**Subject:**Conflict of Interest as Related to the Provision of Legal Counsel for the Long Term Care Ombudsman Program

**Inquiry Source**:Thomas L. Hooker, MSW, RA/Region I

**Stat. & Reg.**

**Basis**:OAA: Section 712 (f)(g)

**Key Words**:Conflict of Interest, Ombudsman

**ADDRIS Code**:FA-72-2

**Background:**Maine's Ombudsman Program is contracted to Legal Services for the Elderly, Inc. (LSE) by the State Unit on Aging.  For the past five years, one of LSE's attorneys has been designated to be the Ombudsman Program's legal counsel.  The purpose is to provide general consultation and interpretations of laws and regulations, analyze proposed rules and regulations, draft statutory language, and, in cooperation with the Ombudsman, represent the interest of long term care consumers before Maine's legislature.  

The Maine SUA has raised a question of possible conflict of interest due to the fact that the legal counsel for the Ombudsman Program has a spouse who is director of nursing in a Maine nursing home.  To our knowledge, there have been no alleged improprieties which led to the SUA's question regarding conflict of interest.

**Question**:Is there a conflict of interest if a legal services attorney who provides legal counsel for the Ombudsman Program is married to a nursing home employee?  

**Response**:If the attorney has no role in designating the ombudsman and is not an officer or employee of the Office of the Ombudsman or a representative of a local ombudsman entity, there is not a conflict of interest as specified in Section 712(f)(1) and (2) of the Older Americans Act,  However, there would be a conflict if:

!the attorney were involved in any ombudsman case or issue directly related to, or impacting upon, a single facility, a for-profit nursing home company, or a non-profit nursing home organization where a member of the attorney's immediate family is an officer or an employee or

!the attorney's advice and counsel to the Ombudsman Program were in any way influenced by the fact that a member of the attorney's immediate family is an officer or employee of a long term care facility.

In the event that either of these conditions occurred, the State Agency on Aging would be required to take actions to remove the conflict, in accordance with Section 712(f)(4)(B) of the Act.

**Discussion:**The conflict-of-interest section of the Act (712[f]) must be read in concert with the legal counsel section (712[g]) relative to the issue addressed.  Section 712(f) focuses on the individual who designates the Ombudsman and officers and employees of the Office of the Ombudsman, including the Ombudsman and ombudsman representatives.  In this situation, the legal counsel is not the individual who designates the ombudsman, and he is not an officer or employee of the Ombudsman Program.

In providing legal assistance to the Ombudsman Program, the Maine attorney should not involve himself in matters involving the nursing home in which the spouse is an employee.  This could give the appearance of conflict of interest.  Neither should the attorney involve himself in any issue in which the fact that his wife is employed in a nursing facility would influence his thinking and advice to the Ombudsman Program.  If such a conflict were to arise, the law requires that the State Agency take action to remove the conflict.

Fernando M. Torres-GilDate

Assistant Secretary for Aging