11566 Federal Register / Vol. 89, No. 31 / Wednesday, February 14, 2024 / Rules and Regulations 

DEPARTMENT OF HEALTH AND 

HUMAN SERVICES 

Administration for Community Living 

45 CFR Parts 1321, 1322, 1323, and 

1324 

RIN 0985–AA17 

Older Americans Act: Grants to State 

and Community Programs on Aging; 

Grants to Indian Tribes and Native 

Hawaiian Grantees for Supportive, 

Nutrition, and Caregiver Services; 

Grants for Supportive and Nutritional 

Services to Older Hawaiian Natives; 

and Allotments for Vulnerable Elder 

Rights Protection Activities 

AGENCY: Administration for Community 

Living (ACL), Department of Health and 

Human Services (HHS or ‘‘the 

Department’’). 

ACTION: Final rule. 

SUMMARY: ACL is issuing this final rule 

to modernize the implementing 

regulations of the Older Americans Act 

of 1965 (‘‘the Act’’ or OAA). These 

changes advance the policy goals of the 

Act as articulated by Congress, 

including equity in service delivery, 

accountability for funds expended, and 

clarity of administration for ACL and its 

grantees. This final rule ultimately 

facilitates improved service delivery 

and enhanced benefits for OAA 

participants, particularly those in 

greatest economic need and greatest 

social need consistent with the statute. 

DATES: 

Effective date: This final rule is 

effective on March 15, 2024. 

Compliance date: October 1, 2025. 

FOR FURTHER INFORMATION CONTACT: 

Amy Wiatr-Rodriguez, Director of 

Regional Operations, Administration for 

Community Living, Department of 

Health and Human Services, 330 C 

Street SW, Washington, DC 20201. 

Email: amy.wiatr-rodriguez@

acl.hhs.gov, Telephone: (312) 938–9858. 

Alice Kelsey, Deputy Director for the 

Administration on Aging, 

Administration for Community Living, 

Department of Health and Human 

Services, 330 C Street SW, Washington, 

DC 20201. Email: alice.kelsey@

acl.hhs.gov, Telephone: (202) 795–7342. 

Assistance to Individuals with 

Disabilities in Reviewing the 

Rulemaking Record: Upon request, the 

Department will provide an 

accommodation or auxiliary aid to an 

individual with a disability who needs 

assistance to review the comments or 

other documents in the public 

rulemaking record for the regulations. 

To schedule an appointment for this 

type of accommodation or auxiliary aid, 

please call (312) 938–9858 or email 

amy.wiatr-rodriguez@acl.hhs.gov. 

SUPPLEMENTARY INFORMATION: 

Table of Contents 

I. Background 

A. Statutory and Regulatory History 

B. Overview of the Final Rule 

C. Severability 

II. Provisions of the Final Rule and Analysis 

and Responses to Public Comments 

Part 1321: Grants to State and Community 

Programs on Aging 

A. Provisions Revised To Reflect Statutory 

Changes and/or for Clarity 

Subpart A—Introduction 

1. § 1321.1 Basis and Purpose of This Part 

2. § 1321.3 Definitions 

Subpart B—State Agency Responsibilities 

1. § 1321.5 Mission of the State Agency 

2. § 1321.7 Organization and Staffing of 

the State Agency 

3. § 1321.9 State Agency Policies and 

Procedures 

4. § 1321.11 Advocacy Responsibilities 

5. § 1321.13 Designation of and 

Designation Changes to Planning and 

Service Areas 

6. § 1321.15 Interstate Planning and 

Service Area 

7. § 1321.17 Appeal to the Departmental 

Appeals Board on Planning and Service 

Area Designation 

8. § 1321.19 Designation of and 

Designation Changes to Area Agencies 

9. § 1321.21 Withdrawal of Area Agency 

Designation 

10. § 1321.25 Duration, Format, and 

Effective Date of the State Plan 

11. § 1321.27 Content of State Plan 

12. § 1321.29 Public Participation 

13. § 1321.31 Amendments to the State 

Plan 

14. § 1321.33 Submission of the State 

Plan or Plan Amendment to the Assistant 

Secretary for Aging for Approval 

15. § 1321.35 Notification of State Plan or 

State Plan Amendment Approval or 

Disapproval for Changes Requiring 

Assistant Secretary for Aging Approval 

16. § 1321.39 Appeals to the 

Departmental Appeals Board Regarding 

State Plan on Aging 

17. § 1321.41 When a Disapproval 

Decision Is Effective 

18. § 1321.43 How the State Agency May 

Appeal the Departmental Appeals 

Board’s Decision 

19. § 1321.45 How the Assistant Secretary 

for Aging May Reallot the State Agency’s 

Withheld Payments 

20. § 1321.49 Intrastate Funding Formula 

21. § 1321.51 Single Planning and Service 

Area States 

Subpart C—Area Agency Responsibilities 

1. § 1321.55 Mission of the Area Agency 

2. § 1321.57 Organization and Staffing of 

the Area Agency 

3. § 1321.61 Advocacy Responsibilities of 

the Area Agency 

4. § 1321.63 Area Agency Advisory 

Council 

5. § 1321.65 Submission of an Area Plan 

and Plan Amendments to the State 

Agency for Approval 

Subpart D—Service Requirements 

1. § 1321.71 Purpose of Services 

Allotments Under Title III 

2. § 1321.73 Policies and Procedures 

3. § 1321.75 Confidentiality and 

Disclosure of Information 

4. § 1321.79 Responsibilities of Service 

Providers Under State and Area Plans 

5. § 1321.83 Client and Service Priority 

6. § 1321.93 Legal Assistance 

B. New Provisions Added To Clarify 

Responsibilities and Requirements 

Under Grants to State and Community 

Programs on Aging 

Subpart B—State Agency Responsibilities 

1. § 1321.23 Appeal to the Departmental 

Appeals Board on Area Agency on Aging 

Withdrawal of Designation 

2. § 1321.37 Notification of State Plan 

Amendment Receipt for Changes Not 

Requiring Assistant Secretary for Aging 

Approval 

3. § 1321.47 Conflicts of Interest Policies 

and Procedures for State Agencies 

4. § 1321.53 State Agency Title III and 

Title VI Coordination Responsibilities 

Subpart C—Area Agency Responsibilities 

1. § 1321.59 Area Agency Policies and 

Procedures 

2. § 1321.67 Conflicts of Interest Policies 

and Procedures for Area Agencies on 

Aging 

3. § 1321.69 Area Agency on Aging Title 

III and Title VI Coordination 

Responsibilities 

Subpart D—Service Requirements 

1. § 1321.77 Purpose of Services—Personand Family-Centered, Trauma-Informed 

2. § 1321.81 Client Eligibility for 

Participation 

3. § 1321.85 Supportive Services 

4. § 1321.87 Nutrition Services 

5. § 1321.89 Evidence-Based Disease 

Prevention and Health Promotion 

Services 

6. § 1321.91 Family Caregiver Support 

Services 

7. § 1321.95 Service Provider Title III and 

Title VI Coordination Responsibilities 

Subpart E—Emergency and Disaster 

Requirements 

1. § 1321.97 Coordination With State, 

Tribal, and Local Emergency 

Management 

2. § 1321.99 Setting Aside Funds To 

Address Disasters 

3. § 1321.101 Flexibilities Under a Major 

Disaster Declaration 

4. § 1321.103 Title III and Title VI 

Coordination for Emergency and Disaster 

Preparedness 

5. § 1321.105 Modification During Major 

Disaster Declaration or Public Health 

Emergency 

C. Deleted Provisions 

Subpart A—Introduction 

1. § 1321.5 Applicability of Other 

Regulations 

Subpart D—Service Requirements 

1. § 1321.75 Licenses and Safety 

Part 1322: Grants to Indian Tribes and 

Native Hawaiian Grantees for 

Supportive, Nutrition, and Caregiver 

Services 


ddrumheller on DSK120RN23PROD with RULES4
Federal Register / Vol. 89, No. 31 / Wednesday, February 14, 2024 / Rules and Regulations 11567 

1Public Law 89–73, 79 Stat. 218 (1965). 42 U.S.C. 

3001 et seq. 

2Section 201 of the OAA; 42 U.S.C. 3011. 

3Section 202 of the OAA; 42 U.S.C. 3012. Title 

V of the OAA added in the 1978 reauthorization is 

administered by the Dep’t of Labor. 

4 80 FR 31389, 31391 (June 2, 2015). 

5Title III of the OAA; 42 U.S.C. 3021 et seq. 

6Cong. Research Serv., R43414, Older Americans 

Act: Overview and Funding (May 17, 2023), https:// 

crsreports.congress.gov/product/pdf/R/R43414. 

7Title III of the OAA; 42 U.S.C. 3021 et seq. 

8Admin. for Cmty. Living, Overview of Older 

Americans Act Title III, VI, and VII Programs: 2020 

Summary of Highlights and Accomplishments, p. 

III–2 (2022), https://acl.gov/sites/default/files/ 

news%202022-09/2020%20OAA%20Report_

Complete%20Product%209-1-22_508.pdf. 

9Admin. For Cmty. Living, FY 2022 OAA Title 

III Annual Grant Awards (without transfers) (Apr. 

27, 2022), https://acl.gov/sites/default/files/aboutacl/2022-05/Title%20III-2022.pdf. 

10Title III of the OAA; 42 U.S.C. 3021 et seq. 

A. Provisions Revised To Reflect Statutory 

Changes and/or for Clarity 

Subpart A—Introduction 

1. § 1322.1 Basis and Purpose of This Part 

2. § 1322.3 Definitions 

Subpart B—Application 

1. § 1322.5 Application Requirements 

2. § 1322.7 Application Approval 

3. § 1322.9 Hearing Procedures 

Subpart C—Service Requirements 

1. § 1322.13 Policies and Procedures 

2. § 1322.15 Confidentiality and 

Disclosure of Information 

3. § 1322.25 Supportive Services 

4. § 1322.27 Nutrition Services 

B. New Provisions Added To Clarify 

Responsibilities and Requirements 

Under Grants to Indian Tribes and 

Native Hawaiian Grantees for 

Supportive, Nutrition, and Caregiver 

Services 

Subpart C—Service Requirements 

1. § 1322.11 Purpose of Services 

Allotments Under Title VI 

2. § 1322.17 Purpose of Services—Personand Family-Centered, Trauma-Informed 

3. § 1322.19 Responsibilities of Service 

Providers 

4. § 1322.21 Client Eligibility for 

Participation 

5. § 1322.23 Client and Service Priority 

6. § 1322.29 Family Caregiver Support 

Services 

7. § 1322.31 Title VI and Title III 

Coordination 

Subpart D—Emergency and Disaster 

Requirements 

1. § 1322.33 Coordination With Tribal, 

State, and Local Emergency Management 

2. § 1322.35 Flexibilities Under a Major 

Disaster Declaration 

3. § 1322.37 Title VI and Title III 

Coordination for Emergency and Disaster 

Preparedness 

4. § 1322.39 Modification During Major 

Disaster Declaration or Public Health 

Emergency 

C. Deleted Provisions 

1. § 1322.5 Applicability of Other 

Regulations 

Part 1323: Grants for Supportive and 

Nutritional Services to Older Hawaiian 

Natives 

A. Deleted Provisions 

1. Part 1323: Grants for Supportive and 

Nutritional Services to Older Hawaiian 

Natives. 

Part 1324: Allotments for Vulnerable Elder 

Rights Protection Activities 

A. Provisions Revised To Reflect Statutory 

Changes and/or for Clarity 

Subpart A—State Long-Term Care 

Ombudsman Program 

1. § 1324.1 Definitions 

2. § 1324.11 Establishment of the Office 

of the State Long-Term Care Ombudsman 

3. § 1324.13 Functions and 

Responsibilities of the State Long-Term 

Care Ombudsman 

4. § 1324.15 State Agency 

Responsibilities Related to the 

Ombudsman Program 

5. § 1324.17 Responsibilities of Agencies 

Hosting Local Ombudsman Entities 

6. § 1324.19 Duties of the Representatives 

of the Office 

7. § 1324.21 Conflicts of Interest 

B. New Provisions Added To Clarify 

Responsibilities and Requirements 

Under Allotments for Vulnerable Elder 

Rights Protection Activities 

Subpart B—Programs for Prevention of 

Elder Abuse, Neglect, and Exploitation 

1. § 1324.201 State Agency 

Responsibilities for the Prevention of 

Elder Abuse, Neglect, and Exploitation 

Subpart C—State Legal Assistance 

Development 

1. § 1324.301 Definitions 

2. § 1324.303 Legal Assistance Developer 

III. Required Regulatory Analyses 

A. Regulatory Impact Analysis 

B. Regulatory Flexibility Act 

C. Executive Order 13132 (Federalism) 

D. Executive Order 13175 (Consultation 

and Coordination With Indian Tribal 

Governments) 

E. Unfunded Mandates Reform Act of 1995 

F. Plain Language in Government Writing 

G. Paperwork Reduction Act (PRA) 

I. Background 

Congress passed the OAA in 1965 to 

expand and enhance community social 

services for older persons.1 The original 

legislation established authority for 

grants to State agencies for community 

planning and social services, research 

and development projects, and 

personnel training in the field of aging. 

Subsequent reauthorizations expanded 

and enhanced the reach of the Act, 

including through the authorization of 

the Long-Term Care Ombudsman 

Program (LTCOP or Ombudsman 

program). The Act created the 

Administration on Aging (AoA) within 

the Department of Health, Education 

and Welfare, now the Department of 

Health and Human Services (HHS), to 

serve as the principal agency designated 

to carry out the provisions of the OAA 

and as the Federal focal point on 

matters concerning older persons.2 It 

designated a Commissioner on Aging, 

now Assistant Secretary for Aging, to 

lead the activities of AoA and 

administer the OAA.3 Since 2012, AoA 

has been housed in ACL.4

Title III of the OAA authorizes grants 

to State agencies on aging (State 

agencies), who in turn provide funding 

to area agencies on aging (AAAs or area 

agencies) to serve as advocates on behalf 

of older persons and create 

comprehensive and coordinated 

community-based continuums of 

services and supports.5 In 2022 the 

national aging network included 56 

State agencies (including the District of 

Columbia and five Territories), over 600 

AAAs, and over 20,000 local service 

providers.6

Title III authorizes the largest OAA 

programs by population served and 

Federal funds expended as administered 

by ACL. These include supportive, 

nutrition, evidence-based disease 

prevention and health promotion, 

caregiver, legal, and other services.7

Title III programs served 10.1 million 

older persons in 2020 (the most recent 

year for which data is available).8 Title 

III accounted for nearly three quarters of 

the of the $2.378 billion OAA 2023 

budget and funding for these programs 

is based on a statutory formula that 

determines yearly allocations to 

individual Territories and States.9

Title III services are available to 

persons aged 60 and older and family 

caregivers; however, they are prioritized 

to serve those with the greatest 

economic need and greatest social need, 

particularly low-income minority older 

individuals, older persons with limited 

English proficiency (LEP), older persons 

residing in rural areas, and older 

persons with disabilities.10

First included as a part of the 1978 

reauthorization of the Act, Title VI 

authorizes funds for nutrition, 

supportive, and caregiver services to 

older Native Americans. The purpose of 

Title VI programs is to support the 

independence and well-being of Tribal 

elders and caregivers living in their 

communities consistent with locally 

determined needs. ACL awards funding 

directly to Federally recognized Tribal 

organizations, including Native Alaskan 

organizations, and a designated not-forprofit group representing Native 

Hawaiians. To be eligible for funding, a 

Tribal organization or Hawaiian Native 

grantee must represent at least 50 Native 

Americans aged 60 and older who 

reside in the service area. In FY2023, 

grants were awarded to 290 Tribal 

organizations representing 

approximately 400 Indian Tribes and 

Alaskan Native entities and one 


ddrumheller on DSK120RN23PROD with RULES4
11568 Federal Register / Vol. 89, No. 31 / Wednesday, February 14, 2024 / Rules and Regulations 

11U.S. Dep’t of Health & Human Servs., Tracking 

Accountability in Government Grants System 

(TAGGS), https://taggs.hhs.gov (last visited Oct. 13, 

2023). 

12Title VII of the OAA; 42 U.S.C. 3058 et seq. 

13Cong. Research Serv., R43414, Older 

Americans Act: Overview and Funding (May 17, 

2023), https://crsreports.congress.gov/product/pdf/ 

R/R43414. 

14Admin. For Cmty. Living, Fiscal Year 2023 

Justification of Estimates for Appropriations 

Committees, 132, https://acl.gov/about-acl/budget. 

15National Ombudsman Reporting System 

(NORS), Data at a Glance, Admin. for Cmty. Living 

(last visited Jan. 18, 2023). 

16 53 FR 33758 (Aug. 31, 1988). 

17 80 FR 7704 (Feb. 11, 2015). 

18Cong. Research Serv., R46439, Older 

Americans Act: A 2020 Reauthorization (July 1, 

2020), https://crsreports.congress.gov/product/pdf/ 

R/R46439; Cong. Research Serv., R43414, Older 

Americans Act: Overview and Funding (May 17, 

2023), https://crsreports.congress.gov/product/pdf/ 

R/R43414. 

organization serving Native Hawaiian 

elders.11

Title VII authorizes the Ombudsman 

program, programs for elder abuse, 

neglect, and exploitation prevention, 

and a requirement for State agencies to 

provide a State Legal Assistance 

Developer.12 States’ Ombudsman 

programs investigate and resolve 

complaints related to the health, safety, 

welfare, and rights of individuals who 

live in long-term care facilities. 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 the Act.13 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). In FY 2022, the program 

had a budget of $19.9 million.14 That 

same year, Ombudsman fielded 182,000 

complaints and provided more than 

569,000 instances of information and 

assistance to individuals and long-term 

care facilities.15 Title VII also authorizes 

grants to State agencies for program 

activities aimed at preventing and 

remedying elder abuse, neglect, and 

exploitation. 

A. Statutory and Regulatory History 

This final rule is published under the 

authority granted to the Assistant 

Secretary for Aging by the Older 

Americans Act of 1965, Public Law 89– 

73, 79 Stat. 218 (1965), as amended 

through the Supporting Older 

Americans Act of 2020, Public Law 

116–131, 134 Stat. 240 (2020), sections 

201(e)(3), 305(a)(1), 306(d)(1), 307(a), 

307(d)(3), 331(a), 614(a), 624(a) and 

712–713 (42 U.S.C. 3011(e), 42 U.S.C. 

3025, 42 U.S.C. 3026(d), 42 U.S.C. 

3027(a), 42 U.S.C. 3027(a), 3027(d), 42 

U.S.C. 3057e, 42 U.S.C. 3057j, and 

3058g–3058h, respectively). These 

provisions authorize the Assistant 

Secretary for Aging to prescribe 

regulations regarding designation of 

State agency activities; development 

and approval of State plans on aging; 

and funding for supportive, nutrition, 

evidence-based disease prevention and 

health promotion, family caregiver 

support, and legal services under Title 

III of the Act; funding for Indian Tribes, 

Tribal organizations, and a Hawaiian 

Native grantee to serve Hawaiian Native 

and Tribal elders and family caregivers 

under Title VI of the Act; and allotments 

for vulnerable elder rights protection 

activities, including the Long-Term Care 

Ombudsman Program under Title VII of 

the Act. 

The OAA was passed in 1965 and 

vested authority for carrying out the 

purposes of the Act, including through 

the issuance of regulations, in the 

Assistant Secretary for Aging (then the 

Commissioner for Aging). Since its 

initial passage, the OAA has been 

amended a total of eighteen times. 

Regulations for programs authorized 

under the Act date from 1988.16 Title III, 

except regarding the Ombudsman 

program, and Title VI implementing 

regulations have not been revised since 

that time, while Title VII regulations 45 

CFR part 1324 Allotments for 

Vulnerable Elder Rights Protection 

Activities, subpart A and portions of 45 

CFR part 1321—Grants to State and 

Community Programs on Aging 

regarding the Ombudsman program 

were published in 2015.17

There have been substantial statutory 

changes since 1988, as detailed by the 

Congressional Research Service in 

several summary publications.18 Title 

VII: State Long-Term Care Ombudsman 

and Vulnerable Elder Rights Protection 

was added to the Act by the 1992 

amendments (Pub. L. 102–375; 42 

U.S.C. 3058g–3058i), which 

consolidated and expanded existing 

programs focused on protecting the 

rights of older persons. Title VII 

incorporated separate authorizations of 

appropriations for the Ombudsman 

program; the program for the prevention 

of elder abuse, neglect, and exploitation; 

elder rights and legal assistance 

development; and outreach, counseling, 

and assistance for insurance and public 

benefit programs. The 1992 

amendments also strengthened 

requirements related to focusing Title III 

funding and services on populations in 

greatest need with particular attention 

to older low-income minority 

individuals. Other elements of the 1992 

amendments authorized programs for 

assistance to caregivers of the frail 

elderly, clarified the role of Title III 

agencies in working with the private 

sector, and required improvements in 

AoA data collection. 

The National Family Caregiver 

Support Program under Title III and 

Native American Caregiver Support 

Program under Title VI were authorized 

by the 2000 amendments (Pub. L. 106– 

501), which also permitted State 

agencies to impose cost-sharing, subject 

to limitations, for some Title III services 

certain older persons receive while 

retaining authority for voluntary 

contributions toward the costs of 

services. The 2006 amendments (Pub. L. 

109–365) authorized the Assistant 

Secretary for Aging to designate an 

individual within AoA to be responsible 

for prevention of elder abuse, neglect, 

and exploitation and to coordinate 

Federal elder justice activities. In 

addition, the 2006 amendments 

expanded the reach of Aging and 

Disability Resource Centers (ADRCs), 

brought increased attention to services 

and supports related to mental health 

and mental disorders, required State 

agencies to conduct increased planning 

efforts related to the growing number of 

older people in coming decades, and 

focused attention on the needs of older 

people with LEP and those at risk of 

institutional placement. 

The 2016 amendments (Pub. L. 114– 

144) provided additional flexibility to 

State agencies, AAAs, and social 

services providers in addressing the 

modernization of senior centers, falls 

prevention, and behavioral health 

screening, and codified existing 

practices, such as requiring ‘‘evidencebased’’ disease prevention and health 

promotion services. For the 

Ombudsman program, they clarified 

conflicts of interest (COI) provisions, 

strengthened confidentiality and 

Ombudsman training requirements, and 

improved resident access to 

representatives of the Office. They 

addressed coordination among ADRCs 

and other home and community-based 

service (HCBS) organizations providing 

information and referrals. 

The Supporting Older Americans Act 

of 2020 (Pub. L. 116–131) added new 

definitions, including person-centered 

and trauma-informed. The legislation 

amended the Act to address a range of 

disease prevention and health 

promotion activities, such as chronic 

disease self-management and falls 

prevention, as well as address the 

negative effects of social isolation 

among older individuals. Congress 

focused on other reauthorization issues 

as well, including changes to nutrition 


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Federal Register / Vol. 89, No. 31 / Wednesday, February 14, 2024 / Rules and Regulations 11569 

19 87 FR 27160 (May 6, 2022); section 2013A of 

the OAA, 42 U.S.C. 3013a. 

services programs and to programs that 

provide support to family caregivers. 

We issued a Request for Information 

(RFI) on May 6, 2022 seeking input from 

the aging network, Indian Tribes, States, 

and Territories on challenges they face 

administering services, as well as 

feedback from individuals and other 

interested parties on experiences with 

services, providers, and programs under 

the Act.19 Most of the comments we 

received focused on: equitably serving 

older adults and family caregivers from 

underserved and marginalized 

communities, the Ombudsman program, 

area plans on aging, and flexibilities 

within the nutrition and other programs. 

On June 16, 2023, the Federal 

Register published a notice of proposed 

rulemaking (NPRM) regarding OAA 

Titles III, VI, and VII (88 FR 39568). 

Through this NPRM, ACL sought 

feedback regarding ACL’s proposal to 

modernize the implementing 

regulations of the OAA, which have not 

been substantially altered since their 

promulgation in 1988. The NPRM 

addressed supportive, nutrition, 

evidence-based disease prevention and 

health promotion, caregiver, legal, longterm care ombudsman, and other 

services provided by State agencies, 

Tribal organizations and a Hawaiian 

Native grantee, AAAs, and service 

providers under the OAA. The 60-day 

comment period for the NPRM closed 

on August 15, 2023. 

B. Overview of the Final Rule 

This final rule adopts the same 

structure and framework as the 

proposed rule. Part 1321 addresses 

programs authorized under Title III of 

the Act and includes subpart A (basis, 

purpose, and definitions), subpart B 

(State agency responsibilities), subpart C 

(area agency responsibilities), subpart D 

(service requirements), and subpart E 

(emergency and disaster requirements). 

Part 1322 addresses programs 

authorized under Title VI of the Act and 

includes subpart A (basis, purpose, and 

definitions), subpart B (application), 

subpart C (service requirements), and 

subpart D (emergency and disaster 

requirements). Part 1324 includes 

programs authorized under Title VII of 

the Act and includes subpart A (State 

Long-Term Care Ombudsman Program), 

subpart B (programs for prevention of 

elder abuse, neglect, and exploitation), 

and subpart C (State legal assistance 

development). 

ACL has made changes to several of 

the proposed rule’s provisions based on 

public comments. Our final rule is a 

direct response to feedback from 

interested parties and reflects the 

evolving needs of both grantees and 

OAA program participants. In response 

to robust comment, we have clarified 

the flexibilities available during a major 

disaster, increased the amount of funds 

under Title III, part C–1 of the Act that 

may be used for shelf-stable, pick-up, 

carry-out, drive-through, or similar 

meals, and provided more information 

about implementing the definition of 

‘‘greatest social need’’ in State and area 

plans, among other clarifications. 

C. Severability 

To the extent that any portion of the 

requirements arising from the final rule 

is declared invalid by a court, ACL 

intends for all other parts of the final 

rule that are capable of operating in the 

absence of the specific portion that has 

been invalidated to remain in effect. 

While our expectation is that all parts of 

the final rule that are operable in such 

an environment would remain in effect, 

ACL will assess at that time whether 

further rulemaking is necessary to 

amend any provisions subsequent to 

any holding that ACL exceeded its 

discretion, or the provisions are 

inconsistent with the OAA, or are 

vacated or enjoined on any other basis. 

II. Provisions of the Final Rule and 

Analysis and Responses to Public 

Comments 

We received 780 public comments 

from individuals and organizations, 

including State agencies, Tribes and 

Tribal organizations, AAAs, service 

providers, Ombudsman programs, 

advocacy groups, and private citizens. 

We thank commenters for their 

consideration of the proposed rule and 

appreciate all comments received. We 

particularly are grateful for the OAA 

program participants who wrote to share 

their experience of OAA services and 

their thoughts on what they enjoy and 

would like to see in the future regarding 

OAA programming. In the subsequent 

sections, we summarize the rule’s 

provisions and the public comments 

received, and we provide our response. 

General Comments on the NPRM 

General Support 

Comment: Commenters 

overwhelmingly supported most 

provisions in the proposed rule. Many 

commenters expressed general support 

for our updates to modernize the 

regulations. Other commenters 

appreciated the flexibilities in the rule 

and noted that they would like to work 

with their State and local leaders to 

identify other creative approaches to 

expanding services to older adults. A 

significant number of commenters 

requested additional funds to provide 

services under the Act. 

Response: ACL appreciates these 

comments. We encourage collaboration 

at the State and local levels to identify 

solutions that are responsive to the 

needs and resources in local 

communities. Requests for funding are 

outside the scope of this rule. 

Technical Corrections; 

Recommendations for Sub-Regulatory 

Guidance 

Comment: A number of commenters 

identified technical corrections, 

including citation errors and a 

misnumbered preamble provision. 

Commenters also provided suggestions 

and raised questions that could be 

addressed in future sub-regulatory 

guidance on a variety of topics. 

Response: We appreciate these 

comments and have made the 

recommended technical corrections. We 

have also clarified the regulation text to 

remove references to sub-regulatory 

guidance that has not yet been issued, 

and we have revised the regulation title 

to accurately reflect program titles. We 

look forward to providing technical 

assistance and guidance on a number of 

topics subsequent to promulgation of 

the final rule. 

LGBTQI+ Older Adults and Older 

Adults Living With HIV 

Comment: A significant number of 

comments focused on the importance of 

serving those in greatest economic need 

and greatest social need, including older 

adults and family caregivers who are 

lesbian, gay, bisexual, transgender, 

queer, intersex and/or have other sexual 

orientations, gender identities and 

expressions, and sex characteristics 

(LGBTQI+). Many commenters 

expressed support overall, and for 

specific provisions, concerning 

LGBTQI+ older adults and older adults 

with HIV. Specifically, commenters 

voiced support for full legal protections, 

protection of rights and privacy, and 

protection from discrimination when 

accessing services or meeting with 

providers. Commenters also supported 

quality, inclusive, and equitable 

legislation, regulations, aging policies, 

programs, services, and initiatives. 

Many commenters also suggested that 

staff and professionals working with 

older adults be trained in sensitivity, 

cultural competency, and needs specific 

to LGBTQI+ older adults and older 

adults with HIV. Specifically, 

commenters expressed the importance 

of ensuring that providers foster a 

welcoming, safe, and respectful 


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20HHS Selects Phase 2 Winners of National HIV 

and Aging Challenges, HIV.gov, https://

www.hiv.gov/blog/hhs-selects-phase-2-winners-ofnational-hiv-and-aging-challenges/ (last updated 

Sept. 21, 2023). 

21 42 U.S.C. 3025(a)(1)(C). 

environment. Several commenters noted 

the importance of considering other 

noneconomic factors, such as 

geographic location (e.g., rural), 

disabilities, ethnicity, and the 

intersectional challenges of multiply 

marginalized populations. Several 

commenters noted the specific concerns 

of this community related to services 

funded under Title VII of the Act, such 

as the Ombudsman program and 

prevention of elder abuse, neglect, and 

exploitation. 

A few commenters specifically 

recommended engaging State agencies, 

AAAs, and service providers in 

providing funding, outreach, and 

services specific to older adults with 

HIV. Additionally, a few commenters 

noted the importance of hiring 

LGBTQI+ service provider employees 

and professionals. Several commenters 

referenced support for and access to 

high quality and culturally competent 

medical and mental health care. Some 

commenters noted the importance of 

recognition of and respect for partners, 

friends, and families. One commenter 

suggested requiring inclusive language 

and graphics in marketing materials as 

a matter of compliance. One commenter 

observed that LGBTQI+ individuals and 

people with HIV have a greater need to 

overcome isolation. Several commenters 

expressed concerns about finding 

affordable senior supported living 

options. 

Response: ACL appreciates these 

comments expressing concern for older 

adults and family caregivers who are 

LGBTQI+, as well as older adults and 

family caregivers with HIV. A majority 

of these comments are beyond the scope 

of this regulation because they do not 

relate to the substance of the rule, and 

in some cases address areas that are 

outside of ACL’s statutory authority. 

However, we appreciate the numerous 

comments in support of these 

communities and believe the provisions 

at § 1321.3 (defining ‘‘Greatest social 

need’’), § 1321.11 (Advocacy 

responsibilities), § 1321.27 (Content of 

State plan), § 1321.61 (Advocacy 

responsibilities of the area agency), 

§ 1321.65 (Submission of an area plan 

and plan amendments to the State 

agency for approval), § 1321.75 

(Confidentiality and disclosure of 

information), and § 1321.93 (Legal 

assistance) will improve services to 

these populations. 

ACL funds the National Resource 

Center on LGBTQ+ Aging (https://

www.lgbtagingcenter.org), which 

provides training and technical 

assistance to aging services providers, 

including those funded under the OAA, 

in their work to support and include 

LGBTQI+ older adults and family 

caregivers. In a partnership with the 

Office of the Assistant Secretary for 

Health, ACL has worked to support the 

development of innovative efforts that 

improve health outcomes and quality of 

life for people aging with HIV and longterm survivors in both rural and urban 

areas, particularly among underserved 

communities, including on the basis of 

race, ethnicity, and LGBTQI+ status.20

We expect to build on these efforts and 

anticipate providing training and 

technical assistance following 

promulgation of the final rule to support 

effective implementation of these 

provisions. 

Collaboration Between State Agencies 

and Area Agencies 

Comment: ACL received many 

comments expressing concern that the 

rule allows State agencies to exert too 

much control in a variety of areas (e.g., 

which programs AAAs implement 

under the Act, how AAAs implement 

programs, minimum expenditures for 

certain services, prioritization of 

services, voluntary contributions). 

Commenters also expressed concern 

that the extent of control afforded to 

State agencies by the rule will stifle 

AAAs’ abilities to tailor programs to the 

needs of their respective planning and 

service areas (PSAs). 

Response: Section 305 of the Act 

requires designated State agencies to 

‘‘[. . .] be primarily responsible for the 

planning, policy development, 

administration, coordination, priority 

setting, and evaluation of all State 

activities related to the objectives of this 

Act[.]’’ 21 As the grantees under the Act, 

State agencies are responsible to ACL 

for monitoring the compliance of 

activities initiated under Title III with 

all applicable requirements to ensure 

grant awards are used for authorized 

purposes and are in compliance with 

Federal law. In light of these 

responsibilities, we believe the rule 

affords State agencies appropriate 

authority over the administration and 

implementation of the Act within their 

states. 

Notwithstanding these State agency 

obligations, AAAs have a critical role in 

the development of State agency 

policies and procedures. Section 

1321.9(a) requires that the policies and 

procedures be developed by State 

agencies in consultation with AAAs, 

program participants, and other 

appropriate parties in the State. As set 

forth in § 1321.61 (Advocacy 

responsibilities of the area agency), 

AAAs also have an obligation to 

monitor, evaluate, and comment on 

policies, programs, hearings, levies, and 

community actions which affect older 

persons and family caregivers; this 

includes regarding the policies and 

procedures developed and implemented 

by State agencies. Further, except for the 

Ombudsman program as set forth in 45 

CFR part 1324, subpart A and where 

otherwise indicated, the State agency 

policies may allow for such policies and 

procedures to be developed at the AAA 

level. Accordingly, the final rule 

provides tools for State and area 

agencies to work in tandem with one 

another and to address the concerns 

raised by these comments. 

The OAA is clear that State agencies 

and AAAs should work together to 

achieve the mission set forth in the Act. 

AAAs and State agencies have distinct 

but related roles that are all vitally 

important in providing services to older 

adults and family caregivers. ACL is 

available to provide technical assistance 

and support to State agencies and AAAs 

in maintaining positive working 

relationships, fulfilling their roles, and 

meeting the expectations of the OAA. 

Housing, Housing Instability, and 

Homelessness 

Comment: Many commenters 

expressed support for addressing 

housing, housing instability, and 

homelessness, including information 

and assistance/referral (I&A/R), 

partnerships with the U.S. Department 

of Housing and Urban Development 

(HUD), assistance with paying for 

housing costs and shared living options, 

advocacy regarding rising housing costs 

and development which displaces older 

residents, and legal assistance to assist 

with housing problems, including 

evictions. 

Response: ACL appreciates these 

comments expressing concern for older 

adults and family caregivers who 

experience challenges with housing, 

housing instability, and homelessness. 

ACL notes the OAA’s long-standing role 

in support of this topic, including State 

agency and AAA development of a 

comprehensive and coordinated 

network of services and supports; 

instances of co-location of congregate 

meal programs under Title III, part C– 

1 of the Act in affordable housing 

facilities; and the provision of legal 

assistance under the Act to respond to 

various housing and housing-related 

concerns. While regulating the 

provision of housing, including paying 

for housing costs, is beyond the scope 


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22 42 U.S.C. 12101 et seq. 

23 29 U.S.C. 794. 

24 42 U.S.C. 18116. 

25How to File a Civil Rights Complaint, U.S. Dept. 

of Health and Human Serv., Office for Civil Rights, 

https://www.hhs.gov/civil-rights/filing-a-complaint/ 

complaint-process/index.html (last visited Oct. 11, 

2023). 

of the Act, we believe the provisions at 

§ 1321.3 (defining ‘‘Access to services or 

access services,’’ ‘‘In-home supportive 

services,’’ and ‘‘Greatest social need’’), 

§ 1321.27 (Content of State plan), 

§ 1321.61 (Advocacy responsibilities of 

the area agency), § 1321.65 (Submission 

of an area plan and plan amendments 

to the State agency for approval), 

§ 1321.75 (Confidentiality and 

disclosure of information), § 1321.85 

(Supportive services), and § 1321.93 

(Legal assistance) will support the aging 

network in responding to issues relating 

to housing, housing instability, and 

homelessness. This includes local 

partnerships between AAAs and 

housing authorities or providers and 

enabling access to services and supports 

for older adults residing in HUDassisted housing as well as the braiding 

of funding to support housing stability 

with service coordination and delivery. 

ACL leads the Housing and Services 

Resource Center (https://acl.gov/ 

HousingAndServices), a partnership 

between HHS and HUD. We expect to 

build on these efforts and anticipate 

providing training and technical 

assistance following promulgation of the 

final rule to support effective 

implementation of these provisions. 

Accessibility and Civil Rights 

Obligations 

Comment: Numerous commenters 

expressed concern with the elimination 

of the definition of ‘‘severe disability,’’ 

as well as the lack of a specific 

definition of disability, and the absence 

of specific incorporation of major 

sensory disabilities and accessibility in 

the definition of ‘‘greatest social need.’’ 

Many of these commenters reported 

instances in which OAA grantees and 

subrecipients had not respected the civil 

rights of people with sensory or 

mobility disabilities. Some shared 

specific accounts of AAAs and legal 

service providers failing to provide 

culturally competent, accessible 

services to older adult consumers who 

are blind, low-vision, deaf, hard-ofhearing, deafblind, or who have limited 

mobility. Many requested that we 

expand the definition of greatest social 

need to encompass these disability 

populations, codify the terms 

‘‘accessibility’’ and ‘‘vision 

rehabilitation services,’’ require training 

in disability competency, and more 

clearly and forcefully require grantees to 

meet their civil rights obligations to 

older adults with disabilities. 

Commenters also recommended that 

ACL direct resources specifically to 

research on aging and vision loss, 

treatment for diseases that result in 

vision loss, and supportive services for 

people with vision loss so that they may 

age in place—such as transportation and 

home care assistance. 

Response: All recipients of Federal 

funding, including OAA grantees and 

subrecipients, must comply with the 

Americans with Disabilities Act,22

Section 504 of the Rehabilitation Act,23

Section 1557 of the Affordable Care 

Act,24 and all other applicable laws that 

protect against discrimination, 

including against people with 

disabilities. These civil rights laws 

require OAA grantees and subrecipients 

to provide auxiliary aids and services to 

ensure effective communication and to 

ensure that no eligible person with a 

disability is denied access to OAA 

programs and services due to disability. 

Older adults with disabilities and 

advocates may file complaints with the 

HHS Office for Civil Rights if anyone is 

denied equitable access to OAA 

programs or services, including due to 

lack of effective communication.25

While we strongly recommend that 

OAA grantees and subrecipients train 

staff on cultural competency and 

disability accommodations as a best 

practice, training requirements in 

disability accommodation and cultural 

competency are beyond the scope of this 

rulemaking. We decline to adopt 

definitions of accessibility, vision 

rehabilitation services, and related 

terms, preferring to defer to existing 

definitions in relevant civil rights laws. 

However, we have reincorporated the 

definition of ‘‘severe disability’’ in this 

final rule. In addition, the definition of 

‘‘greatest social need’’ already includes 

‘‘physical and mental disabilities,’’ and 

this includes all severe disabilities and 

sensory and communication disabilities. 

Directing resources for research on 

aging and vision loss is also outside the 

scope of this rule. However, we believe 

the provisions at § 1321.3 (defining 

‘‘Access to services or access services’’ 

and ‘‘Greatest social need’’), § 1321.27 

(Content of State plan), § 1321.61 

(Advocacy responsibilities of the area 

agency), § 1321.65 (Submission of an 

area plan and plan amendments to the 

State agency for approval), and 

§ 1321.85 (Supportive services) will 

support the aging network in 

responding to issues relating to vision 

and hearing loss. 

Age Discrimination in the Workplace 

Comment: Several commenters 

expressed concern about age 

discrimination in the workplace. 

Response: While addressing age 

discrimination in the workplace broadly 

is outside of the scope of these 

regulations, ACL notes that supportive 

services provided under Title III of the 

Act may be helpful to those 

experiencing work-related concerns. For 

example, age discrimination is one of 

the priority areas that may be addressed 

by legal assistance provided under the 

Act (§ 1321.93 Legal assistance). While 

Title V, the Senior Community Service 

Employment Program, is outside the 

scope of these regulations because it is 

implemented by the Department of 

Labor, programs funded under Title III, 

VI, and VII of the Act are encouraged to 

have referral mechanisms among 

programs funded under all Titles of the 

Act. 

Administrative Burden, Implementation 

Costs, Implementation Timeframe 

Comment: We received a significant 

number of comments related to 

concerns about the burden, cost, and 

amount of time regulated entities would 

need to implement the final rule (e.g., 

costs and time needed to review and 

update existing policies and procedures, 

to create new policies and procedures, 

create or update state regulations, and to 

train staff), as well as concerns about the 

ongoing costs of monitoring compliance 

with the final rule. Some State agencies 

commented that they anticipate that 

consultants and/or additional staff will 

need to be hired and/or that changes 

will need to be made to information 

technology systems. Some State 

agencies asserted that ACL has greatly 

underestimated both the cost, and the 

amount of time, needed to come into 

compliance with the rule. 

Response: A limited number of 

substantive changes were made by the 

2020 reauthorization to the 

implementation of programs under the 

Act, and much of this final rule codifies 

the policies and procedures that Title VI 

grantees, State agencies, AAAs, and 

service providers already have or should 

have in place to administer programs 

and deliver services under the Act. 

Similarly, State and area agencies 

should already be engaging in 

monitoring activities for compliance 

with the Act and implementing 

regulations. State and area agencies will 

have to review and revise their existing 

practices, policies, and procedures to 

ensure they comply with the final rule. 

For example, State agencies and AAAs 

will need to update definitions of 


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11572 Federal Register / Vol. 89, No. 31 / Wednesday, February 14, 2024 / Rules and Regulations 

greatest social need and greatest 

economic need. However, this final rule 

does not require States to have 

regulations, and many of the new 

potentially burdensome aspects of the 

final rule are at the State agency’s 

option to implement (for example, 

allowing shelf-stable, pick-up, carry-out, 

drive-through, or similar meals to 

complement the congregate meals 

program). We also note that public 

comments that provided State-specific 

cost estimates to implement and 

administer the final rule did not clearly 

differentiate between costs attributable 

to the statute and the incremental costs 

of implementing the final rule; 

accordingly, it is not feasible to 

incorporate this information into our 

analysis of the impact of the final rule. 

As more particularly discussed in the 

Regulatory Impact Analysis below, we 

anticipate that any costs to regulated 

entities associated with the final rule 

will not be onerous. 

In consideration of comments related 

to the time required for implementation 

of the rule, we have decided to delay the 

compliance date of this rule until 

October 1, 2025. This should give all 

regulated entities sufficient time to 

come into compliance with these 

regulations. It will also allow time for 

State and area plans on aging that will 

be effective as of October 1, 2025, to 

incorporate the requirements of this 

final rule into new or amended plans. 

Consistent with current practice, if 

State agencies encounter challenges 

implementing specific provisions of the 

rule, they should engage with ACL for 

technical assistance and support. In 

addition, State agencies that need 

additional time to comply with one or 

more provisions of the rule may submit 

a request to proceed under a corrective 

action plan. A request should include 

the reason the State needs additional 

time, the steps the State will take to 

reach full compliance, and how much 

additional time the State anticipates 

needing. The corrective action plan 

process is intended to be highly 

collaborative and flexible. Under a 

corrective action plan, States agencies 

and ACL will jointly identify progress 

milestones and a feasible timeline for 

the State agency to come into 

compliance with the provision(s) of the 

rule incorporated into the corrective 

action plan. State agencies must make a 

good faith effort at compliance to 

continue operating under a corrective 

action plan. Requests for corrective 

action plans will be reviewed after April 

1, 2024, and ACL will provide guidance 

on this process after this rule takes 

effect. 

Part 1321: Grants to State and 

Community Programs on Aging 

A. Provisions Revised To Reflect 

Statutory Changes or Provide Clarity 

The following provisions of this final 

rule reflect statutory changes (e.g., 

changing ‘‘Commissioner for Aging’’ to 

‘‘Assistant Secretary for Aging’’ 

throughout), revisions for clarity, and 

direction in response to requests for 

technical assistance from grantees and 

other interested parties, RFI responses, 

listening sessions, Tribal consultation, 

and public comment received on the 

NPRM. 

Subpart A—Introduction 

§ 1321.1 Basis and Purpose of This 

Part 

Section 1321.1 sets forth the 

requirements of Title III of the Act to 

provide grants to State and community 

programs on aging. This final rule 

ensures consistency with statutory 

terminology and requirements, such as 

referring to evidence-based disease 

prevention and health promotion and 

caregiver services, specifying family 

caregivers as a service population, and 

listing the key roles of the State agency 

identified to implement Title III and 

Title VII of the Act. 

Comment: Commenters expressed 

support for the priority given to services 

for those with the greatest economic and 

social need. One commenter requested 

§ 1321.1(c)(4) also recognize the need 

for advocacy on behalf of family 

caregivers. 

Response: We appreciate these 

comments and have revised 

§ 1321.1(c)(4) to read, ‘‘Serve as an 

advocate for older individuals and 

family caregivers[.]’’ 

Comment: One commenter stated that 

given the authority for the State agency 

to allocate funds to the Ombudsman 

program, they strongly recommend 

language be added at § 1321.1(c)(7) to 

reflect allocation of funds for the 

Ombudsman program. 

Response: ACL appreciates this 

comment and has revised § 1321.1(c)(7) 

to remove ‘‘or’’ in (i), add ‘‘or’’ to the 

end of (ii), and add (iii) to read, ‘‘The 

Ombudsman program, as set forth in 

part 1324.’’ 

§ 1321.3 Definitions 

The final rule updates the definitions 

of significant terms in § 1321.3 by 

adding several new definitions, revising 

several existing definitions, and deleting 

definitions of terms that are obsolete or 

no longer necessary. The additions, 

revisions, and deletions are intended to 

reflect changes to the statute, important 

practices in the administration of 

programs under the Act, and feedback 

we have received from a range of 

interested parties. 

We add definitions of the following 

terms: ‘‘Access to services,’’ 

‘‘Acquiring,’’ ‘‘Area agency on aging,’’ 

‘‘Area plan administration,’’ ‘‘Best 

available data,’’ ‘‘Conflicts of interest,’’ 

‘‘Cost sharing,’’ ‘‘Domestically produced 

foods,’’ ‘‘Family caregiver,’’ ‘‘Governor,’’ 

‘‘Greatest economic need,’’ ‘‘Greatest 

social need,’’ ‘‘Immediate family,’’ 

‘‘Local sources,’’ ‘‘Major disaster 

declaration,’’ ‘‘Multipurpose senior 

center,’’ ‘‘Native American,’’ ‘‘Nutrition 

Services Incentive Program,’’ ‘‘Older 

relative caregiver,’’ ‘‘Planning and 

service area,’’ ‘‘Private pay programs,’’ 

‘‘Program development and 

coordination activities,’’ ‘‘Program 

income,’’ ‘‘Single planning and service 

area State,’’ ‘‘State,’’ ‘‘State agency,’’ 

‘‘State plan administration,’’ 

‘‘Supplemental foods,’’ and ‘‘Voluntary 

contributions.’’ 

We retain and make minor revisions 

to the terms: ‘‘Altering or renovating,’’ 

‘‘Constructing,’’ ‘‘Department,’’ ‘‘Direct 

services,’’ ‘‘In-home supportive 

services,’’ ‘‘Means test,’’ ‘‘Official 

duties,’’ ‘‘Periodic,’’ ‘‘Reservation,’’ 

‘‘Service provider,’’ and ‘‘Severe 

disability.’’ We retain with no revisions 

the terms: ‘‘Act’’ and ‘‘Fiscal year’’ and 

we remove the terms: ‘‘Frail’’ and 

‘‘Human services.’’ 

Comment: We received many 

comments in support of these updated 

definitions. 

Response: We appreciate these 

comments. ACL’s responses to 

comments of particular note follow. 

‘‘Access to Services’’ or ‘‘Access 

Services’’ 

Comment: We received one comment 

requesting additional examples of 

access services. 

Response: ACL appreciates this 

comment and acknowledges that service 

provision and technologies continue to 

evolve. In response to this comment, we 

have added ‘‘options counseling’’ to the 

list of examples. 

‘‘Acquiring,’’ ‘‘Altering or Renovating,’’ 

and ‘‘Constructing’’ 

Comment: We received comments 

supporting the removal of the term 

‘‘multipurpose senior center’’ from the 

definitions of ‘‘altering or renovating’’ 

and ‘‘constructing.’’ Other commenters 

expressed confusion related to these 

terms, because the rule only allows 

grantees to use OAA funding for 

‘‘acquiring’’ and ‘‘constructing’’ 

multipurpose senior centers. Other 

commenters sought clarity as to whether 

these terms apply to minor home repairs 


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26 42 U.S.C. 3027(a)(7). 

27 42 U.S.C. 3030c–2. 

28 42 U.S.C. 3030c–2(a)(2) prohibits a State 

agency from implementing cost sharing for the 

following services: information and assistance, 

outreach, benefits counseling, or case management; 

ombudsman, elder abuse prevention, legal 

assistance, or other consumer protection services; 

congregate and home-delivered meals; and any 

services delivered through Tribal organizations. 42 

U.S.C. 3030c–2(a)(3) prohibits cost-sharing for any 

services delivered through a Tribal organization or 

to an individual whose income is at or below the 

FPL. State agencies are prohibited from considering 

assets and other resources when considering 

whether a low-income individual is exempt from 

cost-sharing, when creating a sliding scale for cost 

sharing, or when seeking a contribution from a lowincome individual. 

29 42 U.S.C. 3026(a)(4)(A)(i)(I)(aa). 

30 42 U.S.C. 3025(a)(1). 

or modifications provided to individual 

service participants under the Act. 

Response: We only use these terms to 

clarify how grantees may use OAA 

funds on facilities where OAA services 

are provided or facilities that are 

otherwise necessary to satisfy the 

administrative requirements of the Act. 

These terms do not apply to ‘‘in-home 

supportive services’’ provided to 

individuals, such as minor modification 

of homes or individual residences. 

‘‘Conflicts of Interest’’ 

Recognizing the importance of 

ensuring the integrity of, and trust in, 

activities carried out under the Act, 

section 307(a)(7) of the Act requires 

State agencies to have mechanisms in 

place to identify and remove COI.26 We 

include several provisions related to 

COI to provide clarity for State agencies, 

AAAs, and service providers: §§ 1321.3, 

1321.47, and 1321.67. These provisions 

include a general definition of COI and 

specific requirements for State agencies 

and AAAs, respectively, which are 

discussed in more detail below. These 

provisions reflect the expanded 

potential for COI due to changes in the 

scope of activities undertaken by these 

entities since the Act was first passed 

and these regulations were first issued. 

The intent of the COI provisions is to 

ensure that State agencies, AAAs, and 

service providers carry out the 

objectives of the Act consistent with the 

best interests of the older people they 

serve. 

‘‘Cost Sharing’’ 

We clarify the definition of cost 

sharing to implement the intent of 

section 315 of the Act.27 The term ‘‘cost 

sharing’’ generally refers to the portion 

of the cost of an item or service for 

which an individual is responsible in 

order to receive that item or service. 

However, this term is used differently in 

the Act than it is commonly used in 

other settings. There are many 

restrictions on how cost sharing may be 

implemented under the Act, including 

that an eligible individual may not be 

denied service for failure to make a cost 

sharing payment. The OAA allows for 

cost sharing from certain individuals for 

some services,28 but State agencies that 

wish to allow the practice of cost 

sharing must comply with a number of 

requirements, which are described in 

§ 1321.9(c)(2)(xi). 

‘‘Cost Sharing’’ and ‘‘Voluntary 

Contributions’’ 

Comment: We received a mix of 

comments on these definitions; some 

commenters felt the definitions were 

clear as drafted, while others disagreed 

or asked for further clarification. 

Response: We have revised the 

definition of ‘‘voluntary contributions’’ 

to read, ‘‘[. . .] means donations of 

money or other personal resources given 

freely, without pressure or coercion, by 

individuals receiving services under the 

Act.’’ For consistency, we have also 

revised this definition in part 1322. We 

intend to address other suggestions and 

requests for clarification through 

technical assistance. 

‘‘Family Caregiver’’ 

We define ‘‘family caregiver’’ to 

include the following subsets: adult 

family members or other individuals 

who are caring for an older individual, 

adult family members or other 

individuals who are caring for an 

individual of any age with Alzheimer’s 

disease or a related disorder with 

neurological and organic brain 

dysfunction, and ‘‘older relative 

caregivers’’ (defined below). With this 

inclusive approach to defining ‘‘family 

caregiver,’’ we include those 

populations specified in the National 

Family Caregiver Support Program, as 

set forth in Title III, part E of the Act. 

For example, this includes unmarried 

partners, friends, or neighbors caring for 

an older adult. 

Comment: We received one comment 

suggesting that individuals of working 

age who are not adults should be 

included in the definition of family 

caregiver. 

Response: ACL appreciates this 

comment. Entities implementing 

services for family caregivers have the 

discretion to define an ‘‘adult’’ in this 

context or to consider such individuals 

as ‘‘other individuals’’ as used in the 

definition, so long as they comply with 

State agency policies and procedures, 

these regulations, and any other 

applicable Federal requirements. 

Comment: We received many 

comments supporting an inclusive 

definition of family caregiver, as well as 

suggestions for expanded wording of the 

definition. One commenter 

recommended ACL consider 

alternatives to the term ‘‘informal’’ 

within the family caregiver definition to 

avoid minimizing their invaluable role 

and avoid inaccuracy due to some 

receiving financial compensation. 

Response: ACL appreciates these 

comments and concurs that the 

definition includes non-traditional 

families and families of choice. We 

believe that the definition of ‘‘an adult 

family member, or another individual’’ 

and the subsequent preamble 

explanation that this ‘‘includes 

unmarried partners, friends, or 

neighbors’’ is sufficiently broad. To 

address family caregivers who may 

receive limited financial compensation, 

we have revised the definition to add, 

‘‘For purposes of this part, family 

caregiver does not include individuals 

whose primary relationship with the 

older adult is based on a financial or 

professional agreement.’’ We have also 

revised this definition in part 1322. 

‘‘Greatest Economic Need’’ 

One of the basic tenets of the Act is 

focusing OAA services on individuals 

who have the greatest economic need. 

The definition of ‘‘greatest economic 

need’’ in the Act incorporates income 

and poverty status. The Act also permits 

State agencies to set policies, consistent 

with our regulations, that incorporate 

other considerations into the definition 

of ‘‘greatest economic need.’’ 29 Through 

its policies, the State agency may permit 

AAAs to further refine specific target 

populations of greatest economic need 

within their PSA.30 A variety of local 

conditions and individual situations, 

other than income, could factor into an 

individual’s level of economic need. 

State agencies and AAAs are in the best 

position to understand the conditions 

and factors in their State and local areas 

that contribute to individuals falling 

within this category. Accordingly, this 

definition allows State agencies and 

AAAs to further refine target 

populations of greatest economic need. 

Comment: We received multiple 

comments expressing support for 

focusing services on those in greatest 

economic need. One commenter stated 

that it would be beneficial to create a 

process of enabling local AAAs to set 

standards and definitions to reflect local 

needs. 

Response: ACL appreciates these 

comments and notes that the preamble 

discussion supports local targeting. 

Furthermore, § 1321.27(d) and 


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31 42 U.S.C. 3002(24). 

32Nat’l Resource Ctr. on LGBT Aging, Inclusive 

Services for LGBT Older Adults: A Practical Guide 

to Creating Welcoming Agencies (2020), https://

www.lgbtagingcenter.org/resources/pdfs/Sage_

GuidebookFINAL1.pdf. 

33State of Aging with HIV: Third National 

Survey, HealthHIV (2023) https://healthhiv.org/ 

stateof/agingwithhiv/?eType=EmailBlastContent

&eId=883056c6-e9af-47dc-a653-022e1f4fb9fc; Mark 

Brennan-Ing, Emerging Issues in HIV and Aging, 

prepared for the HIV and Aging Policy and Action 

Collation (May 11, 2020), https://www.sageusa.org/ 

wp-content/uploads/2020/07/emerging-issues-inhiv-and-aging-may-2020.pdf. 

34 42 U.S.C. 3026(a)(4)(A)(i)(I)(aa). 

35 42. U.S.C. 3025(a)(1). 

§ 1321.65(b)(2) permit the State agency 

and AAAs to further refine specific 

target populations of greatest economic 

need based on local and individual 

factors. 

Comment: Some commenters noted 

that the definition in § 1321.3 of 

‘‘greatest social need’’ does not entirely 

align with the text at § 1321.27 and 

§ 1321.65. 

Response: We appreciate commenters 

raising this issue; we have revised these 

provisions for consistency. 

Comment: Some commenters 

expressed concern that the expanded 

definition of greatest social need could 

diminish the focus on those in greatest 

economic need if the revised definition 

results in changing an intrastate funding 

formula (IFF). 

Response: Changes to IFFs are one, 

but not an exclusive, method of 

targeting and prioritizing services to 

those in greatest social need. We 

provide additional discussion on 

methods to target and prioritize services 

to those in greatest economic and 

greatest social need in the preamble 

discussion under § 1321.27. 

‘‘Greatest Social Need’’ 

Focusing OAA services on 

individuals who have the greatest social 

need is one of the basic tenets of the 

Act. ‘‘Greatest social need’’ is defined in 

the Act as ‘‘need caused by 

noneconomic factors’’ including 

physical and mental disabilities, 

language barriers, and cultural, social, 

or geographic isolation, including 

isolation caused by racial or ethnic 

status that restricts the ability of an 

individual to perform normal daily tasks 

or threatens the capacity of the 

individual to live independently.31 This 

definition allows for consideration of 

other noneconomic factors that 

contribute to cultural, social, or 

geographic isolation. 

For example, in multiple places the 

Act requires special attention to the 

needs of older individuals residing in 

rural locations. In some communities, 

such isolation may be caused by 

religious affiliation. Isolation may also 

be related to sexual orientation, gender 

identity, or sex characteristics. For 

example, research indicates that 

LGBTQI+ older adults are at risk for 

poorer health outcomes and have lived 

through discrimination, social stigma, 

and the effects of prejudice, impacting 

their connections with families of 

origin, lifetime earnings, opportunities 

for retirement savings, and ability to 

trust health care professionals and aging 

services providers.32 People aging with 

HIV are a growing population with 

distinct needs. The experience of HIV 

stigma may contribute to isolation and 

feelings of loneliness and be 

complicated by other stigmatized or 

marginalized components of an 

individual’s identity, including age, 

race, sexual orientation, and gender 

identity. Older people with HIV report 

poor mental and physical health at 

higher rates than their HIV negative 

counterparts, as well as difficulty 

accessing necessary supports and 

services like transportation, nutrition, 

and housing.33

Other chronic conditions may also 

result in isolation or stigma, as may 

housing instability, food insecurity, lack 

of access to reliable and clean water 

supply, lack of transportation, utility 

assistance needs, or interpersonal safety 

concerns, including abuse, neglect, and 

exploitation. 

We received many comments through 

the RFI and the NPRM comment period 

urging ACL to set clear and consistent 

expectations regarding the populations 

to be included, and our intent is to do 

so in this definition. As with ‘‘greatest 

economic need,’’ the Act permits State 

agencies to set policies, consistent with 

our regulations, that further define the 

noneconomic considerations that 

contribute to populations designated as 

having the ‘‘greatest social need.’’ 34

Through its policies, the State agency 

may permit AAAs to further refine 

specific target populations of greatest 

social need within their PSAs.35 State 

agencies and AAAs are in the best 

position to understand additional 

conditions and factors in their State and 

local areas that contribute to individuals 

falling within this category. 

Accordingly, this definition allows State 

agencies and AAAs to further refine 

target populations of greatest social 

need. 

Comment: We received multiple 

comments expressing support for 

focusing services on those in greatest 

social need. One commenter stated it 

would be beneficial to create a process 

of enabling local AAAs to set standards 

and definitions to reflect local needs. 

Response: ACL appreciates these 

comments and notes that the preamble 

discussion supports local targeting. 

Furthermore, § 1321.27(d) and 

§ 1321.65(b)(2) permit the State agency 

and AAAs to further refine specific 

target populations of greatest social 

need based on local and individual 

factors. 

Comment: Commenters suggested 

various additions to the list of noneconomic factors, such as ‘‘solo older 

adults,’’ people living alone with 

cognitive impairments, older 

individuals who are experiencing abuse, 

neglect, self-neglect, and/or 

exploitation, and formerly incarcerated 

individuals. One commenter requested a 

modification from ‘‘normal’’ to 

‘‘routine’’ in proposed (9)(i). Other 

commenters disagreed with the 

proposed definition and/or provided 

other suggestions. For example, some 

commenters raised the concern that the 

definition is inadequate regarding racial 

or ethnic status because it only 

mentions it in the context of isolation 

when impacts are far more extensive, 

including experiences of incarceration, 

higher rates of poverty and 

homelessness, health inequities such as 

being served in underperforming 

facilities, and lack of trust in external 

services and service providers. 

Commenters also requested clarification 

as to whether sensory loss or sensory 

impairment, including deafness, being 

hard of hearing, blindness, and having 

low vision, may be considered under 

‘‘physical and mental disabilities’’ or 

‘‘chronic conditions.’’ 

Response: ACL appreciates these 

comments and recognizes that there are 

various additional factors that a State 

agency or a AAA may wish to include 

within the category of ‘‘[o]ther needs as 

further defined by State and area plans 

based on local and individual factors[.]’’ 

Such factors may be included in the 

target populations that a State agency or 

a AAA may define pursuant to 

§ 1321.27(d)(1) and § 1321.65(b)(2)(i), 

respectively. Additionally, we 

acknowledge that the concepts included 

in our definition may be expressed 

using different words. For example, 

‘‘solo older adults’’ or ‘‘older adults 

living alone’’ may be included as 

examples of experiences of cultural, 

social, or geographical isolation due to 

‘‘any other status’’ under (3)(x) of this 

revised definition. We have added 

‘‘routine’’ to (3)(x)(a) in addition to the 

statutory term, ‘‘normal.’’ 

ACL recognizes the extensive impacts 

to older adults who may face 

cumulative effects of a lifetime of 


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36Section 315 of the OAA; 42 U.S.C. 3030c–2 

(b)(3). 

isolation caused by racial or ethnic 

status which restrict the ability of an 

individual to perform routine daily 

tasks or threaten the capacity of an 

individual to live independently, such 

as experiences of incarceration, higher 

rates of poverty and homelessness, 

health inequities due to being served in 

underperforming facilities, and lack of 

trust in external services and service 

providers. Considerations relating to 

racial or ethnic status may be further 

defined under ‘‘(x) Other needs as 

further defined by State and area plans 

based on local and individual factors[.]’’ 

ACL confirms that sensory loss or 

sensory impairment, including deafness, 

being hard of hearing, blindness, and 

having low vision, may be considered 

under ‘‘Physical and mental 

disabilities,’’ ‘‘Chronic conditions,’’ or 

separately defined as provided at ‘‘Other 

needs as further defined by State and 

area plans based on local and individual 

factors[.]’’ Older individuals who are 

experiencing abuse, neglect, selfneglect, and/or exploitation may be 

considered under ‘‘Interpersonal safety 

concerns,’’ as well as under several of 

the other population categories listed 

here, depending on the individual’s 

personal situation. 

Comment: A commenter 

recommended including the concept of 

‘‘lifesaving/preservation’’ (relating to the 

availability of necessities such as water, 

access to food supplies, and electricity) 

in the definition of greatest social need. 

This comment was raised in the context 

of Indian reservations where, for 

example, water may need to be 

manually hauled and electricity may be 

unavailable. 

Response: ACL appreciates these 

comments. We acknowledge that access 

to these types of necessities is 

important, and we have revised the 

definition to include lack of access to 

reliable and clean water supply. We 

have also amended the regulatory 

definition to better align with the 

structure of the statutory provision. 

ACL has determined that the 

definition as proposed, with the 

revisions noted here, provides an 

appropriate balance in meeting the 

intent of the Act and allowing for State 

and local agency customization. 

‘‘Immediate Family’’ 

Comment: We received one comment 

stating that the term ‘‘immediate 

family’’ should include non-relatives 

that are socially connected, especially 

including clan relationships in Tribal 

communities. 

Response: This term is used 

specifically in the context of COI 

policies at § 1321.47 and § 1321.67 

requiring State agencies and AAAs, 

respectively, to have policies and 

procedures ‘‘[e]nsuring that no 

individual, or member of the immediate 

family of an individual, involved in 

administration or provision of a Title III 

program has a conflict of interest[.]’’ 

ACL declines to expand the definition 

of immediate family to avoid creating an 

overly broad application of COI 

provisions in Tribal communities. ACL 

notes that the definition of ‘‘family 

caregiver’’ set forth in § 1321.3 and used 

in § 1321.91 for provision of family 

caregiver support services includes 

‘‘[. . .] an adult family member, or 

another individual [. . .]’’ which 

includes non-relatives that are socially 

connected and clan relationships in 

Tribal communities. 

‘‘In-Home Supportive Services’’ 

Comment: We received supportive 

comments regarding this provision, as 

well as comments requesting expansion 

of the in-home supportive services 

identified. We received comment asking 

for the definition to be altered or to 

otherwise remove the phrase ‘‘[. . .] and 

that is not available under another 

program’’ regarding the example of 

minor modification of homes for parity 

with the definition under part 1322, to 

allow for collaboration with other 

programs, and to avoid excessive 

burden in proving no other program is 

available. 

Response: ACL appreciates these 

comments. We have revised (1) under 

this definition to read, ‘‘Homemaker, 

personal care, home care, home health, 

and other aides[.]’’ Recognizing that 

respite care of all types assists older 

adults in avoiding institutionalization, 

we have revised (4) under this 

definition to begin, ‘‘Respite care for 

families[.]’’ To facilitate consistency of 

definitions and avoid excessive burden, 

we have amended the phrase regarding 

minor modification of homes to state, 

‘‘[. . .] and that is not readily available 

under another program.’’ We have 

similarly amended this definition in 

part 1322 for consistency. 

‘‘Means Test’’ 

Comment: We received several 

comments questioning how to prioritize 

participants without means testing. 

Response: The definition of ‘‘means 

test’’ in the final rule is very similar to 

the previous regulatory definition. We 

updated the definition to be consistent 

with the statute by adding family 

caregivers and made other edits for 

clarity. Under the Act, service providers 

may not determine an older adult or 

family caregiver to be ineligible for 

services due to the participant’s income, 

assets, or other resources.36 However, 

service providers may determine that 

due to limited resources and 

requirements to focus providing services 

to those in greatest economic need and 

greatest social need, they are unable to 

provide immediate service to some 

individuals. In such situations, service 

providers may include prospective 

participants on a waiting list; make 

referrals to other service providers or 

services; offer to provide services under 

a private pay program, as set forth in 

§ 1321.9(c)(2)(xiii); and/or advocate for 

additional resources. Service providers 

may ask for financial information from 

prospective participants to assess for 

needs, screen for other benefits or 

services that may be available, establish 

priority for receipt of services, and 

collect data for needs assessment, 

reporting, evaluation, and other 

appropriate purposes. 

For example, a family caregiver 

seeking respite assistance may be 

assessed by a AAA and found to have 

some financial resources, several other 

family members providing care as backup to the primary caregiver, and a care 

recipient who has fewer care needs. A 

second family caregiver seeking respite 

assistance from the AAA is caring for a 

care recipient with very high care needs 

and is from an underserved community, 

as identified in the State and area plan. 

This second family caregiver may be 

prioritized for respite services by the 

AAA, as they have very limited 

financial resources and no nearby 

sources of back-up caregiving. The first 

family caregiver would not be ineligible 

for services, but due to the respite 

program’s limited resources might be 

placed on a waiting list and referred to 

other services, including those under 

private pay arrangements. While not 

receiving respite services, the first 

family caregiver could also participate 

in caregiver support group and 

education services provided by the AAA 

under the Act. 

The AAA could use the data collected 

regarding waiting lists and unmet needs 

in its advocacy efforts. With successful 

advocacy efforts resulting in an increase 

in funding for family caregiver 

programs, the first family caregiver 

could then receive respite services when 

those additional resources become 

available. 

‘‘Multipurpose Senior Center’’ 

Comment: We received comments 

requesting a change from ‘‘shall’’ to 

‘‘may’’ in the definition as proposed. We 

received comments questioning the use 


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37 42 U.S.C. 3027(a)(13). 

38 42 U.S.C. 3058j. 

of the term ‘‘multipurpose senior 

center’’ to reference a service. We also 

received comment disagreeing with the 

definition, including with the inclusion 

of ‘‘virtual facilities’’ to the definition. 

Other commenters expressed 

appreciation for the inclusion of 

‘‘virtual facilities’’ to reflect a growing 

number of programs and services 

offered online after the pandemic, 

noting this may make programs more 

accessible and equitable. 

Response: We appreciate these 

comments and have revised § 1321.3 

(Definitions) to indicate ‘‘[. . .] as used 

in § 1321.85, facilitation of services in 

such a facility.’’ We have determined 

that the inclusion of virtual facilities 

allows for the option of various service 

modalities and that the use of the term 

‘‘as practicable’’ allows for appropriate 

variation in local circumstances, while 

remaining true to the definition of 

‘‘multipurpose senior center’’ as set 

forth in the Act and the intent for 

facilitation of such services. We have 

made a corresponding revision to this 

definition in part 1322. 

‘‘Official Duties’’ 

Comment: We received 

recommendations to clarify that 

representatives of the Office may be 

carrying out the duties ‘‘[. . .] by direct 

delegation from, the State Long-Term 

Care Ombudsman’’ in addition to the 

proposed ‘‘[. . .] under the auspices and 

general direction of [. . .] the State 

Long-Term Care Ombudsman.’’ 

Response: We appreciate the 

comments. We recognize that 

Ombudsman programs operate in a 

variety of organizational structures and 

that direct delegation is one way that 

programs are managed. We have 

modified the definition as 

recommended and made a 

corresponding revision to part 1324. 

‘‘Private Pay’’ 

Comment: We received a comment 

requesting private pay and commercial 

relationship be defined separately. 

Response: We define private pay as a 

type of commercial relationship. As 

discussed in our response to comments 

on § 1321.9(c)(2)(xiv), we have declined 

to define ‘‘commercial relationship.’’ 

‘‘Program Development and 

Coordination Activities’’ 

This term explains certain activities of 

State agencies and AAAs to achieve the 

goals of the Act. This work includes the 

development of innovative ways to 

address the evolving social service, 

health, and economic climates in which 

they operate. Separate from 

administering programs to provide 

direct services, State agencies and AAAs 

plan, develop, provide training 

regarding, and coordinate at a systemic 

level, programs and activities aimed at 

the Act’s target populations. In addition 

to this definition, we include language 

in § 1321.27 to clarify requirements for 

these activities. 

‘‘Severe Disability’’ 

Comment: A number of commenters 

objected to our proposal to eliminate the 

definition of ‘‘severe disability’’ from 

the regulation. Commenters expressed 

concern that people with disabilities 

would no longer sufficiently be 

considered within the definition of 

greatest social need. 

Response: We have reincorporated the 

statutory definition of ‘‘severe 

disability’’ into the regulation. We 

reiterate that people with disabilities 

also meet the definition of the general 

term ‘‘physical and mental disabilities.’’ 

However, there are several statutory 

references that require specifically 

prioritizing people with ‘‘severe 

disabilities,’’ and so we have 

incorporated the statutory definition in 

this final rule. 

Comment: We received other 

suggestions, program management 

recommendations, and implementation 

questions regarding the definitions in 

this provision. 

Response: We decline to make further 

changes to this provision and intend to 

address other suggestions and requests 

for clarification through technical 

assistance. 

Subpart B—State Agency 

Responsibilities 

§ 1321.5 Mission of the State Agency 

Section 1321.7 of the existing 

regulation (Mission of the State agency) 

is redesignated here as § 1321.5 for 

clarity with respect to other relevant 

provisions. Section 1321.5 sets forth the 

State agency’s mission, role, and 

functions as a leader on all aging issues 

in the State, and it specifies that the 

State agency will designate AAAs in 

States with multiple PSAs to assist in 

carrying out the mission. We include 

minor revisions to align with 

reauthorizations of the statute, such as 

adding family caregivers as a service 

population per the 2000 amendments 

(Pub. L. 106–501). We also update 

regulatory references and revise 

language for clarity. 

Comment: We received comments 

expressing support for the wording used 

in this section, including the additional 

detailed grant requirements for State 

agencies to develop comprehensive and 

coordinated systems of service delivery. 

We received several suggestions for 

other text to add to this section. Several 

commenters also recommended cultural 

humility and cultural competency 

training for the aging network, including 

regarding Tribal and disability issues. 

Response: We appreciate these 

comments. We believe the text is 

sufficient as drafted and that further 

examples, explanation, and training 

opportunities may be addressed through 

technical assistance, as appropriate. 

Comment: One commenter questioned 

the proposed change to ‘‘[. . .] shall be 

the lead on all aging issues’’ 

recommending instead ‘‘be the leader,’’ 

recognizing that some aging issues may 

be led by other entities within the State. 

Response: ACL appreciates this 

comment and has revised this statement 

to ‘‘[. . .] shall be a leader on all aging 

issues[.]’’ 

§ 1321.7 Organization and Staffing of 

the State Agency 

Section 1321.9 of the existing 

regulation (Organization and staffing of 

the State agency) is redesignated here as 

§ 1321.7. We make several changes to 

the provision on organization and 

staffing for consistency and for 

clarification. Minor changes at 

§ 1321.7(a), (c), and (d) reflect consistent 

wording with the State agency’s 

obligations under 45 CFR part 1324 with 

respect to the administration of the 

Ombudsman program. The Ombudsman 

program is authorized under Title VII of 

the Act, and the implementing 

regulations for the program were 

promulgated in 2015 at 45 CFR part 

1324. Section 1321.7(d) includes minor 

language changes to clarify the State 

agency’s existing obligations to carry out 

the Ombudsman program in accordance 

with the Act’s requirements, regardless 

of any applicable State law 

requirements. 

Section 307(a)(13) 37 and section 

731 38 of the Act require the State 

agency to ensure that there is a Legal 

Assistance Developer and other 

personnel, as needed, to provide State 

leadership in developing legal 

assistance programs for older 

individuals throughout the State. These 

staffing requirements are absent from 

the existing regulation regarding 

staffing; we add a new paragraph (e) to 

this provision that sets forth these 

requirements to assist State agencies to 

better understand their obligations 

under the Act related to staffing. The 

role of the Legal Assistance Developer is 


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39 42 U.S.C. 3025(a). 

40 42 U.S.C. 3027. 

41 42 U.S.C. 3025(a)(2); 42 U.S.C. 3012(a)(9). 42 42 U.S.C. 3026(a)(4)(A)(i)(I)(aa). 

discussed more fully in the preamble, 

below. 

Comment: We received comments of 

support for language recognizing the 

Ombudsman as the head of the Office of 

the State Long-Term Care Ombudsman 

and for including expectations for the 

Legal Assistance Developer. Other 

commenters expressed concern that 

provisions regarding State agency 

oversight of the Ombudsman program 

would create complexities within their 

State agency’s current organizational 

structure. 

Response: We appreciate these 

comments. Regarding concerns with 

oversight of the Ombudsman program, 

the updates included in the proposed 

rule did not differ significantly from 

current regulatory expectations. We 

have made a minor revision to proposed 

§ 1321.7(c) for clarity. ACL will provide 

technical assistance to help State 

agencies understand and satisfy these 

requirements. 

Comment: We also received a 

recommendation that State agencies be 

allowed to enter into a contract or other 

arrangement to designate an individual 

as Legal Assistance Developer. 

Response: State agencies have the 

discretion to make human resources 

decisions about how to staff their 

agencies in order to fulfill their 

obligations under the Act. 

§ 1321.9 State Agency Policies and 

Procedures 

We retitle the provision contained in 

§ 1321.11 of the existing regulation 

(State agency policies) to better reflect 

the intent of the provision and to 

redesignate it here as § 1321.9. We also 

incorporate provisions contained in 

§ 1321.45 (Transfer between congregate 

and home-delivered nutrition service 

allotments), § 1321.47 (Statewide nonFederal share requirements), § 1321.49 

(State agency maintenance of effort), 

§ 1321.67 (Service contributions), and 

§ 1321.73 (Grant related income under 

Title III–C) within this provision to 

consolidate and streamline applicable 

requirements. 

Section 305 of the Act requires the 

designated State agencies to ‘‘[. . .] be 

primarily responsible for the planning, 

policy development, administration, 

coordination, priority setting, and 

evaluation of all State activities related 

to the objectives of this Act[.]’’ 39

Consistent with that obligation, this 

final rule requires State agencies to 

promulgate policies and procedures 

related to a range of topics that fall 

within the State agency’s authority to 

oversee compliance with the State plan 

in § 1321.9(c)(1) (policies and 

procedures related to direct service 

provision) and § 1321.9(c)(2) (policies 

and procedures related to fiscal 

requirements). The policy development 

process includes the establishment of 

procedures, which set forth the steps to 

follow to implement policies. 

Accordingly, we have included minor 

revisions to clarify that the policy 

development and implementation 

process includes the establishment of 

procedures, as well as policies. 

The language at § 1321.9(a) is 

intended to (1) reflect statutory updates 

(i.e., the LTCOP regulation (45 CFR part 

1324) which was promulgated in 2015); 

(2) clarify that the State agency’s 

obligations to develop policies and 

procedures extend to elder abuse 

prevention and legal assistance 

development programs; (3) confirm the 

ability of the State agency to allow 

procedures to be developed at the AAA 

level, except where specifically 

prohibited; and (4) clarify the State 

agency’s responsibility for monitoring 

the compliance of activities initiated 

under Title III with all applicable 

requirements to ensure that grant 

awards are used for the authorized 

purposes and in compliance with 

Federal law. 

The Act contains many programmatic 

and fiscal requirements of which State 

agencies must be aware and for which 

State agencies must have established 

policies and procedures. For clarity and 

ease of reference, we combine the areas 

for which State agencies must have 

established policies and procedures in 

this provision. The first area relates to 

data collection and reporting. Section 

307 of the Act requires the collection of 

data and periodic (at a minimum, once 

each fiscal year) submission of reports 

to ACL regarding State agency and AAA 

activities.40 ACL has implemented a 

national reporting system and reporting 

requirements that must be used by all 

State agencies to ensure timely and 

consistent reporting. Section 1321.9(b) 

sets forth the State agency’s 

responsibility to have policies and 

procedures to ensure that its data 

collection and reporting align with 

ACL’s requirements. 

Section 1321.9(c)(1) describes policies 

and procedures that State agencies must 

establish to ensure that services 

provided under the Act meet the 

requirements of the Act and are 

provided equitably and in a consistent 

manner throughout the State, as 

appropriate.41 In response to the RFI 

and the NPRM comment period, this 

section addresses comments from AAAs 

and service providers that requested 

State agencies provide transparency and 

clarity to AAAs and service providers 

about the policies and procedures that 

they must follow, including setting 

requirements for client eligibility, 

assessment, and person-centered 

planning; specifying a listing and 

definitions of services that may be 

provided; detailing any limitations on 

the frequency, amount, or type of 

service provided; defining greatest 

economic need and greatest social need, 

and specific actions the State agency 

will use or require to provide services 

to those identified populations; how 

AAAs can provide services directly; 

how voluntary contributions are to be 

collected; and the grievance process for 

older adults and family caregivers who 

are dissatisfied with or denied services 

under the Act. As indicated in 

§ 1321.9(a), except for the Ombudsman 

program and where otherwise indicated, 

the State agency policies may allow for 

procedures to implement specific 

policies to be developed at the AAA 

level. ACL strongly encourages State 

agencies to make their OAA policies 

and procedures available to the public, 

either by posting them online or by 

providing a point of contact at the State 

agency to respond to requests for this 

information. Doing so may help ensure 

accountability to the public regarding 

the implementation of OAA programs 

and services. 

Under section 306(a)(4)(A)(i)(I)(aa), 

AAAs are responsible for setting 

specific objectives, consistent with State 

agency policy, for provision of services 

to older individuals with greatest 

economic need and greatest social 

need.42 Identifying such populations at 

the State level facilitates consistent 

messaging and outreach, collaboration 

with other State level organizations and 

interested parties, and development of 

specific plans for the State agency, 

AAAs, and service providers to 

implement, as intended by the Act. 

Definitions of these populations at the 

State level are intended to provide 

statewide direction, while maintaining 

the opportunity for additional definition 

of populations at greatest economic 

need and greatest social need specific to 

local circumstances as part of an area 

plan on aging as further set forth in 

§ 1321.65. For example, a State agency 

might choose to define those at greatest 

economic need to include individuals or 

households with an income within a 

specific range (e.g., up to 125 percent of 

the Federal poverty level (FPL)), and 

another State agency may include older 


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43 42 U.S.C. 3027(a)(8)(A). 

44 Id. section 3027(a)(5)(B). 

45 42 U.S.C. 3030a(e). 

46 42 U.S.C. 3023. 

47 42 U.S.C. 3058a. 

48 42 U.S.C. 3025(a)(2)(C). 

49 42 U.S.C. 3030a(d). 

50 42 U.S.C. 3024(d), 3028(a)(1), 3029(b), 3030s– 

1(h)(2). 

51 42 U.S.C. 3028(a)(4), (5). 

52 42 U.S.C. 3024(d)(1), 3028(a), (b)(1)–(2). 

53 42 U.S.C. 3026(a)(2). 

54 42 U.S.C. 3029(c). 

55 42 U.S.C. 3027(a)(9)(A). 

56 Id. section 3027(a)(3)(B)(i). 

57 42 U.S.C. 3024(b), 3058b(b). 

58 42 U.S.C. 3030c 2. 

59 Id. section 3030c–2(a)(5)(c). 

60 42 U.S.C. 3020c; 42 U.S.C. 3026(g). 

61 42 U.S.C. 3026(a)(13)–(14). 

62 45 CFR 75; 42 U.S.C. 3030b, 3030d(b). 

63 42 U.S.C. 3026(a)(9)(B), 3030c–2(b)(4)(E), 

3030d(d), 3030s–2, 3058d(a)(4). 

64 42 U.S.C. 3025(a)(1)(A)–(C). 

65 45 CFR 75.305. 

66 Id. section 75.353. 67 42 U.S.C. 3027(a)(4). 

adults experiencing housing instability 

in their definition of greatest economic 

need. A State agency might also choose 

to define those at greatest social need to 

include people with low literacy, while 

another State agency may include 

grandparents raising grandchildren due 

to substance use disorder or loss of 

parents to COVID–19 in their definition 

of greatest social need. There are 

multiple circumstances where State 

level identification of needs may be 

further complemented at the AAA level, 

such as older adults experiencing 

economic need due to catastrophic 

flooding in a rural portion of a State, or 

a AAA including older refugees in the 

community in their definition of 

greatest social need. 

The Act sets forth at section 

307(a)(8)(A) that services will not be 

directly provided by a State agency or 

by a AAA, subject to certain conditions. 

AAAs must receive State agency 

approval to provide direct services. We 

clarify in this rule that the State agency 

must communicate how the area 

agencies may request approval to 

directly provide services.43 This section 

also incorporates the requirement under 

section 307(a)(5)(B) of the Act that State 

agencies are required to issue guidelines 

applicable to grievance processes for 

any older adult or family caregiver who 

has a complaint about a service or has 

been denied a service.44

Section 1321.9(c)(2) requires State 

agencies to establish policies and 

procedures related to the fiscal 

requirements associated with being 

awarded funding for the Nutrition 

Services Incentive Program (NSIP),45

Title III,46 and Title VII 47 under the Act. 

Over the years, we have found that some 

State agencies may be unaware of 

certain requirements or may not 

understand their obligations under these 

requirements. Section 1321.9(c)(2) 

provides guidance on the following 

fiscal requirements: distribution of Title 

III 48 and NSIP 49 funds; non-Federal 

share (match) requirements; 50 permitted 

transfers of service allotments; 51

maximum allocation amounts for State, 

Territory, and area plan 

administration; 52 minimum funding 

expenditures for access to services, inhome supportive services, and legal 

assistance; 53 State agency maintenance 

of effort obligations; 54 requirements 

related to Ombudsman program 

expenditures and fiscal management; 55

minimum expenditures for services for 

older adults who live in rural areas; 56

reallotment of funds; 57 voluntary 

contributions, including cost-sharing at 

the election of the State agency; 58 use 

of program income; 59 private pay 

programs; 60 commercial 

relationships; 61 buildings, alterations or 

renovations, maintenance, and 

equipment; 62 prohibition against 

supplantation; 63 monitoring of State 

plan assurances; 64 advance funding; 65

and fixed amount subawards.66 We 

provide further context for these fiscal 

requirements in the following 

paragraphs. 

Comment: Many commenters, 

including but not limited to State and 

area agencies, expressed support for this 

section generally. One commenter 

expressed support for the proposed rule, 

specifically § 1321.9(a) and (b). Other 

commenters expressed support for 

specific portions of § 1321.9, including 

one commenter noted that the 

prohibition against means testing is a 

strength of the Act, and another 

expressed support for the requirement 

in § 1321.9(c)(2)(i) that State agency 

policies and procedures must provide 

for the prompt disbursement of Title III 

funds and NSIP funds. Commenters also 

supported the clarification in 

§ 1321.9(c)(2)(vi) that excess State match 

reported on the Federal financial report 

does not become part of the 

maintenance of effort unless the State 

agency certifies the excess. Commenters 

additionally supported the requirement 

to have policies clarifying that funds 

awarded under certain sections of the 

Act cannot supplant existing Federal, 

State, and local funds 

(§ 1321.9(c)(2)(xvi)) and the requirement 

to have policies which address 

monitoring for compliance with 

assurances (§ 1321.9(c)(2)(xvii)). 

Response: ACL appreciates the 

support for this provision, the purpose 

of which is to consolidate, and to make 

easier to locate, applicable requirements 

of the Act for which State agencies 

should have established policies and 

procedures. 

Comment: A commenter sought 

guidance as to whether § 1321.9 requires 

State agencies to monitor the 

performance of Ombudsman programs. 

Response: Regarding concerns with 

oversight of the Ombudsman program, 

the requirements in the final rule do not 

differ significantly from current 

regulatory expectations. ACL will 

provide technical assistance to help 

State agencies understand and 

sufficiently meet these requirements. 

§ 1321.9(b) 

Comment: ACL received several 

comments requesting additional 

guidance and direction with respect to 

the collection of data (such as data on 

sexual orientation and gender identity, 

data regarding populations experiencing 

greatest economic need and greatest 

social need, and data stratification). 

Some commenters expressed concern as 

to additional data collection that may be 

required in connection with the 

expansion of the definitions of greatest 

economic need and greatest social need. 

Other commenters were concerned 

about potential costs associated with 

changes to data collection expectations. 

We also received various comments 

asking for improvements in ACL’s data 

collection efforts, including specific 

data collection on sexual orientation 

and gender identity. 

Response: Section 307(a)(4) of the Act 

requires the collection of data and 

periodic submission of reports to ACL 

regarding State agency and AAA 

activities.67 ACL has developed a 

system for these purposes and has 

implemented reporting requirements 

that must be used by all State agencies 

to ensure timely and consistent 

reporting, as well as the quality and 

accuracy of the data reported. These 

reporting requirements include, among 

other things, data that must be collected 

by all State agencies (at a minimum, 

once each fiscal year). Specific details 

on the reporting system and its related 

requirements are outside the scope of 

the final rule. ACL is available to 

provide technical assistance to State 

agencies regarding data collection and 

reporting. 

Comment: Some commenters 

suggested that certain requirements be 

added to the proposed rule related to 

abuse and neglect of older adults. One 

commenter noted that the Ombudsman 

program is required to serve all 

residents and does not prioritize clients 


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68 42 U.S.C. 3058 et seq. 

69 42 U.S.C. 3025(a)(1)(C). 

70 42 U.S.C. 3026(a)(4)(A)(i)(I)(aa); 42. U.S.C. 

3025(a)(1). 

71 42 U.S.C. 3025(a)(2)(C)–(D). 

based on greatest social need or greatest 

economic need and requested the 

proposed rule be clarified to 

acknowledge this distinction. 

Response: ACL declines to add any 

requirements to part 1321 of the rule 

related to abuse and neglect of older 

adults. The Ombudsman program and 

programs for the prevention of elder 

abuse, neglect, and exploitation are 

established pursuant to Title VII of the 

Act.68 ACL believes that Title VII of the 

Act and its accompanying regulation (45 

CFR part 1324) adequately address 

requirements for these programs and 

that no additional clarification is 

needed in the final rule. 

Comment: Some State agencies and 

AAAs expressed concern that the 

requirements in § 1321.9 regarding the 

promulgation of policies and procedures 

are too burdensome. 

Response: The Act contains many 

programmatic and fiscal requirements of 

which State agencies should be aware, 

and section 305 of the Act requires State 

agencies to develop policies for ‘‘[. . .] 

all State activities related to the 

objectives of this Act[.]’’ 69 Substantially 

all requirements included in this section 

are set forth in the Act; accordingly, 

State agencies should be aware of them 

and already should have policies and 

procedures in place. For clarity and ease 

of reference, we combined the areas for 

which State agencies should have 

established policies and procedures in 

this provision to assist State agencies in 

understanding their obligations under, 

and ensuring their compliance with, the 

Act. ACL understands that some State 

agencies’ existing policies and 

procedures may not address all areas 

included in this section. To give State 

agencies ample time to establish or 

update their policies and procedures, 

ACL has deferred the compliance date 

of the rule to October 1, 2025. 

Comment: One commenter 

recommends that the term ‘‘policies and 

procedures’’ be defined to also include 

State administrative rules or contractual 

obligations. 

Response: ACL declines to define 

‘‘policies and procedures’’ in order to 

provide flexibility to the State agencies 

and to allow them to take into account 

applicable State requirements and 

standard practices with respect to the 

development of policies and 

procedures, which can vary from one 

State to another. 

§ 1321.9(c)(1) Direct Service Provision 

Comment: A commenter requested 

that the list in § 1321.9(c)(1) of topics 

related to direct services for State 

agencies be a suggested list, rather than 

a required list of topics to be covered. 

Response: ACL declines to revise the 

regulatory language as requested. The 

topics covered are the minimum, 

essential areas for which State agencies 

should have policies and procedures to 

administer direct services as 

contemplated by the Act. State agencies 

may elect to adopt additional policies 

and procedures with respect to the 

provision of direct services under the 

Act. 

Comment: With respect to 

§ 1321.9(c)(1)(i), which requires State 

agencies to develop policies and 

procedures regarding requirements for 

client eligibility, periodic (at a 

minimum, once each fiscal year) 

assessment, and person-centered 

planning, one commenter suggested that 

ACL require AAAs to consider the full 

array of available long-term service and 

support options, inclusive of 

community-based long-term services 

and supports, such as Programs of AllInclusive Care for the Elderly (PACE 

programs). 

Response: ACL appreciates the 

comment, but ACL declines to direct 

State agencies as to the specific 

requirements that State agencies must 

include in these policies and 

procedures. State agencies are in the 

best position to make such decisions 

based on conditions and need in their 

States, and ACL leaves these 

determinations to the State agencies. 

Comment: Section 1321.9(c)(1), 

requires State agencies to have policies 

and procedures regarding the definition 

of those with greatest economic need 

and those with greatest social need 

within their States. One commenter 

recommended that ACL provide more 

detailed guidance on strategies for 

reaching populations with the ‘‘greatest 

economic need.’’ The commenter also 

recommended that ACL provide 

guidance regarding methods for 

measuring their success in reaching 

such populations and requested 

additional guidance regarding the 

definition of ‘‘greatest economic need’’ 

to prevent ‘‘unintended consequences’’ 

and to ensure that vulnerable older 

adults receive essential services. 

Commenters also recommended that we 

impose additional limitations on State 

agency determinations related to the 

definitions of greatest social need and 

greatest economic need, including 

recommendations of other populations 

to include and how such determinations 

should be made and disclosed. 

Response: ACL retains the regulatory 

text in § 1321.9(c)(1) as proposed. ACL 

believes the definitions in § 1321.3 of 

greatest economic need and greatest 

social need, as well as the requirements 

in § 1321.27 regarding information 

required to be included in the State 

plan, adequately address these 

concerns. 

Regarding the comments raised with 

respect to the definition of ‘‘greatest 

economic need,’’ the definition in the 

Act incorporates income and poverty 

status. The Act also permits State 

agencies to set policies, consistent with 

ACL’s regulations, that incorporate 

other considerations into the definition 

of ‘‘greatest economic need,’’ and the 

discussion in § 1321.3 above includes 

additional guidance for State agencies 

regarding how to define ‘‘greatest 

economic need.’’ 70 Through its policies, 

the State agency may permit AAAs to 

further refine specific target populations 

of greatest economic need within their 

PSAs. A variety of local conditions and 

individual situations, other than 

income, could factor into an 

individual’s level of economic need. 

State agencies and AAAs are in the best 

position to understand the conditions 

and factors in their State and local areas 

that contribute to individuals falling 

within this category. Accordingly, this 

definition allows State agencies and 

AAAs to further refine target 

populations of greatest economic need. 

To maximize the flexibility afforded to 

State agencies in making these 

determinations, ACL declines to provide 

more specific direction in the final rule. 

Any additional guidance that may be 

appropriate will be offered by ACL via 

technical assistance. 

§ 1321.9(c)(2)(i) Intrastate funding 

formula (IFF). 

The Act sets forth requirements for 

distribution of Title III funds within the 

State in section 305(a)(2)(C)–(D).71 The 

Act requires distribution to occur via an 

IFF (further defined in § 1321.49) or 

funds distribution plan (further defined 

in § 1321.51). The IFF is required for 

States with multiple PSAs, and a funds 

distribution plan is required for single 

PSA States. Through this provision, we 

also require that funds be promptly 

disbursed using the IFF or funds 

distribution plan and to allow fixed 

amount subawards up to the simplified 

acquisition threshold, as set forth in 45 

CFR 75.353. 

Comment: Some commenters 

requested definitions of the terms 

‘‘promptly disbursed’’ ‘‘fixed amount 

subawards,’’ and ‘‘subaward’’ as used in 

this section. One commenter asked how 


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72 42 U.S.C. 3030a. 

73 42 U.S.C. 3021(d)(1). 

74 42 U.S.C. 3023(c). 

75 Id. section 3023(d)(1)(A). 

76 Id. section 3023(d)(1)(D). 

77 Id. section 3023(d)(2). 

78 42 U.S.C. 3029(b). 

79 42 U.S.C. 3030c–3(b)(5). 

80 42 U.S.C. 3030s–1(h)(2). 81 42 U.S.C. 3030c–2(b)(3). 

State agencies will be monitored for 

compliance. 

Response: The requirement that funds 

be promptly disbursed can be found in 

section 311(d)(4) of the Act, and ACL 

declines to provide a definition for this 

term.72 State agencies should define this 

term in their policies and procedures. 

Such definitions should include a 

reasonable time frame and should take 

into account State fiscal policy (which 

can vary from one State to another). For 

a definition of ‘‘subaward’’ see 2 CFR 

200.1 and 45 CFR 75.2, and for an 

explanation of ‘‘fixed amount 

subaward’’ see 2 CFR 200.333 and 45 

CFR 75.353. State agencies should have 

systems in place to monitor their 

compliance with the requirements of the 

Act, which ACL will regularly review as 

part of State plan review, in addition to 

ACL’s other fiscal and program 

monitoring activities. 

In the course of reviewing 

§ 1321.9(c)(2)(i) in response to 

comments received, ACL has 

determined that the language in this 

section should be clarified. Accordingly, 

ACL has revised the regulatory text of 

§ 1321.9(c)(2)(i). In addition, ACL has 

moved the language regarding fixed 

amount subawards from this section to 

a new § 1321.9(c)(2)(xix) and has 

simplified the language used in this 

provision. For a definition of 

‘‘simplified acquisition threshold’’ see 2 

CFR 200.1 and 45 CFR 75.2. ACL will 

provide technical assistance, as needed, 

regarding § 1321.9(c)(2)(xix). 

Comment: ACL received several other 

suggestions, recommendations, and 

implementation questions regarding the 

IFF. 

Response: We intend to address any 

additional issues related to the IFF 

through technical assistance. 

§ 1321.9(c)(2)(ii) Non-Federal Share 

(Match) 

The provision contained in § 1321.47 

(Statewide non-Federal share 

requirements) of the existing regulation 

is redesignated here as § 1321.9(c)(2)(ii) 

and revised. The Act includes 

requirements for non-Federal share 

(match) funds from State or local 

sources, as set forth in sections 

301(d)(1),73 304(c),74 304(d)(1)(A),75

304(d)(1)(D),76 304(d)(2),77 309(b),78

316(b)(5),79 and 373(h)(2).80 We 

consolidate and streamline the 

requirements by listing the requirements 

and considerations that apply to such 

funds. We have received frequent 

technical assistance requests concerning 

the allowability of using funding for 

services that are means tested for match. 

We clarify that State or local public 

resources used to fund a program which 

uses a means test shall not be used to 

meet match requirements. We also 

clarify that a State agency or AAA may 

determine match in excess of required 

amounts, and we clarify match 

requirements that apply to service and 

administration costs for each type of 

grant award under Title III of the Act. 

We also provide prior written approval 

for unrecovered indirect costs to be used 

as match. 

Comment: One commenter suggested 

that ACL encourage State agencies to 

allow the use of unrecovered facilities 

and administrative or indirect costs as 

match for administration. 

Response: ACL appreciates this 

comment and notes that the rule 

authorizes unrecovered indirect costs to 

be used as match (see 

§ 1321.9(c)(2)(ii)(J)(1)). ACL encourages 

State agencies to consider this approach, 

subject to State agency policies and 

procedures. ACL will provide technical 

assistance, as requested. 

Comment: We received multiple 

comments supporting the use of means 

tested funds to count toward the 

required match. In addition, many 

commenters requested clarification on, 

or objected to, § 1321.9(c)(2)(ii)(C), 

which provides that ‘‘State or local 

public resources used to fund a program 

which uses a means test shall not be 

used to meet the match.’’ 

Response: The prohibition against 

using State or local public resources 

which use a means test to count toward 

match is due to the prohibition against 

means testing in the OAA under section 

315(b)(3).81 Match for the federal grant 

is the non-federal share of the total 

project costs that a grantee is required 

to contribute to achieve the purposes of 

the award and allowability of costs must 

conform to any limitations or exclusions 

set forth in the Federal award, 2 CFR 

200.403(b) and 45 CFR 75.403(b). 

Therefore, match must meet the same 

requirements that apply to allowed costs 

under the Act, and the Act prohibits 

means testing. Accordingly, we 

maintain the regulatory language of 

§ 1321.9(c)(2)(ii)(C) as proposed. ACL 

will further address this requirement 

through technical assistance, as needed. 

Comment: A commenter asked for 

clarification regarding the difference 

between means testing and prioritizing 

services for individuals of ‘‘greatest 

economic need.’’ 

Response: Means testing is a criterion 

used to determine an individual’s 

financial eligibility for a program. If an 

individual’s resources exceed the 

determined limit for a program, the 

individual is ineligible for a program— 

that individual cannot participate in the 

program even if the program has 

sufficient resources to be able to serve 

them. On the other hand, the use of 

‘‘greatest economic need’’ is a way to 

prioritize services for those who are 

most in need of the service; it does not 

deem those of lesser economic need to 

be ineligible for the program. 

Comment: Some commenters 

expressed concern that a State agency or 

AAA may determine a match in excess 

of amounts required under the Act. 

Response: The Act does not prohibit 

a State agency or AAA from requiring a 

match in excess of amounts required 

under the Act, and ACL leaves these 

decisions to State agencies and AAAs to 

determine in accordance with State 

agency and AAA policies and 

procedures. ACL encourages State 

agencies to make requirements clear in 

terms and conditions of subaward 

agreements. 

Comment: Some commenters 

requested that the match requirements 

be reduced. 

Response: The match requirements 

are set by the Act, and ACL has no 

authority to reduce them. 

Comment: Some commenters 

requested clarification regarding 

§ 1321.9(c)(2)(ii)(I), which provides that 

other Federal funds may not be used as 

match for programs funded under Title 

III of the Act unless there is specific 

statutory authority. 

Response: The Act does not provide 

statutory authority for other Federal 

programs to meet match requirements. 

ACL will provide additional guidance 

through technical assistance, as needed. 

§ 1321.9(c)(2)(iii) Transfers 

The provision contained in § 1321.45 

of the existing regulation (Transfer 

between congregate and home-delivered 

nutrition service allotments) is 

redesignated here as § 1321.9(c)(2)(iii) 

and revised. The Act allows for transfer 

of service allotments to provide some 

flexibility to meet State and local needs. 

ACL allocates Title III funding to State 

agencies by parts of the Act (for 

example, the supportive services 

allocation is designated as part B and 

the nutrition services allocation is 

designated as part C, and further by 

subpart (for example, part C–1 funding 

is for congregate meals and part C–2 


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82 42 U.S.C. 3028(b). 

83 Id. section 3028. 84 42 U.S.C. 3024(d)(1)(A). 85 42 U.S.C. 3027(a)(2)(C). 

funding is for home-delivered meals)). 

We list the requirements and 

considerations that apply if a State 

agency elects to make transfers between 

allotments, including the parts and 

subparts of Title III which are subject to 

transfer of allocations, the maximum 

percentage of an allocation which may 

be transferred between parts and 

subparts, and a confirmation that such 

limitations apply in aggregate to the 

State agency. For example, a State may 

find that older individuals have a need 

for transportation to congregate meal 

sites. A State agency is able to transfer, 

within allowed limits, allotments from 

the congregate meal nutrition grant 

award (part C–1) to the supportive 

services grant award (part B) to provide 

transportation to meet State and local 

service needs. 

Comment: ACL received several 

comments on this section, which 

addresses transfers between Title III, 

parts C–1 and C–2 and between Title III, 

parts B and C. The comments on this 

section were mixed. Some expressed 

support for the provision, while other 

commenters expressed that the transfer 

limitations are unnecessarily 

burdensome, and that AAAs should be 

able to make transfers as they see fit and 

without State agency approval. 

Response: ACL does not have the 

authority to modify this requirement. 

Section 308(b) of the Act does not allow 

the State agency to delegate authority to 

make a transfer to a AAA or any other 

entity.82 However, section 308 of the 

Act requires the State agency, in 

consultation with AAAs, to ensure that 

the process used by the State agency in 

transferring funds between Title III, 

parts C–1 and C–2 and between Title III, 

parts B and C is simplified and clarified 

to reduce administrative barriers. We 

have also clarified that for transfers 

between parts C–1 and C–2, State 

agencies must direct limited resources 

to the greatest nutrition service needs at 

the community level. We have added 

these requirements to § 1321.9(c)(2)(iii). 

Given the volume of comments on this 

issue, ACL will further address these 

requirements through technical 

assistance, as needed. 

§ 1321.9(c)(2)(iv) State, Territory, and 

Area Plan Administration 

Section 308 of the Act sets limits on 

the amount of Title III funds which may 

be used for State, Territory, and area 

plan administration.83 In this provision, 

we specify the requirements and 

considerations that apply, including 

flexibilities that some State agencies of 

single planning and service States may 

exercise and how the State agency may 

calculate the maximum amounts 

available for AAAs to use. We receive 

regular requests for technical assistance 

about the use of funds for plan 

administration. This provision is 

intended to provide clarity to State 

agencies. For example, State agencies 

may either receive five percent of their 

funding allocation or $750,000 

($100,000 for certain Territories) of their 

total Title III allocation as set forth in 

the Act to complete the State plan 

administration activities required by the 

Act. Plan administration activities 

include planning, coordination, and 

oversight of direct services provided 

with the remainder of the Title III 

allocation. The State, Territory, and area 

plan administration allocation amounts 

may be taken from any same fiscal year 

Title III award allocation at any time 

during the grant period and may be 

allocated to any part of the same fiscal 

year Title III grant allocation, with the 

statutory exception of allocation of area 

plan administration to part D (which 

provides funding for evidence-based 

disease prevention and health 

promotion programs). In States with 

multiple PSAs, we clarify section 

304(d)(1)(A) of the Act and better 

streamline implementation of maximum 

allocation amounts.84 We specify that 

the maximum amount the State agency 

may make available for area plan 

administration is ten percent of the total 

amount of funding allocated to AAAs. 

This funding may be made available to 

AAAs in accordance with the IFF for the 

purpose of area plan administration, 

which we further address in 

§ 1321.57(b). 

Comment: We received comment 

asking ACL to limit the amount of area 

plan administration funds that may be 

spent on the development of private pay 

or other contracts and commercial 

relationships. 

Response: Funds for area plan 

administration are limited to ten percent 

of the total funding allocated to AAAs. 

AAAs must complete the area plan 

activities required under the Act and as 

set forth by State agency policies and 

procedures; development of private pay 

programs or other contracts and 

commercial relationships is allowable, 

but not required. Given the levels of 

funding for Title III programs under the 

Act and the responsibility for State 

agencies to set policies and procedures, 

ACL does not believe further limitation 

is needed. 

Comment: One commenter expressed 

that too much OAA funding is allocable 

to State and area plan administration 

and requested that the administration of 

OAA programs be streamlined, while 

another expressed that amounts 

available for area plan administration 

should be increased, noting that area 

plan administration costs exceed the 

maximum that can be made available 

under the Act. 

Response: The maximum amounts for 

State and area plan administration are 

specified in the Act, and ACL does not 

have the authority to modify such 

amounts. Accordingly, ACL maintains 

the regulatory language for this 

provision as proposed. 

§ 1321.9(c)(2)(v) Minimum Adequate 

Proportion 

The Act sets forth requirements that 

the State plan must identify a minimum 

proportion of funds that will be spent 

on access services, in-home supportive 

services, and legal assistance. Our final 

rule requires the State agency to have 

policies and procedures to implement 

these requirements. 

Comment: A commenter expressed 

concern about the impact of 

§ 1321.9(c)(2)(v) in States that may lack 

continuity of leadership in their State 

agencies. The commenter also expressed 

concern that minimum expenditure 

requirements set by State agencies could 

impact the area agency and service 

provider network, given limited 

availability of OAA funds. Another 

commenter expressed concern that 

decisions on minimum adequate 

proportion amounts that will be 

expended on access services, in-home 

supportive services, and legal assistance 

will take away from current service 

levels in other areas without more 

funding being made available. 

Response: ACL appreciates these 

concerns but declines to make any 

modifications to this section. Section 

307(a)(2)(C) of the Act requires each 

State plan to specify a minimum 

proportion of Title III, part B funds that 

will be used by area agencies to provide 

access services, in-home supportive 

services, and legal assistance.85

Accordingly, ACL does not have the 

authority to modify this requirement. 

Finally, the minimum expenditure 

requirements in this section are not new 

requirements; State and area agencies 

are already subject to these 

requirements. 

Comment: A commenter suggested 

that ACL modify § 1321.9(c)(2)(v) to 

require each State plan to specify a 

minimum proportion of funds that will 

be used by area agencies to provide 

caregiver support services, in addition 


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86 42 U.S.C. 3029. 

87 42 U.S.C. 3030s–2. 

88 42 U.S.C. 3029. 

89 42 U.S.C. 3027(a)(9). 

90 Id. 

91 42 U.S.C. 3027(a)(3)(B). 

92 Id. 

to access services, in-home supportive 

services, and legal assistance. 

Response: ACL declines to make the 

requested change. The Act does not 

require that Title III, part B funds be 

used to provide caregiver support 

services, and ACL declines to impose 

such a requirement on State agencies. 

Title III, part E funds are specified to 

provide family caregiver support 

services. ACL leaves the decision to the 

State agencies as to whether to use Title 

III, part B funds for caregiver services in 

accordance with the Act, in order to 

afford flexibility to the State agencies as 

to how to allocate Title III, part B 

funding. 

§ 1321.9(c)(2)(vi) Maintenance of Effort 

The provision contained in § 1321.49 

(State agency maintenance of effort) of 

the existing regulation is redesignated 

here as § 1321.9(c)(2)(vi) and revised. 

The final rule requires State agencies to 

develop fiscal policies and procedures 

related to requirements under the Act, 

corresponding to sections 309(c) 86 and 

374.87 These requirements include 

expending specific minimum 

maintenance of effort amounts, which 

are calculated as required by the Act. In 

response to technical assistance 

requests, we also clarify that excess 

amounts reported in other reports, such 

as the Federal financial report (SF–425), 

do not become part of the amounts used 

in calculating the minimum required 

maintenance of effort expenditures, 

unless the State agency specifically 

certifies the excess amounts for such 

purpose. 

Comment: Two commenters 

recommended that § 1321.9(c)(2)(vi) be 

amended to allow for one-time 

appropriations of State funding to be 

excluded from the Act’s maintenance of 

effort requirement for Title III. 

Response: ACL understands these 

concerns. ACL is unable to 

accommodate this suggestion, however, 

as this requirement is based on the 

language in section 309(c) of the Act, 

which provides that ‘‘[a] State’s 

allotment under section 304 [of the Act] 

for a fiscal year shall be reduced by the 

percentage (if any) by which its 

expenditures for such year from State 

sources under its State plan approved 

under section 307 [of the Act] are less 

than its average annual expenditures 

from such sources for the period of 3 

fiscal years preceding such year.’’ 88

Comment: A commenter 

recommended that § 1321.9(c)(2)(vi)(C) 

be removed. This paragraph provides 

that any amount of State resources 

included in the Title III maintenance of 

effort certification that exceeds the 

minimum amount required becomes 

part of the permanent maintenance of 

effort. The commenter expressed that 

this requirement may disincentivize 

States from providing more than the 

minimum amount of funds. 

Response: ACL appreciates the 

comment but declines to remove this 

paragraph, in order to provide 

maximum flexibility to the State 

agencies. Contrary to the commenter’s 

note, a State agency may have reason to 

employ this provision to increase the 

required maintenance of effort. In 

addition, as set forth in 

§ 1321.9(c)(2)(vi)(D), excess State match 

reported on the Federal financial report 

does not become part of the 

maintenance of effort unless the State 

agency certifies the excess. 

§ 1321.9(c)(2)(vii) State Long-Term Care 

Ombudsman Program 

This final rule requires State agencies 

to develop fiscal policies and 

procedures related to requirements 

under the Act, corresponding to section 

307(a)(9).89 These requirements include 

that the State agency will expend no 

less than the minimum amounts that are 

required to be expended by section 

307(a)(9) of the Act. We also clarify that 

the State agency must provide the 

Ombudsman with information to 

complete Ombudsman program 

requirements and that the fiscal 

activities relating to the operation of the 

Office comply with the requirements set 

forth in § 1324.13(f). 

Comment: Two commenters 

expressed support for this provision. 

Currently, the Act sets the required 

minimum expenditure amount at the 

amount expended by the State agency 

during fiscal year 2019 for the 

Ombudsman program under Titles III 

and VII of the Act,90 and subsection (A) 

of § 1321.9(c)(2)(vii), which addresses 

the minimum expenditure amount, 

likewise refers specifically to fiscal year 

2019. Several commenters 

recommended not including a specific 

fiscal year in § 1321.9(c)(2)(vii)(A), as 

such fiscal year may be modified as a 

result of future reauthorizations of the 

Act and recommends instead using 

language in § 1321.9(c)(2)(vii)(A) that 

avoids mentioning a specific fiscal year. 

Response: ACL appreciates the 

support expressed for § 1321.9(c)(2)(vii). 

We agree with the suggestion to remove 

the reference to fiscal year 2019 and 

have revised subsection (A) accordingly. 

Comment: A commenter expressed 

concern that the language in 

§ 1321.9(c)(2)(vii)(A), which sets forth 

the minimum amount State agencies 

must expend for the Ombudsman 

program, is unclear. 

Response: ACL will address any 

questions regarding minimum 

expenditures for the Ombudsman 

program through technical assistance, as 

needed. 

§ 1321.9(c)(2)(viii)—Rural Minimum 

Expenditures 

The final rule requires State agencies 

to develop fiscal policies and 

procedures related to requirements 

under the Act, corresponding to section 

307(a)(3)(B).91 These requirements 

include that the State agency must: 

expend not less than the amount 

expended in accordance with the level 

set in the Act for services for older 

individuals residing in rural areas, 

project the cost of providing such 

services, and specify a plan for meeting 

the needs for such services. To 

implement these requirements, we set 

forth that the State agency establish a 

process and control for determining 

how rural areas within the State shall be 

defined. 

Comment: A few commenters 

expressed support for 

§ 1321.9(c)(2)(viii). Many commenters 

sought more clarity about the 

requirements in § 1321.9(c)(viii). One 

commenter shared the concern that 

State agencies will lack the necessary 

information to project the cost of 

providing services to rural areas. 

Response: ACL appreciates the 

support of this provision. ACL 

appreciates these comments but 

declines to provide further direction in 

this final rule to State agencies as to 

how to comply with these requirements 

(which can be found in section 

307(a)(3)(B) of the Act).92 State agencies 

are best positioned to make these 

determinations. 

The term ‘‘rural’’ appears many times 

in the Act with respect to the delivery 

and prioritization of services. In 

addition, State agencies may use the IFF 

to direct Title III funding to rural areas. 

There is no one universally accepted or 

mandated definition of what constitutes 

a ‘‘rural area.’’ Over the years, State 

agencies have determined what areas in 

their States are rural, and the factors 

that State agencies have used to make 

this determination can vary. In 

recognition of this variation in how 

State agencies determine what areas in 

their State are rural, the Act does not 


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93Specifically, OAAPS uses Categorization C of 

the Rural-Urban Commuting Area (RUCA) codes to 

determine geographic distribution between rural 

and non-rural. See The Rural Health Research Ctr., 

http://depts.washington.edu/uwruca/ruca-uses.php 

(last visited Oct. 25, 2023). For additional 

information and background on the zip code-based 

RUCA, see also Rural-Urban Commuting Area, The 

U.S. Dep’t. of Agric., Econ. Research Serv., https:// 

www.ers.usda.gov/data-products/rural-urbancommuting-area-codes/documentation/ (last visited 

Oct. 25, 2023). 

94 42 U.S.C. 3027(a)(3)(B). 

95 Id. 

96 Id. section 3027(a)(3). 

97 42 U.S.C. 3025(a)(2)(C–D). 

mandate a definition of rural areas, and 

ACL declines to limit the flexibility 

afforded to the State agencies by the 

Act. 

Likewise, State agencies are better 

positioned than ACL to project the cost 

of providing services and to develop a 

plan for meeting the needs for services 

in the rural areas of their respective 

States. We note that State agencies 

provide these projections in their 

current State plans on aging, as this is 

an existing requirement. For clarity, we 

have revised the final rule to specify 

that the minimum amount as set forth 

in the Act must be maintained. ACL will 

provide technical assistance with 

respect to this requirement, as needed. 

Comment: Two commenters raised 

questions about the relationship 

between the requirement in 

§ 1321.9(c)(2)(viii) that State agencies 

develop a process for determining how 

‘‘rural areas’’ are defined and the Older 

Americans Act Performance System 

(OAAPS) definition of ‘‘rural’’ for 

reporting purposes. Another commenter 

raised a concern that this requirement 

conflicts with the OAAPS definition of 

‘‘rural.’’ 

Response: ACL appreciates these 

questions and concerns and 

acknowledges the potential for 

confusion due to the requirement of 

§ 1321.9(c)(2)(viii) related to defining 

‘‘rural areas’’ and the separate 

requirement to submit annual 

performance report data on ‘‘rural’’ 

program participants. OAAPS is the 

reporting tool that State agencies and, in 

some cases area agencies, use to submit 

their annual performance report data on 

program participants, services, and 

expenditures related to the Act. OAAPS 

uses rural-urban commuting area 

(RUCA) codes defined at the ZIP code 

level to determine whether an 

individual program participant resides 

in a rural or non-rural area.93 With 

respect to those clients for whom 

demographic data must be reported into 

OAAPS, all State agencies must use this 

definition and tool to report on ‘‘rural’’ 

program participants. State agencies are 

not required to use this definition of 

‘‘rural’’ for any other purpose. 

Section 1321.9(c)(2)(viii) of the final 

rule, by contrast, relates to the State 

agency’s projections, plans, and 

expenditures pertaining to its 

implementation and administration of 

programs and services under the Act. 

The definition of ‘‘rural areas’’ referred 

to in this section may be separate and 

distinct from the definition of ‘‘rural 

areas’’ that is required to be used for 

annual program reporting on individual 

program participants. 

Comment: A commenter expressed 

concern that the language of 

§ 1321.9(c)(2)(viii)(B), which requires 

State agencies to expend annually on 

services for older individuals residing in 

rural areas no less than the amount 

expended for such services as set forth 

in the Act, may cause State agencies to 

believe they are not allowed to spend on 

such services more than the required 

minimum expenditure. 

Response: ACL appreciates this 

comment but disagrees with this 

interpretation of the section (the 

language of which is the same as that 

found in section 307(a)(3)(B) of the 

Act).94 The language provides the 

minimum amount that State agencies 

must spend; it does not impose a 

maximum amount that State agencies 

may spend on services for older adults 

residing in rural areas. 

Comment: With respect to the 

requirement in § 1321.9(c)(2)(viii)(B) 

that State agencies expend annually on 

services for older individuals residing in 

rural areas no less than the amount 

expended for such services as set forth 

in the Act, a commenter proposed that 

State agencies be required to 

demonstrate how their IFFs meet the 

needs of older adults with greatest 

social need and with greatest economic 

need, in lieu of a policy of requiring 

minimum expenditure levels for one 

category of older adults (i.e., older 

adults residing in rural areas). 

Response: There is a requirement that 

State agencies expend annually on 

services for older individuals residing in 

rural areas no less than the amount as 

set forth in section 307(a)(3)(B) of the 

Act.95 This provision is included to 

further implementation of this statutory 

requirement. ACL requires State 

agencies to include in the IFF a 

descriptive statement and application of 

the State agency’s definitions of greatest 

economic need and greatest social need 

(see § 1321.49); we believe this 

requirement addresses the concern. 

Comment: A few commenters 

expressed concern as to how State 

agencies will be able to comply with the 

rural minimum expenditure amount 

requirement set forth in 

§ 1321.9(c)(2)(viii)(B) when the rule 

allows for various definitions among the 

State agencies. Another commenter 

recommends that ACL add clarifying 

language requiring State agencies to 

address their application of the rural 

minimum expenditure requirement, 

including how this requirement relates 

to each State agency’s IFF. 

Response: ACL appreciates the above 

comments related to rural minimum 

expenditure requirements set forth 

§ 1321.9(c)(2)(viii)(B) but maintains the 

regulatory language as proposed. 

Regarding potential varying definitions 

of what constitutes rural areas, each 

State agency only compares what it will 

spend for each fiscal year against what 

was spent in that State as set forth in the 

Act. The definitions applied in other 

States will be irrelevant to this 

calculation. In addition, § 1321.9 

(c)(2)(viii)(A) requires the State agency 

to establish a process and control for 

determining the definition of rural areas 

within their State in part so that the 

State agency will be able to comply with 

the rural minimum expenditure 

requirement. 

Regarding the recommendation that 

State agencies be required to address 

their application of the rural minimum 

expenditure requirement, section 

307(a)(3) of the Act requires State 

agencies to provide assurances in their 

State plans with respect to their 

compliance with the rural minimum 

expenditure.96 ACL declines to impose 

additional requirements. 

Comment: Two commenters noted 

that without additional funding, the 

requirements of § 1321.9(c)(2)(viii) may 

result in decreased services to 

metropolitan areas with a higher 

proportion of older adults. 

Response: The commenters’ concerns 

relate to the distribution of Title III 

funds throughout the State, which is 

addressed elsewhere in the rule. Section 

305(a)(2)(C) through (D) of the Act 97

requires distribution of Title III funds to 

occur via an IFF (further defined in 

§ 1321.49) or funds distribution plan 

(further defined in § 1321.51). The IFF 

is required for States with multiple 

PSAs, and a funds distribution plan is 

required for single PSA States. Sections 

1321.49 and 1321.51 require State 

agencies to develop the IFF or funds 

distribution plan, through a process that 

allows for input from area agencies, 

interested parties, and the public; the 

concerns raised by the commenters can 

be addressed during this public input 

process. 


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98Supra note 93. 

99 42 U.S.C. 3024(b). 

100 42 U.S.C. 3058b(b). 

101 42 U.S.C. 3030c–2(b). 

102 Id. section 3030c–2(a). 

103 42 U.S.C. 3030c–2. 

104 Id. section 3030c–2(a)(2). 

105 Id. section 3030c–2(a)(5)(E). 

106 Id. section 3030c–2(b)(3). 

Comment: A commenter expressed 

concern that the OAAPS definition of 

rural is an inaccurate reflection of rural 

areas and could negatively impact area 

agencies. Another commenter expressed 

concerns as to U.S. Census data used in 

the OAAPS definition of rural.98

Response: States are not required to 

use the OAAPS definition of rural in 

their IFFs; accordingly, the commenter’s 

concern that the OAAPS definition 

could negatively impact area agencies is 

misplaced. The comments regarding the 

inaccuracy of, and the data used in, the 

OAAPS definition of rural are outside of 

the scope of the rule, which does not 

address the OAAPS reporting system. 

ACL is available to provide technical 

assistance regarding defining and 

serving rural areas. 

§ 1321.9(c)(2)(ix) Reallotment 

Our final rule requires State agencies 

to develop fiscal policies and 

procedures related to a State agency’s 

voluntary release of funds (reallotment), 

corresponding with sections 304(b) 99

and 703(b) 100 of the Act. These policies 

and procedures include that the State 

agency must communicate annually to 

ACL if the State agency has funding that 

will not be expended in the grant period 

to be voluntarily reallotted to the 

Assistant Secretary for Aging that will 

then be redistributed to other State 

agencies who identify as being able to 

utilize funds within the grant period. 

Additionally, the State agency should 

communicate annually to ACL whether 

they are able to receive and expend 

within the grant period any reallotted 

funds that may become available from 

the Assistant Secretary for Aging. We 

also clarify that the State agency must 

distribute any such reallotted funds it 

receives in accordance with the IFF or 

funds distribution plan, as set forth in 

§ 1321.49 or § 1321.51. 

§ 1321.9(c)(2)(x) Voluntary 

Contributions; § 1321.9(c)(2)(xi) Cost 

Sharing 

The provision contained in § 1321.67 

of the existing regulation (Service 

contributions) is redesignated here as 

§ 1321.9(c)(2)(x) (Voluntary 

contributions) and revised, and we add 

§ 1321.9(c)(2)(xi) (Cost sharing) to 

delineate between the two types of 

consumer contributions. Section 315 of 

the Act allows for consumer 

contributions which may take the form 

of (1) an individual voluntarily 

contributing toward the cost of a service 

(a voluntary contribution) 101 and (2) the 

State agency establishing a cost sharing 

policy, creating a structured system for 

collecting sliding scale payments from 

some service participants for some 

services (cost sharing).102 For many 

decades, State and area agencies and 

service providers have collected 

voluntary contributions from 

participants receiving services under the 

Act. Such voluntary contributions allow 

service participants to demonstrate their 

support of these services and for 

expansion of services to others in the 

community. For example, in FY 2021 

State agencies reported nearly $166 

million in program income for Title IIIfunded services to ACL, a significant 

amount we estimate was in the form of 

voluntary contributions. 

Cost sharing provisions were added in 

the 2000 amendments to the OAA (Pub. 

L. 106–501). Because the Act includes 

many restrictions regarding cost sharing, 

in practice ACL has seen cost sharing 

implemented for a few limited services 

such as transportation and respite. For 

example, a State agency may wish to 

pursue cost sharing under the Act as a 

way of more consistently soliciting 

contributions or for administrative 

simplicity to align with services 

provided under other funding sources 

that use a cost sharing model. Many 

State agencies choose not to pursue cost 

sharing as they find no benefit in 

comparison to the traditional model of 

collecting voluntary contributions. 

We discuss these two provisions 

together because ACL has received 

many questions about how voluntary 

contributions and cost sharing compare. 

We discuss voluntary contributions first 

because, as explained above, State 

agencies have a long history of 

requesting voluntary contributions and 

are less likely to pursue cost sharing 

arrangements. 

We specify in § 1321.9(c)(2)(x) that 

the Act states that voluntary 

contributions are allowed and may be 

solicited for all services, as long as the 

method of solicitation is noncoercive.103 In contrast, we also list the 

services for which the Act prohibits cost 

sharing, which include information and 

assistance, outreach, benefits 

counseling, and case management 

services; long-term care ombudsman, 

elder abuse prevention, legal assistance, 

and other consumer protection services; 

congregate or home-delivered meals; 

and any services delivered through 

Tribal organizations.104

In § 1321.9(c)(2)(xi) we list applicable 

requirements to include how suggested 

contribution levels for cost sharing are 

established, which individuals are 

encouraged to contribute, the manner of 

solicitation of contributions, a 

prohibition on means testing, provisions 

that apply to all service recipients, a 

prohibition on denial of services, 

procedures that are to be established, 

that amounts collected are considered to 

be program income, and further 

provisions that apply to cost sharing. 

Both § 1321.9(c)(2)(x) and 

§ 1321.9(c)(2)(xi) are intended to clarify 

that services may not be denied, even 

when a State agency has a cost sharing 

policy and or a voluntary contribution 

policy, if someone cannot or chooses 

not to contribute or to pay a suggested 

cost sharing amount. In other words, 

any State agency cost sharing and 

consumer contribution policies must 

not be required for OAA program 

participants, and State agencies must 

ensure that program participants are 

aware that they are not required to 

contribute, and services will not be 

impacted if they choose not to 

contribute. We also clarify that State 

agencies, AAAs, and service providers 

are prohibited from using means testing 

to determine eligibility for or to deny 

services to older people and family 

caregivers, as set forth in section 

315(a)(5)(E) 105 and (b)(3),106 and we 

confirm that both voluntary 

contribution and cost sharing 

solicitation amounts are to be based on 

the actual cost of services. 

In specifying differences between 

voluntary contributions and cost 

sharing, voluntary contributions are 

encouraged for individuals whose selfdeclared income is at or above 185 

percent of the FPL, while the Act further 

restricts the implementation of cost 

sharing and does not allow it to be 

imposed on service participants who are 

at or below the FPL or are otherwise 

low-income as specified by the State 

agency. Cost sharing is also prohibited 

for services delivered through Tribal 

organizations. 

Additionally, if a State agency 

chooses to establish a cost sharing 

policy, it must be implemented 

statewide at all AAAs in the State, with 

limited exceptions, where a State 

agency approves a waiver request from 

a AAA where the AAA demonstrates 

that a significant proportion of persons 

receiving services under the Act have 

incomes below a certain threshold or 

that applying the cost sharing policy 

would place an unreasonable burden 


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107 Id. section 3030c–2(a)(6). 108Registered services are certain services for 

which demographic and other information are 

collected from each client and reported into OAAPS 

(such as home-delivered meals), while nonregistered services are those for which no client 

demographic information is required to be reported 

in OAAPS (such as public information sessions). 109 42 U.S.C. 3030c–2. 110 Id. section 3030c–2. 

111 Id. section 3030c–2(a). 

112 Id. 

upon the AAA, as set forth in section 

315(a)(6).107

§ 1321.9(c)(2)(x) Voluntary 

Contributions 

Comment: A few commenters 

expressed support for § 1321.9(c)(2)(x) 

and § 1321.9(c)(2)(xi), which detail 

requirements related to voluntary 

contributions and cost sharing, 

respectively, and expressed 

appreciation for the distinctions made 

between the two concepts. 

Response: ACL appreciates the 

support for these provisions. 

Comment: A few commenters 

recommended removal of the 

requirement in § 1329.9(c)(2)(x)(B) that 

voluntary contributions be encouraged 

for individuals whose self-declared 

income is at or above 185 percent of the 

FPL. One commenter requested clarity 

as to whether this requirement applies 

to both registered and non-registered 

services, as defined in OAAPS.108 The 

commenter also suggested that an 

exception be added to this provision for 

non-registered services under OAAPS 

where self-reported income is not 

collected as part of service delivery. 

Another commenter recommended that 

the voluntary donation policy be 

eliminated for Title III, part C meal 

programs and replaced with an incomebased charge for meals. 

Response: ACL appreciates these 

comments but does not have the 

authority to modify this requirement 

because it is mandated by section 315 of 

the Older Americans Act.109 However, 

§ 1329.9(c)(2)(x)(B) does not require an 

agency to obtain the income levels of all 

clients to determine whether the clients 

should be encouraged to voluntarily 

donate; rather, the provision merely 

requires that voluntary contributions be 

encouraged for individuals whose selfdeclared income is at or above 185 

percent of the FPL. 

Comment: ACL received a few 

comments objecting to allowing 

Ombudsman programs to seek voluntary 

contributions, noting a concern that it 

could be a barrier to residents accessing 

ombudsman services. 

Response: The language of the rule is 

permissive, and we defer to 

Ombudsman programs to make 

determinations about voluntary 

contributions. We decline to make 

further revisions to this provision. 

§ 1321.9(c)(2)(xi) Cost Sharing 

Comment: ACL received many 

comments regarding this section. There 

was disagreement among the 

commenters about this section. Some 

commenters expressed that the section 

helped to clarify the requirements of the 

Act. Most commenters, however, had 

issues with the concept of cost sharing 

as set forth in the provision (some felt 

the concept should be eliminated) or 

had issues with the process as set forth 

in the provision (many felt decisions as 

to cost sharing should be made at the 

area agency level). 

Response: ACL appreciates these 

comments but declines to make the 

commenters’ requested changes to this 

section. The requirements in 

§ 1329.9(c)(2)(xi) is mandated by section 

315 of the Act.110

Comment: Some commenters 

expressed confusion regarding the 

distinctions between voluntary 

contributions and cost sharing, and one 

commenter’s understanding was that 

cost sharing is not voluntary. 

Response: For many decades, State 

and area agencies and service providers 

have collected voluntary contributions 

from participants receiving services 

under the Act. Cost-sharing provisions 

were added in the 2000 amendments to 

the Act (Pub. L. 106–501). Because the 

Act includes many restrictions and 

requirements regarding cost sharing, in 

practice ACL has only seen cost sharing 

implemented for a few limited services, 

such as transportation and respite. 

Many State agencies choose not to 

pursue cost sharing as they find limited 

or no benefit in comparison to the 

traditional model of collecting voluntary 

contributions. We clarify in 

§ 1321.9(c)(2)(x) that voluntary 

contributions are allowed and may be 

solicited for all services, as long as the 

method of solicitation is noncoercive. In 

contrast, we also list the services for 

which the Act prohibits cost sharing. 

In § 1321.9(c)(2)(xi) we list applicable 

requirements to include how suggested 

contribution levels for cost sharing are 

established, which individuals are 

encouraged to contribute, the manner of 

solicitation of contributions, a 

prohibition on means testing, provisions 

that apply to all service recipients, a 

prohibition on denial of services, 

procedures that are to be established, 

that amounts collected are considered to 

be program income, and further 

provisions that apply to cost sharing. 

Both § 1321.9(c)(2)(x) and (xi) are 

intended to clarify that services may not 

be denied, even when a State agency has 

a cost-sharing policy and a voluntary 

contribution policy, if someone cannot 

or chooses not to contribute or to pay a 

suggested cost-sharing amount. In other 

words, all State agency cost sharing and 

consumer contribution policies must be 

voluntary for OAA program 

participants, and State agencies must 

ensure that program participants are 

aware that they are not required to 

contribute. 

ACL will offer technical assistance to 

any State agencies that request 

assistance in implementing voluntary 

contributions and cost sharing. 

Comment: One commenter expressed 

concern regarding the applicability of 

cost sharing to Tribal organizations and 

requested that Tribal organizations be 

allowed to request a waiver from such 

requirements. 

Response: ACL appreciates the 

comment but believes the commenter’s 

concerns are adequately addressed in 

the rule. Section 315(a) of the Act 111

and § 1321.9(c)(2)(xi)(D)(3)(iv) expressly 

prohibit cost sharing for any services 

delivered through Tribal organizations. 

Comment: One commenter requested 

that AAAs be allowed to implement cost 

sharing for Title III, part C nutrition 

programs (congregate and homedelivered meals). The commenter also 

expressed concern that some clients 

with the financial means to voluntarily 

contribute to the cost of the meals do 

not do so, which can impact a AAA’s 

ability to provide services to those at 

greatest social need and greatest 

economic need. 

Response: Section 315(a) of the Act 112

expressly prohibits cost sharing for 

congregate and home-delivered meals. 

Even if cost sharing were permitted for 

these services, an area agency would not 

be permitted to deny the service to any 

client who is unwilling to contribute, as 

discussed above. Section 1321.9(c)(2)(x) 

requires that voluntary contributions be 

encouraged for clients whose selfreported income is at or above 185 

percent of the FPL. In addition, serving 

clients with the ‘‘greatest social need’’ 

could include clients of considerable 

financial means. 

§ 1321.9(c)(2)(xii) Use of Program 

Income 

The provision contained in § 1321.73 

of the existing regulation (Grant related 

income under Title III–C) is 

redesignated here as § 1321.9(c)(2)(xii) 

and revised. We clarify the fiscal 

requirements that apply to program 

income, which include voluntary 

contributions and cost-sharing 


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113 Id. section 3030c–2. 

114 42 U.S.C. 3020c. 

115 42 U.S.C. 3026(a)(13)–(14). 

116 42 U.S.C. 3027(a)(26) (2018) as amended by 

Public Law 116–131 (2020). 

117 42 U.S.C. 3020c. 

118 42 U.S.C. 3025(a)(1)(C). 

119 42 U.S.C. 3026(a). 

120 Id. section 3026(b). 

121 42 U.S.C. 3020c(b)(1). 

122 Id. section 3020c. 

123 Id. 

payments. For example, we clarify that 

State agencies are required to report 

contributions as program income and 

set forth restrictions on the use of 

program income. 

Comment: ACL received comments 

requesting clarification of the 

requirement in § 1321.9(c)(2)(xii)(B) that 

‘‘[p]rogram income collected must be 

used to expand the service category by 

part of Title III of the Act, as defined in 

§ 1321.71, for which the income was 

originally collected;’’ as well as 

requesting that § 1321.9(c)(2)(xii) be 

modified to permit area agencies the 

flexibility to allow program income to 

be used to expand any Title III service. 

Response: Section 315 of the Act 113

does not authorize ACL to permit area 

agencies to use program income 

collected under one part of Title III to 

expand a service provided under 

another part of Title III. 

In addition, in the course of reviewing 

these comments, ACL has determined 

that contributions must be used to 

expand a service funded under the Title 

III grant award pursuant to which the 

income originally was collected, and 

that the language of this section was in 

need of revision. Accordingly, 

§ 1321.9(c)(2)(xii)(B) has been revised to 

state that program income collected 

must be used to expand a service 

funded under the Title III grant award 

pursuant to which the income was 

originally collected. 

Thus, a contribution for 

transportation (a supportive service 

under Title III, part B) can only be 

reported as income and used to expand 

Title III, part B supportive services such 

as transportation or multipurpose senior 

centers. Similarly, if someone pays a 

portion of the cost of a Title III, part B 

transportation service under a costsharing arrangement, that portion must 

be reported as income to the Title III, 

part B supportive services program. In 

addition, because Title III, part C–1 

funding for congregate meals and Title 

III, part C–2 funding for home-delivered 

meals are issued under separate grant 

awards, contributions for services under 

these two awards cannot be 

commingled. A contribution for the 

nutrition service of home-delivered 

meals must be reported as income to the 

home-delivered nutrition program and 

used to expand home-delivered 

nutrition services, such as homedelivered meals, or nutrition education 

for home-delivered meals clients; it 

cannot be used to expand congregate 

meals services. 

§ 1321.9(c)(2)(xiii) Private Pay Programs 

AAAs and service providers may, in 

addition to programs supported by 

funding received under the Act, offer 

separate private pay programs for which 

individual consumers agree to pay to 

receive services. These private pay 

programs may offer similar or the same 

services as those funded under Title III. 

We add paragraph (c)(2)(xiii) to this 

provision to provide guidance as to 

policies and procedures that should be 

in place to ensure that private pay 

programs offered by AAAs and service 

providers do not compromise core 

responsibilities under the Act. One such 

core responsibility, for example, is to 

ensure that individuals who receive 

information about private pay programs 

and who are eligible for services 

provided with Title III funds also are 

made aware of Title III-funded services 

and waitlist opportunities for those 

services. 

§ 1321.9(c)(2)(xiv) Contracts and 

Commercial Relationships 

AAAs and service providers may 

receive and administer funding from 

multiple sources as they seek to provide 

comprehensive services to older adults. 

In doing so, they may enter into 

contracts and commercial relationships 

with various entities to accomplish the 

delivery of comprehensive services, as 

authorized in sections 212 114 and 

306(a)(13) and (14) of the Act.115

The Act has always contemplated an 

aging network that plans, coordinates, 

and facilitates comprehensive and 

coordinated systems for supportive, 

nutrition, and other services, leveraging 

resources beyond what the OAA alone 

can support. The aging network has 

growing opportunities to braid different 

sources of government with private 

funding to serve older adults in need, 

which has been accomplished through 

contracts and commercial relationships 

with organizations such as Medicaid 

managed care plans and health systems, 

among others. Congress further 

strengthened this flexibility in the 2020 

reauthorization of the OAA.116

In response to numerous questions 

about the appropriate roles, 

responsibilities, and oversight of such 

activities, feedback received in response 

to the RFI and the NPRM, and based on 

our observations of program activities, 

this final rule clarifies the policies and 

procedures that State agencies must 

establish related to all contracts and 

commercial relationships in subsection 

§ 1321.9(c)(2)(xiv). We intend this rule 

to respond to numerous concerns from 

AAAs regarding inconsistent State 

agency approaches to contracts and 

commercial relationships, as well as 

concerns from State agencies about the 

level of risk and associated oversight 

required. We encourage a review and 

approval process that complies with the 

statutory requirements found in section 

212 117 and throughout Title III but is 

not onerous, can be implemented easily, 

and does not cause undue delay. We 

anticipate providing technical 

assistance in this area to State agencies 

and AAAs. 

As a component of these policies and 

procedures, and consistent with their 

authority under sections 305(a)(1)(C),118

306(a),119 306(b),120 and 212(b)(1),121

State agencies must establish processes 

for AAAs to receive prior approval for 

contracts and commercial relationships 

permitted under section 212 of the 

Act.122 We expect such processes to be 

flexible and streamlined. This provision 

will help ensure that the activities of 

recipients and subrecipients of funding 

further the intended benefits of the Act 

and do not compromise core 

responsibilities or the statutory mission 

of State agencies, AAAs, and service 

providers. Through these requirements, 

we intend to promote and expand the 

ability of the aging network to engage in 

business activities. 

Comment: Several commenters 

recommended that we define 

‘‘commercial relationships.’’ 

Commenters also sought clarity as to 

whether this provision applies to 

contracts or commercial relationships to 

provide services to non-profit entities in 

addition to ‘‘profitmaking’’ entities 

(under section 212 of the Act).123 We 

have received several questions through 

public comments and requests for 

technical assistance seeking to 

understand when a business 

arrangement is or is not a ‘‘commercial 

relationship.’’ 

Response: Typically, an organization 

seeking clarity on this issue either wants 

to or is already engaged in a business 

arrangement and is trying to understand 

whether certain OAA requirements 

apply to that arrangement. Our intent is 

to broadly define ‘‘commercial 

relationships.’’ Whether they are 

contracts, ‘‘business arrangements,’’ 

‘‘agreements,’’ ‘‘business transactions,’’ 


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124 42 U.S.C. 3026; 42 U.S.C. 3027; 42 U.S.C. 

3012. 

125 42 U.S.C. 3020c. 

126 42 U.S.C. 3020c(a). 

127 Id. section 3020c. 

128 42 U.S.C. 3020c. 129 88 FR 39578 (June 16, 2023). 

or any other term that an organization 

might use to describe the activity, it is 

broadly encompassed within the 

statutory term ‘‘contracts or commercial 

relationships.’’ 

The Act only uses the phrase 

‘‘commercial relationship’’ in tandem 

with ‘‘contracts’’ or ‘‘contractual.’’ 124

We have sought to consistently adopt 

the phrase ‘‘contracts and commercial 

relationships’’ throughout the NPRM 

and in this final rule. When we are not 

referring to all ‘‘contracts and 

commercial relationships,’’ we explain 

which subset is relevant. For example, 

the phrase ‘‘contracts and commercial 

relationships that fall under section 212 

of the Act’’ would refer to the 

agreements described in section 212 of 

the Act.125 It is not relevant to 

distinguish between a ‘‘contract’’ and a 

‘‘commercial relationship’’ under 

section 212; the same requirements 

apply, regardless of how an organization 

defines the agreement. 

We appreciate comments seeking a 

clearer definition of ‘‘private pay’’ in the 

final rule. We have revised the 

definitions of ‘‘area plan 

administration,’’ ‘‘private pay 

programs’’ and ‘‘program development 

and coordination activities’’ to use 

‘‘contracts and commercial 

relationships,’’ consistent with our use 

throughout the rest of the rule. 

We also decline to provide a 

regulatory definition of ‘‘profitmaking’’ 

as used in section 212 of the Act, which 

lays out the circumstances under which 

a recipient may enter ‘‘[. . .] an 

agreement with a profitmaking 

organization for the recipient to provide 

services to individuals or entities not 

otherwise receiving services under this 

Act[.]’’ 126 We interpret ‘‘profitmaking’’ 

as referring to entities that are not nonprofits. However, because section 212 

establishes a framework for 

understanding how and when these 

arrangements are consistent with the 

intent of the Act, we think it is 

reasonable for a State agency to apply 

the same opportunities and obligations 

in the context of agreements with nonprofit entities. In other words, if an 

agreement would be permitted under 

section 212 with a for-profit entity, a 

State agency could determine that a 

similar agreement with a non-profit 

entity is permissible so long as the other 

requirements of section 212 are met. We 

encourage State agencies to take this 

approach or otherwise explain why they 

decline to do so in their policies and 

procedures. 

Comment: We received a significant 

number of comments related to 

contracts and commercial relationships, 

generally focusing on approval 

requirements for agreements that fall 

under section 212 of the Act.127 Many 

commenters raised concerns about the 

appropriate degree of State oversight 

and the role of the State agency. 

Commenters had concerns about how 

time-consuming State agency approval 

processes can be, both out of concern for 

the burden and potential cost to State 

agencies and because of the potential 

delay in executing contracts and 

commercial relationships and 

subsequent impact on potential 

partnerships. Several commenters were 

concerned that this provision could 

deter OAA grantees from innovating and 

forming relationships with health and 

social sector commercial entities. 

All commenters that raised this issue 

agreed that oversight of contracts and 

commercial relationships should be 

streamlined and not overly burdensome. 

Several commenters described the 

proposed policies and procedures as an 

expansion of State agency control and 

were concerned that ‘‘excessive 

approval requirements’’ would usurp 

local decision-making. Other 

commenters suggested that ACL limit 

the State agency approval process to a 

generic review of AAA activity, and that 

State agencies should not be authorized 

to review and approve of specific 

contracts or contract details. 

Commenters recommended relying 

solely on assurances in AAA contracts 

that reflect adherence to all key 

principles within the OAA as a 

maximum degree of State oversight. One 

commenter suggested that State agency 

approval should be limited to approval 

of standard language for AAAs to 

incorporate into agreements with thirdparty entities, as appropriate. 

Many comments related to the State 

approval process under section 212 of 

the Act,128 including requests for more 

clarity about how comprehensive the 

process should be. One commenter 

recommended incorporating more 

specific information about the nature of 

State agency ‘‘approval’’ into the 

regulation and establishing a right of 

appeal if a State agency opts not to 

approve of a contract or commercial 

relationship. Several commenters noted 

that State agencies are not a party to the 

contract they are responsible for 

approving, and thus should not have 

approval authority; other commenters 

asked whether the State agency became 

a party to the contract by virtue of its 

review and approval role. 

Several comments included requests 

for information that we believe would 

be better incorporated into subregulatory guidance to assist in 

implementing this provision. For 

example, how should State agencies 

deal with contract amendments; can 

ACL provide examples of streamlined 

State agency review processes; what 

degree of oversight does a State agency 

have over a separate non-profit entity 

established by a AAA; what is the scope 

of State liability in the event of an issue 

that arises due to a contract or 

commercial relationship approved by 

the State agency; and what the remedy 

is if the State agency identifies an issue 

related to the proposed contract or 

commercial relationship. 

Response: We appreciate these 

comments. We agree that State agency 

oversight policies and procedures 

should be streamlined, transparent, not 

overly burdensome to either the State or 

the subrecipients of Federal funds, and 

commensurate to the degree of risk 

associated with a specific contract or 

commercial relationship. Like most 

commenters who raised this issue, we 

do not believe it should usually be 

necessary for State agencies to review 

contract documents in order to approve 

the establishment of a contract or 

commercial relationship. As we stated 

in the proposed rule, we expect State 

agency approval processes to be flexible, 

reflecting the needs of the older 

individuals served and the abilities of 

AAAs and service providers to engage 

in contracts and commercial 

relationships.129 We believe that 

requiring State agencies to establish 

clear policies and procedures for 

approval processes, developed in 

consultation with AAAs, will expedite 

the establishment of important 

partnerships. 

States agencies could use a number of 

different approaches to streamline the 

approval processes. For example, a State 

agency could adopt standard assurances 

related to COI (and other concerns) to be 

adopted into all AAA agreements to 

provide services and decide not to 

review case-by-case information related 

to COI. A State agency could preapprove a AAA to engage in a general 

category of contracts and commercial 

relationships with a certain type of 

organization, subject to certain 

conditions and a commitment to 

provide information about the 

agreement annually, as required under 


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130 42 U.S.C. 3026(a)(13). 

131 88 FR 39578 (June 16, 2023). 

132 42 U.S.C. 3020c. 

133 Id. section 3020c. 

134 42 U.S.C. 3026(g). 

135 42 U.S.C. 3020c; 42 U.S.C. 3026(g). 

136 42 U.S.C. 3025(a)(1)(C). 

137 42 U.S.C. 3026(a). 

138 Id. section 3026(b). 

139 42 U.S.C. 3020c(b)(1). 

140 42 U.S.C. 3020c(b)(1). 

141 42 U.S.C. 3026(a)(13). 

142 In deference to non-disclosure agreements, 

this may include the type of organization and not 

the identity of the specific entity. However, the 

State agency may require the AAA to attest that the 

proposed agreement is not with a specific entity. 

143 42 U.S.C. 3020c(b). 

section 306(a).130 The State agency 

could decide as a matter of policy that 

all contracts and commercial 

relationships to expand the reach of 

services will be approved unless certain 

concerning conditions exist (for 

example, if a AAA is under a corrective 

action plan). Under such a policy, AAAs 

would provide assurances that proposed 

agreements do not meet any 

exclusionary criteria. State agencies 

might decide that certain kinds of 

arrangements pose more risk than 

others. For example, contracts that 

involve a AAA on a corrective action 

plan or contracts that are 

disproportionately large compared to a 

AAA’s overall budget may be 

considered to pose more risk. As we 

discussed in the proposed rule, State 

agencies could consider the potential 

risks of different kinds of contracts and 

commercial relationships as they 

develop and implement the most 

efficient and least burdensome approval 

processes possible.131 State agencies 

have the discretion to decide whether it 

is appropriate to incorporate template 

language into agreements, standard 

assurances, or to use other methods of 

standardization. 

We hope that having clear statewide 

policies and procedures will help to 

establish best practices nationwide. We 

strongly encourage State agencies to 

seek input on proposed approval 

processes from AAAs to help achieve a 

balanced and feasible approach that will 

achieve the goal of minimizing risks 

while enabling the expansion of services 

to reach older adults with unmet needs. 

Commenters raised questions related 

to compliance and State agency liability 

for unsuccessful contracts or 

commercial relationships approved 

under State agency policy. We 

appreciate these concerns and reiterate 

here that the activities described in 

section 212 (both successful and 

unsuccessful) are allowable costs under 

the grant.132 The State agency must 

establish and follow policies and 

procedures that are compliant with this 

final rule and comply with any other 

applicable requirements for recipients of 

Federal grants. 

The structure of the Act is such that 

State agencies (as Federal grantees) are 

ultimately responsible for ensuring the 

appropriate use of funds, while AAA 

subrecipients are predominantly 

responsible for using those funds to 

develop the aging services network. 

This framework may lead State agencies 

to err on the side of caution (which is 

appropriate in overseeing the use of 

Federal funds) so as not to be held 

responsible for risky subrecipient 

activities. However, too much caution in 

this area may inhibit the provision of 

vital services and the sustainable growth 

of the network at a time when there is 

a growing population of older adults 

and greater demand for services. Section 

212 133 and section 306(g) 134 highlight 

the importance of leveraging existing 

knowledge, expertise, and relationships 

to expand the reach of the aging services 

network.135 All new business endeavors 

represent some degree of risk; we intend 

the policies and procedures under this 

provision to help mitigate, not 

eliminate, that risk. The intent of 

sections 212 and 306(g) can only be 

realized if the full weight of the 

potential failure of new contracts and 

commercial relationships does not fall 

on State agencies. We can alleviate that 

concern by clarifying that activities 

under section 212 are allowable costs so 

long as they comply with State agency 

policies and procedures. 

We agree with commenters who noted 

that State agencies are not parties to 

these contracts and commercial 

relationships; however, that has no 

bearing on their authority to review and 

approve them. State agencies are 

responsible for reviewing and approving 

certain contracts and commercial 

relationships, consistent with sections 

305(a)(1)(C),136 306(a),137 306(b),138 and 

212(b)(1) of the Act.139 Engaging in 

these responsibilities does not make the 

State agency a party to the contract or 

commercial relationship under review. 

Commenters encouraged ACL to 

develop regulatory text that sets an 

appropriate Federal regulatory floor for 

State agencies to meet but that remains 

flexible enough for State agencies with 

capacity or need to establish processes 

or standards that meet their Statespecific priorities. We intend the 

regulatory text that we have set forward 

to be just that: a standard regulatory 

floor that defers to State agency 

discretion to develop policies and 

procedures to appropriately review 

contracts and commercial relationships 

that require State agency approval. 

We prefer to leave State agencies the 

discretion to decide the details of their 

policies and procedures related to 

review and approval of contracts and 

commercial relationships (including 

pre-approval of agreements described in 

section 212 of the Act) 140 because 

circumstances vary across States and the 

State agency is ultimately responsible 

for ensuring the appropriate use of 

Federal funds granted to the State. 

However, in developing their policies 

and procedures, State agencies should 

consider the government interests in 

reviewing the potential contract or 

commercial relationship (including, 

among other concerns, any potential 

COI and whether appropriate firewalls 

exist to mitigate them; whether the AAA 

is meeting existing obligations under the 

Act; and potential risks to the AAA, the 

aging services network, or to the 

individuals served by the AAA 

associated with the proposed contract or 

commercial relationship). Section 306(a) 

of the Act sets forth many of these 

interests in the form of assurances that 

AAAs must offer for area plan 

approval.141 State agencies have the 

discretion to request to review contract 

documents if they deem it necessary to 

determine whether the contract or 

commercial relationship may be 

approved, consistent with their policies 

and procedures. However, subrecipients 

should generally be able to provide 

sufficient information to address these 

concerns without having to share 

contract documents for review. This 

should include, at a minimum, 

information related to the proposed 

partnering entity,142 the proposed 

services to be provided, and specific 

assurances related to other requirements 

under section 212(b).143 We intend to 

provide tools and examples that State 

agencies may, at their discretion, adapt 

and use. We intend the delayed 

compliance date for this provision to 

provide adequate time for State agencies 

and subrecipients to adopt compliant 

policies and to engage in technical 

assistance as needed. 

Comment: We received several 

comments recommending against 

incorporating any prior approval 

process for contracts and commercial 

relationships into the area plan approval 

process. Commenters also 

recommended that State agencies be 

required to provide timely approval. 

Response: We agree that State 

agencies should establish a prior 

approval process that is distinct from 

the area plan approval process, as 

opportunities may arise outside of 


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144 42 U.S.C. 3020c. 

145 42 U.S.C. 3026(g). 

146 42 U.S.C. 3020c(a). 

147 Id. section 3020c(a). 

148 42 U.S.C. 3026(g) Nothing in this Act shall 

restrict an area agency on aging from providing 

services not provided or authorized by this Act, 

including through—(1) contracts with health care 

payers; (2) consumer private pay programs; or (3) 

other arrangements with entities or individuals that 

increase the availability of home- and communitybased services and supports. 

149 42 U.S.C. 3020c(a)(1). 

150 Id. section 3020c(a)(2). 

151 42 U.S.C. 3020c(a)(3). 

152 Id. section 3020c(b)(1). 

153 Id. section 3020c(b)(2). 

standard area plan timeframes and 

requests for prior approval may not 

need to meet the same expectations for 

public input, advisory council review, 

and other requirements. Subrecipients 

can only successfully establish contracts 

and commercial relationships that 

require prior approval if approval can be 

granted in a timely fashion. However, 

we encourage State agencies to use the 

area plan approval process as an 

additional opportunity to discuss any 

new business under development. 

Comment: A number of commenters 

were particularly interested in 

minimizing the State’s oversight role 

with respect to contracts and 

commercial relationships described in 

section 212 of the Act 144 that are 

executed by AAAs without expending 

OAA funding. Several commenters 

argued that the Act does not apply to 

such agreements, and thus oversight is 

not appropriate. Some commenters 

raised concerns that the State preapproval required under section 212 of 

the Act conflicts with section 306(g) of 

the Act, which states that, ‘‘Nothing in 

this Act shall restrict an area agency on 

aging from providing services not 

provided or authorized by this 

Act[.]’’ 145 On the other hand, one AAA 

commenter strongly supported the 

approval role of the State agency and 

suggested that statewide standardization 

of the process to engage in contracts and 

commercial relationships under section 

212 of the Act would help improve the 

AAA network’s ability to equitably 

engage in such business. 

Response: We disagree with 

commenters who described State 

oversight in this area as an overreach. 

Our interpretation of the statute is that 

the Act applies to agreements ‘‘[. . .] to 

provide services to individuals or 

entities not otherwise receiving services 

under this Act [. . .]’’ 146 regardless of 

whether OAA funds are directly 

expended as part of the agreement. We 

seek to clarify here our interpretation of 

the statutory language and the Federal 

interests (as articulated in the Act) in 

responsible oversight of any contract or 

commercial relationship that falls 

within the category of ‘‘agreements’’ 

described in section 212. 

Section 212(a) of the Act states that, 

subject to the conditions set forth in 

212(b), ‘‘[. . .] this Act shall not be 

construed to prevent a recipient of a 

grant or a contract under this Act (other 

than title V) from entering into an 

agreement with a profitmaking 

organization for the recipient to provide 

services to individuals or entities not 

otherwise receiving services under this 

Act[.]’’ 147 We interpret this paragraph 

as defining ‘‘an agreement’’ for the 

purposes of section 212 as any 

arrangement with a profitmaking 

organization to provide services to 

individuals or entities not otherwise 

receiving services under this Act. 

Consistent with section 306(g),148 such 

agreements must be permitted, provided 

they meet the conditions laid out in 

section 212, and that a subrecipient 

seeking pre-approval has followed the 

State agency policy and procedures 

established under this provision. A 

State agency should not arbitrarily deny 

approval of an agreement that satisfies 

the requirements of section 212 and of 

the State’s own policies and procedures. 

Subsection (a) continues in 

paragraphs (a)(1) through (3) by 

providing three limiting conditions that 

are only relevant to certain agreements: 

• Paragraph (a)(1) states that if funds 

provided under this Act to such 

recipient are initially used by the 

recipient to pay part or all of a cost 

incurred by the recipient in developing 

and carrying out such agreement, such 

agreement guarantees that the cost is 

reimbursed to the recipient.149 We 

interpret this paragraph to mean that if 

agreements are developed and carried 

out using OAA funds, those funds must 

be reimbursed. Importantly, agreements 

may also be entered into without using 

OAA funds, in which case this 

condition does not apply, and 

reimbursement of OAA funds is not 

relevant. 

• Paragraph (a)(2) states that if such 

agreement provides for the provision of 

one or more services, of the type 

provided under this Act by or on behalf 

of such recipient, to an individual or 

entity seeking to receive such 

services 150 certain additional 

conditions apply. Individuals and 

entities may only purchase services at a 

fair market rate; all costs incurred (and 

not otherwise reimbursed under (a)(1)) 

must be reimbursed; and recipients 

must report rates and rates must be 

consistent with the prevailing market 

rate in the relevant geographic area. We 

interpret this paragraph to mean that if 

the agreement is for the recipient to 

provide one or more OAA-authorized 

services to OAA service participants or 

clients, these additional conditions 

apply. As in (a)(1), we also interpret this 

paragraph to mean that an agreement 

might be entered into under section 212 

that does not provide for the provision 

of one or more OAA services. 

• Paragraph (a)(3) describes any 

amount of payment to the recipient 

under the agreement that exceeds 

reimbursement under this subsection of 

the recipient’s costs is used to provide, 

or support the provision of, services 

under this Act.151 We interpret this 

paragraph to mean that if an agreement 

is profitable beyond the required 

reimbursement of any OAA funds if 

used (under (a)(1)) and the 

reimbursement of any other costs 

incurred by the recipient (under 

(a)(2)(B)), any profits must be used to 

support the provision of OAA services 

to OAA clients. 

Section 212(b) lists the limitations 

that apply to all agreements under 

section 212. An agreement described in 

paragraph (a) may not: 

• be made without the prior approval 

of the State agency (or, in the case of a 

grantee under title VI, without the prior 

recommendation of the Director of the 

Office for American Indian, Alaska 

Native, and Native Hawaiian Aging and 

the prior approval of the Assistant 

Secretary), after timely submission of all 

relevant documents related to the 

agreement including information on all 

costs incurred.152 We interpret this 

paragraph to require State agency preapproval for all agreements under 

section 212. We have discussed at 

length the requirement in this final rule 

for State agencies to develop policies 

and procedures to implement this 

provision; 

• have the effect of ‘‘[. . .] paying, 

reimbursing, subsidizing, or otherwise 

compensating an individual or entity in 

an amount that exceeds the fair market 

value of the services subject to such an 

agreement[.]’’ 153 This paragraph applies 

the limitation in section 212(a)(2)(A) to 

all agreements under section 212; 

• result in the displacement of 

services otherwise available to an older 

individual with greatest social need, an 

older individual with greatest economic 

need, or an older individual who is at 

risk of institutional placement; or 

• in any other way compromise, 

undermine, or be inconsistent with the 

objective of serving the needs of older 

individuals, as determined by the 


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154 Id. section 3020c(b)(3),(4). 

155 Id. section 3020c(c),(d),(e). 

156 42 U.S.C. 3020c. 

157 42. U.S.C. 3026(a). 

158 42 U.S.C. 3026(a)(4)(A)(i). 

159 42 U.S.C. 3020c. 

160 42 U.S.C. 3026(a). 

161 42 U.S.C. 3020c. 

162 Id. 

163 42 U.S.C. 3026(a) 164 42 U.S.C. 3030b. 

Assistant Secretary.154 Agreements 

under section 212 may not compromise 

OAA services to OAA program 

participants or clients and may not be 

inconsistent with the objective of 

serving older individuals. The Assistant 

Secretary for Aging has the discretion to 

determine whether an agreement 

violates this provision. 

Section 212(c), (d), and (e) relate to 

monitoring and reporting requirements, 

timely reimbursement, and defining 

‘‘cost’’ in this section, respectively.155

We did not receive significant 

comments related to interpreting these 

provisions. 

Section 212 156 cannot be read 

without the context provided by section 

306(a),157 which sets forth the 

requirements for the development of 

area plans, which lay out in detail the 

work that a AAA must do to fulfill their 

obligations under the Act, inclusive of 

compliance with section 212. Both 

sections 306(a) and 212 require 

subrecipients to provide information for 

State agency review and approval about 

the contracts and commercial 

relationships in which they are engaged, 

or in which they intend to engage. 

Section 306(a) incorporates the 

requirements of section 212 and 

enumerates the assurances the AAAs 

must offer as part of developing an area 

plan. Among other attestations, AAAs 

are required to provide assurances that 

they will: 

• maintain the integrity and public 

purpose of services provided, and 

service providers, under this title in all 

contractual and commercial 

relationships; 

• disclose the identity of each 

nongovernmental entity with which 

they have a contract or commercial 

relationship relating to providing any 

service to older individuals and the 

nature of such contract or such 

relationship; 

• demonstrate that a loss or 

diminution in the quantity or quality of 

the services provided, or to be provided, 

under this title by such agency has not 

resulted and will not result from such 

contract or such relationship; 

• demonstrate that the quantity or 

quality of the services to be provided 

under this title by such agency will be 

enhanced as a result of such contract or 

such relationship; 

• if requested, disclose all sources 

and expenditures of funds such agency 

receives or expends to provide services 

to older individuals; 

• avoid giving preference in receiving 

services under this title to particular 

older individuals as a result of a 

contract or commercial relationship that 

is not carried out to implement this title; 

and use funds provided under this title 

to provide benefits and services to older 

individuals, giving priority to older 

individuals identified in section 

306(a)(4)(A)(i),158 and in compliance 

with these assurances and the 

limitations specified in section 212.159

[.]’’ 

The OAA established the AAA 

designation, and AAAs have since 

grown into a nationally recognized 

network of entities working on behalf of 

older adults. The assurances laid out in 

section 306(a) 160 are a clear statement of 

the Federal interests in ensuring that the 

integrity of the network is not 

compromised by any contracts and 

commercial relationships in which 

recipients and subrecipients engage; and 

that services to OAA clients will be 

enhanced (and not diminished) as the 

result of such agreements. 

Even commenters who felt that 

certain activities described in section 

212 of the Act 161 were ‘‘not related to 

the OAA’’ shared comments that 

nevertheless indicated an understanding 

that these interests apply to those 

activities. For example, a commenter 

noted that AAAs should be able to 

demonstrate that the work aligns with 

their mission and should keep their 

State agency informed about their work, 

albeit without ‘‘seeking permission.’’ 

One commenter who wrote in favor of 

relying solely on assurances for preapproval noted that AAAs could be 

required to attest that contracting work 

to provide services outside the OAA 

would not in any way harm the goals of 

the Act or compromise the agency’s 

responsibilities within the Act. Another 

comment noted further that any 

potential ‘‘profits’’ made from these 

kinds of contracts or commercial 

relationships are put back into services 

or the development of new programs for 

older adults, a reinvestment that is 

required under section 212—though the 

commenter claims that such agreements 

do not fall under the purview of section 

212. 

Both section 212 162 and section 

306(a) 163 establish an important 

oversight role for State agencies. As we 

noted in the proposed rule, we intend 

this provision to help ensure that the 

activities in which recipients and 

subrecipients of funding under the Act 

engage further the intended benefits of 

the Act and do not compromise core 

responsibilities or the statutory mission 

of State agencies, AAAs, and service 

providers. 

Comment: A few commenters raised 

concerns related to sharing proprietary 

information or violating non-disclosure 

agreements as part of the review 

process. One commenter specifically 

asked about the relationship between 

State public records laws and State 

agency oversight of contracts between 

AAAs and health care entities with nondisclosure agreements. 

Response: Generally, the application 

of State public records laws is beyond 

the scope of our regulation. However, 

we are not aware of any State that does 

not include certain exceptions for trade 

secrets or other proprietary information. 

In addition, we encourage State agencies 

to request and review the minimum 

information appropriate to the 

circumstances in order to approve of a 

contract or commercial relationship. 

§ 1321.9(c)(2)(xv) Buildings, Alterations 

or Renovations, Maintenance, and 

Equipment 

ACL has received technical assistance 

and clarification requests from State 

agencies and AAAs seeking to apply 

funding awarded under Title III to costs 

related to buildings and equipment 

(such as maintenance and repair). 

However, the Act provides limited 

standards regarding this use of funding. 

We add paragraph § 1321.9(c)(2)(xv) to 

provide clarification to ensure that 

funding will be used for costs that 

support allowable activities. In addition, 

section 312 of the Act provides that 

funds used for construction or 

acquisition of multipurpose senior 

centers are to be repaid to the Federal 

Government in certain 

circumstances.164 To ensure that third 

parties will be on notice of this 

requirement, we include in this 

paragraph a requirement that a Notice of 

Federal Interest be filed at the time of 

acquisition of a property or prior to 

construction, as applicable. 

Comment: One commenter requested 

definitions for: ‘‘alterations,’’ 

‘‘renovations,’’ and ‘‘construction.’’ Two 

commenters suggested including 

‘‘retrofitting’’ in the definition of 

‘‘alterations’’ for clarity. Another 

commenter requested that ACL 

maximize flexibility for State agencies 

to make infrastructure investments. 

Response: ACL appreciates these 

comments but declines to add the 


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165 42 U.S.C. 3030d. 

166 42 U.S.C. 3026(a)(9)(B). 

167 42 U.S.C. 3030c–2(b)(4)(E). 

168 42 U.S.C. 3030d(d). 

169 42 U.S.C. 3030s–2. 

170 42 U.S.C. 3058d(a)(4). 

171 42 U.S.C. 3030s–2. 

requested changes, as ‘‘altering or 

renovating’’ and ‘‘constructing’’ are 

defined in § 1321.3 of the rule. 

‘‘Infrastructure’’ is a broad term, and 

ACL lacks authority under the Act to 

allow for such a broad use of OAA 

funds. Section 321 of the Act only 

allows construction activities for 

multipurpose senior centers.165

Comment: A commenter noted that 

the term ‘‘constructing,’’ as defined in 

the current regulation, specifically refers 

only to ‘‘multipurpose senior centers,’’ 

while the definition of the term 

‘‘constructing’’ in § 1321.3 of the 

proposed rule makes no reference to 

senior centers. The commenter sought 

clarity as to whether constructing 

activities only are permitted for 

multipurpose senior centers. 

Response: ACL appreciates this 

comment. Section 1321.9(c)(2)(xv)(C) of 

the rule expressly states that 

construction activities only are 

allowable for multipurpose senior 

centers. 

Comment: One commenter expressed 

the concern that § 1321.9(c)(2)(xv) does 

not adequately address equipment. 

Response: In response to this 

comment, we have revised the 

introductory statement of this section as 

follows: ‘‘Buildings and equipment, 

where costs incurred for [. . .] repair, 

and upkeep [. . .] to keep buildings and 

equipment in an efficient operating 

condition, including acquisition and 

replacement of equipment, may be an 

allowable use of funds and the 

following apply[.]’’ We also have made 

a technical correction to the crossreferences in § 1321.9(c)(2)(xv)(D) to 

specify the applicability of this 

provision. Finally, we have added a 

provision at § 1321.9(c)(2)(xv)(F) to 

specify that prior approval by the 

Assistant Secretary for Aging does not 

apply. 

Comment: In connection with the 

acquisition or construction of a 

multipurpose senior center, ACL 

received a comment requesting 

guidance and training related to the 

requirement to file a Notice of Federal 

Interest in the appropriate official 

records of the jurisdiction where the 

property is located. 

Response: ACL will address this 

comment through technical assistance, 

as needed. 

§ 1321.9(c)(2)(xvi) Supplement, Not 

Supplant 

The Act sets forth requirements in 

sections 306(a)(9)(B),166 315(b)(4)(E),167

321(d),168 374,169 and 705(a)(4) 170 that 

OAA funds must supplement, and not 

supplant existing funds. We have 

received numerous questions about 

what these requirements mean and how 

State agencies can ensure that Federal 

funding is not used inappropriately to 

supplant other funds. For example, a 

State or local government might 

inappropriately decide to reduce State 

funding to support services for family 

caregivers due to an increase in Federal 

Title III, part E funding. In this example, 

the result would be that the increased 

Federal funds supplant, not 

supplement, the reduced State or local 

funding, with no increase in revenue 

available to the entity to provide 

additional services and in contradiction 

of section 374.171 This provision 

requires a State agency policy and 

procedure on supplementing, not 

supplanting existing funds for the 

programs where specified in the Act. 

Comment: ACL received a comment 

requesting guidance as to 

§ 1321.9(c)(2)(xvi), which provides that 

funds awarded under certain sections of 

the Act must not supplant existing 

Federal, State, and local funds. 

Response: ACL will address requests 

for guidance regarding this requirement 

through technical assistance, as needed. 

§ 1321.9(c)(2)(xvii) Monitoring of State 

Plan Assurances 

The Act sets forth many assurances to 

which State agencies must attest as a 

part of their State plans and to which 

AAAs must attest as a part of their area 

plans. The final rule specifies that the 

State agency must have policies and 

procedures to monitor compliance with 

these assurances. We made a technical 

edit to remove ‘‘and area’’ from the 

proposed language in this provision, as 

monitoring of area plan assurances is 

addressed in § 1321.9(c)(4). 

§ 1321.9(c)(2)(xviii) Advance Funding 

In response to comments received at 

listening sessions and increased 

requests for technical assistance from 

State agencies, AAAs, and service 

providers, ACL specifies that State 

agencies may advance funding to meet 

immediate cash needs of AAAs and 

service providers, and if a State agency 

chooses to do so, the State agency must 

have policies and procedures that 

comply with all applicable Federal 

requirements. 

Comment: One commenter expressed 

support for § 1321.9(c)(2)(xviii). Other 

commenters expressed concern that this 

section includes requirements that may 

be difficult to comply with, given the 

diverse needs of area agencies. 

Response: ACL appreciates these 

comments, but we decline to revise this 

provision. We do not have the authority 

to modify or waive Federal 

requirements that apply to advance 

payments. 

§ 1321.9(c)(2)(xix) Fixed Amount 

Subawards 

The rule allows fixed amount 

subawards up to the simplified 

acquisition threshold, as set forth in 2 

CFR 200.333 and 45 CFR 75.353. The 

NPRM included this point in 

§ 1321.9(c)(2)(i). In the course of 

reviewing § 1321.9(c)(2)(i) in response 

to comments received, ACL has 

determined that the language from that 

section regarding fixed amount 

subawards should be in a separate 

provision. Accordingly, ACL has added 

a new § 1321.9(c)(2)(xix) which states 

that fixed amount subawards up to the 

simplified acquisition threshold are 

allowed. 

For a definition of ‘‘simplified 

acquisition threshold’’ see 2 CFR 200.1 

and 45 CFR 75.2. ACL will provide 

technical assistance, as needed, 

regarding § 1321.9(c)(2)(xix). 

§ 1321.9(c)(4) Area Plan Process 

We add paragraphs § 1321.9(c)(3) and 

(4) to ensure the integrity and 

transparency of the State plan process 

and, in States with multiple PSAs, of 

the area plan process. The final rule 

requires the State agency to have 

policies and procedures that align with 

the requirements for State and area 

plans in §§ 1321.27, 1321.29, and 

1321.65. In this final rule we have 

revised these requirements to clarify 

that State and area agencies must 

establish and comply with a reasonable 

minimum time period (at least 30 

calendar days, unless a waiver has been 

granted) for public review of and 

comment on State and area plans. 

§ 1321.11 Advocacy Responsibilities 

Section 1321.13 of the existing 

regulation (Advocacy responsibilities) is 

redesignated here as § 1321.11. Section 

1321.11 sets forth the advocacy 

responsibilities of State agencies. As 

indicated, these include advocacy, 

technical assistance, and training 

activities. We make additional minor 

revisions to these provisions to include 

activities related to the National Family 

Caregiver Support Program. Section 

305(a) of the Act provides that the State 

agency should serve as ‘‘an effective and 

visible advocate’’ for older individuals 


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172 42 U.S.C. 3025(a). 173 Id. section 3025. 

174 Id. section 3025(b). 

175 Id. section 3025(a)(1)(E). 

176 Id. 

177 Id. section 3025(b)(4). 

and family caregivers.172 Accordingly, 

we revise § 1321.11(a)(3) to clarify that 

the State agency’s obligations to 

comment on applications to Federal and 

State agencies for assistance related to 

the provision of needed services for 

older adults and family caregivers are 

not limited to instances in which the 

State agency receives a request to do so. 

Comment: We received comment 

supporting inclusion of advocacy 

responsibilities, such as including 

family caregivers, and offering 

suggestions for strengthening these 

expectations. One commenter requested 

we require State agencies to incorporate 

diversity, inclusion, and cultural 

competency training, while another 

commenter requested removing local 

plans from the items the State agency is 

expected to review, monitor, evaluate, 

and provide comment on. 

Response: We appreciate these 

comments. We have revised 

§ 1321.11(a)(1) from ‘‘[. . .] recommend 

any changes in these which the State 

agency considers to be appropriate’’ to 

‘‘[. . .] recommend any changes in these 

which the State agency considers to be 

aligned with the interests identified in 

the Act[.]’’ At § 1321.61(b)(1), we also 

have revised the regulations to remove 

the phrase ‘‘where appropriate’’ and add 

‘‘which the area agency considers to be 

aligned with the interests identified in 

the Act[.]’’ 

We agree with the commenter that 

diversity, inclusion, and cultural 

competency are essential, and we 

encourage State agencies to incorporate 

these concepts throughout their 

trainings. However, we decline to 

expressly require such training. State 

agencies must provide training related 

to all of the topics listed in this 

regulation, including on how to provide 

services to those in the greatest 

economic and greatest social need. ACL 

encourages State agencies to work with 

Tribes and Tribal organizations, 

organizations representing those 

identified as in the greatest economic 

need and greatest social need, and 

others with lived experience in 

providing such trainings. 

Additionally, State agencies are 

encouraged to provide review and 

comment on local plans and activities as 

part of their statewide oversight 

responsibilities. The State agency may 

benefit from learning about local 

innovations and developments, and the 

local agency may benefit from feedback 

on and connections to State agency 

initiatives and activities. 

§ 1321.13 Designation of and 

Designation Changes To Planning and 

Service Areas 

Section 1321.29 of the existing 

regulation (Designation of planning and 

service areas) is redesignated here as 

§ 1321.13 and is retitled to better reflect 

the content of the revised provision. 

Section 305 of the Act requires the 

State agency to divide the State into 

distinct PSAs and subsequently 

designate a AAA to serve each PSA.173

The Act allowed for exceptions for some 

State agencies to designate the entire 

State as a single PSA; however, this 

option only remains for States that did 

so on or before October 1, 1980. Single 

PSA States may be geographically small, 

such as Rhode Island, or may be 

sparsely populated relative to their 

geography, such as Alaska. Dividing 

States into distinct PSAs allows for a 

local approach to the planning, 

coordination, advocacy, and 

administration responsibilities as 

required under the Act. We revise this 

section to affirm the State agencies’ 

obligations to have policies and 

procedures in place to ensure that the 

State agency process of designating and 

changing PSAs will be transparent, will 

hold the State agency accountable for its 

decisions, and will afford due process to 

affected parties. We also describe factors 

that a State agency should take into 

account when it considers changing a 

PSA designation, consistent with the 

aims of the Act. These factors include 

the geographical distribution of older 

individuals in the State, the incidence 

of the need for services under the Act, 

the distribution of older individuals 

with greatest economic need and 

greatest social need, the distribution of 

older individuals who are Native 

Americans, the distribution of resources 

under the Act, the boundaries of 

existing areas within the State, and the 

location of units of general purpose 

local government. Since all States now 

have designated PSAs, we provide 

greater detail on the requirements for 

changing PSAs, as specified in the Act, 

based on questions we have received 

and areas of confusion that have been 

expressed. For example, we anticipate 

that our requirement that State agencies 

must consider the listed factors will 

resolve confusion over how State 

agencies should make decisions about 

whether and how to change PSA 

designations. 

Comment: One commenter pointed 

out a technical correction: the reference 

in § 1321.13(e) to § 1321.15(d) should 

instead reference § 1321.13(d). 

Response: We are grateful to the 

commenter and have made this revision. 

Comment: We received comments 

expressing support for the clarity of 

these provisions. One commenter also 

noted Tribes may request changes to 

better serve Native American elders. 

Response: We appreciate these 

comments and encourage consideration 

of PSA changes that may better serve 

older adults and family caregivers, 

including Native American elders and 

family caregivers. 

§ 1321.15 Interstate Planning and 

Service Area 

Section 1321.43 of the existing 

regulation (Interstate planning and 

service area) is redesignated here as 

§ 1321.15. Revisions are made to this 

provision to clarify the nature of an 

interstate PSA (per section 305(b) of the 

Act),174 as well as the process for 

requesting the Assistant Secretary for 

Aging to designate an interstate PSA. 

Minor revisions have also been made to 

reflect statutory updates, including 

language reflecting the distribution of 

family caregiver support services funds 

under the Act, and updates to crossreferences to other provisions within the 

regulation. 

Comment: We received comment 

emphasizing the need for coordination 

especially when Tribal reservations 

cross State lines. 

Response: We appreciate this 

comment. ACL is available to provide 

technical assistance in coordinating 

among State agencies, AAAs, and Tribal 

aging programs regarding interstate 

PSAs. 

§ 1321.17 Appeal to the Departmental 

Appeals Board on Planning and Service 

Area Designation 

Section 1321.31 (Appeal to 

Commissioner) is redesignated and 

modified here as § 1321.17 (Appeal to 

the Departmental Appeals Board on 

planning and service area designation). 

Section 305(a)(1)(E) 175 of the Act 

provides State agencies authority to 

divide the State into distinct PSAs to 

administer the Act’s services and 

benefits. A local government, region, 

metropolitan area, or Indian reservation 

may appeal a State agency’s denial of 

designation under the provisions of 

section 305(a)(1)(E) 176 to the Assistant 

Secretary for Aging who must then 

afford the entity an opportunity for a 

hearing pursuant to section 305(b)(4) 177

of the Act. There have historically been 


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178 Id. section 3025(a)(1)(E). 

179 Id. section 3025(a). 

180 Id. section 3025. 

181 Id. 

very few appeals under section 

305(a)(1)(E).178

Through this provision, appeals of 

State agency decisions for designation of 

PSAs are delegated to the HHS 

Departmental Appeals Board (DAB) in 

accordance with the procedures set 

forth in 45 CFR part 16. The DAB may 

refer an appeal to its Alternative Dispute 

Resolution Division for mediation prior 

to issuing a decision. This change aligns 

with §§ 1321.23 and 1321.39. We 

believe it continues to fulfill the Act’s 

mandate to provide an opportunity for 

a hearing while streamlining 

administrative functions and providing 

robust due process protections to 

appellants. The HHS DAB provides 

impartial, independent review of 

disputed decisions under more than 60 

statutory provisions. We believe this 

change will provide clarity and 

consistency to State agencies and AAAs 

and is aligned with the intent of the Act. 

Comment: We received comments 

supporting PSA designation appeals to 

the DAB. We also received comments 

requesting additional clarification. 

Response: ACL intends for appeals 

regarding any PSAs, including those in 

which an interstate Indian reservation is 

located, as set forth in § 1321.15 

(Interstate planning and service area) to 

be considered by the DAB. We have 

revised § 1321.17 to clarify that PSA 

designation changes may be appealed. 

As stated in § 1321.17(b), ‘‘Any 

applicant for designation as a planning 

and service area whose application is 

denied, and who has been provided a 

hearing and a written decision by the 

State agency, may appeal the denial to 

the Departmental Appeals Board 

(DAB)[.]’’ Any applicant includes Tribes 

who apply. 

§ 1321.19 Designation of and 

Designation Changes to Area Agencies 

Section 1321.33 of the existing 

regulation (Designation of area 

agencies) is redesignated here as 

§ 1321.19 and is retitled to better reflect 

the content of the revised provision. 

Section 305(b) of the Act requires State 

agencies not located in single PSA 

States to designate a AAA to serve each 

PSA.179 We specify that only one AAA 

shall be designated to serve each PSA 

and that an organization may be 

designated as a AAA for more than one 

PSA. The Act intends that the AAA will 

proactively carry out, under the 

leadership and direction of the State 

agency, a wide range of functions 

designed to lead to the development or 

enhancement of comprehensive and 

coordinated community-based systems 

in, or serving, each community in the 

PSA. It is essential that each AAA has 

the capacity to carry out such 

responsibilities and that each AAA 

meets the Act’s qualification 

requirements. The existing regulation, 

however, contains only a few basic 

procedural requirements under the Act 

related to the designation of AAAs and 

provides no direction to State agencies 

with respect to this important function. 

We revise this provision to clarify the 

State agencies’ obligations to have 

policies and procedures in place to 

ensure that the process of designating 

AAAs, as well as the voluntary or 

involuntary de-designation of a AAA 

(i.e., withdrawal of AAA designation), 

will be transparent, will hold the State 

agency accountable for its decisions, 

and will afford due process to affected 

parties. We provide greater clarity to 

assist State agencies in understanding 

the designation process pursuant to 

section 305 of the Act and the types of 

agencies permitted by the Act to serve 

as AAAs.180 Consistent with the Act’s 

requirements, we retain the existing 

restriction against a regional or local 

State office serving as a AAA, and the 

provision continues to reference the 

State agency’s obligations under section 

305 of the Act to provide a right of first 

refusal to a unit of general purpose local 

government for AAA designation and to 

give preference in such designation to 

an established office on aging if the unit 

of general purpose local government 

elects not to exercise its first refusal 

right.181

Comment: We received comments in 

support of these clarifying provisions. 

We received suggestions for additional 

language and a recommendation that 

further regulation and oversight be 

added when an area agency on aging 

serves more than one PSA. 

Response: ACL appreciates these 

comments. We expect that State 

agencies will exercise appropriate 

oversight of each PSA. We have revised 

this provision to clarify that an area 

agency that serves more than one PSA 

must maintain separate funding, 

planning, and advocacy responsibilities 

for each PSA. 

For consistency, we similarly revised 

§ 1321.49 (Intrastate funding formula), 

§ 1321.61 (Advocacy responsibilities of 

the area agency), § 1321.63 (Area agency 

advisory council), and § 1321.65 

(Submission of an area plan and plan 

amendments to the State agency for 

approval). 

§ 1321.21 Withdrawal of Area Agency 

Designation 

Section 1321.35 of the existing 

regulation (Withdrawal of area agency 

designation) is redesignated here as 

§ 1321.21. We include changes to 

paragraph (a) to clarify the 

circumstances under which a State 

agency may withdraw a AAA 

designation. These include failure to 

comply with all applicable Federal 

requirements or policies and procedures 

established and published by the State 

agency; a State agency decision to 

change one or more PSA designations; 

and a AAA voluntary request for 

withdrawal of their designation. In 

paragraph (b) we include a clarification 

that changes to the designation of a 

AAA must be included in the State plan 

on aging or an amendment to the State 

plan, with appropriate cross-references. 

In paragraph (d) we detail that a State 

agency may request an extension of time 

to perform the responsibilities of a AAA 

after such designation has been 

withdrawn if the State agency has made 

reasonable but unsuccessful attempts to 

procure another entity to be designated 

as the AAA. 

Comment: We received comments 

expressing appreciation for the 

clarifications made in this section. We 

also received a concern that an attempt 

to procure a new AAA no less than once 

per State plan on aging period was too 

long. 

Response: We appreciate these 

comments. We have modified the final 

rule to remove the following sentence 

from § 1321.21(d)(3), ‘‘Reasonable 

attempts include conducting a 

procurement for an applicant to serve as 

an area agency no less than once per 

State plan on aging period.’’ The 

requirement for the Assistant Secretary 

for Aging to approve any extensions will 

allow for the Assistant Secretary for 

Aging to determine if an extension is 

appropriate. We decline to make any 

other changes to this provision and will 

provide technical assistance, as 

appropriate. 

§ 1321.25 Duration, Format, and 

Effective Date of the State Plan 

Section 1321.15 of the existing 

regulation (Duration, format, and 

effective date of the State plan) is 

redesignated here as § 1321.25. Minor 

changes have been made to update 

cross-references to other provisions, to 

reflect updates to statutory language, 

and to clarify the authority of the 

Assistant Secretary for Aging to provide 

instructions to State agencies regarding 

the formulation, duration, and 

formatting of State plans. 


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182 42 U.S.C. 3027. 183 Id. section 3027(a)(2)(C). 

Comment: ACL received comments in 

support of this provision, as well as 

recommendations regarding 

implementation of this provision. One 

commenter also recommended 

additional coordination opportunities 

relating to State plans on aging. 

Response: ACL appreciates these 

comments. We intend to provide 

technical assistance regarding 

implementation of this provision and 

additional coordination opportunities 

that may be available as State agencies 

develop their State plans on aging. 

§ 1321.27 Content of State Plan 

Section 1321.17 of the existing 

regulation (Content of the State plan) is 

redesignated here as § 1321.27. As part 

of their responsibilities, State agencies 

must develop and administer a multiyear State plan on aging. The State plan 

delineates goals and objectives related 

to assisting older individuals and family 

caregivers and serves as a blueprint for 

achieving the goals and objectives 

during the plan period. Section 307 of 

the Act sets forth requirements that 

State plans must meet and content that 

must be included in the State plan and 

authorizes the Assistant Secretary for 

Aging to prescribe criteria for State plan 

development and content.182

We also include additional required 

core elements for the State plan, 

including that the State plan: must 

provide evidence that it is informed by, 

and based on, area plans in States with 

multiple PSAs; explain how individuals 

with greatest economic need and 

greatest social need are determined and 

served; include the State agency’s IFF or 

funds distribution plan; demonstrate 

outreach to older Native Americans and 

coordination with Title VI programs 

under the Act; certify that program 

development and coordination activities 

will meet requirements; specify the 

minimum proportion of funds that will 

be expended on certain categories of 

services; provide information if the 

State agency allows for Title III, part C– 

1 funds to be used as set forth in 

§ 1321.87(a)(1)(i); describe how the State 

agency will meet its responsibilities for 

the Legal Assistance Developer; explain 

how the State agency will use its elder 

abuse prevention funding awarded 

pursuant to Title VII of the Act; and 

describe how the State agency will 

conduct monitoring of the assurances to 

which they attest. The provision also 

clarifies the Assistant Secretary for 

Aging’s authority to establish objectives 

for State plans, including objectives 

related to Title VII of the Act. 

The State plan must define greatest 

economic need and greatest social need, 

including for the following populations: 

people with disabilities; people who 

experience language barriers; people 

who experience cultural, social, or 

geographical isolation, including due to 

racial or ethnic status, Native American 

identity, religious affiliation, sexual 

orientation, gender identity, or sex 

characteristics, HIV status, chronic 

conditions, housing instability, food 

insecurity, lack of access to reliable and 

clean water supply, lack of 

transportation, or utility assistance 

needs, interpersonal safety concerns, 

rural location; and people otherwise 

adversely affected by persistent poverty 

or inequality as the State agency defines 

it in the State plan. The Act directs State 

agencies and AAAs to focus attention, 

advocacy, and service provision toward 

those in greatest economic need and 

greatest social need. The listed 

populations include those identified in 

Executive Order 13985 Advancing 

Racial Equity and Support for 

Underserved Communities Through the 

Federal Government. The final rule 

establishes standard expectations for 

whom State agencies must include in 

their definitions of greatest economic 

need and greatest social need, while still 

allowing for State agencies to flexibly 

include other populations that are 

specific to their circumstances. For 

example, one State agency may also 

identify a population within their State 

that has specific dietary requirements 

that will be included in their definition 

of greatest social need. When 

determining the definition of greatest 

economic need, another State agency 

may also include persons experiencing 

housing instability. Another State 

agency may not specify any additional 

populations to be included in their 

definitions of greatest economic need 

and greatest social need at the State plan 

level but encourage such additions at 

the area plan level (for which we further 

discuss requirements in § 1321.65). 

We also specify that upon identifying 

the populations of greatest economic 

need and greatest social need, the State 

plan must include how the State agency 

will target services to these populations, 

including how funds under the Act may 

be distributed in accordance with listed 

IFF or funds distribution plan 

requirements at § 1321.49 or § 1321.51, 

respectively. For example, a State 

agency may specify that it will use one 

factor based on the low-income and 

rural population of individuals age 60 

and older in its IFF to meet populations 

identified as in greatest economic need 

and greatest social need. Another State 

agency may use two separate factors, 

one for low-income individuals age 60 

and older and another for rural 

individuals age 60 and older. These 

State agencies may use methods other 

than IFFs or funds distribution plans for 

targeting services to those with certain 

dietary requirements, experiencing 

housing instability, and as determined 

at the area plan level. 

As a part of their responsibilities 

under the State plan, State agencies 

engage in program development and 

coordination activities to meet the needs 

of older adults. State agencies are also 

encouraged to translate activities, data, 

and outcomes into proven best 

practices, which can be used to leverage 

additional funding and to build capacity 

for long-term care systems and services 

in the State, beyond what the Act alone 

can support. State agencies also work in 

conjunction with and support of AAAs 

who lead such efforts, including 

integrating health and social services 

delivery systems. The final rule requires 

State agencies to certify as a part of their 

State plans that they will meet certain 

requirements, including what funding 

sources can be used for program 

development and coordination activities 

and what conditions apply to use of 

these funds. We specify that funds for 

program development and coordination 

activities may only be expended as a 

cost of State plan administration, area 

plan administration, or Title III, part B 

supportive services, under limited 

circumstances. 

The final rule requires State agencies 

to specify the minimum proportion of 

funds that will be expended on certain 

categories of services as required by the 

Act in section 307(a)(2)(C), consistent 

with the legal assistance section at 

§ 1321.93.183

The provision also includes a new 

requirement for State agencies to 

provide certain information regarding 

any permitted use of Title III, part C–1 

funds (funds for meals served in a 

congregate setting) for shelf-stable, pickup, carry-out, drive-through, or similar 

meals, as permitted by new 

§ 1321.87(a)(1)(i). The congregate meal 

program is a core Title III program; in 

addition to a healthy meal, the program 

provides opportunities for social 

interaction and health promotion and 

wellness activities. In response to the 

COVID–19 Public Health Emergency 

(PHE), ACL provided guidance on 

innovative, permissible service delivery 

options that grantees could use to 

provide meals to older individuals and 

other eligible recipients of homedelivered meals with Title III, part C–2 


ddrumheller on DSK120RN23PROD with RULES4
Federal Register / Vol. 89, No. 31 / Wednesday, February 14, 2024 / Rules and Regulations 11595 

184For example, Reopening Considerations for 

Senior Nutrition Programs (April 2021), available at 

https://acl.gov/sites/default/files/programs/Senior_

Nutrition/SNP_ReopeningConsiderations.Final.pdf; 

and, Congregate or Home-Delivered Meal Decision 

Tree (June 2022), available at https://acl.gov/sites/ 

default/files/nutrition/ 

Title%20III%20C1%20and%20C2

%20Service%20Delivery%20Decision

%20Tree%206.15.22%20508.pdf. 

funds.184 In response to comments from 

grantees and interested parties on the 

RFI, we included a new provision at 

§ 1321.87 to allow these meal delivery 

methods through the use of Title III, part 

C–1 congregate meal funds, subject to 

certain terms and conditions. As this 

represents an expansion of the 

permitted use of congregate meals 

funds, State agencies must provide 

information about this use of Title III, 

part C–1 funds in their State plans to 

ensure that the State agencies are aware 

of, and will comply with, the applicable 

terms and conditions so that ACL will 

be aware of the extent to which State 

agencies plan to implement this new 

allowable use of Title III, part C–1 

funds. 

We remove redundant provisions in 

§ 1321.27 that are addressed in other 

more appropriate sections of the revised 

regulation (such as requirements related 

to State agency policies, voluntary 

contributions, and means testing, which 

are addressed in § 1321.9). We also 

make minor revisions to the provision to 

remove outdated references. 

Comment: We received comments 

expressing support for this provision 

and for service to persons in greatest 

economic need and greatest social need. 

Commenters also shared concerns about 

how State agencies and AAAs can serve 

all the populations listed and how they 

will measure whether the targeted 

populations are being served, given lack 

of funding, incomplete data sources, 

and data privacy concerns. 

Response: ACL appreciates these 

comments and concerns related to how 

to provide targeted services given 

limited funds and how to use data 

appropriately and sensitively. We 

expect State agencies to: (1) identify and 

consider populations in greatest 

economic need and greatest social need; 

(2) describe how they target the 

identified populations for service 

provision; (3) establish priorities to 

serve one or more of the identified target 

populations, given limited availability 

of funds and other resources; (4) 

establish methods for serving the 

prioritized populations; and (5) use data 

to evaluate whether and how the 

prioritized populations are being served. 

For the first step, the State agency 

must assess and identify populations in 

greatest economic need and greatest 

social need within the State. For 

example, a State agency may review 

demographic and service data; engage in 

Tribal consultation; conduct needs 

assessments with older adults, family 

caregivers, and other community 

members; hold public hearings; and 

accept other feedback in determining 

how the State agency will define 

populations in greatest economic need 

and greatest social need. A State agency 

must establish a definition to include 

those populations identified pursuant to 

§ 1321.27(d)(1) and also could include 

formerly incarcerated individuals as a 

population in greatest social need. 

Next, the State agency must describe 

how it will target each of the 

populations included in the definitions 

of greatest social need and greatest 

economic need for service delivery. This 

description may be combined with the 

determination of priority populations 

outlined in the next paragraph. For 

example, the State agency might explain 

that it will market the availability of 

OAA services to statewide advocacy 

groups serving each of the populations 

identified pursuant to § 1321.27(d). The 

State agency could describe its plans to 

issue a monthly newsletter, highlighting 

a different targeted population each 

month. 

For the third step, the State agency 

could determine that of the populations 

included in its definition, it will 

prioritize people living at or below 100 

percent of the FPL; communities that 

experience isolation due to racial or 

ethnic status, Native American identity, 

sexual orientation, gender identity, or 

sex characteristics, and rural location; as 

well as formerly incarcerated 

individuals. The State agency might 

decide to prioritize these communities 

because of the State’s demographics, 

resources, and needs; information that 

should be collected consistent with the 

practices established through the State 

agency’s policies and procedures 

(§ 1321.9(c)(3)); review of area plans 

(§ 1321.27(c)); and public participation 

process (§ 1321.29). 

For the fourth step (establishing 

methods to serve the prioritized 

populations), we note that distributing 

funds under an IFF or funds distribution 

plan is an important strategy, but not a 

required or exclusive one. To clarify 

this, ACL has modified the provision at 

§ 1321.27(d)(2) to state, ‘‘The methods 

the State agency will use to target 

services to the populations identified in 

§ 1321.27(d)(1), including how funds 

under the Act may be distributed to 

serve prioritized populations in 

accordance with requirements as set 

forth in § 1321.49 or § 1321.51, as 

appropriate.’’ 

For example, the State agency might 

use multiple methods to serve the 

priority populations in the example 

above. To serve minority individuals 

and people living at or below 100 

percent of the FPL, the State agency 

might use an IFF factor based on Census 

data, along with a base amount of 

funding to ensure service to people 

living in rural areas. In addition, the 

State agency might target services to 

formerly incarcerated individuals by 

partnering with organizations providing 

re-entry services, developing referral 

protocols, and amending a statewide 

intake form to include optional 

disclosure of membership in this 

population. Finally, the State might 

focus services to LGBTQI+ older adults 

and family caregivers, by conducting 

trainings for service providers, offering 

outreach events in each PSA in the 

State, and updating their web page, 

social media accounts, and other 

materials. 

For the final step, the State agency 

would collect data to evaluate its 

success in its targeting and 

prioritization efforts. Data collection 

and analysis efforts may encompass a 

number of quantitative and qualitative 

methods to determine the success of 

efforts, such as counting leading 

indicators like the number of new 

partnerships implemented; analyzing 

output data, such as the number of 

activities taking place in certain settings 

and/or focused toward prioritized 

populations; reviewing demographic 

data of individual program participants 

collected (which may or may not be 

reported in the State Program Report or 

other data collection that the State 

agency may require); conducting focus 

groups of service recipients and/or 

service providers; and completing 

outcome surveys with service recipients 

or community leaders. In any such data 

collection efforts, provisions of 

§ 1321.75 (Confidentiality and 

disclosure of information) apply. 

Comment: One commenter would like 

to see language added directing State 

agencies to include solo older adults as 

a target audience in their State plan, 

including how such individuals will be 

identified and served. Additionally, the 

commenter would like State agencies to 

identify amounts of funds to be directed 

toward meeting the needs of solo older 

adults. 

Response: ACL appreciates this 

comment and recognizes that older 

adults living alone are a frequently 

prioritized population for provision of 

OAA services. In fact, a number of State 

agencies use the number of individuals 

within a PSA who are ‘‘Living Alone’’ 

as a single or combined factor in 


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11596 Federal Register / Vol. 89, No. 31 / Wednesday, February 14, 2024 / Rules and Regulations 

185 Id. section 3027. 

186The No Wrong Door (NWD) System initiative 

is a collaborative effort of ACL, the Centers for 

Medicare & Medicaid Services (CMS), and the 

Veterans Health Administration (VHA). The NWD 

System initiative builds upon the Aging and 

Disability Resource Center (ADRC) program and 

CMS’ Balancing Incentive Program No Wrong Door 

requirements that support state efforts to streamline 

access to long-term services and support (LTSS) 

options for older adults and individuals with 

disabilities. NWD Systems simplify access to LTSS, 

and are a key component of LTSS systems reform. 

For more information, see: https://acl.gov/ 

programs/connecting-people-services/aging-anddisability-resource-centers-programno-wrong-door. 

187 42 U.S.C. 3027. 

distributing funds under their IFF, 

consistent with § 1321.49. We recognize 

that persons living alone may be 

included in the target populations that 

State agencies or AAAs may define 

under § 1321.27(d)(1) and 

§ 1321.65(b)(2)(i), respectively. Given 

that State agencies may consider and 

use various factors in distributing funds 

via an IFF or funds distribution plan 

(per § 1321.49 or § 1321.51(b)), and 

service providers may receive funds to 

serve various priority populations, we 

do not believe it would be feasible to 

identify specific amounts of funds to be 

directed toward meeting the needs of 

such individuals. However, we note that 

if ‘‘solo older adults,’’ individuals living 

alone, or some other priority population 

is defined by a State agency or a AAA, 

the State agency or a AAA should 

explain how such individuals will be 

served, which may include how funds 

are distributed. 

Comment: In response to ACL’s 

solicitation of input on ways ACL and 

State agencies can support 

improvements in I&A/R systems, one 

commenter highlighted the potential 

value of having one I&A/R database 

system for all AAAs and/or the entire 

aging network in a State, as well as 

potential added enhancements such as 

an internal referral system from one 

service area to another along with 

community resources. The commenter 

recommended one-time contract 

investments to secure such a system. 

Another commenter noted that 

improvements in I&A/R systems are not 

limited to State agencies and 

recommended that the contributions of 

AAAs and others be recognized and 

encouraged. 

Response: ACL appreciates this 

feedback and notes that such 

investments may be considered match, 

subject to § 1321.9(c)(2)(ii). 

Additionally, a State agency may 

establish policies and procedures 

requiring use of a standardized database 

system as set forth in § 1321.73. ACL 

enthusiastically recognizes and 

encourages the innovations of AAAs, 

service providers, and others in 

modernization and innovation efforts in 

provision of services under the Act. 

Comment: We received a comment 

recommending that the State agency 

communicate with Tribes, Tribal 

organizations, and native communities 

regarding how greatest economic need 

and greatest social need are determined 

and addressed, including regarding the 

provision at § 1321.27(d). 

Response: We appreciate this 

comment and have revised the 

provision at (g) to add that the 

determination of greatest economic need 

and greatest social need specific to 

Native American persons is identified 

pursuant to communication among the 

State agency and Tribes, Tribal 

organizations, and Native communities. 

Comment: A commenter was 

concerned that § 1321.27 is overly 

prescriptive. 

Response: As part of their 

responsibilities, State agencies must 

develop and administer a multi-year 

State plan on aging. The State plan 

delineates goals and objectives related 

to assisting older individuals, their 

families, and caregivers, and serves as a 

blueprint for achieving the goals and 

objectives during the plan period. 

Section 307 of the Act sets forth 

requirements that State plans must meet 

and content that must be included and 

authorizes the Assistant Secretary for 

Aging to establish criteria for State plan 

development and content.185 State 

agencies have considerable discretion in 

developing goals, objectives, and 

strategies for the State plan, in 

establishing the IFF or resource 

allocation plan (as applicable), and in 

prioritizing and reaching targeted 

populations for service delivery. 

Comment: A commenter 

recommended we require State agencies 

to demonstrate outreach to older Native 

Americans who do not live on Tribal 

lands in addition to coordination with 

Title VI programs. 

Response: ACL appreciates this 

comment. We note that § 1321.27(d)(1) 

requires the inclusion of those who 

experience isolation due to their Native 

Americans identity in the State agency’s 

definition of populations in the greatest 

economic need and greatest social need 

that must be addressed in the State plan. 

Native Americans, as defined in the 

rule, are not limited to Native 

Americans who live on Tribal lands. We 

have revised this provision to read, 

‘‘[. . .] where there are older Native 

Americans in any planning and service 

area, including those living outside of 

reservations and other Tribal lands.’’ 

Comment: ACL received comments 

with recommendations of topics that 

should be required to be included in 

State plans, such as aligning State plans 

with master plans for aging, age-friendly 

initiatives, and No Wrong Door 

systems; 186 and encouraging 

intergenerational programming. 

Response: As part of their 

responsibilities, State agencies must 

develop and administer a multi-year 

State plan on aging. The State plan 

delineates goals and objectives related 

to assisting older individuals, their 

families, and caregivers, and serves as a 

blueprint for achieving the goals and 

objectives during the plan period. 

Section 307 of the Act sets forth 

requirements that State plans must meet 

and content that must be included and 

authorizes the Assistant Secretary for 

Aging to establish criteria for State plan 

development and content.187

In response to the RFI and other 

requests for clarification, we establish 

additional required core elements for 

the State plan in § 1321.27, including 

that the State plan: must provide 

evidence that it is informed by, and 

based on, area plans in States with 

multiple PSAs; explain how individuals 

with greatest economic need and 

greatest social need are identified and 

served; include the State agency’s IFF or 

funds distribution plan; demonstrate 

outreach to older Native Americans and 

coordination with Title VI programs 

under the Act; certify that program 

development and coordination activities 

will meet requirements; specify the 

minimum proportion of funds that will 

be expended on certain categories of 

services; provide information if the 

State agency allows for Title III, part C– 

1 funds to be used as described in 

§ 1321.87(a)(1)(i); describe how the State 

agency will meet its responsibilities for 

the Legal Assistance Developer; explain 

how the State agency will use its elder 

abuse prevention funding awarded 

pursuant to Title VII of the Act; and 

describe how the State agency will 

conduct monitoring of the assurances to 

which they attest. 

This provision also clarifies the 

Assistant Secretary for Aging’s authority 

to establish objectives for State plans, 

including objectives related to Title VII 

of the Act. Significant issues that should 

be addressed through State plans will 

change over time, and conditions will 

vary from one State to another. For these 

reasons, we decline to establish 

additional specific content requirements 

for State plans through regulation. 

Comment: Regarding § 1321.27(j), 

which addresses the permitted use, 

subject to certain terms and conditions, 

of Title III, part C–1 funds (funds for 


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Federal Register / Vol. 89, No. 31 / Wednesday, February 14, 2024 / Rules and Regulations 11597 

188 Id. 189 Id. section 3027(a)(4). 

meals served in a congregate setting) for 

shelf-stable, pick-up, carry-out, drivethrough, or similar meals, a commenter 

requested clarification as to how to 

project that the provision of such meals 

will enhance, rather than diminish the 

congregate meal program. 

Response: ACL will address this 

comment through technical assistance, 

as needed. 

Comment: A commenter noted that 

§ 1321.27(c) requires that all State plans 

are to be informed by and based on area 

plans, while single PSA States have no 

area plans. 

Response: We appreciate this 

comment and have revised the 

provision to clarify. 

Comment: ACL received suggestions, 

recommendations, and implementation 

questions regarding § 1321.27(h), which 

addresses requirements related to 

program development and coordination 

activities. Some comments requested 

that use of funds in this manner not be 

subject to public review and comment 

requirements. 

Response: This provision does not 

substantively change the requirements 

for use of Title III–B funds for program 

development and coordination activities 

in the existing regulation. Because this 

provision allows for use of funds that 

would otherwise be required to be used 

for direct services to older adults to be 

used for program development and 

coordination purposes, we believe it is 

appropriate to retain the public review 

and comment requirement. ACL will 

address other questions regarding this 

provision through technical assistance, 

as needed. 

§ 1321.29 Public Participation 

Section 1321.27 of the existing 

regulation (Public participation) is 

redesignated here as § 1321.29. The Act 

requires State agencies to periodically 

solicit the views of older individuals, 

family caregivers, service providers, and 

the public regarding the development 

and administration of the State plan and 

the implementation of programs and 

services under the Act.188 Subsections 

1321.29(a) and (b) set forth obligations 

for public input, including that 

opportunities for public participation 

should occur periodically (at a 

minimum, once each fiscal year) and 

should include the views of family 

caregivers and service providers, with 

particular attention to those of greatest 

economic need and greatest social need. 

In response to comments to the RFI and 

the NPRM, we have revised this 

provision to clarify that the public must 

be given a reasonable minimum period 

of time (at least 30 calendar days, unless 

a waiver has been granted by the 

Assistant Secretary for Aging) within 

which to review proposed State plans 

and that State plan documents be 

readily available to the public for 

review. Pursuant to Federal civil rights 

laws, the State plan document should be 

available in alternative formats and 

other languages if requested. 

Comment: We received comments 

from individual older adults expressing 

they feel unheard and that there are not 

sufficient opportunities to provide 

input. 

Response: We appreciate the feedback 

from individual older adults, especially 

those who wish to be engaged in 

planning efforts for services under the 

Act. Sections 1321.29 (Public 

participation) and 1321.65(b)(4) 

(Submission of an area plan and plan 

amendments to the State agency for 

approval) are intended to make clear the 

importance of soliciting and using 

feedback from individual older adults 

and family caregivers. 

Comment: ACL received several 

comments requesting more specificity 

and direction regarding the requirement 

that State agencies obtain input on a 

periodic basis. 

Response: Section 307(a)(4) of the Act 

requires that State agencies procure 

public input on a ‘‘periodic’’ basis.189

The final rule defines ‘‘periodic’’ (at a 

minimum, once each fiscal year) and 

sets forth minimum requirements 

related to data collection and client 

assessments, as well as State and area 

plans and activities thereunder. The 

final rule otherwise affords State 

agencies flexibility in determining how 

to meet this requirement; ACL declines 

to impose additional conditions for 

State agencies to meet this requirement, 

as circumstances may vary from one 

State to another. 

Comment: ACL received comments 

requesting additional direction to State 

agencies in § 1321.29 to ensure that 

individuals from underserved 

communities, as well as Tribal 

governments, have an opportunity to 

participate. 

Response: ACL appreciates the 

comments and confirms § 1321.29 

requires State agencies to focus on those 

in greatest economic need and in 

greatest social need in seeking public 

input, and the definition of greatest 

social need includes Native Americans. 

Comment: One commenter requested 

that the public participation 

requirements of § 1321.29 also apply to 

area agencies. Another commenter 

recommended that ACL require each 

State agency to implement standard area 

plan needs assessment and data tools for 

use by all area agencies in the State. 

Response: Section 1321.65 requires 

State agencies to have in place 

requirements for public input with 

respect to area plans. ACL declines to 

impose additional requirements as to 

how State agencies must cause area 

agencies to seek public input, as 

conditions may vary from one State to 

another and from one region of a State 

to another. Accordingly, ACL maintains 

the regulatory text in § 1321.29. 

§ 1321.31 Amendments to the State 

Plan 

Section 1321.19 of the existing 

regulation (Amendments to the State 

plan) is redesignated here as § 1321.31. 

We make substantial revisions to this 

provision to clarify the circumstances 

under which amendments to the State 

plan are necessary. The revised 

provision also clarifies which 

amendments require prior approval by 

the Assistant Secretary for Aging and 

which only need to be submitted for 

purposes of notification. Amendments 

requiring prior approval are those 

necessary to reflect new or revised 

statutes or regulations as determined by 

the Assistant Secretary for Aging; an 

addition, deletion, or change to a State 

agency’s goal, assurance, or information 

requirement statement; a change in the 

State agency’s IFF or funds distribution 

plan for Title III funds; a request to 

waive State plan requirements; or other 

required changes. Amendments for 

purposes of notification only are those 

necessary to reflect a change in a State 

law, organization, policy, or State 

agency operation; a change in the name 

or organizational placement of the State 

agency; distribution of State plan 

administration funds for demonstration 

projects; a change in a PSA designation; 

a change in AAA designation; or 

exercising of major disaster declaration 

flexibilities, as set forth in § 1321.101. 

We also make minor revisions to reflect 

statutory updates. 

Comment: Several commenters 

expressed concern regarding delayed 

response times due to State plan 

amendment requirements for funding 

set aside to address disasters. We also 

received comments requesting that we 

clarify the timeframes for State plan 

amendment submissions in 

§ 1321.31(b). 

Response: As set forth in this 

provision and in § 1321.101, the State 

plan amendment required when using 

funds set aside to address disasters does 

not require prior approval by the 

Assistant Secretary for Aging. ACL 

intends this requirement to facilitate 


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11598 Federal Register / Vol. 89, No. 31 / Wednesday, February 14, 2024 / Rules and Regulations 

190 42 U.S.C. 3025. 

191 42 U.S.C. 3027. 

192 Id. section 3027(c)(1). 

193 42 U.S.C. 3025. 

transparency and communication in 

times of emergency and disaster and 

does not intend to delay response times. 

Through this requirement we intend to 

ensure that a State agency’s plan on 

aging accurately reflects current 

circumstances, facilitates 

communication, and promotes 

transparency. We have revised 

§ 1321.31(b) to read ‘‘[. . .] whenever 

necessary and within 30 days of the 

action(s) listed in (1) through (6) of this 

paragraph[.]’’ For clarity, we have 

removed the redundant provision at 

§ 1321.31(b)(6) and renumbered 

accordingly. We have also amended the 

other provisions of § 1321.31(b) for 

consistency. 

Comment: ACL received a comment 

requesting guidance regarding the 

timing for State plan amendments that 

may be required as a result of the 

implementation of this final rule. One 

commenter requested clarification as to 

what would constitute ‘‘[a] significant 

change in a State law, organization, 

policy, or State agency operation’’ as set 

forth in § 1321.31(b)(1). ACL also 

received a comment inquiring as to the 

status of the guidelines prescribed by 

the Assistant Secretary for Aging, 

referred to in § 1321.31(c), regarding the 

submission of information required by 

§ 1321.31. 

Response: This final rule is effective 

30 days after publication in the Federal 

Register. In consideration of comments 

related to the time required for 

implementation of the rule, we have 

decided to delay the compliance date of 

this rule until October 1, 2025. This will 

allow time for State agencies to 

incorporate the requirements of this 

final rule into State plan amendments, 

as needed, by October 1, 2025. 

ACL will address these comments 

further through technical assistance, as 

needed. 

§ 1321.33 Submission of the State Plan 

or Plan Amendment to the Assistant 

Secretary for Aging for Approval 

Section 1321.21 of the existing 

regulation (Submission of the State plan 

or plan amendment to the 

Commissioner for approval) is 

redesignated here as § 1321.33 and has 

been retitled to reflect statutory updates. 

ACL’s Regional Offices play a critical 

role in ACL’s administration and 

oversight of State plans on aging. They 

provide technical assistance to State 

agencies regarding the preparation of 

State plans and amendments and are 

responsible for reviewing those that are 

submitted for compliance with the Act. 

Previously, the regulations required 

State agencies to submit a plan or 

amendment for approval, signed by the 

Governor or the Governor’s designee, 45 

calendar days prior to its proposed 

effective date. This 45-day period does 

not provide adequate time for proper 

Regional Office review and provision of 

appropriate technical assistance, for the 

State agency then to make any changes 

that are required, and for the State 

agency to re-submit the plan or 

amendment for further review and 

approval. The failure to have a State 

plan or amendment approved in a 

timely manner could result in 

significant ramifications to a State 

agency, such as a lapse in funding under 

the Act. In addition, if a State agency 

only submits a final, signed plan or 

amendment for review, and if changes 

are needed in order to bring the plan or 

amendment into compliance with the 

Act or the Assistant Secretary for 

Aging’s guidance, the State agency 

could find itself in the difficult position 

of having to arrange for the Governor (or 

the Governor’s designee) to re-execute 

the document. We aim to improve the 

State plan and amendment submission 

and review process by adding to this 

provision a requirement that the State 

agency submit a draft of the plan or 

amendment to its assigned ACL 

Regional Office at least 120 calendar 

days prior to the proposed effective date 

and a requirement that the State agency 

cooperate with the Regional Office in 

the review of the plan or amendment for 

compliance with applicable 

requirements. 

Comment: ACL received several 

comments expressing concern that the 

requirement under § 1321.33(b) to 

submit a draft for review at least 120 

calendar days prior to the proposed 

effective date is too burdensome. 

Response: We appreciate these 

concerns but retain the requirement that 

drafts be submitted at least 120 calendar 

days prior to the proposed effective date 

of the plan or amendment. We have 

added clarification that the plan be 

submitted at least 90 calendar days 

before the proposed effective date of the 

plan or plan amendment. Submission of 

a draft is necessary to provide sufficient 

time for review and revision before the 

90-day deadline to submit the plan or 

plan amendment to the Assistant 

Secretary for Aging. We understand 

from comments that there may be 

exceptional circumstances that could 

prevent a State agency from being able 

to meet the 120- and 90-day time 

frames. In response to these concerns, 

§ 1321.33(b) permits State agencies to 

request a waiver from the Assistant 

Secretary for Aging in the event of 

exceptional circumstances. We have 

added similar language to allow for a 

similar waiver with respect to the 90- 

day time frame. 

§ 1321.35 Notification of State Plan or 

State Plan Amendment Approval or 

Disapproval for Changes Requiring 

Assistant Secretary for Aging Approval 

The provision contained in § 1321.23 

of the existing regulation (Notification 

of State plan or State plan amendment 

approval) is retitled and redesignated 

here as § 1321.35. We also make changes 

to § 1321.35(b) for consistency with 

other related provisions that address 

appeals to the Assistant Secretary for 

Aging regarding disapproval of State 

plans or amendments. 

Comment: Several commenters 

requested that ACL commit to either an 

estimated or a specific response time 

frame for State plan and State plan 

amendment submissions that require 

prior approval. 

Response: ACL will use reasonable 

efforts to respond to State plan and State 

plan amendment submissions that 

require prior approval within 90 

calendar days of receipt. This general 

timeframe may not be suitable in every 

case, as there may be conditions that 

warrant additional time for review. 

Examples of factors that may cause 

delays beyond these 90 days include 

incomplete or incorrect State plan or 

State plan amendment submissions and 

need for consultation or coordination 

with parties outside of ACL. 

§ 1321.39 Appeals to the Departmental 

Appeals Board Regarding State Plan on 

Aging 

Section 1321.77 of the existing 

regulation (Scope) is redesignated here 

at § 1321.39, retitled, and modified. 

Sections 305 190 and 307 191 of the Act, 

respectively, require a State to designate 

a State agency to carry out Title III 

programs and develop a State plan on 

aging to be submitted to the Assistant 

Secretary for Aging for approval. Per 

section 307(c)(1) 192 the Assistant 

Secretary for Aging shall not make a 

final determination disapproving any 

State plan, or any modification thereof, 

or make a final determination that a 

State agency is ineligible under section 

305,193 without first affording the State 

agency reasonable notice and 

opportunity for a hearing. 

In the past, the Assistant Secretary for 

Aging would have facilitated the 

appeals process. Consistent with 

§ 1321.17 and new § 1321.23, appeals 

have been delegated to DAB in 


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194 Id. 195 42 U.S.C. 3030n. 

accordance with the procedures set 

forth in 45 CFR part 16. The Board will 

hear the appeal and may refer an appeal 

to the DAB’s Alternative Dispute 

Resolution Division for mediation prior 

to issuing a decision. 

Delegation of appeals to the DAB will 

continue to fulfill the statutory mandate 

to afford a State agency reasonable 

notice and opportunity for a hearing, 

while streamlining administrative 

functions and providing robust due 

process protections. The HHS DAB 

provides impartial, independent review 

of disputed decisions under more than 

60 statutory provisions. We believe this 

change will provide clarity and 

consistency to State agencies and is 

aligned with the intent of the Act. 

§ 1321.41 When a Disapproval 

Decision Is Effective 

In this section, redesignated from 

existing § 1321.79, retitled, and 

modified, we remove reference to the 

‘‘Commissioner for Aging’’ and replace 

it with ‘‘the Departmental Appeals 

Board’’ to align with changes made to 

§ 1321.39. 

§ 1321.43 How the State Agency May 

Appeal the Departmental Appeals 

Board’s Decision 

In this section, redesignated from 

§ 1321.81 and retitled, we remove 

reference to the ‘‘Commissioner for 

Aging’’ and replace it with ‘‘the 

Departmental Appeals Board’’ to align 

with changes made to § 1321.39. 

§ 1321.45 How the Assistant Secretary 

for Aging May Reallot the State 

Agency’s Withheld Payments 

The provision contained in § 1321.83 

of the existing regulation (How the 

Commissioner may reallot the State’s 

withheld payments) is redesignated here 

as § 1321.45. The provision has been 

retitled, and minor, non-substantive 

changes have been made to the 

provision to reflect statutory updates. 

§ 1321.49 Intrastate Funding Formula 

The provision contained in § 1321.37 

of the existing regulation (Intrastate 

funding formula) is redesignated here as 

§ 1321.49. In states with multiple PSAs, 

State agencies provide funding to AAAs 

through the IFF. Section 305 of the Act 

sets forth requirements for the IFF 

while, at the same time, affording State 

agencies some flexibilities in its 

development and implementation.194

The changes to this provision are 

designed to assist State agencies in 

developing IFFs in compliance with the 

Act’s requirements; to clarify the 

options available to State agencies; and 

to aid them in implementation of their 

IFFs. In paragraph (a), we specify that 

the State agency must include the IFF in 

the State plan, in accordance with 

guidelines issued by the Assistant 

Secretary for Aging and using the best 

available data; that the formula applies 

to supportive, nutrition, evidence-based 

disease prevention and health 

promotion, and family caregiver 

services provided under Title III of the 

Act; and that a separate formula for 

evidence-based disease prevention and 

health promotion may be used, as per 

section 362 of the Act.195

In paragraph (b) we clarify the 

elements of the IFF. The elements 

include a descriptive statement and 

application of the State agency’s 

definitions of greatest economic need 

and greatest social need; a statement 

that discloses any funds deducted for 

allowable purposes of State plan 

administration, the Ombudsman 

program, or disaster set aside funds, as 

set forth in § 1321.99; whether a 

separate formula for evidence-based 

disease prevention and health 

promotion is used; how the NSIP funds 

will be distributed; a numerical 

mathematical statement that describes 

each factor for determining how funds 

will be allotted and the weight used for 

each factor; a listing of the data to be 

used for each PSA in the State; a 

statement of the allocation of funds to 

each PSA in the State; and the source of 

the best available data used to allocate 

the funding. 

In paragraph (c) we identify 

prohibitions related to the IFF. 

Prohibitions include that the State 

agency may not: withhold funds from 

distribution through the formula, except 

where expressly allowed for State plan 

administration, disaster set aside funds 

as set forth at § 1321.99, or the 

Ombudsman program; exceed State plan 

and area plan administration caps as 

detailed at § 1321.9(c)(2)(iv); use Title 

III, part D funds for area plan 

administration; distribute funds to any 

entity other than a designated AAA, 

except where expressly allowed for 

State plan administration funds, Title 

III, part B Ombudsman program funds, 

and disaster set-aside funds as set forth 

in § 1321.99; and use funds in a manner 

that is in conflict with the Act. 

In paragraph (d) we specify other 

requirements that apply to distribution 

of NSIP funds, including that cash must 

be promptly and equitably disbursed to 

nutrition projects under the Act and 

provisions relating to election of 

agricultural commodities. In paragraph 

(e) we state that Title VII funds or Title 

III, part B Ombudsman program funds 

under the Act may be distributed 

outside the IFF. This subsection also 

allows the State agency to determine the 

amount of funding available for area 

plan administration before deducting 

funds for Title III, part B Ombudsman 

program and disaster set-aside funds. 

We include that a State agency may 

reallocate funding within the State 

when the AAA voluntarily or otherwise 

returns funds, subject to the State 

agency’s policies and procedures. 

Revisions to paragraph (f) reflect 

statutory updates and cross-reference to 

other provisions within the regulation. 

Comment: A commenter observed that 

§ 1321.49(a) states, ‘‘The formula shall 

reflect the proportion among the 

planning and service areas of persons 

age 60 and over in greatest economic 

need or greatest social need[.]’’ The 

commenter noted that the phrase should 

read instead ‘‘greatest economic need 

and greatest social need.’’ 

Response: ACL appreciates this 

comment and has made the revision. 

Comment: Some commenters 

expressed that ACL should consider 

allowing other examples of ‘‘best 

available data’’ that capture experiences 

of LGBTQI+ populations. 

Response: ACL appreciates the 

comment but does not believe any 

changes to the rule are necessary. 

Section 1321.49(b)(5) allows for ‘‘[o]ther 

high quality data available to the State 

agency’’ to be used in the IFF. 

Comment: Some commenters 

expressed a need for a transparent 

process for the development of the IFF 

in a State, and more transparency in the 

content of the IFF. Other commenters 

requested clarification when a AAA 

serves more than one PSA. 

Response: ACL appreciates these 

comments. The provision at § 1321.49 

requires the IFF to be developed in 

consultation with the State’s area 

agencies, requires the proposed IFF to 

be published for public review and 

comment, and includes a list of specific 

information that must be included in an 

IFF. In response to comments, we have 

clarified that the public must be given 

a reasonable minimum period of time 

(at least 30 calendar days, unless a 

waiver has been granted by the 

Assistant Secretary for Aging) for review 

and comment. ACL declines to further 

dictate a specific process for the 

procurement of public input in a 

proposed IFF, as conditions may vary 

from one State to another. Instead, ACL 

leaves it to the discretion of each State 

agency to determine an appropriate 

public input process. ACL further 

believes the information required by 


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196 42 U.S.C. 3027(a)(8)(A). 197 42 U.S.C. 3026(a). 

§ 1321.49 to be included in the IFF 

provides for adequate transparency. 

Aside from clarifying the minimum 

reasonable period of time for public 

comment, ACL maintains the regulatory 

language as proposed. 

We expect that State agencies will 

exercise appropriate oversight of each 

PSA, and we agree that additional 

clarification of expectations for area 

agencies on aging that serve more than 

one PSA could be helpful. Therefore, we 

have clarified that the requirements 

under § 1321.49 should be, ‘‘specific to 

each planning and service area.’’ For 

consistency, we have similarly revised 

§ 1321.19 (Designation of and 

designation changes to area agencies), 

§ 1321.61 (Advocacy responsibilities of 

the area agency), § 1321.63 (Area agency 

advisory council), and § 1321.65 

(Submission of an area plan and plan 

amendments to the State agency for 

approval) regarding specificity to each 

PSA. 

Comment: Some commenters 

expressed concerns as to particular 

populations that they felt should be 

considered in an IFF. One commenter 

suggested prohibiting State agencies 

from considering OAA Title VI awards 

in their States in considering how to 

allocate Title III funding via the IFF. 

Response: ACL appreciates these 

comments but declines to revise 

§ 1321.49, because it already contains a 

mechanism to address these concerns 

via the IFF development process and the 

requirement for public input. However, 

ACL confirms that Title III funds must 

supplement, not supplant, Title VI 

funds and that Title VI funds should not 

be considered to be ‘‘in place of’’ or a 

substitute for Title III funding to serve 

those prioritized as being in the greatest 

economic need and greatest social need. 

Comment: ACL received comments 

and questions related to the process 

involved in revising an IFF, how often 

IFF demographic data should be 

updated, and the disbursement of NSIP 

funds. 

Response: ACL will address these 

comments and questions through 

technical assistance, as needed. 

§ 1321.51 Single Planning and Service 

Area States 

The provision contained in § 1321.41 

of the existing regulation (Single state 

planning and service area) is 

redesignated here as § 1321.51 and 

retitled. Most of the language of the 

existing provision relates to confirming 

the approval of an application of a State 

which, on or before October 1, 1980, 

was a single PSA, to continue as a single 

PSA if the State agency met certain 

requirements. Only State agencies 

currently designated as a single PSA 

State may have such status; accordingly, 

we remove this language and clarify the 

specific requirements that apply to 

operating as a single PSA State. Single 

PSA States are addressed elsewhere in 

our final regulations, including 

definitions in § 1321.3 and regarding 

designation of and changes to PSAs in 

§ 1321.13. 

Based on questions we have received 

from such State agencies, we detail 

clarifications that single PSA State 

agencies must meet requirements for 

AAAs, unless otherwise specified. In 

paragraph (b), we clarify that single PSA 

State agencies, as part of their State 

plan, must include a funds distribution 

plan that mirrors many of the 

requirements of the IFF for States with 

multiple PSAs, minus distribution to 

AAAs. The State agency must also 

provide justification if it wishes to 

provide services directly and believes it 

meets applicable requirements to do so, 

as set forth in section 307(a)(8)(A).196 In 

paragraph (c) we set forth that single 

PSA State agencies may revise their 

funds distribution plans, subject to their 

policies and procedures and prior 

approval of the Assistant Secretary for 

Aging. In response to comments, we 

have specified that the public be given 

a reasonable minimum period of time 

(at least 30 calendar days, unless a 

waiver has been granted by the 

Assistant Secretary for Aging) for review 

and comment of any proposed changes 

to the funds distribution plan. We 

include these changes to promote 

transparency and good stewardship of 

public funds. Revisions also are made to 

reflect statutory updates. 

Subpart C—Area Agency 

Responsibilities 

§ 1321.55 Mission of the Area Agency 

The provision contained in § 1321.53 

of the existing regulation (Mission of the 

area agency) is redesignated here as 

§ 1321.55. This provision specifies the 

AAA’s mission, role, and functions as 

the lead on aging issues in its PSA 

under the Act. 

The social services systems in which 

AAAs and their community partners 

operate today differs greatly from that 

which existed in 1988 when the existing 

regulation was promulgated. For 

example, in 1988 much of the work of 

AAAs involved the establishment and 

maintenance of focal points, which at 

that time were identified as ‘‘a facility 

established to encourage the maximum 

collocation and coordination of services 

for older individuals.’’ The existing 

language set forth in § 1321.53(c) 

regarding a AAA’s obligations with 

respect to focal points goes well beyond 

the requirements with respect to focal 

points that are set forth in section 306(a) 

of the Act.197 Focal points in previous 

§ 1321.53(c) focused on the need for 

brick-and-mortar facilities such as 

multipurpose senior centers. In light of 

the social service systems climate in 

which AAAs operate today, the existing 

language limiting these focal points to 

facilities could impede a AAA’s ability 

to develop and enhance comprehensive 

and coordinated community-based 

systems in, or serving, its PSA, as 

contemplated by the Act. Accordingly, 

we remove the language from this 

paragraph related to a AAA’s obligations 

with respect to focal points. 

We also make minor revisions to this 

provision to align with updates to 

statutory terminology and requirements 

resulting from reauthorizations (e.g., 

adding family caregivers as a service 

population per the 2000 amendments) 

and to emphasize the Act’s aim that 

priority be given to serving older adults 

with greatest economic need and 

greatest social need. 

Comment: ACL received several 

comments about the redesignation of 

§ 1321.53 to § 1321.55 and the removal 

of focal points, which in prior 

regulations were identified as facilities 

‘‘[. . .] established to encourage the 

maximum collocation and coordination 

of services for older individuals[.]’’ 

Many of these commenters voiced 

support for the removal of focal points 

to encourage maximum flexibility for 

area agencies to engage a broad range of 

community-based partners to provide 

OAA services. Additional commenters 

expressed concern about the removal of 

the language because of concerns about 

the impact on current brick-and-mortar 

multipurpose senior centers. One 

commenter specifically requested 

retaining ‘‘special consideration’’ of 

multipurpose senior centers and 

updating to provide flexibility to 

designate an entity rather than a facility, 

which can include virtual focal points. 

Response: As commenters noted, the 

removal of focal points recognizes the 

shifting social services environment and 

promotes flexibility surrounding the 

development of community-based 

systems that reflect the needs of a 

AAA’s PSA. The rule removes an 

obligation for all AAAs to establish and 

maintain brick-and-mortar facilities, 

though it does not preclude any AAA 

from operating multipurpose senior 

centers based upon a determination of 

the needs of their individual PSAs. 


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198 Id. section 3026(a)(6)(D). 

Thus, we maintain the regulatory 

language for § 1321.55 to provide AAAs 

the flexibility to develop and enhance a 

comprehensive and coordinated 

community-based system, which may 

include multipurpose senior centers, 

that meets the needs of their PSA. 

Comment: Some commenters 

requested a definition of ‘‘communitybased system’’ in § 1321.55(a). Other 

commenters recommended adding 

‘‘implementation’’ to the mission of the 

area agency on aging and voiced 

concern that consumers will not be 

impacted unless implementation also 

occurs. 

Response: We appreciate these 

comments, but retain the text as 

proposed. Section 1321.55(b) details 

general requirements for comprehensive 

and coordinated community-based 

systems and give an area agency the 

discretion to decide additional details of 

their comprehensive and coordinated 

community-based system as it pertains 

to the needs of their PSA. 

Comment: Some commenters sought 

more clarity in § 1321.55(b)(3) and 

asked what it means to assure that the 

range of available public and private 

long-term care services and support 

options are readily accessible to all 

older persons and their family 

caregivers, no matter their income. 

Others shared concerns about assuring 

resources given that the accessibility of 

publicly funded services and programs 

is dependent upon available funding. 

One commenter specifically requested 

that ACL shift the language from 

‘‘[a]ssure that these options are readily 

accessible [. . .]’’ to ‘‘prioritize making 

these options readily accessible.’’ 

Response: ACL appreciates comments 

regarding assurances that the range of 

available public and private long-term 

care services and support options are 

readily accessible to all older persons 

and their family caregivers, no matter 

their income. We are maintaining the 

regulatory language and emphasize that 

the language applies to available public 

and private long-term care services and 

support options. 

Comment: Some commenters asked 

ACL to clarify what it means to ‘‘offer 

special help or targeted resources’’ for 

the most vulnerable older persons, 

family caregivers, and those in danger of 

losing their independence under 

§ 1321.55(b)(6). 

Response: ACL appreciates these 

comments and reiterates that an area 

agency must prioritize services and 

supports for eligible populations with 

the greatest economic and greatest social 

need. ACL will provide technical 

assistance related to offering special 

help or targeted resources to people 

with the greatest economic and greatest 

social need, including those who are 

most vulnerable and in danger of losing 

their independence. 

Comment: Many commenters shared 

concerns about § 1321.55(b)(10) related 

to an area agency board of directors. 

Several commenters recommended that 

ACL amend the provision to eliminate 

the phrase ‘‘board of directors’’ and to 

instead require area agencies to have an 

advisory council or to ‘‘engage with’’ 

leaders in the community, including 

leaders from groups identified as in the 

greatest economic need and greatest 

social need. Some commenters noted 

that many area agencies are part of local 

governments and may not have the 

authority to establish a board of 

directors. Other commenters 

recommended that ACL remove the 

requirement for a board of directors to 

include leaders from groups identified 

as in greatest economic and greatest 

social need. 

Response: ACL appreciates the 

comments related to the regulatory text 

in § 1321.55(b)(10) and notes that both 

governmental and not-for-profit area 

agencies need an entity to be 

responsible for governance, including 

legal and fiduciary responsibilities. The 

OAA requires area agencies to establish 

advisory councils which have distinct 

responsibilities related to the 

responsibilities of an area agency that 

are separate and apart from the 

governance responsibilities of a board of 

directors.198 We note that this provision 

contains only minor changes from the 

existing rule which stated, ‘‘(10) Be 

directed by leaders in the community 

who have the respect, capacity and 

authority necessary to convene all 

interested persons, assess needs, design 

solutions, track overall success, 

stimulate change and plan community 

responses for the present and for the 

future.’’ 

Thus, we decline to eliminate the 

regulatory text which states, ‘‘(10) Have 

a board of directors comprised of 

leaders in the community, including 

leaders from groups identified as in 

greatest economic need and greatest 

social need, who have the respect, 

capacity and authority necessary to 

convene all interested persons, assess 

needs, design solutions, track overall 

success, stimulate change, and plan 

community responses for the present 

and for the future.’’ 

We acknowledge that governance 

responsibilities for government-based 

area agencies often reside with an 

elected Board of Commissioners or other 

elected officials. In this specific 

governance structure, an area agency 

may not have authority to establish a 

separate board of directors for the area 

agency or to broaden the composition of 

an elected board to include leaders from 

groups identified as in the greatest 

economic and greatest social need. For 

this reason, ACL will provide technical 

assistance regarding government-based 

area agencies who do not have the 

authority to establish a separate board of 

directors that includes leaders of groups 

identified as in greatest economic need 

and greatest social need to ensure the 

needs of these populations are reflected 

in the composition of the board of 

directors for the AAA. 

Comment: Some commenters shared 

concerns related to the feasibility of 

monitoring an area agency under 

§ 1321.55(d) to ensure that it is not 

engaging in activities that are 

inconsistent with the mission of the Act 

or State agency policies. 

Response: ACL appreciates comments 

related to ensuring that area agencies 

activities are in alignment with the 

provisions detailed in §§ 1321.55 and 

1321.9. We decline to amend the 

regulatory language because subpart C is 

specific to the responsibilities of an area 

agency. The State agency’s 

responsibilities include monitoring the 

programs and activities initiated under 

part 1321, including AAA activities 

under this part. 

§ 1321.57 Organization and Staffing of 

the Area Agency 

The provision contained in § 1321.55 

of the existing regulation (Organization 

and staffing of the area agency) is 

redesignated here as § 1321.57. 

The existing language in paragraph 

(a)(2) of this provision prohibits a 

separate organizational unit within a 

multipurpose agency which functions as 

the AAA from having any purpose other 

than serving as a AAA. The Act 

promotes AAAs as innovative, 

collaborative organizations which adapt 

to ever-evolving social service, health, 

and economic climates. We eliminate 

this prohibition to provide more 

flexibility to AAAs to conduct their 

operations, subject to State agency 

policies and procedures. Adequate 

safeguards exist in the Act and in the 

regulation (such as requirements with 

respect to COI) to render this restriction 

unnecessary. 

We also make a minor revision to 

paragraph (a)(1) to take into account the 

addition of family caregivers as a service 

population pursuant to the 2000 

amendments to the Act (Pub. L. 106– 

501). We also include minor revisions to 

this provision to update cross-references 

to other sections of the regulation. 


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199 42 U.S.C. 3025(a)(1)(D). 

200 42 U.S.C. 3026(a)(6)(B). 

201 42 U.S.C. 3025. 

Comment: ACL received many 

comments about the proposed 

elimination of the requirement in the 

prior regulation (§ 1321.55(a)(2)), which 

prohibited a separate organizational unit 

within a multipurpose agency which 

functions as the AAA from having any 

purpose other than serving as an area 

agency. Most of these commenters 

expressed support for the proposed 

elimination of this requirement and 

observed that this change reflects the 

range of area agency governance 

structures and provides an area agency 

the flexibility to expand service 

offerings and funding sources. Other 

commenters shared concerns about the 

potential for the proposed language to 

restrict State agency approval authority 

and the importance of policies and 

procedures for area agencies within 

larger multipurpose agencies. 

Response: As commenters noted, the 

elimination of the requirement referred 

to in the paragraph above in the prior 

regulation at § 1321.55(a)(2) and renumbered in this final rule as 

§ 1321.57(a)(2) reflects the current range 

of area agency governance structures. It 

also promotes AAAs as innovative, 

collaborative organizations which adapt 

to ever-evolving social service, health, 

and economic climates. The elimination 

of this requirement provides more 

flexibility to AAAs to conduct their 

operations. ACL maintains that 

adequate safeguards exist in the Act and 

the regulations, such as requirements 

with respect to COI and adherence to 

State agency policies and procedures, to 

ensure that area agency activities align 

with the provisions detailed in 

§ 1321.55. 

Comment: Some commenters 

requested that § 1321.57(a)(1) be 

amended to provide flexibility to an 

area agency to provide programs to 

other populations, beyond older adults 

and family caregivers, including adults 

with disabilities. 

Response: The Act provides area 

agencies with the statutory authority to 

serve adults aged 60 years and older, 

including those with disabilities, and 

their family caregivers. ACL made a 

minor revision to § 1321.57(a)(1) to 

account for the addition of family 

caregivers as a service population 

pursuant to the 2000 amendments to the 

Act (Pub. L. 106–501) and declines to 

add additional service populations 

because we do not have the statutory 

authority to do so. 

Comment: One commenter 

recommended the elimination of 

§ 1321.57(b) due to concerns regarding 

the costs associated with administrative 

functions for area agencies. 

Response: ACL appreciates comments 

regarding the financial costs associated 

with administrative functions of area 

agencies. However, in light of the area 

agency responsibilities detailed 

throughout subpart C, area agencies 

need adequate and qualified staff to 

implement the provisions throughout 

this subpart. For this reason, we 

maintain this provision as proposed. 

§ 1321.61 Advocacy Responsibilities of 

the Area Agency 

We make minor revisions to this 

provision for clarity and to take into 

account the addition of family 

caregivers as a service population 

pursuant to the 2000 amendments to the 

Act (Pub. L. 106–501). 

Comment: We received one comment 

asserting that the AAA’s role is to 

investigate abuses in government and 

asking for AAAs to have the right to 

administrative hearings with ACL. 

Response: ACL disagrees with the 

commenter that the advocacy role of 

AAAs is to investigate abuses in 

government. As stated in the Act, the 

role of the State agency is to, ‘‘serve as 

an effective and visible advocate for 

older individuals by reviewing and 

commenting upon all State plans, 

budgets, and policies which affect older 

individuals and providing technical 

assistance to any agency, organization, 

association, or individual representing 

the needs of older individuals[.]’’ 199

Subsequently, the Act states that the 

AAA will, ‘‘serve as the advocate and 

focal point for older individuals within 

the community by (in cooperation with 

agencies, organizations, and individuals 

participating in activities under the 

plan) monitoring, evaluating, and 

commenting upon all policies, 

programs, hearings, levies, and 

community actions which will affect 

older individuals[.]’’ 200

Under Title III of the Act, the State 

agency is the grantee of ACL.201 Title III 

of the Act provides for appeals by the 

grantee (the State agency), for which 

provisions are set forth at § 1321.39 and 

§ 1321.43. Title III of the Act also 

provides for appeal by applicants 

seeking designation as a PSA, as set 

forth at § 1321.17, and if a State agency 

initiates an action or proceeding to 

withdraw designation of an area agency 

on aging, as set forth at § 1321.23. 

Under § 1321.9, the State agency is 

responsible for developing, 

implementing, monitoring, and 

enforcing policies and procedures 

governing all aspects of part 1321 and 

part 1324. Such policies and procedures 

may include appeals processes at the 

State level. The intent of the Act is to 

foster a cooperative approach between 

State and community-based entities. 

When conflicts occur, we expect that 

application of State agency policies and 

procedures, in addition to technical 

assistance and robust discussion, will 

assist all parties in finding resolution 

that maximizes the intent of the Act. 

Comment: Several commenters 

expressed support for the additional 

clarity surrounding the advocacy 

responsibilities of an area agency in 

§ 1321.61, including the addition of 

family caregivers as a service 

population. One commenter asked for 

the definition of family caregiver to be 

expanded to include older relative 

caregivers. Several commenters noted 

barriers to successfully implementing 

the advocacy responsibilities of the area 

agency, including representing the 

interests of older persons and family 

caregivers to local level and executive 

branch officials, public and private 

agencies, or organizations, as required 

by the Act and this regulation. Other 

commenters requested clarification 

about the application of this provision 

when a AAA serves more than one PSA. 

Response: ACL appreciates the 

comments related to the advocacy 

responsibilities of an area agency and 

notes that the definition of family 

caregiver in § 1321.3 includes older 

relative caregivers to ensure the 

consideration of older relative 

caregivers as advisory council members. 

ACL will also continue to provide 

technical assistance surrounding best 

practices related to serving as a public 

advocate for the development or 

enhancement of comprehensive and 

coordinated community-based systems 

of services, including consistently 

conducting outreach to the public 

related to the needs of older persons and 

family caregivers in PSAs. 

We expect that State agencies will 

exercise appropriate oversight of each 

PSA, and we agree that additional 

clarification of expectations for area 

agencies on aging that serve more than 

one PSA could be helpful. Therefore, we 

have added clarification at § 1321.61 

(Advocacy responsibilities of the area 

agency) to state, ‘‘and specific to each’’ 

in reference to the PSA. For consistency, 

we have similarly revised § 1321.19 

(Designation of and designation changes 

to area agencies), § 1321.49 (Intrastate 

funding formula), § 1321.63 (Area 

agency advisory council), and § 1321.65 

(Submission of an area plan and plan 

amendments to the State agency for 

approval) regarding specificity to each 

PSA. 


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202 42 U.S.C. 3026. 203 Id. section 3026. 

§ 1321.63 Area Agency Advisory 

Council 

The provision contained in § 1321.57 

of the existing regulation (Area agency 

advisory council) is redesignated here as 

§ 1321.63. Section 306 of the Act 202

requires AAAs to seek public input with 

respect to the area plan; accordingly, we 

include new language in this section 

clarifying the AAA’s advisory council 

duties with regard to soliciting and 

incorporating public input. Minor 

changes are made to the language 

describing the required composition of 

the advisory council, in order to clarify 

(1) that council members should include 

individuals and representatives of 

community organizations from or 

serving the AAA’s PSA, including 

individuals identified as in greatest 

economic need and individuals 

identified as in greatest social need; (2) 

that a main focus of the council should 

be to assist the AAA in targeting 

individuals of greatest social need and 

greatest economic need; and (3) that 

providers of the services provided 

pursuant to Title III of the Act, as well 

as representatives from Indian Tribes 

and older relative caregivers, should be 

represented in the council. 

We also make minor revisions to this 

provision to take into account the 

addition of family caregivers as a service 

population pursuant to the 2000 

amendments to the Act (Pub. L. 106– 

501). 

Comment: Commenters shared 

concerns that service providers on a 

council may inappropriately influence 

decisions related to awarding OAA 

funds, even if they abstain from voting 

on funding decisions. ACL received 

many comments on § 1321.63(b), 

§ 1321.63(b)(4), and § 1321.63(b)(5) 

regarding the inclusion of Title III 

service delivery representatives and 

representatives of health care provider 

organizations as members of an area 

agency advisory council. Most 

commenters expressed concern about 

the participation of service providers or 

representatives of health care provider 

organizations on an area agency 

advisory council due to the potential for 

COI and the perception that 

participation may benefit one service 

provider over a different potential 

service provider. Some commenters 

expressed support for the inclusion of 

Title III service delivery representatives, 

including volunteer service delivery 

providers, on an area agency advisory 

council. 

Response: ACL appreciates the 

comments regarding the inclusion of 

Title III service delivery representatives 

and health care representatives as 

members of an area agency advisory 

council. We decline to revise the 

regulatory text at § 1321.63(b) 

introductory text and (b)(4) and (5) 

because the primary focus of the council 

should be to assist the area agency in 

developing and coordinating 

community-based systems of services, 

including targeting individuals of the 

greatest economic and greatest social 

need. Service providers and health care 

provider representatives are 

fundamental to developing communitybased systems of services that reach 

these populations. To clarify, the 

advisory council is required to function 

as a separate body from the AAA’s 

governing body. The governing body is 

responsible for making funding 

decisions and other matters related 

AAA leadership. In contrast, the 

advisory council is responsible for 

providing local feedback from the 

community to assist the governing 

body’s leadership in developing, 

administering, and operating the area 

plan on aging. The OAA requires that 

service providers be among the 

members of the AAA’s advisory 

council.203 ACL recognizes the concerns 

regarding COI and has established COI 

requirements at § 1321.47 (Conflicts of 

interest policies and procedures for 

State agencies) and § 1321.67 (Conflicts 

of interest policies and procedures for 

area agencies on aging). These 

provisions specifically list advisory 

council members among the individuals 

to whom these provisions apply. 

Further, § 1321.67 of this rule requires 

area agencies to develop and maintain 

COI policies, including related to 

governing boards and advisory councils, 

to avoid actual, perceived, or potential 

COI. We believe the COI policy 

requirement serves as an adequate 

guardrail against the concern raised by 

commenters related to service providers 

and health care provider organizations 

serving on area agency advisory 

councils. 

Comment: Several commenters 

requested revisions to clarify the role of 

an area agency advisory council and the 

distinction between an advisory council 

and a board of directors. Specifically, 

commenters recommended adding 

language restricting an advisory council 

from also operating as a board of 

directors and prohibiting members from 

serving on both the area agency advisory 

council and the board of directors. Some 

commenters requested guidance on the 

decision-making authority of advisory 

councils, especially regarding the 

development and submission of the area 

plan. Other commenters questioned 

whether an AAA that is designated to 

serve multiple PSAs as allowed by 

§ 1321.19(a) is required to have an 

advisory council for each PSA or may 

have an advisory council subcommittee 

for each PSA. 

Response: ACL appreciates the 

requests for clarity related to the role of 

an area agency advisory council. The 

primary focus of the area agency 

advisory council should be to assist the 

area agency in developing communitybased systems of services targeting 

individuals with the greatest social need 

and greatest economic need. Section 

1321.63(a)(1) through (5) details how 

the advisory council can assist an area 

agency in ensuring that individuals with 

the greatest social need and greatest 

economic need are prioritized in an 

advisory capacity. Except for the change 

noted below, we are maintaining the 

language as is in § 1321.63(a)(1) through 

(5) because it details the primary 

functions of an advisory council as 

advisors to an area agency. 

Regarding AAAs which serve 

multiple PSAs, we have revised 

§ 1321.63(a) to specify, ‘‘The council 

shall carry out advisory functions which 

further the area agency’s mission of 

developing and coordinating 

community-based systems of services 

for all older persons and family and 

older relative caregivers specific to each 

planning and service area.’’ We decline 

to provide further detail in the rule 

regarding how each PSA will be 

addressed and leave this to State and 

area agency policies and procedures to 

accomplish. 

In light of the comments received 

regarding both the role of an advisory 

council and the role of a board of 

directors, ACL will provide technical 

assistance regarding the functions of an 

advisory council, the functions of a 

board of directors or governing body, 

corresponding best practices regarding 

AAAs serving multiple PSAs, and COI 

policies and procedures for advisory 

and governing bodies. In response to 

comments, we have added new 

§ 1321.63(d), clarifying that an advisory 

council may not operate as a board of 

directors, and prohibiting members from 

serving on both the advisory council 

and the board of directors. 

Comment: A couple of commenters 

requested revisions to clarify the 

requirements for public hearings related 

to the area plan and the role of the 

advisory council. Other commenters 

requested expansion of the language in 

§ 1321.63(a)(3) to include ‘‘or otherwise 

ensuring community engagement and 

obtaining community input.’’ Some 


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204 Id. 

205 Id. 

206 42 U.S.C. 3027(a)(8). 

207 42 U.S.C. 3026(a)(2). 

noted support for the additional clarity 

surrounding the advisory council’s role 

in soliciting and incorporating public 

input into the area plan. 

Response: ACL appreciates comments 

related to public hearings related to the 

area plan, and the role of the advisory 

council in soliciting and incorporating 

public input into the area plan. Section 

306 of the Act requires area agencies to 

seek public input with respect to the 

area plan.204 The rule at § 1321.63 

clarifies that the council must advise the 

area agency in conducting public 

hearings, among other activities. For 

example, the advisory council may 

advise the area agency on how to ensure 

that individuals of the greatest social 

and greatest economic need are 

included in the hearings. We maintain 

the language in § 1321.63(a)(3) and 

reference in § 1321.63(c) which clarifies 

that the advisory council shall review 

and provide comments related to the 

area plan to the area agency prior to the 

area agency’s submission of the plan to 

the State agency for approval. In light of 

the comments received, ACL will 

provide technical assistance related to 

the parameters for public hearings, the 

role of the advisory council in soliciting 

and incorporating public input, and best 

practices soliciting and incorporating 

public input, especially from 

individuals with the greatest social and 

greatest economic need, into the area 

plan. 

Comment: A couple of commenters 

asked us to clarify the meaning of 

‘‘[r]epresentatives from Indian Tribes, 

Pueblos, or Tribal aging programs’’ as 

proposed in § 1321.63(b)(9)(i) and one 

specifically recommended that the 

proposed provision be revised to 

include both unofficial and official 

representatives. 

Response: In § 1321.63(b) ACL lists 

the individuals and representatives of 

community organizations who shall 

comprise the AAA’s advisory council. 

These may include both official and 

unofficial representatives. For example, 

a AAA serving a large metropolitan area 

may serve Native Americans from 

multiple Indian Tribes, including those 

a far distance from the AAA’s service 

area. The provision at § 1321.63(b)(9)(i) 

encourages individuals who represent 

Indian Tribes, Pueblos, or Tribal aging 

programs, whether formally or 

informally, to be considered as members 

of the AAA’s advisory council. We 

encourage official representation by 

Indian Tribes, Pueblos, or Tribal aging 

programs to be provided in AAA 

advisory council composition. 

Comment: ACL received many 

comments regarding proposed 

§ 1321.63(b)(1) which requires that the 

majority, or more than 50 percent, of 

area agency advisory council members 

be older persons, including minority 

individuals who are participants or who 

are eligible to participate in the 

programs. Most of these commenters 

expressed support for this requirement 

and noted the importance of ensuring 

that the service populations’ 

perspectives are included in area agency 

plans and policies. Some commenters 

specifically supported the inclusion of 

older adults with the greatest economic 

or greatest social need, including 

LGBTQI+ older adults and people with 

HIV. Other commenters requested 

flexibility surrounding advisory council 

composition because of concerns related 

to recruiting volunteer advisory council 

members, including those in rural 

communities, and with the greatest 

economic or greatest social need. One 

commenter specifically requested that 

we define the term ‘‘efforts’’ in relation 

to including those identified as in the 

greatest economic need and greatest 

social need. 

Response: ACL appreciates comments 

regarding the proposed requirements 

that the majority of advisory council 

members be older persons who are 

eligible to participate in area agency 

programming and that area agencies 

must intentionally seek to include those 

in the greatest economic and greatest 

social need. The primary focus of the 

advisory council is to assist the area 

agency in coordinating communitybased systems of services for all older 

persons and family and older relative 

caregivers in the PSA. The inclusion of 

older adult members who have the 

greatest economic or greatest social need 

will help to ensure that the perspectives 

of these communities are represented in 

the area plan. For this reason, we are 

maintaining § 1321.63(b)(1) as proposed 

and emphasize that the language 

encourages but does not require area 

agencies to appoint advisory council 

members representing those identified 

as in the greatest economic or greatest 

social need. This provides area agencies 

the flexibility sought by several 

commenters regarding council 

composition due to concerns about 

volunteer recruitment. ACL will 

continue to provide technical assistance 

regarding recruiting older adult advisory 

council member volunteers in diverse 

geographical settings, including those 

identified as in the greatest economic or 

greatest social need, including how an 

area agency can demonstrate ‘‘effort’’ to 

recruit older adult advisory council 

members with the greatest economic or 

greatest social need. 

Comment: Several commenters voiced 

support for the inclusion of family 

caregivers in area agency advisory 

council membership, as proposed in 

§ 1321.63(b)(3) and § 1321.63(b)(9)(ii). 

Some commenters specifically 

requested that ACL add ‘‘kinship 

caregivers’’ to § 1321.63(b)(3) to ensure 

that older relative caregivers raising 

grandchildren are included in an area 

agency’s advisory council. 

Response: ACL appreciates comments 

related to the inclusion of family 

caregivers and older relative caregivers 

as members of area agency advisory 

councils. The 2000 amendments to the 

Act (Pub. L. 106–501) added family 

caregivers as a service population and 

the revision at § 1321.63(b)(3) reflects 

this addition. As commenters noted, 

many older adults are kin or 

grandparent caregivers, and § 1321.3 

includes older relative caregivers in the 

definition of family caregiver. We 

further specify ‘‘Older relative 

caregivers, including kin and 

grandparent caregivers of children or 

adults age 18 to 59 with a disability’’ in 

§ 1321.63(b)(9)(ii). Therefore, we are 

maintaining the language for 

§ 1321.63(b)(3). 

§ 1321.65 Submission of an Area Plan 

and Plan Amendments to the State 

Agency for Approval 

The provision contained in § 1321.52 

(Evaluation of unmet need) and 

§ 1321.59 (Submission of an area plan 

and plan amendments to the State for 

approval) of the existing regulation are 

combined and redesignated here as 

§ 1321.65. The State agency is 

responsible for ensuring that area plans 

comply with the requirements of section 

306 of the Act.205 The final rule 

includes revisions to this provision to 

clarify for State agencies the area plan 

requirements that should be addressed 

by State agency policies and procedures. 

These include identification of 

populations in the PSA of greatest 

economic need and greatest social need; 

evaluation of unmet needs; public 

participation in the area plan 

development process; plans for which 

services will be provided, how services 

will be provided, and how funding will 

be distributed; a process for determining 

if a AAA meets requirements to provide 

certain direct services pursuant to 

section 307(a)(8) 206 of the Act; 

minimum adequate proportion 

requirements per section 306(a)(2) 207 of 


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the Act; and requirements for program 

development and coordination activities 

as set forth in § 1321.27(h). State 

agencies may include other 

requirements that meet State-specific 

needs. 

We make an addition to area plan 

requirements to reflect changes in the 

nutrition program, as discussed above. 

Consistent with § 1321.87, if State 

agency policies and procedures allow 

for the service option to provide shelfstable, pick-up, carry-out, drive-through, 

or similar meals under Title III, part C– 

1, AAAs will be required to provide this 

information in their area plans to ensure 

AAAs are aware of, and in compliance 

with, the applicable terms and 

conditions for use of such funds. It will 

also provide State agencies and ACL 

necessary information to determine the 

extent to which AAAs plan to 

implement this allowable use of Title 

III, part C–1 funds for new service 

delivery methods. 

In paragraphs (c) and (d) we include 

additions to reflect statutory updates 

with respect to inclusion of hunger, 

food insecurity, malnutrition, social 

isolation, and physical and mental 

health conditions and furnishing of 

services consistent with self-directed 

care in area plans. In response to 

questions received, we clarify in 

paragraph (e) that area plans must be 

coordinated with and reflect State plan 

goals. This provision parallels 

§ 1321.27(c), which requires the State 

plan to provide evidence the plan is 

informed by and based on area plans. 

State plans and area plans may have 

cycles that align or vary, based on 

multiple considerations. With this 

provision, we clarify that State plans 

and area plans processes should be 

iterative, where each informs the other. 

Comment: One commenter expressed 

support for the clarified requirements 

for area plans and associated activities. 

Other commenters requested that we 

clarify application of this provision to 

AAAs that serve more than one PSA. 

Response: We appreciate these 

comments. We expect that State 

agencies will exercise appropriate 

oversight of each PSA, and we agree that 

additional clarification of expectations 

for area agencies that serve more than 

one PSA would be helpful. Therefore, 

we have revised § 1321.65 (Submission 

of an area plan and plan amendments 

to the State agency for approval) to 

state, ‘‘specific to each planning and 

service area.’’ For consistency, we have 

made similar revisions to § 1321.19 

(Designation of and designation changes 

to area agencies), § 1321.49 (Intrastate 

funding formula), § 1321.61 (Advocacy 

responsibilities of the area agency), and 

§ 1321.63 (Area agency advisory 

council) regarding specificity to each 

PSA. 

Comment: ACL received many 

comments about the proposed 

regulatory language for § 1321.65(b)(2) 

which requires an area agency to 

identify populations at the greatest 

economic need and greatest social need 

within the PSA. Most of the commenters 

expressed support for area agencies 

identifying populations at the greatest 

economic need and greatest social need 

in their PSAs as part of the area plan 

process. Some commenters observed 

that it may be difficult for area agencies 

to identify and collect data related to 

populations at the greatest economic 

need and greatest social need. Other 

commenters argued for broader language 

to encourage local flexibility in 

determining those with the greatest 

economic and greatest social need. 

A few commenters recommended that 

ACL require area agencies to work in 

partnership with organizations that 

serve populations with the greatest 

economic need and greatest social need 

to determine prioritization of programs 

and services for these populations. 

Specifically, a couple of commenters 

recommended that ACL require State 

agencies to grant area agencies and 

Centers for Independent Living (CILs) 

equal responsibility for determining and 

prioritizing populations with the 

greatest economic need and greatest 

social need for an area plan. 

Response: ACL appreciates the 

comments regarding identifying older 

adults with the greatest economic need 

and greatest social need as part of the 

area plan. As commenters noted, the 

rule at § 1321.65(b) provides area 

agencies with the flexibility to identify 

populations within their individual 

PSAs and ensures that area plans 

prioritize serving older individuals with 

the greatest economic need and greatest 

social need. We require the area agency 

to identify select populations and 

encourage area agencies to select 

additional populations as needed based 

upon the unique characteristics of their 

PSAs for the area plan. We have revised 

the regulatory text at § 1321.65(b)(2)(i) 

to clarify our expectations for area 

plans. In accordance with policies and 

procedures established by the State 

agency, we expect AAAs to: (1) identify 

and consider populations in greatest 

economic need and greatest social need; 

(2) describe how they target the 

identified populations for service 

provision; (3) establish priorities to 

serve one or more of the identified target 

populations, given limited availability 

of funds and other resources; (4) 

establish methods for serving the 

prioritized populations; and (5) use data 

to evaluate whether and how the 

prioritized populations are being served. 

ACL also appreciates comments 

related to ensuring that representatives 

from groups with the greatest economic 

need and greatest social need are 

involved in the identification of these 

groups and in the related prioritization 

of programs and services. The Act 

requires area agencies to form advisory 

councils and § 1321.63 clarifies the role 

of the council, including in assisting 

area agencies in targeting individuals of 

greatest economic need and greatest 

social need, and requires the majority of 

members be older adults, including 

older adults with disabilities. The 

advisory council should seek to ensure 

that the area plan accurately identifies 

communities of greatest economic need 

and greatest social need and that public 

input from these individuals be 

incorporated into the area plan. 

As the responsibility for the area plan 

is statutorily required to be with the 

State agency and the area agency, we 

cannot assign such responsibilities to 

other entities. However, we encourage 

area agencies to work collaboratively 

with other entities in the community in 

development and administration of the 

area plan on aging. 

Comment: ACL received many 

comments related to proposed 

§ 1321.65(b)(3) which requires area 

plans to provide an assessment and 

evaluation of unmet need for supportive 

services, nutrition services, evidencebased disease prevention and health 

promotion, family caregiver support, 

and multipurpose senior centers. Most 

commenters specifically expressed 

appreciation for the inclusion of an 

assessment and evaluation of unmet 

needs in area plans and noted that the 

requirement may enable area agencies to 

address local need more intentionally. 

Some commenters recommended that 

area agencies support culturally 

responsive outreach and data collection 

programming to ensure that the needs of 

populations with the greatest economic 

need and greatest social need, including 

LGBTQI+ persons and people with HIV, 

be included in the assessment and 

evaluation. Other commenters 

recommended that ACL expand the 

proposed assessment and evaluation to 

include other programs and service 

areas that impact older adults, including 

supportive services that disseminate 

information and provide access to 

assistive technology devices through a 

State assistive technology entity. 

A variety of commenters shared 

concerns about the capacity and training 

needed to develop specific data 

collection strategies to implement 


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208 42 U.S.C. 3030d. 

proposed § 1321.65(b)(3). These 

commenters generally recommended 

that ACL provide area agencies 

flexibility surrounding strategies for 

conducting assessment and evaluation. 

Response: ACL appreciates the 

comments related to assessment and 

evaluation of unmet need. As 

commenters noted, § 1321.65(b)(3) 

equips area agencies with the data 

needed to prioritize resources and to 

address need more intentionally within 

the PSA. In recognition of the 

challenges of collecting statistically 

valid data, we modify the language to 

read, ‘‘[. . .] objectively collected, and 

where possible, statistically valid, data 

with evaluative conclusions[.]’’ The 

language also broadly includes 

‘‘supportive services’’ which provides 

area agencies the flexibility to conduct 

assessments and evaluation of unmet 

need based upon considerations within 

the PSA. Additionally, § 1321.65(c) 

requires area plans to incorporate 

services which address the incidence of 

hunger, food insecurity and 

malnutrition, social isolation, and 

physical and mental health conditions. 

Further, the language does not limit the 

evaluation to programs exclusively 

funded by the Act. Therefore, we are 

making no further changes to 

§ 1321.65(b)(3). However, in light of the 

comments received regarding the 

training and capacity needed to develop 

specific data collection strategies and to 

implement this section, ACL will 

provide technical assistance regarding 

best practices and tools for assessing 

and evaluating unmet need within a 

PSA. 

Comment: Several commenters voiced 

support for proposed regulatory 

language at § 1321.65(b)(4) which 

requires public participation, 

specifically from older adults with the 

greatest economic need and the greatest 

social need, in area plan development. 

Comments generally supported public 

participation in area plan development 

though also expressed concern about the 

proposed ‘‘minimum time period’’ and 

effective date of the new area plan 

requirements. Some comments noted 

concern about the proposed 

requirements’ impact on administrative 

capacity. 

Response: ACL appreciates comments 

related to public participation in area 

plan development and has revised the 

regulatory language at § 1321.65(b)(4) to 

specify that the public must be given a 

reasonable minimum period of time (at 

least 30 calendar days, unless a waiver 

has been granted by the State agency). 

Area agency advisory councils should 

provide area agencies with additional 

capacity to support the solicitation of 

public participation in area plan 

development through public hearings 

and related opportunities for feedback, 

especially for older adults with the 

greatest economic need and greatest 

social need. In light of the feedback 

received, we will offer technical 

assistance regarding best practices for 

timely solicitation and reporting related 

to public participation for area agencies 

and their advisory councils. 

Subpart D—Service Requirements 

§ 1321.71 Purpose of Services 

Allotments Under Title III 

The provision contained in § 1321.63 

of the existing regulation (Purpose of 

services allotments under Title III) is 

redesignated here as § 1321.71. We 

make minor revisions to this provision 

to reflect statutory updates with respect 

to services provided under Title III, as 

well as to provide consistency with 

other updates to the regulation. For 

example, we make minor revisions to 

this provision to take into account the 

addition of the National Family 

Caregiver Support Program and family 

caregivers as a service population 

pursuant to the 2000 amendments to the 

Act (Pub. L. 106–501). Additional minor 

revisions are included for clarity, such 

as distinctions in the manner in which 

Title III funds are awarded between 

single PSA States and States with 

AAAs, with cross-references to language 

on IFFs, funds distribution plans, and 

provision of direct services by State 

agencies and AAAs. 

Comment: We received comments of 

support for including family caregivers 

as a service population. 

Response: We appreciate these 

comments. 

Comment: We received comment 

asking us to clarify whether information 

technology systems that support direct 

service provision may be funded with 

direct services funding under Title III of 

the Act. 

Response: ACL appreciates this 

concern and confirms that Title III 

direct services funds may be used for 

reasonable, allowable, and allocable 

expenses necessary for the provision of 

direct services, subject to appropriate 

procurement and other policies and 

procedures. This may include 

information technology systems; 

devices, such as laptop or tablet 

computers and smartphones; and 

training of staff and volunteers. 

Comment: We received comment 

expressing concern that the 

Ombudsman program was not listed as 

an allowable supportive service. 

Response: As proposed, § 1321.85(a) 

references the twenty-six items listed at 

section 321 of the Act, of which 

ombudsman services are included.208

ACL confirms that ombudsman services 

are an acceptable use of funds 

appropriated under Title III, part B. 

Comment: We received a suggestion 

to clarify that the IFF referenced in 

§ 1321.71(c) is the one set forth at 

§ 1321.49. 

Response: We are grateful to 

commenters for noting this and correct 

the provision to read ‘‘[. . .] as set forth 

in § 1321.49.’’ 

§ 1321.73 Policies and Procedures 

The provisions contained in § 1321.65 

of the existing regulation 

(Responsibilities of service providers 

under area plans) are redesignated and 

revised in part here as § 1321.73 and 

§ 1321.79. Revised § 1321.73 sets forth 

requirements to ensure AAAs and local 

service providers develop and 

implement policies and procedures to 

meet requirements set by State agency 

policies and procedures, in accordance 

with § 1321.9. Accordingly, we move 

the requirements previously set forth in 

(b)–(g) to other sections. We also specify 

that the State agency and AAAs must 

develop monitoring processes, the 

results of which are strongly encouraged 

to be made available to the public. 

Doing so may be one way to ensure 

accountability and stewardship of 

public funds, as required by the Act. 

Comment: We received comments 

supporting this provision, as well as 

requesting clarity on the expectations 

for an ‘‘independent qualitative and 

quantitative monitoring process.’’ We 

received other comments requesting 

clarification on whether assessments 

and assessment policies must be made 

available to the public. Other comments 

requested development of a core set of 

services to be provided by all AAAs 

with standardized quality measures. 

Response: ACL expects that the State 

agency and AAAs will conduct 

qualitative and quantitative monitoring 

of the programs and services funded 

under the Act. Use of funds provided for 

State and area plan administration for 

such monitoring is appropriate. ACL 

acknowledges the wide range of 

circumstances and resources for 

conducting monitoring and determining 

independence of those conducting 

monitoring. We believe this provision 

strikes the appropriate balance between 

providing sufficient guidance to State 

agencies and AAAs for implementation 

while maintaining flexibility to respond 

to local needs and circumstances. This 

includes determinations regarding 

whether to make quality monitoring and 


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Federal Register / Vol. 89, No. 31 / Wednesday, February 14, 2024 / Rules and Regulations 11607 

209 Model Rules of Professional Conduct: Rule 1.6 

Confidentiality of Information, The Am. Bar Assn. 

(1983), https://www.americanbar.org/groups/ 

professional_responsibility/publications/model_

rules_of_professional_conduct. 

210Public Law 104–191; 110 Stat. 1936. 

211 45 CFR 160.310. 

measurement results available to the 

public. ACL is available to provide 

technical assistance on these topics. 

Title III of the Act contains certain 

core required services and standards 

(such as the provision of meals that 

meet mandated dietary guidelines in 

accordance with requirements of Title 

III–C of the Act and the provision of 

evidence-based health promotion 

programs with Title III–D funds; 

reporting standards and requirements; 

establishment by the State agency of a 

minimum proportion of funds that will 

be spent on access services, in-home 

supportive services, and legal 

assistance; prohibition against means 

testing; and voluntary contribution 

requirements, etc.). At the same time, 

the Act provides latitude to State 

agencies to determine how best to 

implement the Act in order to respond 

to local needs and circumstances. The 

State agency may also, in turn, offer 

such flexibility to AAAs. Conditions can 

vary from one State to another and from 

one region of a State to another, and 

State agencies also are required, and are 

in the best position, to monitor the 

quality and effectiveness of services 

provided under the Act. ACL believes 

that the Act and this final rule strike an 

appropriate balance between required 

services and standards and flexibilities 

offered to State agencies in 

implementation of the Act. ACL 

declines to impose requirements beyond 

what is contemplated by the Act 

regarding required services and 

standards. 

Comment: We received various 

comments requesting improvements in 

services, such as meal presentation. 

Response: ACL recognizes the 

importance of meals and other services 

provided under the Act being appealing 

to participants. Services must be personcentered, as set forth in § 1321.77. 

Additionally, we expect that feedback 

from service participants will be 

solicited and used to the greatest extent 

possible in the ongoing provision of 

services as set forth in § 1321.73(c). To 

further clarify the importance of the 

participant experience, we have added 

‘‘[. . .] and preferences,’’ to this 

provision under the expectations for 

monitoring participant needs. 

§ 1321.75 Confidentiality and 

Disclosure of Information 

Section 1321.75 reorganizes and 

redesignates existing § 1321.51. The 

revised section sets forth updated 

requirements for State agencies’ and 

AAAs’ confidentiality procedures. State 

agencies and AAAs collect sensitive, 

legally protected information from older 

adults and family caregivers during 

their work. Our revisions will enhance 

the protections afforded to OAA 

participants. Revised § 1321.75 also 

adds ‘‘family caregivers’’ as a service 

population under the Act to reflect the 

2000 amendments to the Act (Pub. L. 

106–501). 

We clarify the obligation of State 

agencies, AAAs, or other contracting, 

granting, or auditing agencies to protect 

confidentiality. For example, the 

provision prohibits providers of 

ombudsman services to reveal any 

information protected under the 

provisions in 45 CFR part 1324, subpart 

A. Similarly, State agencies, AAAs, and 

others subject to this provision shall not 

require a provider of legal assistance 

under the Act to reveal any information 

that is protected by attorney client 

privilege, including information related 

to the representation of the client.209

The policies and procedures required 

under this section must ensure that 

service providers promote the rights of 

each older individual who receives 

services, including the right to 

confidentiality of their records. We 

require that the policies and procedures 

comply with all applicable Federal 

requirements. The State agency may 

also require the application of other 

laws and guidance for the collection, 

use, and exchange of both Personal 

Identifiable Information (PII) and 

personal health information. 

Section 1321.75 includes exceptions 

to the requirement for confidentiality of 

information. PII may be disclosed with 

the informed consent of the person or of 

their legal representative, or as required 

by court order. The final rule also 

allows disclosure for program 

monitoring and evaluation by 

authorized Federal, State, or local 

monitoring agencies. State and area 

agencies that are covered entities under 

the Health Insurance Portability and 

Accountability Act of 1996 (HIPAA) 210

are also required to disclose records to 

the Secretary for the purpose of 

assessing compliance with the HIPAA 

Rules.211 Under the revised provision, 

State agencies’ policies and procedures 

may explain that individual information 

and records may be shared with other 

State and local agencies, communitybased organizations, and health care 

providers and payers to provide 

services, and we encourage agencies to 

develop memoranda of understanding 

regarding access to records for such 

purposes. 

Comment: We received a comment 

encouraging organizations to abide by 

Tribal data sovereignty policies. 

Response: ACL appreciates this 

comment and encourages organizations 

to coordinate and to abide by Tribal data 

sovereignty policies where appropriate. 

In response to this comment, we have 

added a statement at § 1321.75(f) that 

State agencies are encouraged to consult 

with Tribes regarding any Tribal data 

sovereignty expectations that may 

apply. 

Comment: We received comments 

expressing support for inclusionfocused language and highlighting the 

importance of protecting PII and 

personal health information. Another 

commenter requested more guidance 

regarding criteria for the definitions, 

including reporting requirements. Other 

commenters responded to ACL’s request 

for comment on whether ACL 

sufficiently set forth exceptions to OAA 

confidentiality requirements, offering 

strong support of the new language in 

(b), including that the language helps 

clarify the Ombudsman’s obligation to 

protect program records and not 

disclose them to any State agency, area 

agency, or auditing agency. 

Response: ACL is committed to the 

protection of confidential information 

collected in the provision of services 

under the Act and believes this 

provision will reduce confusion, 

including regarding the Ombudsman 

program. In recognition of these 

comments, ACL notes that § 1321.9(b) 

states that, ‘‘[P]olicies and procedures 

are aligned with periodic data collection 

and reporting requirements, including 

ensuring service and unit definitions are 

consistent with definitions set forth in 

these regulations, policy guidance, and 

other information developed by the 

Assistant Secretary for Aging.’’ ACL 

anticipates providing training and 

technical assistance upon promulgation 

of the final rule to support effective 

implementation of these provisions. We 

believe that State agencies should be 

allowed to place restrictions on 

information sharing when necessary and 

appropriate, and this final rule provides 

that discretion. 

Comment: One commenter noted that 

expressly including HIPAA in this 

provision may cause confusion and 

might imply that all OAA-funded 

activities are implicated under that law. 

Response: ACL appreciates this 

comment. To avoid confusion, we have 

removed the reference to HIPAA and 

have clarified that State agencies’ 

policies and procedures must comply 

with all applicable Federal 


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212 42 U.S.C. 3001. 

213 Id. section 3001(10). 

214 42 U.S.C. 3002(23) and (24). 

215 42 U.S.C. 3012(a)(6). 

requirements. However, we note that it 

is increasingly common for OAA 

recipients to be engaged in activities 

that make them HIPAA-covered entities 

and we encourage grantees and 

subrecipients to be aware of any 

associated legal obligations. 

§ 1321.79 Responsibilities of Service 

Providers Under State and Area Plans 

The provision contained in § 1321.65 

of the existing regulation 

(Responsibilities of service providers 

under area plans) is redesignated in part 

here as § 1321.79 and at § 1321.73 and 

is retitled for clarity. Minor revisions are 

made to this provision to reflect 

statutory updates with respect to family 

caregiver services provided under Title 

III, as well as to emphasize that 

providers should seek to meet the needs 

of individuals in greatest economic need 

and greatest social need. We encourage 

providers to offer self-directed services 

to the extent feasible and acknowledge 

service provider responsibility to 

comply with local adult protective 

services (APS) requirements, as 

appropriate. The final rule sets forth 

that this provision applies to both State 

plans, as well as to area plans, as there 

are circumstances in which a service 

provider may provide services under a 

State plan (such as in a single PSA 

State). The language in paragraph (a) of 

the existing provision (reporting 

requirements) has been moved to 

§ 1321.73, which addresses 

accountability requirements applicable 

to service providers. 

Comment: We received comment 

questioning the provisions at 

§ 1321.79(d) allowing for sharing of 

information with local APS without the 

consent of the older person or their legal 

representative, especially for legal 

assistance and ombudsman services. 

Response: We appreciate this 

comment and have clarified 

§ 1321.79(d) to state, ‘‘[. . .] in 

accordance with local adult protective 

services requirements, except as set 

forth at § 1321.93, part 1324, subpart A, 

and where appropriate, bring to the 

attention of[.]’’ 

Comment: We received other 

comments discussing importance of 

sharing information for purposes of 

program analysis, research, and other 

worthwhile endeavors. Other 

commenters provided program 

management and implementation 

recommendations regarding this 

provision. 

Response: We appreciate these 

comments and decline to make further 

changes to this provision. We intend to 

address other suggestions and requests 

for clarification through technical 

assistance. 

§ 1321.83 Client and Service Priority 

The provision contained in § 1321.69 

of the existing regulation (Service 

priority for frail, homebound or isolated 

elderly) is redesignated here as 

§ 1321.83 and is retitled for clarity. We 

received numerous inquiries about how 

State agencies and AAAs should 

prioritize providing services to various 

groups. Questions included whether 

there was an obligation to serve 

everyone who sought services and 

whether services were to be provided on 

a first-come, first-served basis. 

Questions about prioritization were 

particularly prevalent in response to 

demand for services created by the 

COVID–19 PHE. Entities sought 

clarification on whether they are 

permitted to set priorities, who is 

permitted to set priorities, and the 

degree to which entities have discretion 

to set their own priority parameters. 

Section 1321.83 clarifies that entities 

may prioritize services and that they 

have flexibility to set their own policies 

in this regard. It also clarifies that State 

agencies are responsible for setting 

services priorities, but may establish 

policies and procedures to grant AAAs 

and/or service providers the discretion 

to set service priorities at the local level. 

We also include revisions to this 

provision to account for the addition of 

the National Family Caregiver Support 

Program, family caregivers as a service 

population, and priorities for serving 

family caregivers pursuant to the 2000 

amendments to the Act (Pub. L. 106– 

501). 

Comment: Some commenters 

expressed support of this provision. 

Others stated confusion regarding the 

priorities proposed in (c) of this 

provision. 

Response: We appreciate these 

comments. To reflect that service to 

older relative caregivers is at the option 

of the State agency and/or a AAA, we 

have replaced the word ‘‘When’’ in 

§ 1321.83(c)(3) with ‘‘If’’ for clarity. 

Given limited availability of resources, 

service to older relative caregivers is not 

required by the Act. However, in this 

provision we clarify that if older relative 

caregivers are to be served, older 

relative caregivers of those with severe 

disabilities are to be given priority. 

Comment: Some commenters 

questioned whether funds for the 

Ombudsman program provided under 

Title III, part B are subject to the 

requirements at § 1321.83(b). 

Response: We appreciate this 

comment and have revised § 1321.83(b) 

to read, ‘‘[. . .] services under Title III, 

parts B (except for Ombudsman program 

services which are subject to provisions 

at part 1324), C, and D[.]’’ 

Comment: We received other 

suggestions, program management 

recommendations, and implementation 

questions regarding this provision. 

Response: We decline to make further 

changes to this provision and intend to 

address other suggestions and requests 

for clarification through sub-regulatory 

guidance and technical assistance. 

§ 1321.93 Legal Assistance 

The provision contained in § 1321.71 

of the existing regulation (Legal 

assistance) is redesignated here as 

§ 1321.93. We are modifying § 1321.93 

to better reflect the purpose of the Act, 

including the application of section 

101 212 to elder rights and legal 

assistance, and to clarify and simplify 

implementation of the statutory 

requirements of State agencies, AAAs, 

and the legal assistance providers with 

which the AAAs or State agencies, 

where appropriate, must contract to 

procure legal assistance for qualifying 

older adults. Section 101(10), in 

particular, finds that older people are 

entitled to ‘‘Freedom, independence, 

and the free exercise of individual 

initiative in planning and managing 

their own lives, full participation in the 

planning and operation of communitybased services and programs provided 

for their benefit, and protection against 

abuse, neglect, and exploitation.’’ 213

Legal assistance programs funded under 

Title III, part B of the Act play a pivotal 

role in ensuring that this objective is 

met. Additionally, legal assistance 

programs further the mission of the Act 

as set forth in section 102(23) and (24) 

by serving the needs of those with 

greatest economic need or greatest social 

need, including, historically 

underrepresented, and underserved 

populations, such as minority older 

individuals, LGBTQI+ older adults, 

those who have LEP, and those who are 

isolated by virtue of where they live, 

such as rural elders, those who are 

homebound and those residing in 

congregate residential settings.214

ACL intends to offer technical 

assistance, pursuant to section 202(a)(6) 

of the Act,215 to State agencies, AAAs, 

and legal assistance service providers, to 

enable all parties to understand and 

most effectively coordinate with each 

other to carry out the provisions of this 

section. 


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216 42 U.S.C. 3027(a)(15). 

217 Id. section 3027(a)(11). 

218 Id. section 3027(a)(15). 

219 42 U.S.C. 3002(33). 

220 42 U.S.C. 3032i(a)(1). 221 42 U.S.C. 3027(a)(11)(E). 

222 Id. 

223 42 U.S.C. 3030d(a)(6)(B)(ii). 

224 Id. 

225 42 U.S.C. 3027(a)(11)(E). 

The final rule combines all regulatory 

provisions relevant to legal assistance 

into one section. The purpose of this 

revision is to mitigate historic and 

existing confusion and misconceptions 

about legal assistance, achieve clarity 

and consistency, and create greater 

understanding about legal assistance 

and elder rights. We further include a 

technical correction to change the 

reference to statutory language in 

section (a) of the prior regulation from 

section 307(a)(15) 216 to 307(a)(11),217

which sets forth State plan requirements 

for legal assistance. Section 307(a)(15) 

sets forth requirements for serving older 

people with LEP.218

Section 1321.93(a) provides a general 

definition of legal assistance based on 

the definition in section 102(33) of the 

Act.219 Section 1321.93(b) sets forth the 

requirements for the State agency to add 

clarity about its responsibilities. The 

State agency is required to address legal 

assistance in the State plan and to 

allocate a minimum percentage of 

funding for legal assistance. The State 

plan must assure that the State agency 

will make reasonable efforts to maintain 

funding for legal assistance. Funding for 

legal assistance must supplement and 

not supplant funding for legal assistance 

from other sources, such as the grants 

from the Legal Services Corporation 

(LSC). The State agency is also obligated 

to provide advice, training, and 

technical assistance support for the 

provision of legal assistance as provided 

in revised § 1321.93 and section 

420(a)(1) of the Act.220 As part of its 

oversight role, the State agency must 

ensure that the statutorily required 

contractual awards by AAAs to legal 

assistance providers meet the 

requirements of § 1321.93(c). 

Section 1321.93(c) sets forth the 

requirements for the AAA regarding 

legal assistance. Similar to the State 

agency requirement to designate a 

minimum percentage of Title III, part B 

funds to be directed toward legal 

assistance, the AAAs must take that 

minimum percentage from the State 

agency and expend at least that sum, if 

not more, in an adequate proportion of 

funding on legal assistance and enter 

into a contract to procure legal 

assistance. The final rule reflects the 

statute and existing regulation in stating 

requirements for the AAAs to follow 

when selecting the best qualified 

provider for legal assistance, including 

that the selected provider demonstrate 

expertise in specific areas of law that are 

given priority in the Act, which are 

income, health care, long-term care, 

nutrition, housing, utilities, protective 

services, abuse, neglect, age 

discrimination, and defense against 

guardianship. Section 1321.93(e) also 

sets forth standards for contracting 

between AAAs and legal assistance 

providers, including requiring the 

selected provider to assist individuals 

with LEP, including in oral and written 

communication. The selected provider 

must also ensure effective 

communication for individuals with 

disabilities, including by providing 

appropriate auxiliary aids and services 

where necessary. We also clarify that 

the AAA is precluded from requiring a 

pre-screening of older individuals 

seeking legal assistance or from acting 

as the sole and exclusive referral 

pathway to legal assistance. 

We call particular attention to two 

areas of law given priority in section 

307(a)(11)(E) of the Act.221 The first is 

long-term care, which we interpret to 

include rights of individuals residing in 

congregate residential settings and 

rights to alternatives to 

institutionalization. Legal assistance 

staff with the required expertise in 

alternatives to institutionalization 

would be knowledgeable about 

Medicaid programs such as the Money 

Follows the Person demonstration, 

which helps individuals transition from 

an institutional setting to a community 

setting, as well as Medicaid HCBS 

authorities and implementing 

regulations, including HCBS settings 

requirements, that allow individuals to 

receive Medicaid-funded services in 

their homes and community. To 

demonstrate this expertise, staff would 

exhibit the ability to represent 

individuals applying for such programs; 

to appeal denials or reductions in the 

amount, duration, and scope of such 

services; and to assist individuals who 

want to transition to the community. 

Regarding expertise around alternatives 

to institutionalization, ACL expects 

legal assistance staff to work very 

closely with the Ombudsman program 

to protect resident rights, including the 

right to seek alternatives to 

institutionalization and the right to 

remain in their chosen home in a 

facility by manifesting the knowledge 

and skills to represent residents and 

mount an effective defense to 

involuntary discharge or evictions. 

The other area of focus is 

guardianship and alternatives to 

guardianship. Section 307(a)(11)(E) of 

the Act also states: ‘‘[. . .] area agencies 

on aging will give priority to legal 

assistance related to [. . .] defense of 

guardianship[.]’’ 222 We interpret this 

provision to include advice to and 

representation of older individuals at 

risk of guardianship to oppose 

appointment of a guardian and 

representation to seek revocation of or 

limitations on a guardianship. It also 

includes assistance that diverts 

individuals from guardianship to less 

restrictive, more person-directed forms 

of decision support such as health care 

and financial powers of attorney, 

advance directives and supported 

decision-making, whichever tools the 

client prefers, whenever possible. 

Despite the clear prioritization of legal 

assistance to defend against imposition 

of guardianship of an older person, the 

Act in section 321(a)(6)(B)(ii) also states 

Title III, part B legal services may be 

used for legal representation ‘‘in 

guardianship proceedings of older 

individuals who seek to become 

guardians, if other adequate 

representation is unavailable in the 

proceedings[.]’’ 223 The language in 

section 321(a)(6)(B)(ii) 224 and the 

language in section 307(a)(11)(E) 225

have been interpreted by some AAAs 

and some contracted legal providers as 

meaning funding under the Act can be 

used to petition for guardianship of an 

older adult, rather than defending older 

adults against guardianship. 

Specifically, our goal is to clarify the 

role of legal assistance providers to 

promote self-determination and persondirectedness and support older 

individuals to make their own decisions 

in the event of future diminished 

decisional capacity. Additionally, 

public guardianship programs in some 

States, and private practitioners in all 

States, are generally more available and 

willing to represent petitioners to 

establish guardianship over another 

adult than they are to represent older 

adults over whom guardianship is 

sought. The primary role of legal 

assistance providers is to represent 

older adults who are or may be 

subjected to guardianship to advance 

their values and wishes in decisionmaking. Legal assistance resources are 

scarce and accordingly should be 

preserved to represent older adults’ 

basic rights to make their own 

decisions. ACL believes that legal 

assistance should not be used to 

represent a petitioner for guardianship 

of an older person except in the rarest 

of circumstances. 


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226 42 U.S.C. 3058g(h)(8). 

The final rule includes the statutory 

exception in the regulations, and it will 

apply in the very limited situation of (1) 

someone who is eligible for Older 

Americans Act services, (2) who seeks 

to become a guardian of another 

individual when no other alternatives to 

guardianship are appropriate, and (3) 

where no other adequate representation 

is available. The legal assistance 

provider undertaking such 

representation would have to establish 

that the petitioner is over 60, and that 

no alternatives to guardianship, as 

discussed above, are available. The 

provider would also have to establish 

that no other adequate representation is 

available through public guardianship 

programs that many States have 

established, through bar associations 

and other pro bono services, or through 

hospitals, nursing homes, APS, or other 

entities and practitioners that represent 

petitioners for guardianship. A legal 

assistance program that would bring 

guardianship proceedings as part of its 

normal course of business, that 

represents a relative of an older person 

as petitioner at the request of a hospital 

or nursing facility to seek the 

appointment of a guardian to make 

health care decisions, or that undertakes 

representation at the behest of APS 

would not satisfy our interpretation of 

the limited applicability of the 

exception. These parties have access to 

counsel for representation in petitioning 

for guardianship. 

Section 1321.93(d) sets forth the 

requirements for selecting legal 

assistance providers. Providers must 

provide legal assistance to meet 

complex and evolving legal needs that 

may arise involving a range of private, 

public, and governmental entities, 

programs, and activities that may 

impact an older adult’s independence, 

choice, or financial security, and the 

standards AAAs must use to select the 

legal assistance provider or providers 

with which to contract. The provider 

selected as the ‘‘best qualified’’ by a 

AAA must have demonstrated capacity 

to represent older individuals in both 

administrative and judicial proceedings. 

Representation is broader than 

providing advice and consultation or 

drafting simple documents; it 

encompasses the entire range of legal 

assistance, including administrative and 

judicial representation, including in 

appellate forums. 

Legal assistance providers must 

maintain the expertise required to 

capably handle matters related to all the 

priority case type areas under the Act, 

including income, health care, longterm care, nutrition, housing, utilities, 

protective services, abuse, neglect, age 

discrimination and defense against 

guardianship. Under our final rule, a 

legal assistance provider that focuses 

only on one area, especially an area not 

specified by the Act as a priority case 

type, such as drafting testamentary 

wills, and that does not provide a 

broader range of services designated by 

the Act as priorities or represent 

individuals in administrative and 

judicial proceedings, would not meet 

the requirements of this section and the 

Act. A AAA that contracted with such 

a provider would also not meet their 

obligations under revised § 1321.93(c) 

and under the Act. 

We describe that, as required by the 

Act and existing regulation, legal 

assistance providers must maintain the 

capacity to collaborate and support the 

Ombudsman program in their service 

area. Legal assistance providers must 

cooperate with the Ombudsman in 

entering into the Memorandum of 

Understanding proffered by the 

Ombudsman as required pursuant to 

section 712(h)(8) of the Act.226 Legal 

assistance programs are required to 

collaborate with other programs that 

address and protect elder rights. We 

encourage coordination and 

collaboration with APS programs, State 

Health Insurance Assistance Programs, 

Protection and Advocacy systems, 

AAAs and ADRC options counselors 

and I&A/R specialists, nutrition 

programs, and similar partners where 

such coordination and collaboration 

promote the rights of older adults with 

the greatest economic need or greatest 

social need. Similarly, existing statutory 

and regulatory provisions urge legal 

assistance providers that are not housed 

within LSC grantee entities to 

coordinate their services with existing 

LSC projects. Such coordination will 

help ensure that services under the Act 

are provided to older adults with the 

greatest economic need or greatest social 

need and are targeted to the specific 

legal problems such older adults 

encounter. We will provide technical 

assistance on all these required 

practices. 

As indicated in § 1321.9(c)(2)(xi), cost 

sharing for legal assistance services is 

prohibited. This means that a client may 

not be asked or required to provide a fee 

to the provider, as is sometimes the 

practice with some Bar Association 

referral services. Likewise, the Act 

prohibits requesting contributions from 

legal assistance clients before or during 

representation. Only after the 

conclusion of representation may a 

request for a contribution be made. If a 

client chooses to voluntarily contribute, 

the proceeds must be applied to 

expanding the service category. 

The final rule precludes a legal 

assistance program from asking an 

individual about their personal or 

family financial information as a 

condition of establishing eligibility to 

receive legal assistance. Such 

information may be sought when it is 

relevant to the legal service being 

provided. Requesting financial 

information would be appropriate, for 

example, when an older person is 

seeking assistance with an appeal of 

denial of benefits, such as Medicaid and 

Supplemental Nutrition Assistance 

Program (SNAP), that have financial 

eligibility requirements. 

The final rule requires legal assistance 

provider attorney staff and non-attorney 

personnel under the supervision of legal 

assistance attorneys to adhere to the 

applicable Rules of Professional 

Conduct for attorneys. Such nonattorney staff may include law students, 

paralegals, nurses, social workers, case 

managers, and peer counselors. Even if 

such non-attorney staff have their own 

rules of professional conduct, they must 

still adhere to the applicable Rules of 

Professional Conduct in their work in a 

legal assistance program office because 

their services are under the supervision 

of attorney staff. Non-disclosure of 

confidential client information is a 

critical component of adhering to Rules 

of Professional Conduct for both 

attorney and non-attorney staff, even if, 

for example, the non-lawyer staff may 

otherwise be subject to mandatory 

reporting of suspected elder 

maltreatment. 

The final rule maintains the 

prohibition against a legal assistance 

provider representing an older person in 

a fee-generating case and includes the 

limited exceptions to that prohibition. 

The final rule also addresses prohibited 

activities by legal assistance providers, 

including prohibiting the use of Older 

American Act funds for political 

contributions, activities, and lobbying. 

The prohibition against lobbying using 

Title III funds clarifies that lobbying 

does not include contacting a 

government agency for information 

relevant to understanding policies or 

rules, informing a client about proposed 

laws or rules relevant to the client’s 

case, engaging with the AAA, or 

testifying before an agency or legislative 

body at the request of the agency or 

legislative body. 

Comment: Proposed § 1321.93(a) 

provides the general definition for the 

provision of legal assistance under the 

Act. We received several comments 

asking us to amend proposed 

§ 1321.93(a)(2), where we define legal 


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Federal Register / Vol. 89, No. 31 / Wednesday, February 14, 2024 / Rules and Regulations 11611 

227 88 FR 39628 (June 16, 2023). 

228 42 U.S.C. 3027(a)(11). 

229 Id. section 3027(a)(2)(C). 

230 Id. section 3026(a)(2)(C). 231 Id. section 3027(a)(11)(D). 

assistance as ‘‘[. . .] legal advice and/or 

representation provided by an 

attorney[.]’’ 227 The commenters pointed 

out that non-lawyers, including 

paralegals and law students, may engage 

in legal advice and/or even legal 

representation in certain circumstances, 

and that State law may permit such 

representation. 

Response: ACL appreciates these 

comments and notes that § 1321.93(a)(2) 

currently states that ‘‘[l]egal assistance 

may include, to the extent feasible, 

counseling, or other appropriate 

assistance by a paralegal or law student 

under the direct supervision of an 

attorney, and counseling or 

representation by a non-lawyer as 

permitted by law.’’ Additionally, we 

acknowledge such representation in 

§ 1321.93(b)(1)(vi), (e)(2)(v) where we 

require non-lawyer personnel under the 

supervision of attorneys to adhere to the 

same Rules of Professional Conduct as 

an attorney. We understand the 

important role that paralegals and law 

students and other non-legal 

professionals play in providing legal 

representation to older people. Our goal 

is to assure high quality legal 

representation by requiring such 

professionals to be supervised by 

attorneys and to be bound by the same 

rules of conduct, as provided in the 

Older Americans Act. One commenter 

requested that we provide more detail 

about the Rules of Professional Conduct 

established by State judicial systems 

and bar associations. We decline to do 

so as this is beyond the scope of these 

regulations. 

AAA information and referral 

services, State Health Insurance 

Assistance Programs, ADRCs, LongTerm Care Ombudsman Programs, and 

Centers for Independent Living (CIL) 

may work with legal assistance 

programs to provide information, 

education, and referral services. One 

commenter suggested that where a 

particular service of a legal nature might 

be able to be facilitated through a nonlegal provider, a AAA should be 

allowed to do so, provided its actions 

are documented, accountable, and 

demonstrate that the AAA has made the 

best effort to provide the most 

comprehensive legal services. We 

believe our regulations encourage 

collaboration, especially in areas of 

education, cross-training of 

professionals and referrals to 

appropriate services and allowing older 

individuals to decide where and how to 

receive the services they want or need. 

AAAs may want to consider 

maintaining documentation of such 

collaboration as a best practice. 

However, as we note below, the Act 

requires that every AAA make an 

assessment that the selected legal 

assistance program is the entity best 

able to provide legal assistance services. 

Many legal interventions related to the 

OAA-designated priority case types 

require the full representational services 

of attorneys and non-lawyers under the 

supervision of attorneys to 

appropriately redress the legal problems 

experienced by older adults, and may 

not be provided by community partners, 

in accordance with applicable Rules of 

Professional Conduct. An example is 

representation opposing guardianship in 

judicial proceedings of an older adult 

who has been proposed for 

guardianship. 

Comment: Another commenter raised 

concerns about the ability to continue to 

use pro bono attorneys. 

Response: Section 307(a)(11) of the 

Act specifically requires contracts for 

legal assistance services to encourage 

coordination with the private bar for pro 

bono or reduced fee services for older 

Americans.228 Section 1321.93(e)(2)(iv) 

requires, as a standard for contracting, 

that the selected legal assistance 

provider undertake reasonable efforts to 

engage the private bar to furnish 

services on a pro bono or reduced fee 

basis. While pro bono attorneys are an 

important resource to increase the 

amount of representation for OAA 

clients, we remind State agencies and 

AAAs that section 307(a)(2)(C) of the 

Act also requires State agencies to 

designate a minimum proportion of 

Title III, part B funds for direct legal 

services.229 See also § 1321.93(b)(2), 

(c)(1) of these regulations. AAAs that 

receive these allotments must dedicate 

this amount, the ‘‘adequate proportion’’ 

per section 306(a)(2)(C) of the Act, to 

contracting for the provision of legal 

assistance.230 A AAA that relies only on 

pro bono attorneys to provide legal 

assistance would not meet the 

requirement to fund legal assistance 

programs. Additionally, § 1321.93(d)(1), 

standards for legal assistance provider 

selection, requires the providers to 

exhibit the capacity to retain staff with 

requisite expertise. A program that 

utilizes only pro bono attorneys does 

not meet this requirement. 

Comment: As stated above, proposed 

§ 1321.93(b)(2) and (c)(1) require AAAs 

or State agencies in a State with a single 

planning area to establish and spend a 

minimum proportion of Title III, part B 

funds for legal assistance. We received 

comments concerning the variation in 

the amount of funding set aside by each 

State agency, making it difficult for legal 

assistance providers to represent those 

with the greatest economic and greatest 

social needs across the range of priority 

areas set forth in the OAA and in the 

regulations. Several commenters 

discussed the need for adequate 

funding, not minimum funding. 

Commenters suggested that the 

regulations provide clear guidance on 

how States should establish an adequate 

minimum proportion of funding for 

legal assistance to ensure a reasonable 

number of full-time attorneys are 

supported across the State. 

Response: In this final rule, we 

require adequate minimum funding to 

maintain a robust legal assistance 

program as required by the OAA. We 

decline to provide detailed processes for 

State agencies in this regulation, given 

the variations and size of the older 

population in each State, and because 

we do not provide similar requirements 

in the rule for the proportion of funding 

to go to other services. However, we will 

provide technical assistance to State 

agencies on how to achieve the goal of 

adequate minimum funding for legal 

assistance. We also received comments 

about the lack of sufficient funding for 

legal assistance programs. We thank the 

commenters for these observations; 

however, such comments are beyond 

the scope of this regulation. 

Comment: Commenters supported the 

requirements for formalized agreements 

for coordination and collaboration 

among other aging providers, citing 

work with long-term care ombudsmen, 

APS programs, Senior Health Insurance 

Programs (SHIPs), law enforcement, 

States Attorneys, CILs, and others. They 

particularly agreed with § 1321.93(b)(1), 

which lays out requirements for legal 

services. One commenter, however, 

asked that we require OAA funds to be 

used as a last resort to provide services 

to older people so that OAA funds could 

not be used if the provider had LSC 

funding available. 

Response: We decline to make the 

change. Section 307(a)(11)(D) of the 

OAA provides that ‘‘to the extent 

practicable’’ OAA-supported legal 

assistance will be provided ‘‘in addition 

to any legal assistance for older 

individuals being furnished with funds 

from sources other than this Act[.]’’ 231

This provision recognizes the 

flexibilities needed to assure adequate 

and high-quality legal assistance is 

available to all older Americans with 

economic or social need. It does not set 

up a standard of OAA legal assistance 


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232 Id. section 3027(a)(11)(E). 233 Id. 234 42 U.S.C. 3020e–1. 

as ‘‘a last resort.’’ Moreover, the same 

provision of the Act goes on to require, 

‘‘that reasonable efforts will be made to 

maintain existing levels of legal 

assistance for older individuals;’’ which 

is consistent with many comments we 

received. Finally, LSC funding has more 

restrictive eligibility criteria, and 

different priorities along with additional 

restrictions. We agree, instead, with a 

legal services provider who described 

the importance of OAA Title III, part B 

funding for legal aid and noted how 

such funding enabled them to double 

the number of older clients served. The 

commenter appreciated deference to the 

legal assistance program in how to use 

funds for each case and in coordination 

with other funding. We thank 

commenters for these comments. 

Comment: ACL sets forth in 

§ 1321.93(d) that the selected legal 

assistance provider must retain staff 

with expertise in specific areas of law 

affecting older persons with economic 

or social need, including public 

benefits, resident rights, and alternatives 

to institutionalization. ACL also 

requires the providers to demonstrate 

expertise in specific areas of law given 

priority in the OAA, including income 

and public entitlement benefits, health 

care, long-term care, nutrition, housing, 

utilities, protectives services, abuse, 

neglect, age discrimination, and defense 

of guardianship. 

Many commenters agreed with the list 

of statutorily mandated substantive 

areas in which legal assistance 

providers should be knowledgeable. 

One commenter suggested we amend 

§ 1321.93(d)(1) to include all the legal 

priority areas in section 307(a)(11)(E) of 

the Act, rather than the three priority 

areas listed.232 Other commenters raised 

questions about the list of statutorily 

mandated substantive areas. These 

commenters suggest that AAAs should 

consider the greatest needs of those in 

their community, or that it may be hard 

to find attorneys with requisite 

knowledge in rural areas. One 

commenter asked that we add consumer 

law as a priority to the specific areas of 

law, consistent with the goal of helping 

older adults who desire to age in their 

own home. Another commenter 

suggested we add pensions as a priority 

area. Other commenters raised concerns 

that, by further defining defense of 

guardianship in § 1321.93(d)(2)(i), ACL 

intended that priority be given to those 

cases over other priority areas. 

Response: We appreciate the 

comment regarding § 1321.93(d)(1) and 

have amended the subsection as 

requested. 

The list of substantive focus areas in 

§ 1391.93(d)(2) sets forth the priority 

legal areas in section 307(a)(11)(E) of the 

OAA; the proposed rule did not expand 

upon these areas as one commenter 

stated.233 However, within each 

community the AAA-contracted legal 

assistance provider may determine, in 

communication with the State agency, 

AAA, and others within their 

community, how to focus on 

implementing the required case 

priorities to meet the needs of older 

individuals with economic or social 

need within their community. 

Moreover, the balancing of priorities 

could change over time as 

circumstances evolve. For example, a 

legal assistance provider in a 

community where many older people 

are losing their Medicaid because of the 

Medicaid renewal process may focus on 

Medicaid fair hearings. In another 

community where many older people 

are sued for medical debt, the provider 

may decide to prioritize representation 

in those cases. Still another community 

may focus on a growing trend of 

evictions and homelessness among 

older adults, representing individuals 

facing eviction and fighting 

homelessness, while another 

community could be on an Indian 

reservation in a very isolated area with 

legal issues related to other federal laws. 

Our objective is that, as the Act requires, 

the legal assistance providers contracted 

by AAAs have expertise in specified 

areas of importance to older people with 

greatest economic or greatest social need 

who receive services under the OAA. 

Most private practitioners of law for 

example, generally do not have such 

expertise. We note, also, that ACL 

provides technical assistance to legal 

assistance programs, as well as to AAAs 

and ADRCs, the Ombudsman program, 

general legal services programs, and 

disability programs, on legal problems 

included in the priority areas, including 

assistance in representation of 

individuals in administrative and court 

hearings. The technical assistance can 

provide support to help ensure high 

quality representation in the areas of 

focus under the OAA. Finally, 

particularly in rural areas, for services 

that cannot be provided by non-legal 

providers, the AAA may be able to 

facilitate delivery of the required legal 

assistance through arrangements with 

legal assistance programs in other parts 

of the State, using available 

technological solutions to fulfill the 

requirements of the Act. Technical 

assistance has been and will continue to 

be available from ACL to assist legal 

assistance providers, AAAs, and 

collaborating partners in rural areas. 

Legal assistance programs are 

encouraged to develop and strategically 

disseminate self-help materials, in areas 

where appropriate, developed by 

knowledgeable and respected expert 

consumer-facing organizations. 

Additionally, as noted in several 

comments and discussed above, State 

law may permit a nonlawyer to engage 

in counseling or representation in 

certain circumstances. 

In response to these comments, we 

have modified § 1321.93(d)(2) as 

follows. We have added ‘‘consumer 

law’’ to the list of legal areas in which 

legal assistance providers demonstrate 

expertise. Consumer law issues can fall 

within the statutory case priority 

categories related to income, housing, 

health care, long-term care, and abuse, 

for example. We have not added 

‘‘pensions,’’ as requested by a 

commenter, since pensions are income, 

which is already included. We note that 

ACL funds pension counseling services 

in accordance with section 215 of the 

Act.234 We have also corrected the 

numbering of provisions of 

§ 1321.93(d)(3) though (5). We have also 

revised § 1321.93(e)(2)(i), which 

requires the selected legal assistance 

provider to maintain expertise in the 

specific areas described in 

§ 1321.93(d)(2). We have also clarified, 

as noted above, that legal assistance 

providers may prioritize their work from 

among the focus areas identified in the 

regulations based on the needs of the 

community they serve. 

Comment: In § 1321.93(d)(2)(i) we 

define what is meant by the term 

‘‘defense of guardianship.’’ Several 

commenters were confused by the term 

‘‘defense of guardianship,’’ and 

interpreted it as being inconsistent with 

the intent of the proposed rule to 

promote self-determination and 

alternatives to guardianship. One 

commenter suggested changing the 

language to defense against 

guardianship, while another suggested 

using the funding to promote 

guardianship prevention measures. 

Another commenter suggested we 

clarify that the term guardianship 

includes conservatorship and other 

similar fiduciary proceedings analogous 

to guardianship. Several commenters 

suggested we update the terms 

‘‘proposed protected persons’’ and 

‘‘protected persons’’ to ‘‘older 

individual at risk of guardianship’’ and 

‘‘older individual subject to 

guardianship’’ as more in keeping with 

the Uniform Guardianship, 


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Federal Register / Vol. 89, No. 31 / Wednesday, February 14, 2024 / Rules and Regulations 11613 

235Nat’l. Conference of Comm’rs. on Unif. State 

Laws, Uniform Guardianship, Conservatorship, and 

Other Protective Arrangements Act (2017), https:// 

www.uniformlaws.org/committees/communityhome?CommunityKey=2eba8654-8871-4905-ad38- 

aabbd573911c. 

236 42 U.S.C. 3027(a)(11)(E). 

Conservatorship, and Other Protective 

Arrangements Act (UGCOPAA).235

Response: We reiterate that we use 

‘‘defense of guardianship’’ in these 

regulations because it is the language 

used in section 307(a)(11)(E) of the 

OAA.236 We also agree that, unlike the 

other priority areas of law set forth in 

§ 1321.93(d)(2), the term is very 

confusing. That is why while we will 

keep the term to retain consistency with 

the Act, we have chosen to include a 

separate subsection, § 1321.93(d)(2)(i), 

to define defense of guardianship. Our 

definition includes what commenters 

described as guardianship prevention, 

including execution of advance 

directives and supportive decision 

arrangements as chosen by older 

individuals. We agree with the 

commenter that the term guardianship 

includes conservatorship and other 

similar fiduciary proceedings analogous 

to guardianship. We have also revised 

§ 1321.93(d)(2)(i) and replace ‘‘proposed 

protected persons’’ and ‘‘protected 

persons’’ with ‘‘older individuals at risk 

of guardianship’’ and ‘‘older individuals 

subject to guardianship.’’ We have made 

a technical correction at 

§ 1321.93(e)(2)(i) to correct the crossreference from ‘‘paragraph 

(c)(1)(ii)(B)(1)(ii)’’ to ‘‘paragraph (d)(1), 

(2).’’ 

Comment: Several commenters asked 

us to go beyond the proposed definition 

of defense of guardianship. For 

example, they asked that we require 

someone’s beliefs about guardianship be 

memorialized in their person-centered 

plan. Other commenters asked that we 

require the person subject to 

guardianship be involved to the 

maximum extent possible. Others asked 

that we require all people subject to 

guardianship proceedings be 

represented by an attorney. 

Response: ACL is very supportive of 

person-centered planning. In 

§ 1321.77(b), we give older adults and 

family caregivers an opportunity to 

develop a person-centered plan that 

discusses the services they may receive 

under the Act, where appropriate. 

Service providers who assist in 

developing these plans may want to 

include the view of older adults and 

family caregivers on guardianship and 

whether they have alternatives in place. 

Person-centered plans as developed in 

the context of receipt of certain 

Medicaid benefits are outside the scope 

of this regulation, as it does not address 

Medicaid requirements. The request to 

involve the person subject to 

guardianship to the maximum extent 

possible is consistent with the existing 

obligations of attorneys under Rules of 

Professional Conduct in representing 

someone who is the subject of a 

guardianship proceeding or who seeks 

to modify or revoke a guardianship. 

State law, not Federal law, governs how 

the individual under guardianship will 

be involved in working with the 

guardian, and accordingly this request is 

beyond the scope of these regulations. 

We note that attorneys representing 

persons under guardianship retain all 

the requisite duties of loyalty to the 

client imposed by the ethical obligations 

of the Rules of Professional Conduct of 

their State. Similarly, State law, not 

Federal law, governs whether the person 

subject to a guardianship petition is 

entitled to have an attorney appointed 

to represent them. 

Comment: Another commenter 

requested that we modify 

§ 1321.93(d)(2)(i) to require that 

limitation of guardianship be sought 

both when a guardianship is initially 

established and in subsequent petitions 

to modify the guardianship. The same 

commenter recommended amending 

§ 1321.93(d)(2)(ii)(A), (B) to reference 

promoting limited guardianship. 

Response: We appreciate the 

comments and have revised these 

provisions. While attorneys representing 

persons proposed for and subject to 

guardianship are generally expected to 

seek diversion from and alternatives to 

guardianship, we recognize and agree 

that limitations on guardianship may be 

appropriate in certain cases. 

Comment: We received many 

comments from organizations that 

represent older people or people with 

disabilities on guardianship itself in 

response to our discussion about the 

meaning of the term ‘‘defense of 

guardianship’’ in the proposed rule. All 

commenters agreed that guardianship 

should be avoided. Some commenters 

discussed alternatives to guardianship, 

including those referenced in the 

proposed regulations, as discussed 

above. Others suggested complimentary 

approaches, such as increased education 

about advance planning and expressing 

each person’s preferences. Many 

discussed the role that aging and 

disability organizations play in 

representing and protecting the interests 

of older people. 

Regarding our request for comments 

on the role of legal assistance and AAAs 

in defense of guardianship, one 

commenter agreed that public 

guardianship is a last resort and that it 

is critical to have firewalls between 

AAA functions and guardianship 

functions to avoid COIs or the 

appearance of COIs. The commenter 

objected, however, to precluding AAAs 

from serving as guardians, particularly 

for older adults with significant barriers 

to functioning and without other 

supports. 

Response: We appreciate the concerns 

raised by the commenter. Our regulatory 

approach is to promote alternatives to 

guardianship and to support limitations 

on the imposition of guardianship. Our 

COI provisions are designed to prevent 

conflicts that could arise if a AAA 

receives outside funding to serve as a 

guardian, while at the same time 

contracting with legal assistance entities 

that represent people to oppose, divert 

from, or find alternatives to 

guardianship or who want to revoke an 

existing guardianship. Similar conflicts 

may arise if a Title III, part B legal 

assistance program is housed in a 

program funded by the LSC, and the 

LSC program brings a petition for 

guardianship while the OAA-funded 

component is asked to represent the 

individual over whom the guardianship 

is sought. Rules of Professional Conduct 

would apply to that conflict, as would 

standard legal services processes for 

checking conflicts among clients. 

Comment: Several commenters 

provided examples of when OAAfunded legal services programs might 

appropriately petition for guardianship. 

Examples include petitioning for 

guardianship over a minor grandchild or 

other relative; or where appealing a 

Social Security termination or reduction 

may require a decision-maker, yet there 

is no authorized representative on file 

and the older individual lacks 

decisional capability to consent to the 

representation; or similarly where there 

is a need to assert rights by appealing 

Medicaid denials where appeal may 

only be brought by a power of attorney 

or guardian and there is no agent under 

a power of attorney; preventing eviction 

or foreclosure; or taking action against 

someone engaged in adult maltreatment. 

According to the commenters, all the 

examples resulted in an older person 

continuing to serve as primary care 

giver for a minor; or as a caregiver of 

another older individual endeavoring to 

retain public benefits; to live in the 

individual’s preferred residence; and/or 

to remain in the community. One 

commenter pointed out that, although 

pro bono attorneys may be willing to file 

for guardianship, they may feel 

uncomfortable or unknowledgeable 

about bringing a Medicaid or Social 

Security appeal and may not be 

equipped to explain to the court why 


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237 42 U.S.C. 3030d(a)(6)(B)(ii). 

238See e.g. Tex. Estate Code Ann. § 1101.001; 

Ariz. Rev. Stat. Ann. section 14–5303; Wash. Rev. 

Code Ann. section 11.130.265. 239 42 U.S.C. 3027(a)(11)(A). 

the temporary guardianship is needed to 

appeal the public benefit denial. Other 

commenters said that they petition for 

guardianship because there are no 

attorneys available to bring the petition 

in the rural area they serve. Several CILs 

asked that CILs be added to the list of 

entities available to bring guardianship 

petitions. 

Response: We thank the commenters 

for their responses. We emphasize the 

imperative of identifying the least 

restrictive means of pursuing rights 

such as those described above. OAAfunded legal assistance providers 

should consistently strive to avoid 

guardianship as a remedy in these 

circumstances, unless they can 

document that no other option is 

available. Additionally, however, we 

believe that the CILs who asked to 

identify CILs as entities available to 

bring guardianship petitions 

misunderstood the context of the 

discussion and therefore, we decline to 

make the change. Petitioning for 

guardianship is inconsistent with the 

mission of CILs to promote autonomy 

and self-direction. We intend to offer 

technical assistance to provide 

additional clarification based on the 

comment responses. 

Comment: Section 1321.93(d)(2)(ii)(A) 

contains an exception to defense of 

guardianship in limited circumstances 

involving guardianship proceedings of 

older individuals who seek to become 

guardians when no other alternatives to 

guardianship are appropriate, and only 

if other adequate representation is 

unavailable in the proceeding. The 

exception is stated in section 

321(a)(6)(B)(ii) of the Act.237 In addition 

to the comments discussed above that 

provide examples of when legal 

assistance providers use this exception, 

we received comments asking us to 

strengthen the language to ensure the 

exception is used only in limited 

circumstances. Several commenters said 

the language could be strengthened by 

requiring providers to document the 

efforts they made to explore less 

restrictive alternatives, why none of 

those options were appropriate or 

available, and how the provider 

determined that no other adequate 

representation was available. 

Response: Many State statutes require 

this kind of documentation from all 

parties to guardianship proceedings; 238

we accept the comments and have 

modified the language accordingly. 

Commenters also suggested making the 

exception to defense of guardianship a 

separate section to clarify what we mean 

by defense of guardianship. We accept 

these comments as well. Accordingly, 

we have modified § 1321.93(d)(2)(ii)(A) 

to create a new § 1321.93(d)(2)(ii)(C) 

that sets forth the limited circumstances 

in which a legal assistance program may 

bring a guardianship petition on behalf 

of an older individual, i.e., only if other 

adequate representation is unavailable; 

and the provider documents the 

circumstances as described above. 

Comment: Section 1321.93(e) 

establishes standards for contracting 

between AAAs and legal assistance 

providers. We received comments from 

legal assistance providers that support 

the provision. They strongly supported 

§ 1321.93(e)(3)(i), clarifying that area 

agencies are precluded from requiring a 

pre-screening to receive legal services or 

from being the sole and exclusive 

referral pathway for older adults to 

access legal assistance, to avoid creating 

unnecessary barriers to such assistance. 

They found the provision consistent 

with the Rules of Professional Conduct, 

as well as a means to avoid potential 

COI with the area agency. Commenters 

also cited the requirement in 

§ 1321.93(e)(1)(v) referencing adherence 

to the Rules of Professional Conduct as 

helpful, particularly when AAAs with 

which they contract want them to 

provide confidential information about 

their clients without authorization from 

the client in contravention of the Rules 

of Professional Conduct. 

Regarding OAA-funded legal 

assistance programs that are located 

within a LSC grantee entity, 

commenters were particularly 

appreciative of § 1321.93(e)(3)(v)(c). 

That section enables the Assistant 

Secretary for Aging to exempt additional 

restrictions on activities and client 

representation that would otherwise be 

prohibited for legal assistance providers 

housed within a LSC grantee entity. 

This provision implements section 

307(a)(11)(A) of the Act.239 The 

commenters noted that such restrictions 

can prevent legal assistance providers 

from advocating for individuals in the 

greatest social and economic need and 

require assistance in the very areas that 

the OAA identified as priorities. 

Response: We thank commenters for 

their comments. 

Comment: Section 1321.93(f) sets out 

legal assistance provider requirements. 

These requirements include taking 

reasonable steps to ensure meaningful 

access to legal assistance by older 

individuals with LEP and other 

communication needs, including 

providing access to interpretation, 

translation, and auxiliary aids and 

services. Several commenters raised 

concerns that people who are deaf and 

rely on American Sign Language (ASL) 

or who rely on Communication Real 

Time Access (CART), as well as people 

with visual impairments and other 

sensory disabilities, have had 

difficulties accessing legal assistance. 

Response: We appreciate the concerns 

raised by these commenters and 

reiterate that the regulations require the 

legal assistance provider to provide the 

necessary accommodations. We agree 

with commenters that interpretation and 

translation services must be provided 

through qualified individuals. The use 

of qualified individuals is particularly 

critical, given the technical nature of 

discussions about legal rights. The use 

of untrained laypersons for 

interpretation and translation could lead 

to dangerous or detrimental outcomes, 

and conflicts with civil rights 

obligations. 

Comment: Section 1321.93(f) also 

prohibits the use of funds for lobbying. 

Subsection 1321.93(f)(4)(ii)(A)(5) 

clarifies that the section is not intended 

to prohibit legal assistance providers 

from testifying before a government 

agency, legislative body, or committee at 

the request of the government agency, 

legislative body, or committee. One 

commenter asked that we remove the 

requirement that the legal assistance 

provider may testify when requested to 

do so by the entity before which they 

propose to testify. The commenter 

pointed out that the legal assistance 

provider may have important 

information to share and a technical 

understanding of older adults’ 

experience with the issue but may not 

be able to obtain a timely request from 

the government agency, legislative body, 

or committee. 

Response: We decline to make the 

edit, as the language is consistent with 

other requirements for recipients of 

Federal funding. 

B. New Provisions Added To Clarify 

Responsibilities and Requirements 

Under Grants to State and Community 

Programs on Aging 

We include the following new 

provisions to provide direction in 

response to inquiries and feedback 

received from grantees and other 

interested parties and changes in the 

provision of services, and to clarify 

requirements under the Act. 


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240 42 U.S.C. 3025(a)(2)(A). 

241 Id. section 3025(b)(5)(C)(i). 

242 Id. section 3025(b)(5)(C)(iv). 

243 42 U.S.C. 3027(a)(7)(B). 244 Id. section 3027(a)(7)(B). 245 88 FR 39572 (June 16, 2023). 

Subpart B—State Agency 

Responsibilities 

§ 1321.23 Appeal to the Departmental 

Appeals Board on Area Agency on 

Aging Withdrawal of Designation 

Section 305(a)(2)(A) of the Act 

empowers State agencies to designate 

eligible entities as AAAs.240 Section 

305(b)(5)(C)(i) of the Act affords a AAA 

the right to appeal a State agency’s 

decision to revoke its designation 

including up to the Assistant Secretary 

for Aging.241 Per section 305(b)(5)(C)(iv) 

the Assistant Secretary for Aging may 

affirm or set aside the State agency’s 

decision.242 Historically, appeals of 

AAA designation to the Assistant 

Secretary for Aging have been extremely 

rare. 

Under new § 1321.23, the HHS 

Departmental Appeals Board (DAB) will 

preside over appeals under the OAA. 

The DAB may refer an appeal to its 

Alternative Dispute Resolution Division 

for mediation prior to issuing a 

decision. We believe this will 

streamline administrative functions and 

provide robust due process protections 

to AAAs. This aligns with §§ 1321.17 

and 1321.39. The HHS DAB provides 

impartial, independent review of 

disputed decisions under more than 60 

statutory provisions. We believe this 

regulation will provide clarity and 

consistency to State agencies and AAAs. 

§ 1321.37 Notification of State Plan 

Amendment Receipt for Changes Not 

Requiring Assistant Secretary for Aging 

Approval 

Sections 1321.19 and 1321.23 of the 

existing regulation, redesignated as 

§§ 1321.31 and 1321.35, address 

submission of amendments to the State 

plan and notification of State plan or 

amendment approval; however, they 

lack a process for notification of receipt 

of State plan amendments that are 

required to be submitted, but not 

approved by the Assistant Secretary for 

Aging. We include this new section to 

provide for notification of receipt of 

State plan amendments that do not 

require Assistant Secretary for Aging 

approval. 

§ 1321.47 Conflicts of Interest Policies 

and Procedures for State Agencies 

Section 307(a)(7)(B) of the Act directs 

State agencies to include assurances 

against COI in their State plans.243 As 

explained earlier, § 1321.3 defines two 

broad categories of conflict: one or more 

conflicts between the private interests 

and the official responsibilities of a 

person in a position of trust; and/or one 

or more conflicts between competing 

duties of an individual, or between the 

competing duties, services, or programs 

of an organization, and/or portion of an 

organization. State agencies may wish to 

identify other COI based on State law or 

other requirements. 

Section 1321.47 requires State 

agencies to have policies and 

procedures that establish mechanisms to 

avoid both actual and perceived COI 

and to identify, remove, and remedy any 

existing COI at organizational and 

individual levels. They include 

providing a mechanism for informing 

relevant parties of COI responsibilities 

and identifying and addressing conflicts 

when they arise. Procedures to mitigate 

COI could include establishing firewalls 

between or among individuals, 

programs, or organizations involved in 

the conflict, removing an individual or 

organization from a position, or 

termination of a contract. Whether the 

potential COI is actual or perceived, it 

is essential that the State agency pursue 

solutions that preserve the integrity of 

the mission of the Act. 

Comment: Many commenters 

supported proposed § 1321.47 and 

appreciated the clarification related to 

COI for OAA grantees and 

subrecipients. Several commenters 

provided suggestions to strengthen the 

rule. One commenter suggested 

requiring provisions related to COI in 

State plans on aging. Another 

commenter suggested establishing an 

appeals process for entities should a 

State agency identify a COI. A 

commenter suggested requiring training 

for individuals, including leadership, on 

COI. One commenter recommended a 

two-year timeframe for review and 

implementation of the rule’s COI 

provisions. 

Response: We appreciate these 

suggestions for strengthening the rule. 

Section 307(a)(7)(B) of the Act requires 

assurances related to COI in State plans, 

including that no officer, employee, or 

other representative of the State or area 

agency is subject to a COI prohibited 

under this Act.244 We decline to require 

additional COI provisions in State plans 

in this regulation because such 

provisions, if determined appropriate by 

the State agency, are best determined at 

the State level. State agencies may 

include such provisions in their State 

plans if they believe it will assist in 

implementation and enforcement of the 

rule’s COI requirements. We likewise 

decline to require the establishment of 

an appeals process. Such a process, if 

determined appropriate by the State 

agency, is best developed at the State 

level. We agree training for staff on COI 

is necessary and appropriately 

incorporated in the training required by 

§ 1321.5(a). We intend to provide State 

agencies with technical assistance on 

this final rule’s COI provisions. We 

believe the timeframe specified for 

implementation of the rule is sufficient 

for State agencies to come into 

compliance. 

Comment: A few commenters pointed 

out the potential for COI when a State 

agency or a AAA is lobbied by private 

interest or establishes contracts and 

commercial relationships with private 

entities. 

Response: We agree that COI may 

arise in the context of contracts and 

commercial relationships with private 

entities. As detailed in the discussion of 

§ 1321.9(c)(2), a State agency should 

consider the potential for a heightened 

risk of COI when developing policies 

and procedures for approving such 

agreements.245 ACL will continue to 

provide sub-regulatory guidance and 

technical assistance related to COI in 

contracts and commercial relationships 

for grantees and subrecipients. 

Comment: A few commenters sought 

to clarify that it may not be a COI for 

a State agency to operate both OAA 

programs and APS or a public 

guardianship program, for example. A 

commenter noted that such 

arrangements strengthen the ability of 

an agency to improve the lives of older 

adults and influence policy. Comments 

reiterated that this situation is not 

uncommon and requested clarity as to 

whether specific scenarios represent 

COI that cannot be mitigated. We 

received several comments that 

described how the commenters 

mitigated the potential COI with 

guardianship programs. For example, 

they only served as guardian of last 

resort; promoted the use of alternatives 

to guardianship; provided for defense of 

guardianship through another funding 

source; and generally adhered to the 

ethical standards for guardians 

developed by the National Guardianship 

Association. 

Response: Whether a COI exists due 

to co-location of APS and guardianship 

programs, and whether it can be 

mitigated, is fact-dependent. This 

provision does not suggest that certain 

programs may not be located in State 

agencies. Rather, State agencies should 

carefully evaluate the potential for COI 

to arise when programs are co-located 

and should create and maintain robust 


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246 42 U.S.C. 3026(a)(11)(B). 

247 42 U.S.C. 3027(a)(21)(A). 

248 42 U.S.C. 3057e(a)(11). 

249 42 U.S.C. 3057j(a)(3). 

polices, firewalls, monitoring, and 

remediation as necessary. To address 

concerns, however, we have amended 

§ 1321.47 to require the State agency to 

document COI mitigation strategies, as 

necessary and appropriate, when a State 

agency or Title III program operates an 

APS or guardianship program. 

Comment: A few commenters 

requested eliminated or revising 

§ 1321.47(a)(3), which requires ‘‘robust 

monitoring and oversight.’’ Commenters 

asserted that such monitoring would be 

too costly and burdensome to 

implement. Another commenter 

suggested that State plans on aging 

include provisions for the State agency 

to perform continual monitoring for 

COI. 

Response: We appreciate the 

comments. Given the importance of this 

provision to ensuring access to vital 

services, we decline to make changes. 

Comment: One commenter suggests 

that ACL add definitions for ‘‘financial 

interest’’ and ‘‘agent of the State’’ or give 

State agencies the discretion to adopt a 

State law or common definition. The 

commenter also asks whether ‘‘agent of 

the State’’ includes a AAA, employees 

of a AAA, and AAA providers. 

Response: As with all terms not 

defined in the Act or in this final rule, 

State agencies may use reasonable 

definitions for ‘‘financial interest’’ or 

‘‘agent of the State’’ or any other term 

the State agency chooses to define (or 

chooses not to define) including State 

law or common definitions. 

§ 1321.53 State Agency Title III and 

Title VI Coordination Responsibilities 

New § 1321.53 sets forth expectations 

for coordinating activities and delivery 

of services under Title III and Title VI, 

as articulated in sections 

306(a)(11)(B),246 307(a)(21)(A),247

614(a)(11),248 and 624(a)(3) 249 of the 

Act. We received inquiries and feedback 

from grantees and other interested 

parties asking for clarification on their 

obligation to coordinate activities under 

Title III and Title VI. Questions 

included whether coordination is 

required or discretionary, what 

coordination activities entities must 

undertake, and which entities are 

responsible for coordination. We clarify 

that coordination is required under the 

Act and that all entities are responsible 

for coordination, including State 

agencies, AAAs, service providers, and 

Title VI grantees, and that State agencies 

must have specific policies and 

procedures to guide coordination efforts 

within the State. 

Comment: Commenters 

overwhelmingly expressed support for 

coordination between Title III and Title 

VI programs. Comments expressed 

concern regarding the lack of 

coordination with Title VI grantees by 

State agencies, low amounts of funding 

provided under Title III to Tribes, and 

lack of technical assistance on how 

Tribes can apply for available Title III 

funds. One commenter recommended 

that any entities involved in provision 

of services under Title III of the Act 

develop their procedures for outreach 

and coordination with the relevant Title 

VI program director. Another 

commenter expressed they thought the 

proposed language regarding 

coordination was too permissive. We 

received a comment recommending 

specifying that services should be 

delivered in a culturally appropriate 

and trauma-informed manner. Some 

commenters also requested technical 

assistance for State agencies on their 

roles and responsibilities. We also 

received other suggestions, program 

management recommendations, and 

implementation questions regarding this 

provision, including regarding examples 

and best practices for coordination. 

Response: To make clear the 

responsibilities of State agencies under 

the Act, explicit expectations for 

coordination between Title III and Title 

VI programs are specified in this rule. 

The provision at § 1321.53 is 

complementary with the provisions for 

AAAs and service providers under Title 

III of the Act as set forth at § 1321.69 

(Area agency on aging Title III and Title 

VI coordination responsibilities) and 

§ 1321.95 (Service provider Title III and 

Title VI coordination responsibilities), 

as well as for Title VI grantees under the 

Act as set forth at § 1322.31 (Title VI 

and Title III coordination). This rule 

makes clear that all entities are 

responsible for coordination, including 

State agencies, AAAs, service providers, 

and Title VI grantees. Based on the 

comments received, we revised each 

provision to use consistent language, 

where appropriate. We explain the 

changes made in the following 

paragraphs. 

We have reordered the opening 

paragraph in § 1321.53 as § 1321.53(a) 

and have reordered the subsequent 

paragraphs accordingly. ACL also 

recognizes the variability of local 

circumstances, resources, and needs. 

We appreciate the comment 

recommending that Title III entities 

work with the relevant Title VI program 

directors in developing their policies 

and procedures regarding coordination. 

We have further revised the language at 

reorganized § 1321.53(a) to read, ‘‘For 

States where there are Title VI 

programs, the State agency’s policies 

and procedures, developed in 

coordination with the relevant Title VI 

program director(s) as set forth in 

§ 1322.13(a), must explain how the 

State’s aging network, including area 

agencies and service providers, will 

coordinate with Title VI programs to 

ensure compliance with sections 

306(a)(11)(B) (42 U.S.C. 3026(a)(11)(B)) 

and 307(a)(21)(A) (42 U.S.C. 

3027(a)(21)(A)) of the Act. State 

agencies may meet these requirements 

through a Tribal consultation policy that 

includes Title VI programs.’’ 

We have created a reordered 

paragraph § 1321.53(b) and have revised 

this provision to clarify the topics that 

the policies and procedures set forth in 

paragraph (a) ‘‘[. . .] must at a 

minimum address[.]’’ As such, we have 

clarified that coordination is required. 

We further enumerate how outreach and 

referrals will be provided to Tribal 

elders and family caregivers regarding 

services for which they may be eligible 

under Title III and/or VII; remove 

duplicate language which was 

incorporated into revised paragraph (a); 

revise ‘‘such as’’ to ‘‘to include’’ in 

reference to meetings, email distribution 

lists, and public hearings and add ‘‘Title 

III and other funding opportunities, 

technical assistance on how to apply for 

Title III and other funding 

opportunities,’’ to the list of 

communication opportunities; clarify 

collaboration on and sharing of program 

information and changes; add ‘‘How 

services will be provided in a culturally 

appropriate and trauma-informed 

manner;’’ and add ‘‘Opportunities to 

serve on advisory councils, workgroups, 

and boards, including area agency 

advisory councils, as set forth in 

§ 1321.63.’’ 

Regarding provision of Title III 

funding to Tribes, the amount of 

available Title III funding is limited to 

what is appropriated for such purposes. 

State agencies are required to distribute 

such funding to AAAs via an IFF in 

States with multiple PSAs, as required 

by the Act and as set forth at § 1321.49. 

In some States, Tribes have been 

designated as AAAs and receive Title III 

funds. Single PSA State agencies are 

required to distribute funds in 

accordance with a funds distribution 

plan as set forth at § 1321.51(b), and 

Title VI programs may receive funds 

under a contract or grant with a State 

agency in such States. State agencies 

and AAAs are required to establish and 

follow procurement policies in 

awarding Title III funds under the Act, 


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250 42 U.S.C. 3026. 

251 Id. 252 42 U.S.C. 3027(a)(7)(B). 

which may allow for awarding of funds 

to Title VI grantees, Tribes, and other 

Tribal organizations. ACL encourages 

Tribes and Tribal organizations to apply 

to provide Title III-funded services. 

However, the statute does not allow for 

a requirement that Title III funds be 

provided to Title VI grantees outside of 

the procurement policies in place for 

awarding of Title III funds under the 

Act. 

There are multiple successful 

examples of such coordination that ACL 

is committed to sharing and expanding. 

As such expectations were not explicitly 

stated in the prior regulation, we believe 

that the promulgation of these 

regulations will provide a significant 

opportunity to further coordination 

between Title III and Title VI programs, 

including improving ACL’s monitoring 

of programs for compliance. ACL 

anticipates providing technical 

assistance on this provision and other 

provisions related to coordination 

among Title VI and Title III programs 

upon promulgation of the final rule. 

Subpart C—Area Agency 

Responsibilities 

§ 1321.59 Area Agency Policies and 

Procedures 

Section 306 of the Act sets forth the 

responsibilities of AAAs regarding 

programs operated under the Act. 250

Section 306, in conjunction with other 

language throughout the Title III of the 

Act, establishes the AAA’s role with 

relation to the State agency and service 

providers.251 However, we have 

received inquiries and feedback from 

AAAs and others that indicates a lack of 

clarity as to, for example, the scope of 

State agency versus AAA responsibility. 

New § 1321.59 states that AAAs shall 

develop policies and procedures 

governing all aspects of programs 

operated under the Act, in compliance 

with State agency policies and 

procedures. It also clarifies that the 

scope of AAA responsibility includes 

consulting with other appropriate 

parties regarding policy and procedure 

development, monitoring, and enforcing 

their own policies and procedures. We 

also incorporate the provision 

previously set forth at § 1321.25 

(Restriction of delegation of authority to 

other agencies) within this new 

provision. 

Comment: ACL received many 

comments regarding the roles of both 

area agencies and State agencies in 

developing policies and procedures for 

the area agency. Most of these 

comments expressed support for the 

proposed provision as detailed in 

§ 1321.59(a) and the reinforcement of an 

area agency’s responsibility for 

developing their own policies and 

procedures, in compliance with the 

State agency’s rules. A variety of 

commenters recommended that State 

agencies and program participants 

explicitly be consulted with 

surrounding the development of area 

agency policies and procedures. 

Response: ACL appreciates comments 

regarding the development of area 

agency policies and procedures. As 

commenters noted, area agencies have 

the authority and responsibility to 

develop their own policies and 

procedures. These policies and 

procedures must be developed in 

compliance with all State agency 

policies and procedures, including 

those detailed in § 1321.9, and be in 

alignment with the Act and all 

applicable Federal requirements, and, 

where appropriate, in consultation with 

other parties in the PSAs. ACL 

maintains that the rule provides area 

agencies the flexibility to develop 

policies and procedures that align with 

the needs of their individual PSAs. Area 

agencies have full authority to consult 

with State agencies in the development 

of policies and procedures, as 

appropriate. Further, the Act requires 

area agencies to establish advisory 

councils who help with developing and 

administering the area plan; § 1321.63 

requires the councils to be 

representative of program participants 

or those that are eligible to participate 

and to solicit and incorporate public 

input into the area plan, which will 

help ensure that the perspectives of 

older adults are incorporated into area 

agency policies and procedures. 

Comment: Some commenters 

requested that ACL revise § 1321.59(b) 

to require area agencies to make quality 

monitoring and measurement results 

publicly available and specifically 

requested that they be available to the 

public in ‘‘plain language format 

designed to support and provide 

information and choice.’’ 

Response: ACL appreciates comments 

related to the transparency of quality 

monitoring and measurement results 

and the importance of sharing 

information with the public in a manner 

that is easily accessible and understood. 

We maintain that § 1321.59(b) 

encourages both transparency and 

accessibility surrounding quality 

monitoring and measurement results 

and decline to revise the provision. ACL 

will continue to provide technical 

assistance to encourage area agencies to 

ensure that quality monitoring and 

measurement results are available to the 

public and provide technical assistance 

surrounding best practices for 

communicating in plain language. 

Comment: One commenter voiced 

concern that § 1321.59(d), which 

clarifies that area agencies may not 

delegate the authority to award or 

administer funds to another agency, 

could be understood to prohibit 

provider subgrants which would disrupt 

program and service delivery. The 

commenter provided a specific example 

in which an area agency may contract 

with a county-based service provider 

which then in-turn provides subawards 

for home-delivered meals. 

Response: ACL appreciates the 

request for clarity surrounding 

§ 1321.59(d). This section requires the 

area agency to be responsible for 

approving and administering funding 

for all subawards; area agencies may not 

delegate the authority to award or 

administer funds to another agency. In 

the example provided, the area agency 

would need to approve all subawards by 

the service provider and would be 

responsible for administering all 

funding under the subawards. ACL will 

provide technical assistance regarding 

this requirement, as needed. 

Comment: One commenter proposed 

setting requirements for eligibility 

beyond age and need, assessment, 

planning, and detailing the limitation of 

the frequency or type of services 

provided. The commenter also stated 

that if there is a limit of service and 

hours, there would need to be a staffing 

procedure to allow for the 

circumstances when additional hours 

are necessary. 

Response: Given the wide variation in 

resources, needs, and available services, 

ACL believes that this regulation 

sufficiently requires establishment of 

policies and procedures at the AAA 

level, in accordance with State agency 

policies and procedures. State agencies 

and AAAs may establish additional 

policies and procedures, as long as they 

are in accordance with the Act and all 

applicable Federal requirements. 

§ 1321.67 Conflicts of Interest Policies 

and Procedures for Area Agencies on 

Aging 

As previously discussed, § 1321.3 

defines COI, and § 1321.47 explains the 

responsibilities of State agencies to 

avoid and mitigate COI. Similarly, 

§ 1321.67 explains the responsibilities 

of AAAs to meet the requirements of 

section 307(a)(7)(B) of the Act.252 AAAs 

must have policies and procedures to 

identify both organizational and 

individual COI. The policies must 


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253 42 U.S.C. 3026(a)(11)(B). 

establish the actions and procedures the 

AAA will require employees, 

contractors, grantees, volunteers, and 

others in a position of trust or authority 

to take to remedy or remove such 

conflicts. AAAs have expanded their 

business activities over the last decade, 

necessitating additional guidance on 

preventing and mitigating COI so they 

may engage in the new activities and 

carry out the objectives of the Act. 

Comment: Several commenters 

requested more information and 

assistance in identifying and addressing 

COI, including examples, training, tools, 

and best practices. Commenters noted 

that there is currently no process in 

place for Title III providers or AAA 

administrators to comply with the 

proposed rule to ‘‘ensure that no 

individual or immediate family of and 

individual involved in Title III program 

has a conflict of interest’’ and noted that 

the additional screening could be 

burdensome for programs. One 

commenter emphasized the need for 

flexibility as State agencies and AAAs 

address and mitigate COI. 

Response: We intend to provide 

technical assistance to AAAs and State 

agencies on COI requirements. We 

welcome ongoing feedback as we 

develop these materials. In policies 

involving COI, and throughout this rule, 

we recognize the need to balance 

flexibility and ease of administration for 

grantees and subrecipients while 

adhering to the requirements of the Act. 

Comment: We received numerous 

comments on COI related to 

guardianship programs administered by 

AAAs. Several commenters wrote in 

support of allowing AAAs to serve as 

public guardians. Some noted that such 

programs are a last resort. A commenter 

offered that allowing a AAA to serve as 

a guardian was preferable to relying on 

a for-profit entity, where the presence of 

a profit motive heightens the risk of 

abuse. One commenter wrote that 

guardianship programs hosted by AAAs 

were particularly important in rural 

communities, where other options may 

not be readily available. 

Many commenters stressed the 

necessity of appropriate safeguards and 

firewalls for guardianship programs colocated in or administered by AAAs. 

Some commenters provided examples of 

successful guardianship programs 

administered by AAAs. Commenters 

stressed that such programs can be 

ethically and efficiently administered 

alongside other Title III programs with 

appropriate measures to protect from 

COI and further detailed the process by 

which their State agency or a AAA 

establishes firewalls to protect against 

conflicts. As discussed in response to 

comments to § 1321.47, commenters 

described mitigation strategies such as 

serving as guardian of last resort; 

promoting the use of alternatives to 

guardianship; and providing for defense 

of guardianship through another 

funding source. 

A number of other commenters, 

however, held that it is in the public 

interest to prohibit AAAs from being 

appointed as guardians and that an 

inherent and irremediable COI exists for 

a AAA hosting a guardianship program. 

One commenter offered an example 

wherein individuals remained in a 

nursing home when they should have 

received care in the community due to 

a COI in a AAA guardianship program. 

Response: We appreciate commenters 

who responded to our request for input 

regarding AAAs conducting 

guardianship programs or being 

appointed the guardian for an older 

person. 

We recognize the potential for COI 

and are sensitive to the gravity of such 

situations and concerns of commenters 

who believe such conflicts are 

irredeemable. However, we decline to 

completely prohibit AAAs from hosting 

guardianship programs or serving as 

guardians to older adults. As noted by 

some commenters, oftentimes these 

programs and appointments exist 

because no other alternative is available. 

Furthermore, some State statutes 

appoint the AAA or State agency to 

serve as guardian in cases where no 

other entity is available or appropriate. 

We agree that policies and procedures 

including firewalls and other safeguards 

are necessary to protect against COI for 

AAAs that serve as guardians. 

Therefore, we have amended both 

§ 1321.47 and § 1321.67 to require 

documentation of COI mitigation 

strategies, as necessary and appropriate, 

when a State agency, AAA, or Title III 

program operates an Adult Protective 

Services or guardianship program. We 

will continue to provide technical 

assistance to State agencies and AAAs. 

Comment: A commenter expressed 

support for APS and Ombudsman 

programs co-located within AAAs 

provided there are appropriate 

safeguards and firewalls in place. 

Another commenter sought to clarify 

whether an organizational COI 

necessarily exists when a AAA provides 

both OAA and non-OAA services. The 

commenter noted deeming such a 

situation a COI may create an 

administrative burden and increase 

programmatic costs. 

Response: Many APS and 

Ombudsman programs are located in 

AAAs. We agree such placement is 

advantageous in many situations; 

however, appropriate COI policies and 

procedures are necessary. As stated in 

response to the previous comment, we 

have amended §§ 1321.47 and 1321.67 

to require documentation of mitigation 

strategies when a State agency or AAA 

also houses the APS program. 

We also wish to clarify that a AAA 

providing both OAA and non-OAA 

services is not a per se COI. We 

recognize this is an extremely common 

occurrence and encourage AAAs to 

develop dynamic and diverse service 

delivery systems. The COI standards for 

AAAs in this final rule apply across 

organizations, providers, and service 

relationships. Furthermore, some nonOAA programs offered by a AAA may 

be governed by their own COI rules, for 

example the State Health Insurance 

Assistance Program or Medicaid 

managed care plans. Ombudsman 

program COI requirements are governed 

by this rule at § 1324.21. 

Comment: A few commenters noted 

that in small communities, particularly 

rural and frontier areas, many AAAs 

with limited providers may be serving 

family members. Agency staff may be 

related to staff of organizations that 

receive Title III funding. A commenter 

noted that nearly everyone wears 

multiple hats and has relationships 

within the organization and community. 

Response: We understand that in 

smaller communities the possibility for 

individual and organizational COI may 

be more likely to arise simply by nature 

of communities’ size and structure. 

Whether and how actual or potential 

COI may be remedied through 

appropriate policies and procedures is 

fact-dependent. Factors to consider 

include whether the individual in 

question is a decision maker, whether 

firewalls or other safeguards can be 

erected between organizations and 

individuals, and what monitoring 

protocols are in place for a potentially 

conflicted situation. Similarly, if a 

conflict arises, a AAA may ask whether 

it can be remediated and what the likely 

impact will be on the quality of services 

and the credibility of the AAA, its 

employees, and agents. 

§ 1321.69 Area Agency on Aging Title 

III and Title VI Coordination 

Responsibilities 

Consistent with new § 1321.53 (State 

agency Title III and Title VI 

coordination responsibilities), new 

§ 1321.69 sets forth expectations for 

coordinating activities and delivery of 

services under Title III and Title VI, as 

articulated in sections 306(a)(11)(B),253


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254 42 U.S.C. 3027(a)(21)(A). 

255 42 U.S.C. 3057e(a)(11). 

256 42 U.S.C. 3057j(a)(3). 257 42 U.S.C. 3001. 

307(a)(21)(A),254 614(a)(11),255 and 

624(a)(3) 256 of the Act. We clarify that 

coordination is required under the Act 

and that all entities are responsible for 

coordination, including State agencies, 

AAAs, service providers, and Title VI 

grantees. The section complements the 

language at § 1321.53 for State agencies, 

and includes specific considerations for 

AAAs, such as opportunities for 

representatives of Title VI grantees to 

serve on AAA advisory councils, 

workgroups, and boards and 

opportunities to receive notice of Title 

III and other funding opportunities. 

Comment: Commenters 

overwhelmingly expressed support for 

coordination between Title III and Title 

VI programs. Comments expressed 

concern regarding the lack of 

coordination with Title VI grantees, low 

amounts of funding provided under 

Title III to Tribes, and lack of technical 

assistance on how to apply for available 

Title III funds. One commenter 

recommended that any entities involved 

in provision of services under Title III 

of the Act develop their procedures for 

outreach and coordination with the 

relevant Title VI program director. 

Another commenter expressed they 

thought the proposed language 

regarding coordination was too 

permissive. We received a comment 

recommending specifying that services 

should be delivered in a culturally 

appropriate and trauma-informed 

manner. Some commenters also 

requested technical assistance on roles 

and responsibilities. We also received 

other suggestions, program management 

recommendations, and implementation 

questions regarding this provision, 

including regarding examples and best 

practices for coordination. 

Response: To make clear the 

responsibilities of area agencies under 

the Act, explicit expectations for 

coordination between Title III and Title 

VI programs are included as new 

provisions in this rule. The provision at 

§ 1321.69 is complementary with the 

provisions for State agencies and service 

providers under Title III of the Act as set 

forth at § 1321.53 (State agency Title III 

and Title VI coordination 

responsibilities) and § 1321.95 (Service 

provider Title III and Title VI 

coordination responsibilities), as well as 

for Title VI grantees under the Act as set 

forth at § 1322.31 (Title VI and Title III 

coordination). This rule makes clear that 

all entities are responsible for 

coordination, including AAAs, State 

agencies, service providers, and Title VI 

grantees. Based on the comments 

received, we have revised each 

provision to use consistent language, 

where appropriate. We explain the 

changes we have made in the following 

paragraphs. 

We have reordered the opening 

paragraph in § 1321.69 as § 1321.69(a) 

and have reordered the subsequent 

paragraphs accordingly. ACL also 

recognizes the variability of local 

circumstances, resources, and needs. 

We appreciate the comment 

recommending that Title III entities 

work with the relevant Title VI program 

directors in developing their policies 

and procedures regarding coordination. 

We have revised the language at 

§ 1321.69(a) to read, ‘‘For planning and 

service areas where there are Title VI 

programs, the area agency’s policies and 

procedures, developed in coordination 

with the relevant Title VI program 

director(s) as set forth in § 1322.13(a), 

must explain how the area agency’s 

aging network, including service 

providers, will coordinate with Title VI 

programs to ensure compliance with 

section 306(a)(11)(B) (42 U.S.C. 

3026(a)(11)(B)) of the Act.’’ 

We have created a reordered 

paragraph § 1321.69(b) and have revised 

this provision to clarify the topics that 

the policies and procedures set forth in 

paragraph (a) ‘‘must at a minimum 

address[.]’’ As such, we clarify that 

coordination is required. We have 

further made edits to require how 

outreach and referrals will be provided 

to Tribal elders and family caregivers 

regarding services for which they may 

be eligible under Title III; revise ‘‘such 

as’’ to ‘‘to include’’ in reference to 

meetings, email distribution lists, 

presentations, and public hearings and 

add ‘‘Title III and other funding 

opportunities, technical assistance on 

how to apply for Title III and other 

funding opportunities,’’ to the list of 

communication opportunities; clarify 

collaboration on and sharing of program 

information and changes to include 

coordinating with service providers 

where applicable; add how services will 

be provided in a trauma-informed, as 

well as culturally appropriate, manner; 

and add ‘‘Opportunities to serve on 

advisory councils, workgroups, and 

boards, including area agency advisory 

councils, as set forth in § 1321.63.’’ We 

have removed duplicate provisions that 

were otherwise incorporated into 

revised paragraph (b). 

Regarding provision of Title III 

funding to Tribes, the amount of 

available Title III funding is limited to 

what is appropriated for such purposes. 

State agencies are required to distribute 

such funding to AAAs via an IFF in 

States with multiple PSAs, as required 

by the Act and as set forth at § 1321.49. 

In some States, Tribes have been 

designated as AAAs and receive Title III 

funds. Single PSA State agencies are 

required to distribute funds in 

accordance with a funds distribution 

plan as set forth at § 1321.51(b), and 

Title VI programs may receive funds 

under a contract or grant with a State 

agency in such States. State agencies 

and AAAs are required to establish and 

follow procurement policies in 

awarding Title III funds under the Act, 

which may allow for awarding of funds 

to Title VI grantees, Tribes, and other 

Tribal organizations. ACL encourages 

Tribes and Tribal organizations to apply 

to provide Title III-funded services. 

However, the statute does not allow for 

a requirement that Title III funds be 

provided to Title VI grantees outside of 

the procurement policies in place for 

awarding of Title III funds under the 

Act. 

There are multiple successful 

examples of such coordination that ACL 

is committed to sharing and expanding. 

As such expectations were not explicitly 

stated in the prior regulation, we believe 

that the promulgation of these 

regulations will provide a significant 

opportunity to further coordination 

between Title III and Title VI programs, 

including improving ACL’s monitoring 

of programs for compliance. ACL 

anticipates providing sub-regulatory 

guidance and technical assistance on 

this provision and other provisions 

related to coordination among Title VI 

and Title III programs upon 

promulgation of the final rule. 

Subpart D—Service Requirements 

§ 1321.77 Purpose of Services— 

Person- and Family-Centered, TraumaInformed 

New § 1321.77 clarifies that services 

under the Act should be provided in a 

manner that is person-centered and 

trauma-informed. Consistent with the 

direction of amendments to section 101 

of the Act as reauthorized in 2020, 

recipients are entitled to an equal 

opportunity to the full and free 

enjoyment of the best possible physical 

and mental health, which includes 

access to person-centered and traumainformed services.257

Comment: We received comments 

supporting person-centered and traumainformed services in the regulations, 

consistent use of these terms throughout 

the regulations, and in-depth training on 

diversity, equity, inclusion, and 

accessibility being offered to every 


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258 Id. section 3001(40). 

259 42 U.S.C. 3021(3). 

260Public Charge Ground of Inadmissibility, 8 

CFR 212.20 et seq. 

person who provides services and 

programs for older adults. 

Response: ACL appreciates these 

comments and notes that training by 

State agencies, AAAs, and service 

providers is required at § 1321.77(c). 

However, we defer to entities to 

determine the specific content of the 

required training. 

Comment: Another commenter 

stressed that as part of person-centered 

supports and planning, assistance with 

activities of daily living and 

independent activities of daily living 

should be provided, with interagency 

and intergovernmental promotion of 

these services. 

Response: ACL appreciates these 

supportive comments and notes that 

assistance with activities of daily living 

and independent activities of daily 

living may be provided with funds 

under the Act, as set forth at § 1321.85 

(Supportive services). Further, 

coordination and interagency 

collaboration are listed as expectations 

under § 1321.5 (Mission of the State 

agency) and § 1321.55 (Mission of the 

area agency). 

Comment: A commenter suggested 

edits regarding person-centered 

services. 

Response: We appreciate this 

suggestion and add the following, 

‘‘Person-centered services may include 

community-centered and familycentered approaches consistent with the 

traditions, practices, beliefs, and 

cultural norms and expectations of older 

adults and family caregivers’’ in 

§ 1321.77(a). 

Comment: We received other 

suggestions, program management 

recommendations, and implementation 

questions regarding this provision. 

Response: We decline to make further 

changes to this provision and intend to 

address other suggestions and requests 

for clarification through technical 

assistance. 

§ 1321.81 Client Eligibility for 

Participation 

To be eligible for services under the 

Act, recipients must be age 60 or older 

at the time of service, except in the case 

of limited services, such as nutrition 

and family caregiver support services. 

We received inquiries, requests for 

technical assistance, and comments 

demonstrating misunderstandings 

among State agencies, AAAs, service 

providers, and others in the aging 

network about eligibility requirements. 

For example, we received feedback 

expressing confusion as to whether any 

caregivers of adults of any age are 

eligible to receive Title III program 

services, which is not allowable under 

the Act. 

New § 1321.81 clarifies eligibility 

requirements under the Act and 

explains that State agencies, AAAs, and 

service providers may adopt additional 

eligibility requirements, if they do not 

conflict with the Act, the implementing 

regulation, or guidance issued by the 

Assistant Secretary for Aging. 

Comment: We received comments 

asking for the age of eligibility for 

services under Title III to be lowered to 

allow for service to Tribal elders to 

coincide with the age of eligibility set by 

the Tribe and to allow for service to 

individuals of young onset of 

Alzheimer’s disease and related 

dementias. We also received comment 

requesting an increase of the age for 

eligibility of service to 65 years old. 

Response: The Act defines ‘‘older 

individual’’ in section 102(40), ‘‘The 

term ‘‘older individual’’ means an 

individual who is 60 years of age or 

older.’’ 258 As such we do not have the 

authority to modify this provision in 

response to comments. Title III allows 

for services to family caregivers of 

individuals of any age with Alzheimer’s 

or related disorder at section 302(3), 

‘‘[t]he term ‘‘family caregiver’’ means an 

adult family member, or another 

individual, who is an informal provider 

of in-home and community care to an 

older individual or to an individual of 

any age with Alzheimer’s disease or a 

related disorder with neurological and 

organic brain dysfunction,’’ 259 along 

with service to ‘‘older relative 

caregivers,’’ as further defined below. 

The regulation for services provided 

under Title VI at § 1322.3 provides the 

following definition, ‘‘Older Indians, 

means those individuals who have 

attained the minimum age determined 

by the Indian Tribe for services.’’ 

Comment: One commenter expressed 

concern that no requirements were set 

forth that address service to unlawfully 

present individuals. 

Response: There is no requirement 

that recipients of services be citizens of 

the United States nor be lawfully 

present to receive services under the 

OAA. In September 2022, the 

Department of Homeland Security 

(DHS) finalized a rule defining the 

criteria it uses when determining 

whether a person can be denied a visa 

and/or legal residency because they are 

likely to become a ‘‘public charge.’’ 

Services provided under the OAA are 

not among those considered in 

determining whether a person is likely 

to become a ‘‘public charge.’’ 260 State 

agencies, AAAs, and service providers 

under the Act should not require that 

recipients of services be citizens of the 

United States nor be lawfully present to 

receive services under the Older 

Americans Act. 

Comment: We received comment that 

Ombudsman program services be 

included among the list of exceptions in 

§ 1321.81(a). 

Response: We appreciate this 

comment and add (4) to read, 

‘‘Ombudsman program services, as 

provided in part 1324.’’ 

Comment: We received comments 

asking for clarity regarding 

§ 1321.81(a)(2). We received another 

comment noting that ‘‘age 55 or older’’ 

is redundant in § 1321.81(a)(2)(ii) and 

(iii), as that is a component of the 

definition of ‘‘older relative caregiver.’’ 

Response: We appreciate these 

comments and have revised 

§ 1321.81(a)(2)(i) to read, ‘‘Adults caring 

for older adults and adults caring for 

individuals of any age with Alzheimer’s 

or a related disorder[.]’’ We have also 

removed the redundant language in 

§ 1321.81(a)(2)(ii) and (iii). To clarify, 

‘‘family caregiver’’ does not include the 

following categories of individuals: (1) 

an individual under age 55 caring for an 

adult under age 60 without Alzheimer’s 

or a related disorder; (2) an individual 

under age 55 caring for a child under 

age 18; and (3) an individual age 55 or 

older who is caring for a child under age 

18, where the individual’s relationship 

to the child is that of biological or 

adoptive parent, not including adoptive 

parents who are also grandparents. 

Comment: We received various 

comments in support of this provision, 

as well as other suggestions, program 

management recommendations, and 

implementation questions regarding this 

provision. 

Response: We appreciate the 

comments of support and decline to 

make further changes to this provision. 

We intend to address other suggestions 

and requests for clarification through 

technical assistance. 

§ 1321.85 Supportive Services 

New § 1321.85 clarifies the supportive 

services set forth in Title III, part B, 

section 321 of the Act, which includes 

in-home supportive services, access 

services, and legal services. It also 

clarifies allowable use of funds, 

including for acquiring, altering or 

renovating, and constructing 

multipurpose senior centers and that 

those funds must be distributed through 


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261 42 U.S.C. 3030d. 

262 42 U.S.C. 3021(a)(1). 

263 42 U.S.C. 3023. 

264 42 U.S.C. 3024. 

265 42 U.S.C. 3026(a)(1). 

266 42 U.S.C. Ch. 35, Subch. III, Pt. B. 

267 42 U.S.C. 3030d(a). 

268 Id. section 3030d. 

269 42 U.S.C. 3030d; 42 U.S.C. 3030e; 42 U.S.C. 

3030f; 42 U.S.C. 3030g. 

270 42 U.S.C. 3030e(1). 

an approved IFF or funds distribution 

plan, as articulated in the State plan.261

Comment: We received various 

comments noting need for the types of 

in-home supportive services that may be 

provided under this provision, 

including help with housework like 

cleaning and laundry and home 

maintenance and repairs. Some 

commenters noted that while needed, 

such services are not available. 

Response: In-home supportive 

services provided under the Act may 

include homemaker services (to help 

with routine household tasks like 

cleaning and doing laundry) and repairs 

to and minor modification of homes to 

allow an older adult to age in place. 

ACL acknowledges that the need for 

such services is likely to exceed the 

available funding under the Act. With 

these regulations, ACL intends to clarify 

how funds under the Act may be used, 

in coordination with the other 

provisions set forth at §§ 1321.27 and 

1321.65 regarding identifying persons in 

greatest economic need and greatest 

social need who should be prioritized in 

receiving services under the Act, as well 

as the role of public participation in 

guiding how funds under the Act are 

used in State and area plans on aging. 

Comment: We received a comment 

noting need for the types of access 

services that may be provided under 

this provision, including free or 

affordable transportation in rural areas. 

The commenter noted that while 

needed, such services are not available. 

Response: Access services provided 

under the Act may include 

transportation. ACL acknowledges that 

the need for such services is likely to 

exceed the available funding under the 

Act. With these regulations, ACL 

intends to clarify how funds under the 

Act may be used, in coordination with 

the other provisions set forth at 

§§ 1321.27 and 1321.65 regarding 

identifying persons in greatest economic 

need and greatest social need who 

should be prioritized in receiving 

services under the Act, as well as the 

role of public participation in guiding 

how funds under the Act are used in 

State and area plans on aging. 

Comment: Several commenters 

recommended changes to this section to 

make clear that while expenditures for 

multipurpose senior centers should be 

allowable, a multipurpose senior center 

is not in and of itself a service. 

Response: In referencing supports 

which may be provided with funds 

under the Act, multipurpose senior 

centers are mentioned multiple times, 

including in section 301(a)(1) regarding 

the purpose of Title III,262 section 303 

regarding authorization of 

appropriations and uses of funds,263

section 304 regarding allotment and 

Federal share,264 section 306(a)(1) 

regarding area plans on aging,265 and in 

the title of Part B, ‘‘Supportive Services 

and Senior Centers.’’ 266 We note that 

some in the aging network may 

implement multipurpose senior centers 

as a service, consistent with section 

321(a),267 which authorizes services that 

promote or support social 

connectedness and reduce negative 

health effects associated with social 

isolation and any other services 

necessary for the general welfare of 

older individuals. 

The service of multipurpose senior 

centers may track measures such as 

number of visits, number of 

unduplicated persons served, and hours 

of staff/volunteer time. For the purposes 

of including multipurpose senior 

centers as an allowable expenditure of 

funds appropriated under Title III, part 

B as set forth at § 1321.71(a)(1) and an 

allowable access service to meet 

minimum adequate proportion 

provisions as set forth at § 1321.27(i), 

we consider multipurpose senior 

centers to be a supportive service and 

decline to make changes to this 

provision. We have made an edit at 

§ 1321.3 (Definitions) to indicate ‘‘[. . .] 

as used in § 1321.85, facilitation of 

services in such a facility.’’ 

Comment: We received other 

suggestions regarding this provision, 

including specifying other services that 

may be allowable. 

Response: As referenced in this 

provision, section 321 of the Act sets 

forth twenty-six types of supportive 

services that may be provided.268 State 

agencies and AAAs also have certain 

flexibility to craft service definitions 

and requirements to reflect their specific 

circumstances and meet local needs. For 

these reasons, we decline to make 

further changes to this provision and 

intend to address other suggestions and 

requests for clarification through 

technical assistance. 

§ 1321.87 Nutrition Services 

New § 1321.87 clarifies the nutrition 

services set forth in Title III, part C of 

the Act—which includes congregate 

meals, home-delivered meals, nutrition 

education, nutrition counseling, and 

other nutrition services.269 Based on 

experiences during the COVID–19 PHE 

and numerous requests for flexibility in 

provision of meals, we set forth that 

meals provided under Title III, part C– 

1 of the Act may be used for shelf-stable, 

pick-up, carry-out, drive-through or 

similar meals, if they are done to 

complement the congregate meal 

program and comply with certain 

requirements as set forth. 

We also clarify that home-delivered 

meals may be provided via home 

delivery, pick-up, carry-out, or drivethrough and that eligibility for homedelivered meals is not limited to those 

who may be identified as 

‘‘homebound,’’ that eligibility criteria 

may consider multiple factors, and that 

meal participants may also be 

encouraged to attend congregate meals 

and other activities, as feasible, based 

on a person-centered approach and local 

service availability. 

We specify that nutrition education, 

nutrition counseling, and other 

nutrition services may be provided with 

funds under Title III, parts C–1 or C–2 

of the Act. As required by section 

331(1), we set forth requirements to 

determine the frequency of meals in 

areas where five or more days a week of 

service is not feasible.270 This provision 

also clarifies that funds must be 

distributed through an approved IFF or 

funds distribution plan, as articulated in 

the State plan. 

Finally, this provision sets forth 

requirements for NSIP allocations. NSIP 

allocations are based on the number of 

meals reported by the State agency 

which meet certain requirements, as 

specified. State agencies may choose to 

receive their allocation grants as cash, 

commodities, or a combination thereof. 

NSIP funds may only be used to 

purchase domestically produced foods 

(definition included in § 1321.3) used in 

a meal, as set forth under the Act. We 

intend for this provision to answer 

many questions we have received 

regarding the proper use of funds under 

the NSIP. 

Comment: We received many 

comments for individual participants in 

nutrition programs funded under the 

Act who shared what they liked about 

the nutrition program and their 

suggestions for maintaining and 

improving the nutrition program. 

Response: We are grateful for the 

feedback from individual participants 

and will use their feedback in 

promulgating these regulations, as well 


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as in considering other technical 

assistance. 

Comment: We received comments 

noting a technical correction needed at 

§ 1321.87(a)(1)(ii). 

Response: We are grateful for these 

comments, and revise this provision to 

read ‘‘Meals provided as set forth in (i) 

shall[.]’’ 

Comment: We received various 

comments requesting improved meal 

presentation. 

Response: ACL recognizes the 

importance of meals and other services 

provided under the Act being appealing 

to participants. Such services are to be 

person-centered, as set forth in 

§ 1321.77. Additionally, we expect that 

feedback from service participants will 

be solicited and used to the greatest 

extent possible in the ongoing provision 

of services as set forth in § 1321.73(c). 

To further clarify the importance of the 

participant experience, we have added 

‘‘[. . .] and preferences,’’ to the 

expectations for monitoring participant 

needs set forth in § 1321.73(c). 

Comment: We received many 

comments expressing support for shelfstable, pick-up, carry-out, drive through, 

‘‘grab and go,’’ and similar options. 

Other commenters disagreed with 

broadening congregate meal program 

requirements, allowing for virtual 

congregate meals programming, and 

expanding the circumstances allowable 

for home-delivered meal service 

provision. We also received comment in 

support of groceries being included 

under other nutrition services. 

Response: ACL appreciates the 

comments in support of various 

nutrition services and delivery options 

to meet the purposes and requirements 

of the Act. We also recognize the 

evolution of service models that were 

initiated during the COVID–19 PHE 

being adapted into ongoing practice. We 

note that while these regulations set 

forth the types of services that may be 

provided, State agencies, AAAs, and 

service providers will likely need to 

make decisions about what services are 

provided and any applicable 

limitations, due to limited resources 

available, the need to prioritize service 

to individuals in the greatest economic 

need and greatest social need, and other 

factors as set forth at § 1321.81(b). 

Comment: We received a comment 

expressing that local program 

requirements hinder the nutrition 

program. 

Response: Given the wide variation in 

resources, needs, and available services, 

ACL believes that this regulation 

sufficiently requires establishment of 

policies and procedures at the State 

agency, AAA, and/or service provider 

levels as set forth in § 1321.73(a). For 

consistency, we have revised 

§ 1321.87(b) to be clear that AAAs may 

develop policies and procedures 

regarding this provision as delegated by 

the State agency. State agencies, AAAs, 

and service providers may establish 

additional policies and procedures, as 

long as they are in accordance with the 

Act and all applicable Federal 

requirements. Such additional policies 

and procedures should further the 

purposes of the Act and be consistent 

with a person-centered manner of 

service provision, as set forth at 

§ 1321.77. Additional information on 

how State agencies, AAAs, and service 

providers have implemented various 

policies and procedures is available at 

ACL’s Nutrition and Aging Resource 

Center: https://acl.gov/senior-nutrition. 

Comment: We received many 

comments noting the importance of the 

nutrition programs provided under the 

Act, as well as culturally appropriate 

meals, medically tailored meals, fresh 

produce, and locally sourced food. 

Other commenters noted support for the 

clarifications included in this provision. 

Response: We appreciate these 

comments. 

Comment: We received comments 

asking to allow State agencies and/or 

AAAs to make decisions on whether to 

provide shelf-stable, pick-up, carry-out, 

drive-through, or similar meals with 

Title III, part C–1 funds as set forth in 

§ 1321.87(a)(1)(i), without AAAs 

requiring the State agency’s approval, 

the provision of such meals statewide, 

or demonstration that such meals 

complement the congregate meal 

program. 

Response: Congress appropriates 

separate funds for congregate and homedelivered meals, as set forth by the Act. 

The State agency is responsible for 

policies and procedures to implement 

programs under the Act, as well as for 

making the decision about whether or 

not to permit the provision of shelfstable, pick-up, carry-out, drive-through, 

or similar meals. The State agency is 

responsible for ensuring program 

requirements are met, including 

reporting to ACL. We note that nothing 

in this provision requires this option to 

be offered statewide; if State agencies 

choose to permit the provision of these 

types of meals using Title III, part C–1 

funds, that decision must be 

incorporated into the applicable State 

and area plans. For these reasons, we 

decline to amend the requirements in 

the final rule. We encourage that if this 

option is pursued, the State agency and 

area agencies use streamlined processes 

for documenting the use of this option 

in State and area plans, for monitoring 

the use of this option, and for reporting 

on the use of this option. 

Comment: We received comments 

asking to modify the 20 percent limit on 

shelf-stable, pick-up, carry-out, drivethrough, or similar meals with Title III, 

part C–1 funds as set forth in 

§ 1321.87(a)(1)(ii) and to clarify if the 20 

percent limit is to be calculated based 

on the original allocation to the State or 

after completion of any transfers. 

Response: Congress appropriates 

separate funds for congregate and homedelivered meals, as set forth by the Act. 

ACL believes that offering a limited 

number of shelf-stable, pick-up, carryout, drive-through, or similar meals to 

complement the congregate meals 

program and meet unique needs of 

program participants in greatest 

economic need and greatest social need 

is allowable and aligned with the 

purpose of these funds as appropriated. 

Based on the feedback we received, we 

believe that a limit of up to 25 percent, 

to be calculated based on the final 

amount of the Title III, part C–1 award 

after all transfers as set forth in 

§ 1321.9(c)(2)(iii), is a reasonable 

approach to provide some flexibility 

while retaining the important aspects of 

the congregate meals program. As a 

result, ACL has modified the provisions 

at § 1321.87(a)(1)(ii)(A) to read ‘‘Not 

exceed 25 percent of the funds 

expended by the State agency under 

Title III, part C–1, to be calculated based 

on the amount of Title III, part C–1 

funds available after all transfers as set 

forth in § 1321.9(c)(2)(iii) are 

completed;’’ and at § 1321.87(a)(1)(ii)(B) 

to read, ‘‘Not exceed 25 percent of the 

funds expended by any area agency on 

aging under Title III, part C–1, to be 

calculated based on the amount of Title 

III, part C–1 funds available after all 

transfers as set forth in § 1321.9(c)(2)(iii) 

are completed.’’ 

Comment: Several commenters asked 

ACL to remove distinctions between 

funding for congregate meals and homedelivered meals. We also received 

comments expressing hope that if 

another pandemic occurs that carry-out 

and similar meals would be allowed 

without the 20% restriction. 

Response: Congress appropriates 

separate funds for congregate and homedelivered meals, as set forth by the Act. 

ACL is unable to make changes to 

statutory provisions. As they did during 

the COVID–19 PHE through the 

Coronavirus Aid, Relief, and Economic 

Security (CARES) Act, Congress may 

also enact measures that allow for 

flexible use of funds for specific disaster 

situations. Should another pandemic or 

large-scale disaster occur, ACL set forth 

at §§ 1321.99 and 1321.101 additional 


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271 42 U.S.C. 3030g–21. 

272 Id. 

273 42 U.S.C. 3030g–21(1). 

274 42 U.S.C. 3030d(a)(17). 

275 Id section 3030d(a)(26). 

flexibilities that could be exercised. 

ACL’s Nutrition and Aging Resource 

Center at https://acl.gov/senior-nutrition 

provides many useful resources for how 

existing OAA flexibilities can be 

utilized to manage emergencies. 

Comment: We received request for 

clarification regarding meals meeting 

the Dietary Guidelines for Americans 

and Dietary Reference Intakes as set 

forth in section 339 of the OAA.271

Response: We appreciate this inquiry 

and confirm that meals provided with 

funds under the Act must meet the 

Dietary Guidelines for Americans and 

Dietary Reference Intakes as set forth in 

section 339.272 We have revised 

§ 1321.87(a)(1) and (2) to read ‘‘[. . .] 

are meals meeting the Dietary 

Guidelines for Americans and Dietary 

Reference Intakes as set forth in section 

339 (42 U.S.C. 3030g–21) provided[.]’’ 

Comment: Some commenters had 

questions on the expectations for 

nutrition education and nutrition 

counseling, including if nutrition 

education and nutrition counseling may 

also be provided with funding under 

Title III, part B, if these services may be 

provided to individuals not receiving 

meal services, and whether the 

requirements must adhere to the 

Nutrition Care Process of the Academy 

of Nutrition and Dietetics. 

Response: ACL differentiates and sets 

forth requirements for nutrition 

education and nutrition counseling at 

§ 1321.87(a)(3) and (4), respectively. We 

acknowledge that due to various issues, 

including limited resources and local 

variation, implementation decisions that 

are consistent with the Act and all 

applicable Federal requirements are 

determined by the State agency, AAA, 

and/or service provider. The provisions 

in this rule allow for nutrition education 

and nutrition counseling to be provided 

in various modalities, including 

telephonic and virtual delivery to 

expand access to the services. Nutrition 

education content is to be consistent 

with the Dietary Guidelines for 

Americans; accurate, culturally 

sensitive, regionally appropriate, and 

considerate of personal preferences; and 

overseen by a registered dietitian or 

individual of comparable expertise, as 

set forth in section 339(1) of the 

OAA.273

Section 321 of the Act sets forth 

supportive services that may be 

provided with funds under Title III, part 

B of the Act, including ‘‘(17) health and 

nutrition education services, including 

information concerning prevention, 

diagnosis, treatment, and rehabilitation 

of age-related diseases and chronic 

disabling conditions;’’ 274 and ‘‘(26) any 

other services necessary for the general 

welfare of older individuals; if such 

services meet standards prescribed by 

the Assistant Secretary and are 

necessary for the general welfare of 

older individuals.’’ 275 Expectations for 

nutrition education or nutrition 

counseling that are provided as 

supportive services are set forth in this 

rule at § 1321.85. The Act and these 

provisions do not require individuals 

receiving nutrition education and 

nutrition counseling to receive meal 

services, although nutrition education 

and nutrition counseling should be 

provided based on the needs of meal 

participants. For example, eligible 

individuals who have significant or 

multiple dietary restrictions for which 

Title III, part C meals may not be 

appropriate (e.g., medically required 

tube feedings, severe allergies which 

cannot be reasonably accommodated), 

may participate in nutrition education 

or nutrition counseling. The Academy 

of Nutrition and Dietetics does not 

require the Nutrition Care Process 

approach for documenting nutrition 

counseling sessions. Therefore, we have 

removed the requirement to follow the 

Nutrition Care Process approach from 

§ 1321.87(a)(4) and have made other 

minor edits in this provision for 

consistency. 

Comment: We received a request for 

clarification if § 1321.87(d)(1)(i) means 

that meals provided to eligible 

individuals receiving family caregiver 

support services under the Act could be 

reported by the State agency for use in 

determining the State agency’s NSIP 

allocation. 

Response: Yes, we confirm this is 

allowable, if reported in alignment with 

NSIP reporting requirements, as set 

forth by the Assistant Secretary for 

Aging. 

Comment: We received comment 

requesting clarification that a voluntary 

contribution made by an individual 

receiving nutrition program services 

under the Act is not a ‘‘payment’’ for 

purposes of section 170(e)(3) of the 

Internal Revenue Code, which provides 

for deductions of qualified contributions 

of food inventory. 

Response: Issues relating to the 

Internal Revenue Code and 

requirements relating to United States 

Department of Agriculture (USDA)- 

donated foods are outside the scope of 

this regulation. While ACL does not 

consider voluntary contributions under 

the Act to be payments, the ACL-funded 

National Resource Center on Nutrition & 

Aging fact sheet on Partnerships with 

Foodbanks and Other USDA Programs 

at https://acl.gov/sites/default/files/ 

nutrition/Partnerships-with-Foodbanksand-Other-United-States-Department-ofAgriculture-non-COVID_508.pdf may be 

of interest in working with other 

programs and partners. 

Comment: We received comments 

requesting clarity on the State agency’s 

role regarding provision of meals less 

than five days per week. 

Response: In response to this request 

for clarification, we have revised the 

provision at § 1321.87(b) to be clear 

regarding the State agency’s role. The 

State agency must establish policies and 

procedures that define a nutrition 

project and include how nutrition 

projects will provide meals and 

nutrition services five or more days per 

week in accordance with the Act. The 

definition established by the State 

agency must consider the availability of 

resources and the community’s need for 

nutrition services as described in the 

State and area plans. 

Comment: We received various 

comments suggesting requirements that 

should be used for eligibility 

determination, speed of service 

initiation, reporting, and other program 

management topics. 

Response: Given the wide variation in 

resources, needs, and available services, 

ACL believes that this regulation 

sufficiently requires establishment of 

policies and procedures at the State 

agency, AAA, and/or service provider 

levels as set forth in § 1321.73(a). State 

agencies, AAAs, and service providers 

may establish additional policies and 

procedures, as long as they are in 

accordance with the Act and all 

applicable Federal requirements. 

Additional information on how State 

agencies, AAAs, and service providers 

have implemented various policies and 

procedures is available at ACL’s 

Nutrition and Aging Resource Center: 

https://acl.gov/senior-nutrition. 

We decline to make further changes to 

this provision and intend to address 

other suggestions and requests for 

clarification through technical 

assistance. 

§ 1321.89 Evidence-Based Disease 

Prevention and Health Promotion 

Services 

New § 1321.89 clarifies evidencebased disease prevention and health 

promotion services set forth in Title III, 

part D of the Act, and states that 

programs funded under this provision 

must be evidence-based, as required in 

the Act as amended in 2016. It also 


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11624 Federal Register / Vol. 89, No. 31 / Wednesday, February 14, 2024 / Rules and Regulations 

276 42 U.S.C. 3030m(a). 

277 Id. section 3030m; 42 U.S.C. 3030n. 

278National CDSME Resource Center for 

Professionals, The Nat’l Council on Aging, https:// 

www.ncoa.org/professionals/health/center-forhealthy-aging/national-cdsme-resource-center (last 

visited October 13, 2023). 

279National Falls Prevention Resource Center for 

Professionals, The Nat’l Council on Aging, https:// 

www.ncoa.org/professionals/health/center-forhealthy-aging/national-falls-prevention-resourcecenter (last visited Oct. 13, 2023). 280 42 U.S.C. 3030s–1(c)(1)(B). 

clarifies allowable use of funds and that 

those funds must be distributed through 

an approved IFF or funds distribution 

plan, as articulated in the State plan. 

Comment: We received a comment 

that programs that are considered to be 

evidence-based often do not include 

Native American populations. An 

absence of an evidence-base for 

programs addressing Native American 

populations results in further inequity 

and lack of service to populations in 

need of disease prevention and health 

promotion services. The commenter 

recommended that promising practices 

be allowed to serve populations where 

an evidence base is lacking. We received 

other comments that provision of 

evidence-based services is challenging 

in rural and frontier communities given 

the small amount of funding 

appropriated under the Act. 

Response: ACL appreciates this 

comment. Section 361 of the Act 

requires evidence-based programs and 

allows the Assistant Secretary for Aging 

to provide technical assistance on the 

delivery of such services in different 

settings and for different populations.276

ACL recently commissioned and is 

evaluating a study of the EvidenceBased Review Process to examine the 

existing review process and explore 

opportunities that would enhance the 

review process so it is equitable and 

responsive to program needs across 

different populations and settings, 

including Native American populations. 

The ACL-funded National Chronic 

Disease Self-Management Education 

Resource Center and National Falls 

Prevention Resource Center hold a bimonthly Evidence-Based Program 

Advisory Council meeting that includes 

members of the National Resource 

Center on Native American Aging and 

Native American leadership and 

organizations on the unique needs of 

Native American populations in 

evidence-based programming. The ACLsupported Evidence-Based Program 

Registry lists health promotion and 

disease prevention programs that may 

be adapted and culturally tailored for 

different populations and settings. More 

information is available at https:// 

acl.gov/programs/health-wellness/ 

disease-prevention. Additional 

information on how State agencies, 

AAAs, and service providers can engage 

rural and frontier communities is 

available at the ACL-funded National 

Chronic Disease Self-Management 

Education Resource Center and National 

Falls Prevention Resource Center. ACL 

also intends to provide technical 

assistance regarding providing services 

under Title III, part D of the Act. 

Comment: Some commenters asked 

what expenses may be covered with 

funds provided under Title III, part D of 

the Act.277

Response: ACL appreciates this 

concern and confirms that funds 

provided under Title III, part D of the 

Act may be used for reasonable, 

allowable, and allocable expenses 

necessary for the direct provision of 

evidence-based disease prevention and 

health promotion services, subject to 

appropriate procurement and other 

policies and procedures. This may 

include information technology 

systems; devices, such as laptop or 

tablet computers and smartphones; 

program licensing fees; program 

materials and supplies; and training of 

staff and volunteers. 

Comment: We received comments 

recommending education and 

prevention activities to be considered as 

evidence-based programming. Some 

commenters suggested strategic 

partnerships with local health and 

public health entities. Other 

commenters noted challenges with 

meeting evidence-based program 

expectations. We received other 

suggestions, program management 

recommendations, and implementation 

questions regarding this provision. 

Response: ACL recently 

commissioned and concluded an 

evaluation study of the Evidence-Based 

Review Process to examine the existing 

review process and explore 

opportunities that would enhance the 

review process. Activities alone may not 

qualify as evidence-based programs, as 

evidence-based programs must 

demonstrate improved the health and 

well-being or reduce disease, disability 

and/or injury among older adults over 

time. Additional information on how 

States, AAAs, and service providers 

have implemented various policies and 

procedures is available at the ACLfunded National Chronic Disease SelfManagement Education Resource 

Center 278 and National Falls Prevention 

Resource Center.279 We decline to make 

further changes to this provision and 

intend to address other suggestions and 

requests for clarification through 

technical assistance. 

§ 1321.91 Family Caregiver Support 

Services 

In the 2000 amendments to the Act 

(Pub. L. 106–501), Congress added Title 

III, part E to set forth allowable expenses 

for family caregiver support services. 

New § 1321.91 clarifies the family 

caregiver support services available 

under the Act and eligibility 

requirements for respite care and 

supplemental services, as set forth in 

section 373(c)(1)(B).280 It also clarifies 

allowable use of funds and that those 

funds must be distributed through an 

approved IFF or funds distribution plan, 

as articulated in the State plan. 

Comment: One commenter expressed 

support for clear, consistent, and 

durable regulations regarding the 

National Family Caregiver Support 

Program. Other commenters stated 

support for regulations regarding 

caregiver support programs, including 

caring for someone with Alzheimer’s 

disease or related dementia and the 

special subset of caring for someone 

with young onset of Alzheimer’s or 

related dementia. Several commenters 

also urged ACL to align this rule with 

the National Strategy to Support Family 

Caregivers. 

Response: We appreciate this support. 

ACL is committed to aligning this rule 

with the National Strategy to Support 

Family Caregivers, as appropriate. 

Comment: One commenter requested 

ACL clarify the meaning of ‘‘limited 

basis’’ in the provision of supplemental 

services. Other commenters expressed 

support for the flexibility for State 

agencies and AAAs to determine 

‘‘limited basis.’’ 

Response: The rule includes the 

following, ‘‘State agencies and AAAs 

shall define ‘‘limited basis’’ for 

supplemental services and may consider 

limiting units, episodes or expenditure 

amounts when making this 

determination.’’ ACL agrees this 

provides sufficient guidance for State 

agencies and AAAs, while maintaining 

flexibility to respond to local needs and 

circumstances. 

Comment: We received comment 

expressing concern in providing all five 

services statewide given direct care 

worker shortages, limited funding, and 

other challenges. 

Response: ACL appreciates the 

challenges faced by the aging network in 

providing services across the country. 

ACL’s expectation is that there is a plan 

for all five services to be available in 

each PSA in each State with multiple 


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Federal Register / Vol. 89, No. 31 / Wednesday, February 14, 2024 / Rules and Regulations 11625 

281 Id. section 3030s–1(c)(1)(B). 

282 Id. section 3030s–1(c)(2). 

283 Id. section 3030s–1(c)(1)(B). 

284 42 U.S.C. 3026(a)(11)(B). 

285 42 U.S.C. 3027(a)(21)(A). 

286 42 U.S.C. 3057e(a)(11). 

287 42 U.S.C. 3057j(a)(3). 

PSAs, or that there is a plan for 

statewide availability of services for 

single PSA States, subject to availability 

of funds under the Act. This plan may 

include provision of services with 

funding sources other than the OAA, 

based on the resources and needs of 

local communities. For clarity, we have 

revised (b) to state, ‘‘State agencies shall 

ensure that there is a plan to provide 

each of the services authorized under 

this part in each planning and service 

area, or statewide in accordance with a 

funds distribution plan for single 

planning and service area States, subject 

to availability of funds under the Act.’’ 

Comment: Some commenters 

expressed confusion whether the term 

‘‘family caregiver’’ also includes older 

relative caregivers, and if so, 

recommended it be clear that the same 

eligibility requirements apply. 

Response: Family caregiver support 

services listed in § 1321.91(a)(1) through 

(5) may be provided to family 

caregivers, including older relative 

caregivers. In other words, ‘‘older 

relative caregivers’’ is a subset of 

‘‘family caregivers.’’ In § 1321.3, this 

rule includes a definition of ‘‘family 

caregiver’’ that includes older relative 

caregivers, as well as a definition of 

‘‘older relative caregiver,’’ since the Act 

includes requirements specific to 

services provided to non-older relative 

caregivers at section 373(c)(1)(B).281

This rule also includes provisions at 

§ 1321.83(c) that state service priorities 

as set forth in at section 373(c)(2).282 In 

the rule, we consistently use the term 

‘‘family caregiver,’’ and we use the term 

‘‘older relative caregiver’’ only when 

this level of specificity is needed. For 

these reasons, we decline to modify the 

eligibility and priority provisions set 

forth in this rule. 

Comment: One commenter expressed 

concern for an increased threshold that 

limits assistance to a caregiver 

providing support to someone with at 

least two limitations in activities of 

daily living instead of at least two 

limitations in activities of daily living or 

independent activities of daily living. 

Response: This provision does not 

represent a change from what is 

required by section 373(c)(1)(B) of the 

Act.283

Comment: One commenter expressed 

support for the inclusive definition of 

family caregiver to unmarried partners, 

friends, or neighbors, but expressed that 

the use of ‘‘family’’ may deter eligible 

caregivers because they do not consider 

themselves family. The commenter 

recommended consideration of terms 

such as ‘‘informal caregiver,’’ ‘‘natural 

support caregiver,’’ or ‘‘trusted personal 

caregiver.’’ 

Response: We appreciate this 

comment and encourage State agencies, 

AAAs, and service providers to use 

terms that will best reach individuals in 

need of family caregiver support 

services in their outreach, marketing, 

and service delivery efforts. 

Comment: We received comment 

requiring a correction to remove an 

extra word in § 1321.91(c). 

Response: We are grateful to the 

commenters who noted this correction 

and have revised this provision to read, 

‘‘[. . .] the individual for whom they are 

caring must be determined to be 

functionally impaired[.]’’ 

Comment: We received other 

suggestions, program management 

recommendations, and implementation 

questions regarding this provision, 

including regarding evidence-informed 

or evidence-based caregiver assessments 

that may be used. 

Response: We decline to make further 

changes to this provision and intend to 

address other suggestions and requests 

for clarification through technical 

assistance. 

§ 1321.95 Service Provider Title III and 

Title VI Coordination Responsibilities 

Consistent with § 1321.53 (State 

agency Title III and Title VI 

coordination responsibilities) and 

§ 1321.69 (Area agency on aging Title III 

and Title VI coordination 

responsibilities), new § 1321.95 sets 

forth expectations for coordinating 

activities and delivery of services under 

Title III and Title VI, as articulated in 

sections 306(a)(11)(B),284

307(a)(21)(A),285 614(a)(11),286 and 

624(a)(3) 287 of the Act. We clarify that 

coordination is required under the Act 

and that all entities are responsible for 

coordination, including State agencies, 

AAAs, service providers, and Title VI 

grantees. The section complements the 

language at § 1321.53 for State agencies 

and § 1321.69 for AAAs and includes 

those requirements specific to service 

providers. 

Comment: Commenters 

overwhelmingly expressed support for 

coordination between Title III and Title 

VI programs. Comments expressed 

concern regarding the lack of 

coordination with Title VI grantees, low 

amounts of funding provided under 

Title III to Tribes, and lack of technical 

assistance on how to apply for available 

Title III funds. One commenter 

recommended that any entities involved 

in provision of services under Title III 

of the Act to develop their procedures 

for outreach and coordination with the 

relevant Title VI program director. 

Another commenter expressed they 

thought the proposed language 

regarding coordination was too 

permissive. We received a comment 

recommending specifying that services 

should be delivered in a culturally 

appropriate and trauma-informed 

manner. Some commenters also 

requested technical assistance on roles 

and responsibilities. We also received 

other suggestions, program management 

recommendations, and implementation 

questions regarding this provision, 

including regarding examples and best 

practices for coordination. 

Response: To make clear the 

responsibilities of service providers 

under the Act, explicit expectations for 

coordination between Title III and Title 

VI programs are specified in this rule. 

The provision at § 1321.95 is 

complementary with the provisions for 

State agencies and area agencies under 

Title III of the Act as set forth at 

§ 1321.53 (State agency Title III and 

Title VI coordination responsibilities) 

and § 1321.69 (Area agency on aging 

Title III and Title VI coordination 

responsibilities), as well as for Title VI 

grantees under the Act as set forth at 

§ 1322.31 (Title VI and Title III 

coordination). For clarity, we revise 

each provision to use consistent 

terminology, where appropriate. We 

explain the changes made in the 

following paragraphs. 

We have reordered the opening 

paragraph in § 1321.95 as § 1321.95(a), 

and we have reordered the subsequent 

paragraphs accordingly. ACL also 

recognizes the variability of local 

circumstances, resources, and needs. 

We appreciate the comment 

recommending that Title III entities 

work with the relevant Title VI program 

directors in developing their policies 

and procedures regarding coordination. 

We have revised the language at 

reorganized § 1321.95(a) to read, ‘‘For 

locations served by service providers 

under Title III of the Act where there are 

Title VI programs, the area agency on 

aging’s and/or service provider’s 

policies and procedures, developed in 

coordination with the relevant Title VI 

program director(s), as set forth in 

§ 1322.13(a), must explain how the 

service provider will coordinate with 

Title VI programs.’’ 

We have created a reordered 

paragraph § 1321.95(b), and we have 

revised this provision to clarify the 


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11626 Federal Register / Vol. 89, No. 31 / Wednesday, February 14, 2024 / Rules and Regulations 

288Public Law 100–707; 42 U.S.C. 5121–5207. 

289 42 U.S.C. 3030. 290 Id. section 3030(c). 

topics that the policies and procedures 

set forth in paragraph (a) ‘‘must at a 

minimum address[.]’’ As such, we 

clarify that coordination is required. We 

have further made edits to specify how 

the service provider will provide 

outreach and referrals to tribal elders 

and family caregivers regarding services 

for which they may be eligible under 

Title III; clarify communication 

opportunities to include meetings, email 

distribution lists, and presentations; add 

how services will be provided in 

trauma-informed, as well as culturally 

appropriate, manner; and add 

‘‘Opportunities to serve on advisory 

councils, workgroups, and boards.’’ 

As expectations for this type of 

coordination are not explicitly 

incorporated in the existing regulation, 

we believe that the promulgation of this 

final rule will provide a significant 

opportunity to further coordination 

between Title III and Title VI programs, 

including improving ACL’s monitoring 

programs for compliance. ACL 

anticipates providing technical 

assistance on this provision and other 

provisions related to coordination 

among Title VI and Title III programs 

upon promulgation of the final rule. 

Subpart E—Emergency and Disaster 

Requirements 

Based on input from interested parties 

and our experience, particularly during 

the COVID–19 PHE, we add Subpart E— 

Emergency and Disaster Requirements 

(§§ 1321.97–1321.105) to explicitly set 

forth expectations and clarify 

flexibilities that are available in a 

disaster situation. The previous subpart 

E (Hearing Procedures for State 

Agencies) is no longer necessary since 

we redesignate and cover the provisions 

in subpart E in subpart B (State Agency 

Responsibilities) of the final rule. 

Although the previous regulation 

mentions the responsibilities of service 

providers in weather-related 

emergencies (§ 1321.65(e)), existing 

guidance on emergency and disaster 

requirements under the Act is limited 

and does not contemplate the evolution 

of what may constitute an ‘‘emergency’’ 

or ‘‘disaster’’ or how they may uniquely 

affect older adults. 

If a State or Territory receives a major 

disaster declaration (MDD) by the 

President under the Robert T. Stafford 

Disaster Relief and Emergency 

Assistance Act,288 this MDD triggers 

certain disaster relief authority under 

section 310 of the Act.289 The COVID– 

19 PHE for example, demonstrated the 

devastating impact of an emergency or 

disaster on the target population who 

receive services under the Act. During 

the COVID–19 PHE, all States and 

Territories received a MDD, and we 

provided guidance on flexibilities 

available under the Act while a MDD is 

in effect to meet the needs of older 

adults, such as those related to meal 

delivery systems, methods for 

conducting well-being checks, delivery 

of pharmacy, grocery, and other 

supplies, and other vital services. 

Throughout the COVID–19 PHE, we 

received inquiries and feedback that 

demonstrated a need for clarity on 

available flexibilities in an emergency. 

RFI and NPRM respondents also 

provided substantial feedback regarding 

limitations and the need for additional 

guidance and options for serving older 

adults during emergencies and disasters. 

Multiple RFI respondents noted that 

older adults and their service providers 

may be impacted by a wide range of 

emergencies and disasters—including 

natural, human-caused, climate-related, 

and viral disasters—and that prior 

regulatory guidance did not provide 

State agencies, area agencies, and 

service providers the flexibility 

necessary to adequately plan for 

emergency situations, as contemplated 

by the Act. Accordingly, they sought an 

expansion of the definition of 

‘‘emergency’’ that better reflected their 

realities regarding service delivery. RFI 

and NPRM respondents also sought 

guidance on numerous aspects of 

program and service delivery during an 

emergency, such as maintaining 

flexibilities in meal and other service 

delivery introduced in response to 

COVID–19 PHE, increased flexibility in 

transferring funds, allowable spending 

on disaster mitigation supplies, and 

providing mental health services to 

older adults who experience disasterrelated trauma. RFI respondents also 

asked for regulatory language describing 

what is expected of State agencies, area 

agencies, and service providers in an 

emergency to allow for the development 

of better emergency and disaster 

preparedness plans at State and local 

levels. 

We considered various approaches in 

developing this new section. Certain 

flexibilities, such as allowing the use of 

Title III, part C–2 funds which are 

allocated to home-delivered meals for 

shelf-stable, pick-up, carry-out, drivethrough, or similar meals, constitute 

innovative ways to deliver services that 

could be allowable on a regular basis 

within the parameters of Title III, part 

C–2 and without any special 

authorization by ACL during an 

emergency. Those flexibilities have been 

incorporated where applicable in the 

revised regulation for clarification 

purposes, for example in § 1321.87(a)(2), 

which addresses carry-out and other 

alternatives to traditional homedelivered meals. We are limited by the 

Act in the extent to which other 

flexibilities may be allowed. For 

example, a MDD is required for a State 

agency to be permitted, pursuant to 

section 310(c) of the Act, to use Title III 

funds to provide disaster relief services, 

which must consist of allowable 

services under the Act, for areas of the 

State where the specific MDD is 

authorized and where older adults and 

family caregivers are affected.290

We also recognize that during an 

event which results in a MDD, such as 

the COVID–19 PHE, statewide 

procurement or other direct 

expenditures by the State agency may be 

critical to meeting the mission of the 

Act. Based on our experience in 

responding to the COVID–19 PHE, we 

discuss certain options to be available to 

State agencies to expedite expenditures 

of Title III funds while a MDD is in 

effect, such as allowing a State agency 

to procure items on a statewide level, 

subject to certain terms and conditions. 

We have administrative oversight 

responsibility with respect to the 

expenditures of Federal funds pursuant 

to the Act. Accordingly, in addition to 

the flexibilities we allow in this section, 

we are compelled to list requirements 

with respect to these flexibilities, such 

as the submission of State plan 

amendments by State agencies when 

they intend to exercise any of these 

flexibilities, as well as reporting 

requirements. 

Comment: Commenters 

overwhelmingly expressed support for 

emergency and disaster preparedness 

and response plans, as well as clearly 

defined expectations and requirements 

before, during, and after any natural 

disaster. 

We received other suggestions, 

program management 

recommendations, and implementation 

questions regarding this provision, 

including allowable provision of goods 

and services in disaster situations, 

establishing registries of at-risk 

individuals, ensuring accessible and 

effective communications during 

emergencies and disasters, and 

connecting with public health 

departments, emergency response 

organizations, and other long-term 

services and supports programs and 

providers. 

Response: We appreciate these 

comments. Other than the changes 

specified in the subsequent paragraphs, 


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291 42 U.S.C. 3027(a)(28). 

292 42 U.S.C. 3026(a)(17). 293 42 U.S.C. 3030. 

we decline to make further changes to 

the provisions under subpart E and 

intend to address other suggestions, 

program management 

recommendations, implementation 

questions, and requests for clarification 

through technical assistance. 

§ 1321.97 Coordination With State, 

Tribal and Local Emergency 

Management 

New § 1321.97 states that State 

agencies and AAAs must establish 

emergency plans, per sections 

307(a)(28) 291 and 306(a)(17) of the 

Act,292 respectively, and this section 

specifies requirements under the Act 

that these plans must meet. While the 

Act requires emergency planning by 

State agencies and AAAs, the Act 

provides limited guidance regarding 

emergency planning. We also include in 

this section additional guidance in 

connection with the development of 

sound emergency plans (such as 

requirements for continuity of 

operations planning, taking an allhazards approach to planning, and 

coordination with Tribal emergency 

management and other agencies that 

have responsibility for disaster relief 

delivery). 

Comment: We received comments in 

support of this provision, including 

specifying coordination with Tribal 

emergency management and having 

policies and procedures in place at all 

levels of the aging network to ensure 

minimal disruptions to services. We 

received comment requesting that 

emergencies include climate-related and 

human-caused disasters. Another 

commenter recommended the definition 

of ‘‘all-hazards’’ be deferred to the State 

and that this be specified. 

Response: ACL appreciates these 

comments of support and notes that the 

regulation specifies an ‘‘all-hazards’’ 

approach. ACL intends that includes 

climate-related, weather-specific, and 

other natural and human-caused 

disasters, specific to the determination 

of likely ‘‘all-hazards’’ by the State 

agency and AAAs. 

Comment: One commenter 

recommended that service providers 

under the Act be included among those 

with whom State agencies and AAAs 

coordinate. 

Response: We appreciate this 

recommendation and have made 

revisions at § 1321.97(a)(1)(ii), (a)(3), 

and (b)(2) to incorporate service 

providers under the Act. 

§ 1321.99 Setting Aside Funds To 

Address Disasters 

New § 1321.99 describes the 

parameters under which State agencies 

may set aside and use funds during a 

MDD, per section 310 of the Act.293

This section also clarifies that State 

agencies may specify that they are 

setting aside Title III funds for disaster 

relief in their IFF or funds distribution 

plan. It provides direction as to the 

process a State agency must follow in 

order to award such funds for use 

within all or part of a PSA covered by 

a specific MDD where Title III services 

are impacted, as well as requirements 

with respect to the awarding of such 

funds. 

Comment: We received comments 

supporting the proposed options for 

State agencies to address disasters as set 

forth. We received comments expressing 

concern regarding timeframes that 

apply, recommending limitations to 

proposals to allow State agencies to set 

aside funds, or opposing this proposed 

provision. Other commenters 

recommended that State agencies be 

required to consult with AAAs prior to 

exercising this option. Another 

commenter offered an alternate 

approach of requiring a mandatory 

input period or having a provision for 

a AAA network appeal of the State 

agency’s plan. One commenter asked for 

this option to be available for Statedeclared disasters or for additional 

flexibility for State agencies to select the 

best method for setting aside funds. 

Response: ACL agrees that the ideal 

service delivery mechanism, as set forth 

by the Act, is for regular service 

provision through AAAs, using an 

approved IFF, or for single PSA States 

to use their approved funds distribution 

plan. However, we recognize that based 

on our experience during the COVID–19 

PHE and in certain other disaster 

situations, circumstances may not allow 

for the timely and needed delivery of 

services to older adults and family 

caregivers. For example, during the 

COVID–19 PHE supply chain issues 

occurred relatively quickly and smaller 

local programs and providers were at a 

disadvantage in procuring food, 

personal protective equipment, and 

other supplies in comparison to a larger 

State agency’s procurement options. It is 

also possible that a natural disaster 

might result in one or more AAAs or 

service providers being unable to 

function. Requiring a mandatory input 

period may not allow for action to be 

taken in the timeframe an emergency 

may necessitate. We recognize that 

during an event which results in a MDD, 

statewide procurement or other direct 

expenditures by the State agency may be 

critical to meeting the mission of the 

Act. Therefore, we propose certain 

options to be available to State agencies 

to expedite expenditures of Title III 

funds only in exceptional circumstances 

during a MDD incident period, as set 

forth in paragraph (a) of this provision. 

ACL sought to balance maintenance of 

the AAAs’ role with the need for 

expedited action in extreme 

circumstances. 

To make clear the requirements that 

apply in exercising this flexibility, we 

have specified that up to five percent of 

the total Title III allocation may be used 

if specified in the State agency’s 

approved IFF, funds distribution plan, 

or with prior approval from the 

Assistant Secretary for Aging. We have 

removed the redundant language 

regarding submitting a State plan 

amendment at § 1321.99(b)(1) and have 

revised the remaining items under (b) 

accordingly. We have also revised 

newly ordered § 1321.99(b)(1) to read 

that the set aside funds that are awarded 

under this provision must comply with 

the requirements under § 1321.101. The 

provision at reordered 

§ 1321.101(b)(3)(iii)(B) requires 

consultation with AAAs prior to 

exercising this flexibility. Further, the 

provision at § 1321.101(b)(3)(iii)(C) 

requires use of set aside funding for 

services provided through AAAs and 

other aging network partners to the 

extent reasonably practicable. 

To provide appropriate checks on this 

flexibility, ACL set forth the following 

limitations in § 1321.99 and § 1321.101: 

(1) this flexibility may only be exercised 

under a MDD, (2) up to five percent of 

the State agency’s total Title III 

allocation or with prior approval of the 

Assistant Secretary for Aging may be set 

aside, (3) a State agency must submit a 

State plan amendment not requiring 

prior approval detailing various 

information regarding their use of such 

a flexibility, (4) the State agency must 

use such funding for services provided 

through AAAs and other aging network 

partners to the extent reasonably 

practicable in the judgement of the State 

agency, (5) the State agency must report 

on the clients and units served, and 

services provided with such funds, and 

(6) if funds are set aside for this 

purpose, the State agency must have 

policies and procedures in place to 

award the funds through the IFF or 

funds distribution plan if the funds are 

not awarded within 30 days of the end 

of the fiscal year in which the funds 

were received, as set forth at 

§ 1321.99(b)(2). 


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294 42 U.S.C. 3028(b)(2). 295 42 U.S.C. 3030(c). 

As set forth in § 1321.31(b) and this 

provision, the State plan amendment 

required when using funds set aside to 

address disasters does not require prior 

approval by the Assistant Secretary for 

Aging. ACL intends this requirement to 

facilitate transparency and 

communication in times of emergency 

and disaster and does not intend for 

response times to be hindered. When a 

State agency obligates funding under 

this provision, they should submit a 

State plan amendment to include the 

specific entities receiving such funds; 

the amount, source, and intended use 

for such funds; and other justification of 

the use of these funds. ACL does not 

find this expectation to be overly 

burdensome. 

As a note, funds awarded within 30 

days of the end of the fiscal year in 

which the funds were received may 

have a project period that extends to the 

length of the State agency’s award, 

subject to the State agency’s policies 

and procedures. For example, if FY 

2024 funds set aside were not used 

under this provision, they would need 

to be awarded through the IFF or funds 

distribution plan by August 31, 2024. 

They could have a project period ending 

up to September 30, 2025, subject to the 

State agency’s policies and procedures. 

As funds provided under Title III of the 

Act typically have a project period of 

two years, ACL believes this provides 

sufficient time for AAAs and service 

providers to use the funds. ACL 

encourages the State agency, AAAs, and 

service providers to be in 

communication regarding the status of 

and expectations for use of these funds. 

We have added the cross-references for 

the IFF provision (§ 1321.49) and funds 

distribution plan (§ 1321.51(b)) to 

§ 1321.99(b)(2) for clarity. 

Additionally, use of the flexibility set 

forth at § 1321.99 is not required, and 

some State agencies may elect not to 

pursue this option given limited 

availability of funds or for other reasons. 

Other State agencies may provide for 

emergency and disaster preparedness or 

response through funds awarded 

through their existing IFFs or funds 

distribution plans. This provision offers 

an opportunity for State agencies to 

consult with AAAs, service providers, 

and the general public prior to setting 

aside funds to address disasters. We 

believe that as set forth, these provisions 

provide the appropriate balance of 

flexibility to State agencies during 

disaster-related emergencies, and 

decline to make further changes at 

§ 1321.99. 

§ 1321.101 Flexibilities Under a Major 

Disaster Declaration 

New § 1321.101 describes disaster 

relief flexibilities available pursuant to 

Title III under a MDD to provide 

disaster relief services for affected older 

adults and family caregivers. 

Recognizing that there is no required 

period of advance notice of the end of 

a MDD incident period, the final rule 

allows State agencies up to 90 calendar 

days after the end of a MDD incident 

period to obligate funds for disaster 

relief services or additional time with 

prior approval from the Assistant 

Secretary for Aging. We also recognize 

that during an event which results in a 

MDD, such as the COVID–19 PHE, 

Statewide procurement or other direct 

expenditures by the State agency may be 

critical to meeting the mission of the 

Act. Based on our experience in 

responding to the COVID–19 PHE, we 

set forth additional options to be 

available to State agencies to expedite 

expenditures of Title III funds while 

under a MDD, including allowing a 

State agency to procure items on a 

statewide level and allowing a State 

agency to allocate a portion of its State 

plan administration funds (not to 

exceed five percent of the total Title III 

grant award) to a PSA covered under a 

MDD to be used for direct service 

provision without having to allocate the 

funds through the IFF or funds 

distribution plan. We selected a cap of 

five percent as State agencies are 

allowed under section 308(b)(2) 294 of 

the Act to apply the greater of $750,000 

or five percent of the total Title III grant 

award to State plan administration. For 

example, at the beginning of the 

COVID–19 PHE, we provided 

flexibilities where State agencies were 

able to provide some direct services, 

like food boxes, to areas in the State that 

were not able to access needed food for 

older adults and their caregivers. This 

flexibility allowed State agencies to 

quickly provide needed access to food 

for vulnerable populations where access 

was severely limited at a local level. The 

terms and conditions that will apply to 

these flexibilities also are set forth in 

this section, such as requirements to 

submit State plan amendments when a 

State agency intends to exercise such 

flexibilities (such amendments are to 

include the specific entities receiving 

the funds, the amount, the source, the 

intended use for the funds, and other 

justification for the use of the funds) 

and reporting requirements. 

We received many comments in 

response to the RFI and NPRM asking 

that various flexibilities allowed during 

the COVID–19 PHE remain in place 

permanently. We are limited by the Act 

in the extent to which flexibilities may 

be allowed. For example, a MDD is 

required in order for a State agency to 

be permitted, pursuant to section 

310(c) 295 of the Act, to use Title III 

funds to provide disaster relief services 

(which must consist of allowable 

services under the Act) for areas of the 

State where the specific MDD is 

authorized and where older adults and 

family caregivers are affected, and the 

Act contains limitations on the transfer 

of Title III funds among the various 

parts of Title III. Flexibility was 

provided for 100 percent of transfer of 

Title III nutrition services funds through 

separate legislation, the CARES Act, 

which is limited to the period of the 

declared Public Health Emergency for 

COVID–19. 

Comment: Many commenters 

expressed support for allowing 

flexibility in the use of funds as 

outlined in this provision. Some 

commenters agreed with the timeframe 

proposed in § 1321.101(g). Other 

commenters expressed concern about 

the feasibility of fully obligating funds 

under the proposed timeline. We 

received one comment requesting that 

funds provided for the Ombudsman 

program under part 1324, subpart A, be 

exempt from use under these 

flexibilities. One commentor asked for 

clarification regarding the five percent 

amount of State plan administration that 

the State agency may use and the five 

percent amount for direct expenditures 

and/or acting to procure items on a 

statewide level that the State agency 

may use. Other commenters expressed 

confusion regarding the intended use of 

these provisions. 

Response: We appreciate these 

comments and have made edits to 

improve the clarity of this provision. We 

have created new paragraphs (b) and (c) 

and have redesignated the subsequent 

provisions. In paragraph (b) we have 

specified the flexibilities a State agency 

may exercise under a MDD. 

Through § 1321.101(b), ACL intends 

to provide three distinct flexibilities that 

a State agency may exercise pursuant to 

a MDD. Section 1321.101(b)(1) allows 

any portion of open grant awards funds 

to be used for disaster relief services. 

For example, during the MDD for the 

COVID–19 PHE, this allowed AAAs and 

service providers to use funds originally 

provided for congregate meals under 

Title III, part C–1 of the Act to be used 

for home-delivered meals and other 

purposes that, at the time, would 


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296 42 U.S.C. 3026(a)(11)(B). 

297 42 U.S.C. 3027(a)(21)(A). 

298 42 U.S.C. 3057e(a)(11). 

299 42 U.S.C. 3057j(a)(3). 

otherwise have been unallowable absent 

a MDD. 

Secondly, § 1321.101(b)(2) permits the 

State agency to redirect and use its State 

plan administration funding for direct 

service provision. For clarity, we have 

revised this provision to state, 

‘‘Awarding portions of State plan 

administration, up to a maximum of five 

percent of the Title III grant award or to 

a maximum of the amounts set forth at 

§ 1321.9(c)(2)(iv), for use in a planning 

and service area[.]’’ 

Thirdly, § 1321.101(b)(3) allows for 

the State agency’s awarding of funds set 

aside to address disasters, as set forth in 

§ 1321.99, pursuant to a major disaster 

declaration incident period. This 

provision is in addition to and separate 

from the provision at § 1321.101(b)(2). 

For clarity, we further specify how the 

State agency may use the set aside 

funds. Section 1321.101(b)(3)(i) 

provides for awarding of funds to an 

area agency serving a PSA covered in 

whole or in part under a MDD without 

allocation through the IFF; 

§ 1321.101(b)(3)(ii) provides for 

awarding of funds to a service provider, 

in single PSA States, without allocation 

through the funds distribution plan; and 

§ 1321.101(b)(3)(iii) provides for the 

State agency to use funds for direct 

service provision, direct expenditures, 

and/or procurement of items on a 

statewide level, subject to requirements 

as specified in § 1321.101(b)(3)(iii)(A) 

through (D). 

ACL recognizes the importance of the 

Ombudsman program in responding to 

residents of long-term care facilities in 

times of disasters and other 

emergencies. ACL also recognizes that 

there may be times when the 

Ombudsman program is not able to fully 

use its funding during an emergency. 

The flexibilities described in this 

provision may allow a State agency to 

meet urgent, time sensitive needs of 

older adults and family caregivers, 

including residents of long-term care 

facilities. However, in recognition of the 

importance of proper coordination and 

communication between the State 

agency and the Ombudsman program, 

we have revised § 1321.101(b)(3)(iii)(B) 

and (f) to better incorporate the 

Ombudsman program. 

We added a new paragraph (c) to 

specify the State plan amendment 

requirements that apply. The 

subsequent provisions are reordered. 

Section 1321.101(c) requires the State 

agency to submit a State plan 

amendment as set forth in § 1321.31(b) 

to justify its use of funds and to provide 

transparency about the use of funding 

flexibilities. State plan amendments 

required under § 1321.31(b) do not 

require prior approval by the Assistant 

Secretary for Aging. In light of 

commenter concerns about the 

timeliness of awarding funds and 

submitting the State plan amendment, 

we have revised § 1321.31(b) to clarify 

timeline for submission of such State 

plan amendments whenever necessary 

and within 30 calendar days of the 

action(s) listed in the provision. 

The flexibilities under this provision 

enable State agencies and AAAs to 

provide immediate response in a 

disaster situation. Extending this 

timeframe would not be aligned with 

the urgent response time expected 

during disaster response. However, we 

recognize that additional time to 

obligate funds may be appropriate under 

certain circumstances with prior 

approval from the Assistant Secretary 

for Aging, as included in the proposed 

rule. 

§ 1321.103 Title III and Title VI 

Coordination for Emergency and 

Disaster Preparedness 

Section 1321.53 (State agency Title III 

and Title VI coordination 

responsibilities), § 1321.69 (Area agency 

on aging Title III and Title VI 

coordination responsibilities), and 

§ 1321.95 (Service provider Title III and 

Title VI coordination responsibilities), 

set forth expectations for coordinating 

activities and delivery of services under 

Title III and Title VI, as articulated in 

the Act sections 306(a)(11)(B),296

307(a)(21)(A),297 614(a)(11),298 and 

624(a)(3).299 New § 1321.103 clarifies 

that Title III and Title VI coordination 

should extend to emergency and 

disaster preparedness planning, 

response, and recovery. 

Comment: We received comment in 

support of this provision. We also 

received recommendation that any 

entities involved in provision of 

services under Title III of the Act to 

develop their procedures for outreach 

and coordination with the relevant Title 

VI program director. 

Response: We appreciate these 

comments, including recommending 

that Title III entities work with the 

relevant Title VI program directors in 

developing their policies and 

procedures regarding coordination. We 

have revised the language at § 1321.103 

to read, ‘‘[. . .] policies and procedures, 

developed in communication with the 

relevant Title VI program director(s) as 

set forth in § 1322.13(c), in place[.]’’ 

Comment: We received comment 

requesting that emergencies include 

climate-related and human-caused 

disasters in Tribal communities. 

Response: ACL appreciates this 

comment and notes that the regulation 

specifies an ‘‘all-hazards’’ approach. 

ACL intends for ‘‘all-hazards’’ to 

include climate-related, weatherspecific, and other natural and humancaused disasters, specific to the 

determination of likely ‘‘all-hazards’’ by 

the State agency, AAAs, and Title VI 

programs. 

§ 1321.105 Modification During Major 

Disaster Declaration or Public Health 

Emergency 

New § 1321.105 states that the 

Assistant Secretary for Aging retains the 

right to modify emergency and disasterrelated requirements set forth in the 

regulation under a Major Disaster 

declared by the U.S. President under 

The Robert T. Stafford Disaster Relief 

and Emergency Assistance Act (Pub. L. 

100–707; 42 U.S.C. 5121–5207), or 

public health emergency (PHE) as 

declared by the U.S. Secretary for 

Health and Human Services. 

C. Deleted Provisions 

We remove the following provisions 

since they are no longer necessary and/ 

or applicable, and to avoid potential 

confusion or conflicts due to statutory 

and/or regulatory changes. 

§ 1321.5 Applicability of Other 

Regulations 

We remove § 1321.5, which lists other 

applicable regulations, because the 

provision is unnecessary and may create 

confusion or become outdated due to 

statutory or regulatory changes. 

§ 1321.75 Licenses and Safety 

We remove § 1321.75, which 

describes State agency and AAA 

responsibilities to ensure that facilities 

who are awarded funds for 

multipurpose senior center activities 

obtain appropriate licensing and follow 

required safety procedures, and that 

proposed alterations or renovations of 

multipurpose senior centers comply 

with applicable ordinances, laws, or 

building codes. The provision is no 

longer necessary since these 

responsibilities are addressed by other 

policies and procedures at the State and 

local levels. 

Part 1322—Grants to Indian Tribes for 

Support and Nutrition Services 

Title VI General Comments 

Comment: Many commenters 

supported the updating and 

modernizing of the regulations. In 


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300Section 102(27) of the OAA, 42 U.S.C. 

3002(27); sec. 612(c) of the OAA, 42 U.S.C. 

3057c(c). 

301Section 102(56) of the OAA, 42 U.S.C. 

3002(56); sec. 612(c) of the OAA, 42 U.S.C. 

3057c(c). 

302Section 102(37)(B) of the OAA, 42 U.S.C. 

3002(37)(B); sec. 625 of the OAA, 42 U.S.C. 3057k. 

303Section 102(37) of the OAA, 42 U.S.C. 

3002(37). 

particular, ACL received 

overwhelmingly positive comments 

supporting the provision of services for 

Tribal and Hawaiian Native elders and 

family caregivers. Commenters shared 

the harsh realities for and significant 

needs of Tribal and Hawaiian Native 

elders and family caregivers and 

requested additional funding for Tribal 

organizations and Hawaiian Native 

grantees to provide services under the 

Act. 

Response: ACL appreciates these 

comments of support. ACL anticipates 

continuing to provide technical 

assistance to grantees under Title VI of 

the Act in support of Tribal and 

Hawaiian Native elders and family 

caregivers. We acknowledge comments 

about funding constraints, but funding 

is outside the scope of this rule. 

Comment: ACL received comments of 

appreciation for the proposed changes 

to clarify Title VI and other provisions 

of the Act to better allow grantees to 

serve Native elders and family 

caregivers. One commenter noted that 

consolidating the sections referencing 

Title VI services to Indian Tribes and 

Native Hawaiian grantees creates more 

clarity in the regulations, which will 

permit grantees to better serve Native 

American, Alaskan Native, and Native 

Hawaiian elders and family caregivers. 

Response: ACL appreciates these 

comments of support. 

Comment: One commenter 

recommended updating all references 

from ‘‘Native Americans’’ to ‘‘Indian 

Tribes.’’ Another commenter requested 

use of ‘‘Native Americans’’ instead of 

‘‘Indians.’’ Other commenters expressed 

various beliefs and preferences 

regarding the appropriate terms to use 

regarding service to American Indian 

and/or Native American elders and 

family caregivers. 

Response: In this rule, ACL took great 

care to ensure that the terms used are 

respectful and have appropriate 

meaning for practical, consistent 

application. We also recognize there is 

variation in the terms used and 

preferred by different individuals and 

organizations. In this rule, we used the 

terms as specified in § 1322.3 

(Definitions). We referred to 

organizations in terms of ‘‘Eligible 

organization,’’ ‘‘Hawaiian Native 

grantee,’’ ‘‘Indian tribe,’’ 300 and ‘‘Tribal 

organization.’’ 301 References to 

‘‘Hawaiian Native or Native 

Hawaiian,’’ 302 ‘‘Native Americans,’’ 303

and ‘‘Older Indians’’ are specific to the 

individual rather than the entity, except 

in the case of referencing a Hawaiian 

Native grantee. Where existing, we used 

the same definitions as established in 

the OAA and other statutes. 

A. Provisions Revised To Reflect 

Statutory Changes and/or for Clarity 

Subpart A—Introduction 

§ 1322.1 Basis and Purpose of This 

Part 

Revised § 1322.1 explains the 

requirements of Title VI of the Act to 

provide grants to Indian Tribes and 

Native Hawaiian grantees. We 

consolidate 45 CFR part 1322 and 45 

CFR part 1323 into 45 CFR part 1322 

and subsequently retitle this part as 

‘‘Grants to Indian Tribes and Native 

Hawaiian Grantees for Supportive, 

Nutrition, and Caregiver Services.’’ We 

revise language to affirm the sovereign 

government to government relationship 

with a Tribal organization, and similar 

considerations, as appropriate for 

Hawaiian Native grantees representing 

elders and family caregivers, and to 

ensure consistency with statutory 

terminology and requirements, such as 

adding reference to caregiver services 

and specifying family caregivers as a 

service population, as set forth in Title 

VI of the Act. We add language to 

incorporate Native Hawaiians and 

Native Hawaiian grantees. We also 

clarify that terms not otherwise defined 

will have meanings ascribed to them in 

the Act. 

Comment: We received multiple 

comments expressing support for the 

rights of Native Americans and funding 

to support Native Americans as they 

age. 

Response: We appreciate these 

comments. 

Comment: One commenter 

recommended that ACL consider 

changes to § 1322.1(a), specifically the 

statement ‘‘[. . .] American Indian 

elders on Indian reservations [. . .]’’ to 

instead reference American Indians 

elders and family caregivers from a 

Federally or State recognized Tribe, as 

not all Tribal elders reside on a 

reservation. 

Response: ACL acknowledges the 

population of American Indian elders 

and family caregivers residing outside a 

reservation. Other Federally recognized 

Tribes do not maintain Tribal 

reservations. The relevant service area 

for provision of services under Title VI 

of the Act is specified in the definition 

of ‘‘service area’’ in § 1322.3 and 

§ 1322.5(b). For clarity, we have revised 

this provision to read, ‘‘This program is 

established to meet the unique needs 

and circumstances of American Indian 

and Alaskan Native elders and family 

caregivers and of older Native 

Hawaiians and family caregivers, on 

Indian reservations and/or in service 

areas as approved in § 1322.7.’’ 

§ 1322.3 Definitions 

Our final rule updates the definitions 

of significant terms in § 1322.3 to reflect 

current statutory terminology and 

operating practice and to provide 

clarity. We add several definitions and 

revise several existing definitions. The 

additions and revisions are intended to 

reflect changes to the statute, important 

practices in the administration of 

programs under the Act, and feedback 

we have received from a range of 

interested parties. We add definitions of 

the following terms: ‘‘Access to 

services,’’ ‘‘Act,’’ ‘‘Area agency on 

aging,’’ ‘‘Domestically produced foods,’’ 

‘‘Eligible organization,’’ ‘‘Family 

caregiver,’’ ‘‘Hawaiian Native or Native 

Hawaiian,’’ Hawaiian Native grantee,’’ 

‘‘In-home supportive services,’’ ‘‘Major 

disaster declaration,’’ ‘‘Multipurpose 

senior center,’’ ‘‘Native American,’’ 

‘‘Nutrition Services Incentive Program,’’ 

‘‘Older Native Hawaiian,’’ ‘‘Older 

relative caregiver,’’ ‘‘Program income,’’ 

‘‘Reservation,’’ ‘‘State agency,’’ ‘‘Title VI 

director,’’ and ‘‘Voluntary 

contributions.’’ 

We retain and make minor revisions 

to the terms: ‘‘Acquiring,’’ ‘‘Altering or 

renovating,’’ ‘‘Constructing,’’ 

‘‘Department,’’ ‘‘Means test,’’ ‘‘Service 

area,’’ ‘‘Service provider,’’ and ‘‘Tribal 

organization.’’ We retain with no 

revisions the terms: ‘‘Budgeting period,’’ 

‘‘Indian reservation,’’ ‘‘Indian Tribe,’’ 

‘‘Older Indians,’’ and ‘‘Project period.’’ 

Comment: We received comment 

expressing support for the added 

definitions to clarify and provide 

consistency with the intersection of 

Title III and Title VI funding. Other 

commenters suggested other terms for 

potential definition in this rule. 

Response: ACL appreciates these 

comments. We have made additional 

edits to definitions for consistency with 

Title III, where appropriate. In lieu of 

additional definition in this rule, 

grantees under Title VI of the Act may 

establish their own definitions, as long 

as they are not in conflict with 

applicable Federal requirements. ACL 

also intends to provide technical 

assistance to aid in the implementation 

of this rule. 


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304Public Law 93–638, 88 Stat. 2203 (1975); 25 

U.S.C. 5301 et seq. 

305 42 U.S.C. 3057(c). 

306 25 U.S.C. 5304. 

307 42 U.S.C. 3057c. 

308 25 U.S.C. 5304. 309 42 U.S.C. 3057e(c)(4). 310 25 U.S.C. 5304(a). 

Comment: One commenter 

recommended changing all references in 

part 1322 from ‘‘Tribal Organizations’’ 

to ‘‘Tribal Grantees,’’ due to the 

definition of ‘‘Tribal Organization’’ set 

forth in the Indian Self-Determination 

and Education Assistance Act 

(ISDEAA).304 The commenter stated that 

the proposed change would reduce the 

potential of confusing a chartered Tribal 

organization as representing the 

governing body of the Tribe. Another 

commenter requested that Staterecognized Tribes be included in the 

definition of ‘‘eligible organization.’’ 

Response: Section 612(c) of the Act 305

expressly provides that, for purposes of 

Title VI, tribal has the same meaning as 

in section 4 of the ISDEAA.306 Section 

612 of the Act 307 also sets forth the 

criteria for an eligible organization to 

receive a grant, using the criteria in 

section 4 of the ISDEAA.308

Accordingly, ACL uses the statutory 

definitions in this regulation. 

Comment: Commenters requested 

expansion of the definition of in-home 

supportive services and that the 

definition be consistent with the 

definition in § 1321.3, to allow for 

collaboration with other programs. 

Commenters also asked for consistency 

in the example of ‘‘minor modification 

of homes’’ in part 1321. 

Response: We have revised the 

definition of in-home supportive 

services in response to the comments. 

We similarly have amended this 

definition in part 1321 for consistency. 

Comment: We received many 

comments supporting an inclusive 

definition of family caregiver, as well as 

suggestions for expanded wording of the 

definition. One commenter 

recommended ACL consider 

alternatives to the term ‘‘informal’’ 

within the ‘‘family caregiver’’ definition 

to avoid minimizing their invaluable 

role and avoid inaccuracy due to some 

receiving financial compensation. 

Response: ACL appreciates these 

comments and concurs that the 

definition includes non-traditional 

families and families of choice. We 

believe that the definition is sufficiently 

broad to account for the concerns raised 

by commenters. To address family 

caregivers who may receive limited 

financial compensation, we have 

revised the definition to add, ‘‘For 

purposes of this part, family caregiver 

does not include individuals whose 

primary relationship with the older 

adult is based on a financial or 

professional agreement.’’ We have made 

a similar edit to the definition in part 

1321. 

Comment: We received comments 

questioning the use of the term ‘‘multipurpose senior centers’’ to reference a 

service. We also received comments 

disagreeing with definition, including 

with the inclusion of virtual facilities. 

Other commenters expressed 

appreciation for the inclusion of virtual 

facilities to reflect a growing number of 

programs and services offered online 

after the pandemic, noting this may 

make programs more accessible and 

equitable. 

Response: We appreciate these 

comments and have revised § 1322.3 to 

indicate ‘‘[. . .] as used in § 1322.25, 

facilitation of services in such a 

facility.’’ We also agree with 

commenters that allowing virtual 

facilities ‘‘as practicable’’ provides 

options for various service modalities to 

reflect local circumstances, while 

remaining true to the definition of 

multipurpose senior center as set forth 

in the Act. 

Comment: One commenter expressed 

concern about the definition of service 

area and how to serve Tribal elders 

residing in urban areas outside of the 

reservation. 

Response: Service areas are required 

by section 614(c)(4) of the OAA and are 

approved through the funding 

application process.309 Grantees under 

Title VI of the Act may facilitate service 

to elders and family caregivers living 

outside the service area through 

appropriate coordination with Title III 

and other programs. 

Comment: We received comments and 

suggestions regarding clarification to the 

definition of ‘‘voluntary contributions.’’ 

Response: We appreciate these 

comments and suggestions. We have 

revised the definition of ‘‘voluntary 

contributions’’ to read, ‘‘[. . .] means 

donations of money or other personal 

resources given freely, without pressure 

or coercion, by individuals receiving 

services under the Act.’’ We have made 

a similar change to the definition in part 

1321 for consistency. We also intend to 

address other suggestions and requests 

for clarification through technical 

assistance. 

Subpart B—Application 

§ 1322.5 Application Requirements 

We redesignated § 1322.19 of the 

existing regulation (Application 

requirements) as § 1322.5 and revised 

the provisions to reflect updates to the 

Act. We specify that application 

submissions must include program 

objectives; a map and/or description of 

the geographic boundaries of the 

proposed service area; documentation of 

supportive and nutrition services 

capability; certain assurances; a tribal 

resolution; and signature by a principal 

official. 

Comment: Many commentors 

expressed concern with § 1322.5(d)(1) 

which requires eligible organizations to 

represent at least 50 individuals age 60 

and older in order to apply for funding. 

Several asked that the age of an elder as 

established by the eligible organization 

be used in qualifying to apply for funds 

under Title VI of the Act and that no 

minimum number of elders be required 

to apply for funds. 

Other commenters expressed need to 

amend the current funding formula for 

allocation of services to include the 

population under age 60 as it results in 

unfunded eligibility. One commenter 

noted that after COVID–19, life 

expectancy for American Indians 

decreased by 6.6 years. An additional 

commenter noted that many 

communities, including some Alaskan 

Tribes, have a great number of elders in 

need over the Tribal elder age of 50 but 

may not have at least 50 elders who are 

age 60. They therefore are not eligible to 

apply for funding. 

Response: ACL acknowledges the 

decreased life expectancy and many 

needs of Native American elders and 

family caregivers. However, we are 

unable to make changes in this 

provision, as this would require 

statutory changes to section 612(a).310

We emphasize that smaller Tribes may 

be eligible to apply for Title VI funding 

as a consortium. ACL is available to 

provide technical assistance regarding 

how Tribes with a smaller number of 

elders who are at least 60 years of age 

may apply for funding under Title VI of 

the Act. 

Comment: Commenters expressed 

issues with inadequate funding based 

on current funding formula/distribution 

procedures. They noted that Tribal 

nations only receive 2% of the OAA 

budget and that Title VI funding should 

be increased and provided directly to 

Tribal nations through ISDEAA Title I 

contracts and Title V compacts to fulfill 

trust and treaty obligations. 

Response: The amount of OAA 

funding is determined by Congress and 

beyond the scope of this regulation. The 

Act sets out the requirements for making 

funding awards to Tribal organizations 

with approved funding applications. 


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311 42 U.S.C. 3057e(c)(4). 312 42 U.S.C. 3057e. 

Comment: One commenter 

recommended including Indian Health 

Service maps to identify service areas as 

an acceptable submission under 

§ 1322.5(b). 

Response: Indian Health Service maps 

may be used to describe the geographic 

service area proposed. Section 614(c)(4) 

of the Act allows an applicant to 

provide an appropriate narrative 

description of the geographic area to be 

served and an assurance that procedures 

will be adopted to ensure against 

duplicate services.311

Comment: One commenter expressed 

concern that new applicants might not 

be able to meet the requirement 

§ 1322.5(c) of their ability to provide 

supportive and nutrition services 

effectively or that they have provided 

such services for the past three years. 

Another commenter stated that Title VI 

programs may lack funding and capacity 

to develop and submit a Title VI 

application. They suggest adequate 

training, financial resources, and 

updated guidance document be 

provided to ensure programs fully 

understand what is expected. 

Response: The application 

requirements in § 1322.5 are consistent 

with those in effect in the most recent 

cycle of Title VI funding and as set forth 

in the Act. Documentation of supportive 

and nutrition services capacity is an 

important application component. The 

rule provides the options of attesting to 

this capacity either with documentation 

of such services provided within the last 

three years or with documentation of 

the ability to do so. 

ACL provides significant training and 

guidance documents on the Older 

Indians website, available at https:// 

olderindians.acl.gov. We will continue 

to provide technical assistance and 

guidance to grantees and prospective 

grantees. 

§ 1322.7 Application Approval 

Section 1322.21 of the existing 

regulation (Application approval) is 

redesignated here as § 1322.7. We make 

minor revisions to align the provision 

with updates to the Act and to clarify 

that no less than annual performance 

and fiscal reporting is required. 

Comment: We received numerous 

comments on the inadequacy of funding 

for Title VI programs. 

Response: The amount of funding for 

OAA programs is determined by 

Congress and thus is outside the scope 

of this regulation. 

§ 1322.9 Hearing Procedures 

Section 1322.23 of the existing 

regulation (Hearing procedures) is 

redesignated here as § 1322.9. Section 

614(d)(3) of the Act provides 

opportunity for a hearing when an 

organization’s application under section 

614 is denied.312 As under Title III, 

hearings will be conducted by the HHS 

Departmental Appeals Board (DAB). 

We received no comments on 

§ 1322.9. However, we have made 

technical corrections to remove 

unnecessary words and to align the 

section with 45 CFR part 16. 

Subpart C—Service Requirements 

§ 1322.13 Policies and Procedures 

We combined §§ 1322.9 

(Contributions), 1322.11 (Prohibition 

against supplantation), and 1322.17 

(Access to information) of the existing 

regulation and redesignated them as 

§ 1322.13 (Policies and procedures). We 

also combined into § 1322.13 the areas 

for which a Tribal organization or 

Hawaiian Native grantee must have 

established policies and procedures. 

Section 1322.13 specifies 

programmatic and fiscal requirements 

for which a Tribal organization or 

Hawaiian Native grantee should have 

established policies and procedures. 

These include identifying an individual 

to serve as the Title VI director; 

collecting and submission of data and 

other reports to ACL; ensuring that the 

direct provision of services meet 

requirements of the Act; client 

eligibility; coordination with area 

agencies on aging and other Title III and 

VII-funded programs; specifying a 

listing and definitions of services that 

may be provided by the Tribal 

organization or Hawaiian Native 

grantee; detailing any limitations on the 

frequency, amount, or type of service 

provided; and the grievance process for 

older Native Americans and family 

caregivers who are dissatisfied with or 

denied services under the Act. 

We have previously provided 

technical assistance to Tribal 

organizations or Hawaiian Native 

grantees that were unaware of certain 

fiscal requirements and/or did not 

understand their obligations under these 

requirements. We add § 1322.13(c)(2) to 

provide clarity regarding policies and 

procedures for fiscal requirements such 

as voluntary contributions; buildings 

and equipment; and supplantation. In 

particular, § 1322.13(c)(2)(ii) addresses 

the need to ensure that the funding is 

used for allowable costs that support 

allowable activities; to ensure 

consistency in the guidance provided by 

ACL; and to affirm that altering and 

renovating activities are allowable for 

facilities providing services under this 

section. 

Comment: Commenters expressed 

concern that the number of policies and 

procedures being asked of Title VI 

programs could be burdensome, that 

they would need additional staff to 

support the changes, and that they lack 

sufficient funds to meet the 

requirements of § 1322.13. 

Response: Section 1322.13 responds 

to requests for technical assistance and 

feedback from listening sessions by 

clarifying the policies and procedures 

that grantees under Title VI of the Act 

must have. The provisions reflect 

current expectations for grantees under 

Title VI of the Act. ACL is committed to 

supporting all grantees with technical 

assistance so that they may comply with 

the requirements. 

Comment: One commenter noted 

grievance processes are usually in place 

at the Tribal level, but they can be 

difficult to navigate. 

Response: Section 1322.13(c)(1)(iv) 

requires there to be a grievance process 

for elders and family caregivers who are 

dissatisfied with or denied services 

under the Act. In deference to Tribal 

sovereignty, the grantee under Title VI 

of the Act is to specify the process to be 

used. ACL will provide technical 

assistance regarding how grievance 

processes can be designed for 

appropriate navigation by elders and 

family caregivers. 

§ 1322.15 Confidentiality and 

Disclosure of Information 

Section 1322.7 of the existing 

regulation (Confidentiality and 

disclosure of information) is 

redesignated here as § 1322.15. We 

make minor revisions to align the 

provision with updates to definitions 

and consolidation of part 1323 regarding 

applicability to a Hawaiian Native 

grantee. We also specify that a provider 

of legal assistance shall not be required 

to reveal any information that is 

protected by attorney client privilege; 

policies and procedures are in place to 

maintain confidentiality of records; and 

information may be shared with other 

organizations, as appropriate, in order to 

provide services. The Tribal 

organization or Hawaiian Native grantee 

may also require the application of other 

laws and guidance for the collection, 

use, and exchange of both PII and 

personal health information. 

Comment: A commenter expressed 

the need for respecting data sovereignty 

regarding Tribal laws and that Tribal 


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313 42 U.S.C. 3057e(a)(8). 

laws should supersede reporting 

requirements. 

Response: ACL respects issues 

relating to sensitivity of data ownership 

and use with respect to Title VI 

programs. As such, the data addressed 

in § 1322.13(b) is used for program 

management, fiscal accountability, and 

budget justification purposes. ACL is 

committed to following appropriate data 

collection requirements, including 

meeting Paperwork Reduction Act 

requirements. The current data 

collection requirements for performance 

reporting are approved under OMB 

Control No. 0985–0007. 

Comment: We received comments 

that expressed strong support for ACL’s 

proposal to clarify the obligation of 

Tribal organizations and Hawaiian 

Native grantees and other providers to 

protect the confidentiality of OAA 

participants and to specify that policies 

and procedures must comply with all 

applicable Federal laws, codes, rules, 

and regulations. However, another 

commenter felt that as sovereign 

nations, Native communities should not 

be required to enforce the National 

Institutes for Standards Cybersecurity 

and Privacy Frameworks as well as 

other applicable Federal laws. Instead, 

they stated that Tribal entities should be 

allowed to determine what works best 

for their respective community. 

Response: ACL appreciates these 

comments and has removed the 

National Institutes for Standards 

Cybersecurity and Privacy Frameworks 

requirement from the final rule. 

§ 1322.25 Supportive Services 

Section 1322.13 of the existing 

regulation (Supportive services) is 

redesignated here as § 1322.25. Revised 

§ 1322.25 clarifies the supportive 

services available under Title VI, parts 

A and B of the Act are intended to be 

comparable to such services set forth in 

Title III of the Act. Supportive services 

under Title III of the Act include inhome supportive services, access 

services, and legal services. We clarify 

allowable use of funds, including for 

acquiring, altering or renovating, and 

constructing multipurpose senior 

centers. 

We also clarify that inappropriate 

duplication of services be avoided for 

participants receiving service under 

both part A or B and part C and include 

minor language revisions for clarity and 

consistency with updated definitions. 

Comment: ACL received comment 

supporting the proposal to clarify the 

allowable use of funds and that Title VIfunded supportive services include inhome supportive, access, and legal 

services. 

Response: ACL appreciates this 

comment. 

§ 1322.27 Nutrition Services 

Section 1322.15 of the existing 

regulation (Nutrition services) is 

redesignated here as § 1322.27. Revised 

§ 1322.27 clarifies that nutrition services 

available under Title VI, parts A and B 

of the Act are intended to be comparable 

to services available under Title III of 

the Act. Section 614(a)(8) of the Act 

requires nutrition services to be 

substantially in compliance with the 

provisions of part C of Title III, which 

includes congregate meals, homedelivered meals, nutrition education, 

nutrition counseling, and other 

nutrition services.313 Based on 

experiences during the COVID–19 PHE 

and numerous requests for flexibility in 

provision of meals, we clarify that 

home-delivered meals may be provided 

via home delivery, pick-up, carry-out, 

drive-through, or as determined by the 

Tribal organization or Hawaiian Native 

grantee; that eligibility for homedelivered meals is determined by the 

Tribal organization or Hawaiian Native 

grantee and not limited to those who 

may be identified as ‘‘homebound;’’ that 

eligibility criteria may consider multiple 

factors; and that meal participants may 

also be encouraged to attend congregate 

meals and other activities, as feasible, 

based on a person-centered approach 

and local service availability. 

We specify that the Tribal 

organization or Hawaiian Native grantee 

must provide congregate and homedelivered meals, and nutrition 

education, nutrition counseling, and 

other nutrition services may be 

provided, with funds under Title VI part 

A or B of the Act. We also include 

minor clarifications for consistency. 

Finally, this provision sets forth 

requirements for NSIP allocations. NSIP 

allocations are based on the number of 

meals reported by the Tribal 

organization or Hawaiian Native grantee 

which meet certain requirements, as 

specified. A Tribal organization or 

Hawaiian Native grantee may choose to 

receive their allocation grants as cash, 

commodities, or a combination thereof. 

NSIP funds may only be used to 

purchase domestically produced foods 

used in a meal, as set forth under the 

Act. We intend for this provision to 

answer many questions we have 

received regarding the proper use of 

NSIP funds. 

Comment: We received a comment 

asking to allow Title VI programs to use 

NSIP funds to purchase food directly 

from Tribes and Tribal organizations 

and for traditional foods. 

Response: Purchase of food from 

Tribes and Tribal organizations in the 

United States is considered to be 

domestically produced food and 

consistent with § 1322.27. ACL 

encourages the purchase of traditional 

foods and other foods from Tribes and 

Tribal organizations in the United States 

and intends that the promulgation of 

this rule makes this clear. 

Comment: Commenters supported 

ACL’s proposals to clarify the provision 

of nutrition services. One commenter 

recommended additional flexibility for 

nutrition services requirements that 

limit service options in remote Tribal 

areas. Another commenter expressed 

concern about the proposed expansion 

of home-delivered meals to older adults 

who are not homebound due to 

concerns surrounding funding and staff 

capacity. One commenter noted that 

aligning services to the requirements of 

Title III may create more barriers to 

funding flexibility. We also received 

comments regarding reporting and other 

program implementation matters. 

Response: ACL appreciates these 

comments. The OAA states that 

nutrition services available under Title 

VI, parts A and B of the Act are 

intended to be comparable to such 

services set forth in Title III of the Act. 

Based on comments received, we have 

revised § 1322.27(a)(4) to remove 

reference to the Nutrition Care Process, 

consistent with changes in part 1321. 

We have also made other edits for 

consistency with these similar 

provisions in part 1321. 

The provisions of § 1322.13, regarding 

policies and procedures to implement 

Title VI services, offer existing 

flexibilities to address remote areas, as 

well as to set priorities for how and to 

whom services will be provided given 

limited funds. We will provide 

technical assistance to address reporting 

concerns and other program 

implementation matters. 

B. New Provisions Added To Clarify 

Responsibilities and Requirements 

Under Grants to Indian Tribes and 

Native Hawaiian Grantees for 

Supportive, Nutrition, and Caregiver 

Services 

The final rule includes the following 

new provisions to provide guidance in 

response to inquiries and feedback 

received from grantees and other 

interested parties and changes in the 

provision of services, and to clarify 

requirements under the Act. 


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Subpart C—Service Requirements 

§ 1322.11 Purpose of Services 

Allotments Under Title VI 

New § 1322.11 specifies that services 

provided under Title VI consist of 

supportive, nutrition, and family 

caregiver support program services, and 

that funds are to assist a Tribal 

organization or Hawaiian Native grantee 

to develop or enhance comprehensive 

and coordinated community-based 

systems for older Native Americans and 

family caregivers. We received no 

comments on this section. 

§ 1322.17 Purpose of Services— 

Person- and Family-Centered, TraumaInformed 

New § 1322.17 clarifies that services 

under the Act should be provided in a 

manner that is person-centered and 

trauma-informed. Recipients of services 

are entitled to an equal opportunity to 

the full and free enjoyment of the best 

possible physical and mental health, 

which includes access to personcentered and trauma-informed services. 

Comment: We received many 

comments expressing support for 

culturally sensitive, person- and familycentered, and trauma-informed 

approaches and practices in working 

with Native American elders and family 

caregivers. Other comments requested 

guidance in implementing these 

provisions. We also received comment 

that the term ‘‘holistic traditional care’’ 

would be a more appropriate term, as it 

implies the entire person within a 

setting which includes familial, 

cultural, and historical components. 

Response: We appreciate these 

comments and have revised § 1322.17 to 

include culturally appropriate holistic 

traditional care. 

Comment: One commenter expressed 

concern that the section is not clear if 

this provision is required for all services 

that are provided, given use of the terms 

‘‘as appropriate’’ and ‘‘if applicable.’’ 

Response: ACL acknowledges the 

comment and uses the terms ‘‘as 

appropriate’’ and ‘‘if applicable’’ to 

reflect the variety of services that may 

be provided and to maintain the 

inherent flexibility of the OAA to 

respond to the needs of the local Tribal 

communities. For example, not all 

services use a person-centered plan; a 

person-centered plan would not be 

appropriate for a public education 

service. Grantees under Title VI of the 

Act can implement these provisions to 

best meet their circumstances, as long as 

implementation is consistent with all 

applicable Federal requirements. We 

intend to address further questions and 

requests for clarification through 

technical assistance. 

§ 1322.19 Responsibilities of Service 

Providers 

New § 1322.19 specifies the 

responsibilities of service providers to 

include providing service participants 

with an opportunity to contribute to the 

cost of the service; providing selfdirected services to the extent feasible; 

acknowledging service provider 

responsibility to comply with local APS 

requirements, as appropriate; arranging 

for weather-related and other 

emergencies; assisting participants to 

benefit from other programs; and 

coordinating with other appropriate 

services. 

Comment: We received comment 

expressing support for specifying the 

responsibilities of service providers and 

suggesting two responsibilities be 

added: cultural competence training and 

inclusion of nondiscrimination 

language. 

Response: ACL appreciates this 

comment. Nondiscrimination policies 

are among the Federal requirements that 

apply to all service providers under the 

Act. ACL recognizes that cultural 

competence training is best offered 

locally to honor distinct Tribal and 

Hawaiian Native differences and local 

availability. As such we have revised 

the text to include, ‘‘Receive training to 

provide services in a culturally 

competent manner and consistent with 

§§ 1322.13 through 1322.17.’’ 

§ 1322.21 Client Eligibility for 

Participation 

To be eligible for services under the 

Act, participants must have attained the 

minimum age determined by the Tribal 

organization or Hawaiian Native 

grantee, except in the case of limited 

services, such as nutrition and family 

caregiver support services. We received 

inquiries, requests for technical 

assistance, and comments 

demonstrating misunderstandings 

among Tribal organizations and Native 

Hawaiian grantees, as well as from 

others in the aging network, about 

eligibility requirements for Title VI 

services. For example, we received 

feedback expressing confusion as to 

whether younger caregivers of adults of 

any age are eligible to receive Title VI 

part C program services, which is not 

allowable under the Act, as well as the 

circumstances under which non-Native 

Americans who live within a Tribal 

organization’s or Hawaiian Native 

grantee’s approved service area and are 

considered members of the community 

by the Tribal organization may be 

eligible to receive services under this 

part. 

New § 1322.21 clarifies eligibility 

requirements under the Act and 

explains that a Tribal organization or 

Hawaiian Native grantee may adopt 

additional eligibility requirements, if 

they do not conflict with the Act, the 

implementing regulation, or guidance 

issued by the Assistant Secretary for 

Aging. 

Comment: One commenter supported 

ACL clarifying that a Tribal organization 

or Native Hawaiian grantee may adopt 

eligibility requirements beyond those 

included in the OAA, as long as they 

don’t conflict with the OAA or guidance 

from the Assistant Secretary for Aging. 

Another commenter stressed the 

importance of upholding Tribal 

sovereignty and favorably cited this 

provision as honoring sovereignty. We 

received additional comments 

encouraging ACL to widen the scope of 

service to eligible individuals based on 

their membership status within 

Federally or State recognized Tribes 

regardless of having a residence on 

Federally recognized reservations. 

Response: These regulations do not 

require elders receiving services to live 

on a reservation of a Federally 

recognized Tribe. In fact, there are 

Federally recognized Tribes that do not 

have reservation lands. ACL respects 

Tribal sovereignty, and has included the 

following at § 1322.21(b), ‘‘A Tribal 

organization or Hawaiian Native grantee 

may develop further eligibility 

requirements for implementation of 

services for older Native Americans and 

family caregivers, consistent with the 

Act and other applicable Federal 

requirements.’’ Among these is 

‘‘geographic boundaries’’ in 

§ 1322.21(b)(2). As we believe this offers 

maximum flexibility to Tribes, Tribal 

organizations, and Hawaiian Native 

grantees under the Act, we make no 

further edits to this section. 

§ 1322.23 Client and Service Priority 

We previously received numerous 

inquiries about how a Tribal 

organization or Hawaiian Native grantee 

should prioritize providing services to 

various groups. Questions included 

whether there was an obligation to serve 

everyone who sought services and 

whether services were to be provided on 

a first-come, first-served basis. 

Questions about prioritization were 

particularly prevalent in response to 

demand for services created in the wake 

of the COVID–19 Public Health 

Emergency (PHE). Entities sought 

clarification on whether they are 

permitted to set priorities, who is 

permitted to set priorities, and the 


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314 42 U.S.C. 3057k–11(b). 

315 42 U.S.C. 3057k–11. 

316 42 U.S.C. 3026(a)(11)(B). 

317 42 U.S.C. 3027(a)(21)(A). 

318 42 U.S.C. 3057e(a)(11). 

319 42 U.S.C. 3057j(a)(3). 

degree to which entities have discretion 

to set their own priority parameters. 

New § 1322.23 clarifies that entities 

may prioritize services and that they 

have flexibility to set their own policies 

based on their assessment of local needs 

and resources. For clarity and 

convenience, we list the priorities for 

serving family caregivers as set forth in 

section 631(b) of the Act.314

Comment: Commenters supported the 

flexibility given to Tribal organizations 

and Native Hawaiian grantees to 

prioritize services and set their own 

policies based on their assessment of 

local need and resources. One 

commenter requested that language be 

added to include assessments based on 

greatest social or economic needs. 

Another commenter recommended that 

ACL consider the adoption of explicit 

language referring to LGBTQI+ Indian 

and Native Hawaiian older adults, TwoSpirit older adults, and Indian and 

Native Hawaiian older adults with HIV 

and including such language in all nondiscrimination provisions and in 

cultural competency training 

requirements. 

Response: ACL appreciates these 

comments and encourages prioritization 

of services to assist elders with the 

greatest social and the greatest economic 

needs, including the populations 

referenced in the comments. Section 

1322.23 directs grantees to conduct their 

own assessment of local needs and 

resources, as well as to identify criteria 

for prioritizing the delivery of services. 

In order to maintain flexibility of Tribal 

organizations and Hawaiian Native 

grantees, ACL declines to further specify 

how this is done in this rule. However, 

ACL will provide technical assistance in 

implementing these provisions. 

§ 1322.29 Family Caregiver Support 

Services 

New § 1322.29 implements section 

631 of the Act related to family 

caregiver support services.315 It clarifies 

the services available; eligibility 

requirements for respite care and 

supplemental services; and allowable 

use of funds. 

Comment: Commenters supported the 

breadth of § 1322.29. One commenter 

noted that while they support flexible 

definitions of family caregiving, they are 

concerned that as more people will be 

eligible for services, this would require 

additional funds. 

Response: ACL appreciates these 

comments and notes that funding 

decisions are outside the scope of this 

rule. 

§ 1322.31 Title VI and Title III 

Coordination 

Consistent with § 1321.53 (State 

agency Title III and Title VI 

coordination responsibilities), § 1321.69 

(Area agency on aging Title III and Title 

VI coordination responsibilities), and 

§ 1321.95 (Service provider Title III and 

Title VI coordination responsibilities), 

new § 1322.31 outlines expectations for 

coordinating activities and delivery of 

services under Title VI and Title III, as 

articulated in sections 306(a)(11)(B),316

307(a)(21)(A),317 614(a)(11),318 and 

624(a)(3) of the Act.319 We clarify that 

coordination is required under the Act 

and that all entities are responsible for 

coordination, including Tribal 

organizations and a Hawaiian Native 

grantee, State agencies, AAAs, and 

service providers. 

Comment: Commenters 

overwhelmingly expressed support for 

coordination between Title VI and Title 

III programs. They expressed concern 

about the lack of coordination between 

Title VI grantees and State agencies, low 

amounts of funding provided under 

Title III to Tribes, and lack of technical 

assistance on how to apply for available 

Title III funds. One commenter 

recommended that any entities involved 

in provision of services under Title III 

of the Act develop their procedures for 

outreach and coordination with the 

relevant Title VI program director. 

Another commenter expressed that the 

proposed language regarding 

coordination was too permissive. A 

commenter recommended specifying 

that services should be delivered in a 

culturally appropriate and traumainformed manner. Some commenters 

also requested technical assistance for 

State agencies on their roles and 

responsibilities. We also received other 

suggestions, program management 

recommendations, and implementation 

questions regarding this provision, 

including regarding examples and best 

practices for coordination. 

Response: ACL expects coordination 

between Title VI and Title III programs. 

As stated above, § 1322.31 sets forth the 

same requirements for Title VI programs 

as are set forth in § 1321.53 for State 

agencies, in § 1321.69 for AAAs, and in 

§ 1321.95 for service providers under 

Title III of the Act. Based on the 

comments received, we revised each 

provision to use consistent language, 

where appropriate. We explain the 

changes made in the following 

paragraphs. 

We have reordered the opening 

paragraph in § 1322.31 as § 1322.31(a) 

and have reordered the subsequent 

paragraphs accordingly. We have further 

revised the language in reorganized 

§ 1322.31(a) to read, ‘‘A Tribal 

organization or Hawaiian Native grantee 

under Title VI of the Act must have 

policies and procedures, developed in 

coordination with the relevant State 

agency, area agency or agencies, and 

service provider(s) that explain how the 

Title VI program will coordinate with 

Title III and/or VII funded services 

[. . .] A Tribal organization or Hawaiian 

Native grantee may meet these 

requirements by participating in tribal 

consultation with the State agency 

regarding Title VI programs.’’ 

We have created a reordered 

paragraph § 1322.53(b) and have made 

revisions to clarify topics that the 

policies and procedures set forth in 

paragraph (a) ‘‘[. . .] must at a 

minimum address[.]’’ By using these 

words, ACL makes clear that 

coordination is required. We have 

further made edits to include how 

outreach and referrals will be provided 

to Tribal elders and family caregivers 

regarding services for which they may 

be eligible under Title III and/or VII; 

remove duplicate language which was 

incorporated into revised paragraph (a); 

revise ‘‘[. . .] such as [. . .]’’ to ‘‘[. . .] 

to include [. . .]’’ in reference to 

meetings, email distribution lists, and 

presentations regarding communication 

opportunities; add ‘‘How services will 

be provided in a culturally appropriate 

and trauma-informed manner;’’ and 

make other grammatical edits for 

consistency. 

We have also added new § 1322.31(c) 

to state, ‘‘The Title VI program director, 

as set forth in § 1322.13(a), shall 

participate in the development of 

policies and procedures as set forth in 

§§ 1321.53, 1321.69, and 1321.95.’’ 

There are multiple successful 

examples of such coordination that ACL 

is committed to sharing and expanding. 

We believe that the promulgation of 

these regulations will provide a 

significant opportunity to further 

coordination between Title VI and Title 

III programs, including improving ACL’s 

monitoring programs for compliance. 

ACL anticipates providing technical 

assistance on this provision and other 

provisions related to coordination 

among Title VI and Title III programs 

upon promulgation of the final rule. 

Regarding provision of Title III 

funding to Tribes, the amount of 

available Title III funding is limited to 

what is appropriated for such purposes. 

State agencies are required to distribute 

such funding to AAAs via an IFF in 


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320 42 U.S.C. 3030. 321 42 U.S.C. 3030(c). 

States with multiple PSAs, as required 

by the Act and as set forth at § 1321.49. 

In some States, Tribes have been 

designated as AAAs and receive Title III 

funds. Single PSA State agencies are 

required to distribute funds in 

accordance with a funds distribution 

plan as set forth at § 1321.51(b), and 

Title VI programs may receive funds 

under a contract or grant with a State 

agency in such States. State agencies 

and AAAs are required to establish and 

follow procurement policies in 

awarding Title III funds under the Act, 

which may allow for awarding of funds 

to Title VI grantees, Tribes, and other 

Tribal organizations. 

ACL emphasizes that this new 

provision is included based on feedback 

by Tribes and Title VI-funded programs 

to specify that coordination is a 

requirement. While coordination is a 

requirement, there are various ways for 

grantees under Title VI and Title III of 

the Act to coordinate. ACL encourages 

Tribes and Tribal organizations to apply 

to provide Title III-funded services. 

However, the statute does not allow for 

a requirement that Title III funds be 

provided to Title VI grantees outside of 

the procurement policies in place for 

awarding of Title III funds under the 

Act. 

Subpart D—Emergency & Disaster 

Requirements 

The COVID–19 PHE highlighted the 

importance of the efforts of Tribal 

organizations and the Hawaiian Native 

grantee to maintain the health and 

wellness of older Native Americans and 

family caregivers. Existing guidance on 

emergency and disaster requirements 

under the Act is limited and does not 

contemplate the evolution of what may 

constitute an ‘‘emergency’’ or ‘‘disaster’’ 

or how emergencies and disasters may 

uniquely affect older Native Americans 

and family caregivers. 

If a State or Indian Tribe (whether 

directly, or through association with the 

State) receives a MDD by the President 

under the Robert T. Stafford Disaster 

Relief and Emergency Assistance Act, 

42 U.S.C. 5121–5207, section 310 of the 

Act applies, and provides flexibility 

related to disaster relief.320 The COVID– 

19 PHE for example, demonstrated the 

devastating impact on the target 

population of services under the Act. 

During the pandemic, all States and 

some Indian Tribes received a MDD, 

and we provided guidance on 

flexibilities available under the Act 

while under a MDD to meet the needs 

of older Native Americans and 

caregivers, such as those related to meal 

delivery systems, methods for 

conducting well-being checks, delivery 

of pharmacy, grocery, and other 

supplies, and other vital services. 

Throughout the COVID–19 PHE we 

received inquiries and feedback that 

demonstrated a need for clarity on 

available flexibilities in an emergency. 

RFI and NPRM respondents also 

provided substantial feedback regarding 

limitations and the need for additional 

guidance and options for serving older 

adults during emergencies. Multiple RFI 

respondents noted that services under 

the Act may be impacted by a wide 

range of emergencies and disasters— 

including natural, human-caused, 

climate-related, and viral disasters—and 

that previous regulatory guidance did 

not provide service providers under the 

Act the flexibility necessary to 

adequately plan for emergency 

situations. Accordingly, the aging 

network sought an expansion of the 

definition of ‘‘emergency’’ that better 

reflected their realities regarding service 

delivery. RFI and NPRM respondents 

also sought guidance on numerous 

aspects of program and service delivery 

during an emergency, such as 

maintaining flexibilities in meal and 

other service delivery introduced in 

response to the COVID–19 PHE, 

allowable spending on disaster 

mitigation supplies, and providing 

mental health services to older adults 

who experience disaster-related trauma. 

RFI respondents also asked for 

regulatory language outlining what is 

expected of a grantee under the Act in 

an emergency to allow for the 

development of better emergency and 

disaster preparedness plans at all levels. 

Based on input from interested parties 

and our experience, particularly during 

the COVID–19 PHE, we add Subpart D— 

Emergency and Disaster Requirements 

(§§ 1322.33–1322.39) to explicitly 

outline expectations and clarify 

flexibilities that are available in a 

disaster situation. We considered 

various approaches in developing this 

section. Certain flexibilities, such as 

allowing for carry-out or drive through 

meals, constitute innovative ways to 

deliver services that could be allowable 

on a regular basis within the parameters 

of Title VI part A or B and without any 

special authorization by ACL during an 

emergency. Those flexibilities have been 

incorporated where applicable in the 

revised regulation for clarification 

purposes (see § 1322.27, which 

addresses carry-out and other 

alternatives to traditional homedelivered meals). We are limited by the 

Act in the extent to which other 

flexibilities may be allowed. For 

example, a MDD is required in order for 

a Tribal organization or Hawaiian 

Native grantee to be permitted, pursuant 

to section 310(c) of the Act,321 to use 

Title VI funds to provide disaster relief 

services (which must consist of 

allowable services under the Act) for 

areas of the service area where the 

specific major disaster declaration is 

authorized and where older Native 

Americans and family caregivers are 

affected. 

Comment: We received comment 

expressing general support for inclusion 

of this subpart and flexibility to 

innovatively address disasters and 

emergencies. 

Response: ACL appreciates this 

comment. 

§ 1322.33 Coordination With Tribal, 

State, and Local Emergency 

Management 

New § 1322.33 states that Tribal 

organizations and Hawaiian Native 

grantees must establish emergency 

plans, and this section outlines 

requirements that these plans must 

meet. While the Act requires emergency 

planning by State agencies and area 

agencies on aging, the Act provides 

limited guidance regarding emergency 

planning specific to Title VI grantees. 

We also include in this section 

additional guidance in connection with 

the development of sound emergency 

plans (such as requirements for 

continuity of operations planning, 

taking an all-hazards approach to 

planning, and coordination among 

Tribal, State, and local emergency 

management and other agencies that 

have responsibility for disaster relief 

delivery). 

Comment: We received comments 

supporting ACL’s proposal to require 

Tribal organizations and Hawaiian 

Native grantees to establish emergency 

plans, to specify the requirements those 

plans must meet, and to provide 

guidance regarding development of 

emergency plans. We received comment 

recommending any regulations directing 

the State agency or AAAs to develop 

procedures for outreach and 

coordination with Tribes be developed 

in consultation with that community’s 

Title VI program directors. Another 

commenter noted there are existing 

Tribal emergency plans that could be 

used to comply with the section and 

that in incidences where there is an 

opportunity to coordinate, it could be 

captured with a memorandum of 

understanding. 

Response: ACL appreciates these 

comments. The provisions in part 1322 

are specific to the expectations for 


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322 42 U.S.C. 3030(c). 

323 42 U.S.C. 3026(a)(11)(B). 

324 42 U.S.C. 3027(a)(21)(A). 

325 42 U.S.C. 3057e(a)(11). 

326 42 U.S.C. 3057j(a)(3). 

grantees under Title VI of the Act. 

Expectations for grantees under Title III 

of the Act are in part 1321. In response 

to the recommendation to consult with 

the appropriate Title VI program 

directors, we have made this change at 

§ 1321.103. ACL agrees that existing 

Tribal emergency plans that address 

coordination with the services funded 

under Title VI of the Act, in accordance 

with these provisions, would meet these 

expectations. Establishing a 

memorandum of understanding is also a 

reasonable method to meet the 

expectations as set forth. ACL 

appreciates the comments identifying 

how implementation of these provisions 

can be accomplished. 

§ 1322.35 Flexibilities Under a Major 

Disaster Declaration 

New § 1322.35 outlines disaster relief 

flexibilities available under a MDD to 

provide disaster relief services for 

affected older Native Americans and 

family caregivers. Recognizing that there 

is no required period of advance notice 

of the end of a MDD incident period, the 

final rule allows a Tribal organization or 

Hawaiian Native grantee up to 90 days 

after the expiration of a MDD to obligate 

funds for disaster relief services. 

We received many comments in 

response to the RFI and NPRM asking 

that various flexibilities allowed during 

the COVID–19 PHE remain in place 

following the end of the PHE. We are 

limited by the Act in the extent to 

which flexibilities may be allowed. For 

example, a MDD is required in order for 

a Title VI grantee to be permitted, 

pursuant to section 310(c) of the Act,322

to use Title VI funds to provide disaster 

relief services (which must consist of 

allowable services under the Act) for 

areas of the service area where the 

specific MDD is authorized and where 

older Native Americans and family 

caregivers are affected. 

Comment: We received comments in 

support of these changes that will better 

enable OAA-funded programs to serve 

Native elders in instances of disasters or 

emergencies. We also received 

comments with questions if a Tribal 

declaration needs to be recognized by 

the non-Tribal entities that are 

referenced. 

Response: ACL appreciates these 

comments and intends to provide 

technical assistance regarding various 

declarations that may apply in 

emergency and disaster situations. We 

have also made edits to § 1322.35(b) for 

consistency with the language used in 

this similar provision in part 1321 and 

have reordered items accordingly. 

§ 1322.37 Title VI and Title III 

Coordination for Emergency and 

Disaster Preparedness 

Section 1321.53 (State agency Title III 

and Title VI coordination 

responsibilities), § 1321.69 (Area agency 

on aging Title III and Title VI 

coordination responsibilities), and 

§ 1321.95 (Service provider Title III and 

Title VI coordination responsibilities), 

outline expectations for coordinating 

activities and delivery of services under 

Title III and Title VI, as articulated in 

the Act sections 306(a)(11)(B),323

307(a)(21)(A),324 614(a)(11),325 and 

624(a)(3).326 New § 1322.37 clarifies that 

Title VI and Title III coordination 

should extend to emergency and 

disaster preparedness planning and 

response. 

Comment: We received comments 

supporting the clarification that Title VI 

and Title III coordination should extend 

to emergency and disaster preparedness 

and response. We also received 

comment noting geographic, historical, 

and cultural considerations that are part 

of the preparedness plans developed by 

the Tribal aging programs that are 

uniquely Tribal. 

Response: ACL appreciates these 

comments and confirms that specific to 

emergency and disaster coordination, 

§ 1321.97 requires coordination by 

grantees under Title III of the Act with 

State, Tribal, and local emergency 

management, while § 1321.103 requires 

that State and area agencies coordinate 

with Title VI programs. These 

provisions complement this provision at 

§ 1322.37. 

§ 1322.39 Modification During Major 

Disaster Declaration or Public Health 

Emergency 

New § 1322.39 states that the 

Assistant Secretary for Aging retains the 

right to modify emergency and disasterrelated requirements set forth in the 

regulation under a MDD or PHE. 

C. Deleted Provisions 

§ 1322.5 Applicability of Other 

Regulations 

The final rule removes § 1322.5, 

which lists other applicable regulations, 

because the provision is unnecessary 

and may create confusion or become 

outdated due to statutory or regulatory 

changes. 

Part 1323—Grants for Supportive and 

Nutritional Services to Older Hawaiian 

Natives 

A. Deleted Provisions 

The final rule removes part 1323, 

which is specific to Title VI, part B, 

which applies to one Hawaiian Native 

grantee. We include requirements 

specific to Title VI, part B in the revised 

part 1322. By so doing we anticipate 

reducing confusion and improving 

appropriate consistency in service 

provision to both older Indians and 

Native Hawaiians and family caregivers 

thereof. 

Comment: ACL received comments of 

appreciation for the proposed changes 

to clarify Title VI and other provisions 

of the Act to better allow grantees to 

serve Native elders and family 

caregivers. One commenter noted that 

consolidating the sections referencing 

Title VI services to Indian Tribes and 

Native Hawaiian grantees creates more 

clarity in the regulations, which will 

permit grantees to better serve Native 

American, Alaskan Native, and Native 

Hawaiian elders and family caregivers. 

Response: ACL appreciates these 

comments. 

Part 1324—Allotments for Vulnerable 

Elder Rights Protection Activities 

A. Provisions Revised To Reflect 

Statutory Changes and/or for Clarity 

Subpart A—State Long-Term Care 

Ombudsman Program 

The regulation for the State LongTerm Care Ombudsman Program 

(Ombudsman program) was first issued 

in 2015. In the eight years since, ACL 

has provided technical assistance to 

State Long-Term Care Ombudsmen, 

State agencies, and designated local 

Ombudsman entities as they work to 

implement the regulation. The 2016 

reauthorization of the Act also made 

changes specific to the Ombudsman 

program. Changes to the regulation are 

needed to ensure consistency with 

updates to the Act. Additionally, based 

on requests for technical assistance and 

comments to the NPRM, ACL has 

determined to clarify certain sections of 

part 1324, including the responsibilities 

and the authority of the State LongTerm Care Ombudsman (Ombudsman); 

duties owed to residents regarding 

confidentiality; and COI requirements. 

Comment: Many commenters stated 

support in general for the updating of 

the regulations to be consistent with 

Title VII of the Act. 

Response: ACL appreciates these 

comments of support. ACL anticipates 

continuing to provide technical 

assistance to grantees under Title VII of 


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327 42 U.S.C. 3058g(b). 

the Act in support of the individuals 

served by Title VII programs. 

Comment: A commenter noted a need 

for increased funding for Ombudsman 

programs and legal services for older 

adults, adding that increased funding 

would help programs rely less on 

volunteers. Other organizations 

commented on the utilization of 

volunteers in the Ombudsman program 

and recommended that we establish 

multiple levels of certification to 

account for volunteers who desire fewer 

responsibilities, noting that training 

could be adjusted as well. 

Response: Although program funding 

is beyond the scope of the rule, we 

acknowledge the decline in volunteers 

over multiple years and understand the 

impact on program resources. The Act 

calls for the Ombudsman to designate 

representatives of the Office of the State 

Long-Term Care Ombudsman (the 

Office), without distinguishing between 

paid and volunteer representatives. The 

rule defines ‘‘representatives of the 

Office’’ as the ‘‘[. . .] employees or 

volunteers designated by the 

Ombudsmanto fulfill the duties set forth 

in § 1324.19(a)[.]’’ Fulfillment of 

Ombudsman program duties is the 

purpose for the Ombudsman’s 

designation of a representative of the 

Office. Therefore, it would be 

inconsistent with this definition for an 

individual who does not work to resolve 

complaints and perform the other 

Ombudsman program functions to be 

designated by the Ombudsman as a 

representative of the Office. 

Further, the Act requires ACL to 

develop training standards for 

representatives; in doing so as subregulatory guidance, we sought input 

from Ombudsman programs across the 

country to establish a minimum level of 

training, but several states adjusted their 

training to provide additional hours and 

content for representatives who are 

assigned more complex responsibilities. 

We have determined that Ombudsman 

programs have flexibility to assign 

volunteer duties to meet the needs of 

the program if they are performing 

duties described in the rule. 

Comment: One commenter challenged 

the accuracy of Frequently Asked 

Questions that ACL published as subregulatory guidance, noting that they 

contradict the rule. 

Response: While we respectfully 

disagree with the concern about the 

guidance in relation to the prior version 

of the Ombudsman rule, we intend to 

review previous sub-regulatory 

guidance and adjust where necessary to 

align with this final rule. 

§ 1324.1 Definitions 

We add a new definition for ‘‘Official 

duties’’ to § 1324.1 for consistency with 

part 1321 of the regulation, which also 

contains this defined term. In both parts 

1321 and 1324, this term is used to 

define the duties of representatives of 

the Office. As currently defined at 

§ 1324.1, representatives of the Office 

are the employees or volunteers 

designated by the Ombudsman to 

conduct the work of the Ombudsman 

program. The definition of ‘‘Official 

duties’’ is included to clarify the role of 

representatives of the Office. We made 

clarifications to address 

misunderstandings of the role expressed 

by third parties who deal with the 

Ombudsman program. We also made 

minor changes to the definition of 

‘‘Resident representative.’’ 

Comment: Most commenters agreed 

with the added and clarified definitions 

in § 1324.1. Some commenters 

recommended we add language to 

clarify that representatives of the Office 

may be carrying out the duties ‘‘[. . .] 

by direct delegation from, the State 

Long-Term Care Ombudsman’’ in 

addition to carrying out duties ‘‘[. . .] 

under the auspices and general 

direction of, [. . .] the State Long-Term 

Care Ombudsman.’’ 

Response: We appreciate the 

comments. We recognize that 

Ombudsman programs operate in a 

variety of organizational structures and 

that direct delegation is one way that 

programs are managed. We have 

modified the definition of ‘‘Official 

duties’’ as recommended. The same 

change was made in part 1321. 

Comment: One commenter 

recommended that we add a definition 

of ‘‘resolved’’ to support accuracy of 

data. 

Response: We appreciate the 

commenter’s interest in accuracy. 

Specifying data collection requirements 

is outside the scope of this rule. The 

National Ombudsman Reporting System 

includes definitions for accurate data 

collection and is accompanied by 

training and a series of frequently asked 

questions. We will work with the 

National Ombudsman Resource Center 

to continue to refine guidance regarding 

data collection requirements. 

Comment: Commenters identified 

incongruent sentence structure in the 

proposed modification to the definition 

of resident representative. 

Response: We agree with the 

commenters’ notes about wording and 

have made technical corrections to that 

definition. 

Comment: One commenter 

underscored the importance of the 

Ombudsman program being residentdirected and recommended the addition 

of a definition of ‘‘informed consent.’’ 

The commenter noted that some longterm care facilities, guardians, and 

others have attempted to limit the 

ability of the Ombudsman program to 

advocate on behalf of residents and that 

multiple understandings of the term 

lead to inconsistent application. They 

suggested including that, when seeking 

consent, representatives of the 

Ombudsman program give residents a 

full explanation of the facts, options, 

and possible outcomes. 

Response: We agree that consent is a 

key to successful advocacy for residents. 

We will provide technical assistance for 

obtaining informed consent. 

§ 1324.11 Establishment of the Office 

of the State Long-Term Care 

Ombudsman 

Section 1324.11 sets forth 

requirements related to the 

establishment of the Office of the State 

Long-Term Care Ombudsman (Office). 

We make minor changes to § 1324.11(a) 

and to the introductory clause of (b), as 

well as to (e) introductory text, (e)(1)(i) 

and (v); (e)(4)(i) through (iii); (e)(5) and 

(6); and (e)(8)(ii), to clarify the purpose 

of the section. Other changes to this 

section are discussed in more detail, 

below. 

In fulfilling their responsibilities, 

representatives of the Office may need 

access to the medical, social and/or 

other records of a resident, and section 

712(b) of the Act requires State agencies 

to ensure that representatives of the 

Office will have such access, as 

appropriate, including in the 

circumstance where a resident is unable 

to communicate consent to the review 

and has no legal representative.327

Previously, § 1324.11 did not require 

policies and procedures to address 

access to a resident’s records in this 

circumstance by the Ombudsman and 

the representatives of the Office, and we 

receive many requests for technical 

assistance as to how to address this 

situation. Accordingly, we add language 

in § 1324.11(e)(2) to require policies and 

procedures to provide direction for the 

Ombudsman and representatives of the 

Office as to how to address a situation 

where a resident is unable to 

communicate consent to the review of 

their records and they have no legal 

representative who can communicate 

consent for them. We add the 

requirement for policies and procedures 

as § 1324.11(e)(2)(iv)(C) and renumber 


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328 Id. section 3058g(d). 

329 Id. section 3058g(b). 

330 Id. section 3058g. 

331 Id. 

332 Id. 333 42 U.S.C. 3058g(f)(1)(C)(iii). 

subsequent subsections within 

§ 1324.11(e)(2)(iv). 

A major tenet of the Ombudsman 

program is that it is resident-directed. 

This concept extends to if and how 

information about a resident’s 

complaints is disclosed, and section 

712(d) of the Act requires State agencies 

to prohibit the disclosure of the identity 

of a resident without their consent.328

We have received many requests for 

technical assistance as to how to 

address a situation when the resident is 

unable to provide consent to disclose; 

there is no resident representative 

authorized to act on behalf of the 

resident; or the resident representative 

refuses consent and there is reasonable 

cause to believe the resident’s 

representative has taken an action, 

failed to act, or otherwise made a 

decision that may adversely affect the 

resident. We add language to 

§ 1324.11(e)(3)(iv) to require State 

agencies to have policies and 

procedures in place to provide direction 

for representatives of the Office as to 

how to address these situations. 

States may have laws that require 

mandatory reporting of abuse, neglect, 

and exploitation. We have received 

questions as to the applicability of these 

requirements to the Ombudsman 

program, despite the prohibitions in 

section 712(b) of the Act against 

disclosure of resident records and 

identifying information without resident 

consent.329 To clarify existing 

requirements, we add language to 

§ 1324.11(e)(3)(v) to require State 

agencies to have policies and 

procedures in place to make clear that 

mandatory reporting of abuse, neglect, 

and exploitation by the Ombudsman 

program is prohibited. Subsequent 

subsections within § 1324.11(e)(3) have 

been re-numbered to reflect the new 

language. 

Section 712 of the Act requires the 

Ombudsman program to represent the 

interests of residents before government 

agencies and to seek administrative, 

legal, and other remedies to protect the 

health, safety, welfare, and rights of the 

residents.330 Section 712 also provides 

that the Ombudsman, personally or 

through representatives of the Office, is 

to 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; recommend any changes in 

such laws, regulations, policies, and 

actions as the Office determines to be 

appropriate; and 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.331 To be a strong advocate, 

the Ombudsman must be able to make 

determinations and to establish 

positions of the Office independently 

and without interference and must not 

be constrained by determinations or 

positions of the agency in which the 

Office is organizationally located. 

In response to information ACL 

received about State government 

agencies engaging in interference 

prohibited under section 712 of the 

Act 332 (e.g., by requiring prior approval 

of positions of the Office regarding 

governmental laws, regulations, or 

policies), we add language to the 

introductory portion of § 1324.11(e)(8) 

to clarify this prohibition. Specifically, 

we replace the existing phrase ‘‘[. . .] 

without necessarily representing the 

determinations or positions of the State 

agency or other agency in which the 

Office is organizationally located’’ with 

‘‘[. . .] without interference and shall 

not be constrained by or necessarily 

represent the determinations or 

positions of the State agency or other 

agency in which the Office is 

organizationally located.’’ 

Comment: One commenter 

recommended the addition of language 

to clarify that any work for nonombudsman services or programs must 

not utilize funding designated for the 

Ombudsman program and must not 

interfere with the duties and functions 

of the Ombudsman program. 

Response: Section 1324.13(f) directs 

the Ombudsman to determine the use of 

fiscal resources appropriated for or 

otherwise available for the operation of 

the Office, including determining that 

program budgets and expenditures of 

local Ombudsman entities are consistent 

with laws, policies, and procedures 

governing the Ombudsman program. 

Further, § 1324.11(e)(1)(vi) provides that 

procedures that clarify fiscal 

responsibilities of local Ombudsman 

entities include clarifications about 

access to programmatic fiscal 

information by appropriate 

representatives of the Office. Therefore, 

we believe the recommendation of the 

commenter would be most 

appropriately handled through 

Ombudsman policies and procedures, 

and we have elected not to make a 

change to the rule. 

Comment: Commenters recommended 

additional requirements for 

qualification to serve as the State LongTerm Care Ombudsman. 

Recommendations included educational 

requirements, minimum years of 

experience in the current role or in the 

field, expertise in the legal system and 

legislative process as well as 

organizational management and 

program administration, and gaps in 

employment with a long-term care 

facility. 

Response: The rule includes several 

areas of expertise required of an 

Ombudsman as well as a one-year 

cooling off period after employment by 

a long-term care facility, as required by 

section 712(f)(1)(C)(iii) of the Act.333

Given the statutory requirement, we 

have retained this provision as 

proposed. 

Comment: Many commenters 

recommended ACL clarify in part 1324 

the authority of the Ombudsman to 

develop policies and procedures, noting 

that such authority is critical to their 

responsibility for program operation, 

monitoring, and service delivery. One 

commenter suggested the regulations 

grant the Ombudsman full legal 

authority to establish policies and 

procedures. 

Response: We have modified 

§ 1324.11(e) to clarify that the agency 

shall establish Ombudsman program 

policies and procedures as 

recommended by the Ombudsman. The 

edit is designed to ensure that the 

Ombudsman leads development of 

policies and procedures. We decline to 

require that the Ombudsman have full 

legal authority to establish policy and 

procedures to allow for coordination 

and cooperation and where State law 

does not provide such authority. 

Comment: One commenter 

recommended that ACL add a 

requirement for policies and procedures 

for emergency and disaster 

preparedness and response that would 

incorporate continuity of operations 

planning, all-hazards planning, and 

coordination with emergency 

management agencies. 

Response: The COVID–19 PHE 

provided new opportunities for 

Ombudsman programs to forge 

relationships with emergency 

management agencies and public health 

agencies, and we agree that some 

programs were more equipped than 

others to create and implement 

continuity of operations plans. We 

appreciate the comment and have added 


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334 42 U.S.C. 3058g. 

a requirement in § 1324.11(e) that 

policies and procedures related to 

emergency planning include continuity 

of operations procedures. Additionally, 

we will provide technical assistance to 

Ombudsman programs to implement the 

new requirement. 

Comment: One commenter 

recommended that ACL establish a 

requirement for the Ombudsman to 

collaborate with area agencies on aging 

to create a uniform system for 

monitoring local Ombudsman entities to 

assure that designated programs are 

performing duties as required. Another 

commenter noted that varied processes 

lead to extra requests for information 

that take up limited program resources. 

Several commenters recommended a 

standard frequency of monitoring, such 

as every one to four years or every two 

to three years. 

Response: Section 1324.11(e) requires 

that when local Ombudsman entities are 

designated within area agencies on 

aging or other entities, the Ombudsman 

shall develop such policies and 

procedures in consultation with the 

agencies hosting local Ombudsman 

entities and with representatives of the 

Office. However, the rule does not 

clearly require consultation with area 

agencies on aging when the area agency 

on aging is not the host agency for the 

local Ombudsman program. Therefore, 

we have amended § 1324.11(e) to add 

such consultation. 

Further, we use this rule to make 

§ 1324.11(e) consistent with 

§ 1324.13(c), which requires the 

Ombudsman to monitor local 

Ombudsman entities ‘‘on a regular 

basis.’’ Specifically, we modify 

§ 1324.11(e)(1)(iii) to require monitoring 

‘‘on a regular basis’’ defer to the 

Ombudsman to define ‘‘regular’’ in 

terms of the frequency of monitoring, in 

consultation with area agencies on aging 

based on the revision to § 1324.11(e) 

described above. Because resources vary 

and there are other factors that would 

determine an appropriate monitoring 

frequency, we are not prescribing a 

timeframe. 

Comment: Several commenters 

recommended edits to § 1324.11(e)(1)(v) 

to clarify the standards the Ombudsman 

must establish regarding response times 

to complaints. 

Response: We appreciate the 

comments and agree that clarification of 

the rule will assist Ombudsman 

programs to establish timeframes for 

response to complaints made by or on 

behalf of residents. Therefore, we have 

revised the section to clarify the 

standards the Ombudsman must 

establish based on the needs and 

resources of the program. 

Comment: A few organizations 

commented on § 1324.11(e)(1)(vi), 

recommending language to ensure that 

the Ombudsman program manager at 

local Ombudsman entities is involved in 

the budget and expenditure process and 

receives regular reports of fund balances 

and expenditures. 

Response: Section § 1324.11(e)(1)(vi) 

addresses procedures regarding fiscal 

responsibilities of the local Ombudsman 

entity such as access to programmatic 

fiscal information by appropriate 

representatives of the Office. This 

subsection provides general guidance 

while allowing State agencies and 

Ombudsman to devise the policies and 

procedures that fit their specific 

program structures and resources. We 

are not changing the language but will 

provide targeted technical assistance in 

the future. 

Comment: Commenters recommended 

an addition to procedural requirements 

to establish time frames and methods of 

destruction of Ombudsman program 

records. One commenter also suggested 

a statement that Ombudsman program 

records are not subject to public records 

or freedom of information requests. 

Response: ACL has received questions 

from Ombudsman programs about 

record retention requirements and 

appreciates the comment raising the 

issue in the context of the rule. We agree 

that requiring Ombudsman programs to 

have policies and procedures regarding 

timeframes would help with consistent 

response to requests for records. 

Therefore, we have added a requirement 

at § 1324.11(e)(1)(vii) for Ombudsman 

programs to have procedures regarding 

record retention. We believe that 

existing provisions in section 712 of the 

Older Americans Act 334 and at 

§ 1324.11(e)(3) support confidentiality 

of records. ACL intends to provide 

additional sub-regulatory guidance for 

implementation of existing 

requirements. 

Comment: Some commenters 

recommended that § 1324.11(e)(2), 

which addresses procedures for access 

to facilities, residents, and records, be 

amended to require access to long-term 

care facilities at any time to ensure 

residents have unrestricted access to 

representatives of the Office. Other 

recommendations include that ACL 

specify that long-term care facilities 

must provide the Ombudsman and/or 

representatives of the Office with 

resident names, contact information, 

and room numbers so that 

representatives can quickly and easily 

locate residents; and to set specific 

maximum timeframes to produce the 

roster and other requested information. 

One commenter also recommended that 

ACL clarify that failure to comply 

would constitute willful interference. 

Response: ACL does not have 

authority to establish requirements for 

long-term care facilities. We have 

determined that existing requirements 

for policies and procedures coupled 

with State agency requirements about 

interference at § 1324.15(i) provide 

sufficient guidance for Ombudsmen and 

State agencies to collaborate on how to 

ensure that representatives of the Office 

can perform their duties effectively. We 

appreciate the suggestions, and ACL 

intends to offer technical assistance and 

make best practices available to support 

Ombudsmen and representatives of the 

Office to fulfill their duties. 

Comment: Many commenters 

expressed support for the new 

requirement at § 1324.11(e)(3)(iv), that 

policies and procedures about 

disclosure of files, records, and other 

information maintained by the 

Ombudsman program must include 

standard criteria for making 

determinations about disclosure of 

resident information when the resident 

is unable to provide consent and there 

is no resident representative or the 

resident representative refuses consent 

in certain circumstances as set forth. 

Response: ACL appreciates the 

support of this provision. We note the 

related clarification to 

§ 1324.11(e)(2)(iv)(C). When a resident 

is unable to grant or decline consent and 

there is no legal representative, the 

representative of the Office must seek 

approval of the Ombudsman. The 

clarification makes § 1324.11(e)(2)(iv)(C) 

consistent with § 1324.11(e)(2)(iv)(D). 

Comment: One commenter requested 

that we clarify the requirement in 

§ 1324.11(e)(3)(iv) regarding policies 

and procedures for obtaining consent to 

include non-verbal consent as an 

acceptable method. 

Response: The existing rule provides 

for consent to be provided orally, 

visually, or through the use of auxiliary 

aids and services. ACL intends that 

visual or assisted communication 

includes non-verbal forms of 

communication and will retain the 

existing language. 

Comment: Many commenters 

expressed support for the proposed 

clarification of § 1324.11(e)(3)(v). One 

commenter noted that despite longstanding requirements about disclosure 

and consent, mandatory reporting 

requirements have continued to be an 

issue in States where the Ombudsman 

program is not exempt from reporting in 

State rules, laws, and professional 

licensing requirements. One commenter 


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335 Id. section 3058g. 

336 42 U.S.C. 3011(d). 

337 42 U.S.C. 3058g. 

338 Id. 

339 42 U.S.C. 15043. 

340 Long-Term Care Ombudsman Programs and 

Protection & Advocacy Agencies Collaboration 

Toolkit, The Nat’l Consumer Voice for Long Term 

Care, https://ltcombudsman.org/omb_support/pm/ 

collaboration/ltcop-protection-and-advocacyContinued 

recommended that we use ‘‘mandated’’ 

as that is the most common term for 

such provisions. 

Response: We appreciate the 

comment and have made the requested 

modification in the final rule. In 

reviewing the NPRM we identified a 

technical error; the new provision at 

§ 1324.11(e)(3)(v) should have replaced 

the language in § 1324.11(e)(3)(vi). 

Paragraphs have been merged and 

renumbered in the final rule. 

Comment: Many commenters 

expressed support for the change to 

§ 1324.11(e)(6)(i), which removed 

‘‘adequately’’ in regard to removing or 

remedying COI, as it allows for less 

ambiguity. 

Response: We appreciate the support 

of the modification. 

Comment: One organization 

recommended adding that the policies 

and procedures regarding grievances in 

§ 1324.11(e)(7); personnel management 

in § 1324.17; and COI in § 1324.21 be 

‘‘fair’’ if an Ombudsman takes adverse 

action on designation of a local 

Ombudsman entity, noting that removal 

of designation and certification could be 

arbitrary actions. They additionally 

recommended a requirement to provide 

the grievance process in writing to 

covered entities and individuals in 

advance. 

Response: ACL believes that the 

regulatory language is sufficient to 

address the concern, and will provide 

technical assistance and additional 

guidance, if necessary, in consultation 

with interested parties. 

Comment: Many commenters raised 

concerns that the subject of 

determinations identified in 

§ 1324.11(e)(8)(i) through (iii) is too 

narrow and does not include other areas 

of Ombudsman program operations 

about which the Ombudsman makes 

determinations (e.g., complaint 

processing, contents of the annual 

report). Commenters suggested that 

changing ‘‘regarding’’ to ‘‘including’’ 

would clarify that the areas listed are 

not all-inclusive but are examples and 

suggested adding the annual report as 

required in § 1324.13(g). They cited 

instances of host agencies editing 

determinations. One commenter 

recommended seeking input from 

representatives of the Office when 

making determinations regarding 

systems advocacy. 

Response: We appreciate the 

explanation and information about 

Ombudsman program experiences and 

note that the examples in the existing 

rule are also included in § 1324.13 

(Functions and responsibilities of the 

State Long-Term Care Ombudsman). 

Therefore, we have amended 

§ 1324.11(e)(8) to refer to the functions 

and responsibilities of the Ombudsman. 

We will provide technical assistance on 

practices for seeking input, including 

regular review of Ombudsman records, 

data analysis, or direct consultation 

with representatives of the Office. 

§ 1324.13 Functions and 

Responsibilities of the State Long-Term 

Care Ombudsman 

Section 712 of the Act sets forth the 

functions and roles of the Ombudsman 

and provides that the Ombudsman has 

the authority to make independent 

determinations in connection with these 

various functions.335 Through technical 

assistance inquiries, monitoring 

activities, and RFI comments, we have 

been made aware of instances where a 

State agency does not understand the 

authority and independence of the 

Ombudsman, such as with respect to 

commenting on governmental policy. 

We clarify § 1324.13 to provide that the 

Ombudsman has the authority to lead 

and manage the Office. Specifically, we 

change the phrase in the first sentence 

‘‘[. . .] responsibility for the leadership 

[. . .]’’ to ‘‘[. . .] responsibility and 

authority for the leadership [. . .]’’ to 

emphasize the authority of the 

Ombudsman to carry out the statutory 

functions. 

Section 201(d) of the Act provides for 

oversight of the Ombudsman program 

by a Director of the Office of Long-Term 

Care Ombudsman Programs.336 We 

update § 1324.13(c)(2) to take into 

account previous sub-regulatory 

guidance and require training for 

certification and continuing education 

procedures to be based on and 

consistent with the standards 

established by ACL’s Director of the 

Office of Long-Term Care Ombudsman 

Programs, as well as with any standards 

set forth by the Assistant Secretary for 

Aging. 

Section 712 of the Act contains 

detailed requirements with which 

representatives of the Office must 

comply, such as requirements as to 

confidentiality of resident records, as 

well as limitations on disclosure of such 

records and on the disclosure of the 

identity of residents.337 Section 712 also 

requires that representatives receive 

adequate training with respect to 

program requirements.338 We have been 

made aware of instances where staff of 

the Ombudsman program have had 

access to resident records without 

training or certification as a 

representative of the Office. Pursuant to 

the statutory requirements, and to 

address instances of noncompliance, 

§ 1324.13(c)(2)(iii) and (d) require that 

all staff and volunteers of the 

Ombudsman program who will have 

access to resident records, as well as 

other files, records, and information 

subject to disclosure requirements, be 

trained and certified as designated 

representatives of the Office, so that 

individuals with access to confidential 

information will be accountable to the 

Ombudsman for their actions. The 

subsequent subsection in § 1324.13(c)(2) 

is re-numbered accordingly. 

The Act affords the Ombudsman 

discretion in determining whether to 

disclose the files, records, or other 

information of the Office. ACL often 

receives requests for technical 

assistance regarding criteria for such 

determinations. In response, we add to 

§ 1324.13(e)(2) the following criteria to 

assist the Ombudsman in making this 

determination: whether the disclosure 

has the potential to cause retaliation, to 

undermine the working relationships 

between the Ombudsman program and 

other entities, or to undermine other 

official duties of the Ombudsman 

program. 

We are aware of an apparent conflict 

between provisions of the 

Developmental Disabilities Act, which 

affords protection and advocacy 

programs access to resident records, and 

provisions of the OAA which prohibit 

the Ombudsman from disclosing 

resident-identifying information and 

afford the Ombudsman discretion in 

determining whether to disclose the 

files, records, or other information of the 

Office.339 Consistent with our authority 

to interpret these two statutes, we have 

worked with protection and advocacy 

and Long-Term Care Ombudsman 

programs to collect additional 

information on the experiences and 

circumstances of grantees related to this 

issue. As a result of these efforts, ACL 

has offered technical assistance to 

individual States as issues arise to assist 

protection and advocacy and 

Ombudsman programs to come to an 

agreement on how to handle these 

questions. ACL technical assistance 

centers have co-branded a toolkit on 

collaboration between Ombudsman 

programs and protection and advocacy 

agencies.340 We encourage such 

collaboration. 


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agencies-collaboration-toolkit (last visited Oct. 13, 

2023). 

341 42 U.S.C. 3058g(h). 

342 Id. section 3058g. 

343 42 U.S.C. 3026(a)(2)(C). 

Section 712(h) of the Act provides 

that the State agency must require the 

Ombudsman program to submit an 

annual report that, among other things, 

describes the activities carried out by 

the Office, evaluates problems 

experienced by residents, analyzes the 

success of the Ombudsman program, 

and makes recommendations to improve 

the quality of life of residents.341 This 

information is separate from and in 

addition to the data reported annually to 

ACL through the national data reporting 

system known as the National 

Ombudsman Reporting System (NORS). 

We have found that some Ombudsman 

programs do not understand that the 

annual report required by section 712 

differs from the annual NORS reporting. 

We add language to § 1324.13(g) to 

clarify the distinction between reports 

required by section 712 and NORS. 

The Ombudsman program’s 

effectiveness in advocacy relies on 

relationships with other entities that can 

assist residents. Section 712 of the Act 

also requires that the Ombudsman 

program will coordinate services with 

legal assistance providers and others, as 

appropriate, and enter into a 

memorandum of understanding with 

legal assistance providers.342 We revise 

§ 1324.13(h)(1)(i) to require the adoption 

of memoranda of understanding with 

legal assistance programs provided 

under section 306(a)(2)(C) of the Act 343

that address, at a minimum, referral 

processes and strategies to be used 

when the Ombudsman and a legal 

assistance programs are both providing 

services to a resident. 

Further, the final rule requires 

memoranda of understanding with 

facility and long-term care provider 

licensing and certification programs to 

address communication protocols and 

procedures to share information, 

including procedures for access to 

copies of licensing and certification 

records maintained by the State. Federal 

nursing home regulations require 

interaction between Ombudsman 

programs and licensing and certification 

programs. The goal of this requirement 

is to foster consistency in the 

relationships among Ombudsman 

programs and regulators across the 

country and support communication 

about all types of long-term care 

providers regulated by the State. 

Language regarding this requirement is 

set forth in § 1324.13(h)(1)(ii). 

We also clarify that memoranda of 

understanding are recommended with 

other organizations, programs and 

systems as set forth in § 1324.13(h)(2). 

Elements of § 1324.13(h) have been renumbered in connection with these 

changes. We also make minor changes 

to § 1324.13(a)(7)(vii) and (h) for clarity. 

Comment: A few commenters 

expressed support for clarification of the 

Ombudsman’s authority to lead and 

manage the Office, noting that the 

update would increase program 

effectiveness by limiting barriers in 

program implementation. 

Response: We appreciate the support 

and have finalized the rule as proposed. 

Comment: Commenters expressed 

support for existing language requiring 

Ombudsman review and approval of 

plans and contracts governing local 

Ombudsman entities, noting 

appreciation for oversight by the 

Ombudsman as well as support for the 

updated language about training. 

Response: ACL appreciates the 

support. 

Comment: Commenters expressed 

support for the language at 

§ 1324.13(c)(2)(iii) that removes 

ambiguity and ensures that staff and 

volunteers who have access to records 

are trained and designated. One 

commenter asked whether ACL requires 

the Office to use the training curriculum 

developed by the National Ombudsman 

Resource Center. One commenter 

recommended that ACL require 

supervision during training only when 

the trainee is working directly with 

residents and facility staff and not 

during documentation or administrative 

duties. 

Response: The rule at 

§ 1324.13(c)(2)(iii) has been finalized as 

proposed. ACL does not require 

Ombudsman programs to use the model 

training that was developed to assist 

programs and inform a State-specific 

curriculum if the training curriculum 

used complies with the minimum 

standards developed and issued as subregulatory guidance. We defer to the 

Ombudsman to determine 

implementation of the supervision 

requirement that meets the needs of the 

program. ACL will provide technical 

assistance as needed. 

Comment: Commenters proposed 

language requiring the Ombudsman to 

work with designated program 

coordinators at local Ombudsman 

entities to create and revise local 

program budgets and to work with host 

agencies to ensure programs have 

regular access to reports on income and 

expenditures. One commenter 

recommended that ACL require 

certification from the Ombudsman 

program manager at local Ombudsman 

entities that they have consulted on and 

approved the expenditures of the local 

Ombudsman entity. 

Response: Section 1324.11(e)(1) 

requires that procedures clarify access 

to programmatic fiscal information by 

appropriate representatives of the 

Office, and §§ 1324.11(e)(1)(iii), 

1324.13(c)(1)(iii) require monitoring of 

local Ombudsman entities on a regular 

basis. ACL will provide technical 

assistance to programs as needed to 

ensure compliance. 

Comment: Many commenters 

expressed support for the proposed 

clarification of the annual reporting 

requirement in addition to the data 

report submitted to ACL. Commenters 

additionally recommended the addition 

of ‘‘dissemination’’ of the report and 

reference to the requirement for 

independent development. 

Response: We appreciate the 

suggested edit and have added 

dissemination to § 1324.13(g). 

Comment: Many commenters 

provided feedback on the proposed new 

requirement at § 1324.13(h) to establish 

a memorandum of understanding with 

the State entity responsible for licensing 

and certification of long-term care 

facilities (State survey agencies). Some 

responses supported the proposal 

without modification. There was also a 

suggestion to include State mental 

health departments and others with a 

role in providing access to LTC facilities 

or community-based services. Others 

recommended modification to require 

State survey agencies to provide 

Ombudsman programs with unredacted 

records and all records. Additionally, 

some commenters objected to the 

provision for communication protocols 

and sharing of information to be 

included in the memorandum of 

understanding. 

Response: We agree with the 

suggestion to include mental health 

authorities as an optional entity with 

which to execute a memorandum of 

understanding and have added this at 

§ 1324.13(h)(2)(x). Ombudsman 

programs have reported an increase in 

residents of LTC facilities who have 

mental illness and substance use 

disorders. 

ACL does not have authority to 

require State survey agencies to release 

information to Ombudsman programs. 

The memorandum of understanding, 

however, will help clarify the 

information that can be shared and how 

it will be shared, and will support 

formalized protocols for communication 

to create consistency and to eliminate 

the gaps that Ombudsman programs 

report. Therefore, we have finalized the 


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344 42 U.S.C. 3058g. 

345 Id. section 3058g(g). 346 Id. section 3058g(a)(2). 

rule as proposed and will provide 

technical assistance to address the 

concerns raised by commenters. 

Comment: One commenter asked for 

clarification of the difference between 

the memorandum of understanding 

requirement with legal assistance 

providers and the suggested agreement 

with the legal assistance developer. 

They raised concerns about the need to 

have a separate agreement with each 

legal assistance provider in a State that 

does not have a centralized legal 

assistance program. 

Response: Due to the variety of 

structures of both Ombudsman 

programs and legal assistance programs, 

we defer to the Ombudsman to 

determine how to implement the 

requirement within the State-specific 

structure and community resources. We 

refer commenters to the existing toolkit 

for collaboration between Ombudsman 

programs and legal services. ACL will 

continue to provide technical assistance 

through our legal assistance and 

ombudsman resource centers. 

Comment: Commenters expressed 

concern that § 1324.13(i), which defines 

activities to be performed by the 

Ombudsman to include activities 

determined by the Assistant Secretary to 

be appropriate, could lead to ‘‘mission 

drift.’’ They recommended qualifying 

language that such other activities must 

not conflict with the duties and 

responsibilities of the Ombudsman 

program and must be relevant to the 

program and residents. 

Response: We accept the comment 

and have revised this provision 

accordingly. 

§ 1324.15 State Agency 

Responsibilities Related to the 

Ombudsman Program 

Section 712 of the Act sets forth State 

agency responsibilities for the 

Ombudsman program.344 Section 712(g) 

of the Act requires the State agency to 

ensure that adequate legal counsel is 

available with respect to the program, 

and § 1324.15(j) explains those 

requirements.345 We include minor 

changes to this section for clarity. For 

example, the requirements and detail 

about the scope of responsibility of legal 

counsel are reorganized to clarify that 

legal counsel is to be available for 

consultation on program matters, as 

well as consultation to the program on 

the legal needs of residents. The 

regulations modify the provision for 

attorney-client privilege to specify that 

the privilege applies to communications 

between the Ombudsman and their legal 

counsel, not between the Ombudsman 

and counsel for the resident. 

We receive many requests for 

technical assistance with respect to the 

requirement in section 712 of the Act 

that the Ombudsman be responsible for 

fiscal management of the Office.346

Revised § 1324.15(k) addresses specific 

components of fiscal management and 

codifies best practices. Specifically, the 

State agency must notify the 

Ombudsman of all sources of funds for 

the program and requirements for those 

funds and must ensure that the 

Ombudsman has full authority to 

determine the use of fiscal resources for 

the Office and to approve allocation to 

designated local Ombudsman entities 

before distribution of funds. In addition, 

the revised section requires the 

Ombudsman to determine that program 

budgets and expenditures of the Office 

and local Ombudsman entities are 

consistent with laws, policies, and 

procedures governing the Ombudsman 

program. ACL anticipates providing 

training and technical assistance for the 

implementation of these requirements. 

The section immediately following new 

§ 1324.15(k) is re-numbered 

accordingly. 

We also replace the word ‘‘of’’ with 

‘‘for’’ in the last sentence of § 1324.15(e) 

to correct a typographical error relating 

to reasonable requests ‘‘for’’ reports by 

the State agency as it conducts its 

monitoring responsibilities. 

Comment: Many commenters 

recommended modification to 

§ 1324.15(b) to ensure that State 

agencies implement requirements of 

part 1324 in the establishment and 

operation of the Ombudsman program 

with the necessary authority to perform 

its functions. The recommended 

amendment would add a requirement 

for State agencies to ensure that the 

Office acts independent of the State 

agency, or other agency in which the 

Office is organizationally located, in the 

performance of the Ombudsman 

program’s functions, responsibilities, 

and duties. 

Another commenter recommended 

that State agency monitoring include a 

review and documentation of the 

Ombudsman program’s systems 

advocacy activities through a request for 

examples. 

Response: The rule requires the State 

agency to ensure that the Ombudsman 

program has sufficient authority and 

access to fully perform all the functions, 

responsibilities, and duties of the Office. 

As stated earlier § 1324.11 requires 

establishment of the Office of the State 

Long-Term Care Ombudsman as a 

distinct, separately identifiable entity 

that authorizes the Ombudsman, as 

head of the Office, to make independent 

determinations and establish positions 

that do not necessarily represent the 

determinations or positions of the 

agency in which it is located. We 

reiterate that we have accepted 

comments to clarify that § 1324.11(e)(8) 

applies to all determinations. Further, 

§ 1324.15(e) requires the State agency to 

assess as part of its monitoring whether 

the Ombudsman program is performing 

all the functions, responsibilities, and 

duties set forth in §§ 1324.13 and 

1324.19. Therefore, ACL believes that 

the rule provides both clear 

requirements for functional autonomy 

and for assurance of implementation. 

ACL intends to provide technical 

assistance on implementation of 

monitoring responsibilities. 

Comment: Many commenters 

expressed support for § 1324.15(j) 

regarding legal counsel and the State 

agency’s role in ensuring that effective 

legal representation and consultation is 

available. Commenters also stated that 

local representatives of the Office need 

to have an attorney present when 

participating in legal proceedings such 

as depositions and hearings. 

Response: We appreciate support for 

§ 1324.15(j). ACL will defer to the 

Ombudsman and the attorneys it 

chooses to work with on specific 

matters related to representation. 

Comment: Many commenters 

expressed strong support for clarifying 

language at § 1324.15(k) that defines the 

expectations for the State agency to 

provide critical information for the 

Ombudsman to manage the fiscal 

components of the Ombudsman 

program efficiently and effectively. One 

commenter noted that the revision will 

help eliminate confusion and disparities 

around the country. Another 

recommended adding a requirement for 

the Ombudsman program manager of 

the local Ombudsman entity to approve 

initial budgets, expenditures, and 

changes and to certify that the manager 

has been involved in and approved 

expenditures as well as being provided 

with access to fiscal information 

throughout the year. 

Response: We believe that the 

recommendation regarding § 1324.15(k) 

is addressed in § 1324.11(e)(1)(vi) and in 

§ 1324.13(f), which discuss policies and 

procedures and fiscal responsibility. We 

decline to make the change. 

§ 1324.17 Responsibilities of Agencies 

Hosting Local Ombudsman Entities 

We did not propose any changes to 

§ 1324.17, which sets forth the 

responsibilities of agencies hosting local 


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347 Id. section 3058g(f). 

348 42 U.S.C. 1396–1396v. 

349 42 U.S.C. 3058g(f)(1)(C). 

350 42 U.S.C. 3058g. 

351 42 U.S.C. 3002. 

352 42 U.S.C. 3058i. 

353 Id. section 3058i(c), (d), (e). 

Ombudsman entities for the personnel 

management policies and procedures. 

This section prohibits host agencies 

from establishing policies and 

procedures that prohibit the 

representative of the Office from 

performing their duties as authorized by 

law. 

Comment: A few commenters 

expressed concern that some local host 

agencies do not support representatives 

of the Office performing systems 

advocacy and recommended explicit 

language to ensure that local 

representatives of the Office are 

insulated from interference. 

Response: As noted above, § 1324.17 

prohibits policies and procedures that 

would interfere with the representative 

of the Office’s performance of their 

duties. Section 1324.11(e)(5) discusses 

the duty to engage in systems advocacy. 

Further, § 1324.19(a)(7) requires 

representatives of the Office to carry out 

other activities that the Ombudsman 

determines to be appropriate. Taken 

together with §§ 1324.11 and 1324.13, 

which authorize the Ombudsman to 

make determinations and establish 

positions of the Office, these sections 

support engaging in systems advocacy 

related to the determinations and 

positions established by the 

Ombudsman. The ACL Office of LongTerm Care Ombudsman Programs learns 

about these types of program barriers 

through technical assistance and review 

of State Ombudsman annual reports. As 

needed, these issues are addressed 

through additional technical assistance, 

training, and requests for corrective 

action. 

§ 1324.19 Duties of the Representatives 

of the Office 

This section addresses the duties of 

the representatives of the Office and 

provides detailed instructions as to the 

processing of complaints by 

representatives of the Office. Minor 

revisions are made to § 1324.19(b)(2)(ii) 

and (b)(5) for clarity. 

Comment: One commenter 

recommended editing § 1324.19(a)(7) to 

ensure that representatives of the Office 

are not required to perform activities 

that are inconsistent with the program 

requirements. 

Response: We have accepted the 

comment. 

Comment: One commenter requested 

that we clarify that providing consent to 

complaint processing includes nonverbal consent. 

Response: The rule allows consent to 

be provided orally, visually, or using 

auxiliary aids and services. ACL intends 

that visual or assisted communication 

includes non-verbal forms of 

communication, and we have finalized 

the rule as written. 

Comment: One commenter identified 

various mechanisms that authorize an 

individual to serve as a representative 

for a resident and suggested the 

Ombudsman be required to provide 

guidance to representatives of the Office 

about these mechanisms. 

Response: We thank the commenter 

for the suggestion. ACL training 

standards already require training about 

the role of resident representatives, 

resident decision-making supports and 

options, State laws on third-party 

decision makers, communication with 

resident representatives, and 

ascertaining the extent of the resident 

representative’s authority. 

§ 1324.21 Conflicts of Interest 

Section 712(f) of the Act sets forth 

requirements related to individual and 

organizational COI, and § 1324.21 

implements the statutory provision. COI 

provisions promote credibility and 

effectiveness of the Ombudsman 

program.347

Section 1324.21(a) sets out as 

organizational conflicts the placement 

of an Ombudsman program in specified 

organizations. These include an 

organization that is responsible for 

licensing, surveying, or certifying longterm care services, including facilities; 

that provides long-term services and 

supports under a Medicaid waiver or a 

Medicaid State plan; that conducts 

preadmission screening for long-term 

care facility admissions; that provides 

long-term care coordination or case 

management services in settings that 

include long-term care facilities; that 

sets reimbursement rates for long-term 

care services; or that is responsible for 

eligibility determinations for the 

Medicaid program carried out under 

title XIX of the Social Security Act.348

We make minor clarifying changes to 

§ 1324.21(b)(3). We remove the last 

sentence of § 1324.21(b)(5), which 

repeats language included in 

§ 1324.21(b)(3). 

We clarify in § 1324.21(c) situations 

that create an individual COI, consistent 

with section 712(f)(1)(C) of the Act.349

Comment: Most commenters 

expressed support for aligning the 

regulations regarding COI with the 

underlying statutory provisions. One 

expressed concern about separating 

Ombudsman program staff from agency 

staff serving people with greatest 

economic or social need, noting that 

such separation increases the difficulty 

of all staff to understand and benefit 

from the valuable role of the 

Ombudsman program. Another 

commented that it is acceptable for 

Ombudsman programs and APS to be in 

the same agency with appropriate 

firewalls. One commenter 

recommended adding a definition of 

long-term care services and noted that 

the expanded list could narrow the list 

of entities willing to house the program 

in a decentralized model. 

Response: As stated, § 1324.21 is 

consistent with the COI provisions in 

section 712 of the Act.350 We will 

update our sub-regulatory guidance as 

State agencies and Ombudsman 

programs work to implement the 

requirements. We refer commenters to 

section 102 of the Older Americans Act 

and § 1324.1 for definitions.351

B. New Provisions Added To Clarify 

Responsibilities and Requirements 

Under Allotments for Vulnerable Elder 

Rights Protection Activities 

Subpart B—Programs for Prevention of 

Elder Abuse, Neglect, and Exploitation 

§ 1324.201 State Agency 

Responsibilities for the Prevention of 

Elder Abuse, Neglect, and Exploitation 

Title VII, chapter 3 of the Act sets 

forth requirements that State agencies 

must meet with respect to the 

development and enhancement of 

programs to address elder abuse, 

neglect, and exploitation.352 New 

§ 1324.201 clarifies that as a condition 

of receiving Federal funds under this 

chapter State agencies must comply 

with all applicable provisions of the 

Act, including those of section 721(c), 

(d), (e), as well as with all other 

applicable Federal requirements.353

Comment: ACL received comments on 

this section supportive of the addition. 

They also recommended that ACL 

consider the prevalence of elder abuse 

within LGBTQI+ and HIV positive 

communities, including residents of 

long-term care facilities. One 

commenter recommended that State 

agencies partner with and support State 

and Tribal elder justice coalitions to 

ensure coordination and guidance from 

interested parties in development of the 

elder justice system, dissemination of 

information and educational resources, 

and to provide policy consultation and 

research. 

Response: ACL appreciates the 

support. Section 721 of the Act requires 


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354 Id. section 3058i. 

355 42 U.S.C. 3058j. 

356 42 U.S.C. 3032i. 

357 42 U.S.C. 3058j. 358 Id. 

coordination, and ACL has elected not 

to repeat statutory language.354

Subpart C—State Legal Assistance 

Development 

§ 1324.301 Definitions 

New § 1324.301 states definitions set 

forth in § 1321.3 apply to subpart C, and 

terms used in subpart C but not 

otherwise defined will have the 

meanings ascribed to them in the Act. 

§ 1324.303 Legal Assistance Developer 

We add a new regulation under Title 

VII, § 1324.303 to implement section 

731 of the Act regarding the position of 

Legal Assistance Developer (LAD).355

The State agency designates the LAD 

and describes the office and its duties as 

well as activities in the State plan. The 

regulation sets forth the duties of the 

LAD, including training and technical 

assistance to legal assistance providers 

and coordination with the Ombudsman 

program. The final rule includes COI 

prohibitions, including a prohibition 

against undertaking responsibilities that 

might compromise the performance of 

duties as LAD. COI may arise if the LAD 

serves as the director of the APS 

program, legal counsel to the 

Ombudsman program, or counsel or a 

party to administrative appeals related 

to long-term care settings. COI may also 

arise, for example, if the LAD serves as 

the administrator of a public 

guardianship program; hearing officer in 

Medicaid appeals related to LTSS 

delivered under Medicaid authorities 

including waiver programs and 

Medicaid State plan, and/or nursing 

home eligibility; or serves as the 

Ombudsman. 

The LAD oversees advice, training, 

and technical assistance support for the 

provision of legal assistance provided 

by the State agency; coordinates with all 

legal assistance and representation for 

all priority areas described in the Act; 

and coordinates with the legal 

assistance resource center established 

pursuant to section 420 of the Act.356

Comment: Section 1324.303 sets forth 

the requirements for the LAD, pursuant 

to section 731 of the OAA.357 Several 

commenters were appreciative of the 

clarification regarding the roles and 

responsibilities of the LAD. Most, 

however, discussed challenges facing 

the position, including a lack of 

adequate funding and its designation as 

a part-time position. Some described the 

LAD as wearing many hats and noted 

that many LADs are not lawyers, 

potentially hindering their ability to 

support the needs of the legal assistance 

program, including support for legal 

assistance and elder rights education, 

and coordination with the Ombudsman 

program and APS. One commenter 

stated that it is a misnomer to designate 

subpart C of the regulations as a State 

Legal Assistance Development Program, 

since the Act refers only to the 

designation of a person as LAD, and to 

the optional activities a State agency 

may choose to have the LAD undertake. 

Additionally, most LAD positions are 

not full-time, and section 731 of the Act 

only refers to an individual working as 

the LAD. Commenters requested that the 

regulations require the LAD to be a fulltime position staffed by an attorney. 

Response: ACL appreciates the 

comments. It is our intent to set out 

expectations for the duties of the LAD, 

including coordination of the provision 

of legal assistance, consistent with the 

provisions of the Act. However, it is 

outside the scope of the regulations to 

address funding issues. We also cannot 

mandate that the LAD be a full-time 

position and/or staffed by an attorney. 

Nevertheless, we remind State agencies 

that § 1324.303(b) requires them to 

ensure that the LAD has the knowledge, 

resources, and capacity to carry out the 

functions of the position. The Act does 

not require professional qualifications 

for the individual a State agency 

designates as the LAD, nor does the Act 

require, as it does for other statutorily 

designated positions, such as the 

Ombudsman, that the LAD be a fulltime position. Accordingly, these 

matters are beyond the scope of our 

regulatory authority. 

We have made one change to the 

regulatory text in response to the 

comments. Given that section 731 of the 

OAA 358 requires the State agency to 

provide the assistance of an individual, 

rather than a program, we have 

modified the title of subpart C of these 

regulations to State Legal Assistance 

Development. The title mirrors the title 

of section 731 of the OAA. 

Comment: Commenters appreciated 

that § 1324.303(a)(4)(ii) requires LADs to 

promote alternatives to guardianship. 

One commenter noted that supported 

decision making can be used both 

formally through contractual agreement 

and informally. The commenter 

recommended that the section refer to 

supported decision making, rather than 

supported decision making agreements 

as the proposed regulatory text reads. 

Response: ACL accepts the comment. 

ACL agrees that decision supports are 

available through a range of tools and 

approaches and each adult has the right 

to determine which tool or approach 

suits their needs, or to determine that 

they do not want to adopt such a tool. 

We refer to all such tools and 

approaches as decision supports. 

Comment: Proposed § 1324.303(d) 

defines standards to address COI. One 

commenter objected to these provisions 

related to the legal assistance developer, 

which ‘‘stringently prohibit ‘dual 

hatting’ of the LAD positions with other 

responsibilities,’’ as being unduly 

burdensome, given the lack of dedicated 

funding authorized in the Act for the 

position. The same commenter was 

concerned that the lack of dedicated 

funding made it cost-prohibitive for the 

LAD to carry out the roles and 

responsibilities set forth in the 

regulation. 

Response: We do not prohibit LADs 

from assuming additional functions, as 

long as these functions do not pose 

actual or perceived COI. For the reasons 

stated earlier, we believe that the COI 

provisions are necessary to protect the 

interests of older people and the 

integrity of the LAD position. We expect 

State agencies to include their conflict 

mitigation strategies for this position in 

their policies and procedures. State 

agencies may also review and prioritize 

the roles and responsibilities of the LAD 

position to meet the needs of the State, 

provided that their priorities are clearly 

described in the State plan. 

III. Required Regulatory Analyses 

Comment: ACL received several 

comments indicating concerns with 

implementation costs and 

administrative burden in implementing 

the final rule, as well as concerns 

regarding ongoing costs to monitor 

compliance with the final rule. Some 

State agencies commented that they 

anticipate that consultants and/or 

additional staff will need to be hired 

and/or that changes will need to be 

made to information technology 

systems. Some State agencies asserted 

that ACL has greatly underestimated 

both the cost, and the amount of time 

needed, to come into compliance with 

the rule; some have included cost 

estimates in their comments of 

hundreds of thousands dollars or more 

(in some cases these are expressed as 

annual costs and not so in others). 

Response: For the reasons discussed 

below, we maintain the Regulatory 

Impact Analysis (RIA) as proposed, 

except that we have updated the 

analysis with more recent data. 

As noted in the RIA, the most recent 

reauthorization of the OAA was enacted 

during Federal Fiscal Year 2020, and the 

baseline for the analysis was Federal 


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Fiscal Year 2019. Most of the changes to 

45 CFR parts 1321, 1322, and 1324 

modernize the OAA regulations to bring 

them into conformity with 

reauthorizations of the OAA that were 

enacted prior to the 2020 

reauthorization and to provide clarity of 

administration for ACL and its grantees 

with respect to aspects of the OAA that 

were enacted under previous 

reauthorizations. A limited number of 

substantive changes were made by the 

2020 reauthorization to the 

implementation of programs by State 

agencies and area agencies, and as more 

particularly discussed in the RIA, we 

anticipate that any costs to a State 

agency associated with these changes 

will be de minimis. We also note that 

public comments that provided Statespecific cost estimates to implement and 

administer the final rule did not clearly 

differentiate between costs attributable 

to the statute and the incremental costs 

of implementing the final rule, which 

makes it difficult to incorporate this 

information in the final RIA. 

In addition to areas where we better 

align regulation with statute, as also 

described in more detail in the RIA 

below, the final rule benefits State 

agencies by modernizing the regulatory 

text to provide greater flexibility to State 

agencies and area agencies and to reflect 

ongoing feedback from interested parties 

and responses to our RFI in areas where 

our prior regulations did not address the 

evolving needs of Title III, VI, and VII 

grantees and the older adults and family 

caregivers they serve. 

While State agencies and AAAs 

should review their practices, policies, 

and procedures to ensure they comply 

with the final rule, we note again that 

a majority of this rule updates prior 

regulations to conform to longstanding 

statutory requirements. State agencies 

and AAAs also already should be 

engaging in monitoring activities for 

compliance with the Act. In addition, 

the final rule grants significant 

discretion to the State or area agency (as 

applicable) in how to implement many 

provisions. Similarly, a majority of the 

provisions of this final rule that apply 

to Title VI grantees and to service 

providers bring the prior regulation into 

conformity with what is already 

required by the Act. 

However, in consideration of 

comments related to the time required 

for implementation of the rule, we have 

decided to delay the compliance date of 

this rule until October 1, 2025. This 

should give all regulated entities 

sufficient time to come into compliance 

with these regulations. It will also allow 

time for State and area plans on aging 

that will be effective as of October 1, 

2025, to incorporate the requirements of 

this final rule into new or amended 

plans. As noted previously, State 

agencies that need additional time to 

comply with one or more provisions of 

the rule may submit a request to 

proceed under a corrective action plan. 

A request should include the reason the 

State needs additional time, the steps 

the State will take to reach full 

compliance, and how much additional 

time the State anticipates needing. The 

corrective action plan process is 

intended to be highly collaborative and 

flexible. Under a corrective action plan, 

States agencies and ACL will jointly 

identify progress milestones and a 

feasible timeline for the State agency to 

come into compliance with the 

provision(s) of the rule incorporated 

into the corrective action plan. State 

agencies must make a good faith effort 

at compliance to continue operating 

under a corrective action plan. Requests 

for corrective action plans will be 

reviewed after April 1, 2024, and ACL 

will provide guidance on this process 

after this rule takes effect. 

Comment: One commenter proposed 

allowing State agencies to request 

waivers from having to meet the 

requirements set forth in the final rule 

if they could otherwise meet the intent 

of the Act. 

Response: ACL has determined not to 

make any changes to the regulatory text 

in response to this comment. Most of 

the changes to 45 CFR part 1321 

modernize the OAA regulations to bring 

them into conformity with the 

requirements of the OAA. Accordingly, 

we decline to allow State agencies to 

request waivers from meeting provisions 

in the final rule (unless otherwise 

explicitly allowed). 

Comment: ACL received a comment 

expressing concern that the rule may 

have Federalism implications. 

Response: Pursuant to Executive 

Order 13132, ACL has considered the 

impact of the final rule on State and 

local governments. Our analysis of the 

potential federalism implications of the 

final rule is set forth in Section III.C 

below. 

Regulatory Impact Analysis 

1. Overall Impact 

We have examined the impacts of this 

rule as required by Executive Order 

12866 on Regulatory Planning and 

Review (September 30, 1993), Executive 

Order 13563 on Improving Regulation 

and Regulatory Review (January 18, 

2011), Executive Order 14094 entitled 

‘‘Modernizing Regulatory Review’’ 

(April 6, 2023), the Regulatory 

Flexibility Act (RFA) (September 19, 

1980, Pub. L. 96–354), section 1102(b) of 

the Social Security Act (42 U.S.C. 

1302(b)), section 202 of the Unfunded 

Mandates Reform Act of 1995 (UMRA; 

March 22, 1995; Pub. L. 104–4), 

Executive Order 13132 on Federalism 

(August 4, 1999), and the Congressional 

Review Act (CRA; 5 U.S.C. 804(2)). 

Executive Orders 12866 and 13563 

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). The Executive Order 14094 

entitled ‘‘Modernizing Regulatory 

Review’’ (hereinafter, the Modernizing 

E.O.) amends section 3(f) of Executive 

Order 12866 (Regulatory Planning and 

Review). The amended section 3(f) of 

Executive Order 12866 defines a 

‘‘significant regulatory action’’ as an 

action that is likely to result in a rule: 

(1) having an annual effect on the 

economy of $200 million or more in any 

1 year (adjusted every 3 years by the 

Administrator of the Office of 

Management and Budget’s (OMB) Office 

of Information and Regulatory Affairs 

(OIRA) for changes in gross domestic 

product), or adversely affect in a 

material way the economy, a sector of 

the economy, productivity, competition, 

jobs, the environment, public health or 

safety, or State, local, territorial, or tribal 

governments or communities; (2) 

creating a serious inconsistency or 

otherwise interfering with an action 

taken or planned by another agency; (3) 

materially altering the budgetary 

impacts of entitlement grants, user fees, 

or loan programs or the rights and 

obligations of recipients thereof; or (4) 

raise legal or policy issues for which 

centralized review would meaningfully 

further the President’s priorities or the 

principles set forth in this Executive 

order, as specifically authorized in a 

timely manner by the Administrator of 

OIRA in each case. 

A RIA must be prepared for 

significant rules. Based on our 

estimates, OIRA has determined that 

this rulemaking is ‘‘significant’’ per 

section 3(f) of Executive Order 12866. 

Therefore, OMB has reviewed these 

proposed regulations, and the 

Departments have provided the 

following assessment of their impact. 

Pursuant to Subtitle E of the Small 

Business Regulatory Enforcement 

Fairness Act of 1996 (also known as the 

Congressional Review Act, 5 U.S.C 801 

et seq.) OIRA has determined that this 

rule does not meet the criteria set forth 

in 5 U.S.C. 804(2). 


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359 42 U.S.C. 3058i. 

1. Summary of Costs and Transfers 

This analysis describes costs and 

transfers under this final rule and 

quantifies several categories of costs to 

grantees (State agencies under Title III 

and Title VII and Tribal organizations 

and Hawaiian Native grantees under 

Title VI) and subrecipients (area 

agencies and service providers under 

Title III and where applicable, Title VII). 

Specifically, we quantify costs 

associated with grantees and 

subrecipients revising policies and 

procedures, conducting staff training, 

and revising State plan documentation 

accessibility practices. As discussed in 

greater detail in this analysis, we 

estimate that the final rule will result in 

one-time costs of approximately $17.43 

million, including costs associated with 

covered entities revising policies and 

procedures, and costs associated with 

training. 

The analysis also includes a 

discussion of costs we do not quantify, 

and a discussion of the potential 

benefits under the rule that we similarly 

do not quantify. 

Baseline Conditions and Changes Due to 

Reauthorization 

The most recent reauthorization of the 

OAA was enacted during Federal Fiscal 

Year (FFY) 2020; therefore, the baseline 

used for the analysis is FFY 2019. A 

main impact of the 2020 reauthorization 

of the OAA was to increase the 

authorized appropriations available to 

be distributed to the State agencies for 

the implementation of programs and 

services under Titles III, VI, and VII. A 

limited number of substantive changes 

were made by the 2020 reauthorization 

to the implementation of programs by 

State agencies and area agencies, 

including: requiring outreach efforts to 

Asian-Pacific American, Native 

American, Hispanic, and AfricanAmerican older individuals, and older 

sexual and gender minority populations 

and the collection of data with respect 

thereto; requiring State agencies to 

simplify the process for transferring 

funds for nutrition services to reduce 

administrative barriers and direct 

resources to where the greatest need is 

for such services; broadening allowable 

services under Title III, part B, such as 

screening for traumatic brain injury and 

the negative effects of social isolation; 

clarifying that a purpose of the Title III, 

part C program is to reduce 

malnutrition; clarifying the allowability 

of reimbursing volunteer Ombudsman 

representatives under Title VII for costs 

incurred; and expanding the examples 

of allowable elder justice activities 

under section 721 359 to include 

community outreach and education as 

well as the support and implementation 

of innovative practices, programs, and 

materials in communities to develop 

partnerships for the prevention, 

investigation, and prosecution of abuse, 

neglect, and exploitation. 

The OAA initially was passed in 

1965. The prior regulations for programs 

authorized under the OAA are from 

1988 and have not been substantially 

altered since that time (other than 

portions of 45 CFR part 1321 and 45 

CFR part 1324 regarding the State LongTerm Care Ombudsman Program, which 

were promulgated in 2015). Following 

its initial passage, the OAA has been 

reauthorized and amended sixteen times 

prior to the 2020 reauthorization, 

including five times since the 

regulations were promulgated in 1988. 

Many changes have been made in the 

implementation of the OAA since 1988 

as a result of these reauthorizations. 

State agencies, area agencies, and Title 

VI grantees should already be aware of 

programmatic and fiscal requirements in 

the reauthorizations and should have 

established policies and procedures to 

implement them. Accordingly, 

substantially all of the changes to 45 

CFR parts 1321, 1322, and 1324 

modernize the OAA regulations to bring 

them into conformity with 

reauthorizations of the OAA that were 

enacted prior to the 2020 

reauthorization and provide clarity of 

administration for ACL and its grantees 

with respect to aspects of the OAA that 

were enacted under previous 

reauthorizations. 

In addition to areas where we better 

align regulation with statute, we make 

modifications to regulatory text that 

modernize our rule to provide greater 

flexibility to State agencies and area 

agencies and to reflect ongoing feedback 

from interested parties and responses to 

our RFI in areas where our prior 

regulations did not address the evolving 

needs of Title III, VI, and VII grantees 

and the older adults and family 

caregivers they serve. For example, we 

modernize our nutrition regulations to 

better support grantees’ efforts to meet 

the needs of older adults. Our previous 

sub-regulatory guidance has indicated 

that meals are either consumed on-site 

at a congregate meal setting or delivered 

to a participant’s home. This previous 

guidance does not take into account 

those who may leave their homes to 

pick up a meal but are not able to 

consume the meal in the congregate 

setting for various reasons, including 

safety concerns such as those 

experienced during the COVID–19 PHE. 

The COVID–19 PHE brought to light 

limitations in our prior nutrition 

regulations, which we have addressed 

in § 1321.87 to allow for shelf-stable, 

pick-up, carry-out, drive-through, or 

similar meals where a participant will 

be able to collect their meal from a 

congregate site and return to the 

community off-site to enjoy it. Our final 

rule is a direct response to feedback 

from interested parties, including as 

gathered from the RFI and NPRM 

comment period, and appropriately 

reflects the evolving needs of both 

grantees and OAA participants. 

Another example of a modification to 

regulatory text that modernizes our rule 

is the new definition of ‘‘greatest 

economic need.’’ Focusing OAA 

services toward individuals who have 

the greatest economic need is one of the 

basic tenets of the OAA. The definition 

of ‘‘greatest economic need’’ in the OAA 

incorporates income and poverty status. 

However, the definition in the OAA is 

not intended to preclude State agencies 

from taking into consideration 

populations that experience economic 

need due to other causes. A variety of 

local conditions and individual 

situations, other than income, could 

factor into an individual’s level of 

economic need. State agencies and 

AAAs are in the best position to 

understand the conditions and factors in 

their State and local areas that 

contribute to individuals falling within 

this category. Accordingly, this 

definition will allow State agencies and 

AAAs to make these determinations. 

A detailed discussion of costs and 

transfers associated with the rule 

follows. 

i. 2020 Reauthorization 

a. New Requirements for State Agencies 

and Area Agencies 

The 2020 reauthorization imposed the 

following new requirements on 

grantees: required outreach efforts to 

Asian-Pacific American, Native 

American, Hispanic, and AfricanAmerican older individuals, and older 

lesbian, gay, bisexual, and transgender 

(LGBT) populations and the collection 

of data with respect thereto; required 

State agencies to simplify the process 

for transferring funds for nutrition 

services to reduce administrative 

barriers and direct resources to where 

the greatest need is for such services; 

and clarified that reducing malnutrition 

is a purpose of the OAA Title III, part 

C program. 

We do not associate any additional 

costs for the agencies with respect to 

these requirements. The agencies were 


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11648 Federal Register / Vol. 89, No. 31 / Wednesday, February 14, 2024 / Rules and Regulations 

360For example, in its plan on aging that was 

effective October 1, 2018, the California State 

agency noted a focus on developing strategies to 

better serve LGBTQI+ populations; the Ohio State 

agency sought input regarding the needs of 

LGBTQI+ populations in connection with the 

preparation of its State plan on aging for FFY 2019– 

2022; and the New York State agency’s plan on 

aging for FFY 2019–2023 references ongoing efforts 

to work with area agencies on aging to conduct 

outreach to the LGBTQI+ community. 361U.S. Dep’t. of Labor, Bureau of Labor 

Statistics, Occupational Employment and Wages, 

43–1011 First-Line Supervisors of Office and 

Administrative Support Workers (May 2022), 

https://www.bls.gov/oes/current/oes431011.htm. 

362This hourly cost was determined by 

multiplying the median wage of $29.51 by 2. 

363U.S. Dep’t. of Labor, Bureau of Labor 

Statistics, Occupational Employment and Wages, 

11–1021 General and Operations Managers (May 

2022), https://www.bls.gov/oes/current/ 

oes111021.htm. 

364This hourly cost was determined by 

multiplying the median wage of $47.16 by 2. 

required to conduct outreach to 

minority populations prior to the 2020 

reauthorization, and State agencies 

already have been reaching out to the 

LGBTQI+ population.360 For those 

agencies that have not been reaching out 

to LGBTQI+ communities, we believe 

any additional cost to conduct outreach 

to this population will be de minimis, 

as they already have processes in place 

to reach out to underserved populations. 

The data collection cost likewise will be 

minimal as agencies already have data 

collection systems and practices in 

place. 

The cost to State agencies to comply 

with the requirement that they simplify 

the process for transferring funds for 

nutrition services to reduce 

administrative barriers and direct 

resources to where the greatest need is 

for such services is not quantifiable. 

Each State agency must comply with its 

State-level procurement requirements, 

and it is not possible for us to determine 

what any State agency may be able to 

change in this regard or at what cost. It 

is in each State agency’s interest to 

improve this process for transferring 

nutrition services funds, and we believe 

that State agencies engage in ongoing 

efforts to improve their fiscal 

management processes generally, within 

allowable parameters. Accordingly, we 

anticipate that any costs to a State 

agency associated with this requirement 

will be de minimis. 

We do not associate any costs to State 

agencies, AAAs, or Title VI grantees 

with respect to the clarification that a 

purpose of the Title III, part C program 

is to reduce malnutrition. Grantees 

already were screening for older adults 

who are at high nutrition risk and have 

been offering nutrition counseling and 

nutrition education, as appropriate, and 

this clarification is not expected to 

impose additional costs on OAA 

grantees or subrecipients. 

ii. Final Rule 

a. Revising Policies and Procedures 

This analysis anticipates that the final 

rule will result in one-time costs to State 

agencies, AAAs, service providers, and 

Title VI grantees to revise policies and 

procedures. The obligations of State 

agencies and AAAs under the OAA are 

more extensive than are those of Title VI 

grantees under the OAA. Accordingly, 

the Title III rule is considerably more 

extensive than is the Title VI rule, and 

we address State agencies and AAAs 

separately from Title VI grantees. We 

also address service providers 

separately, as we anticipate that the 

scope of the review needed for service 

providers will be narrower than that 

needed for State agencies and AAAs. 

In addition to changes to the existing 

regulations, we add several new 

provisions to the regulations in the 

following areas: 45 CFR part 1321 (Title 

III): State Agency Responsibilities, Area 

Agency Responsibilities, Service 

Requirements, Emergency and Disaster 

Requirements; 45 CFR part 1322 (Title 

VI): Service Requirements, Emergency 

and Disaster Requirements; and 45 CFR 

part 1324 (Title VII): Programs for 

Prevention of Elder Abuse, Neglect, and 

Exploitation and State Legal Assistance 

Development. However, substantially all 

of these new provisions update the OAA 

regulations to bring them into 

conformity with reauthorizations of the 

OAA that were enacted prior to the 2020 

reauthorization and provide clarity of 

administration for ACL and its grantees 

with respect to aspects of the OAA that 

were enacted under previous 

reauthorizations. We associate one-time 

costs to State agencies, AAAs, service 

providers, and Title VI grantees to 

update their policies and procedures 

and to train employees on the updated 

policies and procedures, as discussed 

below. State agencies, AAAs, service 

providers, and Title VI grantees already 

should be aware of these requirements 

and already should have established 

policies and procedures in place. 

Accordingly, we otherwise associate no 

cost to them as a result of these new 

provisions. 

State Agencies and AAAs 

In clarifying requirements for State 

agency and AAA policies and 

procedures under the OAA, ACL 

anticipates that all 56 State agencies and 

615 AAAs (671 aggregate State agencies 

and AAAs) will revise their policies and 

procedures under the final rule, with 

half of these State agencies or AAAs 

requiring fewer revisions. We estimate 

that State agencies or AAAs with more 

extensive revisions will spend forty-five 

(45) total hours on revisions per agency. 

Of these, forty (40) hours in the 

aggregate will be spent by one or more 

mid-level manager(s) equivalent to a 

first-line supervisor (U.S. Bureau of 

Labor Statistics (BLS) Occupation code 

43–1011),361 at a cost of $59.02 per hour 

after adjusting for non-wage benefits 

and indirect costs,362 while an average 

of five (5) hours will be spent by 

executive staff equivalent to a general 

and operations manager (BLS 

Occupation code 11–1021),363 at a cost 

of $94.32 per hour after adjusting for 

non-wage benefits and indirect costs.364

For State agencies or AAAs with less 

extensive revisions, we assume that 

twenty-five (25) total hours will be 

spent on revisions per agency. Of these, 

twenty (20) hours will be spent by one 

or more mid-level manager(s), and five 

(5) hours will be spent by executive 

staff. 

We monetize the time that will be 

spent by State agencies and AAAs on 

revising policies and procedures by 

estimating a total cost per entity as 

follows: 

336 State agencies/AAAs—more extensive revisions: 

First-Line Supervisor: 40 hours @ $59.02/hr: .......................................................................................................................... $2,360.80 

General and Operations Manager: 5 hours @ $94.32/hr: ........................................................................................................ $471.60 

$2,832.40 per 

agency. 


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365U.S. Dep’t. of Labor, Bureau of Labor 

Statistics, Occupational Employment and Wages, 

43–1011 First-Line Supervisors of Office and 

Administrative Support Workers (May 2022), 

https://www.bls.gov/oes/current/oes431011.htm. 

366This hourly cost was determined by 

multiplying the median wage of $29.51 by 2. 

367U.S. Dep’t of Labor, Bureau of Labor Statistics, 

Occupational Employment and Wages, 11–1021 

General and Operations Managers (May 2022), 

https://www.bls.gov/oes/current/oes111021.htm. 368This hourly cost was determined by 

multiplying the median wage of $47.16 by 2. 

369U.S. Dep’t of Labor, Bureau of Labor Statistics. 

Occupational Employment and Wages, 43–1011 

First-Line Supervisors of Office and Administrative 

Support Workers (May 2022), https://www.bls.gov/ 

oes/current/oes431011.htm. 

370 Id. 

371These hourly costs were determined by 

multiplying the median wage of $29.51 by 2. 

335 State agencies/AAAs—less extensive revisions: 

First-Line Supervisor: 20 hours @ $59.02/hr: .......................................................................................................................... $1,180.40 

General and Operations Manager: 5 hours @ $94.32/hr: ........................................................................................................ $471.60 

$1,652.00 per 

agency. 

For the approximately 336 State 

agencies or AAAs with more extensive 

revisions, we estimate a cost of 

approximately $951,686.40. For the 335 

State agencies or AAAs with less 

extensive revisions, we estimate a cost 

of approximately $553,420.00. We 

estimate the total cost associated with 

revisions with respect to the final rule 

for State agencies and AAAs of 

$1,505,106.40. 

Service Providers 

According to data submitted to ACL 

by the State agencies, there were 17,438 

service providers during FFY 2021, and 

we use that figure for this analysis. We 

anticipate that all 17,438 service 

providers will review their existing 

policies and procedures to confirm that 

they comply the rule and will update 

their policies and procedures, as 

needed, in order to bring them into 

compliance. We estimate that the scope 

of the review needed for service 

providers will be narrower than that 

needed for State agencies and AAAs and 

will be limited to areas related to their 

provision of direct services, such as 

person-centered and trauma-informed 

services, eligibility for services, client 

prioritization, and client contributions. 

Like State agencies, AAAs and Title VI 

grantees, service providers already 

should be aware of the fiscal and 

programmatic changes that have been 

made to the OAA since 1988, and to the 

extent required, they already should 

have established policies and 

procedures with respect to the OAA 

requirements that apply to them. 

We estimate that service providers 

will spend seven (7) total hours on 

revisions per agency. Of these, five (5) 

hours in the aggregate will be spent by 

one or more mid-level manager(s) 

equivalent to a first-line supervisor (U.S. 

Bureau of Labor Statistics (BLS) 

Occupation code 43–1011),365 at a cost 

of $59.02 per hour after adjusting for 

non-wage benefits and indirect costs,366

while an average of two (2) hours would 

be spent by executive staff equivalent to 

a general and operations manager (BLS 

Occupation code 11–1021),367 at a cost 

of $94.32 per hour after adjusting for 

non-wage benefits and indirect costs.368

We monetize the time spent by 

service providers on revising policies 

and procedures by estimating a total 

cost per entity as follows: 

First-Line Supervisor: 5 hours @ $59.02/hr: ................................................................................................................................... $295.10 

General and Operations Manager: 2 hours @ $94.32/hr: ................................................................................................................ 188.64 

$483.74 per 

agency. 

We estimate the total cost associated 

with revisions with respect to the final 

rule for 17,438 service providers of 

$8,435,458.12. 

Title VI Grantees 

This analysis anticipates that the final 

rule also will result in one-time costs to 

Title VI grantees to revise policies and 

procedures. In clarifying requirements 

for Title VI grantee policies and 

procedures under the OAA, ACL 

anticipates that all 290 Title VI grantees 

will revise their policies and procedures 

under the final rule, with approximately 

one-third of these Title VI grantees 

requiring fewer revisions. We estimate 

that Title VI grantees with more 

extensive revisions will spend thirty 

(30) total hours on revisions per agency. 

All of these 30 hours will be spent by 

a mid-level manager equivalent to a 

first-line supervisor (U.S. Bureau of 

Labor Statistics (BLS) Occupation code 

43–1011),369 at a cost of $59.02 per hour 

after adjusting for non-wage benefits 

and the indirect costs. For Title VI 

grantees with less extensive revisions, 

we assume fifteen (15) total hours spent 

on revisions per agency. All of these 

hours will be spent by a mid-level 

manager equivalent to a first-line 

supervisor (U.S. Bureau of Labor 

Statistics (BLS) Occupation code 43– 

1011),370 at a cost of $59.02 per hour 

after adjusting for non-wage benefits 

and indirect costs.371

We monetize the time spent by Title 

VI grantees on revising policies and 

procedures as follows: 

196 Title VI grantees—more extensive revisions:.

First-Line Supervisor: 30 hours @ $59.02/hr: .................................................................................................... $1,770.60 per grantee. 

94 Title VI grantees—less extensive revisions: 

First-Line Supervisor: 15 hours @ $59.02/hr: .................................................................................................... $885.30 per grantee. 

For the approximately 196 Title VI 

grantees with more extensive revisions, 

we estimate a cost of approximately 

$347,037.60. For the 94 Title VI grantees 

with less extensive revisions, we 

estimate a cost of approximately 

$83,218.20. We estimate the total cost 

associated with revisions of policies and 

procedures for Title VI grantees with 

respect to the final rule of $430,255.80. 

The above estimates of time and 

number of State agencies, AAAs and 

Title VI grantees that will revise their 

policies under the regulation are 

approximate estimates based on ACL’s 


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372U.S. Dep’t of Labor, Bureau of Labor Statistics. 

Occupational Employment and Wages, 43–1011 

First-Line Supervisors of Office and Administrative 

Support Workers (May 2022), https://www.bls.gov/ 

oes/current/oes431011.htm.. 

373 Id. 

374These hourly costs were determined by 

multiplying the median wage of $29.51 by 2. 

375U.S. Dep’t. of Labor, Bureau of Labor 

Statistics, Occupational Employment and Wages, 

11–9151 Social and Community Service Managers 

(May 2022), https://www.bls.gov/oes/current/ 

oes119151.htm. 

376This hourly cost was determined by 

multiplying the median wage of $35.69 by 2. 

377U.S. Dep’t of Labor, Bureau of Labor Statistics, 

Occupational Employment and Wages, 13–1199 

Business Operations Sepcialists, All Other (May 

2022), https://www.bls.gov/oes/current/ 

oes131199.htm. 

378This hourly cost was determined by 

multiplying the median wage of $36.53 by 2. 

extensive experience working with the 

agencies (including providing technical 

assistance), feedback and inquiries that 

we have received from State agencies, 

AAAs, and Title VI grantees, as well as 

ACL staff’s prior experience working 

with OAA programs at State agencies 

and AAAs. Due to variation in the types 

and sizes of State agencies, AAAs, and 

Title VI grantees, the above estimates of 

time and number of entities that will 

revise their policies under the 

regulation is difficult to calculate 

precisely. 

b. Training 

ACL estimates that State agencies, 

AAAs, service providers and Title VI 

grantees will incur one-time costs with 

respect to training or re-training 

employees under the final revised rule. 

For reasons similar to the discussion 

above with respect to revisions to 

policies and procedures, we address 

State agencies and AAAs separately 

from Title VI grantees. We also address 

service providers separately, as we 

anticipate that the training needed for 

service providers will be less extensive 

than that needed for State agencies and 

AAAs. 

State Agencies and AAAs 

Costs To Prepare and Conduct Trainings 

of Their Own Staff 

Consistent with our estimates relating 

to the number of agencies that will 

require extensive revision of their 

policies, we estimate that 50 percent of 

the State agencies and AAAs program 

management staff will require more 

extensive staff training regarding the 

rule. Based on our experience working 

with State agencies and AAAs, we 

estimate that, for State agencies and 

AAAs that need more extensive 

trainings, one (1) employee per agency, 

equivalent to a first-line supervisor (U.S. 

Bureau of Labor Statistics (BLS) 

Occupation code 43–1011) 372 will 

spend three (3) total hours to prepare 

the training, and five (5) hours to 

provide the training, at a cost of $59.02 

per hour after adjusting for non-wage 

benefits and indirect costs, and that for 

those needing less extensive trainings, 

one (1) employee per agency, equivalent 

to a first-line supervisor (U.S. Bureau of 

Labor Statistics (BLS) Occupation code 

43–1011) 373 will spend two (2) total 

hours to prepare the training, and two 

(2) hours to provide the training, at a 

cost of $59.02 per hour after adjusting 

for non-wage benefits and indirect 

costs.374

We monetize the time spent by State 

agencies and AAAs to prepare and 

conduct trainings for their own 

employees as follows: 

336 State agencies/AAAs—more extensive trainings: First-Line Supervisor: 8 hours @$59.02/hr: ...................... $472.16 per agency. 

335 State agencies/AAAs—less extensive trainings: First-Line Supervisor: 4 hours @$59.02/hr: ........................ $236.08 per agency 

For the approximately 336 State 

agencies or AAAs with more extensive 

needed training, we estimate a cost of 

approximately $158,645.76. For the 335 

State agencies or AAAs with less 

extensive training needs, we estimate a 

cost of approximately $79,086.80. We 

estimate the total cost associated with 

the preparation and conduct of trainings 

with respect to the final rule for State 

agencies and AAAs of $237,732.56. 

Costs To Receive Trainings by Their 

Own Staff 

As noted above, we estimate that 50 

percent of the State agencies and AAAs 

program management staff will require 

more extensive staff training regarding 

the rule. Based on our experience 

working with State agencies and AAAs, 

we estimate that State agencies and 

AAAs with more extensive trainings 

will spend five (5) total hours on 

trainings per agency, and that those 

with less extensive trainings will spend 

two (2) hours on trainings per agency. 

We estimate that five (5) employees per 

agency, equivalent to social and 

community service managers (BLS 

Occupation code 11–9151),375 will 

receive training at a cost of $71.38 per 

hour per employee after adjusting for 

non-wage benefits and indirect costs,376

and that one (1) employee per agency, 

equivalent to a business operations 

specialist (BLS Occupation code 13– 

1199),377 will receive training at a cost 

of $73.06 per hour after adjusting for 

non-wage benefits and indirect costs.378

We monetize the time spent in the 

receipt of trainings as follows: 

336 State agencies/AAAs—more extensive trainings: 

Social & Community Service Manager: 5 staff × 5 hours @$71.38/hr: .......................................................................................... $1,784.50 

Business Operations Specialist: 1 staff × 5 hours @$73.06/hr: ............................................................................................................. 365.30 

$2,149.80/ 

agency. 

335 State agencies/AAAs—less extensive trainings: 

Social & Community Service Manager: 5 staff × 2 hours @$71.38/hr: .......................................................................................... $713.80 

Business Operations Specialist: 1 staff × 2 hours @$73.06/hr: ...................................................................................................... 146.12. 

$859.92/ 

agency. 

For the approximately 336 State 

agencies or AAAs with more extensive 

trainings, we estimate a cost of 

approximately $722,332.80. For the 335 

State agencies or AAAs with less 

extensive trainings, we estimate a cost 

of approximately $288,073.20. We 

estimate the total cost associated with 

receipt of training by employees with 

respect to revisions to policies and 

procedures under the final rule of 

$1,010,406.00. 


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379U.S. Dep’t. of Labor, Bureau of Labor 

Statistics, Occupational Employment and Wages, 

43–1011 First-Line Supervisors of Office and 

Administrative Support Workers (May, 2022), 

https://www.bls.gov/oes/current/oes431011.htm. 

380This hourly cost was determined by 

multiplying the median wage of $29.51 by 2. 

381U.S. Dep’t. of Labor, Bureau of Labor 

Statistics, Occupational Employment and Wages, 

43–1011 First-Line Supervisors of Office and 

Administrative Support Workers (May, 2022), 

https://www.bls.gov/oes/current/oes431011.htm.. 

382This hourly cost was determined by 

multiplying the median wage of $29.51 by 2. 

383U.S. Dep’t. of Labor, Bureau of Labor 

Statistics, Occupational Employment and Wages, 

43–1011 First-Line Supervisors of Office and 

Administrative Support Workers (May, 2022), 

https://www.bls.gov/oes/current/oes431011.htm. 

384This hourly cost was determined by 

multiplying the median wage of 29.51 by 2. 

385U.S. Dep’t. of Labor, Bureau of Labor 

Statistics, Occupational Employment and Wages, 

11–9151 Social and Community Service Managers 

(May, 2022), https://www.bls.gov/oes/current/ 

oes119151.htm. 

386This hourly cost was determined by 

multiplying the median wage of $36.59 by 2. 

387U.S. Dep’t. of Labor, Bureau of Labor 

Statistics, Occupational Employment and Wages, 

43–1011 First-Line Supervisors of Office and 

Administrative Support Workers (May, 2022), 

https://www.bls.gov/oes/current/oes431011.htm. 

388 Id. 

389These hourly costs were determined by 

multiplying the median wage of $29.51 by 2. 

390U.S. Dep’t. of Labor, Bureau of Labor 

Statistics, Occupational Employment and Wages, 

11–9151 Social and Community Service Managers 

(May, 2022), https://www.bls.gov/oes/current/ 

oes119151.htm. 

Costs To Conduct Trainings of AAAs by 

State Agencies 

We estimate that each of the fortyseven (47) State agencies that have 

AAAs will conduct one (1) training for 

their AAAs. We estimate that two (2) 

State agency employees per agency, 

each equivalent to a first-line supervisor 

(U.S. Bureau of Labor Statistics (BLS) 

Occupation code 43–1011),379 will 

spend three (3) total hours to conduct 

the training, at a cost per employee of 

$59.02 per hour after adjusting for nonwage benefits and indirect costs.380 As 

the State agencies already will have 

created trainings for their own 

employees, we do not associate any 

costs with the creation of trainings for 

the AAAs. We monetize the time spent 

by the 47 State agencies to train AAAs 

by estimating a cost per agency of 

$354.12 (2 staff × 3 hours × $59.02/hr). 

We estimate the total cost to the State 

agencies to train AAAs to be $16,643.64. 

We estimate that each of the 615 

AAAs will arrange for two (2) AAA 

employees, each equivalent to a firstline supervisor (U.S. Bureau of Labor 

Statistics (BLS) Occupation code 43– 

1011),381 to attend the three (3) hour 

trainings conducted by the State agency, 

at a cost per employee of $59.02 per 

hour after adjusting for non-wage 

benefits and indirect costs.382 We 

monetize the time spent by the 615 

AAAs to attend the State agency 

trainings by estimating a cost per agency 

of $354.12 (2 staff × 3 hours × $59.02/ 

hr). We estimate the total cost associated 

to the AAAs to receive training from the 

State agencies to be $217,783.80. We 

estimate the total costs associated with 

the training by State agencies of AAAs 

to be $234,427.44. 

Service Providers 

Cost To Conduct Trainings 

We estimate that the 615 AAAs, as 

well as the 9 State agencies in single 

PSA States that do not have AAAs, will 

provide training to their service 

providers with respect to revisions to 

policies and procedures under the final 

rule. We estimate that two (2) AAA or 

State agency employees per agency, as 

applicable, each equivalent to a firstline supervisor (U.S. Bureau of Labor 

Statistics (BLS) Occupation code 43– 

1011),383 will spend two (2) total hours 

to conduct one (1) training, at a cost of 

$59.02 per hour after adjusting for nonwage benefits and indirect costs.384 As 

the State agencies and AAAs already 

will have created trainings for their own 

employees, we do not associate any 

costs with the creation of trainings for 

the service providers. We monetize the 

time spent by the 615 AAAs and the 9 

State agencies to train service providers 

by estimating a cost per agency of 

$236.08 (2 staff × 2 hours × $59.02/hr). 

We estimate the total cost associated 

with the conduct of trainings of service 

providers to be $147,313.92. 

Cost To Receive Training 

We estimate that all 17,438 service 

providers will receive training regarding 

revised policies and procedures in 

connection with the final rule. We 

estimate that two (2) employees per 

agency, equivalent to social and 

community service managers (BLS 

Occupation code 11–9151),385 will 

receive two (2) hours of training at a 

cost per employee of $71.38 per hour 

after adjusting for non-wage benefits 

and indirect costs.386

We monetize the time spent by 

service providers to receive training 

with respect to revised policies and 

procedures by estimating a total cost per 

entity of $285.52 (2 staff × 2 hours × 

$71.38/hr). We estimate the total cost 

associated with receipt of training with 

respect to the final rule for 17,438 

service providers of $4,978,897.76. 

Title VI Grantees 

Costs To Prepare and Conduct Trainings 

of Their Own Staff 

Consistent with our estimates relating 

to the number of Title VI grantees that 

will require extensive revision of their 

policies, we estimate that two thirds of 

the Title VI grantees’ program 

management staff will require more 

extensive staff training regarding the 

rule. Based on our experience working 

with Title VI grantees, we estimate that, 

for Title VI grantees that need more 

extensive trainings, one (1) employee 

per agency, equivalent to a first-line 

supervisor (U.S. Bureau of Labor 

Statistics (BLS) Occupation code 43– 

1011) 387 will spend three (3) total hours 

to prepare the training, and five (5) 

hours to provide the training, at a cost 

of $59.02 per hour after adjusting for 

non-wage benefits and indirect costs, 

and that for those needing less extensive 

trainings one (1) employee per agency, 

equivalent to a first-line supervisor (U.S. 

Bureau of Labor Statistics (BLS) 

Occupation code 43–1011) 388 will 

spend two (2) total hours to prepare the 

training, and two (2) hours to provide 

the training, at a cost of $59.02 per hour 

after adjusting for non-wage benefits 

and indirect costs.389

We monetize the time spent by Title 

VI grantees to prepare and conduct 

trainings for their own employees by 

estimating a total cost per entity of 

$472.16 (1 staff × 8 hours × $59.02/hr) 

or $251.92 (1 staff × 4 hours × $59.02/ 

hr), depending on the extent of the 

training needed. For the approximately 

196 Title VI grantees with more 

extensive needed training, we estimate 

a cost of approximately $92,543.36. For 

the 94 Title VI grantees with less 

extensive training needs, we estimate a 

cost of approximately $22,191.52. We 

estimate the total cost associated with 

the preparation and conduct of trainings 

with respect to the final rule for Title VI 

grantees of $114,734.88. 

Cost To Receive Trainings by Their Own 

Staff 

As noted above, we estimate that two 

thirds of the Title VI grantees’ program 

management staff will require more 

extensive staff training regarding the 

rule. Based on our experience working 

with Title VI grantees, we estimate that 

those grantees with more extensive 

trainings will spend five (5) total hours 

on the receipt of training per agency, 

and that those with less extensive 

trainings will spend two (2) hours on 

the receipt of trainings per agency. We 

estimate that three (3) employees per 

agency, equivalent to social and 

community service managers (BLS 

Occupation code 11–9151),390 will 


ddrumheller on DSK120RN23PROD with RULES4
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391This hourly cost was determined by 

multiplying the median wage of $35.69 by 2. 

392U.S. Dep’t. of Labor, Bureau of Labor 

Statistics, Occupational Employment and Wages, 

13–1199 Business Operations Specialists, All Other 

(May, 2022), https://www.bls.gov/oes/current/ 

oes131199.htm. 

393This hourly cost was determined by 

multiplying the median wage of $36.53 by 2. 394 42 U.S.C. 3025(a)(2). 

395For example, the State agencies from Alabama, 

Arizona, California, Florida, Georgia, Illinois, 

Massachusetts, Montana, North Dakota, New York, 

and Ohio, in addition to others, post their plans on 

aging on their websites. 

396Public Records, Natl. Assn. of Attorneys 

General, https://www.naag.org/issues/civil-law/ 

public-records/ (last visited Oct. 24, 2023); State 

Public Records Laws, FOIAdvocates, http://www.foi

advocates.com/records.html (last visited Oct. 24, 

2023). States may charge fees in order to provide 

copies of public records; e.g., New Jersey’s Open 

Public Records Law, N.J.S.A. 47:1A–1 et seq. 

receive training at a cost per employee 

of $71.38 per hour after adjusting for 

non-wage benefits and indirect costs,391

and that one (1) employee per agency, 

equivalent to a business operations 

specialist (BLS Occupation code 13– 

1199),392 will receive training at a cost 

of $73.06 per hour after adjusting for 

non-wage benefits and indirect costs.393

We monetize the time spent on 

receipt of training as follows: 

196 Title VI Grantees—more extensive trainings: 

Social & Community Service Manager: 3 staff × 5 hours @ $71.38/hr: ......................................................................... $1,070 .70 

Business Operations Specialist: 1 staff × 5 hours @ $73.06/hr: ..................................................................................... 365 .30 

$1,436 .00/grantee 

94 Title VI Grantees—less extensive trainings: 

Social & Community Service Manager: 3 staff × 2 hours @ $71.38/hr: ......................................................................... $428 .28 

Business Operations Specialist: 1 staff × 2 hours @ $73.06/hr: ..................................................................................... 146 .12 

$574 .40/grantee 

For the approximately 196 Title VI 

grantees with more extensive trainings, 

we estimate a cost of approximately 

$281,456.00. For the 94 Title VI grantees 

with less extensive trainings, we 

estimate a cost of approximately 

$53,993.60. We estimate the total cost 

associated with receipt of training of 

employees with respect to revisions to 

policies and procedures under the final 

rule of $335,449.60. 

The above estimates of the time 

needed by State agencies, AAAs, and 

Title VI grantees for training of 

employees with respect to the final rule, 

as well as the number of employees to 

be trained, are approximate estimates 

based on ACL’s extensive experience 

working with the agencies, including 

providing technical assistance as well as 

ACL staff’s prior experience working 

with OAA programs at State agencies 

and AAAs. Due to variation in the types 

and sizes of State agencies, AAAs, and 

Title VI grantees, the above estimates of 

time needed for training and the number 

of employees to be trained with respect 

to the final rule is difficult to calculate 

precisely. 

c. Making State Plan Documentation 

Available 

Section 305(a)(2) of the OAA,394

together with existing 45 CFR 1321.27, 

require State agencies, in the 

development and administration of the 

State plan, to obtain and consider the 

input of older adults, the public, and 

recipients of services under the OAA. 

Section 1321.29 of the final regulation 

requires State agencies to ensure that 

documents which are to be available for 

public review in connection with State 

plans and State plan amendments, as 

well as final State plans and State plan 

amendments, be available in a public 

location, as well as available in print by 

request. 

Based on ACL’s extensive experience 

working with State agencies in their 

development of State plans and State 

plan amendments, we estimate that 

most State agencies already comply 

with the requirements to make such 

documentation accessible in a public 

place. It is common practice for State 

agencies to post the documents on their 

public websites.395 For those that do not 

already post the documents on their 

websites, we estimate that it will take 

less than one hour of time spent by a 

computer and information system 

employee to post the documents on 

their websites. Accordingly, we believe 

this cost will be minimal and do not 

quantify it. 

Occasionally, a member of the public 

may request a print copy of a State plan. 

State plan documents can vary widely 

in length; based on our experience, we 

estimate that on average each State plan 

contains 75 pages, including exhibits. 

At an estimated cost of $.50 per page for 

copies, each paper copy will cost 

approximately $37.50. Today, 

documents typically are shared 

electronically, rather than via print 

copies, and we estimate that each State 

agency will receive few requests for 

print copies of their State plans. In 

addition, all States have established 

laws that allow access to public 

records.396 Therefore, we also believe 

this cost will be minimal and do not 

quantify it. 

d. State Plan Amendments and Disaster 

Flexibilities 

Based on input from interested parties 

and our experience, particularly during 

the COVID–19 PHE, we add Subpart E— 

Emergency and Disaster Requirements 

(§§ 1321.97–1321.105) to set forth 

expectations and clarify flexibilities that 

are available in certain disaster 

situations. Similarly, § 1322.35 will 

provide for flexibilities to be available to 

Title VI grantees during certain 

emergencies and will require Title VI 

grantees to report separately on 

expenditures of funds when exercising 

such flexibilities. ACL estimates that 

some State agencies, AAAs, and Title VI 

grantees will incur costs to comply with 

the new provision. For reasons similar 

to the discussion above with respect to 

revisions to policies and procedures, we 

address State agencies and area agencies 

separately from Title VI grantees. 

State Agencies and AAAs 

ACL has administrative oversight 

responsibility with respect to the 

expenditures of Federal funds pursuant 

to the OAA, and these flexibilities 

involve exceptions to certain 

programmatic and fiscal requirements 

under the OAA. Accordingly, in 

addition to the flexibilities we allow in 

this section, we are compelled to set 

forth that State agencies be required to 

submit State plan amendments when 

they intend to exercise any of these 

flexibilities, as well to comply with 

reporting requirements. We believe the 

cost to a State agency to prepare and 

submit a State plan amendment will be 

quite minimal, in particular in 

comparison to the benefits to older 

adults in emergency situations as a 

result of these flexibilities. We, 

therefore, do not quantify the cost to a 

State agency to prepare and submit such 

a State plan amendment. We likewise 

do not quantify the cost to a State 


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397For information regarding the calculations of 

the amounts set forth in this table, please see the 

RIA discussion above. 

398Average weekly hours worked information per 

U.S. Dep’t. of Labor, Bureau of Labor and Statistics, 

Labor Productivity and Cost Measures—Major 

Sectors nonfarm business, business, nonfinancial 

corporate, and manufacturing (Feb. 2, 2023), 

https://www.bls.gov/productivity/tables/home.htm. 

agency to comply with reporting 

requirements, as sound fiscal and data 

tracking policies and principles, outside 

of the OAA, should be in place for all 

State agency expenditures of Federal 

funds, regardless of the source. 

Title VI Grantees 

Similarly, § 1322.35 will provide for 

flexibilities to be available to Title VI 

grantees during certain emergencies and 

will require Title VI grantees to report 

separately on expenditures of funds 

when exercising such flexibilities. 

Again, we do not quantify the cost to a 

Title VI grantee to comply with 

reporting requirements, as sound fiscal 

and data tracking policies and 

principles, outside of the OAA, should 

be in place for all Title VI grantee 

expenditures of Federal funds, 

regardless of the source. 

iii. Total Quantified Costs of the Final 

Rule 

The table below sets forth the total 

estimated cost of the final rule: 397

Item of cost 

State agencies 

and AAAs 

($) 

Service 

providers 

($) 

Title VI 

Grantees 

($) 

2020 OAA Reauthorization .................................................................................................. 0.00 0.00 0.00 

Revise Policies and Procedures .......................................................................................... 1,505,106.40 8,435,458.12 430,255.80 

Prepare/Conduct Training for Own Staff ............................................................................. 237,732.56 N/A 114,734.88 

Receipt of Training for Own Staff ........................................................................................ 1,010,406.00 4,978,897.76 335,449.60 

SUA Training of AAAs ......................................................................................................... 234,427.44 N/A N/A 

SUA/AAA Training of Service Providers ............................................................................. 147,313.92 N/A N/A 

Available Documentation .....................................................................................................

State Plan Amendments for Disaster Flexibilities ...............................................................

Total .............................................................................................................................. 3,134,986.32 13,414,355.88 880,440.28 

As the table above indicates, the costs 

attributable to the final rule, in the 

aggregate amount, are estimated at 

$17,429,782.50. ACL estimates 

quantified costs attributable to the final 

rule of $3.13 million for State agencies 

and AAAs (at an average cost of $4,484 

per State agency in States that have 

AAAs, $4,488 per State agency in States 

with no AAAs, and $4,694 per area 

agency), $13.4 million for service 

providers (at an average cost of $769 per 

service provider), and $0.88 million for 

Title VI grantees (at an average cost of 

$3,036 per Title VI grantee). These costs 

would consist of staff time to revise 

policies and procedures and to create, 

provide and receive trainings. Assuming 

annual productive time per full time 

employee (FTE) of 1,650 hours (based 

on average weekly hours worked of 33 

hours per week 398 and 50 weeks 

worked per annum), these estimated 

costs would equate to approximately 

four percent of one (1) FTE’s annual 

time for each State agency and area 

agency, three percent of one (1) FTE’s 

annual time for each Title VI grantee, 

and .7 percent of one (1) FTE’s annual 

time for each service provider. 

2. Discussion of Benefits 

The benefits from this final rule are 

difficult to quantify. We anticipate that 

the rule will provide clarity of 

administration for State agencies, AAAs, 

and Title VI grantees with respect to 

aspects of the OAA that were enacted 

under previous reauthorizations. This 

clarity likely will reduce time spent by 

grantees in implementing and managing 

OAA programs and services and result 

in improved program and fiscal 

management. 

Additional benefits are anticipated 

from our modifications to regulatory 

text that modernize our rule to provide 

greater flexibility to State agencies and 

AAAs, as well as to reflect ongoing 

feedback from interested parties and 

responses to our RFI and NPRM in areas 

where our prior regulations did not 

address the evolving needs of Title III, 

VI, and VII grantees and the older adults 

and family caregivers they serve. The 

rule’s allowance for shelf-stable, pickup, carry-out, drive-through, or similar 

meals, where a participant will be able 

to collect their meal from a congregate 

site and return to the community off-site 

to enjoy it, is a direct response to 

feedback from interested parties, 

including as gathered from the RFI, and 

appropriately reflects the evolving 

needs of both grantees and OAA 

participants. We anticipate increased 

participation in the Title III nutrition 

programs, which in turn will lead to 

better nutritional health for a new group 

of older adults that does not currently 

participate in the program. 

Another example of a modification to 

regulatory text that will modernize our 

rule is the new definition of ‘‘greatest 

economic need,’’ which will allow State 

agencies and AAAs to take into 

consideration populations that 

experience economic need due to a 

variety of local conditions and 

individual situations, other than 

income, that could factor into an 

individual’s level of economic need. 

State agencies and AAAs are in the best 

position to understand the conditions 

and factors in their State and local areas 

that contribute to individuals falling 

within this category. Accordingly, this 

definition will allow State agencies and 

AAAs to make these determinations. 

The flexibilities to be afforded to State 

agencies and Title VI grantees in certain 

emergency and disaster situations will 

allow funding to be directed more 

efficiently where it is needed most to 

better assist older adults in need. 

We have determined that the many 

anticipated benefits of the final rule are 

not quantifiable, given the variation in 

the types and sizes of State agencies, 

AAAs, and Title VI grantees, as well as 

the variation in conditions and 

situations at the State and local level 

throughout the U.S. 

B. Regulatory Flexibility Act 

Under the Regulatory Flexibility Act, 

as amended by the Small Business 

Regulatory Enforcement Fairness Act 

(SBREFA) (5 U.S.C. 601 et seq.), 

agencies must consider the impact of 

regulations on small entities and 

analyze regulatory options that would 

minimize a rule’s impacts on these 

entities. Alternatively, the agency head 

may certify that the final rule will not 

have a significant economic impact on 

a substantial number of small entities. 


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399 Id. 

400This excludes Guam, American Samoa, the 

United States Virgin Islands, the Trust Territory of 

the Pacific Islands, and the Commonwealth of the 

Northern Mariana Islands, which have lower 

administrative caps. 

401 42 U.S.C. 3028(b). 

ACL estimates the costs that would 

result from the final rule to be $4,879 

per State agency in States that have area 

agencies, $4,883 per State agency in 

States with no area agencies, $5,104 per 

area agency, $856 per service provider, 

and $3,247 per Title VI grantee. These 

costs would consist of staff time to 

revise policies and procedures and to 

create, provide and receive trainings. 

Assuming annual productive time per 

full time employee (FTE) of 1,650 hours 

(based on average weekly hours worked 

of 33 hours per week 399 and 50 weeks 

worked per annum), these estimated 

costs would equate to approximately 

four percent of one (1) FTE’s annual 

time for each State agency and area 

agency, three percent of one (1) FTE’s 

annual time for each Title VI grantee, 

and .7 percent of one (1) FTE’s annual 

time for each service provider. HHS 

certifies that this final rule will not have 

a significant economic impact on a 

substantial number of small businesses 

and other small entities. 

C. Executive Order 13132 (Federalism) 

Executive Order 13132 requires 

Federal agencies to consider the impact 

of their regulatory actions on State and 

local governments. Where such actions 

have federalism implications, agencies 

are directed to provide a statement 

describing the agency’s considerations. 

Consultations With State and Local 

Officials 

Executive Order 13132 requires 

meaningful and timely input by State 

and local officials in the development of 

regulatory policies that have federalism 

implications. As discussed in the 

preamble, the proposed regulations 

were developed with input from 

interested parties, including State and 

local officials. 

We issued a Request for Information 

(RFI) on May 6, 2022, seeking input 

from the aging network, Indian Tribes, 

States, and Territories on challenges 

they face administering services, as well 

as feedback from individuals and other 

interested parties on experiences with 

services, providers, and programs under 

the Act. ACL received comments from 

over 90 entities in response to the RFI. 

In addition, ACL conducted a 

listening session on April 18, 2022, at 

the national conference for Tribal 

organization grantees under Title VI of 

the OAA. We also promoted the RFI and 

the NPRM with Title VI grantees and 

Indian Tribes, and a Tribal consultation 

meeting took place at the National Title 

VI Conference April 12, 2023. 

On June 16, 2023, the Federal 

Register published a notice of proposed 

rulemaking (NPRM) regarding OAA 

Titles III, VI, and VII (88 FR 39568). 

Through the NPRM, ACL sought 

feedback regarding ACL’s proposal to 

modernize the implementing 

regulations of the OAA, which have not 

been substantially altered since their 

promulgation in 1988. ACL received 780 

public comments on the NPRM. 

The goal of the processes outlined 

above was to hear from all interested 

entities, including State and local 

officials, the public, and professional 

fields about their experience with OAA 

services and about the proposed 

regulations. Interested parties were 

provided with opportunities to give 

input as to areas where our prior 

regulations did not address the evolving 

needs of Title III, VI, and VII grantees 

and the older adults and family 

caregivers they serve, as well as input 

into the content of the final rule. We 

carefully reviewed comments received 

in response to the RFI and the NPRM 

from State and local officials, 

considered concerns raised in 

developing the final rule, and made 

changes to several of the final rule’s 

provisions based on public comments. 

Our final rule is a direct response to 

feedback from interested parties and 

reflects the evolving needs of both 

grantees and OAA program participants. 

Nature of Concerns and the Need To 

Issue This Proposed Rule 

The final rule modifies existing OAA 

regulations 45 CFR parts 1321, 1322, 

and 1324 and removes 45 CFR part 

1323. Most of these changes modernize 

the OAA regulations to bring them into 

conformity with the reauthorized OAA 

and to provide clarity of administration 

for ACL and its grantees. In addition to 

areas where we better align regulation 

with current statute, we make 

modifications to regulatory text that 

modernize our rule to provide greater 

flexibility to State agencies. 

Commenters overwhelmingly 

supported most provisions in the 

proposed rule. Many commenters 

expressed general support for our 

updates to modernize the regulations. 

Some commenters appreciated the 

flexibilities in the rule, while others 

appreciated the additional clarity 

offered by the rule. 

Some commenters asked that ACL be 

more prescriptive in the final rule and 

that the final rule be revised to allow 

less discretion to State agencies in 

implementing the Act. The preamble 

notes several instances where ACL 

declined such requests, in order to 

provide flexibility to State agencies in 

implementing the final rule. 

We received comments that the final 

rule would be challenging to implement 

absent additional funding. We seriously 

considered these views in developing 

the final rule. We also completed a 

regulatory impact analysis to fully 

assess costs and benefits of the new 

requirements. We recognize that some of 

the new proposed regulatory provisions 

may create administrative and monetary 

burden in updating policies and 

procedures, as well as a potential need 

for changes to some States’ laws or 

regulations. However, this burden 

should be a one-time expense, some 

policies are at the States’ option to 

adopt, and States will have significant 

discretion to implement the proposed 

provisions in the manner best suited to 

State needs. Much of this final rule 

codifies the policies and procedures that 

State agencies already have, or should 

have, in place to administer programs 

and deliver services under the OAA, 

and we believe that many State agencies 

already are in substantial compliance 

with the final rule. 

Extent to Which We Meet Those 

Concerns 

The 2020 OAA reauthorization 

increased the amount of OAA funding 

that State agencies 400 may use to 

administer the Act from the greater of (i) 

5% of Title III B, C, D, and E funding 

and (ii) $500,000 to the greater of (i) 5% 

of Title III B, C, D, and E funding and 

(ii) $750,000.401 In addition, we believe 

that many States already are in 

substantial compliance with the final 

rule, most of which brings the 

regulations into conformity with the 

OAA. We also believe the benefits of the 

final rule will be significant: the rule 

provides considerable latitude to State 

agencies to determine how best to 

implement the OAA in order to respond 

to local needs and circumstances, and it 

increases the flexibility available to 

States in administering the OAA. 

D. Executive Order 13175 (Consultation 

and Coordination With Indian Tribal 

Governments) 

ACL will fulfill its responsibilities 

under Executive Order 13175, 

‘‘Consultation and Coordination with 

Indian Tribal Governments.’’ Executive 

Order 13175 requires Federal agencies 

to establish procedures for meaningful 

consultation and coordination with 


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Tribal officials in the development of 

Federal policies that have Tribal 

implications. ACL conducted a listening 

session at the National Title VI 

Conference on April 18, 2022. We also 

promoted the RFI and NPRM with Title 

VI grantees and Indian Tribes. A Tribal 

consultation meeting took place at the 

National Title VI Conference April 12, 

2023. ACL continued to solicit input 

from affected Federally recognized 

Indian Tribes as we developed these 

updated regulations. ACL conducted a 

Tribal consultation meeting on 

Thursday June 22, 2023, from 2:00 p.m. 

to 4:00 p.m. eastern time. Additional 

details were made available at https://

olderindians.acl.gov/events/. 

Comment: Commenters expressed 

concern that proposed service policies 

and procedures were not added through 

consultation and do not honor Tribal 

sovereignty. Another commenter noted 

the numerous acts of Congress that 

require Federal agencies to consider the 

administrative burden and 

infrastructure inequities faced by Tribes. 

A commenter noted that there should be 

additional Tribal consultation with 

Alaskan and Hawaiian programs given 

the volume and special circumstances 

that they could speak to on the impact 

of the proposed regulations. 

Response: ACL honors Tribal 

sovereignty and offered formal Tribal 

consultation and other engagements 

with Tribal grantee input prior to 

issuing the NPRM. ACL conducted a 

listening session at the National Title VI 

Conference on April 18, 2022. We also 

promoted the RFI with Title VI grantees 

and Indian Tribes until it closed on June 

6, 2022. A Tribal consultation meeting 

took place at the National Title VI 

Conference April 12, 2023. ACL also 

conducted a Tribal briefing on June 22, 

2023. These activities were conducted 

in addition to the weekly 

announcements made by ACL’s Office 

of American Indian, Alaskan Native, 

and Native Hawaiian Programs once the 

NPRM was released on June 16, 2023, 

and the formal Tribal consultation 

requested and received on the NPRM on 

August 9, 2023, following a ‘‘Dear Tribal 

Leader’’ sent from ACL. 

ACL is committed to honoring Tribal 

sovereignty while offering opportunities 

to directly engage with program contacts 

and leaders regularly. 

ACL works to maintain a strong 

government to government relationship 

with opportunities to provide 

meaningful and timely input on areas 

that have a direct impact to their 

programs. ACL used comments received 

from Tribal grantees and other 

commentators through the RFI process 

to ensure that cultural and traditional 

practices were incorporated into the 

proposed regulations. ACL sent a Tribal 

Leader Letter to Tribal leaders on July 

14, 2023, sharing a direct link to make 

comments and hosted a Tribal 

consultation regarding the proposed 

regulations on August 9, 2023. ACL 

notes that much of what is in the final 

rule is codifying what is in the Act. 

E. 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. In 2023, that threshold 

is approximately $177 million. 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 would 

not result in the expenditure by State, 

local, and Tribal governments, in the 

aggregate, or by the private sector, of 

more than $177 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. 

F. 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. ACL believes it has used 

plain language in drafting of the 

proposed and final rule. 

G. Paperwork Reduction Act (PRA) 

The final rule contains an information 

collection in the form of State plans on 

aging under Title III and Title VII of the 

Act and applications for funding by 

eligible organizations to serve older 

Native Americans and family caregivers 

under Title VI of the Act. ACL intends 

to update guidance regarding State 

plans on aging and applications for 

funding under Title VI of the Act when 

the final rule is published. 

The requirement for each State agency 

to submit a multi-year State plan on 

aging, for a two, three, or four-year 

period, is a core function of State 

agencies and a long-standing 

requirement to receive funding under 

the Act. State agencies use funds 

provided under the Act to prepare State 

plans on aging. In preparing and 

submitting State plans on aging, State 

agencies compile information and 

obtain public input. They coordinate 

with State, Tribal, AAA, service 

providers, local government, and other 

interested parties. 

ACL will submit a PRA request to the 

Office of Management and Budget 

(OMB) for the development of the State 

plans on aging. Respondents include 55 

State agencies located in each of the 50 

States as well as the District of 

Columbia, Guam, Puerto Rico, American 

Samoa, and the Mariana Islands. ACL 

estimates 40 burden hours per response. 

Due to the multi-year nature of the 

plans, ACL estimates a total of 683 

hours in the aggregate to meet State plan 

requirements by State agencies each 

year. Based on our years of experience, 

we anticipate for each State agency 171 

hours of executive staff time equivalent 

to a general and operations manager 

(Occupation code 11–1021), at a cost of 

$55.41 per hour unadjusted hourly 

wage, $110.82 adjusted for non-wage 

benefits and indirect costs, and 512 

hours of first-line supervisor time 

(Occupation code 43–1011), at a cost of 

$30.47 per hour unadjusted hourly 

wage, $60.94 adjusting for non-wage 

benefits and indirect costs. We monetize 

the cost of meeting State plan 

requirements at $50,151.50 per year. 

This final rule contains an 

information collection under OMB 

control number 0985–0064 Application 

for Older Americans Act, Title VI parts 

A/B and C Grants with an expiration 

date of November 30, 2025. The OAA 

requires the Department to promote the 

delivery of supportive services and 

nutrition services to Native Americans. 

ACL is responsible for administering the 

Title VI part A/B (Nutrition and 

Supportive Service) and part C 

(Caregiver) grants. This information 

collection (0985–0064) gathers 

information on the ability of Federally 

recognized American Indian, Alaskan 

Native and Native Hawaiian 

organizations to provide nutrition, 

supportive, and caregiver services to 

elders within their service area. Title VI 

grant applications are required once 

every three (3) years, with 545 

respondents taking 4.25 hours per 

response. ACL estimates the burden 


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associated with this collection of 

information as 395.4 annual burden 

hours. 

Following publication of this rule, 

ACL will update guidance regarding 

State plans on aging and applications 

for funding under Title VI of the Act. In 

accordance with the regulations 

implementing the PRA, sections 

§ 1320.11 and § 1320.12, ACL will 

submit any material or substantive 

revisions under 0985–0064 and 0985– 

New to the Office of Management and 

Budget for review, comment, and 

approval. 

List of Subjects in 45 CFR Parts 1321, 

1322, 1323, and 1324 

Administrative practice and 

procedure, Aged, Area agencies on 

aging, Elder rights, Family caregivers, 

Grant programs—social programs, 

Indians, Native Hawaiian programs, 

Tribal organizations and a Native 

Hawaiian grantee. 

For the reasons discussed in the 

preamble, ACL amends 45 CFR chapter 

XIII as follows: 

■ 1. Revise part 1321 to read as follows: 

PART 1321—GRANTS TO STATE AND 

COMMUNITY PROGRAMS ON AGING 

Sec. 

Subpart A—Introduction 

1321.1 Basis and purpose of this part. 

1321.3 Definitions. 

Subpart B—State Agency Responsibilities 

1321.5 Mission of the State agency. 

1321.7 Organization and staffing of the 

State agency. 

1321.9 State agency policies and 

procedures. 

1321.11 Advocacy responsibilities. 

1321.13 Designation of and designation 

changes to planning and service areas. 

1321.15 Interstate planning and service 

area. 

1321.17 Appeal to the Departmental 

Appeals Board on planning and service 

area designation. 

1321.19 Designation of and designation 

changes to area agencies. 

1321.21 Withdrawal of area agency 

designation. 

1321.23 Appeal to the Departmental 

Appeals Board on area agency on aging 

withdrawal of designation. 

1321.25 Duration, format, and effective date 

of the State plan. 

1321.27 Content of State plan. 

1321.29 Public participation. 

1321.31 Amendments to the State plan. 

1321.33 Submission of the State plan or 

plan amendment to the Assistant 

Secretary for Aging for approval. 

1321.35 Notification of State plan or State 

plan amendment approval or 

disapproval for changes requiring 

Assistant Secretary for Aging approval. 

1321.37 Notification of State plan 

amendment receipt for changes not 

requiring Assistant Secretary for Aging 

approval. 

1321.39 Appeals to the Departmental 

Appeals Board regarding State plan on 

aging. 

1321.41 When a disapproval decision is 

effective. 

1321.43 How the State agency may appeal 

the Departmental Appeals Board’s 

decision. 

1321.45 How the Assistant Secretary for 

Aging may reallot the State agency’s 

withheld payments. 

1321.47 Conflicts of interest policies and 

procedures for State agencies. 

1321.49 Intrastate funding formula. 

1321.51 Single planning and service area 

States. 

1321.53 State agency Title III and Title VI 

coordination responsibilities. 

Subpart C—Area Agency Responsibilities 

1321.55 Mission of the area agency. 

1321.57 Organization and staffing of the 

area agency. 

1321.59 Area agency policies and 

procedures. 

1321.61 Advocacy responsibilities of the 

area agency. 

1321.63 Area agency advisory council. 

1321.65 Submission of an area plan and 

plan amendments to the State agency for 

approval. 

1321.67 Conflicts of interest policies and 

procedures for area agencies on aging. 

1321.69 Area agency on aging Title III and 

Title VI coordination responsibilities. 

Subpart D—Service Requirements 

1321.71 Purpose of services allotments 

under Title III. 

1321.73 Policies and procedures. 

1321.75 Confidentiality and disclosure of 

information. 

1321.77 Purpose of services—person- and 

family-centered, trauma-informed. 

1321.79 Responsibilities of service 

providers under State and area plans. 

1321.81 Client eligibility for participation. 

1321.83 Client and service priority. 

1321.85 Supportive services. 

1321.87 Nutrition services. 

1321.89 Evidence-based disease prevention 

and health promotion services. 

1321.91 Family caregiver support services. 

1321.93 Legal assistance. 

1321.95 Service provider Title III and Title 

VI coordination responsibilities. 

Subpart E—Emergency and Disaster 

Requirements 

1321.97 Coordination with State, Tribal, 

and local emergency management. 

1321.99 Setting aside funds to address 

disasters. 

1321.101 Flexibilities under a major 

disaster declaration. 

1321.103 Title III and Title VI coordination 

for emergency and disaster preparedness. 

1321.105 Modification during major 

disaster declaration or public health 

emergency. 

Authority: 42 U.S.C. 3001 et seq. 

Subpart A—Introduction 

§ 1321.1 Basis and purpose of this part. 

(a) The purpose of this part is to 

implement Title III of the Older 

Americans Act, as amended (the Act) 

(42 U.S.C. 3001 et seq.). This part 

prescribes requirements State agencies 

shall meet to receive grants to develop 

comprehensive and coordinated systems 

for the delivery of the following 

services: supportive, nutrition, 

evidence-based disease prevention and 

health promotion, caregiver, legal, and, 

where appropriate, other services. These 

services are provided via State agencies, 

area agencies on aging, and local service 

providers under the Act. These 

requirements include: 

(1) Responsibilities of State agencies; 

(2) Responsibilities of area agencies 

on aging; 

(3) Service requirements; and 

(4) Emergency and disaster 

requirements. 

(b) The requirements of this part are 

based on Title III of the Act. Title III 

provides for formula grants to State 

agencies on aging, under approved State 

plans described in § 1321.27, to develop 

or enhance comprehensive and 

coordinated community-based systems 

resulting in a continuum of personcentered services to older persons and 

family caregivers, with special emphasis 

on older individuals with the greatest 

economic need and greatest social need, 

with particular attention to low-income 

minority older individuals. A 

responsive community-based system of 

services shall include collaboration in 

planning, resource allocation, and 

delivery of a comprehensive array of 

services and opportunities for all older 

adults in the community. Title III funds 

are intended to be used as a catalyst to 

bring together public and private 

resources in the community to assure 

the provision of a full range of efficient, 

well-coordinated, and accessible 

person-centered services for older 

persons and family caregivers. 

(c) Each State designates one State 

agency to: 

(1) Develop and submit a State plan 

on aging, as set forth in § 1321.33; 

(2) Administer Title III and VII funds 

under the State plan and the Act; 

(3) Be responsible for planning, policy 

development, administration, 

coordination, priority setting, 

monitoring, and evaluation of all State 

activities related to the Act; 

(4) Serve as an advocate for older 

individuals and family caregivers; 

(5) Designate planning and service 

areas; 

(6) Designate an area agency on aging 

to serve each planning and service area, 


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except in single planning and service 

area States; and 

(7) Provide funds as set forth in the 

Act to either: 

(i) Area agencies on aging under 

approved area plans on aging, in States 

with multiple planning and service 

areas, for their use in fulfilling 

requirements under the Act and 

distribution to service providers to 

provide direct services, 

(ii) Service providers, in single 

planning and service area States, to 

provide direct services, or 

(iii) The Ombudsman program, as set 

forth in part 1324 of this chapter. 

(d) Terms used, but not otherwise 

defined, in this part will have the 

meanings ascribed to them in the Act. 

§ 1321.3 Definitions. 

Access to services or access services, 

as used in this part and sections 306 and 

307 of the Act (42 U.S.C. 3026 and 

3027), means services which may 

facilitate connection to or receipt of 

other direct services, including 

transportation, outreach, information 

and assistance, options counseling, and 

case management services. 

Acquiring, as used in the Act, means 

obtaining ownership of an existing 

facility. 

Act, means the Older Americans Act 

of 1965, as amended. 

Altering or renovating, as used in this 

part, means making modifications to or 

in connection with an existing facility 

which are necessary for its effective use. 

Such modifications may include 

alterations, improvements, 

replacements, rearrangements, 

installations, renovations, repairs, 

expansions, upgrades, or additions, 

which are not in excess of double the 

square footage of the original facility 

and all physical improvements. 

Area agency on aging, as used in this 

part, means a single agency designated 

by the State agency to perform the 

functions specified in the Act for a 

planning and service area. 

Area plan administration, as used in 

this part, means funds used to carry out 

activities as set forth in section 306 of 

the Act (42 U.S.C. 3026) and other 

activities to fulfill the mission of the 

area agency as set forth in § 1321.55, 

including development of private pay 

programs or other contracts and 

commercial relationships. 

Best available data, as used in section 

305(a)(2)(C) of the Act (42 U.S.C. 

3025(a)(2)(C)), with respect to the 

development of the intrastate funding 

formula, means the most current reliable 

data or population estimates available 

from the U.S. Decennial Census, 

American Community Survey, or other 

high-quality, representative data 

available to the State agency. 

Constructing, as used in this part, 

means building a new facility, including 

the costs of land acquisition and 

architectural and engineering fees, or 

making modifications to or in 

connection with an existing facility 

which are in excess of double the square 

footage of the original facility and all 

physical improvements. 

Conflicts of interest, as used in this 

part, means: 

(1) One or more conflicts between the 

private interests and the official 

responsibilities of a person in a position 

of trust; 

(2) One or more conflicts between 

competing duties of an individual, or 

between the competing duties, services, 

or programs of an organization, and/or 

portion of an organization; and 

(3) Other conflicts of interest 

identified in guidance issued by the 

Assistant Secretary for Aging and/or by 

State agency policies. 

Cost sharing, as used in section 315(a) 

of the Act (42 U.S.C. 3030c–2(a)), means 

requesting payment using a sliding 

scale, based only on an individual’s 

income and the cost of delivering the 

service, in a manner consistent with the 

exceptions, prohibitions, and other 

conditions laid out in the Act. 

Department, means the U.S. 

Department of Health and Human 

Services. 

Direct services, as used in this part, 

means any activity performed to provide 

services directly to an older person or 

family caregiver, groups of older 

persons or family caregivers, or to the 

general public by the staff or volunteers 

of a service provider, an area agency on 

aging, or a State agency whether 

provided in-person or virtually. Direct 

services exclude State or area plan 

administration and program 

development and coordination 

activities. 

Domestically produced foods, as used 

in this part, means Agricultural foods, 

beverages and other food ingredients 

which are a product of the United 

States, its Territories or possessions, the 

Commonwealth of Puerto Rico, or the 

Trust Territories of the Pacific Islands 

(hereinafter referred to as ‘‘the United 

States’’), except as may otherwise be 

required by law, and shall be considered 

to be such a product if it is grown, 

processed, and otherwise prepared for 

sale or distribution exclusively in the 

United States except with respect to 

minor ingredients. Ingredients from 

nondomestic sources will be allowed to 

be utilized as a United States product if 

such ingredients are not otherwise: 

(1) Produced in the United States; and 

(2) Commercially available in the 

United States at fair and reasonable 

prices from domestic sources. 

Family caregiver, as used in this part, 

means an adult family member, or 

another individual, who is an informal 

provider of in-home and community 

care to an older individual; an adult 

family member, or another individual, 

who is an informal provider of in-home 

and community care to an individual of 

any age with Alzheimer’s disease or a 

related disorder with neurological and 

organic brain dysfunction; or an older 

relative caregiver. For purposes of this 

part, family caregiver does not include 

individuals whose primary relationship 

with the older adult is based on a 

financial or professional agreement. 

Fiscal year, as used in this part, 

means the Federal fiscal year. 

Governor, as used in this part, means 

the chief elected officer of each State 

and the mayor of the District of 

Columbia. 

Greatest economic need, as used in 

this part, means the need resulting from 

an income level at or below the Federal 

poverty level and as further defined by 

State and area plans based on local and 

individual factors, including geography 

and expenses. 

Greatest social need, as used in this 

part, means the need caused by 

noneconomic factors, which include: 

(1) Physical and mental disabilities; 

(2) Language barriers; 

(3) Cultural, social, or geographical 

isolation, including due to: 

(i) Racial or ethnic status; 

(ii) Native American identity; 

(iii) Religious affiliation; 

(iv) Sexual orientation, gender 

identity, or sex characteristics; 

(v) HIV status; 

(vi) Chronic conditions; 

(vii) Housing instability, food 

insecurity, lack of access to reliable and 

clean water supply, lack of 

transportation, or utility assistance 

needs; 

(viii) Interpersonal safety concerns; 

(ix) Rural location; or 

(x) Any other status that: 

(A) Restricts the ability of an 

individual to perform normal or routine 

daily tasks; or 

(B) Threatens the capacity of the 

individual to live independently; or 

(4) Other needs as further defined by 

State and area plans based on local and 

individual factors. 

Immediate family, as used in this part 

pertaining to conflicts of interest, means 

a member of the household or a relative 

with whom there is a close personal or 

significant financial relationship. 

In-home supportive services, as used 

in this part, references those supportive 


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services provided in the home as set 

forth in the Act, to include: 

(1) Homemaker, personal care, home 

care, home health, and other aides; 

(2) Visiting and telephone or virtual 

reassurance; 

(3) Chore maintenance; 

(4) Respite care for families, including 

adult day care; and 

(5) Minor modification of homes that 

is necessary to facilitate the 

independence and health of older 

individuals and that is not readily 

available under another program. 

Local sources, as used in the Act and 

local public sources, as used in section 

309(b)(1) of the Act (42 U.S.C. 

3029(b)(1)), means tax-levy money or 

any other non-Federal resource, such as 

State or local public funding, funds 

from fundraising activities, reserve 

funds, bequests, or cash or third-party 

in-kind contributions from non-client 

community members or organizations. 

Major disaster declaration, as used in 

this part and section 310 of the Act (42 

U.S.C. 3030), means a Presidentially 

declared disaster under the Robert T. 

Stafford Relief and Emergency 

Assistance Act (42 U.S.C. 5121–5207). 

Means test, as used in the Act, means 

the use of the income, assets, or other 

resources of an older person, family 

caregiver, or the households thereof to 

deny or limit that person’s eligibility to 

receive services under this part. 

Multipurpose senior center, as used in 

the Act, means a community facility for 

the organization and provision of a 

broad spectrum of services, which shall 

include provision of health (including 

mental and behavioral health), social, 

nutritional, and educational services 

and the provision of facilities for 

recreational activities for older 

individuals, as practicable, including as 

provided via virtual facilities; as used in 

§ 1321.85, facilitation of services in such 

a facility. 

Native American, as used in the Act, 

means a person who is a member of any 

Indian Tribe, band, nation, or other 

organized group or community of 

Indians (including any Alaska Native 

village or regional or village corporation 

as defined in or established pursuant to 

the Alaska Native Claims Settlement Act 

(43 U.S.C. 1601 et seq.) who: 

(1) Is recognized as eligible for the 

special programs and services provided 

by the United States to Indians because 

of their status as Indians; or 

(2) Is located on, or in proximity to, 

a Federal or State reservation or 

rancheria; or is a person who is a Native 

Hawaiian, who is any individual any of 

whose ancestors were natives of the area 

which consists of the Hawaiian Islands 

prior to 1778. 

Nutrition Services Incentive Program, 

as used in the Act, means grant funding 

to State agencies, eligible Tribal 

organizations, and Native Hawaiian 

grantees to support congregate and 

home-delivered nutrition programs by 

providing an incentive to serve more 

meals. 

Official duties, as used in section 712 

of the Act (42 U.S.C. 3058g) with respect 

to representatives of the Long-Term Care 

Ombudsman Program, means work 

pursuant to the Long-Term Care 

Ombudsman Program authorized by the 

Act, 45 CFR part 1324, subpart A, and/ 

or State law and carried out under the 

auspices and general direction of, or by 

direct delegation from, the State LongTerm Care Ombudsman. 

Older relative caregiver, as used in 

section 372(a)(4) of the Act (42 U.S.C. 

3030s(a)(4)), means a caregiver who is 

age 55 or older and lives with, is the 

informal provider of in-home and 

community care to, and is the primary 

caregiver for, a child or an individual 

with a disability; 

(1) In the case of a caregiver for a 

child is: 

(i) The grandparent, step-grandparent, 

or other relative (other than the parent) 

by blood, marriage, or adoption, of the 

child; 

(ii) Is the primary caregiver of the 

child because the biological or adoptive 

parents are unable or unwilling to serve 

as the primary caregivers of the child; 

and 

(iii) Has a legal relationship to the 

child, such as legal custody, adoption, 

or guardianship, or is raising the child 

informally; and 

(2) In the case of a caregiver for an 

individual with a disability, is the 

parent, grandparent, step-grandparent, 

or other relative by blood, marriage, or 

adoption of the individual with a 

disability. 

Periodic, as used in this part to refer 

to the frequency of client assessment 

and data collection, means, at a 

minimum, once each fiscal year, and as 

used in section 307(a)(4) of the Act (42 

U.S.C. 3027(a)(4)) to refer to the 

frequency of evaluations of, and public 

hearings on, activities and projects 

carried out under State and area plans, 

means, at a minimum once each State or 

area plan cycle. 

Planning and service area, as used in 

section 305 of the Act (42 U.S.C. 3025), 

means an area designated by a State 

agency under section 305(a)(1)(E) (42 

U.S.C. 3025(a)(1)(E)), for the purposes of 

local planning and coordination and 

awarding of funds under Title III of the 

Act, including a single planning and 

service area. 

Private pay programs, as used in 

section 306(g) of the Act (42 U.S.C. 

3026(g)), are a type of contract or 

commercial relationship and are 

programs, separate and apart from 

programs funded under the Act, for 

which the individual consumer agrees 

to pay to receive services under the 

programs. 

Program development and 

coordination activities, as used in this 

part, means those actions to plan, 

develop, provide training, and 

coordinate at a systemic level those 

programs and activities which primarily 

benefit and target older adult and family 

caregiver populations who have the 

greatest social needs and greatest 

economic needs, including development 

of contracts, commercial relationships, 

or private pay programs. 

Program income, means gross income 

earned by the non-Federal entity that is 

directly generated by a supported 

activity or earned as a result of the 

Federal award during the period of 

performance except as otherwise 

provided under Federal grantmaking 

authorities. Program income includes 

but is not limited to income from fees 

for services performed, the use or rental 

of real or personal property acquired 

under Federal awards, the sale of 

commodities or items fabricated under a 

Federal award, license fees and royalties 

on patents and copyrights, and principal 

and interest on loans made with Federal 

award funds. Interest earned on 

advances of Federal funds is not 

program income. Except as otherwise 

provided in Federal statutes, 

regulations, or the terms and conditions 

of the Federal award, program income 

does not include rebates, credits, 

discounts, and interest earned on any of 

them. See also 35 U.S.C. 200–212 

(which applies to inventions made 

under Federal awards). 

Reservation, as used in section 

305(b)(2) of the Act (42 U.S.C. 

3025(b)(2)) with respect to the 

designation of planning and service 

areas, means any Federally or State 

recognized American Indian Tribe’s 

reservation, pueblo, or colony, 

including former reservations in 

Oklahoma, Alaska Native regions 

established pursuant to the Alaska 

Native Claims Settlement Act (43 U.S.C. 

1601 et seq.), and Indian allotments. 

Service provider, means an entity that 

is awarded funds, including via a grant, 

subgrant, contract, or subcontract, to 

provide direct services under the State 

or area plan. 

Severe disability, as used to carry out 

the provisions of the Act, means a 

severe, chronic disability attributable to 

mental or physical impairment, or a 


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combination of mental and physical 

impairments, that: 

(1) Is likely to continue indefinitely; 

and 

(2) Results in substantial functional 

limitation in three or more of the 

following major life activities: self-care, 

receptive and expressive language, 

learning, mobility, self-direction, 

capacity for independent living, 

economic self-sufficiency, cognitive 

functioning, and emotional adjustment. 

Single planning and service area 

State, means a State which was 

approved on or before October 1, 1980, 

as such and continues to operate as a 

single planning and service area. 

State, as used in this part, means one 

or more of the 50 States, the District of 

Columbia, and the Territories of Guam, 

Puerto Rico, the United States Virgin 

Islands, American Samoa, and the 

Commonwealth of the Northern Mariana 

Islands, unless otherwise specified. 

State agency, as used in this part, 

means the designated State unit on 

aging for each of the 50 States, the 

District of Columbia, and the Territories 

of Guam, Puerto Rico, the United States 

Virgin Islands, American Samoa, and 

the Commonwealth of the Northern 

Mariana Islands, unless otherwise 

specified. 

State plan administration, as used in 

this part, means funds used to carry out 

activities as set forth in section 307 of 

the Act (42 U.S.C. 3027) and other 

activities to fulfill the mission of the 

State agency as set forth in § 1321.5. 

Supplemental foods, as used in this 

part, means foods that assist with 

maintaining health, but do not alone 

constitute a meal. Supplemental foods 

include liquid nutrition supplements or 

enhancements to a meal, such as 

additional beverage or food items, and 

may be specified by State agency 

policies and procedures. Supplemental 

foods may be provided with a meal, or 

separately, to older adults who 

participate in either congregate or homedelivered meal services. 

Voluntary contributions, as used in 

section 315(b) of the Act (42 U.S.C. 

3030c–2(b)), means donations of money 

or other personal resources given freely, 

without pressure or coercion, by 

individuals receiving services under the 

Act. 

Subpart B—State Agency 

Responsibilities 

§ 1321.5 Mission of the State agency. 

(a) The Act intends that the State 

agency shall be a leader on all aging 

issues on behalf of all older individuals 

and family caregivers in the State. The 

State agency shall proactively carry out 

a wide range of functions, including 

advocacy, planning, coordination, interagency collaboration, information 

sharing, training, monitoring, and 

evaluation. The State agency shall lead 

the development or enhancement of 

comprehensive and coordinated 

community-based systems in, or 

serving, communities throughout the 

State. These systems shall be designed 

to assist older individuals and family 

caregivers in leading independent, 

meaningful, and dignified lives in their 

own homes and communities. 

(b) In States with multiple planning 

and service areas, the State agency shall 

designate area agencies on aging to 

assist in carrying out the mission 

described above for the State agency at 

the sub-State level. The State agency 

shall designate as area agencies on aging 

only those non-State agencies having 

the capacity and making the 

commitment to fully carry out the 

mission described for area agencies in 

§ 1321.55. 

(c) The State agency shall assure that 

the resources made available to area 

agencies on aging under the Act are 

used to carry out the mission described 

for area agencies in § 1321.55. 

§ 1321.7 Organization and staffing of the 

State agency. 

(a) The State shall designate a sole 

State agency to develop and administer 

the State plan required under this part 

and part 1324 of this chapter and to 

serve as the effective and visible 

advocate for older adults within the 

State. 

(b) The State agency shall have an 

adequate number of qualified staff to 

fulfill the functions prescribed in this 

part. 

(c) The State agency shall establish, 

contract, or otherwise arrange with 

another agency or organization as 

permitted by section 307(a)(9)(A) of the 

Act (42 U.S.C. 3027(a)(9)(A)), an Office 

of the State Long-Term Care 

Ombudsman. Such Office must be 

headed by a full-time Ombudsman and 

consist of other staff as appropriate to 

fulfill responsibilities as set forth in part 

1324, subpart A, of this chapter. 

(d) If a State statute establishes an 

Ombudsman program which will 

perform the functions of section 

307(a)(9)(A) of the Act (42 U.S.C. 

3027(a)(9)(A)), the State agency 

continues to be responsible for assuring 

that the requirements of this program 

under the Act and as set forth in part 

1324, subpart A, of this chapter, are met, 

notwithstanding any additional 

requirements or funding related to State 

law. In such cases where State law may 

conflict with the Act, the Governor shall 

confirm understanding of the State 

agency’s continuing obligations under 

the Act through an assurance in the 

State plan. 

(e) The State agency shall have as set 

forth in section 307(a)(13) (42 U.S.C. 

3027(a)(13)) and section 731 of the Act 

(42 U.S.C. 3058j) and 45 CFR part 1324, 

subpart C, a Legal Assistance Developer, 

and such other personnel as appropriate 

to provide State leadership in 

developing legal assistance programs for 

older individuals throughout the State. 

§ 1321.9 State agency policies and 

procedures. 

(a) The State agency on aging shall 

develop policies and procedures 

governing all aspects of programs 

operated as set forth in this part and 

part 1324 of this chapter. These policies 

and procedures shall be developed in 

consultation with area agencies on 

aging, program participants, and other 

appropriate parties in the State. Except 

for the Ombudsman program as set forth 

in 45 CFR part 1324, subpart A and 

where otherwise indicated, the State 

agency policies may allow for such 

policies and procedures to be developed 

at the area agency on aging level. The 

State agency is responsible for 

implementing, monitoring, and 

enforcing policies and procedures, 

where: 

(1) The policies and procedures 

developed by the State agency shall 

address how the State agency will 

monitor the programmatic and fiscal 

performance of all programs and 

activities initiated under this part for 

compliance with all requirements, and 

for quality and effectiveness. As set 

forth in sections 305(a)(2)(A) and 306(a) 

of the Act (42 U.S.C. 3025(a)(2)(A) and 

3026(a)), and consistent with section 

305(a)(1)(C) (42 U.S.C. 3025(a)(1)(C)), 

the State agency shall be responsible for 

monitoring the program and financial 

activities of subrecipients and 

subgrantees to ensure that grant awards 

are used for the authorized purposes 

and in compliance with Federal 

statutes, regulations, and the terms and 

conditions of the grant award, 

including: 

(i) Evaluating each subrecipient’s risk 

of noncompliance to ensure proper 

accountability and compliance with 

program requirements and achievement 

of performance goals; 

(ii) Reviewing subrecipient policies 

and procedures; and 

(iii) Ensuring that all subrecipients 

and subgrantees complete audits as 

required in 2 CFR part 200, subpart F 

and 45 CFR part 75, subpart F. 


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(2) The State agency may not delegate 

to another agency the authority to award 

or administer funds under this part. 

(3) The State Long-Term Care 

Ombudsman shall be responsible for 

monitoring the files, records, and other 

information maintained by the 

Ombudsman program, as set forth in 

part 1324, subpart A. Such monitoring 

may be conducted by a designee of the 

Ombudsman. Neither the Ombudsman 

nor a designee shall disclose identifying 

information of any complainant or longterm care facility resident to individuals 

outside of the Ombudsman program, 

except as otherwise specifically 

provided in § 1324.11(e)(3) of this 

chapter. 

(b) The State agency shall ensure 

policies and procedures are aligned 

with periodic data collection and 

reporting requirements, including 

ensuring service and unit definitions are 

consistent with definitions set forth in 

these regulations, policy guidance, and 

other information developed by the 

Assistant Secretary for Aging. 

(c) Policies and procedures developed 

and implemented by the State agency 

shall address: 

(1) Direct service provision for 

services as set forth in §§ 1321.85, 

1321.87, 1321.89, 1321.9, and 1321.93, 

including: 

(i) Requirements for client eligibility, 

periodic assessment, and personcentered planning, where appropriate; 

(ii) A listing and definitions of 

services that may be provided in the 

State with funds received under the Act; 

(iii) Limitations on the frequency, 

amount, or type of service provided; 

(iv) Definition of those within the 

State in greatest social need and greatest 

economic need; 

(v) Specific actions the State agency 

will use or require the area agency to 

use to target services to meet the needs 

of those in greatest social need and 

greatest economic need; 

(vi) How area agencies on aging may 

request to provide direct services under 

provisions of § 1321.65(b)(7), where 

appropriate; 

(vii) Actions to be taken by area 

agencies and direct service providers to 

implement requirements as set forth in 

paragraphs (c)(2)(x) through (xi) of this 

section; and 

(viii) The grievance process for older 

individuals and family caregivers who 

are dissatisfied with or denied services 

under the Act. 

(2) Fiscal requirements including: 

(i) Intrastate funding formula (IFF). 

Distribution of Title III funds via the 

intrastate funding formula or funds 

distribution plan and of Nutrition 

Services Incentive Program funds as set 

forth in § 1321.49 or § 1321.51 shall be 

maintained by the State agency where 

funds must be promptly disbursed. 

(ii) Non-Federal share (match). As set 

forth in sections 301(d)(1) (42 U.S.C. 

3021(d)(1)), 304(c) (42 U.S.C. 3024(c)), 

304(d)(1)(A) (42 U.S.C. 3024(d)(1)(A)), 

304(d)(1)(D) (42 U.S.C. 3024(d)(1)(D)), 

304(d)(2) (42 U.S.C. 3024(d)(2)), 309(b) 

(42 U.S.C. 3029(b)), 316(b)(5) (42 U.S.C. 

3030c–3(b)(5)), and 373(h)(2) (42 U.S.C. 

3030s–2(h)(2)) of the Act, the State 

agency shall maintain statewide match 

requirements, where: 

(A) The match may be made by State 

and/or local public sources except as set 

forth in paragraph (c)(2)(ii)(C) of this 

section. 

(B) Non-Federal shared costs or match 

funds and all contributions, including 

cash and third-party in-kind 

contributions must be accepted if the 

funds meet the specified criteria for 

match. A State agency may not require 

only cash as a match requirement. 

(C) State or local public resources 

used to fund a program which uses a 

means test shall not be used to meet the 

match. 

(D) Proceeds from fundraising 

activities may be used to meet the match 

as long as no Federal funds were used 

in the fundraising activity. Fundraising 

activities are unallowable costs without 

prior written approval, as set forth in 2 

CFR 200.442. 

(E) A State agency may use State and 

local funds expended for a non-Title III 

funded program to meet the match 

requirement for Title III expenditures 

when the non-Title III funded program: 

(1) Is directly administered by the 

State or area agency; 

(2) Does not conflict with 

requirements of the Act; 

(3) Is used to match only the Title III 

program and not any other Federal 

program; and 

(4) Includes procedures to track and 

account expenditures used as match for 

a Title III program or service. 

(F) Match requirements for area 

agencies are determined by the State 

agency. 

(G) Match requirements for direct 

service providers are determined by the 

State and/or area agency. 

(H) A State or area agency may 

determine a match in excess of required 

amounts. 

(I) Other Federal funds may not be 

used to meet required match unless 

there is specific statutory authority. 

(J) The required statewide match for 

grants awarded under Title III of the Act 

is as follows: 

(1) Administration. Federal funding 

for State, Territory, and area plan 

administration may not account for 

more than 75 percent of the total 

funding expended and requires a 25 

percent match. As set forth in 2 CFR 

200.306(c), prior written approval is 

hereby granted for unrecovered indirect 

costs to be used as match. 

(2) Supportive services and nutrition 

services. (i) Federal funding for services 

funded under supportive services as set 

forth in § 1321.85, less the portion of 

funds used for the Ombudsman 

program, may not account for more than 

85 percent of the total funding 

expended, and requires a 15 percent 

match; 

(ii) Federal funding for services 

funded under nutrition services as set 

forth in § 1321.87, less funds provided 

under the Nutrition Services Incentive 

Program, may not account for more than 

85 percent of the total funding 

expended, and requires a 15 percent 

match; 

(iii) One-third (1⁄3) of the 15 percent 

match must be met from State resources, 

and the remaining two-thirds (2⁄3) match 

may be met by State or local resources; 

(iv) The match for supportive services 

and nutrition services may be pooled. 

(3) Family caregiver support services. 

The Federal funding for services funded 

under family caregiver support services 

as set forth in § 1321.91 may not 

account for more than 75 percent of the 

total dollars expended and requires a 25 

percent match. 

(4) Services not requiring match. 

Services for which no match is required 

include: 

(i) Evidence-based disease prevention 

and health promotion services as set 

forth in § 1321.89; 

(ii) The Nutrition Services Incentive 

Program; and 

(iii) The portion of funds from 

supportive services used for the 

Ombudsman program. 

(iii) Transfers. Transfer of service 

allotments elected by the State agency 

which must meet the following 

requirements: 

(A) A State agency must provide 

notification of the transfer amounts 

elected pursuant to guidance as set forth 

by the Assistant Secretary for Aging; 

(B) A State agency shall not delegate 

to an area agency on aging or any other 

entity the authority to make a transfer; 

(C) A State agency may only elect to 

transfer between the Title III, part B 

Supportive Services and Senior Centers, 

part C–1 Congregate Nutrition Services, 

and part C–2 Home-Delivered Nutrition 

Services grant awards; 

(1) The State agency may elect to 

transfer up to 40 percent between the 

Title III, part C–1 and part C–2 grant 

awards, per section 308(b)(4)(A) of the 

Act (42 U.S.C. 3028(b)(4)(A)); 


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(i) The State agency must request and 

receive approval of a waiver from the 

Assistant Secretary for Aging to exceed 

the 40 percent transfer limit. 

(ii) The State agency may request a 

waiver up to an additional 10 percent 

between the Title III part C–1 and part 

C–2 grant awards, per section 

308(b)(4)(B) of the Act (42 U.S.C. 

3028(b)(4)(B)). 

(2) The State agency may elect to 

transfer up to 30 percent between Title 

III, parts B and C, per section 

308(b)(5)(A) of the Act (42 U.S.C. 

3028(b)(5)(A)); and 

(i) The State agency must request and 

receive approval of a waiver from the 

Assistant Secretary for Aging to exceed 

the 30 percent limitation between parts 

B and C, per section 316(b)(4) of the Act 

(42 U.S.C. 3030c–3(b)(4)); 

(D) Percentages subject to transfer are 

calculated based on the total original 

Title III award allotted; 

(E) Transfer limitations apply to the 

State agency in aggregate; 

(F) State agencies, in consultation 

with area agencies, shall: 

(1) Ensure the process used by the 

State agencies in transferring funds 

under this section (including 

requirements relating to the authority 

and timing of such transfers) is 

simplified and clarified to reduce 

administrative barriers; and 

(2) With respect to transfers between 

parts C–1 and C–2, direct limited 

resources to the greatest nutrition 

service needs at the community level; 

and 

(G) State agencies do not have to 

apply equal limitations on transfers to 

each area agency on aging. 

(iv) State, Territory, and area plan 

administration. State and Territory plan 

administration maximum allocation 

requirements must align with the 

approved intrastate funding formula or 

funds allocation plan as set forth in 

§ 1321.49 or § 1321.51, as applicable. In 

addition: 

(A) State and Territory plan 

administration maximum allocation 

amounts. State and Territory plan 

administration maximum allocation 

amounts may be taken from any part of 

the overall allotment to a State agency 

under Title III of the Act. Maximum 

allocation amounts are determined by 

the State agency’s status as set forth in 

this paragraph (c)(2)(iv)(A) and 

paragraph (c)(2)(iv)(B) of this section: 

(1) A State agency which serves a 

State with multiple planning and 

service areas may use the greater of 

$750,000, per section 308(b)(2)(A) of the 

Act (42 U.S.C. 3028(b)(2)(A)), or five 

percent of the total Title III Award. 

(2) A State agency which serves a 

single planning and service area State 

and is not listed in (3) below may elect 

to be subject to paragraph (c)(2)(iv)(A)(1) 

of this section or to the area plan 

administration limit of ten percent of 

the overall allotment to a State agency 

under Title III, as specified in section 

308(a)(3) (42 U.S.C. 3028(a)(3)) of the 

Act. 

(3) Guam, the United States Virgin 

Islands, American Samoa, and the 

Commonwealth of the Northern Mariana 

Islands shall have available the greater 

of $100,000 or five percent of the total 

final Title III Award, as set forth in 

section 308(b)(2)(B) (42 U.S.C. 

3028(b)(2)(B)) of the Act. 

(B) Area plan administration 

maximum allocation amounts. Area 

plan administration maximum 

allocation amounts may be allocated to 

any part of the overall allotment to the 

State agency under Title III, with the 

exception of part D, for use by area 

agencies on aging for activities as set 

forth in sections 304(d)(1)(A) and 308 of 

the Act (42 U.S.C. 3024(d)(1)(A) and 

3028) and in § 1321.57(b). Single 

planning and service area States may 

elect amounts for either State plan 

administration or area plan 

administration, as set forth in the Act 

and paragraph (c)(2)(iv)(A)(2) of this 

section. 

(1) The State agency will determine 

the maximum amount of funding 

available for area plan administration 

from the total Title III allocation after 

deducting the amount of funding 

allocated for State plan administration 

and calculating a maximum of ten 

percent of this amount; 

(2) The State agency may make no 

more than the amount calculated in 

paragraph (c)(2)(iv)(B)(1) of this section 

available to area agencies on aging for 

distribution in accordance with the 

intrastate funding formula as set forth in 

§ 1321.49; and 

(3) Any amounts available to the State 

agency for State plan administration 

which the State agency determines are 

not needed for that purpose may be 

used to supplement the amount 

available for area plan administration 

(42 U.S.C. 3028(a)(2)). 

(v) Minimum adequate proportion. 

The State agency will meet expectations 

for the minimum adequate proportion of 

funds expended by each area agency on 

aging and State agency to provide the 

categories of services of access services, 

in-home supportive services, and legal 

assistance, as identified in the approved 

State plan as set forth in § 1321.27(i). 

(vi) Maintenance of effort. The State 

agency will meet expectations regarding 

maintenance of effort, where: 

(A) The State agency must expend for 

both services and administration at least 

the average amount of State funds 

reported and certified as expended 

under the State plan for these activities 

for the three previous fiscal years for 

Title III; 

(B) The amount certified must at least 

meet minimum match requirements 

from State resources; 

(C) Any amount of State resources 

included in the Title III maintenance of 

effort certification that exceeds the 

minimum amount mandated becomes 

part of the permanent maintenance of 

effort; and 

(D) Excess State match reported on 

the Federal financial report does not 

become part of the maintenance of effort 

unless the State agency certifies the 

excess. 

(vii) The State Long-Term Care 

Ombudsman Program. The State agency 

shall maintain State Long-Term Care 

Ombudsman Program funding 

requirements, where: 

(A) Minimum Certification of 

Expenditures. The State agency must 

expend annually under Title III and 

Title VII of the Act, respectively, for the 

Ombudsman program no less than the 

minimum amounts that are required to 

be expended by section 307(a)(9) of the 

Act (42 U.S.C. 3027(a)(9)); 

(B) Expenditure Information. The 

State agency must provide the 

Ombudsman with verifiable 

expenditure information for the annual 

certification of minimum expenditures 

and for completion of annual reports; 

and 

(C) Fiscal management and 

determination of resources. Fiscal 

management and determination of 

resources appropriated or otherwise 

available for the operation of the Office 

are in compliance as set forth at 

§ 1324.13(f) of this chapter. 

(viii) Rural minimum expenditures. 

The State agency shall maintain 

minimum expenditures for services for 

older individuals residing in rural areas, 

where: 

(A) The State agency shall establish a 

process and control for determining the 

definition of ‘‘rural areas’’ within their 

State; 

(B) For each fiscal year, the State 

agency must spend on services for older 

individuals residing in rural areas the 

minimum annual amount that is not less 

than the amount expended for such 

services, as required by the Act; and 

(C) The State agency must project the 

cost of providing such services for each 

fiscal year (including the cost of 

providing access to such services) and 

must specify a plan for meeting the 


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11662 Federal Register / Vol. 89, No. 31 / Wednesday, February 14, 2024 / Rules and Regulations 

needs for such services for each fiscal 

year. 

(ix) Reallotment. The State agency 

shall maintain requirements for 

reallotment of funds, where: 

(A) The State agency must annually 

review and notify the Assistant 

Secretary for Aging prior to the end of 

the fiscal year in which grant funds 

were awarded if there is funding that 

will not be expended within the grant 

period for Title III or VII that the State 

agency will release to the Assistant 

Secretary for Aging. 

(B) The State agency must annually 

review and notify the Assistant 

Secretary for Aging of the amount of any 

released Title III or VII funding from 

other State agencies that the State 

agency requests to receive and expend 

within the grant period from the 

Assistant Secretary for Aging. 

(C) The State agency must use its 

intrastate funding formula or funds 

distribution plan, as set forth in 

§ 1321.49 or § 1321.51, to distribute any 

Title III funds that the Assistant 

Secretary for Aging reallots pursuant to 

the State agency’s notification under 

paragraph (c)(2)(ix)(B) of this section. 

(x) Voluntary contributions. Voluntary 

contributions shall be allowed and may 

be solicited for all services for which 

funds are received under this Act, 

consistent with section 315(b) (42 U.S.C. 

3030c–2(b)). Policies and procedures 

related to voluntary contributions shall 

address these requirements: 

(A) Suggested contribution levels. The 

suggested contribution levels shall be 

based on the actual cost of services; 

(B) Individuals encouraged to 

contribute. Voluntary contributions 

shall be encouraged for individuals 

whose self-declared income is at or 

above 185 percent of the Federal 

poverty level. Assets, savings, or other 

property owned by an older individual 

or family caregiver may not be 

considered when seeking voluntary 

contributions from any older individual 

or family caregiver; 

(C) Solicitation. The method of 

solicitation must be noncoercive, and 

the solicitation: 

(1) Must meet all the requirements of 

this provision; and 

(2) Be conducted in such a manner so 

as not to cause a service recipient to feel 

intimidated, or otherwise feel pressured 

into making a contribution. 

(D) Provisions to all service 

recipients. All recipients of services 

shall be provided: 

(1) An opportunity to voluntarily 

contribute to the cost of the service; 

(2) Clear information, including 

information in alternative formats and 

in languages other than English in 

compliance with Federal civil rights 

laws, explaining there is no obligation 

to contribute, and the contribution is 

voluntary; 

(3) Protection of privacy and 

confidentiality of each recipient with 

respect to the recipient’s income and 

contribution or lack of contribution. 

(E) Prohibition on means testing. 

Means testing, as defined in § 1321.3, is 

prohibited; 

(F) Prohibition on denial of services. 

Services shall not be denied because the 

older individual or family caregiver will 

not or cannot make a voluntary 

contribution; 

(G) Procedures to be established. 

Appropriate procedures to safeguard 

and account for all contributions are 

established; and 

(H) Collection of program income. 

Amounts collected are considered 

program income and are subject to the 

requirements in 2 CFR 200.307 and in 

§ 1321.9(c)(2)(xii). 

(xi) Cost sharing. A State agency is 

permitted under section 315(a) of the 

Act (42 U.S.C. 3030c–2(a)), to 

implement cost sharing for services 

funded by the Act by recipients of the 

services, except as provided for in 

paragraph (c)(2)(xi)(D) of this section. If 

the State agency allows for cost sharing, 

the State agency shall address these 

requirements: 

(A) Policies and procedures. The State 

agency shall develop policies and 

procedures to be implemented 

statewide, including how an area agency 

on aging may request and receive a 

waiver of cost sharing policies, if the 

area agency on aging adequately 

demonstrates: 

(1) A significant proportion of persons 

receiving services under the Act have 

incomes below the threshold 

established in State agency policies and 

procedures; or 

(2) That cost sharing would be an 

unreasonable administrative or financial 

burden upon the area agency on aging. 

(B) Sliding contribution scale. The 

State agency shall establish a sliding 

contribution scale and a description of 

the criteria to participate in cost sharing 

to be implemented statewide, which 

shall: 

(1) Meet all the requirements of this 

provision; 

(2) Be based solely on individual 

income and the cost of delivering 

services; 

(3) Be communicated including in 

written materials and in alternative 

formats upon request; 

(4) Explain there is no obligation to 

contribute, and the contribution is 

voluntary; 

(5) Be conducted in such a manner so 

as not to cause a service recipient to feel 

intimidated, or otherwise feel pressured 

into making a contribution; 

(6) Protect the privacy and 

confidentiality of each recipient with 

respect to the recipient’s income and 

contribution or lack of contribution. 

(C) Individuals eligible to cost share. 

Individuals shall be determined eligible 

to cost share based solely on a 

confidential declaration of income and 

with no requirement for verification; 

(D) Prohibitions on cost sharing. Cost 

sharing is prohibited as follows: 

(1) By a low-income older individual 

if the income of such individual is at or 

below the Federal poverty level; 

(2) If State agency policies and 

procedures specify other low-income 

individuals within the State excluded 

from cost sharing; 

(3) For the following services: 

(i) Information and assistance, 

outreach, benefits counseling, or case 

management services; 

(ii) Ombudsman, elder abuse 

prevention, legal assistance, or other 

consumer protection services; 

(iii) Congregate and home-delivered 

meals; and 

(iv) Any services delivered through 

Tribal organizations. 

(E) Prohibition on means testing. 

Means testing, as defined in § 1321.3, is 

prohibited; 

(F) Prohibition on denial of services. 

Services shall not be denied because the 

older individual or family caregiver will 

not or cannot make a cost sharing 

contribution; 

(G) Procedures to be established. 

Appropriate procedures to safeguard 

and account for all cost sharing 

contributions are established; and 

(H) Collection of program income. All 

cost sharing contributions collected are 

considered program income and are 

subject to the requirements of 2 CFR 

200.307, 45 CFR 75.307, and in 

§ 1321.9(c)(2)(xii). 

(xii) Use of program income. Program 

income is subject to the requirements in 

2 CFR 200.307 and 45 CFR 75.307 and 

as follows: 

(A) Voluntary contributions and cost 

sharing payments are considered 

program income; 

(B) Program income collected must be 

used to expand a service funded under 

the Title III grant award pursuant to 

which the income was originally 

collected; 

(C) The State agency must use the 

addition alternative as set forth in 2 CFR 

200.307(e)(2) and 45 CFR 75.307(e)(2) 

when reporting program income, and 

prior approval of the addition 

alternative from the Assistant Secretary 

for Aging is not required; 


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(D) Program income must be 

expended or disbursed prior to 

requesting additional Federal funds; and 

(E) Program income may not be used 

to match grant awards funded by the 

Act without prior approval. 

(xiii) Private pay programs. The State 

agency shall maintain requirements for 

private pay programs, where: 

(A) State agencies, area agencies on 

aging, and service providers may 

provide private pay programs, subject to 

State and/or area agency policies and 

procedures; 

(B) The State agency requires area 

agencies and service providers under 

the Act that establish private pay 

programs to develop policies and 

procedures to: 

(1) Promote equity, fairness, 

inclusion, and adherence to the 

requirements of the Act, including: 

(i) Meeting conflict of interest 

requirements; 

(ii) Meeting financial accountability 

requirements; 

(iii) Prohibiting use of funds for direct 

services under Title III to support 

provision of service via private pay 

programs, except as a part of routine 

information and assistance or case 

management referrals; and 

(2) Require that persons who receive 

information about private pay programs 

and who are eligible for services 

provided with Title III funds in the 

planning and service area be made 

aware of Title III-funded and any similar 

voluntary contributions-based service 

options, even if there is a waiting list for 

those services, on an initial and periodic 

basis to allow individuals to determine 

whether they will select voluntary 

contributions-based services or private 

pay programs. 

(xiv) Contracts and commercial 

relationships. The State agency shall 

maintain requirements for contracts and 

commercial relationships, where: 

(A) State agencies, area agencies on 

aging, and service providers may enter 

into contracts and commercial 

relationships, subject to State and/or 

area agency policies and procedures and 

guidance as set forth by the Assistant 

Secretary for Aging, including through: 

(1) Contracts with health care payers; 

(2) Private pay programs; or 

(3) Other arrangements with entities 

or individuals that increase the 

availability of home-and communitybased services and supports. 

(B) The State agency shall require area 

agencies and service providers under 

the Act that establish contracts and 

commercial relationships to develop 

policies and procedures to: 

(1) Promote fairness, inclusion, and 

adherence to the requirements of the 

Act, including: 

(i) Meeting conflict of interest 

requirements; and 

(ii) Meeting financial accountability 

requirements. 

(2) With the approval of the State and/ 

or area agency, allow use of funds for 

direct services under Title III to support 

provision of service via contracts and 

commercial relationships when: 

(i) All requirements for direct services 

provision are maintained, as set forth in 

this part and the Act, or 

(ii) In compliance with the 

requirements of the Act, as set forth in 

section 212 (42 U.S.C. 3020c), and all 

other applicable Federal requirements. 

(C) The State agency shall, through 

the area plan or other process, develop 

policies and procedures for area 

agencies on aging and service providers 

to receive approval to establish 

contracts and commercial relationships 

and participate in activities related to 

contracts and commercial relationships. 

(xv) Buildings, alterations or 

renovations, maintenance, and 

equipment. Buildings and equipment, 

where costs incurred for altering or 

renovating, utilities, insurance, security, 

necessary maintenance, janitorial 

services, repair, and upkeep (including 

Federal property unless otherwise 

provided for) to keep buildings and 

equipment in an efficient operating 

condition, including acquisition and 

replacement of equipment, may be an 

allowable use of funds, and the 

following apply: 

(A) Costs are only allowable to the 

extent not payable by third parties 

through rental or other agreements; 

(B) Costs must be allocated 

proportionally to the benefiting grant 

program; 

(C) Construction and acquisition 

activities are only allowable for 

multipurpose senior centers. In addition 

to complying with the requirements of 

the Act, as set forth in section 312 (42 

U.S.C. 3030b), as well as with all other 

applicable Federal laws, the grantee or 

subrecipient as applicable must file a 

Notice of Federal Interest in the 

appropriate official records of the 

jurisdiction where the property is 

located at the time of acquisition or 

prior to commencement of construction, 

as applicable. The Notice of Federal 

Interest must indicate that the 

acquisition or construction, as 

applicable, has been funded with an 

award under Title III of the Act, that the 

requirements set forth in section 312 of 

the Act (42 U.S.C. 3030b) apply to the 

property, and that inquiries regarding 

the Federal Government’s interest in the 

property should be directed in writing 

to the Assistant Secretary for Aging; 

(D) Altering and renovating activities 

are allowable for facilities providing 

direct services with funds provided as 

set forth in §§ 1321.85, 1321.87, 

1321.89, and 1321.91 subject to Federal 

grant requirements under 2 CFR part 

200 and 45 CFR part 75; 

(E) Altering and renovating activities 

are allowable for facilities used to 

conduct area plan administration 

activities with funds provided as set 

forth in paragraph (c)(2)(iv)(B) of this 

section, subject to Federal grant 

requirements under 2 CFR part 200 and 

45 CFR part 75; and 

(F) Prior approval by the Assistant 

Secretary for Aging does not apply. 

(xvi) Supplement, not supplant. 

Funds awarded under the Act for 

services provided under sections 

306(a)(9)(B) (42 U.S.C. 3026(a)(9)(B)), 

315(b)(4)(E) (42 U.S.C. 3030c– 

2(b)(4)(E)), 321(d) (42 U.S.C. 3030d(d)), 

374 (42 U.S.C. 3030s–2), and 705(a)(4) 

(42 U.S.C. 3058d(a)(4)), must be used to 

supplement, not supplant existing 

Federal, State, and local funds 

expended to support those activities. 

(xvii) Monitoring of State plan 

assurances. Monitoring for compliance 

for assurances identified in the 

approved State plan as set forth in 

§ 1321.27. 

(xviii) Advance funding. If the State 

agency permits the advance of funding 

to meet immediate cash needs of area 

agencies on aging and service providers, 

the State agency shall have policies and 

procedures which comply with all 

applicable Federal requirements, 

including timeframes and amount 

limitations that may apply. 

(xix) Fixed amount subawards. Fixed 

amount subawards up to the simplified 

acquisition threshold are allowed. 

(3) The State plan process, including 

compliance with requirements as set 

forth in §§ 1321.27 and 1321.29. 

(4) In States with multiple planning 

and service areas, the area plan process, 

including compliance with 

requirements as set forth in § 1321.65. 

§ 1321.11 Advocacy responsibilities. 

(a) The State agency shall: 

(1) Review, monitor, evaluate, and 

comment on Federal, State, and local 

plans, budgets, regulations, programs, 

laws, levies, hearings, policies, and 

actions which affect or may affect older 

individuals or family caregivers, and 

recommend any changes in these which 

the State agency considers to be aligned 

with the interests identified in the Act; 

(2) Provide technical assistance and 

training to agencies, organizations, 

associations, or individuals representing 

older individuals and family caregivers; 

and 


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(3) Review and comment on 

applications to State and Federal 

agencies for assistance relating to 

meeting the needs of older individuals 

and family caregivers. 

(b) No requirement in this section 

shall be deemed to supersede a 

prohibition contained in a Federal 

appropriation on the use of Federal 

funds to lobby. 

§ 1321.13 Designation of and designation 

changes to planning and service areas. 

(a) The State agency is responsible for 

designating distinct planning and 

service areas within the State. 

(b) No State agency may designate the 

entire State as a single planning and 

service area, except for States 

designated as such on or before October 

1, 1980. 

(c) State agencies must have policies 

and procedures regarding designation of 

and changes to planning and service 

areas in accordance with the Act. Such 

policies and procedures should provide 

due process to affected parties, 

accountability, and transparency. Such 

policies and procedures must address 

the following: 

(1) The application process to change 

a planning and service area, if initiated 

outside of the State agency; 

(2) How notice to interested parties 

will be provided; 

(3) How need for the action will be 

documented; 

(4) Provisions for conducting a public 

hearing; 

(5) Provisions for involving area 

agencies on aging, service providers, 

and older individuals in the action or 

proceeding, such as offering other 

opportunities for feedback from 

interested parties; 

(6) The appeals process for affected 

parties; and 

(7) Timeframes that apply to each of 

the items under this paragraph (c). 

(d) State agencies that seek to change 

one or more planning and service area 

designations must consider the 

following: 

(1) The geographical distribution of 

older individuals in the State; 

(2) The incidence of the need for 

services under the Act; 

(3) The distribution of older 

individuals who have greatest economic 

need and greatest social need (with 

particular attention to low-income older 

individuals, including low-income 

minority older individuals, older 

individuals with limited English 

proficiency, and older individuals 

residing in rural areas) residing in such 

areas; 

(4) The distribution of older 

individuals who are Native Americans 

residing in such areas; 

(5) The distribution of resources 

available to provide such services under 

the Act; 

(6) The boundaries of existing areas 

within the State which were drawn for 

the planning or administration of 

services under the Act; 

(7) The location of units of general 

purpose local government, as defined in 

section 302(4) of the Act (2 U.S.C. 

3022(4)), within the State; and 

(8) Any other relevant factors. 

(e) When the State agency issues a 

decision to change planning and service 

areas, it shall provide an explanation of 

its consideration of the factors in 

paragraph (d) of this section. Such 

explanations must be included in the 

State plan amendment submitted as set 

forth in § 1321.31(b) or State plan 

submitted as set forth in § 1321.33. 

§ 1321.15 Interstate planning and service 

area. 

(a) An interstate planning and service 

area is an agreement between the State 

agencies that have responsibility for 

administering the programs within the 

interstate area, in which the agreement 

increases the allotment of the State 

agency or agencies with lead 

responsibility and decreases the 

allotment of the State agency or agencies 

without the lead responsibility. The 

Governor of any State in which a 

planning and service area crosses State 

boundaries, or in which an interstate 

Indian reservation is located, may apply 

to the Assistant Secretary for Aging to 

request redesignation as an interstate 

planning and service area comprising 

the entire metropolitan area or Indian 

reservation. If the Assistant Secretary for 

Aging approves such an application, the 

Assistant Secretary for Aging shall 

adjust the State agency allotments of the 

areas within the planning and service 

area in which the interstate planning 

and service area is established to reflect 

the number of older individuals within 

the area who will be served by an 

interstate planning and service area not 

within the State. 

(b) Before requesting permission of 

the Assistant Secretary for Aging to 

designate an interstate planning and 

service area, the Governor of each State 

shall execute a written agreement that 

specifies the State agency proposed to 

have lead responsibility for 

administering the programs within the 

interstate planning and service area and 

lists the conditions, agreed upon by 

each State agency, governing the 

administration of the interstate planning 

and service area. 

(c) The lead State agency shall request 

permission of the Assistant Secretary for 

Aging to designate an interstate 

planning and service area by submitting 

the request, together with a copy of the 

agreement as part of its State plan or as 

an amendment to its State plan. 

(d) Prior to the Assistant Secretary for 

Aging’s approval for State agencies to 

designate an interstate planning and 

service area, the Assistant Secretary for 

Aging shall determine that all 

applicable requirements and procedures 

in §§ 1321.27 and 1321.29 are met. 

(e) If the request is approved, the 

Assistant Secretary for Aging, based on 

the agreement between the State 

agencies, will increase the allocation(s) 

of the State agency or agencies with lead 

responsibility for administering the 

programs within the interstate area and 

will reduce the allocation(s) of the State 

agency or agencies without lead 

responsibility by one of these methods: 

(1) Reallocation of funds in 

proportion to the number of individuals 

age 60 and over for funding provided 

under Title III, parts B, C, and D and in 

proportion to the number of individuals 

age 70 and over for funding provided 

under Title III, part E for that portion of 

the interstate planning and service area 

located in the State without lead 

responsibility; or 

(2) Reallocation of funds based on the 

intrastate funding formula of the State 

agency or agencies without lead 

responsibility. 

(f) Each State agency that is a party to 

an interstate planning and service area 

agreement shall review and confirm 

their agreement as a part of their State 

plan on aging as set forth in § 1321.27. 

§ 1321.17 Appeal to the Departmental 

Appeals Board on planning and service 

area designation. 

(a) This section sets forth the 

procedures for providing hearings to 

applicants for designation as a planning 

and service area under § 1321.13, whose 

application is denied by the State 

agency or § 1321.15, whose application 

is denied by the Assistant Secretary for 

Aging. 

(b) Any applicant for designation as a 

planning and service area whose 

application is denied, and who has been 

provided a hearing and a written 

decision by the State agency, may 

appeal the denial to the Departmental 

Appeals Board (DAB) in writing 

following receipt of the State agency’s 

written decision, in accordance with the 

procedures set forth in 45 CFR part 16. 

The applicant must, at the time of filing 

an appeal with the DAB, mail a copy of 

the appeal to the State agency, if 

appealing subject to § 1321.13, or the 

Assistant Secretary for Aging, if 

appealing subject to § 1321.15, and 

include a certificate of service with its 


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initial filing. The DAB may refer an 

appeal to its Alternative Dispute 

Resolution Division for mediation prior 

to making a decision. 

§ 1321.19 Designation of and designation 

changes to area agencies. 

(a) The State agency is responsible for 

designating an area agency on aging to 

serve each planning and service area. 

Only one area agency on aging shall be 

designated to serve each planning and 

service area. An area agency on aging 

may serve more than one planning and 

service area. An area agency that serves 

more than one planning and service area 

must maintain separate funding, 

planning, and advocacy responsibilities 

for each planning and service area. State 

agencies shall have policies and 

procedures regarding designation of area 

agencies on aging and changes to an 

agency’s designation as an area agency 

on aging in accordance with the Act. 

Such policies and procedures should 

provide due process to affected parties, 

accountability, and transparency and 

must address the following: 

(1) Provisions for designating an area 

agency on aging, including: 

(i) The application process; 

(ii) How notice to interested parties 

will be provided; 

(iii) How views offered by the unit(s) 

of general purpose local government in 

such area will be obtained and 

considered; 

(iv) How the State agency will provide 

the right of first refusal to a unit of 

general purpose local government if: 

(A) Such unit demonstrates ability to 

meet the requirements as set forth by the 

State agency, in accordance with the 

Act; and 

(B) The boundaries of such a unit and 

the boundaries of the area are 

reasonably contiguous. 

(v) How the State agency shall then 

give preference to an established office 

on aging if the unit of general purpose 

local government chooses not to 

exercise the right of first refusal; 

(vi) How the State agency will assume 

area agency on aging responsibilities in 

the event there are no successful 

applicants in the State agency’s 

application process; and 

(vii) The appeals process for affected 

parties. 

(2) Provisions for an area agency on 

aging that voluntarily relinquishes their 

area agency on aging designation, 

including that the State agency’s written 

acceptance of the voluntary 

relinquishment of area agency on aging 

designation will be considered as the 

State agency’s withdrawal of area 

agency on aging designation, and 

requirements under § 1321.21(b) will 

apply; 

(3) Provisions for when the State 

agency takes action to withdraw an area 

agency on aging’s designation, in 

accordance with § 1321.21; 

(4) Provisions for when the State 

agency administers area agency on aging 

programs as provided for in section 

306(f) (42 U.S.C. 3026(f)), where the 

Assistant Secretary for Aging may 

extend the 90-day period if the State 

agency requests an extension and 

demonstrates to the satisfaction of the 

Assistant Secretary for Aging a need for 

the extension; and 

(5) If a State agency previously 

designated the entire State as a single 

planning and service area, provisions 

for when the State agency designates 

one or more additional planning and 

service areas. 

(b) For any of the actions listed in 

paragraph (a) of this section, the State 

agency must submit a State plan 

amendment as set forth in § 1321.31(b) 

or State plan as set forth in § 1321.33; 

(c) An area agency may be any of the 

following types of agencies: 

(1) An established office on aging 

which is operating within a planning 

and service area; 

(2) Any office or agency of a unit of 

general purpose local government, 

which is designated to function for the 

purpose of serving as an area agency on 

aging by the chief elected official of 

such unit; 

(3) Any office or agency designated by 

the appropriate chief elected officials of 

any combination of units of general 

purpose local government to act on 

behalf of such combination for such 

purpose; or 

(4) Any non-State, local public, or 

nonprofit private agency in a planning 

and service area, or any separate 

organizational unit within such agency, 

which is under the supervision or 

direction for this purpose of the 

designated State agency, and which 

demonstrates the ability and willingness 

to engage in the planning or provision 

of a broad range of services under the 

Act within such planning and service 

area. 

(d) A State agency may not designate 

any regional or local office of the State 

as an area agency. 

§ 1321.21 Withdrawal of area agency 

designation. 

(a) In carrying out section 305 of the 

Act (42 U.S.C. 3025), the State agency 

shall withdraw the area agency 

designation whenever it, after 

reasonable notice and opportunity for a 

hearing, finds that: 

(1) An area agency does not meet the 

requirements of this part; 

(2) An area plan or plan amendment 

is not approved; 

(3) There is substantial failure in the 

provisions or administration of an 

approved area plan to comply with any 

provision of the Act, regulations and 

other guidance as set forth by the 

Assistant Secretary for Aging, terms and 

conditions of Federal grant awards 

under the Act, or policies and 

procedures established and published 

by the State agency on aging; 

(4) Activities of the area agency are 

inconsistent with the statutory mission 

prescribed in the Act; 

(5) The State agency changes one or 

more planning and service area 

designations; or 

(6) The area agency voluntarily 

requests the State agency withdraw its 

designation. 

(b) If a State agency withdraws an area 

agency’s designation under this section 

it shall: 

(1) Provide a plan for the continuity 

of area agency functions and services in 

the affected planning and service area; 

(2) Submit a State plan amendment as 

set forth in § 1321.31(b) or State plan as 

set forth in § 1321.33; and 

(3) Designate a new area agency in the 

planning and service area in a timely 

manner. 

(c) If necessary to ensure continuity of 

services in a planning and service area, 

the State agency may, for a period of up 

to 180 days after its final decision to 

withdraw designation of an area agency: 

(1) Perform the responsibilities of the 

area agency; or 

(2) Assign the responsibilities of the 

area agency to another agency in the 

planning and service area. 

(d) The Assistant Secretary for Aging 

may extend the 180-day period if a State 

agency: 

(1) Notifies the Assistant Secretary for 

Aging in writing of its action under this 

section; 

(2) Requests an extension; and 

(3) Demonstrates to the satisfaction of 

the Assistant Secretary for Aging a need 

for the extension. Need for the extension 

may include the State agency’s 

reasonable but unsuccessful attempts to 

procure an applicant to serve as the area 

agency. 

§ 1321.23 Appeal to the Departmental 

Appeals Board on area agency on aging 

withdrawal of designation. 

(a) This section sets forth hearing 

procedures afforded to affected parties if 

the State agency initiates an action or 

proceeding to withdraw designation of 

an area agency on aging. 

(b) Any area agency on aging that has 

appealed a State agency’s decision to 

withdraw area agency on aging 

designation, and that has been provided 

a hearing and a written decision, may 


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appeal the decision to the Departmental 

Appeals Board in writing following 

receipt of the State agency’s written 

decision, in accordance with the 

procedures set forth in 45 CFR part 16. 

The applicant must, at the time of filing 

an appeal with the DAB, mail a copy of 

the appeal to the State agency and 

include a certificate of service with its 

initial filing. The DAB may refer an 

appeal to its Alternative Dispute 

Resolution Division for mediation prior 

to making a decision. 

§ 1321.25 Duration, format, and effective 

date of the State plan. 

(a) A State agency will follow the 

guidance issued by the Assistant 

Secretary for Aging regarding duration 

and formatting of the State plan. Unless 

otherwise indicated, a State agency may 

determine the format, how to collect 

information for the plan, and whether 

the plan will remain in effect for two, 

three, or four years. 

(b) An approved State plan or 

amendment identified in § 1321.31(a) 

becomes effective on the date 

designated by the Assistant Secretary for 

Aging. 

(c) A State agency may not make 

expenditures under a new plan or 

amendment requiring approval, as 

identified in § 1321.27 or § 1321.31(a), 

until it is approved. 

§ 1321.27 Content of State plan. 

To receive a grant under this part, a 

State agency shall have an approved 

State plan as prescribed in section 307 

of the Act (42 U.S.C. 3027). In addition 

to meeting the requirements of section 

307, a State plan shall include: 

(a) Identification of the sole State 

agency that the State has designated to 

develop and administer the plan. 

(b) Statewide program objectives to 

implement the requirements under Title 

III and Title VII of the Act and any 

objectives established by the Assistant 

Secretary for Aging. 

(c) Evidence that the State plan is 

informed by and based on area plans, 

except for single planning and service 

area States. 

(d) A description of how greatest 

economic need and greatest social need 

are determined and addressed by 

specifying: 

(1) How the State agency defines 

greatest economic need and greatest 

social need, which shall include the 

populations as set forth in the § 1321.3 

definitions of greatest economic need 

and greatest social need; and 

(2) The methods the State agency will 

use to target services to the populations 

identified in paragraph (d)(1) of this 

section, including how funds under the 

Act may be distributed to serve 

prioritized populations in accordance 

with requirements as set forth in 

§ 1321.49 or § 1321.51, as appropriate. 

(e) An intrastate funding formula or 

funds distribution plan indicating the 

proposed use of all Title III funds 

administered by a State agency, and the 

distribution of Title III funds to each 

planning and service area, in 

accordance with § 1321.49 or § 1321.51, 

as appropriate. 

(f) Identification of the geographic 

boundaries of each planning and service 

area and of area agencies on aging 

designated for each planning and 

service area, if applicable. 

(g) Demonstration that the 

determination of greatest economic need 

and greatest social need specific to 

Native American persons is identified 

pursuant to communication among the 

State agency and Tribes, Tribal 

organizations, and Native communities, 

and that the services provided under 

this part will be coordinated, where 

applicable, with the services provided 

under Title VI of the Act and that the 

State agency shall require area agencies 

to provide outreach where there are 

older Native Americans in any planning 

and service area, including those living 

outside of reservations and other Tribal 

lands. 

(h) Certification that any program 

development and coordination activities 

shall meet the following requirements: 

(1) The State agency shall not fund 

program development and coordination 

activities as a cost of supportive services 

under area plans until it has first spent 

10 percent of the total of its combined 

allotments under Title III on the 

administration of area plans; 

(2) Program development and 

coordination activities must only be 

expended as a cost of State plan 

administration, area plan 

administration, and/or Title III, part B 

supportive services; 

(3) State agencies and area agencies 

on aging shall, consistent with the area 

plan and budgeting cycles, submit the 

details of proposals to pay for program 

development and coordination as a cost 

of Title III, part B supportive services to 

the general public for review and 

comment; and 

(4) Expenditure by the State agency 

and area agency on program 

development and coordination activities 

are intended to have a direct and 

positive impact on the enhancement of 

services for older individuals and family 

caregivers in the planning and service 

area. 

(i) Specification of the minimum 

proportion of funds that will be 

expended by each area agency on aging 

and the State agency to provide each of 

the following categories of services: 

(1) Access to services; 

(2) In-home supportive services; and 

(3) Legal assistance, as set forth in 

§ 1321.93. 

(j) If the State agency allows for Title 

III, part C–1 funds to be used as set forth 

in § 1321.87(a)(1)(i): 

(1) Evidence, using participation 

projections based on existing data, that 

provision of such meals will enhance 

and not diminish the congregate meals 

program, and a commitment to monitor 

the impact on congregate meals program 

participation; 

(2) Description of how provision of 

such meals will be targeted to reach 

those populations identified as in 

greatest economic need and greatest 

social need; 

(3) Description of the eligibility 

criteria for service provision; 

(4) Evidence of consultation with area 

agencies on aging, nutrition and other 

direct services providers, other 

interested parties, and the general 

public regarding the provision of such 

meals; and 

(5) Description of how provision of 

such meals will be coordinated with 

area agencies on aging, nutrition and 

other direct services providers, and 

other interested parties. 

(k) How the State agency will use 

funds for prevention of elder abuse, 

neglect, and exploitation as set forth in 

45 CFR part 1324, subpart B. 

(l) How the State agency will meet 

responsibilities for the Legal Assistance 

Developer, as set forth in 45 CFR part 

1324, subpart C. 

(m) Description of how the State 

agency will conduct monitoring that the 

assurances to which they attest are 

being met. 

§ 1321.29 Public participation. 

The State agency shall: 

(a) Have mechanisms and varied 

methods to obtain the views of older 

individuals, family caregivers, service 

providers, and the public on a periodic 

basis, with a focus on those in greatest 

economic need and greatest social need; 

(b) Consider those views in 

developing and administering the State 

plan and policies and procedures 

regarding services provided under the 

plan; 

(c) Establish and comply with a 

reasonable minimum time period (at 

least 30 calendar days) for public review 

and comment on new State plans as set 

forth in § 1321.27 and State plan 

amendments requiring approval of the 

Assistant Secretary for Aging as set forth 

in § 1321.31(a). State agencies may 

request a waiver of the minimum time 


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period from the Assistant Secretary for 

Aging during an emergency or when a 

time sensitive action is otherwise 

necessary; 

(d) Ensure the documents noted in 

paragraph (c) of this section and final 

State plans and amendments are 

available to the public for review, as 

well as available in alternative formats 

and other languages if requested. 

§ 1321.31 Amendments to the State plan. 

(a) Subject to prior approval by the 

Assistant Secretary for Aging, a State 

agency shall amend the State plan 

whenever necessary to reflect: 

(1) New or revised statutes or 

regulations as determined by the 

Assistant Secretary for Aging; 

(2) An addition, deletion, or change to 

a State agency’s goal, assurance, or 

information requirement statement; 

(3) A change in the State agency’s 

intrastate funding formula or funds 

distribution plan for Title III funds, as 

set forth in § 1321.49 or § 1321.51; 

(4) A request to waive State plan 

requirements as set forth in section 316 

of the Act (42 U.S.C. 3030c–3), or as 

required by guidance as set forth by the 

Assistant Secretary for Aging; or 

(5) Other changes as required by 

guidance as set forth by the Assistant 

Secretary for Aging. 

(b) A State agency shall amend the 

State plan and notify the Assistant 

Secretary for Aging of an amendment 

not requiring prior approval whenever 

necessary and within 30 days of the 

action(s) listed in paragraphs (b)(1) 

through (6) of this section: 

(1) A significant change in a State law, 

organization, policy, or State agency 

operation; 

(2) A change in the name or 

organizational placement of the State 

agency; 

(3) Distribution of State plan 

administration funds for demonstration 

projects; 

(4) A change in planning and service 

area designation, as set forth in 

§ 1321.13; 

(5) A change in area agency on aging 

designation, as set forth in § 1321.19; or 

(6) Exercising of major disaster 

declaration flexibilities, as set forth in 

§ 1321.101. 

(c) Information required by this 

section shall be submitted according to 

guidelines prescribed by the Assistant 

Secretary for Aging. 

§ 1321.33 Submission of the State plan or 

plan amendment to the Assistant Secretary 

for Aging for approval. 

(a) Each State plan, or plan 

amendment which requires approval of 

the Assistant Secretary for Aging as set 

forth at § 1321.31(a), shall be signed by 

the Governor, or the Governor’s 

designee, and submitted to the Assistant 

Secretary for Aging to be considered for 

approval at least 90 calendar days before 

the proposed effective date of the plan 

or plan amendment according to 

guidance as set forth by the Assistant 

Secretary for Aging, except in the case 

of a waiver provided by the Assistant 

Secretary for Aging. Each State plan 

amendment which does not require the 

prior approval of the Assistant Secretary 

for Aging shall be submitted as set forth 

at § 1321.31(b). 

(b) In advance of the submission to 

the Assistant Secretary for Aging to be 

considered for approval, the State 

agency shall submit a draft of the plan 

or amendment to the appropriate ACL 

Regional Office at least 120 calendar 

days before the proposed effective date 

of the plan or plan amendment, except 

in the case of a waiver request or as 

otherwise provided in guidance as set 

forth by the Assistant Secretary for 

Aging. The State agency shall work with 

the ACL Regional Office in reviewing 

the plan or plan amendment for 

compliance. 

§ 1321.35 Notification of State plan or 

State plan amendment approval or 

disapproval for changes requiring Assistant 

Secretary for Aging approval. 

(a) The Assistant Secretary for Aging 

shall approve a State plan or State plan 

amendment by notifying the Governor 

or the Governor’s designee in writing. 

(b) When the Assistant Secretary for 

Aging proposes to disapprove a State 

plan or amendment, the Assistant 

Secretary for Aging shall notify the 

Governor in writing, giving the reasons 

for the proposed disapproval, and 

inform the State agency that it may 

request a hearing on the proposed 

disapproval following the procedures 

described in guidance issued by the 

Assistant Secretary for Aging. 

§ 1321.37 Notification of State plan 

amendment receipt for changes not 

requiring Assistant Secretary for Aging 

approval. 

The State agency shall submit an 

amendment not requiring Assistant 

Secretary for Aging approval as set forth 

at § 1321.31(b) to the appropriate ACL 

Regional Office. The ACL Regional 

Office shall review the amendment to 

confirm the contents do not require 

approval of the Assistant Secretary for 

Aging and will acknowledge receipt of 

the State plan amendment by notifying 

the head of the State agency in writing. 

§ 1321.39 Appeal to the Departmental 

Appeals Board regarding State plan on 

aging. 

If the Assistant Secretary for Aging 

intends to disapprove a State plan or 

State plan amendment, the Assistant 

Secretary for Aging shall first afford the 

State agency notice and an opportunity 

for a hearing. Administrative reviews of 

State plan disapprovals, as provided for 

in sections 307(c) and 307(d) of the Act 

(42 U.S.C. 3027(c)–(d)) are performed by 

the Department Appeals Board in 

accordance with the procedures set 

forth in 45 CFR part 16. The DAB may 

refer an appeal to its Alternative Dispute 

Resolution Division for mediation prior 

to making a decision. 

§ 1321.41 When a disapproval decision is 

effective. 

(a) The Assistant Secretary for Aging 

shall specify the effective date for 

reduction and withholding of the State 

agency’s grant upon a disapproval 

decision from the Departmental Appeals 

Board. This effective date may not be 

earlier than the date of the Departmental 

Appeals Board’s decision or later than 

the first day of the next calendar 

quarter. 

(b) A disapproval decision issued by 

the DAB represents the final 

determination of the Assistant Secretary 

for Aging and shall remain in effect 

unless reversed or stayed on judicial 

appeal, or until the agency or the plan 

is changed to meet all Federal 

requirements, except that the Assistant 

Secretary for Aging may modify or set 

aside the decision before the record of 

the proceedings under this subpart is 

filed in court. 

§ 1321.43 How the State agency may 

appeal the Departmental Appeals Board’s 

decision. 

A State agency may appeal the final 

decision of the Departmental Appeals 

Board disapproving the State plan or 

plan amendment, finding of 

noncompliance, or finding that a State 

agency does not meet the requirements 

of this part to the U.S. Court of Appeals 

for the circuit in which the State is 

located. The State agency shall file the 

appeal within 30 days of the 

Departmental Appeals Board’s final 

decision. 

§ 1321.45 How the Assistant Secretary for 

Aging may reallot the State agency’s 

withheld payments. 

The Assistant Secretary for Aging may 

disburse funds withheld from the State 

agency directly to any public or 

nonprofit private organization or 

agency, or political subdivision of the 

State that has the authority and capacity 

to carry out the functions of the State 


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agency and submits a State plan which 

meets the requirements of this part, and 

which contains an agreement to meet 

the non-Federal share requirements. 

§ 1321.47 Conflicts of interest policies and 

procedures for State agencies. 

(a) State agencies must have policies 

and procedures regarding conflicts of 

interest, in accordance with the Act and 

all other applicable Federal 

requirements. These policies and 

procedures must safeguard against 

conflicts of interest on the part of the 

State agency, employees, and agents of 

the State who have responsibilities 

relating to Title III programs, including 

area agencies on aging, governing 

boards, advisory councils, staff, and 

volunteers. Conflicts of interest policies 

and procedures must establish 

mechanisms to identify, avoid, remove, 

and remedy conflicts of interest in a 

Title III program at organizational and 

individual levels, including: 

(1) Ensuring that State agency 

employees and agents administering 

Title III programs do not have a 

financial interest in a Title III program; 

(2) Removing and remedying actual, 

perceived, or potential conflicts that 

arise due to an employee or agent’s 

financial interest in a Title III program; 

(3) Establishing robust monitoring and 

oversight, including periodic reviews, to 

identify conflicts of interest in a Title III 

program; 

(4) Ensuring that no individual, or 

member of the immediate family of an 

individual, involved in administration 

or provision of a Title III program has 

a conflict of interest; 

(5) Requiring that other agencies that 

operate a Title III program have policies 

in place to prohibit the employment or 

appointment of Title III program 

decision-makers, staff, or volunteers 

with a conflict that cannot be 

adequately removed or remedied; 

(6) Requiring that a Title III program 

takes reasonable steps to suspend or 

remove Title III program responsibilities 

of an individual who has a conflict of 

interest, or who has an immediate 

family member with a conflict of 

interest, which cannot be adequately 

removed or remedied; 

(7) Ensuring that no organization 

which provides a Title III service is 

subject to a conflict of interest; 

(8) Prohibiting the officers, 

employees, or agents of the Title III 

program from soliciting or accepting 

gratuities, favors, or anything of 

monetary value from grantees, 

contractors, and/or subrecipients, 

except where policies and procedures 

allow for situations where the financial 

interest is not substantial, or the gift is 

an unsolicited item of nominal value; 

(9) Establishing the actions the State 

agency will require a Title III program 

to take in order to remedy or remove 

such conflicts, as well as disciplinary 

actions to be applied for violations of 

such standards by officers, employees, 

or agents of the Title III program; and 

(10) Documenting conflict of interest 

mitigation strategies, as necessary and 

appropriate, when a State agency or 

Title III program operates an Adult 

Protective Services or guardianship 

program. 

(b) Individual conflicts include: 

(1) An employee, or immediate 

member of an employee’s family, 

maintaining ownership, employment, 

consultancy, or fiduciary interest in a 

Title III program organization or 

awardee when that employee or 

immediate family member is in a 

position to derive personal benefit from 

actions or decisions made in their 

official capacity; 

(2) One or more conflicts between the 

private interests and the official 

responsibilities of a person in a position 

of trust; 

(3) One or more conflicts between 

competing duties; and 

(4) Other conflicts of interest 

identified in guidance issued by the 

Assistant Secretary for Aging and/or by 

State agency policies. 

(c) Organizational conflicts include: 

(1) One or more conflicts between 

competing duties, programs, and/or 

services; and 

(2) Other conflicts of interest 

identified in guidance issued by the 

Assistant Secretary for Aging and/or by 

State agency policies. 

§ 1321.49 Intrastate funding formula. 

(a) The State agency of a State with 

multiple planning and service areas, as 

part of its State plan, in accordance with 

guidelines issued by the Assistant 

Secretary for Aging, using the best 

available data, and after consultation 

with all area agencies on aging in the 

State, shall develop and publish for 

review and comment by older 

individuals, family caregivers, other 

appropriate agencies and organizations, 

and the general public, an intrastate 

funding formula for the allocation of 

funds specific to each planning and 

service area to area agencies on aging 

under Title III for supportive, nutrition, 

evidence-based disease prevention and 

health promotion, and family caregiver 

services prior to taking the steps as set 

forth in § 1321.33. The intrastate 

funding formula shall be made available 

for public review and comment for a 

reasonable minimum time period (at 

least 30 calendar days, unless a waiver 

is provided by the Assistant Secretary 

for Aging during an emergency or when 

a time sensitive action is otherwise 

necessary). The formula shall reflect the 

proportion among the planning and 

service areas of persons age 60 and over 

in greatest economic need and greatest 

social need with particular attention to 

low-income minority older individuals. 

A separate formula may be provided for 

the evidence-based disease prevention 

and health promotion allocation to 

target areas that are medically 

underserved and in which there are 

large numbers of older individuals who 

have the greatest economic need and 

greatest social need for such services. 

The State agency shall review, update, 

and submit for approval to the Assistant 

Secretary for Aging its formula as 

needed. 

(b) The publication for review and 

comment required by the preceding 

paragraph shall include: 

(1) A descriptive statement of the 

formula’s assumptions and goals, and 

the application of the definitions of 

greatest economic need and greatest 

social need, including addressing the 

populations identified pursuant to 

§ 1321.27(d)(1), which includes the 

following components: 

(i) A statement that discloses if and 

how, prior to distribution under the 

intrastate funding formula to the area 

agencies on aging, funds are deducted 

from Title III funds for State plan 

administration, disaster set-aside funds 

as set forth in § 1321.99, and/or LongTerm Care Ombudsman Program 

allocations; 

(ii) A statement that describes if a 

separate formula will be used for 

evidence-based disease prevention and 

health promotion allocation; and 

(iii) A statement of how the State 

agency’s Nutrition Services Incentive 

Program award will be distributed. 

(2) A numerical mathematical 

statement of the actual funding formula 

to be used for all supportive, nutrition, 

evidence-based disease prevention and 

health promotion, and family caregiver 

allocations of Title III funds, including 

the separate numerical mathematical 

statement that may be provided for the 

evidence-based disease prevention and 

health promotion allocation, which 

includes: 

(i) A descriptive statement of each 

factor and the weight or percentage used 

for each factor; and 

(ii) Definitions of the terms used in 

the numerical mathematical statement. 

(3) A listing of the population, 

economic, and social data to be used for 

each planning and service area in the 

State; 


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(4) A demonstration of the allocation 

of funds, pursuant to the funding 

formula, to each planning and service 

area in the State by part of Title III; and 

(5) The source of the best available 

data used to allocate funding through 

the intrastate funding formula, which 

may include: 

(i) The most current U.S. Decennial 

Census results; 

(ii) The most current and reliable 

American Community Survey results; 

and/or 

(iii) Other high-quality data available 

to the State agency. 

(c) In meeting the requirement in 

paragraph (a) of this section, the 

intrastate funding formula may not 

allow for: 

(1) The State agency to hold funds at 

the State level except as outlined in 

paragraph (b)(1)(i) of this section; 

(2) Exceeding the State plan and area 

plan administration caps set in the Act, 

as set forth at § 1321.9(c)(2)(iv); 

(3) Use of Title III, part D funds for 

area plan administration; 

(4) A State agency to directly provide 

Title III funds to any entity other than 

a designated area agency on aging, with 

the exception of State plan 

administration funds, Title III, part B 

Ombudsman program funds, and 

disaster set-aside funds as described in 

§ 1321.99; or 

(5) Any other use in conflict with the 

Act. 

(d) In meeting the requirement in 

paragraph (b)(1)(iii) of this section, the 

following apply: 

(1) Cash must be promptly and 

equitably disbursed to recipients of 

grants or contracts for nutrition projects 

under the Act; 

(2) The statement of distribution of 

grant funds and procedures for 

determining any commodities election 

amount must be followed; 

(3) State agencies have the option to 

receive grant as cash and/or agricultural 

commodities; and 

(4) State agencies may consult with 

the area agencies on aging to determine 

the amount of the commodities election. 

(e) In meeting the requirements in this 

section, the following apply: 

(1) Title VII funds are not required to 

be subject to the intrastate funding 

formula; 

(2) Any funds allocated for the LongTerm Care Ombudsman Program under 

Title III, part B are not required to be 

subject to the intrastate funding 

formula; 

(3) The intrastate funding formula 

may provide for a separate allocation of 

funds received under Title III, part D for 

preventive health services. In the award 

of such funds to selected planning and 

service areas, the State agency shall give 

priority to areas of the State: 

(i) Which are medically underserved; 

and 

(ii) In which there are large numbers 

of individuals who have the greatest 

economic need and greatest social need 

for such services, including the 

populations the State agency identifies 

pursuant to § 1321.27(d)(1). 

(4) The State agency may determine 

the amount of funds available for area 

plan administration prior to deducting 

Title III, part B Ombudsman program 

funds and disaster set-aside funds as 

described in § 1321.99; 

(5) After deducting any State plan 

administration funds, Title III, part B 

Ombudsman program funds, and 

disaster set-aside funds as described in 

§ 1321.99, the State agency must 

allocate all other Title III funding to area 

agencies on aging designated to serve 

each planning and service area; 

(6) State agencies may reallocate 

funding within the State when an area 

agency on aging voluntarily or 

otherwise returns funds, subject to the 

State agency’s policies and procedures 

which must include the following: 

(i) If an area agency voluntarily 

returns funds, the area agency on aging 

must provide evidence that its 

governing board or chief elected official 

approves the return of funds; 

(ii) Funds must be made available to 

all area agencies on aging who request 

funds available for reallocation; 

(iii) The intrastate funding formula 

shall be proportionally adjusted based 

on area agencies on aging that request 

redistributed allocations; and 

(iv) Title III funds subject to 

reallocation may only be reallocated to 

area agencies on aging via the 

proportionally adjusted intrastate 

funding formula described in paragraph 

(a) of this section. 

(f) The State agency shall submit its 

proposed intrastate funding formula to 

the Assistant Secretary for Aging for 

prior approval as part of a State plan or 

State plan amendment as set forth in 

§ 1321.33. 

§ 1321.51 Single planning and service area 

States. 

(a) Unless otherwise specified, the 

State agency in single planning and 

service area States must meet the 

requirements in the Act and subpart C 

of this part, including maintaining an 

advisory council as set forth in 

§ 1321.63. 

(b) As part of their State plan 

submission, single planning and service 

area States must provide a funds 

distribution plan which includes: 

(1) A descriptive statement as to how 

the State agency determines the 

geographical distribution of the Title III 

and Nutrition Services Incentive 

Program funding; 

(2) How the State agency targets the 

funding to reach individuals with 

greatest economic need and greatest 

social need, with particular attention to 

low-income minority older individuals; 

(3) At the option of the State agency, 

a numerical/mathematical statement as 

a part of their funds distribution plan; 

and 

(4) Justification if the State agency 

determines it meets requirements to 

provide services directly where: 

(i) As set forth in section 307(a)(8)(A) 

of the Act (42 U.S.C. 3027(a)(8)(A)), no 

supportive services, except as set forth 

in paragraph (b)(4)(i)(B) of this section, 

nutrition services, disease prevention 

and health promotion, or family 

caregiver services will be directly 

provided by the State agency, unless, in 

the judgment of the State agency: 

(A) Provision of such services by the 

State agency is necessary to assure an 

adequate supply of such services; 

(B) Such services are directly related 

to such State agency’s administrative 

functions; or 

(C) Such services may be provided 

more economically, and with 

comparable quality, by such State 

agency. 

(ii) The State agency may directly 

provide case management, information 

and assistance services, and outreach. 

(iii) Approval of the State agency to 

provide direct services may only be 

granted for a maximum of the State plan 

period. For each time that approval is 

granted to a State agency to provide 

direct services, the State agency must 

demonstrate the State agency’s efforts to 

identify service providers prior to being 

granted a subsequent approval. 

(c) Single planning and service area 

States must adhere to use of the funds 

distribution plan for Title III and 

Nutrition Services Incentive Program 

funds within the State. If a single 

planning and service area State agency 

revises their Title III funds distribution 

plan, they may do so by: 

(1) Following their policies and 

procedures to publish the updated 

funds distribution plan for public 

review and comment for a reasonable 

minimum time period (30 calendar days 

or greater, unless a waiver is provided 

by the Assistant Secretary for Aging 

during an emergency or when a time 

sensitive action is otherwise necessary); 

and 

(2) Submitting the revised funds 

distribution plan for Assistant Secretary 

for Aging approval prior to 

implementing the changes as noted at 

§ 1321.33. 


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§ 1321.53 State agency Title III and Title VI 

coordination responsibilities. 

(a) For States where there are Title VI 

programs, the State agency’s policies 

and procedures, developed in 

coordination with the relevant Title VI 

program director(s), as set forth in 

§ 1322.13(a), must explain how the 

State’s aging network, including area 

agencies and service providers, will 

coordinate with Title VI programs to 

ensure compliance with sections 

306(a)(11)(B) and 307(a)(21)(A) of the 

Act (42 U.S.C. 3026(a)(11)(B) and 

3027(a)(21)(A)). State agencies may meet 

these requirements through a Tribal 

consultation policy that includes Title 

VI programs. 

(b) The policies and procedures set 

forth in paragraph (a) of this section 

must at a minimum address: 

(1) How the State’s aging network, 

including area agencies on aging and 

service providers, will provide outreach 

to Tribal elders and family caregivers 

regarding services for which they may 

be eligible under Title III and/or VII; 

(2) The communication opportunities 

the State agency will make available to 

Title VI programs, to include Title III 

and other funding opportunities, 

technical assistance on how to apply for 

Title III and other funding 

opportunities, meetings, email 

distribution lists, presentations, and 

public hearings; 

(3) The methods for collaboration on 

and sharing of program information and 

changes, including coordinating with 

area agencies and service providers 

where applicable; 

(4) How Title VI programs may refer 

individuals who are eligible for Title III 

and/or VII services; 

(5) How services will be provided in 

a culturally appropriate and traumainformed manner; and 

(6) Opportunities to serve on advisory 

councils, workgroups, and boards, 

including area agency advisory 

councils, as set forth in § 1321.63. 

Subpart C—Area Agency 

Responsibilities 

§ 1321.55 Mission of the area agency. 

(a) The Act intends that the area 

agency on aging shall be the lead on all 

aging issues on behalf of all older 

individuals and family caregivers in the 

planning and service area. The area 

agency shall proactively carry out, 

under the leadership and direction of 

the State agency, a wide range of 

functions including advocacy, planning, 

coordination, inter-agency 

collaboration, information sharing, 

monitoring, and evaluation. The area 

agency shall lead the development or 

enhancement of comprehensive and 

coordinated community-based systems 

in, or serving, each community in the 

planning and service area. These 

systems shall be designed to assist older 

individuals and family caregivers in 

leading independent, meaningful, 

healthy, and dignified lives in their own 

homes and communities. 

(b) A comprehensive and coordinated 

community-based system described in 

of this section shall: 

(1) Have a point of contact where 

anyone may go or contact for help, 

information, and/or referral on any 

aging issue; 

(2) Provide information on a range of 

available public and private long-term 

care services and support options; 

(3) Assure that these options are 

readily accessible to all older 

individuals and family caregivers, no 

matter what their income; 

(4) Include a commitment of public, 

private, voluntary, and personal 

resources committed to supporting the 

system; 

(5) Involve collaborative decisionmaking among public, private, 

voluntary, faith-based, civic, and 

fraternal organizations, including 

trusted leaders of communities in 

greatest economic need and greatest 

social need, and older individuals and 

family caregivers in the community; 

(6) Offer special help or targeted 

resources for the most vulnerable older 

individuals, family caregivers, and those 

in danger of losing their independence; 

(7) Provide effective referral from 

agency to agency to assure that 

information and/or assistance is 

provided, no matter how or where 

contact is made in the community; 

(8) Evidence sufficient flexibility to 

respond with appropriate 

individualized assistance, especially for 

vulnerable older individuals or family 

caregivers; 

(9) Be tailored to the specific nature 

of the community and the needs of older 

adults in the community; and 

(10) Have a board of directors 

comprised of leaders in the community, 

including leaders from groups identified 

as in greatest economic need and 

greatest social need, who have the 

respect, capacity, and authority 

necessary to convene all interested 

persons, assess needs, design solutions, 

track overall success, stimulate change, 

and plan community responses for the 

present and for the future. 

(c) The resources made available to 

the area agency on aging under the Act 

shall be used consistent with the 

definition of area plan administration as 

set forth in § 1321.3 to finance those 

activities necessary to achieve elements 

of a community-based system set forth 

in paragraph (b) of this section and 

consistent with the requirements for 

provision of direct services as set forth 

in §§ 1321.85 through 1321.93. 

(d) The area agency may not engage in 

any activity which is inconsistent with 

its statutory mission prescribed in the 

Act or policies prescribed by the State 

agency under § 1321.9. 

§ 1321.57 Organization and staffing of the 

area agency. 

(a) An area agency may be either: 

(1) An agency whose single purpose is 

to administer programs for older 

individuals and family caregivers; or 

(2) A separate organizational unit 

within a multipurpose agency which 

functions as the area agency on aging. 

Where the State agency designates a 

separate organizational unit of a 

multipurpose agency that has 

previously been serving as an area 

agency, the State agency action shall not 

be subject to section 305(b)(5)(B) of the 

Act (42 U.S.C. 3025(b)(5)(B)). 

(b) The area agency, once designated, 

is responsible for providing for adequate 

and qualified staff to facilitate the 

performance of the functions as set forth 

in this part. Such functions, except for 

provision of direct services, are 

considered to be area plan 

administration functions. 

(c) The designated area agency shall 

continue to function in that capacity 

until either: 

(1) The State agency withdraws the 

designation of the area agency as 

provided in § 1321.21(a)(1) through (5); 

or 

(2) The area agency informs the State 

agency that it no longer wishes to carry 

out the responsibilities of an area 

agency as provided in § 1321.21(a)(6). 

§ 1321.59 Area agency policies and 

procedures. 

(a) The area agency on aging shall 

develop policies and procedures in 

compliance with State agency policies 

and procedures, including those 

required under § 1321.9, governing all 

aspects of programs operated under this 

part, including those related to conflict 

of interest, and be in alignment with the 

Act and all other applicable Federal 

requirements. These policies and 

procedures shall be developed in 

consultation with other appropriate 

parties in the planning and service area. 

(b) The policies and procedures 

developed by the area agency shall 

address the manner in which the area 

agency will monitor the programmatic 

and fiscal performance of all programs, 

direct service providers, and activities 

initiated under this part for quality and 


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effectiveness. Quality monitoring and 

measurement results are encouraged to 

be publicly available in a format that 

may be understood by older individuals, 

family caregivers, and their families. 

(c) The area agency is responsible for 

enforcement of these policies and 

procedures. 

(d) The area agency may not delegate 

to another agency the authority to award 

or administer funds under this part. 

§ 1321.61 Advocacy responsibilities of the 

area agency. 

(a) The area agency shall serve as the 

public advocate for the development or 

enhancement of comprehensive and 

coordinated community-based systems 

of services in each community 

throughout and specific to each 

planning and service area. 

(b) In carrying out this responsibility, 

the area agency shall: 

(1) Monitor, evaluate, and comment 

on policies, programs, hearings, levies, 

and community actions which affect 

older individuals and family caregivers 

which the area agency considers to be 

aligned with the interests identified in 

the Act; 

(2) Solicit comments from the public 

on the needs of older individuals and 

family caregivers; 

(3) Represent the interests of older 

individuals and family caregivers to 

local level and executive branch 

officials, public and private agencies, or 

organizations; 

(4) Consult with and support the 

State’s Long-Term Care Ombudsman 

Program; and 

(5) Coordinate with public and private 

organizations, including units of general 

purpose local government to promote 

new or expanded benefits and 

opportunities for older individuals and 

family caregivers. 

(c) Each area agency on aging shall 

undertake a leadership role in assisting 

communities throughout the planning 

and service area to target resources from 

all appropriate sources to meet the 

needs of older individuals and family 

caregivers with greatest economic need 

and greatest social need, with particular 

attention to low-income minority 

individuals. Such activities may include 

location of services and specialization 

in the types of services most needed by 

these groups to meet this requirement. 

However, the area agency shall not 

permit a grantee or contractor under this 

part to employ a means test for services 

funded under this part. 

(d) No requirement in this section 

shall be deemed to supersede a 

prohibition contained in the Federal 

appropriation on the use of Federal 

funds to lobby the Congress; or the 

lobbying provision applicable to private 

nonprofit agencies and organizations 

contained in OMB Circular A–122. 

§ 1321.63 Area agency advisory council. 

(a) Functions of council. The area 

agency shall establish an advisory 

council. The council shall carry out 

advisory functions which further the 

area agency’s mission of developing and 

coordinating community-based systems 

of services for all older individuals and 

family and older relative caregivers 

specific to each planning and service 

area. The council shall advise the 

agency relative to: 

(1) Developing and administering the 

area plan; 

(2) Ensuring the plan is available to 

older individuals, family caregivers, 

service providers, and the general 

public; 

(3) Conducting public hearings; 

(4) Representing the interests of older 

individuals and family caregivers; and 

(5) Reviewing and commenting on 

community policies, programs and 

actions which affect older individuals 

and family caregivers with the intent of 

assuring maximum coordination and 

responsiveness to older individuals and 

family caregivers. 

(b) Composition of council. The 

council shall include individuals and 

representatives of community 

organizations from or serving the 

planning and service area who will help 

to enhance the leadership role of the 

area agency in developing communitybased systems of services targeting those 

in greatest economic need and greatest 

social need. The advisory council shall 

be made up of: 

(1) More than 50 percent older 

individuals, including minority 

individuals who are participants or who 

are eligible to participate in programs 

under this part, with efforts to include 

individuals identified as in greatest 

economic need and individuals 

identified as in greatest social need in 

§ 1321.65(b)(2); 

(2) Representatives of older 

individuals; 

(3) Family caregivers, which may 

include older relative caregivers; 

(4) Representatives of health care 

provider organizations, including 

providers of veterans’ health care (if 

appropriate); 

(5) Representatives of service 

providers, which may include legal 

assistance, nutrition, evidence-based 

disease prevention and health 

promotion, caregiver, long-term care 

ombudsman, and other service 

providers; 

(6) Persons with leadership 

experience in the private and voluntary 

sectors; 

(7) Local elected officials; 

(8) The general public; and 

(9) As available: 

(i) Representatives from Indian Tribes, 

Pueblos, or Tribal aging programs; and 

(ii) Older relative caregivers, 

including kin and grandparent 

caregivers of children or adults age 18 

to 59 with a disability. 

(c) Review by advisory council. The 

area agency shall submit the area plan 

and amendments for review and 

comment to the advisory council before 

it is transmitted to the State agency for 

approval. 

(d) Conflicts of interest. The advisory 

council shall not operate as a board of 

directors for the area agency. 

Individuals may not serve on both the 

advisory council and the board of 

directors for the same entity. 

§ 1321.65 Submission of an area plan and 

plan amendments to the State agency for 

approval. 

(a) The area agency shall submit the 

area plan on aging and amendments 

specific to each planning and service 

area to the State agency for approval 

following procedures specified by the 

State agency in the State agency policies 

prescribed by § 1321.9. 

(b) State agency policies and 

procedures regarding area plan 

requirements will at a minimum address 

the following: 

(1) Content, duration, and format; 

(2) That the area agency shall identify 

populations within the planning and 

service area at greatest economic need 

and greatest social need, which shall 

include the populations as set forth in 

the § 1321.3 definitions of greatest 

economic need and greatest social need. 

(3) Assessment and evaluation of 

unmet need, such that each area agency 

shall submit objectively collected, and 

where possible, statistically valid, data 

with evaluative conclusions concerning 

the unmet need for supportive services, 

nutrition services, evidence-based 

disease prevention and health 

promotion services, family caregiver 

support services, and multipurpose 

senior centers. The evaluations for each 

area agency shall consider all services in 

these categories regardless of the source 

of funding for the services; 

(4) Public participation specifying 

mechanisms to obtain the periodic 

views of older individuals, family 

caregivers, service providers, and the 

public with a focus on those in greatest 

economic need and greatest social need, 

including: 

(i) A reasonable minimum time period 

(at least 30 calendar days, unless a 

waiver is provided by the State agency 

during an emergency or when a time 


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sensitive action is otherwise necessary) 

for public review and comment on area 

plans and area plan amendments; and 

(ii) Ensuring the documents noted in 

(b)(4)(i) of this section and final area 

plans and amendments are accessible in 

a public location, as well as available in 

print by request. 

(5) The services, including a 

definition of each type of service; the 

number of individuals to be served; the 

type and number of units to be 

provided; and corresponding 

expenditures proposed to be provided 

with funds under the Act and related 

local public sources under the area plan; 

(6) Plans for how direct services funds 

under the Act will be distributed within 

the planning and service area, in order 

to address populations identified as in 

greatest social need and greatest 

economic need, as identified in 

§ 1321.27(d)(1); 

(7) Process for determining whether 

the area agency meets requirements to 

provide services directly where: 

(i) As set forth in section 307(a)(8)(A) 

of the Act (42 U.S.C. 3027(a)(8)(A)), no 

supportive services, nutrition services, 

evidence-based disease prevention and 

health promotion services, or family 

caregiver support services will be 

directly provided by an area agency on 

aging in the State, unless, in the 

judgment of the State agency: 

(A) Provision of such services by the 

area agency on aging is necessary to 

assure an adequate supply of such 

services; 

(B) Such services are directly related 

to such area agency on aging’s 

administrative functions; or 

(C) Such services may be provided 

more economically, and with 

comparable quality, by such area agency 

on aging. 

(ii) At its discretion, the State agency 

may waive the conditions set forth in 

paragraph (b)(7)(i) of this section and 

allow area agencies on aging to directly 

provide the supportive services of case 

management, information and 

assistance services, and outreach 

without additional restriction. 

(iii) Approval of the area agency to 

provide direct services shall only be 

granted for a maximum of the area plan 

period. For each time approval is 

granted to an area agency to provide 

direct services, the area agency must 

demonstrate the area agency’s efforts to 

identify service providers prior to being 

granted a subsequent approval. 

(8) Minimum adequate proportion 

requirements, as identified in the 

approved State plan as set forth in 

§ 1321.27; 

(9) Requirements for program 

development and coordination activities 

as set forth in § 1321.27(h), if allowed by 

the State agency; 

(10) If the area agency requests to 

allow Title III, part C–1 funds to be used 

as set forth in § 1321.87(a)(1)(i) through 

(iii), it must provide the following 

information to the State agency: 

(i) Evidence, using participation 

projections based on existing data, that 

provision of such meals will enhance 

and not diminish the congregate meals 

program, and a commitment to monitor 

impact on congregate meals program 

participation; 

(ii) Description of how provision of 

such meals will be targeted to reach 

those populations identified as in 

greatest economic need and greatest 

social need; 

(iii) Description of the eligibility 

criteria for service provision; 

(iv) Evidence of consultation with 

nutrition and other direct services 

providers, other interested parties, and 

the general public regarding the need for 

and provision of such meals; and 

(v) Description of how provision of 

such meals will be coordinated with 

nutrition and other direct services 

providers and other interested parties. 

(11) Initial submission and 

amendments; 

(12) Approval by the State agency; 

and 

(13) Appeals regarding area plans on 

aging. 

(c) Area plans shall incorporate 

services which address the incidence of 

hunger, food insecurity and 

malnutrition; social isolation; and 

physical and mental health conditions. 

(d) Pursuant to section 306(a)(16) of 

the Act (42 U.S.C. 3026(a)(16)), area 

plans shall provide, to the extent 

feasible, for the furnishing of services 

under this Act, through self-direction. 

(e) Area plans on aging shall develop 

objectives that coordinate with and 

reflect the State plan goals for services 

under the Act. 

§ 1321.67 Conflicts of interest policies and 

procedures for area agencies on aging. 

(a) The area agency must have 

policies and procedures regarding 

conflicts of interest in accordance with 

the Act, guidance as set forth by the 

Assistant Secretary for Aging, and State 

agency policies and procedures as set 

forth at § 1321.47. These policies and 

procedures must safeguard against 

conflicts of interest on the part of the 

area agency, area agency employees, 

governing board and advisory council 

members, and awardees who have 

responsibilities relating to the area 

agency’s grants and contracts. Conflicts 

of interest policies and procedures must 

establish mechanisms to avoid both 

actual and perceived conflicts of interest 

and to identify, remove, and remedy any 

existing or potential conflicts of interest 

at organizational and individual levels, 

including: 

(1) Reviewing service utilization and 

financial incentives to ensure agency 

employees, governing board and 

advisory council members, grantees, 

contractors, and other awardees who 

serve multiple roles, such as assessment 

and service delivery, are appropriately 

stewarding Federal resources while 

fostering services to enhance access to 

community living; 

(2) Ensuring that the area agency on 

aging employees and agents 

administering Title III programs do not 

have a financial interest in Title III 

programs; 

(3) Complying with § 1324.21 of this 

chapter regarding the Ombudsman 

program, as appropriate; 

(4) Removing and remedying any 

actual, perceived, or potential conflict 

between the area agency on aging and 

the area agency on aging employee or 

contractor’s financial interest in a Title 

III program; 

(5) Establishing robust monitoring and 

oversight, including periodic reviews, to 

identify conflicts of interest in the Title 

III program; 

(6) Ensuring that no individual, or 

member of the immediate family of an 

individual, involved in Title III 

programs has a conflict of interest; 

(7) Requiring that agencies to which 

the area agency provides Title III funds 

have policies in place to prohibit the 

employment or appointment of Title III 

program decision makers, staff, or 

volunteers with conflicts that cannot be 

adequately removed or remedied; 

(8) Requiring that Title III programs 

take reasonable steps to refuse, suspend 

or remove Title III program 

responsibilities of an individual who 

has a conflict of interest, or who has a 

member of the immediate family with a 

conflict of interest, that cannot be 

adequately removed or remedied; 

(9) Complying with the State agency’s 

periodic review and identification of 

conflicts of the Title III program; 

(10) Prohibiting the officers, 

employees, or agents of the Title III 

program from soliciting or accepting 

gratuities, favors, or anything of 

monetary value from grantees, 

contractors, and/or subrecipients, 

except where policies and procedures 

allow for situations where the financial 

interest is not substantial, or the gift is 

an unsolicited item of nominal value; 

(11) Establishing the actions the area 

agency will require Title III programs to 

take in order to remedy or remove such 

conflicts, as well as disciplinary actions 


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to be applied for violations of such 

standards by officers, employees, or 

agents of the Title III program; and 

(12) Documentation of conflict of 

interest mitigation strategies, as 

necessary and appropriate, when 

operating an Adult Protective Services 

or guardianship program. 

(b) [Reserved] 

§ 1321.69 Area agency on aging Title III 

and Title VI coordination responsibilities. 

(a) For planning and service areas 

where there are Title VI programs, the 

area agency’s policies and procedures, 

developed in coordination with the 

relevant Title VI program director(s), as 

set forth in § 1322.13(a), must explain 

how the area agency’s aging network, 

including service providers, will 

coordinate with Title VI programs to 

ensure compliance with section 

306(a)(11)(B) of the Act (42 U.S.C. 

3026(a)(11)(B)). 

(b) The policies and procedures set 

forth in paragraph (a) of this section 

must at a minimum address: 

(1) How the area agency’s aging 

network, including service providers, 

will provide outreach to Tribal elders 

and family caregivers regarding services 

for which they may be eligible under 

Title III; 

(2) The communication opportunities 

the area agency will make available to 

Title VI programs, to include Title III 

and other funding opportunities, 

technical assistance on how to apply for 

Title III and other funding 

opportunities, meetings, email 

distribution lists, presentations, and 

public hearings; 

(3) The methods for collaboration on 

and sharing of program information and 

changes, including coordinating with 

service providers where applicable; 

(4) How Title VI programs may refer 

individuals who are eligible for Title III 

services; 

(5) How services will be provided in 

a culturally appropriate and traumainformed manner; and 

(6) Opportunities to serve on advisory 

councils, workgroups, and boards, 

including area agency advisory councils 

as set forth in § 1321.63. 

Subpart D—Service Requirements 

§ 1321.71 Purpose of services allotments 

under Title III. 

(a) Title III of the Act authorizes the 

distribution of Federal funds to the State 

agency on aging for the following 

services: 

(1) Supportive services; 

(2) Nutrition services; 

(3) Evidence-based disease prevention 

and health promotion services; and 

(4) Family caregiver support services. 

(b) Funds authorized are for the 

purpose of assisting the State agency 

and its area agencies to develop, 

provide, or enhance for older 

individuals and family caregivers 

comprehensive and coordinated 

community-based direct services and 

systems. 

(c) Except for ombudsman services, 

State plan administration, disaster 

assistance as noted at §§ 1321.99 

through 1321.101, or as otherwise 

allowed in the Act, State agencies in 

States with multiple planning and 

service areas will award the funds made 

available under this section to 

designated area agencies on aging 

according to the approved intrastate 

funding formula as set forth in 

§ 1321.49. 

(d) Except for ombudsman services, 

State plan administration, disaster 

assistance as noted at §§ 1321.99 

through 1321.101, or as otherwise 

allowed in the Act, State agencies in 

States with single planning and service 

areas shall award funds by grant or 

contract to community services provider 

agencies and organizations for direct 

services to older individuals and family 

caregivers in, or serving, communities 

throughout the planning and service 

area, except as set forth in 

§ 1321.51(b)(4). 

(e) Except where the State agency 

approves the area agency to provide 

direct services, as set forth in 

§ 1321.65(b)(7), after subtracting funds 

for area plan administration as set forth 

in § 1321.9(c)(2)(iv)(B) and program 

development and coordination 

activities, if allowed by the State 

agency, as set forth in § 1321.27(h), area 

agencies shall award these funds by 

grant or contract to community services 

provider agencies and organizations for 

direct services to older individuals and 

family caregivers in, or serving, 

communities throughout the planning 

and service area. 

§ 1321.73 Policies and procedures. 

(a) The area agency on aging and/or 

service provider shall ensure the 

development and implementation of 

policies and procedures in accordance 

with State agency policies and 

procedures, including those required as 

set forth in § 1321.9. The State agency 

may allow for policies and procedures 

to be developed by the subrecipient(s), 

except as set forth at §§ 1321.9(a) and 

1321.9(c)(2)(xi) and where otherwise 

specified. 

(b) The area agency on aging and/or 

service provider will provide the State 

agency in a timely manner with 

statistical and other information which 

the State agency requires to meet its 

planning, coordination, evaluation, and 

reporting requirements established by 

the State agency under § 1321.9. 

(c) The State agency and/or area 

agencies on aging must develop an 

independent qualitative and 

quantitative monitoring process 

ensuring the quality and effectiveness of 

services regarding meeting participant 

needs and preferences, the goals 

described within the State and/or area 

plan, and State and local requirements, 

as well as conflicts of interest policies 

and procedures. Quality monitoring and 

measurement results are encouraged to 

be made available to the public in plain 

language format designed to support 

and provide information and choice 

among persons and families receiving 

services. 

§ 1321.75 Confidentiality and disclosure of 

information. 

(a) State agencies and area agencies on 

aging shall have procedures to protect 

the confidentiality of information about 

older individuals and family caregivers 

collected in the conduct of their 

responsibilities. The procedures shall 

ensure that no information about an 

older person or family caregiver, or 

obtained from an older person or family 

caregiver by a service provider or the 

State or area agencies, is disclosed by 

the provider or agency in a form that 

identifies the person without the 

informed consent of the person or of 

their legal representative, unless the 

disclosure is required by law or court 

order, or for program monitoring and 

evaluation by authorized Federal, State, 

or local monitoring agencies. 

(b) A State agency, area agency on 

aging or other contracting or granting or 

auditing agency may not require a 

provider of long-term care ombudsman 

services under this part to reveal any 

information that is protected by 

disclosure provisions in 45 CFR part 

1324, subpart A. State agencies must 

comply with confidentiality and 

disclosure of information provisions as 

directed in 45 CFR part 1324, as 

appropriate. 

(c) A State or area agency on aging 

shall not require a provider of legal 

assistance under this part to reveal any 

information that is protected by attorney 

client privilege. 

(d) State agencies must have policies 

and procedures that ensure that entities 

providing services under this title 

promote the rights of each older 

individual who receives such services. 

Such rights include the right to 

confidentiality of records relating to 

such individual. 


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(e) State agencies’ policies and 

procedures must explain that individual 

information and records may be shared 

with other State and local agencies, 

community-based organizations, and 

health care providers and payers in 

order to provide services. 

(f) State agencies’ policies and 

procedures must comply with all 

applicable Federal laws as well as 

guidance as the State determines, for the 

collection, use, and exchange of both 

Personal Identifiable Information (PII) 

and personal health information in the 

provision of Title III services under the 

Act. State agencies are encouraged to 

consult with Tribes regarding any Tribal 

data sovereignty expectations that may 

apply. 

§ 1321.77 Purpose of services—personand family-centered, trauma-informed. 

(a) Services must be provided to older 

adults and family caregivers in a 

manner that is person-centered, traumainformed, and culturally sensitive. 

Services should be responsive to their 

interests, physical and mental health, 

social and cultural needs, available 

supports, and desire to live where and 

with whom they choose. Personcentered services may include 

community-centered and familycentered approaches consistent with the 

traditions, practices, beliefs, and 

cultural norms and expectations of older 

adults and family caregivers. 

(b) Services should, as appropriate, 

provide older adults and family 

caregivers with the opportunity to 

develop a person-centered plan that is 

led by the individual or, if applicable, 

by the individual and the individual’s 

authorized representative. Services 

should be incorporated into existing 

person-centered plans, as appropriate. 

(c) State and area agencies and service 

providers should provide training to 

staff and volunteers on person-centered 

and trauma-informed service provision. 

§ 1321.79 Responsibilities of service 

providers under State and area plans. 

As a condition for receipt of funds 

under this part, each State agency and/ 

or area agency on aging shall assure that 

service providers shall: 

(a) Specify how the service provider 

intends to satisfy the service needs of 

those identified as in greatest economic 

need and greatest social need, with a 

focus on low-income minority 

individuals in the area served, including 

attempting to provide services to lowincome minority individuals at least in 

proportion to the number of low-income 

minority older individuals and family 

caregivers in the population serviced by 

the provider; 

(b) Provide recipients with an 

opportunity to contribute to the cost of 

the service as provided in 

§ 1321.9(c)(2)(x) or (xi); 

(c) Pursuant to section 306(a)(16) of 

the Act (42 U.S.C. 3026(a)(16)), provide, 

to the extent feasible, for the furnishing 

of services under this Act through selfdirection; 

(d) Bring conditions or circumstances 

which place an older person, or the 

household of an older person, in 

imminent danger to the attention of 

adult protective services or other 

appropriate officials for follow-up, 

provided that: 

(1) The older person or their legal 

representative consents; or 

(2) Such action is in accordance with 

local adult protective services 

requirements, except as set forth at 

§ 1321.93 and part 1324, subpart A, of 

this chapter; 

(e) Where feasible and appropriate, 

make arrangements for the availability 

of services to older individuals and 

family caregivers in weather-related and 

other emergencies; 

(f) Assist participants in taking 

advantage of benefits under other 

programs; and 

(g) Assure that all services funded 

under this part are coordinated with 

other appropriate services in the 

community, and that these services do 

not constitute an unnecessary 

duplication of services provided by 

other sources. 

§ 1321.81 Client eligibility for participation. 

(a) An individual must be age 60 or 

older at the time of service to be eligible 

to participate in services under the Act, 

unless the Act otherwise provides an 

explicit exception. Exceptions are 

limited to the following specific 

services: 

(1) Nutrition services: 

(i) Services shall be available to 

spouses of any age of older individuals; 

(ii) Services may be available to: 

(A) A person with a disability who 

lives with an adult age 60 or older or 

who resides in a housing facility that is 

primarily occupied by older adults at 

which congregate meals are served; and 

(B) A volunteer during meal hours. 

(2) Family caregiver support services 

for: 

(i) Adults caring for older adults and 

adults caring for individuals of any age 

with Alzheimer’s or a related disorder; 

(ii) Older relative caregivers who are 

caring for children and are not the 

biological or adoptive parent of the 

child, where older relative caregivers 

shall no longer be eligible for services 

under this part when the child reaches 

18 years of age; or 

(iii) Older relative caregivers who are 

caring for individuals age 18 to 59 with 

disabilities and who may be of any 

relationship, including the biological or 

adoptive parent. 

(3) Services such as information and 

assistance and public education, where 

recipients of information may not be age 

60 or older, but the information is 

targeted to those who are age 60 or older 

and/or benefits those who are age 60 or 

older. 

(4) Ombudsman program services, as 

provided in 45 CFR part 1324. 

(b) State agencies, area agencies on 

aging, and local service providers may 

develop further eligibility requirements 

for implementation of services for older 

adults and family caregivers, as long as 

they do not conflict with the Act, this 

part, or guidance as set forth by the 

Assistant Secretary for Aging. Such 

requirements may include: 

(1) Assessment of greatest social need; 

(2) Assessment of greatest economic 

need; 

(3) Assessment of functional and 

support need; 

(4) Geographic boundaries; 

(5) Limitations on number of persons 

that may be served; 

(6) Limitations on number of units of 

service that may be provided; 

(7) Limitations due to availability of 

staff/volunteers; 

(8) Limitations to avoid duplication of 

services; and 

(9) Specification of settings where 

services shall or may be provided. 

§ 1321.83 Client and service priority. 

(a) The State agency and/or area 

agency shall ensure service to those 

identified as members of priority groups 

through assessment of local needs and 

resources. 

(b) The State agency and/or area 

agency shall establish criteria to 

prioritize the delivery of services under 

Title III, parts B (except for Ombudsman 

program services which are subject to 

provisions in 45 CFR part 1324), C, and 

D, in accordance with the Act. 

(c) The State agency and/or area 

agency shall establish criteria to 

prioritize the delivery of services under 

Title III, part E, in accordance with the 

Act, to include: 

(1) Caregivers who are older 

individuals with greatest social need, 

and older individuals with greatest 

economic need (with particular 

attention to low-income older 

individuals); 

(2) Caregivers who provide care for 

individuals with Alzheimer’s disease 

and related disorders with neurological 

and organic brain dysfunction; and 


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(3) If serving older relative caregivers, 

older relative caregivers of children or 

adults with severe disabilities. 

§ 1321.85 Supportive services. 

(a) Supportive services are 

community-based interventions set forth 

in the Act under Title III, part B, section 

321 (42 U.S.C. 3030d) which meet 

standards established by the Assistant 

Secretary for Aging. They include inhome supportive services, access 

services, which may include 

multipurpose senior centers, and legal 

services. 

(b) State agencies may allow use of 

Title III, part B funds for acquiring, 

altering or renovating, or constructing 

facilities to serve as multipurpose senior 

centers, in accordance with guidance as 

set forth by the Assistant Secretary for 

Aging. 

(c) For those Title III, part B services 

intended to benefit family caregivers, 

such as those provided under sections 

321(a)(6)(C), 321(a)(19), and 321(a)(21) 

of the Act (42 U.S.C. 3030d(a)(6)(C), 

3030d(a)(19), and 3030d(a)(21)), State 

and area agencies shall ensure that there 

is coordination and no inappropriate 

duplication of such services available 

under Title III, part E. 

(d) All funds provided under Title III, 

part B of the Act must be distributed 

within a State pursuant to § 1321.49 or 

§ 1321.51. 

§ 1321.87 Nutrition services. 

(a) Nutrition services are communitybased interventions as set forth in Title 

III, part C of the Act, and as further 

defined by the Assistant Secretary for 

Aging. Nutrition services include 

congregate meals, home-delivered 

meals, nutrition education, nutrition 

counseling, and other nutrition services. 

(1) Congregate meals are meals 

meeting the Dietary Guidelines for 

Americans and Dietary Reference 

Intakes as set forth in section 339 of the 

Act (42 U.S.C. 3030g–21) provided 

under Title III, part C–1 by a qualified 

nutrition service provider to eligible 

individuals and consumed while 

congregating virtually or in-person, 

except where: 

(i) If included as part of an approved 

State plan as set forth in § 1321.27 or 

State plan amendment as set forth in 

§ 1321.31(a) and area plan or plan 

amendment as set forth in § 1321.65 and 

to complement the congregate meals 

program, shelf-stable, pick-up, carryout, drive-through, or similar meals may 

be provided under Title III, part C–1; 

(ii) Meals provided as set forth in 

paragraph (a)(1)(i) of this section shall: 

(A) Not exceed 25 percent of the 

funds expended by the State agency 

under Title III, part C–1, to be calculated 

based on the amount of Title III, part C– 

1 funds available after all transfers as set 

forth in § 1321.9(c)(2)(iii) are completed; 

(B) Not exceed 25 percent of the funds 

expended by any area agency on aging 

under Title III, part C–1, to be calculated 

based on the amount of Title III, part C– 

1 funds available after all transfers as set 

forth in § 1321.9(c)(2)(iii) are completed. 

(iii) Meals provided as set forth in 

paragraph (a)(1)(i) of this section may be 

provided to complement the congregate 

meal program: 

(A) During disaster or emergency 

situations affecting the provision of 

nutrition services; 

(B) To older individuals who have an 

occasional need for such meal; and/or 

(C) To older individuals who have a 

regular need for such meal, based on an 

individualized assessment, when 

targeting services to those in greatest 

economic need and greatest social need. 

(2) Home-delivered meals are meals 

meeting the Dietary Guidelines for 

Americans and Dietary Reference 

Intakes as set forth in section 339 of the 

Act (42 U.S.C. 3030g–21) provided 

under Title III, part C–2 by a qualified 

nutrition service provider to eligible 

individuals and consumed at their 

residence or otherwise outside of a 

congregate setting, as organized by a 

service provider under the Act. Meals 

may be provided via home delivery, 

pick-up, carry-out, drive-through, or 

similar meals. 

(i) Eligibility criteria for homedelivered meals may include 

consideration of an individual’s ability 

to leave home unassisted, ability to shop 

for and prepare nutritious meals, degree 

of disability, or other relevant factors 

pertaining to their need for the service, 

including social need and economic 

need. 

(ii) Home-delivered meals service 

providers may encourage meal 

participants to attend congregate meal 

sites and other health and wellness 

activities, as feasible, based on a personcentered approach and local service 

availability. 

(3) Nutrition education is information 

provided under Title III, parts C–1 or 2 

which provides individuals with the 

knowledge and skills to make healthy 

food and beverage choices. Congregate 

and home-delivered nutrition services 

shall provide nutrition education, as 

appropriate, based on the needs of meal 

participants. 

(4) Nutrition counseling is a service 

provided under Title III, parts C–1 or 2 

which must align with the Academy of 

Nutrition and Dietetics. Congregate and 

home-delivered nutrition services shall 

provide nutrition counseling, as 

appropriate, based on the needs of meal 

participants, the availability of 

resources, and the expertise of a 

Registered Dietitian Nutritionist. 

(5) Other nutrition services include 

additional services provided under Title 

III, parts C–1 or 2 that may be provided 

to meet nutritional needs or preferences 

of eligible participants, such as 

weighted utensils, supplemental foods, 

oral nutrition supplements, or groceries. 

(b) State agencies shall establish 

policies and procedures that define a 

nutrition project and include how a 

nutrition project will provide meals and 

nutrition services five or more days per 

week in accordance with the Act. The 

definition of nutrition project 

established by the State agency must 

consider the availability of resources 

and the community’s need for nutrition 

services as described in the State and 

area plans. 

(c) All funds provided under Title III, 

part C of the Act must be distributed 

within a State pursuant to § 1321.49 or 

§ 1321.51. 

(d) Nutrition Services Incentive 

Program allocations are available to 

States and Territories that provide 

nutrition services where: 

(1) Nutrition Services Incentive 

Program allocation amounts are based 

on the number of meals reported by the 

State agency which meet the following 

requirements: 

(i) The meal is served to an individual 

who is eligible to receive services under 

the Act; 

(ii) The meal is served to an 

individual who has not been meanstested to receive the meal; 

(iii) The meal is served to an 

individual who has been provided the 

opportunity to provide a voluntary 

contribution to the cost of service; 

(iv) The meal meets the other 

requirements of the Act, including that 

the meal meets the Dietary Guidelines 

for Americans and Dietary Reference 

Intakes as set forth in section 339 of the 

Act (42 U.S.C. 3030g–21); and 

(v) The meal is served by an agency 

that has a grant or contract with a State 

agency or area agency. 

(2) The State agency may choose to 

receive their Nutrition Services 

Incentive Program grant as cash, 

commodities, or a combination of cash 

and commodities. 

(3) Nutrition Services Incentive 

Program funds may only be used to 

purchase domestically produced foods 

used in a meal as set forth under the 

Act. 

(4) Nutrition Services Incentive 

Program funds are distributed within a 

State pursuant to § 1321.49(b)(1)(iii) and 

(d) or § 1321.51(b)(1). 


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§ 1321.89 Evidence-based disease 

prevention and health promotion services. 

(a) Evidence-based disease prevention 

and health promotion services programs 

are community-based interventions as 

set forth in Title III, part D of the Act, 

that have been proven to improve health 

and well-being and/or reduce risk of 

injury, disease, or disability among 

older adults. All programs provided 

using these funds must be evidencebased and must meet the Act’s 

requirements and guidance as set forth 

by the Assistant Secretary for Aging. 

(b) All funds provided under Title III, 

part D of the Act must be distributed 

within a State pursuant to § 1321.49 or 

§ 1321.51. 

§ 1321.91 Family caregiver support 

services. 

(a) Family caregiver support services 

are community-based interventions set 

forth in Title III, part E of the Act, which 

meet standards set forth by the Assistant 

Secretary for Aging and which may be 

informed through the use of an 

evidence-informed or evidence-based 

caregiver assessment, including: 

(1) Information to family caregivers 

about available services via public 

education; 

(2) Assistance to family caregivers in 

gaining access to the services through: 

(i) Individual information and 

assistance; or 

(ii) Case management or care 

coordination. 

(3) Individual counseling, 

organization of support groups, and 

caregiver training to assist family 

caregivers in those areas in which they 

provide support, including health, 

nutrition, complex medical care, and 

financial literacy, and in making 

decisions and solving problems relating 

to their caregiving roles; 

(4) Respite care to enable family 

caregivers to be temporarily relieved 

from their caregiving responsibilities; 

and 

(5) Supplemental services, on a 

limited basis, to complement the care 

provided by family caregivers. State 

agencies and AAAs shall define 

‘‘limited basis’’ for supplemental 

services and may consider limiting 

units, episodes or expenditure amounts 

when making this determination. 

(b) State agencies shall ensure that 

there is a plan to provide each of the 

services authorized under this part in 

each planning and service area, or 

statewide in accordance with a funds 

distribution plan for single planning 

and service area States, subject to 

availability of funds under the Act. 

(c) To provide services listed in 

paragraphs (a)(4) and (5) of this section 

to family caregivers of adults aged 60 

and older or of individuals of any age 

with Alzheimer’s disease or a related 

disorder, the individual for whom they 

are caring must be determined to be 

functionally impaired because the 

individual: 

(1) Is unable to perform at least two 

activities of daily living without 

substantial assistance, including verbal 

reminding, physical cueing, or 

supervision; 

(2) At the option of the State agency, 

is unable to perform at least three such 

activities without such assistance; or 

(3) Due to a cognitive or other mental 

impairment, requires substantial 

supervision because the individual 

poses a serious health or safety hazard 

to themself or others. 

(d) All funds provided under Title III, 

part E of the Act must be distributed 

within a State pursuant to § 1321.49 or 

§ 1321.51. 

§ 1321.93 Legal assistance. 

(a) General—definition. (1) The 

provisions and restrictions in this 

section apply to legal assistance funded 

by and provided pursuant to the Act. 

(2) Legal assistance means legal 

advice and/or representation provided 

by an attorney to older individuals with 

economic or social needs, per section 

102(33) of the Act (42 U.S.C. 3002(33)). 

Legal assistance may include, to the 

extent feasible, counseling, or other 

appropriate assistance by a paralegal or 

law student under the direct 

supervision of an attorney, and 

counseling or representation by a nonlawyer as permitted by law. 

(b) State agency on aging 

requirements. (1) Under section 

307(a)(11) of the Act (42 U.S.C. 

3027(a)(11)), the roles and 

responsibilities of the State agency shall 

include assurances for the provision of 

legal assistance in the State plan as 

follows: 

(i) Legal assistance, to the extent 

practicable, supplements and does not 

duplicate or supplant legal services 

provided with funding from other 

sources, including grants made by the 

Legal Services Corporation; 

(ii) Legal assistance supplements 

existing sources of legal services 

through focusing legal assistance 

delivery and provider capacity in the 

specific areas of law affecting older 

adults with greatest economic need or 

greatest social need; 

(iii) Reasonable efforts will be made to 

maintain existing levels of legal 

assistance for older individuals; 

(iv) Advice, training, and technical 

assistance support for the provision of 

legal assistance for older adults will be 

made available to legal assistance 

providers, as provided in § 1324.303 

and section 420(a)(1) of the Act (42 

U.S.C. 3032i(a)(1)); 

(v) The State agency in single 

planning and service area States or area 

agencies on aging in States with 

multiple planning and service areas 

shall award, through contract funds, 

only to legal assistance providers that 

meet the standards and requirements as 

set forth in this section and section (c); 

and 

(vi) Attorneys and personnel under 

the supervision of attorneys providing 

legal assistance shall adhere to the 

applicable Rules of Professional 

Conduct including the obligation to 

preserve the attorney-client privilege. 

(2) As set forth in section 307(a)(2)(C) 

of the Act (42 U.S.C. 3027(a)(2)(C)) and 

§ 1321.27(i)(3), the State agency shall 

designate the minimum proportion of 

Title III, part B funds and require the 

expenditure of at least that sum for each 

planning and service area for the 

purpose of procuring contract(s) for 

legal assistance. 

(3) The State agency in States with a 

single planning and service area shall 

meet the requirements for area agencies 

on aging as set forth in paragraph (c) of 

this section. 

(c) Area Agency on Aging 

requirements—(1) Adequate proportion 

funding. The area agency on aging shall 

award at a minimum the required 

adequate proportion of Title III, part B 

funds designated by the State agency to 

procure legal assistance for older 

residents of the planning and service 

area as set forth in §§ 1321.27 and 

1321.65. 

(2) Standards for selection of legal 

assistance providers. Area agencies on 

aging shall adhere to the following 

standards in selecting legal assistance 

providers: 

(i) The area agency on aging must 

select and procure through contract the 

legal assistance provider or providers 

best able to provide legal assistance as 

provided in this paragraph (c)(2) and 

paragraphs (d) through (f) of this 

section; and 

(ii) The area agency on aging must 

select the legal assistance provider(s) 

that best demonstrate the capacity to 

conduct legal assistance, which means 

having the requisite expertise and staff 

to fulfill the requirements of the Act and 

all applicable Federal requirements for 

provision of legal assistance. 

(d) Standards for legal assistance 

provider selection. Selected legal 

assistance providers shall exhibit the 

capacity to: 

(1) Retain staff with expertise in 

specific areas of law affecting older 


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individuals with economic or social 

need, including the priority areas 

identified in the Act; 

(2) Demonstrate expertise in specific 

areas of law that are given priority in the 

Act, including income and public 

entitlement benefits, health care, longterm care, nutrition, consumer law, 

housing, utilities, protective services, 

abuse, neglect, age discrimination, and 

defense of guardianship, prioritizing 

focus from among the areas of law based 

on the needs of the community served; 

(i) Defense of guardianship means 

advice to and representation of older 

individuals at risk of guardianship and 

older individuals subject to 

guardianship to divert them from 

guardianship to less restrictive, more 

person-directed forms of decisional 

support whenever possible, to oppose 

appointment of a guardian in favor of 

such less restrictive decisional supports, 

to seek limitation of guardianship and to 

seek revocation of guardianship; 

(ii) Defense of guardianship includes: 

(A) Representation to maintain the 

rights of individuals at risk of 

guardianship, and to advocate for 

limited guardianship if a court orders 

guardianship to be imposed; assistance 

removing or limiting an existing 

guardianship; or assistance to preserve 

or restore an individual’s rights or 

autonomy; 

(B) Representation to advocate for and 

assert use of least-restrictive alternatives 

to guardianship to preserve or restore an 

individual’s rights and or autonomy to 

support decision-making, or to limit the 

scope of guardianship orders when such 

orders have or will be entered by a 

court; and 

(C) A legal assistance provider shall 

not represent a petitioner for imposition 

of guardianship except in limited 

circumstances involving guardianship 

proceedings of older individuals who 

seek to become guardians only if other 

adequate representation is unavailable 

in the proceedings, and the provider has 

exhausted, and documents efforts made 

to explore less restrictive alternatives to 

guardianship. 

(3) Provide effective administrative 

and judicial advocacy in the areas of 

law affecting older individuals with 

greatest economic need or greatest social 

need; 

(4) Support other advocacy efforts, for 

example, the Long-Term Care 

Ombudsman Program, including 

requiring a memorandum of agreement 

between the State Long-Term Care 

Ombudsman and the legal assistance 

provider(s) as required by section 

712(h)(8) of the Act (42 U.S.C. 

3058g(h)(8)); and 

(5) Effectively provide legal assistance 

to older individuals residing in 

congregate residential long-term settings 

as defined in the Act in section 102(35) 

(42 U.S.C. 3002(35)), or who are isolated 

as defined in the Act in section 

102(24)(c) (42 U.S.C. 3002(24)(c)), or 

who are restricted to the home due to 

cognitive or physical limitations. 

(e) Standards for contracting between 

Area Agencies on Aging and legal 

assistance providers. (1) The area 

agency shall enter into a contract(s) with 

the selected legal assistance provider(s) 

that demonstrate(s) the capacity to 

deliver legal assistance. 

(2) The contract shall specify that 

legal assistance provider(s) shall 

demonstrate capacity to: 

(i) Maintain expertise in specific areas 

of law that are to be given priority, as 

defined in paragraphs (d)(1) and (2) of 

this section. 

(ii) Prioritize representation and 

advice that focus on the specific areas 

of law that give rise to problems that are 

disparately experienced by older adults 

with economic or social need. 

(iii) Maintain staff with the expertise, 

knowledge, and skills to deliver legal 

assistance as described in this section. 

(iv) Engage in reasonable efforts to 

involve the private bar in legal 

assistance activities authorized under 

the Act, including groups within the 

private bar furnishing services to older 

individuals on a pro bono and reduced 

fee basis. 

(v) Ensure that attorneys and 

personnel under the supervision of 

attorneys providing legal assistance will 

adhere to the applicable Rules of 

Professional Conduct including, but not 

limited to, the obligation to preserve the 

attorney-client privilege. 

(3) The contract shall include 

provisions: 

(i) Describing the duty of the area 

agency to refer older adults to the legal 

assistance provider(s) with whom the 

area agency contracts. In fulfilling this 

duty, the area agency is precluded from 

requiring a pre-screening of older 

individuals seeking legal assistance or 

from acting as the sole and exclusive 

referral pathway to legal assistance. 

(ii) Requiring the contracted legal 

assistance provider(s) to maintain 

capacity to provide legal assistance in 

the preferred language used by older 

individuals seeking and/or receiving 

legal assistance who are limited English 

proficient (LEP), including in oral and 

written communication, and to ensure 

effective communication for individuals 

with disabilities, including by providing 

appropriate auxiliary aids and services 

where necessary. 

(A) This includes requiring legal 

assistance providers take reasonable 

steps to ensure meaningful access to 

legal assistance by older individuals 

with limited-English proficiency, 

including an individualized assessment 

of an individual’s need to understand 

and participate in the legal process (as 

determined by each individual). 

(B) This includes stating the 

responsibility of the legal assistance 

provider to provide access to 

interpretation and translation services to 

meet clients’ needs. 

(C) This includes taking appropriate 

steps to ensure communications with 

persons with disabilities are as effective 

as communication with others, 

including by providing appropriate 

auxiliary aids and services where 

necessary to afford qualified persons 

with disabilities an equal opportunity to 

participate in, and enjoy the benefits of, 

legal assistance. 

(iii) Providing that the area agency 

will provide outreach activities that will 

include information about the 

availability of legal assistance to address 

problems experienced by older adults 

that may have legal solutions, such as 

those referenced in sections 306(a)(4)(B) 

and 306(a)(19) of the Act (42 U.S.C. 

3026(a)(4)(B) and 3026(a)(19)). This 

includes outreach to: 

(A) Older adults with greatest 

economic need due to low income and 

to those with greatest social need, 

including minority older individuals; 

and 

(B) Older adults of underserved 

communities, including: 

(1) Older adults with limited-English 

proficiency and/or whose primary 

language is not English; 

(2) Older adults with severe 

disabilities; 

(3) Older adults living in rural areas; 

(4) Older adults at risk for 

institutional placement; and 

(5) Older adults with Alzheimer’s 

disease and related disorders with 

neurological and organic brain 

dysfunction and their caregivers. 

(iv) Providing that legal assistance 

provider attorney staff and non-attorney 

personnel under the supervision of legal 

assistance attorneys must adhere to the 

applicable State Rules of Professional 

Conduct. 

(v) Requiring that if the legal 

assistance provider(s) contracted by the 

area agency is located within a Legal 

Services Corporation grantee entity, that 

the legal assistance provider(s) shall 

adhere to the specific restrictions on 

activities and client representation in 

the Legal Services Corporation Act (42 

U.S.C. 2996 et seq.). Exempted from this 

requirement are: 


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(A) Restrictions governing eligibility 

for legal assistance under such Act; 

(B) Restrictions for membership of 

governing boards; and 

(C) Any additional provisions as 

determined appropriate by the Assistant 

Secretary for Aging. 

(f) Legal assistance provider 

requirements. (1) The provisions and 

restrictions in this section apply to legal 

assistance provider(s) when they are 

providing legal assistance under section 

307(a)(11) of the Act (42 U.S.C. 

3027(a)(11)). 

(2) Legal assistance providers under 

contract with the State agency in States 

with single planning and service areas 

or area agency in States with multiple 

planning and service areas shall adhere 

to the following requirements: 

(i) Provide legal assistance to meet 

complex and evolving legal needs that 

may arise involving a range of private, 

public, and governmental entities, 

programs, and activities that may 

impact an older adult’s independence, 

choice, or financial security; and 

(ii) Maintain the capacity for and 

provision of effective administrative and 

judicial representation. 

(A) Effective administrative and 

judicial representation means the 

expertise and ability to provide the 

range of services necessary to 

adequately address the needs of older 

adults through legal assistance in 

administrative and judicial forums, as 

required under the Act. This includes 

providing the full range of legal 

services, from brief service and advice 

through representation in administrative 

and judicial proceedings. 

(B) [Reserved] 

(iii) Conduct administrative and 

judicial advocacy as is necessary to 

meet the legal needs of older adults with 

economic or social need, focusing on 

such individuals with the greatest 

economic need or greatest social need: 

(A) Economic need means the need 

for legal assistance resulting from 

income at or below the Federal poverty 

level, as defined in section 102(44) of 

the Act (42 U.S.C. 3002(44)), that is 

insufficient to meet the legal needs of an 

older individual or that causes barriers 

to attaining legal assistance to assert the 

rights of older individuals as articulated 

in the Act and in the laws, regulations, 

and Constitution. 

(B) Social need means the need for 

legal assistance resulting from social 

factors, as defined by in section 102(24) 

of the Act (42 U.S.C. 3002(24)), that 

cause barriers to attaining legal 

assistance to assert the rights of older 

individuals. 

(iv) Maintain the expertise required to 

capably handle matters related to the 

priority case type areas specified under 

the Act, including income and public 

entitlement benefits, health care, longterm care, nutrition, housing, utilities, 

protective services, abuse, neglect, age 

discrimination and defense of 

guardianship (as defined in paragraph 

(d)(2)(i) of this section). 

(v) Maintain the expertise required to 

deliver any matters in addition to those 

specified in paragraph (f)(2)(iv) of this 

section that are related to preserving, 

maintaining, and restoring an older 

adult’s independence, choice, or 

financial security. 

(vi) Maintain the expertise and 

capacity to deliver a full range of legal 

assistance, from brief service and advice 

through representation in hearings, 

trials, and other administrative and 

judicial proceedings in the areas of law 

affecting such older individuals with 

economic or social need. 

(vii) Maintain the capacity to provide 

effective legal assistance and legal 

support to other advocacy efforts, 

including, but not limited to, the LongTerm Care Ombudsman Program serving 

the planning and service area, as 

required by section 712(h)(8) of the Act 

(42 U.S.C. 3058g(h)(8)), and maintain 

the capacity to form, develop and 

maintain partnerships that support 

older adults’ independence, choice, or 

financial security. 

(viii) Maintain and exercise the 

capacity to effectively provide legal 

assistance to older adults regardless of 

whether they reside in community or 

congregate settings, and to provide legal 

assistance to older individuals who are 

confined to their home, and older adults 

whose access to legal assistance may be 

limited by geography or isolation. 

(ix) Maintain the capacity to provide 

legal assistance in the preferred 

language used by older individuals 

seeking and/or receiving legal assistance 

who are limited-English proficient 

(LEP), including in oral and written 

communication. 

(A) Legal assistance provider(s) shall 

take reasonable steps to ensure 

meaningful access to legal assistance by 

older individuals with limited Englishspeaking proficiency and other 

communication needs; 

(B) Such reasonable steps require an 

individualized assessment of the needs 

of individuals who are seeking legal 

assistance and legal assistance clients to 

understand and participate in the legal 

process (as determined by each 

individual); and 

(C) Legal assistance provider(s) are 

responsible for providing access to 

interpretation, translation, and auxiliary 

aids and services to meet older 

individuals’ legal assistance needs. 

(x) Maintain staff with knowledge of 

the unique experiences of older adults 

with economic or social need and 

expertise in areas of law affecting such 

older adults. 

(xi) Meet the following legal 

assistance provider requirements: 

(A) A legal assistance provider may 

not require an older person to disclose 

information about income or resources 

as a condition for providing legal 

assistance under this part. 

(B) A legal assistance provider may 

ask about the person’s financial 

circumstances as a part of the process of 

providing legal advice, counseling, and 

representation, or for the purpose of 

identifying additional resources and 

benefits for which an older person may 

be eligible. 

(C) A legal assistance provider and its 

attorneys may engage in other legal 

activities to the extent that there is no 

conflict of interest nor other interference 

with their professional responsibilities 

under this Act. 

(D) Legal assistance providers that are 

not housed within Legal Services 

Corporation grantee entities shall 

coordinate their services with existing 

Legal Services Corporation projects to 

concentrate funds under this Act in 

providing legal assistance to older 

adults with the greatest economic need 

or greatest social need. 

(E) Nothing in this section is intended 

to prohibit any attorney from providing 

any form of legal assistance to an 

eligible client, or to interfere with the 

fulfillment of any attorney’s 

professional responsibilities to a client. 

(F) Legal assistance provider attorney 

staff and non-attorney personnel under 

the supervision of legal assistance 

attorneys must adhere to the applicable 

Rules of Professional Conduct. 

(3) Restrictions on legal assistance. 

(i) No legal assistance provider(s) 

shall use funds received under the Act 

to provide legal assistance in a fee 

generating case unless other adequate 

representation is unavailable or there is 

an emergency requiring immediate legal 

action. All providers shall establish 

procedures for the referral of fee 

generating cases. 

(A) ‘‘Fee generating case’’ means any 

case or matter which, if undertaken on 

behalf of an eligible client by an 

attorney in private practice, reasonably 

may be expected to result in a fee for 

legal services from an award to a client, 

from public funds, or from the opposing 

party. 

(B) [Reserved] 

(ii) Other adequate representation is 

deemed to be unavailable when: 

(A) Recovery of damages is not the 

principal object of the client; or 


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(B) A court appoints a provider or an 

employee of a provider pursuant to a 

statute or a court rule or practice of 

equal applicability to all attorneys in the 

jurisdiction; or 

(C) An eligible client is seeking 

benefits under Title II of the Social 

Security Act (42 U.S.C. 401 et seq.), 

Federal Old Age, Survivors, and 

Disability Insurance Benefits; or Title 

XVI of the Social Security Act (42 U.S.C. 

1381 et seq.), Supplemental Security 

Income for Aged, Blind, and Disabled. 

(iii) A provider may seek and accept 

a fee awarded or approved by a court or 

administrative body or included in a 

settlement. 

(iv) When a case or matter accepted in 

accordance with this section results in 

a recovery of damages, other than 

statutory benefits, a provider may accept 

reimbursement for out-of-pocket costs 

and expenses incurred in connection 

with the case or matter. 

(4) Legal assistance provider 

prohibited activities. 

(i) A provider, employee of the 

provider, or staff attorney shall not 

engage in the following prohibited 

political activities: 

(A) No provider or its employees shall 

contribute or make available funds, 

personnel, or equipment provided 

under the Act to any political party or 

association or to the campaign of any 

candidate for public or party office; or 

for use in advocating or opposing any 

ballot measure, initiative, or 

referendum; 

(B) No provider or its employees shall 

intentionally identify the Title III 

program or provider with any partisan 

or nonpartisan political activity, or with 

the campaign of any candidate for 

public or party office; or 

(C) While engaged in legal assistance 

activities supported under the Act, no 

attorney shall engage in any political 

activity. 

(ii) No funds made available under 

the Act shall be used for lobbying 

activities including, but not limited to, 

any activities intended to influence any 

decision or activity by a nonjudicial 

Federal, State, or local individual or 

body. 

(A) Nothing in this section is intended 

to prohibit an employee from: 

(1) Communicating with a 

governmental agency for the purpose of 

obtaining information, clarification, or 

interpretation of the agency’s rules, 

regulations, practices, or policies; 

(2) Informing a client about a new or 

proposed statute, executive order, or 

administrative regulation relevant to the 

client’s legal matter; 

(3) Responding to an individual 

client’s request for advice only with 

respect to the client’s own 

communications to officials unless 

otherwise prohibited by the Act, Title III 

regulations or other applicable law. This 

provision does not authorize 

publication or training of clients on 

lobbying techniques or the composition 

of a communication for the client’s use; 

(4) Making direct contact with the 

area agency for any purpose; or 

(5) Testifying before a government 

agency, legislative body, or committee at 

the request of the government agency, 

legislative body, or committee. 

(B) [Reserved] 

(iii) A provider may use funds 

provided by private sources to: 

(A) Engage in lobbying activities if a 

government agency, elected official, 

legislative body, committee, or member 

thereof is considering a measure directly 

affecting activities of the provider under 

the Act; 

(B) [Reserved] 

(iv) While carrying out legal 

assistance activities and while using 

resources provided under the Act, by 

private entities or by a recipient, 

directly or through a subrecipient, no 

provider or its employees shall: 

(A) Participate in any public 

demonstration, picketing, boycott, or 

strike, whether in person or online, 

except as permitted by law in 

connection with the employee’s own 

employment situation; 

(B) Encourage, direct, or coerce others 

to engage in such activities; or 

(C) At any time engage in or 

encourage others to engage in: 

(1) Rioting or civil disturbance; 

(2) Activity determined by a court to 

be in violation of an outstanding 

injunction of any court of competent 

jurisdiction; 

(3) Any illegal activity; 

(4) Any intentional identification of 

programs funded under the Act or 

recipient with any partisan or 

nonpartisan political activity, or with 

the campaign of any candidate for 

public or party office; or 

(v) None of the funds made available 

under the Act may be used to pay dues 

exceeding a reasonable amount per legal 

assistance provider per annum to any 

organization (other than a bar 

association), a purpose or function of 

which is to engage in activities 

prohibited under these regulations. 

Such dues may not be used to engage in 

activities for which Older Americans 

Act funds cannot be directly used. 

§ 1321.95 Service provider Title III and Title 

VI coordination responsibilities. 

(a) For locations served by service 

providers under Title III of the Act 

where there are Title VI programs, the 

area agency on aging’s and/or service 

provider’s policies and procedures, 

developed in coordination with the 

relevant Title VI program director(s), as 

set forth in § 1322.13(a), must explain 

how the service provider will 

coordinate with Title VI programs. 

(b) The policies and procedures set 

forth in paragraph (a) of this section 

must at a minimum address: 

(1) How the service provider will 

provide outreach to Tribal elders and 

family caregivers regarding services for 

which they may be eligible under Title 

III; 

(2) The communication opportunities 

the service provider will make available 

to Title VI programs, to include 

meetings email distribution lists, and 

presentations; 

(3) The methods for collaboration on 

and sharing of program information and 

changes; 

(4) How Title VI programs may refer 

individuals who are eligible for Title III 

services; 

(5) How services will be provided in 

a culturally appropriate and traumainformed manner; and 

(6) Opportunities to serve on advisory 

councils, workgroups, and boards. 

Subpart E—Emergency and Disaster 

Requirements 

§ 1321.97 Coordination with State, Tribal, 

and local emergency management. 

(a) State agencies. (1) State agencies 

shall establish emergency plans, as set 

forth in section 307(a)(28) of the Act (42 

U.S.C. 3027(a)(28)). Such plans must 

include, at a minimum: 

(i) The State agency’s continuity of 

operations plan and an all-hazards 

emergency response plan based on 

completed risk assessments for all 

hazards and updated annually; 

(ii) A plan to coordinate activities 

with area agencies on aging, service 

providers, local emergency response 

agencies, relief organizations, local 

governments, State agencies responsible 

for emergency and disaster 

preparedness, and any other institutions 

that have responsibility for disaster 

relief service delivery; 

(iii) Processes for developing and 

updating long-range emergency and 

disaster preparedness plans; and 

(iv) Other relevant information as 

determined by the State agency. 

(2) The plan shall include information 

describing the involvement of the head 

of the State agency in the development, 

revision, and implementation of 

emergency and disaster preparedness 

plans, including the State Public Health 

Emergency Preparedness and Response 

Plan. 


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(3) The plan shall discuss 

coordination with area agencies on 

aging and service providers and Tribal 

and local emergency management. 

(b) Area agencies on aging. (1) Area 

agencies on aging shall establish 

emergency plans. Such plans must 

include: 

(i) The area agency’s continuity of 

operations plan and an all-hazards 

emergency response plan based on 

completed risk assessments for all 

hazards and updated annually; 

(ii) A description of coordination 

activities for both development and 

implementation of long-range 

emergency and disaster preparedness 

plans; and 

(iii) Other information as deemed 

appropriate by the area agency on aging. 

(2) The area agency on aging shall 

coordinate with Federal, local, and State 

emergency response agencies, service 

providers, relief organizations, local and 

State governments, and any other 

entities that have responsibility for 

disaster relief service delivery, as well 

as with Tribal emergency management, 

as appropriate. 

§ 1321.99 Setting aside funds to address 

disasters. 

(a) Section 310 of the Act (42 U.S.C. 

3030) authorizes the use of funds during 

Presidentially declared major disaster 

declarations under the Stafford Act (42 

U.S.C. 5121–5207) without regard to 

distribution through the State agency’s 

intrastate funding formula or funds 

distribution plan when the following 

apply: 

(1) Title III services are impacted; and 

(2) Flexibility is needed as 

determined by the State agency. 

(b) When implementing this 

authority, State agencies may set aside 

funds, up to five percent of their total 

Title III allocations, if specified as being 

allowed to be withheld for the purpose 

in their approved intrastate funding 

formula or funds distribution plan, or 

with prior approval from the Assistant 

Secretary for Aging. The following 

apply for use of set aside funds: 

(1) Set aside funds that are awarded 

under this provision must comply with 

the requirements at § 1321.101; and 

(2) The State agency must have 

policies and procedures in place to 

award funds set aside through the 

intrastate funding formula, as set forth 

in § 1321.49, or funds distribution plan, 

as set forth in § 1321.51(b), if there are 

no funds awarded subject to this 

provision within 30 days of the end of 

the fiscal year in which the funds were 

received. 

§ 1321.101 Flexibilities under a major 

disaster declaration. 

(a) If a State or Indian Tribe requests 

and receives a major disaster declaration 

under the Stafford Act (42 U.S.C. 5121– 

5207), the State agency may use disaster 

relief flexibilities under Title III as set 

forth in this section to provide disaster 

relief services for areas of the State 

where the specific major disaster 

declaration is authorized and where 

older adults and family caregivers are 

affected. 

(b) Flexibilities a State agency may 

exercise under a major disaster 

declaration include: 

(1) Allowing use of any portion of the 

funds of any open grant awards under 

Title III of the Act for disaster relief 

services for older individuals and family 

caregivers. 

(2) Awarding portions of State plan 

administration, up to a maximum of five 

percent of the Title III grant award or to 

a maximum of the amounts set forth at 

§ 1321.9(c)(2)(iv), for use in a planning 

and service area covered in whole or 

part under a major disaster declaration 

without the requirement of allocation 

through the intrastate funding formula 

or funds distribution plan to be used for 

direct service provision. 

(3) Awarding of funds set aside to 

address disasters, as set forth in 

§ 1321.99, or as determined by the 

Assistant Secretary for Aging, in the 

following ways: 

(i) to an area agency serving a 

planning and service area covered in 

whole or part under a major disaster 

declaration without the requirement of 

allocation through the intrastate funding 

formula; 

(ii) for single planning and service 

area States, to a service provider 

without the requirement of allocation 

through a funds distribution plan; or 

(iii) to be used for direct service 

provision, direct expenditures, and/or 

procurement of items on a statewide 

level, if the State agency adheres to the 

following: 

(A) The State agency judges that 

provision of services or procurement of 

supplies by the State agency is 

necessary to ensure an adequate supply 

of such services and/or that such 

services can be provided/supplies 

procured more economically, and with 

comparable quality, by the State agency; 

(B) The State agency consults with 

area agencies on aging prior to 

exercising the flexibility, and includes 

the Ombudsman as set forth in part 

1324, subpart A if funding for the 

Ombudsman program is affected; 

(C) The State agency uses such set 

aside funding, as provided at § 1321.99, 

for services provided through area 

agencies on aging and other aging 

network partners to the extent 

reasonably practicable, in the judgment 

of the State agency; and 

(D) The State agency ensures 

reporting of any clients, units, and 

services provided through such 

expenditures. 

(c) A State agency must submit a State 

plan amendment as set forth in 

§ 1321.31(b) if the State agency exercises 

any of the flexibilities as set forth in 

paragraph (b) of this section. The State 

plan amendment must at a minimum 

include the specific entities receiving 

funds; the amount, source, and intended 

use for funds; and other such 

justification of the use of funds. 

(d) Disaster relief services may 

include any allowable services under 

the Act to eligible older individuals or 

family caregivers during the period 

covered by the major disaster 

declaration. 

(e) Expenditures of funds under 

disaster relief flexibilities must be 

reported separately from the grant 

where funding was expended. State 

agencies may expend funds from any 

source within open grant awards under 

Title III and Title VII of the Act but must 

track the source of all expenditures. 

(f) State agencies must have policies 

and procedures outlining 

communication with area agencies on 

aging and/or local service providers 

regarding State agency expectations for 

eligibility, use, and reporting of services 

and funds provided under these 

flexibilities, and include the 

Ombudsman as set forth in part 1324, 

subpart A if funding for the 

Ombudsman program is affected. 

(g) A State agency may only make 

obligations exercising this flexibility 

during the major disaster declaration 

incident period or 90 days thereafter or 

with prior approval from the Assistant 

Secretary for Aging. 

§ 1321.103 Title III and Title VI coordination 

for emergency and disaster preparedness. 

State agencies, area agencies, and 

Title VI programs should coordinate in 

emergency and disaster preparedness 

planning, response, and recovery. State 

agencies and area agencies that have 

Title VI programs in operation within 

their jurisdictions must have policies 

and procedures, developed in 

communication with the relevant Title 

VI program director(s) as set forth in 

§ 1322.13(c), in place for how they will 

communicate and coordinate with Title 

VI programs regarding emergency and 

disaster preparedness planning, 

response, and recovery. 


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§ 1321.105 Modification during major 

disaster declaration or public health 

emergency. 

The Assistant Secretary for Aging 

retains the right to modify the 

requirements described in these 

regulations pursuant to a major disaster 

declaration or public health emergency. 

■ 2. Revise part 1322 to read as follows: 

PART 1322—GRANTS TO INDIAN 

TRIBES AND NATIVE HAWAIIAN 

GRANTEES FOR SUPPORTIVE, 

NUTRITION, AND CAREGIVER 

SERVICES 

Sec. 

Subpart A—Introduction 

1322.1 Basis and purpose of this part. 

1322.3 Definitions. 

Subpart B—Application 

1322.5 Application requirements. 

1322.7 Application approval. 

1322.9 Hearing procedures. 

Subpart C—Service Requirements 

1322.11 Purpose of services allotments 

under Title VI. 

1322.13 Policies and procedures. 

1322.15 Confidentiality and disclosure of 

information. 

1322.17 Purpose of services—person- and 

family-centered, trauma-informed. 

1322.19 Responsibilities of service 

providers. 

1322.21 Client eligibility for participation. 

1322.23 Client and service priority. 

1322.25 Supportive services. 

1322.27 Nutrition services. 

1322.29 Family caregiver support services. 

1322.31 Title VI and Title III coordination. 

Subpart D—Emergency and Disaster 

Requirements 

1322.33 Coordination with Tribal, State, 

and local emergency management. 

1322.35 Flexibilities under a major disaster 

declaration. 

1322.37 Title VI and Title III coordination 

for emergency and disaster preparedness. 

1322.39 Modification during major disaster 

declaration or public health emergency. 

Authority: 42 U.S.C. 3001 et seq. 

Subpart A—Introduction 

§ 1322.1 Basis and purpose of this part. 

(a) This program is established to 

meet the unique needs and 

circumstances of American Indian and 

Alaskan Native elders and family 

caregivers and of older Native 

Hawaiians and family caregivers, on 

Indian reservations and/or in service 

areas as approved in § 1322.7. This 

program honors the sovereign 

government to government relationship 

with a Tribal organization serving elders 

and family caregivers through direct 

grants to serve the eligible participants 

and similar considerations, as 

appropriate, for Hawaiian Native 

grantees representing elders and family 

caregivers. This part implements Title 

VI (parts A, B, and C) of the Older 

Americans Act, as amended (the Act), 

by establishing the requirements that an 

Indian Tribal organization or Hawaiian 

Native grantee shall meet in order to 

receive a grant to promote the delivery 

of services for older Indians, Alaskan 

Native, Native Hawaiians, and Native 

American family caregivers that are 

comparable to services provided under 

Title III. This part also prescribes 

application and hearing requirements 

and procedures for these grants. 

(b) Terms used, but not otherwise 

defined, in this part will have the 

meanings ascribed to them in the Act. 

§ 1322.3 Definitions. 

Access to services or access services, 

as used in this part, means services 

which may facilitate connection to or 

receipt of other direct services, 

including transportation, outreach, 

information and assistance, options 

counseling, and case management 

services. 

Acquiring, as used in this part, means 

obtaining ownership of an existing 

facility. 

Act, means the Older Americans Act 

of 1965 as amended. 

Altering or renovating, as used in this 

part, means making modifications to or 

in connection with an existing facility 

which are necessary for its effective use. 

Such modifications may include 

alterations, improvements, 

replacements, rearrangements, 

installations, renovations, repairs, 

expansions, upgrades, or additions, 

which are not in excess of double the 

square footage of the original facility 

and all physical improvements. 

Area agency on aging, as used in this 

part, means a single agency designated 

by the State agency to perform the 

functions specified in the Act for a 

planning and service area. 

Budgeting period, as used in 

§ 1322.19, means the intervals of time 

into which a period of assistance 

(project period) is divided for budgetary 

and funding purposes. 

Constructing, as used in this part, 

means building a new facility, including 

the costs of land acquisition and 

architectural and engineering fees, or 

making modifications to or in 

connection with an existing facility 

which are in excess of double the square 

footage of the original facility and all 

physical improvements. 

Department, means the U.S. 

Department of Health and Human 

Services. 

Domestically produced foods, as used 

in this part, means agricultural foods, 

beverages and other food ingredients 

which are a product of the United 

States, its Territories or possessions, the 

Commonwealth of Puerto Rico, or the 

Trust Territories of the Pacific Islands 

(hereinafter referred to as ‘‘the United 

States’’), except as may otherwise be 

required by law, and shall be considered 

to be such a product if it is grown, 

processed, and otherwise prepared for 

sale or distribution exclusively in the 

United States except with respect to 

minor ingredients. Ingredients from 

nondomestic sources will be allowed to 

be utilized as a United States product if 

such ingredients are not otherwise: 

(1) Produced in the United States; and 

(2) Commercially available in the 

United States at fair and reasonable 

prices from domestic sources. 

Eligible organization, means either a 

Tribal organization or a public or 

nonprofit private organization having 

the capacity to provide services under 

this part for older Hawaiian Natives. 

Family caregiver, as used in this part, 

means an adult family member, or 

another individual, who is an informal 

provider of in-home and community 

care to an older Native American; an 

adult family member, or another 

individual, who is an informal provider 

of in-home and community care to an 

individual of any age with Alzheimer’s 

disease or a related disorder with 

neurological and organic brain 

dysfunction; or an older relative 

caregiver. For purposes of this part, 

family caregiver does not include 

individuals whose primary relationship 

with the older adult is based on a 

financial or professional agreement. 

Hawaiian Native or Native Hawaiian, 

as used in this part, means any 

individual, any of whose ancestors were 

native of the area which consists of the 

Hawaiian Islands prior to 1778. 

Hawaiian Native grantee, as used in 

this part, means an eligible organization 

that has received funds under Title VI 

of the Act to provide services to older 

Hawaiians. 

Indian reservation, means the 

reservation of any Federally recognized 

Indian Tribe, including any band, 

nation, pueblo, or rancheria, any former 

reservation in Oklahoma, any 

community on non-trust land under the 

jurisdiction of an Indian Tribe, 

including a band, nation, pueblo, or 

rancheria, with allotted lands, or lands 

subject to a restriction against alienation 

imposed by the United States, and 

Alaska Native regions established, 

pursuant to the Alaska Native Claims 

Settlement Act (43 U.S.C. 1601 et seq.). 


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Indian Tribe, means any Indian Tribe, 

band, nation, or organized group or 

community, including any Alaska 

Native village, regional or village 

corporation as defined in or established 

pursuant to the Alaska Native Claims 

Settlement Act (43 U.S.C. 1601 et seq.) 

which is recognized as eligible for the 

special programs and services provided 

by the United States to Indians because 

of their status as Indians (25 U.S.C. 

450b). 

In-home supportive services, as used 

in this part, references those supportive 

services provided in the home as set 

forth in the Act, to include: 

(1) Homemaker, personal care, home 

care, home health, and other aides; 

(2) Visiting and telephone or virtual 

reassurance; 

(3) Chore maintenance; 

(4) Respite care for families, including 

adult day care as a respite service for 

families; and 

(5) Minor modification of homes that 

is necessary to facilitate the 

independence and health of older 

Native Americans and that is not readily 

available under another program. 

Major disaster declaration, as used in 

this part and section 310 of the Act (42 

U.S.C. 3030), means a Presidentially 

declared disaster under the Robert T. 

Stafford Relief and Emergency 

Assistance Act (42 U.S.C. 5121–5207). 

Means test, as used in this part in the 

provision of services, means the use of 

the income, assets, or other resources of 

an older Native American, family 

caregiver, or the households thereof to 

deny or limit that person’s eligibility to 

receive services under this part. 

Multipurpose senior center, as used in 

the Act, means a community facility for 

the organization and provision of a 

broad spectrum of services, which shall 

include provision of health (including 

mental and behavioral health), social, 

nutritional, and educational services 

and the provision of facilities for 

recreational activities for older Native 

Americans, as practicable, including as 

provided via virtual facilities; as used in 

§ 1322.25, facilitation of services in such 

a facility. 

Native American, as used in the Act, 

means a person who is a member of any 

Indian Tribe, band, nation, or other 

organized group or community of 

Indians (including any Alaska Native 

village or regional or village corporation 

as defined in or established pursuant to 

the Alaska Native Claims Settlement Act 

(43 U.S.C. 1601 et seq.) who: 

(1) Is recognized as eligible for the 

special programs and services provided 

by the United States to Indians because 

of their status as Indians; or 

(2) Is located on, or in proximity to, 

a Federal or State reservation or 

rancheria; or is a person who is a Native 

Hawaiian, who is any individual any of 

whose ancestors were natives of the area 

which consists of the Hawaiian Islands 

prior to 1778. 

Nutrition Services Incentive Program, 

as used in the Act, means grant funding 

to State agencies, eligible Tribal 

organizations, and Native Hawaiian 

grantees to support congregate and 

home-delivered nutrition programs by 

providing an incentive to serve more 

meals. 

Older Indians, means those 

individuals who have attained the 

minimum age determined by the Indian 

Tribe for services. 

Older Native Hawaiian, means any 

individual, age 60 or over, who is a 

Hawaiian Native. 

Older relative caregiver, as used in 

section 631 of the Act (42 U.S.C. 3057k– 

11), means a caregiver who is age 55 or 

older and lives with, is the informal 

provider of in-home and community 

care to, and is the primary caregiver for, 

a child or an individual with a 

disability; 

(1) In the case of a caregiver for a 

child is: 

(i) The grandparent, step-grandparent, 

or other relative (other than the parent) 

by blood, marriage, or adoption, of the 

child; 

(ii) Is the primary caregiver of the 

child because the biological or adoptive 

parents are unable or unwilling to serve 

as the primary caregivers of the child; 

and 

(iii) Has a legal relationship to the 

child, such as legal custody, adoption, 

or guardianship, or is raising the child 

informally; and 

(2) In the case of a caregiver for an 

individual with a disability, is the 

parent, grandparent, step-grandparent, 

or other relative by blood, marriage, or 

adoption of the individual with a 

disability. 

Program income, as defined in 2 CFR 

part 200.1 means gross income earned 

by the non-Federal entity that is directly 

generated by a supported activity or 

earned as a result of the Federal award 

during the period of performance except 

as provided in 2 CFR 200.307(f). 

Program income includes but is not 

limited to income from fees for services 

performed, the use or rental of real or 

personal property acquired under 

Federal awards, the sale of commodities 

or items fabricated under a Federal 

award, license fees and royalties on 

patents and copyrights, and principal 

and interest on loans made with Federal 

award funds. Interest earned on 

advances of Federal funds is not 

program income. Except as otherwise 

provided in Federal statutes, 

regulations, or the terms and conditions 

of the Federal award, program income 

does not include rebates, credits, 

discounts, and interest earned on any of 

them. See also 2 CFR 200.307, 200.407 

and 35 U.S.C. 200–212 (which applies 

to inventions made under Federal 

awards). 

Project period, as used in § 1322.19, 

means the total time for which a project 

is approved including any extensions. 

Reservation, as used in section 

305(b)(2) of the Act (42 U.S.C. 

3025(b)(2)) with respect to the 

designation of planning and service 

areas, means any Federally or State 

recognized American Indian Tribe’s 

reservation, pueblo, or colony, 

including former reservations in 

Oklahoma, Alaska Native regions 

established pursuant to the Alaska 

Native Claims Settlement Act (85 Stat. 

688), and Indian allotments. 

Service area, as used in § 1322.5(b) 

and elsewhere in this part, means that 

geographic area approved by the 

Assistant Secretary for Aging in which 

the Tribal organization or Hawaiian 

Native grantee provides supportive, 

nutrition, and/or family caregiver 

support services to older Indians or 

Native Hawaiians residing there. Service 

areas are approved through the funding 

application process, which may include 

Bureau of Indian Affairs service area 

maps. A service area may include all or 

part of the reservation or any portion of 

a county or counties which has a 

common boundary with the reservation. 

A service area may also include a noncontiguous area if the designation of 

such an area will further the purpose of 

the Act and will provide for more 

effective administration of the program 

by the Tribal organization. 

Service provider, means an entity that 

is awarded funds, including via a grant, 

subgrant, contract, or subcontract, from 

a Tribal organization or Native 

Hawaiian grantee to provide direct 

services under this part. 

State agency, as used in this part, 

means the designated State unit on 

aging for each of the 50 States, the 

District of Columbia, and the Territories 

of Guam, Puerto Rico, the United States 

Virgin Islands, American Samoa, and 

the Commonwealth of the Northern 

Mariana Islands, unless otherwise 

specified. 

Title VI director, as used in this part, 

means a single individual who is the 

key personnel responsible for day-today management of the Title VI program 

and who serves as a contact point for 

communications regarding the Title VI 

program. 


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Tribal organization, as used in this 

part, means the recognized governing 

body of any Indian Tribe, or any legally 

established organization of Indians 

which is controlled, sanctioned, or 

chartered by such governing body or 

which is democratically elected by the 

adult members of the Indian community 

to be served by such organization and 

which includes the maximum 

participation of Indians in all phases of 

its activities. Provided that in any case 

where a contract is let or grant made to 

an organization to perform services 

benefiting more than one Indian Tribe, 

the approval of each Indian Tribe shall 

be a prerequisite to the letting or making 

of the contract or grant (25 U.S.C. 450b). 

Voluntary contributions, as used in 

section 315(b) of the Act (42 U.S.C. 

3030c–2(b)), means donations of money 

or other personal resources given freely, 

without pressure or coercion, by 

individuals receiving services under the 

Act. 

Subpart B—Application 

§ 1322.5 Application requirements. 

An eligible organization shall submit 

an application. The application shall be 

submitted as prescribed in section 614 

of the Act (42 U.S.C. 3057e) and in 

accordance with the Assistant Secretary 

for Aging’s instructions for the specified 

project and budget periods. In addition 

to the requirements set out in section 

614 of the Act (42 U.S.C. 3057e), the 

application shall provide for: 

(a) Program objectives, as set forth in 

section 614(a)(5) of the Act (42 U.S.C. 

3057e(a)(5)), and any objectives 

established by the Assistant Secretary 

for Aging; 

(b) A map and/or description of the 

geographic boundaries of the service 

area proposed by the eligible 

organization, which may include 

Bureau of Indian Affairs service area 

maps; 

(c) Documentation of the ability of the 

eligible organization to deliver 

supportive and nutrition services to 

older Native Americans, or 

documentation that the eligible 

organization has effectively 

administered supportive and nutrition 

services within the last 3 years; 

(d) Assurances as prescribed by the 

Assistant Secretary for Aging that: 

(1) The eligible organization 

represents at least 50 individuals who 

have attained 60 years of age or older 

and reside in the service area; 

(2) The eligible organization shall 

comply with all applicable State and 

local license and safety requirements, if 

any, for the provision of those services; 

(3) If a substantial number of the older 

Native Americans residing in the service 

area are limited English proficient, the 

Tribal organization shall utilize the 

services of workers who are fluent in the 

language used by a predominant 

number of older Native Americans; 

(4) Procedures to ensure that all 

services under this part are provided 

without use of any means tests; 

(5) The eligible organization shall 

comply with all requirements set forth 

in §§ 1322.7 through 1322.17; 

(6) The services provided under this 

part shall be coordinated, where 

applicable, with services provided 

under Title III of the Act as set forth in 

45 CFR part 1321 and Title VII of the 

Act as set forth in 45 CFR part 1324, and 

the eligible organization shall establish 

and follow policies and procedures as 

set forth in § 1322.13; 

(7) The eligible organization shall 

have a completed needs assessment 

within the project period immediately 

prior to the application identifying the 

need for nutrition and supportive 

services for older Native Americans and, 

if applying for funds under Title VI part 

C, for family caregivers; 

(8) The eligible organization shall 

ensure policies and procedures are 

aligned with periodic data collection 

and reporting requirements, including 

ensuring service and unit definitions are 

consistent with definitions set forth in 

these regulations, policy guidance, and 

other information developed by the 

Assistant Secretary for Aging; and 

(9) The eligible organization shall 

complete a program evaluation using 

data as set forth by the Assistant 

Secretary for Aging and shall use 

findings of such program evaluation to 

establish and update program goals and 

objectives. 

(e) A Tribal resolution(s) authorizing 

the Tribal organization to apply for a 

grant under this part; and 

(f) Signature by the principal official 

of the Indian Tribe or eligible 

organization. 

§ 1322.7 Application approval. 

(a) Approval of any application under 

section 614(e) of the Act (42 U.S.C. 

3057e(e)), shall not commit the 

Assistant Secretary for Aging in any way 

to make additional, supplemental, 

continuation, or other awards with 

respect to any approved application. 

(b) The Assistant Secretary for Aging 

may give first priority in awarding 

grants to grantees that have effectively 

administered such grants in the prior 

year. 

(c) Upon approval of an application 

and acceptance of the funding award, 

the Tribal organization or Hawaiian 

Native grantee is required to submit all 

performance and fiscal reporting as set 

forth by the Assistant Secretary for 

Aging on a no less than an annual basis. 

(d) If the Assistant Secretary for Aging 

disapproves of an application, the 

Assistant Secretary for Aging must 

follow procedures outlined in section 

614(d) of the Act (42 U.S.C. 3057e(d)). 

§ 1322.9 Hearing procedures. 

In meeting the requirements of section 

614(d)(3) of the Act (42 U.S.C. 

3057e(d)(3)), if the Assistant Secretary 

for Aging disapproves an application 

from an eligible organization, the 

eligible organization may file a written 

request for a hearing with the 

Departmental Appeals Board (DAB) in 

accordance with 45 CFR part 16. 

(a) The request shall be postmarked or 

delivered in person within 30 days of 

the date of the disapproval notice. If it 

requests a hearing, the eligible 

organization shall submit to the DAB, as 

part of the request, a full written 

response to each objection specified in 

the notice of disapproval, including the 

pertinent facts and reasons in support of 

its response, and all documentation to 

support its position as well as any 

documentation requested by the DAB. 

(b) Upon receipt of appeal for 

reconsideration of a rejected application 

or activities proposed by an applicant, 

the DAB will notify the applicant by 

certified mail that the appeal has been 

received. 

(c) The DAB may refer an appeal to 

its Alternative Dispute Resolution 

Division for mediation prior to making 

a decision. After consideration of the 

record, the DAB will issue a written 

decision, based on the record, that sets 

forth the reasons for the decision and 

the evidence on which it was based. A 

disapproval decision issued by the DAB 

represents the final determination of the 

Assistant Secretary for Aging and 

remains in effect unless reversed or 

stayed on judicial appeal, except that 

the Assistant Secretary for Aging may 

modify or set aside the decision before 

the record of the proceedings under this 

subpart is filed in court. 

(d) Either the eligible organization or 

the staff of the Administration on Aging 

may request for good cause an extension 

of any of the time limits specified in this 

section. 

Subpart C—Service Requirements 

§ 1322.11 Purpose of services allotments 

under Title VI. 

(a) Title VI of the Act authorizes the 

distribution of Federal funds to Tribal 

organizations and a Hawaiian Native 

grantee for the following categories of 

services: 


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(1) Supportive services; 

(2) Nutrition services; and 

(3) Family caregiver support program 

services. 

(b) Funds authorized under these 

categories are for the purpose of 

assisting a Tribal organization or 

Hawaiian Native grantee to develop or 

enhance comprehensive and 

coordinated community-based systems 

for older Native Americans and family 

caregivers. 

§ 1322.13 Policies and procedures. 

The Tribal organization and Hawaiian 

Native grantee shall ensure the 

development and implementation of 

policies and procedures, including 

those required as set forth in this part. 

(a) Upon approval of a program 

application and acceptance of funding, 

the Tribal organization or Hawaiian 

Native grantee must appoint a Title VI 

Director and provide appropriate 

contact information for the Title VI 

Director consistent with guidance from 

the Assistant Secretary for Aging. 

(b) The Tribal organization or 

Hawaiian Native grantee shall provide 

the Assistant Secretary for Aging with 

statistical and other information in 

order to meet planning, coordination, 

evaluation and reporting requirements 

in a timely manner and shall ensure 

policies and procedures are aligned 

with periodic data collection and 

reporting requirements, including 

ensuring service and unit definitions are 

consistent with definitions set forth in 

these regulations, policy guidance, and 

other information developed by the 

Assistant Secretary for Aging. 

(c) A Tribal organization or Hawaiian 

Native grantee must maintain program 

policies and procedures. Policies and 

procedures shall address: 

(1) Direct service provision, 

including: 

(i) Requirements for client eligibility, 

periodic assessment, and personcentered planning, where appropriate; 

(ii) Access to information and 

assistance to minimally address: 

(A) Establishing or having a list of all 

services that are available to older 

Native Americans in the service area; 

(B) Maintaining a list of services 

needed or requested by older Native 

Americans; 

(C) Providing assistance to older 

Native Americans to help them take 

advantage of available services; 

(D) Working with agencies, such as 

area agencies on aging and other 

programs funded by Title III and Title 

VII as set forth in §§ 1321.53 and 

1321.69 of this chapter, to facilitate 

participation of older Native Americans; 

and 

(E) A listing and definitions of 

services that may be provided by the 

Tribal organization or Native Hawaiian 

grantee with funds received under the 

Act. 

(iii) Limitations on the frequency, 

amount, or type of service provided; and 

(iv) The grievance process for older 

individuals and family caregivers who 

are dissatisfied with or denied services 

under the Act. 

(2) Fiscal requirements including: 

(i) Voluntary contributions. Voluntary 

contributions, where: 

(A) Each Tribal organization or 

Hawaiian Native grantee shall: 

(1) Provide each older Native 

American with a voluntary opportunity 

to contribute to the cost of the service; 

(2) Protect the privacy of each older 

Native American with respect to their 

contribution; 

(3) Establish appropriate procedures 

to safeguard and account for all 

contributions; 

(4) Use all voluntary contributions to 

expand comprehensive and coordinated 

services systems supported under this 

part, while using voluntary 

contributions provided for nutrition 

services only to expand nutrition 

services, consistent with § 1322.27. 

(B) Each Tribal organization or Native 

Hawaiian grantee may develop a 

suggested contribution schedule for 

services provided under this part. In 

developing a contribution schedule, the 

Tribal organization or Native Hawaiian 

grantee shall consider the income ranges 

of older Native Americans in the service 

area and the Tribal organization’s or 

Hawaiian Native grantee’s other sources 

of income. However, means tests may 

not be used. 

(C) A Tribal organization or Hawaiian 

Native grantee that receives funds under 

this part may not deny any older Native 

American a service because the older 

Native American will not or cannot 

contribute to the cost of the service. 

(ii) Buildings and equipment. 

Buildings and equipment, where costs 

incurred for altering or renovating, 

utilities, insurance, security, necessary 

maintenance, janitorial services, repair, 

and upkeep (including Federal property 

unless otherwise provided for) to keep 

buildings and equipment in an efficient 

operating condition, may be an 

allowable use of funds if: 

(A) Costs are not payable by third 

parties through rental or other 

agreements; 

(B) Costs support an allowed activity 

under Title VI part A, B, or C of the Act 

and are allocated proportionally to the 

benefiting grant program; 

(C) Constructing and acquiring 

activities are only allowable for 

multipurpose senior centers; 

(D) In addition to complying with 2 

CFR part 200, the Tribal organization or 

Native Hawaiian grantee (and all other 

necessary parties) must file a Notice of 

Federal Interest in the appropriate 

official records of the jurisdiction where 

the property is located at the time of 

acquisition or prior to commencement 

of construction, as applicable. The 

Notice of Federal Interest must indicate 

that the acquisition or construction has 

been funded with an award under Title 

VI of the Act and that inquiries 

regarding the Federal Government’s 

interest in the property should be 

directed in writing to the Assistant 

Secretary for Aging; 

(E) Altering and renovating activities 

are allowable for facilities providing 

services with funds provided as set forth 

in this part and as subject to 2 CFR part 

200. 

(iii) Supplement, not supplant. Funds 

awarded under this part must be used 

to supplement, not supplant existing 

Federal, State, and local funds 

expended to support activities. 

(d) The Tribal organization or 

Hawaiian Native grantee must develop a 

monitoring process ensuring the quality 

and effectiveness of services regarding 

meeting participant needs, the goals 

outlined within the approved 

application, and Tribal organization 

requirements. 

§ 1322.15 Confidentiality and disclosure of 

information. 

A Tribal organization or Hawaiian 

Native grantee shall develop and 

maintain confidentiality and disclosure 

procedures as follows: 

(a) A Tribal organization or Hawaiian 

Native grantee shall have procedures to 

ensure that no information about an 

older Native American or obtained from 

an older Native American by any 

provider of services is disclosed by the 

provider of such services in a form that 

identifies the person without the 

informed consent of the person or their 

legal representative, unless the 

disclosure is required by court order, or 

for program monitoring by authorized 

Federal or Tribal monitoring agencies. 

(b) A Tribal organization or Hawaiian 

Native grantee is not required to 

disclose those types of information or 

documents that are exempt from 

disclosure by a Federal agency under 

the Federal Freedom of Information Act 

(5 U.S.C. 552). 

(c) A Tribal organization or Hawaiian 

Native grantee shall not require a 

provider of legal assistance under this 


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part to reveal any information that is 

protected by attorney client privilege. 

(d) The Tribal organization or 

Hawaiian Native grantee must have 

policies and procedures that ensure that 

entities providing services under this 

title promote the rights of each older 

Native American who receives such 

services. Such rights include the right to 

confidentiality of records relating to 

such Native American. 

(e) A Tribal organization’s or 

Hawaiian Native grantee’s policies and 

procedures may explain that individual 

information and records may be shared 

with other State and local agencies, 

community-based organizations, and 

health care providers and payers, as 

appropriate, in order to provide 

services. 

(f) A Tribal organization’s or 

Hawaiian Native grantee’s policies and 

procedures must comply with all 

applicable Federal laws, codes, rules, 

and regulations, including the Health 

Insurance Portability and 

Accountability Act (HIPAA) (42 U.S.C. 

1301 et seq.), as well as guidance as the 

Tribal organization or Hawaiian Native 

grantee determines, for the collection, 

use, and exchange of both Personal 

Identifiable Information (PII) and 

personal health information in the 

provision of Title VI services under the 

Act. 

§ 1322.17 Purpose of services—personand family-centered, trauma-informed. 

(a) Services must be provided to older 

Native Americans and family caregivers 

in a manner that is person-centered, 

trauma-informed, and culturally 

sensitive. Services should be consistent 

with culturally appropriate holistic 

traditional care and responsive to their 

interests, physical and mental health, 

social and cultural needs, available 

supports, and desire to live where and 

with whom they choose. Personcentered services may include 

community-centered and familycentered approaches consistent with the 

traditions, practices, beliefs, and 

cultural norms and expectations of the 

Tribal organization or Hawaiian Native 

grantee. 

(b) Services should, as appropriate, be 

consistent with culturally appropriate 

holistic traditional care and provide 

older Native Americans and family 

caregivers with the opportunity to 

develop a person-centered plan that is 

led by the individual or, if applicable, 

by the individual and the individual’s 

authorized representative. Services 

should be incorporated into existing 

person-centered plans, as appropriate. 

(c) Tribal organizations and Hawaiian 

Native grantees should provide training 

to staff and volunteers on culturally 

appropriate holistic traditional care and 

person-centered and trauma-informed 

service provision. 

§ 1322.19 Responsibilities of service 

providers. 

As a condition for receipt of funds 

under this part, each Tribal organization 

and Hawaiian Native grantee shall 

assure that providers of services shall: 

(a) Provide service participants with 

an opportunity to contribute to the cost 

of the service as provided in 

§ 1322.13(c)(2)(i); 

(b) Provide, to the extent feasible, for 

the furnishing of services under this 

Act, through self-direction; 

(c) With the consent of the older 

Native American, or their legal 

representative if there is one, or in 

accordance with local adult protective 

services requirements, bring to the 

attention of adult protective services or 

other appropriate officials for follow-up, 

conditions or circumstances which 

place the older Native American, or the 

household of the older Native 

American, in imminent danger; 

(d) Where feasible and appropriate, 

make arrangements for the availability 

of services to older Native Americans 

and family caregivers in weather-related 

and other emergencies; 

(e) Assist participants in taking 

advantage of benefits under other 

programs; 

(f) Assure that all services funded 

under this part are coordinated with 

other appropriate services in the 

community, and that these services do 

not constitute an unnecessary 

duplication of services provided by 

other sources; and 

(g) Receive training to provide 

services in a culturally competent 

manner and consistent with §§ 1322.13 

through 1322.17. 

§ 1322.21 Client eligibility for participation. 

(a) An individual must have attained 

the minimum age determined by the 

Tribal organization or Hawaiian Native 

grantee as specified in their approved 

application, to be eligible to participate 

in services under the Act, unless the Act 

otherwise provides an explicit 

exception. Exceptions are limited to the 

following specific services: 

(1) Nutrition services: 

(i) Services shall be available to 

spouses of any age of older Native 

Americans; 

(ii) Services may be available to: 

(A) A person with a disability who 

lives with an adult, age 60 or older, or 

who resides in a housing facility that is 

primarily occupied by older adults at 

which congregate meals are served; and 

(B) A volunteer during meal hours. 

(2) Family caregiver support services 

for: 

(i) Adults caring for older Native 

Americans or individuals of any age 

with Alzheimer’s or related disorder; 

(ii) Older relative caregivers who are 

caring for children and are not the 

biological or adoptive parent of the 

child, where older relative caregivers 

shall no longer be eligible for services 

under this part when the child reaches 

18 years of age; or 

(iii) Older relative caregivers who are 

caring for individuals age 18 to 59 with 

disabilities, and who may be of any 

relationship, including the biological or 

adoptive parent. 

(3) Services such as information and 

assistance and public education, where 

recipients of information may not be 

older Native Americans, but the 

information is targeted to those who are 

older Native Americans and/or benefits 

those who are older Native Americans. 

(b) A Tribal organization or Hawaiian 

Native grantee may develop further 

eligibility requirements for 

implementation of services for older 

Native Americans and family caregivers, 

consistent with the Act and all 

applicable Federal requirements. Such 

requirements may include: 

(1) Assessment of functional and 

support needs; 

(2) Geographic boundaries; 

(3) Limitations on number of persons 

that may be served; 

(4) Limitations on number of units of 

service that may be provided; 

(5) Limitations due to availability of 

staff/volunteers; 

(6) Limitations to avoid duplication of 

services; 

(7) Specification of settings where 

services shall or may be provided; 

(8) Whether to serve Native 

Americans who have Tribal or Native 

Hawaiian membership other than those 

who are specified in the Tribal 

organization’s or Hawaiian Native 

grantee’s approved application; and 

(9) Whether to serve older individuals 

or family caregivers who are non-Native 

Americans but live within the approved 

service area and are considered 

members of the community by the 

Tribal organization. 

§ 1322.23 Client and service priority. 

(a) The Tribal organization or 

Hawaiian Native grantee shall ensure 

service to those identified as members 

of priority groups through their 

assessment of local needs and resources. 

(b) The Tribal organization or 

Hawaiian Native grantee shall identify 

criteria for being given priority in the 

delivery of services under Title VI, parts 


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A or B, consistent with the Act and all 

applicable Federal requirements. 

(c) The Tribal organization or 

Hawaiian Native grantee shall identify 

criteria for being given priority in the 

delivery of services under Title VI, part 

C, consistent with the Act and all 

applicable Federal requirements: 

(1) Caregivers who are older Native 

Americans with greatest social need, 

and older Native Americans with 

greatest economic need (with particular 

attention to low-income older 

individuals); 

(2) Caregivers who provide care for 

individuals with Alzheimer’s disease 

and related disorders with neurological 

and organic brain dysfunction; and 

(3) When serving older relative 

caregivers, older relative caregivers of 

children or adults with severe 

disabilities shall be given priority. 

§ 1322.25 Supportive services. 

(a) Supportive services are 

community-based interventions as set 

forth in Title VI of the Act, are intended 

to be comparable to such services set 

forth under Title III, and meet standards 

established by the Assistant Secretary 

for Aging. They include in-home 

supportive services, access services, 

which may include multipurpose senior 

centers, and legal services. 

(b) A Tribal organization or Hawaiian 

Native grantee may provide any of the 

supportive services mentioned under 

Title III of the Act, and any other 

supportive services that are necessary 

for the general welfare of older Native 

Americans and older Hawaiian Natives. 

(c) A Tribal organization or Hawaiian 

Native grantee may allow use of Title 

VI, part A and B funds, respectively, for 

acquiring, altering or renovating, or 

constructing facilities to serve as 

multipurpose senior centers, in 

accordance with guidance as set forth by 

the Assistant Secretary for Aging. 

(d) For those Title VI, parts A and B 

services intended to benefit family 

caregivers, a Tribal organization or 

Hawaiian Native grantee, respectively, 

shall ensure that there is coordination 

and no duplication of such services 

available under Title VI, part C or Title 

III. 

(e) If a Tribal organization or 

Hawaiian Native grantee elects to 

provide legal services, it shall comply 

with the requirements in § 1321.93 of 

this chapter and legal services providers 

shall comply fully with the 

requirements in § 1321.93(f) of this 

chapter. 

§ 1322.27 Nutrition services. 

(a) Nutrition services are communitybased interventions as set forth in Title 

VI, parts A and B of the Act, and as 

further defined by the Assistant 

Secretary for Aging. Nutrition services 

include congregate meals, homedelivered meals, nutrition education, 

nutrition counseling, and other 

nutrition services. 

(1) Congregate meals are meals 

meeting the Dietary Guidelines for 

Americans and Dietary Reference 

Intakes as set forth in section 339 of the 

Act (42 U.S.C. 3030g–21) provided by a 

qualified nutrition service provider to 

eligible individuals and consumed 

while congregating virtually, in-person, 

or in community off-site. 

(2) Home-delivered meals are meals 

meeting the Dietary Guidelines for 

Americans and Dietary Reference 

Intakes as set forth in section 339 of the 

Act (42 U.S.C. 3030g–21) provided by a 

qualified nutrition service provider to 

eligible individuals and consumed at 

their residence or otherwise outside of 

a congregate setting, as organized by a 

service provider under the Act. Meals 

may be provided via home delivery, 

pick-up, carry-out or drive-through, or 

through other service as determined by 

the Tribal organization or Hawaiian 

Native grantee. 

(i) Eligibility criteria for homedelivered meals, as determined by the 

Tribal organization or Hawaiian Native 

grantee, may include consideration of 

an individual’s ability to leave home 

unassisted, ability to shop for and 

prepare nutritious meals, degree of 

disability, or other relevant factors 

pertaining to their need for the service. 

(ii) Home-delivered meals providers 

may encourage meal participants to 

attend congregate meal sites and other 

health and wellness activities, as 

feasible, based on a person-centered 

approach and local service availability. 

(3) Nutrition education is information 

provided which provides individuals 

with the knowledge and skills to make 

healthy food and beverage choices. 

Congregate and home-delivered 

nutrition services may provide nutrition 

education, as appropriate, based on the 

needs of meal participants. 

(4) Nutrition counseling is a 

standardized service provided which 

must align with the Academy of 

Nutrition and Dietetics. Congregate and 

home-delivered nutrition services may 

provide nutrition counseling, as 

appropriate, based on the needs of meal 

participants. 

(5) Other nutrition services include 

additional services that may be 

provided to meet nutritional needs or 

preferences, such as weighted utensils, 

supplemental foods, or food items, 

based on the needs of eligible 

participants. 

(b) The Tribal organization or 

Hawaiian Native grantee shall provide 

congregate meals and home-delivered 

meals to eligible participants and may 

provide nutrition education, nutrition 

counseling, and other nutrition services, 

as available. As set forth in section 

614(a)(8) of the Act (42 U.S.C. 

3057e(a)(8)), if the need for nutrition 

services is met from other sources, the 

Tribal organization or Hawaiian Native 

grantee may use the available funding 

under the Act for supportive services. 

(c) Nutrition Services Incentive 

Program allocations are available to a 

Tribal organization or Hawaiian Native 

grantee that provides nutrition services 

where: 

(1) Nutrition Services Incentive 

Program allocation amounts are based 

on the number of meals reported by the 

Tribal organization or Hawaiian Native 

grantee which meet the following 

requirements: 

(i) The meal is served to an individual 

who is eligible to receive services under 

the Act; 

(ii) The meal is served to an 

individual who has not been meanstested to receive the meal; 

(iii) The meal is served to an 

individual who has been provided the 

opportunity to provide a voluntary 

contribution to the cost of service; 

(iv) The meal meets the other 

requirements of the Act, including that 

the meal meets the Dietary Guidelines 

for Americans and Dietary Reference 

Intakes as set forth in section 339 of the 

Act (42 U.S.C. 3030g–21); and 

(v) The meal is served by an agency 

that is, or has a grant or contract with, 

a Tribal organization or Hawaiian 

Native grantee. 

(2) The Tribal organization or 

Hawaiian Native grantee may choose to 

receive their Nutrition Services 

Incentive Program grant as cash, 

commodities, or a combination of cash 

and commodities. 

(3) Nutrition Services Incentive 

Program funds may only be used to 

purchase domestically produced foods 

used in a meal as set forth under the 

Act. 

(d) Where applicable, the Tribal 

organization or Hawaiian Native grantee 

shall work with agencies responsible for 

administering nutrition and other 

programs to facilitate participation of 

older Native Americans. 

§ 1322.29 Family caregiver support 

services. 

(a) Family caregiver support services 

are community-based interventions set 

forth in Title VI, part C of the Act, 

which meet standards set forth by the 

Assistant Secretary for Aging and which 


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may be informed through the use of an 

evidence-informed or evidence-based 

caregiver assessment, including: 

(1) Information to caregivers about 

available services via public education; 

(2) Assistance to caregivers in gaining 

access to the services through: 

(i) Individual information and 

assistance; or 

(ii) Case management or care 

coordination. 

(3) Individual counseling, 

organization of support groups, and 

caregiver training to assist the caregivers 

in those areas in which they provide 

support, including health, nutrition, 

complex medical care, and financial 

literacy, and in making decisions and 

solving problems relating to their 

caregiving roles; 

(4) Respite care to enable caregivers to 

be temporarily relieved from their 

caregiving responsibilities; and 

(5) Supplemental services, on a 

limited basis, to complement the care 

provided by caregivers. A Tribal 

organization or Hawaiian Native grantee 

shall define ‘‘limited basis’’ for 

supplemental services and may consider 

limiting units, episodes or expenditure 

amounts when making this 

determination. 

(b) The Title VI Native American 

Family Caregiver Support Program is 

intended to serve unpaid family 

caregivers and to provide services to 

caregivers, not to the people for whom 

they care. Its primary purpose is not to 

pay for care for an elder. However, 

respite care may be provided to an 

unpaid family caregiver. 

(c) To provide services listed in 

paragraphs (a)(4) and (5) of this section 

to caregivers of older Native Americans 

or of individuals of any age with 

Alzheimer’s disease or a related 

disorder, the individual for whom they 

are caring must be determined to be 

functionally impaired because the 

individual: 

(1) Is unable to perform at least two 

activities of daily living without 

substantial assistance, including verbal 

reminding, physical cueing, or 

supervision; 

(2) At the option of the Tribal 

organization or Hawaiian Native 

grantee, is unable to perform at least 

three such activities without such 

assistance; or 

(3) Due to a cognitive or other mental 

impairment, requires substantial 

supervision because the individual 

behaves in a manner that poses a serious 

health or safety hazard to the individual 

or to another individual. 

§ 1322.31 Title VI and Title III coordination. 

(a) A Tribal organization or Hawaiian 

Native grantee under Title VI of the Act 

must have policies and procedures, 

developed in coordination with the 

relevant State agency, area agency or 

agencies, and service provider(s) that 

explain how the Title VI program will 

coordinate with Title III and/or VII 

funded services within the Tribal 

organization’s or Hawaiian Native 

grantee’s approved service area for 

which older Native Americans and 

family caregivers are eligible to ensure 

compliance with sections 614(a)(11) and 

624(a)(3) of the Act (42 U.S.C. 

3057e(a)(11) and 3057j(a)(3)), 

respectively. A Tribal organization or 

Hawaiian Native grantee may meet these 

requirements by participating in Tribal 

consultation with the State agency 

regarding Title VI programs. 

(b) The policies and procedures set 

forth in paragraph (a) of this section 

must at a minimum address: 

(1) How the Tribal organization or 

Hawaiian Native grantee will provide 

outreach to Tribal elders and family 

caregivers regarding services for which 

they may be eligible under Title III and/ 

or VII of the Act; 

(2) The communication opportunities 

the Tribal organization or Hawaiian 

Native grantee will make available to 

Title III and VII programs, to include 

meetings, email distribution lists, and 

presentations; 

(3) The methods for collaboration on 

and sharing of program information and 

changes; 

(4) How Title VI programs may refer 

individuals who are eligible for Title III 

services; 

(5) How services will be provided in 

a culturally appropriate and traumainformed manner; and 

(6) Processes the Title VI program will 

use for providing feedback on the State 

plan on aging and any area plans on 

aging relevant to the Tribal 

organization’s or Hawaiian Native 

grantee’s approved service area. 

(c) The Title VI program director, as 

set forth in § 1322.13(a), shall 

participate in the development of 

policies and procedures as set forth in 

§§ 1321.53, 1321.69, and 1321.95 of this 

chapter. 

Subpart D—Emergency and Disaster 

Requirements 

§ 1322.33 Coordination with Tribal, State, 

and local emergency management. 

A Tribal organization or Hawaiian 

Native grantee shall establish emergency 

plans. Such plans must include, at a 

minimum: 

(a) A continuity of operations plan 

and an all-hazards emergency response 

plan based on completed risk 

assessments for all hazards and updated 

annually; 

(b) A plan to coordinate activities 

with the State agency, any area agencies 

on aging providing Title III and VII 

funded services within the Tribal 

organization’s or Hawaiian Native 

grantee’s approved service area, local 

emergency response and management 

agencies, relief organizations, local 

governments, other State agencies 

responsible for emergency and disaster 

preparedness, and any other institutions 

that have responsibility for disaster 

relief service delivery; 

(c) Processes for developing and 

updating long-range emergency and 

disaster preparedness plans; and 

(d) Other relevant information as 

determined by the Tribal organization or 

Hawaiian Native grantee. 

§ 1322.35 Flexibilities under a major 

disaster declaration. 

(a) If a State or Indian Tribe requests 

and receives a major disaster declaration 

under the Stafford Act (42 U.S.C. 5121– 

5207), the Tribal organization or 

Hawaiian Native grantee may use 

disaster relief flexibilities as set forth in 

this section to provide disaster relief 

services within its approved service area 

for areas of the State or Indian Tribe 

where the specific major disaster 

declaration is authorized and where 

older Native Americans and family 

caregivers are affected. 

(b) Flexibilities a Tribal organization 

or Hawaiian Native grantee may 

exercise under a major disaster 

declaration include allowing use of any 

portion of the funds of any open grant 

awards under Title VI of the Act for 

disaster relief services for older 

individuals and family caregivers. 

(c) Disaster relief services may 

include any allowable services under 

the Act to eligible older Native 

Americans or family caregivers during 

the period covered by the major disaster 

declaration. 

(d) Expenditures of funds under 

disaster relief flexibilities must be 

reported separately from the grant 

where funding was expended. A Tribal 

organization or Hawaiian Native grantee 

may expend funds from any source 

within open grant awards under Title VI 

of the Act but must track the source of 

all expenditures. 

(e) A Tribal organization or Hawaiian 

Native grantee must have policies and 

procedures outlining eligibility, use, 

and reporting of services and funds 

provided under these flexibilities. 

(f) A Tribal organization or Hawaiian 

Native grantee may only make 

obligations exercising this flexibility 

during the major disaster declaration 

incident period or 90 days thereafter or 


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with prior approval from the Assistant 

Secretary for Aging. 

§ 1322.37 Title VI and Title III coordination 

for emergency and disaster preparedness. 

A Tribal organization or Hawaiian 

Native grantee under Title VI of the Act 

and State and area agencies funded 

under Title III of the Act should 

coordinate in emergency and disaster 

preparedness planning, response, and 

recovery. A Tribal organization or 

Hawaiian Native grantee must have 

policies and procedures in place for 

how they will communicate and 

coordinate with State agencies and area 

agencies regarding emergency and 

disaster preparedness planning, 

response, and recovery. 

§ 1322.39 Modification during major 

disaster declaration or public health 

emergency. 

The Assistant Secretary for Aging 

retains the right to modify the 

requirements described in these 

regulations pursuant to a major disaster 

declaration or public health emergency. 

PART 1323—[REMOVED] 

■ 3. Under the authority of 42 U.S.C. 

3001 et seq., remove part 1323. 

■ 4. Revise part 1324 to read as follows: 

PART 1324—ALLOTMENTS FOR 

VULNERABLE ELDER RIGHTS 

PROTECTION ACTIVITIES 

Sec. 

Subpart A—State Long-Term Care 

Ombudsman Program 

1324.1 Definitions. 

1324.11 Establishment of the Office of the 

State Long-Term Care Ombudsman. 

1324.13 Functions and responsibilities of 

the State Long-Term Care Ombudsman. 

1324.15 State agency responsibilities 

related to the Ombudsman program. 

1324.17 Responsibilities of agencies hosting 

local Ombudsman entities. 

1324.19 Duties of the representatives of the 

Office. 

1324.21 Conflicts of interest. 

Subpart B—Programs for Prevention of 

Elder Abuse, Neglect, and Exploitation 

1324.201 State agency responsibilities for 

the prevention of elder abuse, neglect, 

and exploitation. 

Subpart C—State Legal Assistance 

Development 

1324.301 Definitions. 

1324.303 Legal Assistance Developer. 

Authority: 42 U.S.C. 3001 et seq. 

Subpart A—State Long-Term Care 

Ombudsman Program 

§ 1324.1 Definitions. 

The following definitions apply to 

this part: 

Immediate family, pertaining to 

conflicts of interest as used in section 

712 of the Older Americans Act (the 

Act) (42 U.S.C. 3058g), 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 sections 711 

and 712 of the Act (42 U.S.C. 3058f and 

3058g), means the organizational unit in 

a State or Territory which is headed by 

a State Long-Term Care Ombudsman. 

Official duties, as used in section 712 

of the Act (42 U.S.C. 3058g) with respect 

to representatives of the Long-Term Care 

Ombudsman Program, means work 

pursuant to the Long-Term Care 

Ombudsman Program authorized by the 

Act, subpart A of this part, and/or State 

law and carried out under the auspices 

and general direction of, or by direct 

delegation from, the State Long-Term 

Care Ombudsman. 

Representatives of the Office of the 

State Long-Term Care Ombudsman, as 

used in sections 711 and 712 of the Act 

(42 U.S.C. 3058f and 3058g), means the 

employees or volunteers designated by 

the Ombudsman to fulfill the duties set 

forth in § 1324.19(a), whether personnel 

supervision is provided by the 

Ombudsman or their designees or by an 

agency hosting a local Ombudsman 

entity designated by the Ombudsman 

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

(42 U.S.C. 3058g(a)(5)). 

Resident representative means any of 

the following: 

(1) An individual chosen by the 

resident to act on behalf of the resident 

in order to support the resident in 

decision-making; access the resident’s 

medical, social, or other personal 

information; manage the resident’s 

financial matters; or receive 

notifications pertaining to the resident; 

(2) A person authorized by State or 

Federal law (including but not limited 

to agents under power of attorney, 

representative payees, and other 

fiduciaries) to act on behalf of the 

resident in order to support the resident 

in decision-making; access the 

resident’s medical, social or other 

personal information; manage the 

resident’s financial matters; or receive 

notifications pertaining to the resident; 

(3) Legal representative, as used in 

section 712 of the Act (42 U.S.C. 3058g); 

(4) The court-appointed guardian or 

conservator of a resident; 

(5) Nothing in this rule is intended to 

expand the scope of authority of any 

resident representative beyond that 

authority specifically authorized by the 

resident, State or Federal law, or a court 

of competent jurisdiction. 

State Long-Term Care Ombudsman, 

or Ombudsman, as used in sections 711 

and 712 of the Act (42 U.S.C. 3058f and 

3058g), means the individual who heads 

the Office and is responsible to 

personally, or through representatives of 

the Office, fulfill the functions, 

responsibilities and duties set forth in 

§§ 1324.13 and 1324.19. 

State Long-Term Care Ombudsman 

program, Ombudsman program, or 

program, as used in sections 711 and 

712 of the Act (42 U.S.C. 3058f and 

3058g), means the program through 

which the functions and duties of the 

Office are carried out, consisting of the 

Ombudsman, the Office headed by the 

Ombudsman, and the representatives of 

the Office. 

Willful interference means actions or 

inactions taken by an individual in an 

attempt to intentionally prevent, 

interfere with, or attempt to impede the 

Ombudsman from performing any of the 

functions or responsibilities set forth in 

§ 1324.13, or the Ombudsman or a 

representative of the Office from 

performing any of the duties set forth in 

§ 1324.19. 

§ 1324.11 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 

headed by the State Long-Term Care 

Ombudsman, who shall carry out all of 

the functions and responsibilities set 

forth in § 1324.13 and, directly and/or 

through local Ombudsman entities, the 

duties set forth in § 1324.19. 

(b) The State agency shall establish 

the Office and thereby carry out the 

Long-Term Care Ombudsman Program 

in either 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 shall require that 

the Ombudsman serve on a full-time 

basis. In providing leadership and 

management of the Office, the functions, 

responsibilities, and duties, as set forth 

in §§ 1324.13 and 1324.19 are to 

constitute the entirety of the 

Ombudsman’s work. The State agency 

or other agency carrying out the Office 

shall not require or request the 


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Ombudsman to be responsible for 

leading, managing or performing the 

work of non-ombudsman services or 

programs except on a time-limited, 

intermittent basis. 

(1) This provision does not limit the 

authority of the Ombudsman program to 

provide ombudsman services to 

populations other than residents of 

long-term care facilities so long as the 

appropriations under the Act are 

utilized to serve residents of long-term 

care facilities, as authorized by the Act. 

(2) [Reserved] 

(d) The State agency, and other entity 

selecting the Ombudsman, if applicable, 

shall ensure that the Ombudsman meets 

minimum qualifications which shall 

include, but not be limited to, 

demonstrated expertise in: 

(1) Long-term services and supports or 

other direct services for older 

individuals or individuals with 

disabilities; 

(2) Consumer-oriented public policy 

advocacy; 

(3) Leadership and program 

management skills; and 

(4) Negotiation and problem 

resolution skills. 

(e) Where the Ombudsman has the 

legal authority to do so, they shall 

establish policies and procedures, in 

consultation with the State agency, to 

carry out the Ombudsman program in 

accordance with the Act. Where State 

law does not provide the Ombudsman 

with legal authority to establish policies 

and procedures, the Ombudsman shall 

recommend policies and procedures to 

the State agency or other agency in 

which the Office is organizationally 

located, and such agency shall establish 

Ombudsman program policies and 

procedures as recommended by the 

Ombudsman. Where local Ombudsman 

entities are designated within area 

agencies on aging or other entities, the 

Ombudsman and/or appropriate agency 

shall develop such policies and 

procedures in consultation with the 

agencies hosting local Ombudsman 

entities, area agencies on aging, and 

representatives of the Office. The 

policies and procedures must address 

the following: 

(1) Program administration. Policies 

and procedures regarding program 

administration must include, but not be 

limited to: 

(i) A requirement that the agency in 

which the Office is organizationally 

located must not have personnel 

policies or practices that prohibit the 

Ombudsman from performing the 

functions and responsibilities of the 

Ombudsman, as set forth in § 1324.13, 

or from adhering to the requirements of 

section 712 of the Act (42 U.S.C. 3058g). 

Nothing in this provision shall prohibit 

such agency from requiring that the 

Ombudsman, or other employees or 

volunteers of the Office, adhere to the 

personnel policies and procedures of 

the entity which are otherwise lawful. 

(ii) A requirement that an agency 

hosting a local Ombudsman entity must 

not have personnel policies or practices 

which prohibit a representative of the 

Office from performing the duties of the 

Ombudsman program or from adhering 

to the requirements of section 712 of the 

Act (42 U.S.C. 3058g). Nothing in this 

provision shall prohibit such agency 

from requiring that representatives of 

the Office adhere to the personnel 

policies and procedures of the host 

agency which are otherwise lawful. 

(iii) A requirement that the 

Ombudsman shall, on a regular basis, 

monitor the performance of local 

Ombudsman entities which the 

Ombudsman has designated to carry out 

the duties of the Office. 

(iv) A description of the process by 

which the agencies hosting local 

Ombudsman entities will coordinate 

with the Ombudsman in the 

employment or appointment of 

representatives of the Office. 

(v) Standards to ensure that the Office 

and/or local Ombudsman entities 

provide prompt response to complaints, 

with priority given to complaints 

regarding abuse, neglect, exploitation, 

and complaints that are time sensitive. 

At a minimum, the standards shall 

require consideration of the severity of 

the risk to the resident, the imminence 

of the threat of or potential harm to the 

resident, and the opportunity for 

mitigating harm to the resident through 

provision of Ombudsman program 

services. 

(vi) Procedures that clarify 

appropriate fiscal responsibilities of the 

local Ombudsman entity, including but 

not limited to clarifications regarding 

access to programmatic fiscal 

information by appropriate 

representatives of the Office. 

(vii) Procedures that establish 

standard retention periods for files, 

records, and other information 

maintained by the Ombudsman program 

and allowable methods of storage and 

destruction. 

(2) Procedures for access. Policies and 

procedures regarding timely access to 

facilities, residents, and appropriate 

records (regardless of format and 

including, upon request, copies of such 

records) by the Ombudsman and 

representatives of the Office must 

include, but not be limited to: 

(i) Access to enter all long-term care 

facilities at any time during a facility’s 

regular business hours or regular 

visiting hours, and at any other time 

when access may be required by the 

circumstances to be investigated; 

(ii) Access to all residents to perform 

the functions and duties set forth in 

§§ 1324.13 and 1324.19; 

(iii) Access to the name and contact 

information of the resident 

representative, if any, where needed to 

perform the functions and duties set 

forth in §§ 1324.13 and 1324.19; 

(iv) Access to review the medical, 

social, and other records relating to a 

resident, if: 

(A) The resident or resident 

representative communicates informed 

consent to the access and the consent is 

given in writing or through the use of 

auxiliary aids and services; 

(B) The resident or resident 

representative communicates informed 

consent orally, visually, or through the 

use of auxiliary aids and services, and 

such consent is documented 

contemporaneously by a representative 

of the Office in accordance with such 

procedures; 

(C) The resident is unable to 

communicate consent to the review and 

has no legal representative, and the 

representative of the Office obtains the 

approval of the Ombudsman; or 

(D) Access is necessary in order to 

investigate a complaint, the resident 

representative refuses to consent to the 

access, a representative of the Office has 

reasonable cause to believe that the 

resident representative is not acting in 

the best interests of the resident, and the 

representative of the Office obtains the 

approval of the Ombudsman. 

(v) Access to the administrative 

records, policies, and documents, to 

which the residents have, or the general 

public has access, of long-term care 

facilities; 

(vi) Access of the Ombudsman to, 

and, upon request, copies of all 

licensing and certification records 

maintained by the State with respect to 

long-term care facilities; and 

(vii) Reaffirmation that the Health 

Insurance Portability and 

Accountability Act of 1996 (HIPAA) 

Privacy Rule (42 U.S.C. 1301 et seq.), 45 

CFR part 160 and 45 CFR part 164, 

subparts A and E, does not preclude 

release by covered entities of resident 

private health information or other 

resident identifying information to the 

Ombudsman program, including but not 

limited to residents’ medical, social, or 

other records, a list of resident names 

and room numbers, or information 

collected in the course of a State or 

Federal survey or inspection process. 

(3) Disclosure. Policies and 

procedures regarding disclosure of files, 

records, and other information 


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maintained by the Ombudsman program 

must include, but not be limited to: 

(i) Provision that the files, records, 

and information maintained by the 

Ombudsman program may be disclosed 

only at the discretion of the 

Ombudsman or designee of the 

Ombudsman for such purpose and in 

accordance with the criteria developed 

by the Ombudsman, as required by 

§ 1324.13(e); 

(ii) Prohibition of the disclosure of 

identifying information of any resident 

with respect to whom the Ombudsman 

program maintains files, records, or 

information, except as otherwise 

provided by § 1324.19(b)(5) through (8), 

unless: 

(A) The resident or the resident 

representative communicates informed 

consent to the disclosure and the 

consent is given in writing or through 

the use of auxiliary aids and services; 

(B) The resident or resident 

representative communicates informed 

consent orally, visually, or through the 

use of auxiliary aids and services and 

such consent is documented 

contemporaneously by a representative 

of the Office in accordance with such 

procedures; or 

(C) The disclosure is required by court 

order. 

(iii) Prohibition of the disclosure of 

identifying information of any 

complainant with respect to whom the 

Ombudsman program maintains files, 

records, or information, unless: 

(A) The complainant communicates 

informed consent to the disclosure and 

the consent is given in writing or 

through the use of auxiliary aids and 

services; 

(B) The complainant communicates 

informed consent orally, visually, or 

through the use of auxiliary aids and 

services and such consent is 

documented contemporaneously by a 

representative of the Office in 

accordance with such procedures; or 

(C) The disclosure is required by court 

order. 

(iv) Standard criteria for making 

determinations about disclosure of 

resident information when the resident 

is unable to provide consent and there 

is no resident representative or the 

resident representative refuses consent 

as set forth in § 1324.19(b)(5) through 

(8); 

(v) Prohibition on requirements for 

mandatory reporting abuse, neglect, or 

exploitation to adult protective services 

or any other entity, long-term care 

facility, or other concerned person, 

including when such reporting would 

disclose identifying information of a 

complainant or resident without 

appropriate consent or court order, 

except as otherwise provided in 

§ 1324.19(b)(5) through (8); and 

(vi) Adherence to the provisions of 

paragraph (e)(3) of this section, 

regardless of the source of the request 

for information or the source of funding 

for the services of the Ombudsman 

program, notwithstanding section 

705(a)(6)(C) of the Act (42 U.S.C. 

3058d(a)(6)(C)). 

(4) Conflicts of interest. Policies and 

procedures regarding conflicts of 

interest must establish mechanisms to 

identify and remove or remedy conflicts 

of interest as provided in § 1324.21, 

including: 

(i) Ensuring that no individual, or 

member of the immediate family of an 

individual, involved in the employment 

or appointment of the Ombudsman has 

or may have a conflict of interest; 

(ii) Requiring that other agencies in 

which the Office or local Ombudsman 

entities are organizationally located 

have policies in place to prohibit the 

employment or appointment of an 

Ombudsman or a representative of the 

Office who has or may have a conflict 

that cannot be adequately removed or 

remedied; 

(iii) Requiring that the Ombudsman 

take reasonable steps to refuse, suspend, 

or remove designation of an individual 

who has a conflict of interest, or who 

has a member of the immediate family 

who has or may have a conflict of 

interest, which cannot be removed or 

remedied; 

(iv) Establishing the methods by 

which the Office and/or State agency 

will periodically review and identify 

conflicts of the Ombudsman and 

representatives of the Office; and 

(v) Establishing the actions the Office 

and/or State agency will require the 

Ombudsman or representatives of the 

Office to take in order to remedy or 

remove such conflicts. 

(5) Systems advocacy. Policies and 

procedures related to systems advocacy 

must assure that the Office is required 

and has sufficient authority to carry out 

its responsibility 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, and to 

recommend any changes in such laws, 

regulations, and policies as the Office 

determines to be appropriate. 

(i) Such procedures must 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 (42 U.S.C. 3058g). 

(ii) Nothing in this part shall prohibit 

the Ombudsman or the State agency or 

other agency in which the Office is 

organizationally located from 

establishing policies which promote 

consultation regarding the 

determinations of the Office related to 

recommended changes in laws, 

regulations, and policies. However, such 

a policy shall not require a right to 

review or pre-approve positions or 

communications of the Office. 

(6) Designation. Policies and 

procedures related to designation must 

establish the criteria and process by 

which the Ombudsman shall designate 

and/or refuse, suspend, or remove 

designation of local Ombudsman 

entities and representatives of the 

Office. 

(i) Such criteria should include, but 

not be limited to, the authority to refuse, 

suspend, or remove designation of a 

local Ombudsman entity or 

representative of the Office in situations 

in which an identified conflict of 

interest cannot be removed or remedied 

as set forth in § 1324.21. 

(ii) [Reserved] 

(7) Grievance process. Policies and 

procedures related to grievances must 

establish a grievance process for the 

receipt and review of grievances 

regarding the determinations or actions 

of the Ombudsman and representatives 

of the Office. 

(i) Such process shall include an 

opportunity for reconsideration of the 

Ombudsman decision to refuse, 

suspend, or remove designation of a 

local Ombudsman entity or 

representative of the Office. 

Notwithstanding the grievance process, 

the Ombudsman shall make the final 

determination to designate or to refuse, 

suspend, or remove designation of a 

local Ombudsman entity or 

representative of the Office. 

(ii) [Reserved] 

(8) Determinations of the Office. 

Policies and procedures related to the 

determinations of the Office must 

ensure that the Ombudsman, as head of 

the Office, shall be able to 

independently make determinations and 

establish positions of the Office, and 

carry out the functions and 

responsibilities authorized by § 1324.13 

without interference and shall not be 

constrained by or necessarily represent 

the determinations or positions of the 

State agency or other agency in which 

the Office is organizationally located. 

(9) Emergency planning. Policies and 

procedures related to emergency 

planning must include continuity of 

operations procedures using an allhazards approach, and coordination 

with emergency management agencies. 


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§ 1324.13 Functions and responsibilities of 

the State Long-Term Care Ombudsman. 

The Ombudsman, as head of the 

Office, shall have responsibility and 

authority for the leadership and 

management of the Office in 

coordination with the State agency, and, 

where applicable, any other agency 

carrying out the Ombudsman program, 

as follows. 

(a) Functions. The Ombudsman 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 

residents (including the welfare and 

rights of residents with respect to the 

appointment and activities of resident 

representatives) of: 

(A) Providers, or representatives of 

providers, of long-term care; 

(B) Public agencies; or 

(C) Health and social service agencies. 

(2) Provide services to protect the 

health, safety, welfare, and rights of the 

residents; 

(3) Inform residents about means of 

obtaining services provided by the 

Ombudsman program; 

(4) Ensure that residents have regular 

and timely access to the services 

provided through the Ombudsman 

program and that residents and 

complainants receive timely responses 

from representatives of the Office to 

requests for information and 

complaints; 

(5) Represent the interests of residents 

before governmental agencies, assure 

that individual residents have access to, 

and pursue (as the Ombudsman 

determines as necessary and consistent 

with resident interests) administrative, 

legal, and other remedies to protect the 

health, safety, welfare, and rights of 

residents; 

(6) Provide administrative and 

technical assistance to representatives of 

the Office and agencies hosting local 

Ombudsman entities; 

(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; 

(iii) Facilitate public comment on the 

laws, regulations, policies, and actions; 

(iv) Provide leadership to statewide 

systems advocacy efforts of the Office 

on behalf of long-term care facility 

residents, including coordination of 

systems advocacy efforts carried out by 

representatives of the Office; 

(v) Provide information to public and 

private agencies, legislators, the media, 

and other persons, regarding the 

problems and concerns of residents and 

recommendations related to the 

problems and concerns; 

(vi) Such determinations and 

positions shall be those of the Office 

and shall not necessarily represent the 

determinations or positions of the State 

agency or other agency in which the 

Office is organizationally located; 

(vii) In carrying out systems advocacy 

efforts of the Office on behalf of longterm care facility residents and pursuant 

to the receipt of grant funds under the 

Act, the provision of information, 

recommendations of changes of laws to 

legislators, and recommendations of 

changes to government agency 

regulations and policies by the 

Ombudsman or representatives of the 

Office do not constitute lobbying 

activities as defined by 45 CFR part 93. 

(8) Coordinate with and promote the 

development of citizen organizations 

consistent with the interests of 

residents; and 

(9) Promote, provide technical 

support for the development of, and 

provide ongoing support as requested by 

resident and family councils to protect 

the well-being and rights of residents. 

(b) Responsibilities. The Ombudsman 

shall be the head of a unified statewide 

Long-Term Care Ombudsman Program 

and shall: 

(1) Establish or recommend policies, 

procedures, and standards for 

administration of the Ombudsman 

program pursuant to § 1324.11(e); 

(2) Require representatives of the 

Office to fulfill the duties set forth in 

§ 1324.19 in accordance with 

Ombudsman program policies and 

procedures. 

(c) Designation. The Ombudsman 

shall determine designation and refusal, 

suspension, or removal of designation, 

of local Ombudsman entities and 

representatives of the Office pursuant to 

section 712(a)(5) of the Act (42 U.S.C. 

3058g(a)(5)) and the policies and 

procedures set forth in § 1324.11(e)(6). 

(1) If an Ombudsman chooses to 

designate local Ombudsman entities, the 

Ombudsman shall: 

(i) Designate local Ombudsman 

entities to be organizationally located 

within public or non-profit private 

entities; 

(ii) Review and approve plans or 

contracts governing local Ombudsman 

entity operations, including, where 

applicable, through area agency on 

aging plans, in coordination with the 

State agency; and 

(iii) Monitor, on a regular basis, the 

Ombudsman program performance of 

local Ombudsman entities. 

(2) The Ombudsman shall establish 

procedures for training for certification 

and continuing education of the 

representatives of the Office, based on 

and consistent with standards 

established by the Director of the Office 

of Long-Term Care Ombudsman 

Programs as described in section 201(d) 

of the Act (42 U.S.C. 3011(d)) and set 

forth by the Assistant Secretary for 

Aging, in consultation with residents, 

resident representatives, citizen 

organizations, long-term care providers, 

and the State agency, that: 

(i) Specify a minimum number of 

hours of initial training; 

(ii) Specify the content of the training, 

including training relating to Federal, 

State, and local laws, regulations, and 

policies, with respect to long-term care 

facilities in the State; investigative and 

resolution techniques; and such other 

matters as the Office determines to be 

appropriate; 

(iii) Specify that all program staff or 

volunteers who have access to residents, 

files, records, and other information of 

the Ombudsman program subject to 

disclosure requirements shall undergo 

training and certification to be 

designated as representatives of the 

Office; and 

(iv) Specify an annual number of 

hours of in-service training for all 

representatives of the Office. 

(3) Prohibit any representative of the 

Office from carrying out the duties 

described in § 1324.19 unless the 

representative: 

(i) Has received the training required 

under paragraph (c)(2) of this section or 

is performing such duties under 

supervision of the Ombudsman or a 

designated representative of the Office 

as part of certification training 

requirements; and 

(ii) Has been approved by the 

Ombudsman as qualified to carry out 

the activity on behalf of the Office. 

(4) The Ombudsman shall investigate 

allegations of misconduct by 

representatives of the Office in the 

performance of Ombudsman program 

duties and, as applicable, coordinate 

such investigations with the State 

agency in which the Office is 

organizationally located, agency hosting 

the local Ombudsman entity and/or the 

local Ombudsman entity. 

(5) Policies, procedures, or practices 

which the Ombudsman determines to be 

in conflict with the laws, policies, or 


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procedures governing the Ombudsman 

program shall be sufficient grounds for 

refusal, suspension, or removal of 

designation of the representative of the 

Office and/or the local Ombudsman 

entity. 

(d) Ombudsman program 

information. The Ombudsman shall 

manage the files, records, and other 

information of the Ombudsman 

program, whether in physical, 

electronic, or other formats, including 

information maintained by 

representatives of the Office and local 

Ombudsman entities pertaining to the 

cases and activities of the Ombudsman 

program. Such files, records, and other 

information are the property of the 

Office. Nothing in this provision shall 

prohibit a representative of the Office or 

a local Ombudsman entity from 

maintaining such information in 

accordance with Ombudsman program 

requirements. All program staff or 

volunteers who access the files, records, 

and other information of the 

Ombudsman program subject to 

disclosure requirements shall undergo 

training and certification to be 

designated as representatives of the 

Office. 

(e) Disclosure. In making 

determinations regarding the disclosure 

of files, records, and other information 

maintained by the Ombudsman 

program, the Ombudsman shall: 

(1) Have the sole authority to make or 

delegate determinations concerning the 

disclosure of the files, records, and 

other information maintained by the 

Ombudsman program. The Ombudsman 

shall comply with section 712(d) of the 

Act (42 U.S.C. 3058g(d)) 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; 

(2) Develop and adhere to criteria to 

guide the Ombudsman’s discretion in 

determining whether to disclose the 

files, records, or other information of the 

Office. Criteria for disclosure of records 

shall consider if the disclosure has the 

potential to: 

(i) Cause retaliation against residents, 

complainants, or witnesses; 

(ii) Undermine the working 

relationships between the Ombudsman 

program, facilities, and/or other 

agencies; or 

(iii) Undermine other official duties of 

the program. 

(3) Develop and adhere to a process 

for the appropriate disclosure of 

information maintained by the Office, 

including: 

(i) Classification of at least the 

following types of files, records, and 

information: medical, social, and other 

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 

Ombudsman program reporting system; 

(ii) Identification of the appropriate 

individual designee or category of 

designee, if other than the Ombudsman, 

authorized to determine the disclosure 

of specific categories of information in 

accordance with the criteria described 

in this paragraph (e). 

(f) Fiscal management. The 

Ombudsman shall determine the use of 

the fiscal resources appropriated or 

otherwise available for the operation of 

the Office. Where local Ombudsman 

entities are designated, the Ombudsman 

shall approve the allocations of Federal 

and State funds provided to such 

entities, subject to applicable Federal 

and State laws and policies. The 

Ombudsman shall determine that 

program budgets and expenditures of 

the Office and local Ombudsman 

entities are consistent with laws, 

policies, and procedures governing the 

Ombudsman program. 

(g) Annual report. In addition to the 

annual submission of the National 

Ombudsman Reporting System report, 

the Ombudsman shall independently 

develop, provide final approval of, and 

disseminate an annual report as set forth 

in section 712(h)(1) of the Act (42 U.S.C. 

3058g(h)(1)) and as otherwise required 

by the Assistant Secretary for Aging. 

(1) Such report shall: 

(i) Describe the activities carried out 

by the Office in the year for which the 

report is prepared; 

(ii) Contain analysis of Ombudsman 

program data; 

(iii) Describe evaluation of the 

problems experienced by, and the 

complaints made by or on behalf of, 

residents; 

(iv) Contain policy, regulatory, and/or 

legislative recommendations for 

improving quality of the care and life of 

the residents; protecting the health, 

safety, welfare, and rights of the 

residents; and resolving resident 

complaints and identified problems or 

barriers; 

(v) Contain analysis of the success of 

the Ombudsman program, including 

success in providing services to 

residents of assisted living, board and 

care facilities, and other similar adult 

care facilities; and 

(vi) Describe barriers that prevent the 

optimal operation of the Ombudsman 

program. 

(2) The Ombudsman shall make such 

report available to the public and 

submit it to the Assistant Secretary for 

Aging, 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. 

(h) Memoranda of understanding. 

Through adoption of memoranda of 

understanding or other means, the 

Ombudsman shall lead State-level 

coordination and support appropriate 

local Ombudsman entity coordination, 

between the Ombudsman program and 

other entities with responsibilities 

relevant to the health, safety, well-being, 

or rights of residents of long-term care 

facilities, including: 

(1) The required adoption of 

memoranda of understanding between 

the Ombudsman program and: 

(i) Legal assistance programs provided 

under section 306(a)(2)(C) of the Act (42 

U.S.C. 3026(a)(2)(C)), addressing at a 

minimum referral processes and 

strategies to be used when the 

Ombudsman program and a legal 

assistance program are both providing 

program services to a resident; 

(ii) Facility and long-term care 

provider licensure and certification 

programs, addressing at minimum 

communication protocols and 

procedures to share information 

including procedures for access to 

copies of licensing and certification 

records maintained by the State with 

respect to long-term care facilities. 

(2) The recommended adoption of 

memoranda of understanding or other 

means between the Ombudsman 

program and: 

(i) Area agency on aging programs; 

(ii) Aging and disability resource 

centers; 

(iii) Adult protective services 

programs; 

(iv) Protection and advocacy systems, 

as designated by the State, and as 

established under the Developmental 

Disabilities Assistance and Bill of Rights 

Act of 2000 (42 U.S.C. 15001 et seq.); 

(v) The State Medicaid fraud control 

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

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

(vi) Victim assistance programs; 

(vii) State and local law enforcement 

agencies; 

(viii) Courts of competent jurisdiction; 

(ix) The State Legal Assistance 

Developer as provided under section 

731 of the Act (42 U.S.C. 3058j) and as 

set forth in subpart C to this part; and 

(x) The State mental health authority. 

(i) Other activities. The Ombudsman 

shall carry out such other activities as 

the Assistant Secretary for Aging 

determines to be appropriate and are 


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consistent with the functions of the 

State Long-Term Care Ombudsman 

Program as authorized by the Older 

Americans Act. 

§ 1324.15 State agency responsibilities 

related to the Ombudsman program. 

(a) Compliance. In addition to the 

responsibilities set forth in part 1321 of 

this chapter, the State agency shall 

ensure that the Ombudsman complies 

with the relevant provisions of the Act 

and of this rule. 

(b) Authority and access. The State 

agency shall ensure, through the 

development of policies, procedures, 

and other means, consistent with 

§ 1324.11(e)(2), that the Ombudsman 

program has sufficient authority and 

access to facilities, residents, and 

information needed to fully perform all 

of the functions, responsibilities, and 

duties of the Office. 

(c) Training. The State agency shall 

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. 

(d) Personnel supervision and 

management. The State agency shall 

provide personnel supervision and 

management for the Ombudsman and 

representatives of the Office who are 

employees of the State agency. Such 

management shall include an 

assessment of whether the Office is 

performing all of its functions under the 

Act. 

(e) State agency monitoring. The State 

agency shall provide monitoring, as 

required by § 1321.9(b) of this chapter, 

including but not limited to fiscal 

monitoring, where the Office and/or 

local Ombudsman entity is 

organizationally located within an 

agency under contract or other 

arrangement with the State agency. 

Such monitoring shall include an 

assessment of whether the Ombudsman 

program is performing all of the 

functions, responsibilities and duties set 

forth in §§ 1324.13 and 1324.19. The 

State agency may make reasonable 

requests for reports, including 

aggregated data regarding Ombudsman 

program activities, to meet the 

requirements of this provision. 

(f) Disclosure limitations. The State 

agency shall ensure that any review of 

files, records, or other information 

maintained by the Ombudsman program 

is consistent with the disclosure 

limitations set forth in §§ 1324.11(e)(3) 

and 1324.13(e). 

(g) State and area plans on aging. The 

State agency shall integrate the goals 

and objectives of the Office into the 

State plan and 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, but not limited to, 

legal assistance programs provided 

under section 306(a)(2)(C) of the Act (42 

U.S.C. 3026(a)(2)(C)), to promote 

collaborative efforts and diminish 

duplicative efforts. Where applicable, 

the State agency shall require inclusion 

of goals and objectives of local 

Ombudsman entities into area plans on 

aging. 

(h) Elder rights leadership. The State 

agency shall provide elder rights 

leadership. In so doing, it shall 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 with responsibilities 

relevant to the health, safety, well-being, 

or rights of older adults, including 

residents of long-term care facilities as 

set forth in § 1324.13(h). 

(i) Interference, retaliation, and 

reprisals. The State agency shall: 

(1) Ensure that it has mechanisms to 

prohibit and investigate allegations of 

interference, retaliation, and reprisals: 

(i) By a long-term care facility, other 

entity, or individual with respect to any 

resident, employee, or other person for 

filing a complaint with, providing 

information to, or otherwise cooperating 

with any representative of the Office; or 

(ii) By a long-term care facility, other 

entity or individual against the 

Ombudsman or representatives of the 

Office for fulfillment of the functions, 

responsibilities, or duties enumerated at 

§§ 1324.13 and 1324.19; and 

(2) Provide for appropriate sanctions 

with respect to interference, retaliation, 

and reprisals. 

(j) Legal counsel. (1) The State agency 

shall ensure that: 

(i) Legal counsel for the Ombudsman 

program is adequate, available, is 

without conflict of interest (as defined 

by the State ethical standards governing 

the legal profession), and has 

competencies relevant to the legal needs 

of: 

(A) The program, in order to provide 

consultation and/or representation as 

needed to assist the Ombudsman and 

representatives of the Office in the 

performance of their official functions, 

responsibilities, and duties, including 

complaint resolution and systems 

advocacy. Legal representation, 

arranged by or with the approval of the 

Ombudsman, is provided to the 

Ombudsman or any representative of 

the Office against whom suit or other 

legal action is brought or threatened to 

be brought in connection with the 

performance of official duties. 

(B) Residents, in order to provide 

consultation and representation as 

needed for the Ombudsman program to 

protect the health, safety, welfare, and 

rights of residents. 

(ii) The Ombudsman and 

representatives of the Office assist 

residents in seeking administrative, 

legal, and other appropriate remedies. In 

so doing, the Ombudsman shall 

coordinate with the Legal Assistance 

Developer, legal services providers, and 

victim assistance services to promote 

the availability of legal counsel to 

residents. 

(2) Such legal counsel may be 

provided by one or more entities, 

depending on the nature of the 

competencies and services needed and 

as necessary to avoid conflicts of 

interest (as defined by the State ethical 

standards governing the legal 

profession). At a minimum, the Office 

shall have access to an attorney 

knowledgeable about the Federal and 

State laws protecting the rights of 

residents and governing long-term care 

facilities. 

(3) Legal representation of the 

Ombudsman program by the 

Ombudsman or representative of the 

Office who is a licensed attorney shall 

not by itself constitute sufficiently 

adequate legal counsel. 

(4) The communications between the 

Ombudsman and their legal counsel are 

subject to attorney-client privilege. 

(k) Fiscal management. The State 

agency shall ensure that: 

(1) The Ombudsman receives 

notification of all sources of funds 

received by the State agency that are 

allocated or appropriated to the 

Ombudsman program and provides 

information on any requirements of the 

funds, and the Ombudsman is 

supported in their determination of the 

use of funds; 

(2) The Ombudsman has full authority 

to determine the use of fiscal resources 

appropriated or otherwise available for 

the operation of the Office; 

(3) Where local Ombudsman entities 

are designated, the Ombudsman 

approves the allocations of Federal and 

State funds to such entities, prior to any 

distribution of such funds, subject to 

applicable Federal and State laws and 

policies; and 

(4) The Ombudsman determines that 

program budgets and expenditures of 

the Office and local Ombudsman 

entities are consistent with laws, 


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11694 Federal Register / Vol. 89, No. 31 / Wednesday, February 14, 2024 / Rules and Regulations 

policies, and procedures governing the 

Ombudsman program. 

(l) State agency requirements of the 

Office. The State agency shall require 

the Office to: 

(1) Develop and provide final 

approval of an annual report as set forth 

in section 712(h)(1) of the Act (42 U.S.C. 

3058g(h)(1)) and § 1324.13(g) and as 

otherwise required by the Assistant 

Secretary for Aging; 

(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) Provide such information as the 

Office determines to be necessary to 

public and private agencies, legislators, 

the media, and other persons, regarding 

the problems and concerns of 

individuals residing in long-term care 

facilities; and recommendations related 

to such problems and concerns; 

(4) Establish procedures for the 

training of the representatives of the 

Office, as set forth in § 1324.13(c)(2); 

and 

(5) Coordinate Ombudsman program 

services with entities with 

responsibilities relevant to the health, 

safety, welfare, and rights of residents of 

long-term care facilities, as set forth in 

§ 1324.13(h). 

§ 1324.17 Responsibilities of agencies 

hosting local Ombudsman entities. 

(a) The agency in which a local 

Ombudsman entity is organizationally 

located shall be responsible for the 

personnel management, but not the 

programmatic oversight, of 

representatives, including employee and 

volunteer representatives, of the Office. 

(b) The agency in which a local 

Ombudsman entity is organizationally 

located shall not have personnel 

policies or practices which prohibit the 

representatives of the Office from 

performing the duties, or from adhering 

to the access, confidentiality, and 

disclosure requirements of section 712 

of the Act (42 U.S.C. 3058g), as 

implemented through this rule and the 

policies and procedures of the Office. 

(1) Policies, procedures, and 

practices, including personnel 

management practices of the host 

agency, which the Ombudsman 

determines conflict with the laws or 

policies governing the Ombudsman 

program shall be sufficient grounds for 

the refusal, suspension, or removal of 

the designation of local Ombudsman 

entity by the Ombudsman. 

(2) Nothing in this provision shall 

prohibit the host agency from requiring 

that the representatives of the Office 

adhere to the personnel policies and 

procedures of the agency which are 

otherwise lawful. 

§ 1324.19 Duties of the representatives of 

the Office. 

In carrying out the duties of the 

Office, the Ombudsman may designate 

an entity as a local Ombudsman entity 

and may designate an employee or 

volunteer of the local Ombudsman 

entity as a representative of the Office. 

Representatives of the Office may also 

be designated employees or volunteers 

within the Office. 

(a) Duties. An individual so 

designated as a representative of the 

Office shall, in accordance with the 

policies and procedures established by 

the Office and the State agency: 

(1) 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; 

(2) Provide services to protect the 

health, safety, welfare, and rights of 

residents; 

(3) Ensure that residents in the service 

area of the local Ombudsman entity 

have regular and timely access to the 

services provided through the 

Ombudsman program and that residents 

and complainants receive timely 

responses to requests for information 

and complaints; 

(4) Represent the interests of residents 

before government agencies and assure 

that individual residents have access to, 

and pursue (as the representative of the 

Office determines necessary and 

consistent with resident interest) 

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; 

(ii) Facilitate the ability of the public 

to comment on the laws, regulations, 

policies, and actions. 

(6) Promote, provide technical 

support for the development of, and 

provide ongoing support as requested by 

resident and family councils; and 

(7) Carry out other activities that the 

Ombudsman determines to be 

appropriate and are consistent with the 

functions of the State Long-Term Care 

Ombudsman Program as authorized by 

the Older Americans Act. 

(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 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, 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. The 

Ombudsman or representative of the 

Office may identify, investigate, and 

resolve a complaint impacting multiple 

residents or all residents of a facility. 

(2) Regardless of the source of the 

complaint (i.e., the complainant), 

including when the source is the 

Ombudsman or representative of the 

Office, the Ombudsman or 

representative of the Office must 

support and maximize resident 

participation in the process of resolving 

the complaint as follows: 

(i) The Ombudsman or representative 

of the Office shall offer privacy to the 

resident for the purpose of 

confidentially providing information 

and hearing, investigating, and resolving 

complaints. 

(ii) The Ombudsman or representative 

of the Office shall discuss the complaint 

with the resident (and, if the resident is 

unable to communicate informed 

consent, the resident’s representative) in 

order to: 

(A) Determine the perspective 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 the allegations are to be 

reported and, if so, whether the 

Ombudsman or representative of the 

Office may disclose resident identifying 

information or other relevant 

information to the facility and/or 

appropriate agencies. Such report and 

disclosure shall be consistent with 

paragraph (b)(3) of this section; 

(D) Advise the resident (and resident 

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; 


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Federal Register / Vol. 89, No. 31 / Wednesday, February 14, 2024 / Rules and Regulations 11695 

(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). 

(iii) Where the resident is unable to 

communicate informed consent, and has 

no resident representative, the 

Ombudsman or representative of the 

Office shall: 

(A) Take appropriate steps to 

investigate and work to resolve the 

complaint in order to protect the health, 

safety, welfare and rights of the resident; 

and 

(B) Determine whether the complaint 

was resolved to the satisfaction of the 

complainant. 

(iv) In determining whether to rely 

upon a resident representative to 

communicate or make determinations 

on behalf of the resident related to 

complaint processing, the Ombudsman 

or representative of the Office shall 

ascertain the extent of the authority that 

has been granted to the resident 

representative under court order (in the 

case of a guardian or conservator), by 

power of attorney or other document by 

which the resident has granted authority 

to the representative, or under other 

applicable State or Federal law. 

(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 (42 U.S.C. 3058g(d)) and the 

procedures set forth in § 1324.11(e)(3). 

(i) Where the goals of a resident or 

resident representative are for 

regulatory, protective services or law 

enforcement action, and the 

Ombudsman or representative of the 

Office determines that the resident or 

resident representative has 

communicated informed consent to the 

Office, the Office must assist the 

resident or resident representative 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) Where the goals of a resident or 

resident representative can be served by 

disclosing information to a facility 

representative and/or referrals to an 

entity other than those referenced in 

paragraph (b)(3)(i) of this section, and 

the Ombudsman or representative of the 

Office determines that the resident or 

resident representative has 

communicated informed consent to the 

Ombudsman program, the Ombudsman 

or representative of the Office may assist 

the resident or resident representative in 

contacting the appropriate facility 

representative or the entity, provide 

information on how a resident or 

representative may obtain contact 

information of such facility 

representatives or entities, and/or 

disclose the information for which the 

resident has provided consent to an 

appropriate facility representative or 

entity, consistent with Ombudsman 

program procedures. 

(iii) In order to comply with the 

wishes of the resident, (or, in the case 

where the resident is unable to 

communicate informed consent, the 

wishes of the resident representative), 

the Ombudsman and representatives of 

the Office shall not report suspected 

abuse, neglect or exploitation of a 

resident when a resident or resident 

representative has not communicated 

informed consent to such report except 

as set forth in paragraphs (b)(5) through 

(7) of this section, notwithstanding State 

laws to the contrary. 

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

through (3) of this section, 

communication of informed consent 

may be made in writing, including 

through the use of auxiliary aids and 

services. Alternatively, communication 

may be made orally or visually, 

including through the use of auxiliary 

aids and services, and such consent 

must be documented 

contemporaneously by the Ombudsman 

or a representative of the Office, in 

accordance with the procedures of the 

Office. 

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

through (3) of this section, if a resident 

is unable to communicate their 

informed consent, or perspective on the 

extent to which the matter has been 

satisfactorily resolved, the Ombudsman 

or representative of the Office may rely 

on the communication by a resident 

representative of informed consent and/ 

or perspective regarding the resolution 

of the complaint if the Ombudsman or 

representative of the Office has no 

reasonable cause to believe that the 

resident representative is not acting in 

the best interests of the resident. 

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

through (3) of this section, the 

procedures for disclosure, as required 

by § 1324.11(e)(3), shall provide that the 

Ombudsman or representative of the 

Office may refer the matter and disclose 

resident-identifying information to the 

appropriate agency or agencies for 

regulatory oversight; protective services; 

access to administrative, legal, or other 

remedies; and/or law enforcement 

action in the following circumstances: 

(i) The resident is unable to 

communicate informed consent to the 

Ombudsman or representative of the 

Office; 

(ii) The resident has no resident 

representative; 

(iii) The Ombudsman or 

representative of the Office has 

reasonable cause to believe that an 

action, inaction, or decision may 

adversely affect the health, safety, 

welfare, or rights of the resident; 

(iv) The Ombudsman or 

representative of the Office has no 

evidence indicating that the resident 

would not wish a referral to be made; 

(v) 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 

(vi) The representative of the Office 

obtains the approval of the Ombudsman 

or otherwise follows the policies and 

procedures of the Office described in 

paragraph (b)(9) of this section. 

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

through (3) of this section, the 

procedures for disclosure, as required 

by § 1324.11(e)(3), shall provide that, 

the Ombudsman or representative of the 

Office may refer the matter and disclose 

resident-identifying information to the 

appropriate agency or agencies for 

regulatory oversight; protective services; 

access to administrative, legal, or other 

remedies; and/or law enforcement 

action in the following circumstances: 

(i) The resident is unable to 

communicate informed consent to the 

Ombudsman or representative of the 

Office and the Ombudsman or 

representative of the Office has 

reasonable cause to believe that the 

resident representative has taken an 

action, inaction or decision that may 

adversely affect the health, safety, 

welfare, or rights of the resident; 

(ii) The Ombudsman or representative 

of the Office has no evidence indicating 

that the resident would not wish a 

referral to be made; 

(iii) 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 

(iv) The representative of the Office 

obtains the approval of the 

Ombudsman. 

(8) The procedures for disclosure, as 

required by § 1324.11(e)(3), 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 of the 

Office shall seek communication of 


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informed consent from such resident to 

disclose resident-identifying 

information to appropriate agencies. 

(i) Where such resident is able to 

communicate informed consent, or has 

a resident representative available to 

provide informed consent, the 

Ombudsman or representative of the 

Office shall follow the direction of the 

resident or resident representative as set 

forth in paragraphs (b)(1) through (3) of 

this section; and 

(ii) Where the resident is unable to 

communicate informed consent, and has 

no resident 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 shall refer 

the matter and disclose identifying 

information 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 in the following 

circumstances: 

(A) The Ombudsman or representative 

of the Office has no evidence indicating 

that the resident would not wish a 

referral to be made; 

(B) The Ombudsman or representative 

of the Office has reasonable cause to 

believe that disclosure would be in the 

best interest of the resident; and 

(C) The representative of the Office 

obtains the approval of the Ombudsman 

or otherwise follows the policies and 

procedures of the Office described in 

paragraph (b)(9) of this section. 

(iii) In addition, the Ombudsman or 

representative of the Office, following 

the policies and procedures of the Office 

described in paragraph (b)(9) of this 

section, 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. 

(9) Prior to disclosing residentidentifying information pursuant to 

paragraph (b)(6) or (8) of this section, a 

representative of the Office must obtain 

approval by the Ombudsman or, 

alternatively, follow policies and 

procedures of the Office which provide 

for such disclosure. 

(i) Where the policies and procedures 

require Ombudsman approval, they 

shall include a time frame in which the 

Ombudsman is required to 

communicate approval or disapproval 

in order to assure that the representative 

of the Office has the ability to promptly 

take actions to protect the health, safety, 

welfare or rights of residents. 

(ii) Where the policies and procedures 

do not require Ombudsman approval 

prior to disclosure, they shall require 

that the representative of the Office 

promptly notify the Ombudsman of any 

disclosure of resident-identifying 

information under the circumstances set 

forth in paragraph (b)(6) or (8) of this 

section. 

(iii) Disclosure of resident-identifying 

information under paragraph (b)(7) of 

this section shall require Ombudsman 

approval. 

§ 1324.21 Conflicts of interest. 

The State agency and the Ombudsman 

shall consider both the organizational 

and individual conflicts of interest that 

may impact the effectiveness and 

credibility of the work of the Office. In 

so doing, both the State agency and the 

Ombudsman shall be responsible to 

identify actual and potential conflicts 

and, where a conflict has been 

identified, to 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 (42 U.S.C. 3058g(f)), the State 

agency and the Ombudsman 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, or requiring 

that an Ombudsman or representative of 

the Office perform conflicting activities, 

in an organization that: 

(1) Is responsible for licensing, 

surveying, or certifying long-term care 

services, including 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 any 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 any ownership, investment, or 

employment interest in long-term care 

facilities; 

(5) Provides long-term care to 

residents of long-term care facilities, 

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 services, 

including programs carried out under a 

Medicaid waiver approved under 

section 1115 of the Social Security Act 

(42 U.S.C. 1315) or under subsection (b) 

or (c) of section 1915 of the Social 

Security Act (42 U.S.C. 1396n), or under 

a Medicaid State plan under section 

1905(a) or subsection (i), (j), or (k) of 

section 1915 of the Social Security Act 

(42 U.S.C. 1396d(a); 42 U.S.C. 1396n(i)– 

(k)); 

(7) Provides long-term care 

coordination or case management, 

including for residents of long-term care 

facilities; 

(8) Sets reimbursement rates for longterm care facilities; 

(9) Sets reimbursement rates for longterm care services; 

(10) Provides adult protective 

services; 

(11) Is responsible for eligibility 

determinations for the Medicaid 

program carried out under title XIX of 

the Social Security Act (42 U.S.C. 1396– 

1396v); 

(12) Is responsible for eligibility 

determinations regarding Medicaid or 

other public benefits for residents of 

long-term care facilities; 

(13) Conducts preadmission screening 

for long-term care facility admission; 

(14) Makes decisions regarding 

admission or discharge of individuals to 

or from long-term care facilities; or 

(15) 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 and the Ombudsman shall 

identify and take steps to remove or 

remedy conflicts of interest between the 

Office and the State agency or other 

agency carrying out the Ombudsman 

program. 

(1) The Ombudsman shall identify 

organizational conflicts of interest in the 

Ombudsman program and describe 

steps taken to remove or remedy 

conflicts within the annual report 

submitted to the Assistant Secretary for 

Aging through the National 

Ombudsman Reporting System. 

(2) 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 designating, 

appointing, otherwise selecting, or 

terminating the Ombudsman is subject 

to a conflict of interest; and 


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(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 for 

Aging through the National 

Ombudsman Reporting System. 

(3) 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 

nonprofit private organization, pursuant 

to section 712(a)(4) of the Act (42 U.S.C. 

3058g(a)(4)). The State agency may not 

enter into a contract or other 

arrangement to carry out the 

Ombudsman program if the other entity, 

and 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 

(iii) Has any ownership, operational, 

or investment interest (represented by 

equity, debt, or other financial 

relationship) in a long-term care facility. 

(4) 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 

(42 U.S.C. 3058g(a)(4)), 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 and 

to avoid conflicts of interest in the State 

agency’s oversight of the contract or 

arrangement; 

(ii) Establish a process for periodic 

review and identification of conflicts; 

(iii) Establish criteria for approval of 

steps taken by the agency or 

organization to remedy or remove 

conflicts; 

(iv) Require that such agency or 

organization have a process in place to: 

(A) Take reasonable steps to avoid 

conflicts of interest; and 

(B) Disclose identified conflicts and 

steps taken to remove or remedy 

conflicts to the State agency for review 

and approval. 

(5) 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. 

(6) Where local Ombudsman entities 

provide ombudsman services, the 

Ombudsman shall: 

(i) Prior to designating or renewing 

designation, take reasonable steps to 

avoid conflicts of interest in any agency 

which may host a local Ombudsman 

entity; 

(ii) Establish a process for periodic 

review and identification of conflicts of 

interest with the local Ombudsman 

entity in any agencies hosting a local 

Ombudsman entity; 

(iii) Require that such agencies 

disclose identified conflicts of interest 

with the local Ombudsman entity and 

steps taken to remove or remedy 

conflicts within such agency to the 

Ombudsman; 

(iv) Establish criteria for approval of 

steps taken to remedy or remove 

conflicts in such agencies; and 

(v) Establish a process for review of 

and criteria for approval of plans to 

remove or remedy conflicts with the 

local Ombudsman entity in such 

agencies. 

(7) Failure of an agency hosting a 

local Ombudsman entity to disclose a 

conflict to the Office or inability to 

adequately remove or remedy a conflict 

shall constitute grounds for refusal, 

suspension, or removal of designation of 

the 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 (42 U.S.C. 3058g(f)), the State 

agency and the Ombudsman 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, operational, or 

investment interest (represented by 

equity, debt, or other financial 

relationship) in an existing or proposed 

long-term care facility or a long-term 

care service; 

(iii) Employment of an individual by, 

or participation in the management of, 

a long-term care facility or a related 

organization, in the service area or by 

the owner or operator of any long-term 

care facility in the service area; 

(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 of a long-term 

care facility in which the Ombudsman 

or representative of the Office provides 

services (except where there is a 

personal relationship with a resident or 

resident representative which is 

separate from the individual’s role as 

Ombudsman or representative of the 

Office); 

(vi) Accepting money or any other 

consideration from anyone other than 

the Office, or an entity approved 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 which the 

Ombudsman or representative of the 

Office provides services; 

(viii) Serving residents of a facility in 

which an immediate family member 

resides; 

(ix) Management responsibility for, or 

operating under the supervision of, an 

individual with management 

responsibility for, adult protective 

services; and 

(x) Serving as a guardian or in another 

fiduciary capacity for residents of longterm care facilities in an official 

capacity (as opposed to serving as a 

guardian or fiduciary for a family 

member, in a personal capacity). 

(d) Removing or remedying individual 

conflicts. (1) The State agency or 

Ombudsman shall develop and 

implement policies and procedures, 

pursuant to § 1324.11(e)(4), to ensure 

that no Ombudsman or representatives 

of the Office are required or permitted 

to hold positions or perform duties that 

would constitute a conflict of interest as 

set forth in § 1324.21(c). This rule does 

not prohibit a State agency or 

Ombudsman from having policies or 

procedures that exceed these 

requirements. 

(2) When considering the employment 

or appointment of an individual as the 

Ombudsman or as a representative of 

the Office, the State agency or other 

employing or appointing entity shall: 

(i) Take reasonable steps to avoid 

employing or appointing an individual 

who has an unremedied conflict of 

interest or who has a member of the 

immediate family with an unremedied 

conflict of interest; 

(ii) Take reasonable steps to avoid 

assigning an individual to perform 


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duties which would constitute an 

unremedied conflict of interest; 

(iii) Establish a process for periodic 

review and identification of conflicts of 

the Ombudsman and representatives of 

the Office; and 

(iv) Take steps to remove or remedy 

conflicts. 

(3) In no circumstance shall the 

entity, which appoints or employs the 

Ombudsman, appoint or employ an 

individual as the Ombudsman who: 

(i) Has direct involvement in the 

licensing or certification of a long-term 

care facility; 

(ii) Has an ownership or investment 

interest (represented by equity, debt, or 

other financial relationship) in a longterm care facility. Divestment within a 

reasonable period may be considered an 

adequate remedy to this conflict; 

(iii) Has been employed by or 

participated in the management of a 

long-term care facility within the 

previous twelve months; and 

(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. 

(4) In no circumstance shall the State 

agency, other agency which carries out 

the Office, or an agency hosting a local 

Ombudsman entity appoint or employ 

an individual, nor shall the 

Ombudsman designate an individual, as 

a representative of the Office who: 

(i) Has direct involvement in the 

licensing or certification of a long-term 

care facility; 

(ii) Has an ownership or investment 

interest (represented by equity, debt, or 

other financial relationship) in a longterm care facility. Divestment within a 

reasonable period may be considered an 

adequate remedy to this conflict; 

(iii) Receives, directly or indirectly, 

remuneration (in cash or in kind) under 

a compensation arrangement with an 

owner or operator of a long-term care 

facility; or 

(iv) Is employed by, or participating 

in the management of, a long-term care 

facility. 

(A) An agency which appoints or 

employs representatives of the Office 

shall make efforts to avoid appointing or 

employing an individual as a 

representative of the Office who has 

been employed by or participated in the 

management of a long-term care facility 

within the previous twelve months. 

(B) Where such individual is 

appointed or employed, the agency shall 

take steps to remedy the conflict. 

Subpart B—Programs for Prevention 

of Elder Abuse, Neglect, and 

Exploitation 

§ 1324.201 State agency responsibilities 

for the prevention of elder abuse, neglect, 

and exploitation. 

(a) In accordance with Title VII, 

chapter 3 of the Act, the distribution of 

Federal funds to the State agency on 

aging by formula is authorized to carry 

out activities to develop, strengthen, 

and carry out programs for the 

prevention, detection, assessment, and 

treatment of, intervention in, 

investigation of, and response to elder 

abuse, neglect, and exploitation. 

(b) All programs using these funds 

must meet requirements as set forth in 

the Act, including those of section 

721(c), (d), (e) (42 U.S.C. 3058i(c)–(e)) 

and guidance as set forth by the 

Assistant Secretary for Aging. 

Subpart C—State Legal Assistance 

Development 

§ 1324.301 Definitions. 

(a) Definitions as set forth in § 1321.3 

of this chapter apply to this part. 

(b) Terms used, but not otherwise 

defined in this part will have the 

meanings ascribed to them in the Act. 

§ 1324.303 Legal Assistance Developer. 

(a) State Legal Assistance Developer. 

In accordance with section 731 of the 

Act (42 U.S.C. 3058j), the State agency 

shall designate an individual who shall 

be known as a State Legal Assistance 

Developer, and other personnel, 

sufficient to ensure: 

(1) State leadership in securing and 

maintaining the legal rights of older 

individuals; 

(2) State capacity for coordinating the 

provision of legal assistance, in 

accordance with section 102(23) and 

(24) and consistent with section 102(33) 

of the Act (42 U.S.C. 3002(23), (24), 

(33)), to include prioritizing such 

services provided to individuals with 

greatest economic need, or greatest 

social need; 

(3) State capacity to provide technical 

assistance, training, and other 

supportive functions to area agencies on 

aging, legal assistance providers, LongTerm Care Ombudsman programs, adult 

protective services, and other service 

providers under the Act; 

(i) The Legal Assistance Developer 

shall utilize the trainings, case 

consultations, and technical assistance 

provided by the support and technical 

assistance entity established pursuant to 

section 420(c) of the Act (42 U.S.C. 

3032i(c)). 

(ii) [Reserved] 

(4) State capacity to promote financial 

management services to older 

individuals at risk of guardianship, 

conservatorship, or other fiduciary 

proceedings; 

(i) In so doing, the Legal Assistance 

Developer shall take into consideration 

promotion of activities to increase 

awareness of and access to self-directed 

financial management services and legal 

assistance and; 

(ii) The Legal Assistance Developer 

shall also take into consideration 

promotion of activities that proactively 

enable older adults and those they 

designate as decisional supporters 

through powers of attorney, health care 

proxies, supported decision making and 

similar instruments or approaches to be 

connected to resources and education to 

manage their finances and the decisions 

they make about their lives so as to limit 

their risk for guardianship, 

conservatorship, or more restrictive 

fiduciary proceedings. 

(5) State capacity to assist older 

individuals in understanding their 

rights, exercising choices, benefiting 

from services and opportunities 

authorized by law, and maintaining the 

rights of older individuals at risk of 

guardianship, conservatorship, or other 

fiduciary proceedings; 

(i) In so doing, the Legal Assistance 

Developer shall take into consideration 

engaging in activities aimed at 

preserving an individual’s rights or 

autonomy, including, but not limited to, 

increasing awareness of and access to 

least-restrictive alternatives to 

guardianship, conservatorship, or more 

restrictive fiduciary proceedings, such 

as supported decision making, and legal 

assistance; 

(ii) In so doing, the Legal Assistance 

Developer shall adhere to the 

restrictions contained in section 

321(a)(6)(B)(i) of the Act (42 U.S.C. 

3030d(a)(6)(B)(i)) regarding the 

involvement of legal assistance 

providers in guardianship proceedings, 

and shall apply these restrictions to 

conservatorship and other fiduciary 

proceedings; 

(iii) In undertaking this activity, the 

Legal Assistance Developer shall take 

into consideration coordination of 

efforts with legal assistance providers 

funded under the Act contracted by area 

agencies on aging, any Bar Association 

Elder Law section, and other elder rights 

or entities active in the State. 

(6) State capacity to improve the 

quality and quantity of legal services 

provided to older individuals. 

(b) State plan. The activities 

designated by the State agency for the 

Legal Assistance Developer, in 

accordance with paragraphs (a)(1) 


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through (6) of this section, shall be 

contained in the State plan, per section 

307 of the Act (42 U.S.C. 3027) and as 

set forth in § 1321.27 of this chapter. 

(c) Knowledge, resources, and 

capacity. The State agency shall ensure 

that the Legal Assistance Developer has 

the knowledge, resources, and capacity 

to conduct the activities outlined in 

paragraph (a) of this section. 

(d) Conflicts of interest. (1) In 

designating a Legal Assistance 

Developer, the State agency shall 

consider any potential conflicts of 

interest posed by any candidate for the 

role, and take steps to prevent, remedy, 

or remove such conflicts of interest. 

(2) In designating a Legal Assistance 

Developer, the State agency shall 

consider both organizational and 

individual interests that may impact the 

effectiveness and credibility of the work 

of the Legal Assistance Developer to 

coordinate legal assistance and work to 

secure, protect, and promote the legal 

rights of older adults in the State. 

(i) This includes holding a position or 

performing duties that could lead to 

decisions that are or have the 

appearance of being contrary to the 

Legal Assistance Developer’s duties as 

defined in this section and contained in 

the State plan as set forth in § 1321.27 

of this chapter. 

(ii) [Reserved] 

(3) The State agency shall not 

designate as Legal Assistance Developer 

any individual who is: 

(i) Serving as a director of adult 

protective services, or as legal counsel 

to adult protective services; 

(ii) Serving as a State Long-Term Care 

Ombudsman, or as legal counsel to a 

State Long-Term Care Ombudsman 

Program; 

(iii) Serving as a hearing officer, 

administrative law judge, trier of fact or 

counsel to these positions in an 

administrative proceeding related to the 

legal rights of older adults, such as one 

in which a legal assistance provider 

might appear; 

(iv) Serving as legal counsel or a party 

to an administrative proceeding related 

to long-term care settings, including 

residential settings; 

(v) Conducting surveys of and 

licensure certifications for long-term 

care settings, including residential 

settings, or serving as counsel or advisor 

to such positions; 

(vi) Serving as a public or private 

guardian, conservator, or fiduciary or 

operating such a program, or serving as 

counsel to these positions or programs. 

(4) The State agency and the Legal 

Assistance Developer shall be 

responsible for identifying any other 

actual and potential conflicts of interest 

and circumstances that may lead to the 

appearance of a conflict of interest; 

identifying processes for preventing 

conflicts of interest and, where a 

conflict of interest has been identified, 

for removing or remedying the conflict. 

(5) The State agency shall develop 

and implement policies and procedures 

to ensure that the Legal Assistance 

Developer is not required or permitted 

to hold positions or perform duties that 

would constitute a conflict of interest. 

Xavier Becerra, 

Secretary, Department of Health and Human 

Services. 

[FR Doc. 2024–01913 Filed 2–6–24; 8:45 am] 

BILLING CODE 4154–01–P 


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