performance of the official duties 
of the Ombudsman or such a representative; and
    (2) the Office pursues administrative, legal, and other appropriate 
remedies on behalf of residents.

Section 712(g) of the Act.
    AoA believes that the statute is adequately specific to determine 
State compliance with regard to adequate legal counsel. In the past, 
AoA has determined that it has adequate authority under the statute, 
without a regulation in place, to cite a State agency deficiency in 
compliance with this provision. AoA Region IV Ombudsman Assessment 
Report, June 13, 1994. AoA acknowledges that guidance could be helpful 
in defining competencies of legal counsel that may contribute to its 
adequacy and the application of the conflict of interest provisions in 
the proposed regulations to the legal counsel requirement. AoA believes 
this guidance could be provided to States without the need for 
regulation. However, AoA welcomes comments on the question of whether 
regulations are needed by States in order to more fully implement the 
Act's requirements related to the provision of legal counsel to the 
Ombudsman program.

III. Required Regulatory Analyses Under Executive Orders 13563 and 
12866

    Executive Orders 13563 and 12866 direct agencies to assess all 
costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distributive impacts, and equity). Executive 
Order 13563 emphasizes the importance of quantifying both costs and 
benefits, of reducing costs, of harmonizing rules, and of promoting 
flexibility. This proposed rule has been designated a ``substantive, 
non-significant regulatory action'' and not economically significant, 
under Section 3(f) of Executive Order 12866. The proposed rule has been 
reviewed by the Office of Management and Budget.

Regulatory Flexibility Act

    Under the Regulatory Flexibility Act, as amended by the Small 
Business Regulatory Enforcement Fairness Act (SBREFA) (5 U.S.C. 
Sec. Sec.  601 et seq.), agencies must consider the impact of 
regulations on small entities and analyze regulatory options that would 
minimize a rule's impacts on these entities. Alternatively, the agency 
head may certify that the proposed rule will not have a significant 
economic impact on a substantial number of small entities. AoA does not 
anticipate that this NPRM will have a significant economic impact on a 
substantial number of small businesses and other small entities.

IV. Other Administrative Requirements

A. Paperwork Reduction Act of 1995

    Under the Paperwork Reduction Act, before an agency submits a 
proposed

[[Page 36462]]

collection of information to the Office of Management and Budget (OMB) 
for approval, it must publish a document in the Federal Register 
providing notice of the proposed collection of information and a 60-day 
comment period, and must otherwise consult with members of the public 
and affected agencies concerning the proposed collection. In accordance 
with Section 3507(d) of the Paperwork Reduction Act of 1995 (44 U.S.C. 
Sec. Sec.  3501 et seq.), AoA has determined there are limited new 
information collection requirements in the proposed rule.
    Currently, States are required to annually report on program 
activities, characteristics, and funding; complaint resolution; and 
recommendations for long-term care systems change of the Office of the 
State Long-Term Care Ombudsman through the National Ombudsman Reporting 
System (NORS).\13\ The proposed regulations would add one additional 
question to NORS: the identification of organizational conflicts of 
interest and a description of steps taken by the State to remove or 
remedy any identified conflict(s). Prior to the effective date of a 
final rule, AoA intends to request an amendment to current NORS 
instructions and to alter existing reporting software to capture data 
consistent with this requirement.
---------------------------------------------------------------------------

    \13\ OMB No. 0985-0005.
---------------------------------------------------------------------------

    AoA estimates that the proposed changes would expand the reporting 
requirement from 8569 hours to 8621 hours.
    Title: State Annual Long-Term Care Ombudsman Report.
    OMB Control Number: 0985-0005.
    Type of Request: Modification of Information Collection Request.
    Respondents: 50 States, the District of Columbia and Puerto Rico.
    Frequency: Annually
    Estimated Annual Burden on Respondents: 52 hours (52 respondents x 
1 hour per year).
    We invite comments on: (1) The necessity and utility of the 
information collection, (2) the accuracy of the estimate of the burden, 
(3) ways to enhance the quality, utility, and clarity of the 
information to be collected, and (4) ways to minimize the burden of 
collection without reducing the quality of the collected information.
    In addition, States are already required by Section 712 of the Act 
to develop policies and procedures for the operation of the Long-Term 
Care Ombudsman Program. The proposed regulations are intended to 
clarify this existing requirement without creating any additional 
burden on States.

B. Executive Order 13132

    Executive Order 13132 prohibits an agency from publishing any rule 
that has federalism implications if the rule either, imposes 
substantial direct compliance costs on State and local governments and 
is not required by statute, or the rule preempts State law, unless the 
agency meets the consultation and funding requirements of Section 6 of 
the Executive Order. This rule does not have federalism impact as 
defined in the Executive Order.

C. Unfunded Mandates Reform Act of 1995

    Section 202 of the Unfunded Mandates Reform Act of 1995 requires 
that a covered agency prepare a budgetary impact statement before 
promulgating a rule that includes any Federal mandate that may result 
in the expenditure by State, local, and Tribal governments, in the 
aggregate, or by the private sector, of $100 million or more in any one 
year. If a covered agency must prepare a budgetary impact statement, 
Section 205 further requires that it select the most cost-effective and 
least burdensome alternative that achieves the objectives of the rule 
and is consistent with the statutory requirements. In addition, Section 
203 requires a plan for informing and advising any small governments 
that may be significantly or uniquely impacted by the rule. We have 
determined that this rule will not result in the expenditure by State, 
local, and Tribal governments, in the aggregate, or by the private 
sector, of more than $100 million in any one year. Accordingly, we have 
not prepared a budgetary impact statement, specifically addressed the 
regulatory alternatives considered, or prepared a plan for informing 
and advising any significantly or uniquely impacted small governments.

D. Assessment of Federal Regulations and Policies on Families

    Section 654 of the Treasury and General Government Appropriations 
Act of 1999 requires Federal agencies to determine whether a proposed 
policy or regulation may affect family well-being. If the agency's 
determination is affirmative, then the agency must prepare an impact 
assessment addressing seven criteria specified in the law. This 
regulation protects the confidentiality of information contained in the 
records of State child support enforcement agencies. These regulations 
will not have an adverse impact on family well-being as defined in the 
legislation.

E. Plain Language in Government Writing

    Pursuant to Executive Order 13563 of January 18, 2011, and 
Executive Order 12866 of September 30, 1993, Executive Departments and 
Agencies are directed to use plain language in all proposed and final 
rules. AoA believes it has used plain language in drafting of the 
proposed rule and would welcome any comment from the public in this 
regard.

List of Subjects

45 CFR Part 1321

    Administrative practice and procedure, Aged, Grant programs--social 
programs, Reporting and recordkeeping requirements.

45 CFR Part 1327

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

    Dated: January 14, 2013.
Kathy Greenlee,
Administrator, Administration for Community Living, Assistant Secretary 
for Aging, Administration on Aging.
    Approved: January 25, 2013.
Kathleen Sebelius,
Secretary.

    Editorial Note: This document was received in the Office of the 
Federal Register on June 12, 2013.

    For the reasons stated in the preamble, the Administration on 
Aging, Administration for Community Living, U.S. Department of Health 
and Human Services, proposes to amend 45 CFR Part 1321 and add Part 
1327 as follows:

PART 1321--GRANTS TO STATE AND COMMUNITY PROGRAMS ON AGING

0
1. The authority citation for Part 1321 continues to read as follows:

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

0
2. Section 1321.11 is amended by revising paragraph (b) to read as 
follows:

Sec.  1321.11  State agency policies.

* * * * *
    (b) The policies developed by the State agency shall address the 
manner in which the State agency will monitor the performance of all 
programs and activities initiated under this part for quality and 
effectiveness. The State Long-Term Care Ombudsman or his or her 
designee shall be responsible for monitoring the files, records and 
other information maintained by the Office, and shall not disclose the 
identity of any complainant or long-term care facility resident to 
individuals outside of the Office, except as otherwise

[[Page 36463]]

specifically provided in Sec.  1327.17(b)(2)(C) of this chapter.
* * * * *
0
3. Part 1327 is added to read as follows:

PART 1327--ALLOTMENTS FOR VULNERABLE ELDER RIGHTS PROTECTION 
ACTIVITIES

Subpart A--State Long-Term Care Ombudsman Program
Sec.
1327.1 Definitions.
1327.11 Establishment of the Office of the State Long-Term Care 
Ombudsman.
1327.13 Functions and responsibilities of the State Long-Term Care 
Ombudsman.
1327.15 State agency responsibilities related to the Ombudsman 
program.
1327.17 Functions and duties of the Office of the State Long-Term 
Care Ombudsman.
1327.19 Conflicts of interest.
Subpart B--[Reserved]

    Authority: 42 U.S.C. 3001 et seq.; titles II, III and VII of the 
Older Americans Act, as amended.

Subpart A--State Long-Term Care Ombudsman Program

Sec.  1327.1  Definitions.

    The following definitons apply to this part.
    Immediate family, pertaining to conflicts of interest as used in 
section 712 of the Act, means a member of the household or a relative 
with whom there is a close personal or significant financial 
relationship.
    Office of the State Long-Term Care Ombudsman, as used in section 
712 of the Act, means the organizational unit headed by the State Long-
Term Care Ombudsman, including the representatives of the Office.
    Representatives of the Office of the State Long-Term Care 
Ombudsman, as used in section 712 of the Act, means the employees or 
volunteers designated by the Ombudsman to fulfill the duties set forth 
in Sec.  1327.17(a), whether supervised by the Ombudsman or his or her 
designees or by a local entity designated by the Ombudsman pursuant to 
section 712(a)(5) of the Act.

Sec.  1327.11  Establishment of the Office of the State Long-Term Care 
Ombudsman.

    (a) The Office of the State Long-Term Care Ombudsman shall be an 
entity which shall be headed by the State Long-Term Care Ombudsman and 
carry out all of the functions and duties set forth in Sec. Sec.  
1327.13 and 1327.17.
    (b) The State agency shall establish the Office and, thereby carry 
out the Long-Term Care Ombudsman program in any of the following ways:
    (1) The Office is a distinct entity, separately identifiable, and 
located within or connected to the State agency; or
    (2) The State agency enters into a contract or other arrangement 
with any public agency or nonprofit organization which shall establish 
a separately identifiable, distinct entity as the Office.
    (c) The State agency and, where applicable, any other agency 
carrying out the Ombudsman program, shall ensure that the State Long-
Term Care Ombudsman, as head of the Office, shall be able to 
independently make determinations and establish positions of the Office 
regarding:
    (1) Determinations regarding disclosure of information maintained 
by the program within the limitations set forth in section 712(d) of 
the Act;
    (2) Recommendations to changes in Federal, State and local laws, 
regulations, policies and actions pertaining to the health, safety, 
welfare, and rights of residents;
    (3) Provision of information to public and private agencies, 
legislators, and other persons, regarding the problems and concerns of 
residents and recommendations related to the problems and concerns.
    (4) Such determinations and positions shall be those of the Office 
and do not necessarily represent the determinations or positions of the 
State agency, another agency carrying out the Ombudsman program, or any 
other State agency.

Sec.  1327.13  Functions and responsibilities of the State Long-Term 
Care Ombudsman.

    The Ombudsman, as head of the Office, shall have responsibility for 
the leadership and management of the Office in coordination with the 
State, and, where applicable, the other agency or agencies carrying out 
the Ombudsman program, as follows.
    (a) The Ombudsman shall serve on a fulltime basis, and shall, 
personally or through representatives of the Office--
    (1) Identify, investigate, and resolve complaints that--
    (i) Are made by, or on behalf of, residents; and
    (ii) Relate to action, inaction, or decisions, that may adversely 
affect the health, safety, welfare, or rights of the residents 
(including the welfare and rights of the residents with respect to the 
appointment and activities of guardians and representative payees), 
of--
    (A) Providers, or representatives of providers, of long-term care 
services;
    (B) Public agencies; or
    (C) Health and social service agencies;
    (2) Provide services to assist the residents in protecting the 
health, safety, welfare, and rights of the residents;
    (3) Inform the residents about means of obtaining services provided 
by providers or agencies described in paragraph (a)(1)(ii) of this 
section or services described in paragraph (a)(2) of this section;
    (4) Ensure that the residents have regular and timely access to the 
services provided through the Office and that the residents and 
complainants receive timely responses from representatives of the 
Office to complaints;
    (5) Represent the interests of the residents before governmental 
agencies and seek administrative, legal, and other remedies to protect 
the health, safety, welfare, and rights of the residents;
    (6) Provide administrative and technical assistance to entities 
designated under paragraph (a)(5) of this section to assist the 
entities in participating in the program;
    (7)(i) Analyze, comment on, and monitor the development and 
implementation of Federal, State, and local laws, regulations, and 
other governmental policies and actions, that pertain to the health, 
safety, welfare, and rights of the residents, with respect to the 
adequacy of long-term care facilities and services in the State;
    (ii) Recommend any changes in such laws, regulations, policies, and 
actions as the Office determines to be appropriate; and
    (iii) Facilitate public comment on the laws, regulations, policies, 
and actions;
    (8)(i) Provide for training representatives of the Office;
    (ii) Promote the development of citizen organizations, to 
participate in the program; and
    (iii) Provide technical support for the development of resident and 
family councils to protect the well-being and rights of residents; and 
carry out such other activities as the Assistant Secretary determines 
to be appropriate.
    (b) The Ombudsman shall oversee a unified statewide program in 
which representatives of the Office report to the Ombudsman regarding 
Ombudsman program functions and duties as set forth in Sec. Sec.  
1327.13(a) and 1327.17(a).
    (c) The Ombudsman shall determine designation and de-designation of 
local Ombudsman entities and representatives of the Office pursuant to 
section 712(a)(5) of the Act.
    (d) Where local Ombudsman entities are designated, the Ombudsman 
shall review and approve plans or contracts related to Ombudsman 
program operations, including, where applicable, through area agency on 
aging plans (in coordination with the State agency).

[[Page 36464]]

    (e) The Ombudsman shall manage the files, records, and other 
information of the Office, whether in physical, electronic, or other 
formats, including information maintained by representatives of the 
Office and designated local Ombudsman entities pertaining to the cases 
and activities of the Ombudsman program. Such records are the property 
of the Office.
    (f) The Ombudsman shall comply with section 712(d) of the Act in 
responding to requests for disclosure of files, records, and other 
information, regardless of the format of such file, record, or other 
information, the source of the request, and the sources of funding to 
the Ombudsman program.
    (g) The Ombudsman shall propose to the State agency policies, 
procedures and standards for administration of the Ombudsman program.
    (h) The Ombudsman shall provide leadership to statewide advocacy 
efforts of the Office on behalf of long-term care facility residents.
    (i) The Ombudsman shall determine the use of the fiscal resources 
appropriated or otherwise designated for the Office, subject to 
applicable Federal and State laws and policies.
    (j) Where applicable, the Ombudsman shall monitor the Ombudsman 
program performance of local Ombudsman entities which the Ombudsman has 
designated to carry out the duties of the Office.
    (k) The Ombudsman shall develop and provide final approval of an 
annual report as set forth in section 712(h)(1) of the Act and as 
otherwise required by the Assistant Secretary.
    (l) The Ombudsman shall provide Ombudsman program leadership to 
statewide coordination efforts between the Office and other entities 
responsible for the protection of vulnerable adults including, but not 
limited to:
    (1) Area agency on aging programs;
    (2) Adult protective services programs;
    (3) Protection and advocacy systems for individuals with 
developmental disabilities and mental illnesses established under 
subtitle C of Title I of the Developmental Disabilities Assistance and 
Bill of Rights Act of 2000; and the Protection and Advocacy of Mentally 
Ill Individuals Act of 1986 (42 U.S.C. 10801 et seq.)
    (4) Facility and long-term care provider licensure and 
certification programs;
    (5) The State Medicaid fraud control unit, as defined in section 
1903(q) of the Social Security Act (42 U.S.C. 1396b(q));
    (6) Victim assistance programs;
    (7) Consumer protection and State and local law enforcement 
programs; as well as other State and local programs that identify and 
assist vulnerable adults and services provided by agencies and courts 
of competent jurisdiction; and
    (8) The State legal assistance developer and legal assistance 
programs, including those provided under section 306(a)(2)(C) of the 
Act, through adoption of memoranda of understanding and other means.

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

    (a) The State agency shall:
    (1) Ensure, through the development of policies and other means, 
that the Ombudsman and the representatives of the Office are able to 
fully perform all of the duties specified in section 712 of the Act;
    (2) Establish policies and procedures, in consultation with the 
Office, to carry out the Ombudsman program in accordance with the Act. 
Where the designated local Ombudsman entities are grantees, and/or the 
representatives of the Office are employees, of area agencies on aging, 
the State agency shall develop the policies in consultation with the 
area agencies on aging. Such policies and procedures shall include, but 
not be limited to:
    (i) Requirements that the Ombudsman shall monitor the performance 
of local Ombudsman entities which the Ombudsman has designated to carry 
out the duties of the Office.
    (ii) Standards to assure prompt response which prioritize abuse, 
gross neglect, exploitation and time-sensitive complaints;
    (iii) Confidentiality and protection of identifying information of 
residents and complainants, including procedures related to the 
disclosure of files, records, and other information maintained by the 
Ombudsman program;
    (A) Such procedures shall provide that the files, records, and 
information maintained by the Ombudsman program may be disclosed only 
at the discretion of the Ombudsman or the person designated by the 
Ombudsman to disclose the files, records, and information.
    (B) Such procedures shall prohibit the disclosure of the identity 
of any complainant or resident with respect to whom the Office 
maintains files, records, or information unless:
    (1) The complainant or resident, or the legal representative of the 
complainant or resident, communicates informed consent to the 
disclosure and the consent is given in writing or through the use of 
assistive technology;
    (2) The complainant or resident communicates informed consent 
orally or through the use of assistive technology and such consent is 
documented contemporaneously in a writing made by a representative of 
the Office in accordance with such procedures; or
    (3) The disclosure is required by court order.
    (C) Such procedures shall provide that if the Ombudsman or his or 
her representative has reason to believe that the resident is unable to 
provide informed consent, disclosure of the resident identity shall be 
prohibited unless another exception applies.
    (D) Such procedures shall provide for procedures for appropriate 
disclosure of at least the following types of files, records, and 
information which may be maintained by the Office: medical and social 
records of residents; administrative records, policies, and documents 
of long-term care facilities; licensing and certification records 
maintained by the State with respect to long-term care facilities; and 
data collected in the statewide uniform reporting system of the 
Ombudsman program.
    (E) Such procedures shall exclude the Ombudsman and representatives 
of the Office from abuse reporting requirements when such reporting 
discloses the identity of a complainant or resident without appropriate 
consent or court order, except as otherwise provided in Sec.  
1327.17(b)(5)-(8).
    (F) Such procedures shall prohibit disclosure of the identity of a 
complainant or resident without appropriate consent or court order, 
except as otherwise provided in Sec.  1327.17(b)(5)-(8), regardless of 
the source of the request for information or the source of funding for 
the services of the Ombudsman program; and
    (iv) Mechanisms to identify and remove or remedy conflicts of 
interest pursuant to section 712(f) of the Act; and
    (v) Procedures that require the Office to carry out its requirement 
to analyze, comment on, and monitor the development and implementation 
of Federal, State, and local laws, regulations, and other government 
policies and actions that pertain to long-term care facilities and 
services, and to the health, safety, welfare, and rights of residents, 
in the State, and recommend any changes in such laws, regulations, and 
policies as the Office determines to be appropriate.
    (A) Such procedures shall exclude the Ombudsman and representatives 
of the Office from any state lobbying prohibitions to the extent that 
such requirements are inconsistent with section 712 of the Act.

[[Page 36465]]

    (B) Nothing in this part shall prohibit the State agency or other 
agency carrying out the Ombudsman program from establishing policies 
which promote consultation regarding the determinations of the Office 
or otherwise require that the Ombudsman and representatives of the 
Office are held accountable to the policies and procedures of their 
respective employer, subject to applicable federal and state laws and 
policies. However, such policies may not limit the ability of the 
Ombudsman and representatives of the Office to fulfill all of the 
functions and duties set forth in section 712 of the Act and shall be 
in accordance with the requirement that the Ombudsman and 
representatives of the Office must remain free of interference in 
carrying out such functions and duties.
    (3) Provide opportunities for training for the Ombudsman and 
representatives of the Office in order to maintain expertise to serve 
as effective advocates for residents. The State agency may utilize 
funds appropriated under Title III and/or Title VII of the Act 
designated for direct services in order to provide access to such 
training opportunities.
    (4) Provide personnel supervision and management for the Ombudsman 
and representatives of the Office who are employees of the State 
agency, but such supervision shall not include review of files, records 
or other information maintained by the Office which could reveal the 
identity of any complainant or long-term care facility resident;
    (5) Provide monitoring and oversight, including but not limited to 
fiscal monitoring, where the Ombudsman or representatives of the Office 
are hired by an agency or entity that is under contract or other 
arrangement with the State agency, but such monitoring shall not 
include review of files, records, or other information maintained by 
the Office which could reveal the identity of any complainant or long-
term care facility resident; and
    (6) Integrate the goals and objectives of the Office into the State 
plan; coordinate the goals and objectives of the Office with those of 
other programs established under Title VII of the Act and other State 
elder rights, disability rights, and elder justice programs, including 
legal assistance programs provided under section 306(a)(2)(C) of the 
Act, to promote collaborative efforts, diminish duplicative efforts, 
and, where applicable, require inclusion of goals and objectives 
related to representatives of the Office into area plans;
    (7) Require the coordination of Ombudsman program services with the 
activities of other programs authorized by Title VII of the Act as well 
as other state and local entities responsible for the protection of 
vulnerable adults as set forth in Sec.  1327.13(l); and
    (8) Ensure that the Office has sufficient authority to perform its 
functions enumerated at Sec.  1327.13 and duties enumerated at Sec.  
1327.17, and to make the determinations enumerated at Sec.  1327.11(c). 
Failure to do so shall constitute interference as prohibited by section 
712(j) of the Act.
    (b) State policies, procedures or other mechanisms regarding access 
to records pursuant to section 712(b)(1) of the Act, shall:
    (1) Reaffirm that the Health Insurance Portability and 
Accountability Act of 1996 (HIPAA) Privacy Rule, 45 CFR Part 160 and 
Subparts A and E of Part 164, does not preclude release of residents' 
medical and social records to the Office, and
    (2) Provide for representatives of the Office to have access to 
resident records, including when residents have guardians or other 
legal representatives.
    (c) The State agency shall require the Office to:
    (1) Prepare an annual report--
    (i) Describing the activities carried out by the Office in the year 
for which the report is prepared;
    (ii) Containing and analyzing the data collected under this 
paragraph (c);
    (iii) Evaluating the problems experienced by, and the complaints 
made by or on behalf of, residents;
    (iv) Containing recommendations for--
    (A) Improving quality of the care and life of the residents; and
    (B) Protecting the health, safety, welfare, and rights of the 
residents;
    (v)(A) Analyzing the success of the program including success in 
providing services to residents of board and care facilities and other 
similar adult care facilities; and
    (B) Identifying barriers that prevent the optimal operation of the 
program; and
    (vi) Providing policy, regulatory, and legislative recommendations 
to solve identified problems, to resolve the complaints, to improve the 
quality of care and life of residents, to protect the health, safety, 
welfare, and rights of residents, and to remove the barriers;
    (2) Analyze, comment on, and monitor the development and 
implementation of Federal, State, and local laws, regulations, and 
other government policies and actions that pertain to long-term care 
facilities and services, and to the health, safety, welfare, and rights 
of residents, in the State, and recommend any changes in such laws, 
regulations, and policies as the Office determines to be appropriate;
    (3)(i) Provide such information as the Office determines to be 
necessary to public and private agencies, legislators, and other 
persons, regarding--
    (A) The problems and concerns of older individuals residing in 
long-term care facilities; and
    (B) Recommendations related to the problems and concerns; and
    (ii) Make available to the public, and submit to the Assistant 
Secretary, the chief executive officer of the State, the State 
legislature, the State agency responsible for licensing or certifying 
long-term care facilities, and other appropriate governmental entities, 
each report prepared under paragraph (c)(1) of this section;
    (4)(i) Establish procedures for the training of the representatives 
of the Office, including unpaid volunteers, based on model standards 
established by the Director of the Office of Long-Term Care Ombudsman 
Programs as described in Section 201(d) of the Act, in consultation 
with representatives of citizen groups, long-term care providers, and 
the Office, that--
    (A) Specify a minimum number of hours of initial training;
    (B) Specify the content of the training, including training 
relating to--
    (1) Federal, State, and local laws, regulations, and policies, with 
respect to long-term care facilities in the State;
    (2) Investigative techniques; and
    (3) Such other matters as the State determines to be appropriate; 
and
    (C) Specify an annual number of hours of in-service training for 
all designated representatives;
    (5) Prohibit any representative of the Office (other than the 
Ombudsman) from carrying out any activity described in Sec.  
1327.13(a)(1) through (8) unless the representative--
    (i) Has received the training required under paragraph (c)(4) of 
this section; and
    (ii) Has been approved by the Ombudsman as qualified to carry out 
the activity on behalf of the Office;
    (6) Coordinate ombudsman services with the protection and advocacy 
systems for individuals with developmental disabilities and mental 
illnesses established under--
    (i) Subtitle C of the Developmental Disabilities Assistance and 
Bill of Rights Act of 2000; and
    (ii) The Protection and Advocacy for Mentally Ill Individuals Act 
of 1986 (42 U.S.C. 10801 et seq.);
    (7) Coordinate, to the greatest extent possible, ombudsman services 
with legal assistance provided under section 306(a)(2)(C) of the Act, 
through adoption of memoranda of understanding and other means;

[[Page 36466]]

    (8) Coordinate services with State and local law enforcement 
agencies and courts of competent jurisdiction; and
    (9) Permit any local Ombudsman entity to carry out the 
responsibilities described in paragraph (c)(1), (2), (3), (6), or (7) 
of this section.

Sec.  1327.17  Functions and duties of the Office of the State Long-
Term Care Ombudsman.

    (a) An individual designated as a representative of the Office 
shall, in accordance with the policies and procedures established by 
the Office and the State agency:
    (1) Provide services to protect the health, safety, welfare, and 
rights of residents;
    (2) Ensure that residents in the service area of the entity have 
regular, timely access to representatives of the program and timely 
responses to complaints and requests for assistance;
    (3) Identify, investigate, and resolve complaints made by or on 
behalf of residents that relate to action, inaction, or decisions, that 
may adversely affect the health, safety, welfare, or rights of the 
residents;
    (4) Represent the interests of residents before government agencies 
and seek administrative, legal, and other remedies to protect the 
health, safety, welfare, and rights of the residents;
    (5)(i) Review, and if necessary, comment on any existing and 
proposed laws, regulations, and other government policies and actions, 
that pertain to the rights and well-being of residents; and
    (ii) Facilitate the ability of the public to comment on the laws, 
regulations, policies, and actions;
    (6) Support the development of resident and family councils; and
    (7) Carry out other activities that the Ombudsman determines to be 
appropriate.
    (b) Complaint processing. (1) With respect to identifying, 
investigating and resolving complaints, and regardless of the source of 
the complaint (i.e. complainant), the Ombudsman and/or the 
representatives of the Office serve the resident of a long-term care 
facility. The Ombudsman or representative of the Office shall 
investigate a complaint, including but not limited to a complaint 
related to abuse, gross neglect, or exploitation, for the purposes of 
resolving the complaint to the resident's satisfaction and of 
protecting the health, welfare, and rights of the resident.
    (2) Regardless of the complainant who is the source of a 
complaint--
    (i) The Ombudsman or representative of the Office shall personally 
discuss the complaint with the resident (or, where the resident is 
unable to communicate informed consent, wishes, or perspective, the 
resident's guardian or other legal representative) in order to:
    (A) Determine the perception of the resident (or resident 
representative, where applicable) of the complaint,
    (B) Request the resident (or resident representative, where 
applicable) to communicate informed consent in order to investigate the 
complaint,
    (C) Determine the wishes of the resident (or resident 
representative, where applicable) with respect to resolution of the 
complaint, including whether allegations are to be reported to other 
appropriate agencies,
    (D) Advise the resident (or resident's representative, where 
applicable) of the resident's rights,
    (E) Work with the resident (or resident representative, where 
applicable) to develop a plan of action for resolution of the 
complaint,
    (F) Investigate the complaint to determine whether the complaint 
can be verified, and
    (G) Determine whether the complaint is resolved to the satisfaction 
of the resident (or resident representative, where applicable).
    (ii) Where the resident is unable to communicate his or her 
perspective on the extent to which the matter has or has not been 
satisfactorily resolved, and where there is no legal representative, 
the Ombudsman or representative of the Office shall determine whether 
the complaint was resolved to the satisfaction of the complainant.
    (3) The Ombudsman or representative of the Office may provide 
information regarding the complaint to another agency in order for such 
agency to substantiate the facts for regulatory, protective services, 
law enforcement, or other purposes so long as the Ombudsman or 
representative of the Office adheres to the disclosure requirements of 
section 712(d) of the Act and the procedures set forth in Sec.  
1327.15(a)(2)(C).
    (i) Where the goals of a resident are for regulatory, protective 
services or law enforcement action, and the Ombudsman or representative 
of the Office determines that the resident has communicated informed 
consent to the Office, the Office must assist the resident in 
contacting the appropriate agency and/or disclose the information for 
which the resident has provided consent to the appropriate agency for 
such purposes.
    (ii) In order to comply with the wishes of the resident, the 
Ombudsman and representatives of the Office shall not report suspected 
abuse, gross neglect or exploitation of a resident when a resident has 
not communicated informed consent to such report pursuant except as set 
forth in paragraphs (b)(5)-(7) of this section, notwithstanding state 
laws to the contrary.
    (4) For purposes of paragraphs (b)(1)-(3) of this section, 
communication of informed consent may be made verbally, (and documented 
contemporaneously in writing by the representative of the Office) or in 
writing, including through the use of assistive technology.
    (5) For purposes of paragraphs (b)(1)-(3) of this section, if a 
resident is unable to communicate his or her informed consent, or 
perspective on the extent to which the matter has or has not been 
satisfactorily resolved, the Ombudsman or representative of the Office 
may rely on the informed consent, or perspective on the extent to which 
the matter has or has not been satisfactorily resolved, of a guardian 
or other legal representative of the resident so long as the 
representative of the Office has no reasonable cause to believe that 
the guardian or other legal representative of the resident is not 
acting in the best interests of the resident.
    (6) For purposes of paragraphs (b)(1)-(3) of this section, the 
procedures for disclosure may provide that, when the resident is unable 
to communicate informed consent to the Ombudsman or representative of 
the Office, has no guardian or other legal representative, and the 
Ombudsman or representative of the Office has reason to suspect that 
the resident is a victim of abuse, gross neglect, or exploitation; the 
Ombudsman or representative of the Office has reasonable cause to 
believe that it is in the best interest of the resident to make a 
referral; and the representative obtains the approval of the Ombudsman, 
then the Ombudsman or representative of the Office may refer the matter 
and disclose the identity of the resident to the appropriate agency or 
agencies for regulatory oversight; protective services; access to 
administrative, legal, or other remedies; and/or law enforcement 
action.
    (7) For purposes of paragraphs (b)(1)-(3) of this section, the 
procedures for disclosure may provide that, when the resident is unable 
to communicate informed consent to the Ombudsman or representative of 
the Office; the resident has a guardian or other legal representative 
who the Ombudsman or representative of the Office has reasonable cause 
to believe is a perpetrator of abuse, gross neglect, or exploitation of 
the resident; the Ombudsman or representative of the Office has 
reasonable cause to believe that it is in the best interest of the 
resident to make a referral; and the

[[Page 36467]]

representative obtains the approval of the Ombudsman, then the 
Ombudsman or representative of the Office may refer the matter and 
disclose the identity of the resident to the appropriate agency or 
agencies for regulatory oversight; protective services; access to 
administrative, legal, or other remedies; and/or law enforcement 
action.
    (8) The procedures for disclosure shall provide that, if the 
Ombudsman or representative of the Office personally witnesses 
suspected abuse, gross neglect, or exploitation of a resident, the 
Ombudsman or representative shall seek communication of informed 
consent from such resident to disclose the identity of the resident to 
appropriate agencies;
    (i) Where such resident is able to communicate informed consent, or 
has a representative available to provide informed consent, the 
Ombudsman shall follow the direction of the resident (or 
representative, if applicable) as set forth paragraphs (b)(1)-(3) of 
this section; and
    (ii) Where the resident is unable to communicate informed consent, 
and has no representative available to provide informed consent, the 
Ombudsman or representative of the Office shall open a case with the 
Ombudsman or representative of the Office as the complainant, follow 
the Ombudsman program's complaint resolution procedures, and (so long 
as the Ombudsman or representative has reasonable cause to believe that 
disclosure would be in the best interest of the resident and the 
representative obtains the approval of the Ombudsman) shall refer the 
matter and disclose the identity of the resident to the management of 
the facility in which the resident resides and/or to the appropriate 
agency or agencies for substantiation of abuse, gross neglect or 
exploitation.
    (iii) In addition, the Ombudsman may report the suspected abuse, 
gross neglect, or exploitation to other appropriate agencies for 
regulatory oversight; protective services; access to administrative, 
legal, or other remedies; and/or law enforcement action.
    (c) Coordination of Ombudsman activities with other elder rights, 
disability rights, and elder justice entities--The Ombudsman and 
representatives of the Office shall coordinate Ombudsman program 
services with those of other state and local entities responsible for 
the protection of vulnerable adults for the purpose of promoting 
collaborative efforts and diminishing duplicative efforts in the 
development and carrying out of elder rights, disability rights, and 
elder justice programs. Such entities shall include, but not be limited 
to:
    (1) Area agency on aging programs;
    (2) Adult protective services programs;
    (3) Protection and advocacy systems for individuals with 
developmental disabilities and mental illnesses established under 
subtitle C of Title I of the Developmental Disabilities Assistance and 
Bill of Rights Act of 2000; and the Protection and Advocacy of Mentally 
Ill Individuals Act of 1986 (42 U.S.C. 10801 et seq.);
    (4) Facility and long-term care provider licensure and 
certification programs;
    (5) The State Medicaid fraud control unit, as defined in section 
1903(q) of the Social Security Act (42 U.S.C. 1396b(q));
    (6) Victim assistance programs;
    (7) Consumer protection and State and local law enforcement 
programs; as well as other State and local programs that identify and 
assist vulnerable adults and services provided by agencies and courts 
of competent jurisdiction; and
    (8) Legal assistance programs provided under section 306(a)(c) of 
the Act.
    (d) Lobbying activities. In carrying out the functions and duties 
of the Office set forth in Sec. Sec.  1327.13(a) and 1327.17(a) and 
pursuant to the receipt of grant funds under the Act, the Ombudsman's 
provision of information, recommendations of changes of laws to 
legislators, and recommendations of changes of regulations and policies 
to government agencies, do not constitute lobbying activities as 
defined by 45 CFR Part 93.

Sec.  1327.19  Conflicts of interest.

    The State agency shall consider both the organizational and 
individual conflicts that may impact the effectiveness and credibility 
of the work of the Office. In so doing, it shall identify actual and 
potential conflicts and, where a conflict has been identified, shall 
remove or remedy such conflict as set forth in paragraphs (b) and (d) 
of this section.
    (a) Identification of organizational conflicts. In identifying 
conflicts of interest pursuant to section 712(f) of the Act, the State 
agency shall consider the organizational conflicts that may impact the 
effectiveness and credibility of the work of the Office. Organizational 
conflicts of interest include, but are not limited to, placement of the 
Office in an organization that:
    (1) Is responsible for licensing, surveying, or certifying long-
term care facilities;
    (2) Is an association (or an affiliate of such an association) of 
long-term care facilities, or of any other residential facilities for 
older individuals or individuals with disabilities;
    (3) Has an ownership or investment interest (represented by equity, 
debt, or other financial relationship) in, or receives grants or 
donations from, a long-term care facility;
    (4) Has governing board members with ownership, investment or 
employment interest in long-term care facilities;
    (5) Provides long-term care services, including the provision of 
personnel for long-term care facilities or the operation of programs 
which control access to or services for long-term care facilities;
    (6) Provides long-term care coordination or case management;
    (7) Sets reimbursement rates for long-term care services;
    (8) Provides adult protective services;
    (9) Is responsible for Medicaid eligibility determinations;
    (10) Conducts preadmission screening for long-term care residential 
placements;
    (11) Makes decisions regarding admission or discharge of 
individuals to or from long-term care facilities; or
    (12) Provides guardianship, conservatorship or other fiduciary or 
surrogate decision-making services for residents of long-term care 
facilities.
    (b) Removing or remedying organizational conflicts. The State 
agency shall identify and remove or remedy conflicts of interest 
between the Office and the State agency or other agency carrying out 
the Ombudsman program.
    (1) Where the Office is located within or otherwise 
organizationally attached to the State agency, the State agency shall:
    (i) Take reasonable steps to avoid internal conflicts of interest;
    (ii) Establish a process for review and identification of internal 
conflicts;
    (iii) Take steps to remove or remedy conflicts;
    (iv) Ensure that no individual, or member of the immediate family 
of an individual involved in the designating, appointing, otherwise 
selecting or terminating the Ombudsman is subject to a conflict of 
interest; and
    (v) Assure that the Ombudsman has disclosed such conflicts and 
described steps taken to remove or remedy conflicts within the annual 
report submitted to the Assistant Secretary through the National 
Ombudsman Reporting System.
    (2) Where a State agency is unable to adequately remove or remedy a 
conflict, it shall carry out the Ombudsman program by contract or other 
arrangement with a public agency or

[[Page 36468]]

nonprofit private organization, pursuant to section 712(a)(4) of the 
Act. The State agency may not operate the Office directly if it:
    (i) Is responsible for licensing, surveying, or certifying long-
term care facilities;
    (ii) Is an association (or an affiliate of such an association) of 
long-term care facilities, or of any other residential facilities for 
older individuals or individuals with disabilities; or
    (ii) Has an ownership or investment interest (represented by 
equity, debt, or other financial relationship) in a long-term care 
facility or a long-term care service.
    (3) Where the State agency carries out the Ombudsman program by 
contract or other arrangement with a public agency or nonprofit private 
organization, pursuant to section 712(a)(4) of the Act, the State 
agency shall:
    (i) Prior to contracting or making another arrangement, take 
reasonable steps to avoid conflicts of interest in such agency or 
organization which is to carry out the Ombudsman program;
    (ii) Establish a process for periodic review and identification of 
conflicts in the agency or organization;
    (iii) Require that such agency or organization have a process in 
place to:
    (A) Take reasonable steps to avoid conflicts of interest, and
    (B) Disclose such conflicts and steps taken to remove or remedy 
conflicts to the State agency for review and approval; and
    (iv) Establish a process for State agency review of and criteria 
for approval of steps taken to remove or remedy conflicts in such 
agency or organization; and
    (4) Where an agency or organization carrying out the Ombudsman 
program by contract or other arrangement develops a conflict and is 
unable to adequately remove or remedy a conflict, the State agency 
shall either operate the Ombudsman program directly or by contract or 
other arrangement with another public agency or nonprofit private 
organization. The State agency may not enter into such contract or 
other arrangement with an agency or organization which is responsible 
for licensing or certifying long-term care services in the state or is 
an association (or affiliate of such an association) of long-term care 
facilities, or of any other residential facilities for older 
individuals.
    (5) Where local Ombudsman entities provide Ombudsman services, the 
Ombudsman shall:
    (i) Establish a process for periodic review and identification of 
conflicts in such entities,
    (ii) Require disclosure of conflicts to the Ombudsman by such 
entities,
    (iii) Establish a process for review of and criteria for approval 
of plans to remove or remedy conflicts in such entities; and
    (iv) Prior to designating or renewing designation, take reasonable 
steps to assure that any conflicts of interest in such entities have 
been removed or remedied,
    (6) Failure of a local Ombudsman entity to disclose a conflict to 
the Office or inability to adequately remove or remedy a conflict shall 
constitute grounds for de-designation of a local Ombudsman entity by 
the Ombudsman.
    (c) Identifying individual conflicts of interest. (1) In 
identifying conflicts of interest pursuant to section 712(f) of the 
Act, the State agency shall consider individual conflicts that may 
impact the effectiveness and credibility of the work of the Office.
    (2) Individual conflicts of interest for an Ombudsman, 
representatives of the Office, and members of their immediate family 
include, but are not limited to:
    (i) Direct involvement in the licensing or certification of a long-
term care facility or of a provider of a long-term care service;
    (ii) Ownership or investment interest (represented by equity, debt, 
or other financial relationship) in an existing or proposed long-term 
care facility or long-term care service;
    (iii) Employment of an individual by, or participation in the 
management of, a long-term care facility in the service area or by the 
owner or operator of any long-term care facility in the service area 
within the previous year;
    (iv) Receipt of, or right to receive, directly or indirectly, 
remuneration (in cash or in kind) under a compensation arrangement with 
an owner or operator of a long-term care facility;
    (v) Accepting gifts or gratuities of significant value from a long-
term care facility or its management, a resident or a resident 
representative;
    (vi) Accepting money or any other consideration from anyone other 
than the Office or an entity designated by the Ombudsman for the 
performance of an act in the regular course of the duties of the 
Ombudsman or the representatives of the Office without Ombudsman 
approval;
    (vii) Serving as guardian, conservator or in another fiduciary or 
surrogate decision-making capacity for a resident of a long-term care 
facility in the service area;
    (viii) Serving residents of a facility in which an immediate family 
member resides; and
    (ix) Participating in activities which negatively impact on the 
ability of the Ombudsman or the representatives of the Office to serve 
residents or are likely to create a perception that the primary 
interest of the Ombudsman or the representatives of the Office is other 
than as a resident advocate.
    (d) Removing or remedying individual conflicts. (1)The State agency 
shall develop and implement policies and procedures to ensure that no 
Ombudsman, representatives of the Office, or officer of the Office, are 
required to perform duties that would constitute a conflict of interest 
as set forth in Sec.  1327.19(c).
    (2) When the State agency is considering the employment of an 
individual as the Ombudsman or a representative of the Office the State 
agency shall:
    (i) Take reasonable steps to avoid hiring an individual who has a 
conflict of interest or who has a member of the immediate family with a 
conflict of interest;
    (ii) Establish a process for periodic review and identification of 
conflicts of the Ombudsman and representatives of the Office, and
    (iii) Take steps to remove or remedy conflicts.
    (3) Where the candidate for Ombudsman or representative of the 
Office has a conflict that cannot be adequately removed or remedied, 
the State agency may not employ such candidate.
    (4) Where the Office is operated by another public agency or a 
nonprofit private organization, and/or where local Ombudsman entities 
employ representatives of the Office, the State agency shall ensure 
that the agency organization, or entity has policies in place to 
prohibit hiring of an Ombudsman or representatives of the Office with a 
conflict that cannot be adequately removed or remedied.
    (5) In no circumstance may the State agency; where applicable, the 
public agency or non-profit private organization which carries out the 
program; or a local Ombudsman entity employ an individual as the 
Ombudsman or representative of the Office who:
    (i) Has had direct involvement in the licensing or certification of 
a long-term care facility or of a provider of a long-term care service 
within the previous year;
    (ii) Has an ownership or investment interest (represented by 
equity, debt, or other financial relationship) in a long-term care 
facility or a long-term care service. Divestment within a reasonable

[[Page 36469]]

period may be considered an adequate remedy to this conflict;
    (iii) Has been employed by, or participating in the management of, 
a long-term care facility within the previous year; or
    (iv) Receives, or has the right to receive, directly or indirectly, 
remuneration (in cash or in kind) under a compensation arrangement with 
an owner or operator of a long-term care facility.
    (6) Where the Ombudsman or representative of the Office acquires a 
conflict that cannot be adequately removed or remedied, the State 
agency; where applicable, the public agency or non-profit private 
organization which carries out the program; or a local Ombudsman 
entity, may not continue to employ the individual as the Ombudsman or 
representative of the Office.
    (7) The State agency shall ensure that policies and procedures are 
in place so that, in designating representatives of the Office, the 
Ombudsman shall:
    (i) Take reasonable steps to avoid designation of an individual who 
has a conflict of interest or who has a member of the immediate family 
with a conflict of interest;
    (ii) Establish a process for periodic review and identification of 
conflicts of the representatives; and
    (iii) Take steps which remove or remedy individual conflicts.

Subpart B--[Reserved]

[FR Doc. 2013-14325 Filed 6-14-13; 11:15 am]
BILLING CODE 4150-04-P
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