7704 Federal Register / Vol. 80, No. 28 / Wednesday, February 11, 2015 / Rules and Regulations 

DEPARTMENT OF HEALTH AND 

HUMAN SERVICES 

Administration on Aging 

45 CFR Parts 1321 and 1327 

RIN 0985–AA08 

State Long-Term Care Ombudsman 

Programs 

AGENCY: Administration on Aging, 

Administration for Community Living, 

HHS. 

ACTION: Final rule. 

SUMMARY: The Administration on Aging 

(AoA) of the Administration for 

Community Living (ACL) within the 

Department of Health and Human 

Services (HHS) is issuing this final rule 

in order to implement provisions of the 

Older Americans Act (the Act) regarding 

States’ Long-Term Care Ombudsman 

programs (Ombudsman programs). 

Since its creation in the 1970s, the 

functions of the Nursing Home 

Ombudsman program (later, changed to 

Long-Term Care Ombudsman program) 

have been delineated in the Act; 

however, regulations have not been 

promulgated specifically focused on 

States’ implementation of this program. 

In the absence of regulation, there has 

been significant variation in the 

interpretation and implementation of 

these provisions among States. HHS 

expects that a number of States may 

need to update their statutes, 

regulations, policies, procedures and/or 

practices in order to operate the 

Ombudsman program consistent with 

Federal law and this final rule. 

DATES: Effective date: These regulations 

are effective on July 1, 2016. 

FOR FURTHER INFORMATION CONTACT: 

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

Administration for Community Living, 

Administration on Aging, Atlanta 

Federal Center, 61 Forsyth Street SW., 

Suite 5M69, Atlanta, Georgia 30303– 

8909, 404–562–7592. 

SUPPLEMENTARY INFORMATION: This final 

rule responds to public comments on 

the proposed rule published in the June 

18, 2013, Federal Register (78 FR 

36449) related to the State Long-Term 

Care Ombudsman Program. 

Consistent with AoA’s proposal in the 

proposed rule, the effective date of the 

final rule is July 1, 2016. AoA intends 

to provide technical assistance and 

training to States during this time and 

to allow States appropriate time to make 

any changes to their laws, regulations, 

policies, procedures, or practices that 

may be necessary in order to comply 

with this final rule. 

AoA anticipates little or no financial 

impact on the State agencies or other 

agencies carrying out the Ombudsman 

program, the consumers served by the 

Ombudsman program, or long-term care 

facilities through implementation of this 

rule. 

AoA believes that consumers 

(particularly residents of long-term care 

facilities) and long-term care providers 

will benefit from the implementation of 

this rule. Consumers and other 

complainants across the country will 

receive services from Ombudsman 

programs with more consistent quality 

and efficiency of service delivery. 

States, Ombudsmen, agencies hosting 

local Ombudsman entities, and 

representatives of Offices of State LongTerm Care Ombudsmen will also benefit 

from the implementation of this rule in 

the establishment and operation of the 

Ombudsman program at the State and 

local levels. For years, States, 

Ombudsmen, and representatives of the 

Offices of State Long-Term Care 

Ombudsmen have reported to AoA that 

they have found some provisions of the 

Act confusing to implement. This rule 

seeks to provide the clarity that 

Ombudsman program stakeholders have 

requested. 

Table of Contents 

I. Background 

II. Provisions of Proposed Regulations 

and Analysis of and Responses to 

Public Comments 

A. State Agency Policies (§ 1321.11) 

B. Definitions (§ 1327.1) 

C. Establishment of the Office of the 

State Long-Term Care Ombudsman 

(§ 1327.11) 

D. Functions and Responsibilities of 

the State Long-Term Care 

Ombudsman (§ 1327.13) 

E. State Agency Responsibilities 

Related to the Ombudsman Program 

(§ 1327.15) 

F. Responsibilities of Agencies 

Hosting Local Ombudsman Entities 

(§ 1327.17) 

G. Duties of the Representatives of the 

Office (§ 1327.19) 

H. Conflicts of Interest (§ 1327.21) 

I. Additional Considerations 

III. Required Regulatory Analyses Under 

Executive Orders 13563 and 12866 

IV. Other Administrative Requirements 

A. Paperwork Reduction Act of 1995 

B. Executive Order 13132 

C. Unfunded Mandates Reform Act of 

1995 

D. Assessment of Federal Regulations 

and Policies on Families 

E. Plain Language in Government 

Writing 

I. Background 

State Long-Term Care Ombudsman 

programs (Ombudsman programs) serve 

as advocates for residents of nursing 

homes, board and care homes, assisted 

living and similar adult care facilities. 

They work to resolve problems of 

individual residents and to bring about 

improvements to residents’ care and 

quality of life at the local, state and 

national levels. 

Begun in 1972 as a demonstration 

program, Ombudsman programs today 

exist in all States, the District of 

Columbia, Puerto Rico and Guam, under 

the authorization of, and appropriations 

to implement, the Older Americans Act 

(the Act). These States and territories 

have an Office of the State Long-Term 

Care Ombudsman (the Office), headed 

by a full-time State Long-Term Care 

Ombudsman (the Ombudsman). 

This regulation is promulgated under 

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

and 712–713 of the Older Americans 

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

3011(e), 3027, and 3058g–3058h, 

respectively). These provisions 

authorize the Assistant Secretary for 

Aging to prescribe regulations regarding 

coordination of elder justice activities, 

the development of State plans on aging, 

and Ombudsman programs. 

In its 1992 OAA reauthorization, 

Congress created Title VII—Allotments 

for Vulnerable Elder Rights Protection 

Activities, and incorporated the 

provisions related to the activities of 

Ombudsman programs into Title VII. 

Previously some of these provisions had 

been within Title III. Therefore, the rule 

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

part 1321) and last updated in 1988, 

includes minimal provisions which 

relate to the Ombudsman program. 

Congress made its most recent 

reauthorization of the Older Americans 

Act in 2006. The changes in this final 

rule update 45 CFR part 1321—as well 

as the new part 1327—to reflect the 

2006 reauthorization of the Act. 

There has been significant variation in 

the interpretation and implementation 

of the provisions of the Act related to 

the Ombudsman program among States. 

This has resulted in residents of longterm care facilities receiving 

inconsistent services from Ombudsman 

programs in some States compared to 

other States. 

Ombudsman programs were designed 

by Congress to have several features 

which are uncharacteristic of other 

programs and services created by and 

funded under the Act. Among those 

features are independence (a 

characteristic of any type of ombudsman 

program, not only the Long-Term Care 


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Ombudsman Program), unusually 

stringent disclosure restrictions, a 

public policy advocacy function, and 

the Ombudsman responsibility to 

designate staff and volunteers to serve 

as representatives of the Office even if 

they do not report to the Ombudsman 

for personnel management purposes. 

These distinct features have been 

implemented with substantial variation 

across states, including variations which 

are inconsistent with the provisions of 

the Act. This rule is designed to address 

those variations which AoA has 

determined are inconsistent with the 

provisions of the Act. 

II. Analysis of and Responses to Public 

Comments 

The Administration on Aging/

Administration for Community Living 

(AoA) received 85 unduplicated 

comments during the public comment 

period from State agencies, advocacy 

groups, long-term care providers and 

associations, State Long-Term Care 

Ombudsmen, local Ombudsman 

entities, representatives of Offices, 

Ombudsman program-related 

associations, and the general public. 

Brief summaries of each proposed 

provision, a summary of public 

comments we received, and our 

responses to the comments follow. 

The following summarizes comments 

about the rule, in general, or regarding 

issues not contained in specific 

provisions: 

Comments: A significant proportion 

of comments indicated general support 

for publication of a final rule and for the 

overall content of the proposed rule. 

The comments in support made one or 

more of the following points: 

1. Need for rule—Numerous 

commenters indicated appreciation for 

AoA’s efforts in proposing the rule, 

indicating that a finalized rule would 

fill a gap that has existed for many 

years. Some described the proposed rule 

as a long-awaited and critically-needed 

milestone in the development of 

Ombudsman program services to 

individuals living in long-term care 

facilities. 

2. Benefits to residents—Several 

commenters indicated support for the 

proposed rule’s emphasis on the central 

role of the resident in directing program 

action. Some indicated that, when 

finalized, the rule would enable people 

with disabilities and older adults the 

ability to better understand and utilize 

Ombudsman program services. Some 

indicated that the rule is likely to result 

in benefits for individuals needing longterm services and supports, contribute 

to quality of care and life for long-term 

care residents, and/or more effectively 

implement consumer protections. 

3. Program quality—Numerous 

commenters indicated that the rule, as 

proposed, would likely result in 

improved Ombudsman program 

efficiency, stability, and/or 

effectiveness. Some indicated that a 

final rule would provide consistent 

policy on Ombudsman program 

responsibilities. One commenter 

indicated that the proposed rule 

provides service consistency while 

addressing diversity among States in 

Ombudsman program organizational 

placement. 

4. Needed clarifications—Several 

commenters described the proposed 

rule as a much needed clarification and 

amplification of the Act. Some 

commenters indicated appreciation for 

the proposed rule’s clear indication that 

the Ombudsman program work is that of 

an advocate for residents. Some 

commenters found helpful the 

description of the respective roles of the 

State unit on aging and the 

Ombudsman, anticipating that the final 

rule will be helpful in guiding these 

relationships. Some commenters 

indicated that clarifications in the 

proposed rule would be helpful to longterm care providers to better understand 

the Ombudsman program and its 

services. One commenter indicated 

appreciation for several clarifications, 

indicating that State agencies, 

Ombudsmen and representatives of the 

Office have reported finding some OAA 

provisions confusing to implement, 

resulting in inconsistent services to 

residents and preventing some residents 

from having their rights protected. 

5. Assistance to States—Some 

commenters indicated that the final rule 

will assist States as they seek to comply 

with the OAA in implementing a 

program with a complex and unique 

character. 

Response: AoA appreciates that a 

significant proportion of commenters 

expressed support for promulgation of 

the rule. 

While no commenter indicated 

objection to promulgation of the rule, 

several comments expressed general 

concerns which were not limited to a 

specific provision of the proposed rule: 

Comment: One commenter indicated 

that the proposed rule would grant 

additional powers and authority to the 

Ombudsman without appropriate 

accountability. The commenter 

indicated concern that the experience, 

input and recommendations of local 

Ombudsman entities are not adequately 

recognized in the proposed rule. The 

commenter states that these changes 

could lessen the effectiveness of local 

Ombudsman entities and harm 

residents. 

Response: AoA is implementing a rule 

that reflects and is consistent with the 

intent of Congress as set forth in the 

OAA with respect to the role of the 

Ombudsman, who is the head of the 

Ombudsman program, and who is 

accountable for the overall Ombudsman 

program operations, determinations, 

and positions. The Act indicates that 

other individuals who are providing 

Ombudsman program services— 

whether they are directly supervised by 

the Ombudsman or work in an agency 

hosting a local Ombudsman entity—act 

in the capacity of representatives of the 

Office. 

This rule does not grant significant 

additional authority to, nor require 

additional functions of, the 

Ombudsman, but rather clarifies the 

responsibilities already set forth in the 

Act. Further, AoA holds States 

accountable, as its grantees, to assure 

operation of the State’s Ombudsman 

program in accordance with the OAA, 

including assuring that a qualified and 

experienced Ombudsman is in place. 

AoA appreciates the experience and 

expertise of the thousands of committed 

staff and volunteers who serve residents 

as representatives of the Office. In every 

State, the Ombudsman is far more 

effective and knowledgeable if s/he 

regularly seeks and values the input of 

the representatives of the Office. We 

have reviewed the rule in light of this 

consideration and have included 

references to the representatives of the 

Office and/or local Ombudsman entities 

to emphasize the importance of their 

involvement at § 1327.11(e) (regarding 

development of Ombudsman program 

policies and procedures) and at 

§ 1327.15(g) (regarding inclusion of 

goals and objectives of local 

Ombudsman entities into area plans on 

aging, where applicable). 

Comment: One commenter indicated 

that the final rule should better 

accommodate Ombudsman programs 

organizationally located in State 

agencies that are separate from the State 

unit on aging. 

Response: While the majority of State 

Long-Term Care Ombudsmen are 

employed by State units on aging, and 

several are organizationally located in 

non-profit organizations under contract 

with the State unit on aging, there are 

a few States that have chosen to house 

the Ombudsman within another State 

agency. We believe that the vast 

majority of the provisions in the 

proposed rule apply to all of these 

organizational placements. 

However, we have reviewed the 

proposed rule in light of this comment. 


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We acknowledge that the proposed rule 

did not adequately provide for instances 

where the Ombudsman has the legal 

authority to independently promulgate 

policies and procedures. We have 

provided for this circumstance in the 

final rule by moving the provision 

related to the establishment of 

Ombudsman program policies to 

§ 1327.11(e) (regarding Ombudsman 

program establishment), instead of 

§ 1327.15 (regarding State agency 

responsibilities), to better provide for 

the variety of State authorities and 

structures related to Ombudsman 

program policy and procedures 

development. We have also included 

language in the new provision at 

§ 1327.11(e) to more accurately reflect 

the circumstances where the 

Ombudsman has the legal authority to 

establish program policies. Further, 

throughout the final rule, we have 

accounted for this variation in State 

organizational structure and authority. 

Comment: Numerous commenters 

indicated that the final rule should 

provide guidance related to ombudsman 

services for individuals who live in 

other settings. Some indicated that the 

ombudsman service should be 

expanded to these other settings. One 

indicated the need for a uniform system 

to monitor long-term services and 

supports, regardless of location. Others 

indicated the rule should address 

guidance regarding best practices and 

coordination with expanded services. 

Settings indicated in these comments 

included home and community-based 

services, in-home services, hospice, and 

PACE (Program for All-Inclusive Care 

for the Elderly). 

Response: The OAA provides 

authority for the Ombudsman program 

to serve residents living in ‘‘long-term 

care facilities’’ as defined at Section 

102(35) of the Act (i.e. nursing facilities, 

board and care homes, assisted living, 

and similar adult care facilities). 

Congress has not authorized or funded 

Ombudsman program services to 

individuals receiving long-term 

supports and services in in-home 

settings or in non-residential settings 

such as adult day health centers. 

States which choose to expand the 

Ombudsman program to serve 

individuals in settings beyond those 

provided for in the OAA are not 

prohibited from doing so. In fact, 

thirteen States and the District of 

Columbia currently provide State-level 

authority and/or resources to support 

expansion of the Ombudsman program 

to serve individuals living in nonfacility settings. In addition, some States 

have provided expanded Ombudsman 

program services to individuals served 

through Federally-created 

demonstration projects, such as the 

Money Follows the Person project and 

the Financial Alignment Initiative (a 

project serving individuals duallyeligible for Medicare and Medicaid). 

AoA has no objection to those States 

which choose to utilize resources other 

than those appropriated through the 

OAA to expand ombudsman services to 

individuals living in a variety of settings 

or receiving a variety of long-term 

services and supports. However, absent 

Congressional authorization for the 

Ombudsman program to expand its 

services to new settings, AoA does not 

believe that it has the authority to 

provide for such an expansion of 

services through this rule. 

As further clarification, Ombudsman 

programs, within the authority of the 

Act, already serve some individuals 

who live in long-term care facilities and 

receive some of the services indicated 

by commenters. For example, home and 

community based services (HCBS) 

services may be provided (depending on 

States’ Medicaid waivers or other HCBS 

programs) in board and care or assisted 

living settings; and hospice services are 

available within many long-term care 

facilities. Home-health services may be 

available to supplement care in assisted 

living settings, depending on State 

policies. For individuals receiving these 

services while residing within long-term 

care facilities, Ombudsman program 

services are already available and 

authorized by the Act. 

Comment: Several commenters 

recommended that the rule should 

require that the Ombudsman program be 

completely separate and independent 

from State government. 

Response: Requiring all States to 

place the Ombudsman program outside 

of State government would be 

inconsistent with the provisions of the 

OAA. The OAA establishes the 

Ombudsman program through grants to 

State units on aging and specifically 

provides the option for the State agency 

to determine where the program should 

be organizationally located. While 

providing some limitations (such as 

conflicts of interest), the Act indicates 

that ‘‘the State agency may establish and 

operate the Office, directly, or by 

contract or other arrangements with any 

public agency or nonprofit private 

organization.’’ Section 712(a)(4) of the 

Act. 

Some States have effective 

Ombudsman programs which are 

organizationally located, in whole or in 

part, inside of the State agency. In these 

States, the Ombudsman program is able 

to fully carry out the provisions of the 

OAA, even when the policies of the 

Office differ from the general policies in 

place for State employees. Examples of 

such practices are stringent disclosure 

limitations, making independent 

recommendations to legislators and 

other policymakers, and having direct 

access to the media to discuss long-term 

care policy matters. We realize that 

some States have had difficulty in 

carrying out all of the Ombudsman 

program provisions in the OAA. It is our 

intention that this rule will help those 

States have a better understanding of the 

OAA requirements and come into full 

compliance with the law. Where they 

are unable or unwilling to accommodate 

the provisions of the OAA which are 

necessary to provide for an effective 

Ombudsman program, State agencies 

will need to examine whether they are 

able to successfully operate the 

Ombudsman program directly or pursue 

an alternative course. 

Comment: One commenter indicated 

that AoA is wise to build into the 

process time to allow networks to make 

appropriate changes and construct 

effective remedies where conflicts exist. 

Response: AoA realizes that some 

States have implemented laws, 

regulations, policies, organizational 

structures, or other actions which are 

inconsistent with this rule. In the 

absence of regulation, States have by 

necessity moved forward with operating 

the Ombudsman program, resulting in 

significant inconsistencies among 

States. While accommodating a variety 

of organizational placements and 

approaches to Ombudsman program 

operations, we have focused, in this 

rule, on those areas which we believe 

are critical to full implementation of the 

OAA. In order to accommodate those 

States which will have to make changes 

to their laws or regulations, this rule 

becomes effective on July 1, 2016. 

This date provides most States with 

the benefit of two legislative sessions in 

order to make any needed changes. 

States with biennial legislative sessions 

will have an opportunity to make 

legislative changes to implement the 

rule whether the State has a legislative 

session in 2015 or in 2016. In addition, 

since most States begin their fiscal years 

on July 1, we believe that this date will 

provide a logical and convenient time 

frame for those States to implement 

legislative or regulatory changes. ACL 

notes that many States will not require 

legislative changes in order to comply 

with this rule. 

Comment: One commenter indicated 

concern about provisions that may 

necessitate State legislative action. 

Another commenter recommended that 

the period of one year for 

implementation be extended to provide 


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States and local Ombudsman entities 

with adequate time to remedy conflicts. 

Response: For the reasons indicated 

above, ACL has changed the effective 

date of this rule to July 1, 2016. 

Comment: One commenter indicated 

that strict implementation of the rule 

could jeopardize State funding, which is 

used to supplement the Ombudsman 

program, impacting the Ombudsman 

program, facilities, residents, and the 

ability of the State to expand its 

program into in-home settings. 

Response: AoA appreciates that a 

number of States provide additional 

resources in order to supplement the 

Ombudsman program. As a result of 

these States’ commitment to this work, 

residents have improved access to 

Ombudsman program services. It is our 

intent that States will continue their 

commitment to serve long-term care 

facility residents regardless of the 

promulgation of this rule. We do not 

foresee how compliance with this rule 

would jeopardize any State’s ability to 

support the work of the Ombudsman 

program. 

Comment: One commenter indicated 

that the proposed rule does not go far 

enough in addressing critical problems 

that Ombudsman programs face. 

Response: In promulgating this rule, 

AoA has attempted to address the issues 

that would most significantly benefit 

from regulatory clarity and authority. 

These issues were identified based on 

our experience with State operations of 

Ombudsman programs as well as 

recommendations of evaluators and 

stakeholders. We also considered the 

variety of State approaches to 

implementing the Ombudsman 

program, with a goal of minimizing 

disruption to Ombudsman program 

operations while adhering to the 

requirements of the OAA. We are not 

clear from the comment to which 

‘‘critical problems’’ the commenter 

refers. However, we anticipate that 

responses to more specific comments, 

below, may respond more fully to the 

comment. 

Comment: One commenter indicated 

a desire for increased accessibility to 

more low-income persons and people 

with disabilities who have a hard time 

accessing Ombudsman program 

services. The commenter indicated 

support for re-evaluation of the poverty 

threshold. 

Response: The services of 

Ombudsman programs are available to 

all residents of long-term care facility 

residents, without regard to financial 

status or payment source. The OAA 

requires that the Ombudsman ‘‘ensure 

that the residents have regular and 

timely access to the services provided’’ 

(Section 712(a)(3)(D) of the Act). In most 

States, access is provided to residents 

through regular visits to facilities by 

representatives of the Office—as well as 

through telephone, email, facsimile, 

Web site contacts, TTY (text telephone) 

and other communication services, and 

mail—so residents do not need to visit 

a physical office location to have access 

to Ombudsman program services. 

ACL does not have authority to 

evaluate or calculate the national 

poverty threshold. 

Comment: One commenter 

recommended that AoA take actions to 

monitor Ombudsman programs, 

formally assess compliance with the 

Act, and apply sanctions for continuing 

non-compliance, including the use of 

graduated remedies and including dedesignation to replace the Office where 

the Ombudsman fails to address major 

concerns of residents. 

Response: It is our intention, through 

the implementation of this rule, that 

State agencies and Ombudsman 

programs will be better equipped to 

comply with the provisions of the Act. 

The State agency duty to provide for 

sanctions with respect to interference, 

retaliation and reprisals is addressed at 

§ 1327.15(i). In addition, Federal 

regulation provides options for HHS 

grant-awarding agencies, including 

AoA, to respond when a grantee (the 

State agency in this circumstance) fails 

to comply with any term of an award. 

45 CFR 75.371. 

A. State Agency Policies 

We proposed revision to § 1321.11(b) 

in order to clarify the responsibility of 

the State agency on aging (also referred 

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

purposes of these regulations, ‘‘State 

agency’’) regarding appropriate access to 

the files, records and other information 

maintained by the Ombudsman program 

in its monitoring of the Ombudsman 

program. We substituted the term 

‘‘files’’ with ‘‘files, records and other 

information’’ in order to accommodate 

the increased use of digital information 

and incorporate information obtained 

verbally and by other means, as well as 

to clarify that the disclosure provisions 

of the Act at section 712(d) are not 

limited to information that is contained 

in case (i.e. complaint resolution) 

records. For example, information 

collected during individual consultation 

activities which are not part of case files 

also would be subject to this provision. 

Comment: Several comments 

indicated support for the proposed 

revision to 45 CFR 1321.11(b). Several 

comments indicated appreciation for the 

clarification. Others described the 

proposed revision as a modernization 

since it provides for various formats of 

information—including electronic 

formats and information obtained 

verbally. One comment indicated that 

the revision was an acceptable balance 

between Ombudsman program 

disclosure limitations and the needs of 

the State agency to provide oversight 

and monitoring of the Ombudsman 

program performance. One commenter 

indicated that this strengthens 

protection of resident-specific 

information. One commenter indicated 

support for removal of the provision 

that permits a State agency director or 

senior manager to review redacted files 

of the Ombudsman program. Other 

commenters indicated that the proposed 

revision supports and clarifies the 

responsibility of the Ombudsman to 

monitor the operations of the Office and 

to protect confidential information 

maintained in the files, records or other 

information of the Office. 

Response: AoA appreciates the 

supportive comments. 

Comment: Two commenters indicated 

that the final rule should include 

language that requires State agency and 

AoA to ‘‘ensure that no conflicts of 

interest arise or persist.’’ Another 

comment recommended that the rule 

require the State agency to develop a 

plan on how the Office of the State 

Long-Term Care Ombudsman is 

immunized from potential conflict of 

interest. 

Response: We have addressed conflict 

of interest issues in the provisions set 

forth in § 1327.21 and believe the 

recommended changes would be 

redundant. 

Comment: Two commenters indicated 

that the State agency should develop a 

plan on how the Office of the State 

Long-Term Care Ombudsman is 

immunized from interference by the 

State agency or other outside agencies to 

ensure autonomous advocacy. 

Response: We have made changes to 

further clarify the manner in which 

States are to protect the Office from 

interference in other final rule 

provisions as a result of considering 

these and other related comments. 

Therefore, we believe that amending 

§ 1321.11(b) to address interference, as 

recommended by commenters, would be 

redundant. Specifically, we have added 

a definition of ‘‘willful interference’’ at 

§ 1327.1 and a new provision on State 

agency duties regarding interference, 

retaliation and reprisals at § 1327.15(i) 

in the final rule. 

Comment: One comment indicated 

that AoA should clarify that it would be 

reasonable to require submission of 

aggregate data on complaint processing 

and activities and disclosure of 


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aggregate facility and provider-specific 

information by the Ombudsman to the 

State agency. Another commenter 

described that a local Ombudsman 

entity submits aggregate data to its 

respective area agency on aging (AAA), 

providing a balance of AAA need to 

have information and the Ombudsman 

program need to protect resident and 

complainant identifying information. 

Response: We agree with the 

commenter that the submission of 

aggregate data of the Ombudsman 

program to the State agency as well as 

to an agency hosting a local 

Ombudsman entity is appropriate. This 

is clarified in the final rule at 

§ 1327.15(e) with respect to the State 

agency. 

Comment: One commenter 

recommended limitations on the use of 

the Ombudsman program information 

by the State agency so that the 

information is used solely for the 

purpose of oversight, and that it not be 

released outside of the State agency or 

be used for quality improvement or 

monitoring of other programs 

administered by the State agency. 

Response: We do not agree that AoA 

should issue requirements regarding the 

appropriateness of the use of data which 

is permissible for disclosure by the State 

agency or other entities. The Act 

requires that Ombudsman program 

‘‘files and records . . . may be disclosed 

only at the discretion of the 

Ombudsman’’ and prohibits disclosure 

of the identity of any complainant or 

resident except in limited 

circumstances. Section 712(d)(2) of the 

Act. 

We believe that the final rule 

provisions related to disclosure 

limitations (at §§ 1327.11(e)(3),(8) and 

1327.13(e)), as well as Ombudsman 

participation in the development of 

policies governing its operations (at 

§§ 1327.11(e), 1327.13(b)(1)), provide 

sufficient authority to the Ombudsman, 

in coordination with the State agency, to 

develop parameters about appropriate 

uses of aggregate Ombudsman program 

data. 

Comment: One commenter suggested 

adding a provision encouraging 

Ombudsman programs to share nonconfidential information with advocacy 

organizations and identifying 

information from a complainant with 

complainant permission. 

Response: The Act provides the 

Ombudsman with the authority to 

determine disclosure of Ombudsman 

program information where it is not 

otherwise prohibited. See Section 

712(d) of the Act. The final rule 

addresses this statutory requirement at 

§ 1327.11(e)(3). We also note that 

aggregate data provided by each State’s 

Ombudsman program to AoA through 

the National Ombudsman Reporting 

System is posted publicly on 

www.agidnet.acl.gov and www.acl.gov. 

The Act provides the Ombudsman 

with the responsibility to determine 

appropriate disclosure of program 

information (unless it is otherwise 

prohibited), and this rule (at 

§ 1327.11(e)(3)) requires development of 

policies and procedures regarding 

disclosure of program information. 

Beyond these requirements, AoA does 

not take a position on which specific 

information the Ombudsman should 

disclose to specific entities. However, 

we note that other provisions in this 

rule do require Ombudsman program 

coordination with other entities (see, 

e.g., § 1327.13(h). Depending on the 

goals of coordinated activities, 

appropriate disclosure of information 

may support the success of such 

coordination. 

Comment: One commenter suggested 

that the rule use the terms ‘‘identity’’ 

and ‘‘identifying information’’ 

consistently or provide explanation of 

the distinction in meaning. 

Response: We have made changes in 

the final rule to consistently use the 

term ‘‘identifying information’’ or 

‘‘resident-identifying information’’ and 

have omitted the term ‘‘identity’’ in 

provisions related to disclosure of 

information. 

Comment: One commenter indicated 

that ‘‘other information’’ is ambiguous 

relative to which information is actually 

accessible and suggested adding 

‘‘retained by the Office.’’ 

Response: In the proposed rule, we 

used the language ‘‘files, records and 

other information maintained by the 

Office’’ for consistency with the 

language of the relevant provision of the 

Act (i.e. ‘‘files maintained by the 

program’’). OAA section 712(d). We do 

not agree that the term ‘‘retained by the 

Office’’ provides more clarity than 

‘‘maintained by the Office,’’ so have not 

revised this language in the final rule. 

Comment: One commenter indicated 

that some States do not have a defined 

format for documenting consultations 

and that the proposed rule may suggest 

a specified procedure and 

documentation methodology for 

consultations. 

Response: AoA does not intend to 

suggest any need for change in the 

manner that States document or collect 

data related to consultations in this rule. 

AoA requires States, through the 

National Ombudsman Reporting System 

(NORS), to report the total number and 

most frequent areas of consultation to 

facilities and of consultations to 

individuals. OMB Control Number 

0985–0005. This rule does not require 

States to make any changes to their 

documentation of consultations or 

related data through NORS. In order to 

make any change in NORS, AoA is 

required to publish a notice in the 

Federal Register pursuant to the 

Paperwork Reduction Act. This rule 

does not constitute such a notice. 

Comment: One commenter requested 

that language be added regarding the 

timeframe required to capture and retain 

records. 

Response: Since the Ombudsman 

program is operated by States pursuant 

to grants of the Department of Health 

and Human Services (HHS), the Federal 

requirements related to retention of 

records maintained pursuant to HHS 

grants apply to records retention of the 

Ombudsman program. In general, grant 

recipients and their sub-awardees under 

the grant must retain financial and 

programmatic records, supporting 

documents, statistical records, and all 

other records that are required by the 

terms of a grant, or may reasonably be 

considered pertinent to a grant, for a 

period of 3 years from the date the final 

Financial Status Report is submitted by 

States to HHS. The HHS requirements 

related to the retention of records are 

found at 45 CFR 75.361. This Federal 

grant requirement does not prohibit 

State agencies, the Office of the State 

Long-Term Care Ombudsman, and/or a 

local Ombudsman entity from 

establishing record retention policies 

which are provide for longer retention 

periods than the Federal requirements. 

Comment: One commenter indicated 

that the files should be the property, not 

only of the Office, but also of the 

representative of the Office. 

Response: The final rule requires that 

the Ombudsman shall be responsible for 

the management of the files, records and 

other information of the Office, 

regardless of whether the files are 

physically maintained by 

representatives of the Office. We believe 

that indicating that the files, records, 

and other information are also the 

property of the representatives of the 

Office could create confusion. However, 

we have clarified that nothing in the 

final rule prohibits a representative of 

the Office or local Ombudsman entity 

from physically maintaining such 

information in accordance with 

Ombudsman program requirements at 

§ 1327.13(d). 

B. Definitions 

Definition of Immediate Family 

We proposed to define the term 

‘‘immediate family’’ because it is used 


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repeatedly, but not defined, in section 

712(f) of the Act related to conflict of 

interest. We proposed that ‘‘immediate 

family, pertaining to conflicts of interest 

as used in section 712 of the Act, means 

a member of the household or a relative 

with whom there is a close personal or 

significant financial relationship.’’ 

We selected this definition to describe 

relationships that could impair the 

judgment or give the appearance of bias 

on the part of an individual who is 

responsible to objectively designate an 

individual as the Ombudsman (under 

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

part of the Ombudsman or officers, 

employees or representatives of the 

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

Act). In developing the definition, we 

were informed by the Federal standards 

of ethical conduct related to impartiality 

in an employee’s conduct. See 5 CFR 

2635.502(a),(b). 

We also note, that, under ACL’s April 

21, 2014 Guidance on Federal 

Recognition of Same-Sex Marriage 

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

Funding_Opportunities/Grantee_Info/

Index.aspx), an immediate family 

member who is a member of the 

household or a relative includes a 

spouse in a same-sex marriage. 

Comment: Eleven commenters 

indicated that they supported the 

proposed definition. Of those, three 

commenters indicated that the proposal 

provided helpful clarification. One 

indicated that the absence of a 

definition has left it up to State agencies 

to interpret. One indicated that the 

definition reflects the reality that nonblood and non-marital relations may 

cause conflicts of interest. 

Response: We appreciate the 

supportive comments. 

Comment: One commenter suggested 

that we add language to the definition 

indicating that the definition ‘‘is not 

intended to restrict the authority of the 

Ombudsman to refuse to designate, or to 

de-designate, other individuals whom 

the Ombudsman determines are not 

qualified or have a conflict of interest.’’ 

Response: As the commenter correctly 

states, AoA does not intend to restrict 

the authority of the Ombudsman to 

designate or de-designate other 

individuals whom the Ombudsman 

determines are not qualified or have a 

conflict of interest. The authority of the 

Ombudsman to designate and dedesignate is provided in the final rule at 

§ 1327.13(c), rather than in the 

definition. 

Comment: Eight commenters 

indicated that the proposed definition is 

not sufficiently clear or is too open to 

interpretation. Two commenters of these 

commenters asked for clarification of 

the terms ‘‘immediate family,’’ 

‘‘household,’’ and ‘‘direct and 

predictable effect.’’ One commenter 

indicated that any relative working in a 

facility would pose a conflict for a 

representative of the Office who serves 

residents of that facility. 

Response: After consideration of these 

comments, we have retained the 

proposed definition. We note that 

neither the proposed rule nor this final 

rule utilizes the term ‘‘direct and 

predictable effect’’ (although the Federal 

standards for ethical conduct do utilize 

the term). 

We realize that not every question is 

addressed by this definition, but we 

believe it provides additional clarity to 

the provisions of the Act. In addition, 

while Federal interpretations of the 

regulation from which this definition 

was derived (5 CFR 2635.502(a),(b)) are 

not controlling, they may assist States in 

considering ways to apply this 

definition consistently with Federal 

government application to its 

employees. 

Comment: One commenter asked 

about why the ‘‘immediate family’’ term 

does not include the situation where the 

close friend of a representative of the 

Office works at a facility and the 

complaint is against that person. 

Response: The definition of the term 

‘‘immediate family’’ is included in the 

rule in order to clarify the term, which 

is used in the Act. The term is used in 

the provisions of the OAA to 

specifically relate to conflicts of interest 

for the following situations: 

(1) An individual who designates the 

State Ombudsman or local Ombudsman 

entity (section 712(f)(1)); 

(2) officers, employees, or 

representatives of the Office (section 

712(f)(2)). By defining ‘‘immediate 

family,’’ ACL does not intend to 

indicate that the State agency is limited 

in its ability to identify other conflicts 

of interest, including conflicts of 

interest related to complaints lodged 

against a close friend of the 

Ombudsman or a representative of the 

Office. Moreover, in the provisions 

related to conflict of interest, the rule 

specifically indicates that the State 

agency is required to identify conflicts 

of interest and provides examples, but 

not limitations, of the types of conflicts 

to be identified (§ 1327.21(a), (c)). 

Definition of Office of the State LongTerm Care Ombudsman 

AoA proposed a definition of the 

‘‘Office of the State Long-Term Care 

Ombudsman’’ due to inconsistencies 

among States and confusion regarding 

which individual or individuals 

constitutes the ‘‘Office.’’ For example, 

we believe that States will benefit from 

clarification regarding who is 

responsible for making determinations 

specifically required of the Office by the 

Act. 

A 2011 State compliance review 

revealed that AoA’s provision of 

technical assistance and education on 

this question may not have provided 

sufficient clarity to States regarding the 

decision-making authority expected of 

the Office, and more specifically of the 

Ombudsman, as the head of that Office. 

Thus, this rule clarifies and codifies the 

definition. 

In the final rule, we have modified the 

definition to clarify that the Office is the 

organizational unit in a State or territory 

which is headed by the Ombudsman. 

We have provided an additional 

definition for ‘‘State Long-Term Care 

Ombudsman program’’ in order to 

distinguish this term from the ‘‘Office’’ 

since the ‘‘Office,’’ in some States, is 

organizationally separate from local 

Ombudsman entities. We recognize that 

in other States where the Ombudsman 

does not designate local Ombudsman 

entities, the Office will be identical to 

the ‘‘State Long-Term Care Ombudsman 

program.’’ Regardless of the 

organizational structure, the definition 

of ‘‘State Long-Term Care Ombudsman 

program’’ in § 1327.1 is inclusive of the 

Ombudsman, the Office, and the 

representatives of the Office. 

Comment: We received ten supportive 

comments on the proposed definition. 

Several commenters indicated that the 

proposal would provide helpful clarity. 

Two commenters indicated that the 

proposed definition would enhance the 

concept that the Ombudsman program 

is to be a unified program within the 

State. Another indicated that the 

proposal would appropriately 

distinguish the Office and reinforce the 

responsibility of representatives of the 

Office. 

Response: We appreciate the 

supportive comments. 

Comment: One commenter suggested 

consideration of the addition of the 

following language: ‘‘the Office of the 

State Long-Term Care Ombudsman is 

not the State agency on aging or State 

licensing agency.’’ 

Response: While we do not disagree 

with the comment, we do not believe a 

change from the proposed definition is 

needed. We believe that the definition 

as it was proposed, particularly when it 

is taken in context with the provisions 

of § 1327.11 (regarding the 

establishment of the Office), provides 

adequate clarity that distinguishes the 

Office from both the State agency (while 

recognizing that the Office may be 

organizationally situated within or 


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attached to the State agency) or the State 

licensing entity. 

Comment: One commenter asked the 

question whether, since the definition of 

‘‘Office’’ includes representatives, only 

the Ombudsman can determine these 

positions and whether a State agency or 

an Ombudsman could establish a policy 

that prohibits representatives of the 

Office from taking positions without 

approval or that prohibits positions that 

are different than the Office. 

Response: We have revised the 

definition of ‘‘Office of the State LongTerm Care Ombudsman’’ in the final 

rule so that it does not include the 

representatives of the Office. The Act 

indicates that ‘‘The State agency shall 

require the Office to . . . recommend 

any changes in . . . laws, regulations, 

and policies as the Office determines to 

be appropriate;’’ Section 712(h)(2) of the 

Act. We interpret this provision to mean 

that it would be inappropriate for a 

State agency to prohibit the Office from 

taking a particular position related to a 

recommendation in changes to relevant 

laws, regulations, and policies. Doing so 

would interfere with the responsibility 

of the Office to make such 

determinations. See §§ 1327.11(e)(8); 

1327.13(a)(7); 1327.15(k)(2). 

The Act provides that the Office shall 

be headed by the Ombudsman in 

section 712(a)(2) and specifically 

defines the word ‘‘Ombudsman’’ as the 

‘‘individual described in section 

712(a)(2).’’ Section 711(2) of the Act. 

Taken together, we read the statute to 

indicate that, as the head of the Office, 

the Ombudsman has the authority to 

determine the positions of the Office as 

well as the processes by which such 

determinations are made within the 

Office. Therefore, we believe the Act 

would not prohibit an Ombudsman 

from establishing a policy that limits the 

ability of representatives of the Office 

from taking positions without approval 

of the Ombudsman or that are different 

than that of the Ombudsman. 

AoA encourages each Ombudsman to 

solicit and consider the views of 

representatives of the Office, to 

encourage dialogue among 

representatives of the Office in 

formulating the positions of the Office, 

and to empower representatives of the 

Office to carry out their duties under 

section 712(a)(5) of the Act, including 

duties to ‘‘represent the interest of 

residents before government agencies’’ 

(section 712(a)(5)(B)(iv)) 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’’ (section 

712(a)(5)(B)(v)(I)). 

Definition of Representatives of the 

Office of the State Long-Term Care 

Ombudsman 

In proposing a definition of 

‘‘Representatives of the Office of the 

State Long-Term Care Ombudsman,’’ we 

intended to clarify that the 

representatives of the Office, including 

employees and volunteers designated by 

the Ombudsman, represent the Office 

(as opposed to the entity by which they 

may be employed or managed) when 

they are carrying out duties of the Office 

set forth at § 1327.19. 

We further intended to clarify that the 

‘‘representatives of the Office’’ are to be 

accountable to the head of the Office 

(i.e. the Ombudsman) for purposes of 

Ombudsman program operations. For all 

programmatic operations, the 

representative represents the Office (for 

example, they must follow the policies, 

procedures and guidance of the 

Ombudsman regarding complaint 

processing and other Ombudsman 

program activities). Simultaneously, 

those representatives of the Office who 

are organizationally located within local 

Ombudsman entities also represent the 

agency hosting the local Ombudsman 

entity, as this agency oversees them for 

personnel management matters (for 

example, the representative of the Office 

must follow the agency’s personnel 

policies so long as those policies do not 

conflict with Ombudsman program law 

and policy). 

Comment: Ten commenters indicated 

support for the proposed definition. One 

commenter indicated that the proposal 

recognizes that both employees and 

volunteers are to be considered 

representatives of the Office, regardless 

of the entity that provides direct 

supervision. Two comments indicated 

that the proposal would clarify that 

representatives of the Office are to be 

held accountable to the Ombudsman, 

regardless of whether affiliated with 

another entity. Another commenter 

indicated that the proposal should serve 

to unify the Ombudsman program 

within a State. One commenter 

indicated that this definition helps 

clarify for facilities whether they may 

appropriately provide volunteer 

representatives of the Office with access 

to residents and to whom facilities 

should address inquiries. 

Response: We appreciate the 

supportive comments. 

Comment: One commenter indicated 

that the proposal did not go far enough 

to address the risks to the individual 

representative of the Office who is 

organizationally located within local 

Ombudsman entities, given that the 

individual is reporting to one authority 

for programmatic matters and another 

for personnel management matters. 

Response: We acknowledge that 

representatives of the Office who are 

employed by or who volunteer for a 

local Ombudsman entity can be in a 

difficult position when reporting to one 

authority for programmatic matters and 

another for personnel management 

matters. The OAA sets up a distinctive 

and highly unusual structure in which 

the Ombudsman is responsible for 

designating all representatives of the 

Office but is (depending on the State’s 

chosen programmatic structure) not 

necessarily the authority for personnel 

management matters. We believe that 

those States which choose to utilize 

local Ombudsman entities may 

operationalize the requirements of the 

Act by dividing the authority between 

the personnel functions of the agency 

hosting the local Ombudsman entity, 

including hiring and firing, and the 

programmatic functions of the 

Ombudsman, including designation and 

de-designation. Despite the fact that the 

State agency (and/or the Office of the 

State Long-Term Care Ombudsman, 

depending on the organizational 

structure) contracts with an agency 

hosting the local Ombudsman entity to 

provide Ombudsman program services, 

the relationship is more complex than a 

typical contractual one. In addition to 

contract oversight for programmatic 

issues, the Ombudsman is also 

responsible for designation of the 

representatives of the Office. Further, 

the employees and volunteers of the 

local Ombudsman entity (i.e. 

representatives of the Office) have a 

direct representational relationship to 

the Office. As a result, this relationship 

between the Ombudsman and the 

agency hosting the local Ombudsman 

entity is not limited to merely a contract 

oversight function. 

We believe that, in the absence of 

regulation, many State agencies and 

agencies hosting local Ombudsman 

entities have found this distinctive 

relationship to be confusing and 

difficult to successfully implement. It is 

the intention of AoA to clarify this 

distinctive relationship through this 

definition, as well as through other 

provisions of this rule. We believe this 

clarification will help both States and 

agencies hosting local Ombudsman 

entities to operationalize the 

Ombudsman program in a manner 

consistent with what Congress intended 

and help to reduce the risks to the 

individual representatives of the Office. 

If all entities and individuals involved 

in operating the Ombudsman program 

understand that, where local 

Ombudsman entities are utilized in a 


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State, there is a separation between 

programmatic oversight and personnel 

management, and the policies of the 

Ombudsman program appropriately 

implement this separation, this should 

help the individual representatives 

know to whom they are accountable for 

programmatic matters (i.e. the 

Ombudsman) and to whom they are 

accountable for personnel management 

matters (i.e. the agency hosting the local 

Ombudsman entity). We believe that the 

proposed definition, and the context of 

the entire rule, provides clarity that 

directly relates to the cause of the risks 

identified by the commenter. 

Comment: One commenter indicated 

that in their State, Ombudsman program 

volunteers are appointed by county 

commissioners, not designated by the 

Ombudsman. As a result, when a 

volunteer does not appropriately 

perform programmatic duties, the 

appointing authority—and not the 

Ombudsman—has the only authority to 

remove the volunteer from this role. 

Response: We appreciate the 

commenter bringing this issue to our 

attention in the comment. The Act is 

clear that the Ombudsman has the 

authority to designate representatives of 

the Office. Section 712(a)(5) of the Act. 

Further, this rule clarifies that the 

Ombudsman has the sole authority to 

designate and de-designate 

representatives of the Office. 

§ 1327.13(c). AoA plans to provide 

technical assistance to States to assist 

them in coming into compliance with 

this rule. 

Comment: One commenter suggested 

that the proposed definition could be 

strengthened with a citation to OAA 

section 711 and with inclusion of 

language regarding personnel 

management of the local Ombudsman 

entity which cannot conflict with 

Ombudsman law and policy. 

Response: We have included 

reference to section 711 of the Act in the 

definition of ‘‘State Long-Term Care 

Ombudsman program’’ in the final rule. 

We also agreed with the commenter’s 

suggestion to incorporate into the final 

rule the inclusion of the concept, 

included in the preamble of our 

proposed rule, related to personnel 

management of the agency hosting the 

local Ombudsman entity not conflicting 

with Ombudsman law and policy. We 

have incorporated this concept into a 

new provision at § 1327.17(b). 

Additional Recommended Definitions 

Numerous commenters suggested the 

need for additional definitions of terms 

used in the proposed rule and/or the 

Act. 

Comment: Ten commenters 

recommended that the final rule define 

the term ‘‘willful interference.’’ Some of 

them indicated that the definition was 

needed to clarify and support the 

requirement in the Act that the Office 

and its representatives are free from 

interference in the course of performing 

required functions. Several commenters 

offered suggested language defining the 

term. 

Response: We have added a definition 

of ‘‘willful interference’’ at § 1327.1. We 

have also developed new provisions 

regarding interference, retaliation, and 

reprisals in response to these and other 

comments at § 1327.15(i). 

Comment: One commenter 

recommended that the final rule define 

the term ‘‘long-term care Ombudsman 

program.’’ The commenter indicated 

that the term ‘‘program’’ is commonly 

used to describe both the State Office 

and local Ombudsman entities and is 

described in the Act, at sections 711(4) 

and 712(a)(1)(B), as the mechanism 

through which the Office carries out its 

duties. 

Response: We appreciate this helpful 

comment. We understand the use of 

these terms can be confusing due to the 

variety of organizational structures used 

by States. Therefore, in some States 

which use a centralized structure, the 

Office of the State Long-Term Care 

Ombudsman is made up of the 

individual who is the State Long-Term 

Care Ombudsman and representatives of 

the Office, and is structurally the same 

as the ‘‘program.’’ In other, more 

decentralized organizational structures, 

the ‘‘program’’ is a combination of the 

‘‘Office of the State Long-Term Care 

Ombudsman’’ and the ‘‘representatives 

of the Office’’ who are organizationally 

located within ‘‘local Ombudsman 

entities.’’ 

In response to this comment, we have 

added a definition of ‘‘State Long-Term 

Care Ombudsman program,’’ revised the 

definition of ‘‘Office of the State LongTerm Care Ombudsman’’ in order to 

more clearly distinguish between the 

meanings of these terms, and separated 

out the provisions related to the 

agencies hosting local Ombudsman 

entities in a new section § 1327.17. 

Specifically, to the definition of 

‘‘Office of the State Long-Term Care 

Ombudsman’’ we have added the term 

‘‘in a State or territory’’ and deleted 

‘‘including the representatives of the 

Office.’’ We have included the provision 

regarding ‘‘representatives of the Office’’ 

within a new definition for the term 

‘‘State Long-Term Care Ombudsman 

program’’ and indicated that it is 

through the State Long-Term Care 

Ombudsman program that the functions 

and duties of the Office are carried out. 

Comment: One commenter 

recommended that the term ‘‘State 

agency’’ be defined as it is used 

frequently in the proposed rule. 

Response: The final rule is part of 

subchapter C Administration on Aging, 

Older Americans Programs of chapter 

XIII of the Code of Federal Regulations. 

Part 1321 of subchapter C provides a 

detailed explanation of the 

responsibilities of the State agency 

which include, but are not limited to, its 

responsibilities in carrying out the 

State’s Ombudsman program. We did 

not adopt the recommendation to 

include a definition for ‘‘State agency’’ 

within these regulations, which are 

limited to operations of the Ombudsman 

program. 

However, to provide additional 

clarity, we have included language in 

§ 1327.15(a),(e) to cross reference the 

term ‘‘State agency’’ to the related 

provision in 45 CFR part 1321. 

Comment: Seven commenters 

recommended that we add a definition 

for the term ‘‘legal representative’’ and/ 

or clarify the distinction between ‘‘legal 

representative’’ and ‘‘resident 

representative.’’ One indicated that a 

reader might mistakenly interpret the 

term ‘‘legal representative’’ to mean a 

resident’s lawyer. 

Response: We agree that it would be 

helpful to use one term consistently. 

While the Act uses the term ‘‘legal 

representative,’’ we agree that the term 

‘‘resident representative’’ may be less 

confusing; since a reader is unlikely to 

interpret the use of ‘‘resident 

representative’’ to an attorney or courtappointed representative unlike ‘‘legal 

representative.’’ In response to these 

comments, we have consistently used 

the term ‘‘resident representative’’ 

throughout the final rule, and we have 

added a definition of the term in 

§ 1327.1. We also note that, under ACL’s 

April 21, 2014 Guidance on Federal 

Recognition of Same-Sex Marriage 

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

Funding_Opportunities/Grantee_Info/

Index.aspx), a spouse in a same-sex 

marriage could serve as a resident 

representative. 

We intend for our definition of 

‘‘resident representative’’ to be 

consistent with the person-centered 

approaches to Ombudsman program 

services. The ‘‘resident representative’’ 

is authorized to provide permission for 

a representative of the Office to perform 

the certain tasks when a resident is 

unable to communicate informed 

consent or prefers to have a 

representative act on his/her behalf. 

Those tasks include: Access to resident 


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records; disclosure of the resident 

identifying information; and initiation 

of the investigation a complaint, 

coordination of the investigation and 

resolution approach, and determination 

of the resolution of the complaint. 

Relevant provisions are found in the 

regulations related to complaint 

processing at § 1327.19(b) and related to 

disclosure of resident-identifying 

information at § 1327.11(e)(3). 

Comment: One commenter 

recommended that we remove the use of 

the term ‘‘resident representative’’ 

because they found it confusing and 

ambiguous. 

Response: For the reasons indicated 

above, we have chosen to continue to 

use the term ‘‘resident representative’’ 

consistently and to replace the term 

‘‘legal representative’’ where that was 

used in the proposed rule. 

Comment: Two commenters 

recommended that we add a definition 

for the term ‘‘protection and advocacy 

systems.’’ 

Response: We did not add a definition 

of the term ‘‘protection and advocacy 

systems’’ but instead have revised the 

description of protection and advocacy 

systems in the final rule at 

§ 1327.13(h)(4). 

Comments: One commenter 

recommending adding a definition to 

clarify that designation and dedesignation includes certification and 

de-certification. The commenter 

indicated that some States use the term 

‘‘certification’’ to apply to individuals 

and ‘‘designation’’ for the local 

Ombudsman entity. 

Response: We do not agree that a 

definition is needed, as we believe the 

commonly defined use of these terms is 

sufficient to explain the use of these 

terms. According to the Merriam 

Webster Dictionary, to ‘‘certify’’ means 

‘‘to say officially that something or 

someone has met certain standards or 

requirements’’ and ‘‘designation’’ means 

‘‘appointment to or selection for an 

office, post, or service.’’ 

Therefore, in the context of the 

Ombudsman program, the Ombudsman 

certifies (i.e. officially says) that an 

individual has met the training and 

other requirements necessary for an 

individual to serve as a ‘‘representative 

of the Office.’’ Further, the Ombudsman 

designates (i.e. appoints or selects) an 

individual to be a ‘‘representative of the 

Office’’ and designates a ‘‘local 

Ombudsman entity’’ to assist in 

providing the Ombudsman program 

services at the local level. Certification 

that an individual has met required 

training requirements is one of the 

factors (along with other relevant 

factors, such as freedom from 

unremedied conflict of interest and 

employment by or volunteer agreement 

with a local Ombudsman entity, where 

applicable) to be considered in the 

Ombudsman’s determination that the 

individual is qualified to be designated 

as a ‘‘representative of the Office.’’ 

Comment: One commenter 

recommended that we add a definition 

for the term ‘‘aggregate data,’’ indicating 

that this relates to the scope of the State 

agency’s access to Ombudsman program 

data while permitting the Ombudsman 

program to adhere to confidentiality 

requirements. 

Response: We do not agree that a 

definition is needed, because the 

common definitions of the words ‘‘data’’ 

and ‘‘aggregate’’ are sufficient. 

According to the Merriam Webster 

Dictionary, the adjective ‘‘aggregate’’ 

means ‘‘formed by adding together two 

or more amounts’’ and ‘‘taking all units 

as a whole.’’ The word ‘‘data’’ means 

‘‘facts or information used usually to 

calculate, analyze, or plan something.’’ 

Further, the provisions regarding 

establishment of policies and 

procedures regarding disclosure at 

§ 1327.11(e)(3) provide sufficient clarity 

on the relevant requirements of the Act. 

Comment: One commenter 

recommended that we add a definition 

for the term ‘‘unable to communicate 

informed consent,’’ indicating that the 

term is ambiguous. 

Response: We believe that the term 

‘‘unable to communicate informed 

consent’’ improves the clarity of the 

term ‘‘unable to consent’’ which is used 

in the Act, related to Ombudsman 

program access to resident records. 

Section 712(b)(1)(B)(i)(II) of the Act. Our 

expectation is that States will 

operationalize the use of this term by 

incorporating it into the Ombudsman 

program’s procedures for resident 

records and complaint processing. We 

are also available to provide States with 

technical assistance should the need 

arise for further clarity on how to 

operationalize this term within 

Ombudsman program operations. 

C. Establishment of the Office of the 

State Long-Term Care Ombudsman 

The regulations at § 1327.11 clarify for 

States how to appropriately establish 

the Office pursuant to section 712(a)(1) 

of the Act. This includes clarification 

regarding the determinations which are 

the responsibilities of the Office, and by 

the head of the Office (i.e. the 

Ombudsman), pursuant to section 

712(h) of the Act. Because these 

determinations are frequently outside 

the scope of the authority of most State 

employees (many, though not all, 

Ombudsmen are State employees), we 

believe that this clarification will assist 

States in full implementation of the Act. 

Specifically, the Office is required by 

the Act to make determinations 

regarding: 

• Disclosure of information 

maintained by the Ombudsman 

program; 

• Recommendations to changes in 

Federal, State and local laws, 

regulations, policies and actions 

pertaining to the health, safety, welfare, 

and rights of residents; and 

• Provision of information to public 

and private agencies, legislators, and 

other persons, regarding the problems 

and concerns of residents and 

recommendations related to the 

problems and concerns. 

The Act indicates that the 

recommendations made by, and the 

information provided by, the Office are 

limited to issues pertaining to residents 

of long-term care facilities and services. 

See section 712(a)(3)(G), (h)(2)–(3) of the 

Act. In order to reduce confusion at the 

State level where the recommendations 

of an Ombudsman might be mistaken 

for the position of the Governor or the 

State agency, another agency carrying 

out the Ombudsman program, or any 

other State agency, AoA proposed 

clarification that these determinations 

are those of the Office of the State LongTerm Care Ombudsman and do not 

represent other State governmental 

entities. 

Comments: We received seven 

comments indicating general support for 

§ 1327.11 as proposed. Some of these 

commenters indicated that the proposed 

language provides critically needed 

clarity for the Ombudsman program to 

accomplish its intended role under the 

Act. Some commented that the proposal 

clarifies that the Office must operate as 

a separately identifiable Office, 

regardless of its organizational location. 

One commenter indicated that the 

proposed language confirms that the 

Ombudsman program should operate as 

an integrated whole with the 

Ombudsman providing direction, 

authority, and programmatic 

supervision to all designated 

representatives. 

Two of these commenters indicated 

that some State agencies have 

prohibited the Office from engaging in 

activities required in the Act because of 

concern that the Ombudsman would 

make determinations that would be 

contrary to those of the State agency or 

the executive branch; they indicated 

that the proposed language is necessary 

to address these concerns. One 

commenter indicated that the proposed 

language would strengthen the 

independence of the Office. Another 


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commenter indicated that the proposed 

language appropriately allows States 

flexibility to best serve residents and 

maintain compliance with the Act. 

Response: We appreciate the 

supportive comments. 

Comment: Two commenters indicated 

that AoA should require the Office to be 

placed outside of the State government. 

Another commenter disagreed with the 

proposed language permitting the Office 

to be located within or connected to the 

State agency, indicating that it is 

difficult to imagine what an 

Ombudsman faces in advocating for 

residents where he or she has a peer at 

a regulatory agency. Another commenter 

indicated that the final rule should 

require that the State contract the 

Ombudsman program with a nonprofit 

entity to ensure that the Ombudsman 

has the ability to operate independently. 

One of these commenters indicated that 

they are in a State where the 

Ombudsman program is independent of 

any State agency and that this has 

worked well to serve the interests of 

individuals served by the program. 

One of these commenters indicated 

that advocacy and government 

bureaucracies are rarely compatible and 

that residents would be better served if 

Ombudsman programs were contracted 

out to private nonprofit entities. In 

support of this perspective, this 

commenter cited a 2001 study finding 

that of the nine Ombudsmen reporting 

conflicts of interest due to program 

placement, 100% were located in State 

agencies on aging. While eleven of 

thirty-seven (30%) Ombudsmen located 

within State agencies on aging reported 

that Office organizational placement 

limited their ability to speak with 

legislators and/or the media, one of 

fifteen (7%) Ombudsmen in other types 

of agencies reported experiencing 

limitation on autonomy due to the 

organizational placement of their Office. 

This commenter recognized that the Act 

permits State agencies to operate the 

Office and that the Act would need to 

be changed to achieve this 

recommendation. 

One of these commenters indicated 

that placement of the Ombudsman 

program within a non-profit entity 

allows for leveraging of private and 

other funds and supports effective 

investigation and intervention. This 

commenter indicated that the 

Ombudsman must be able to articulate 

positions that may be critical of a State 

agency in order to adequately represent 

residents. 

Response: Congress has indicated 

through the Act that it is the 

responsibility of the State agency to 

establish and operate an Office and has 

expressly provided the opportunity for 

the State agency to carry out the 

Ombudsman program directly or by 

contract or other arrangement with a 

public agency or nonprofit private 

organization. Section 712(a)(1), (4) of 

the Act. AoA recognizes that the 

advocacy function of the Office may be 

a difficult fit within government 

bureaucratic structures and under 

policies governing State employees in 

some States. It is our intent to assist 

States agencies, through this rule, to 

clarify their responsibilities to carry out 

all of the requirements of the Act and to 

assist them in considering whether their 

organizational structure and State 

employee policies can adequately 

support a fully functioning, effective 

Ombudsman program. 

We also recognize that effective 

consumer advocacy entities can and do 

successfully exist within some State 

governments. In some States, the Office 

is not the unique consumer advocacy 

entity located within State government. 

While we agree that a non-profit 

agency might be able to access diverse 

funding sources, we also note that a 

number of State agencies provide 

significant resources to the Office in 

addition to the Federal grant funds 

appropriated under the Act. 

Comment: One commenter expressed 

concern that the proposed rule grants 

excessive authority to the Ombudsman 

at the expense of local Ombudsman 

entities and that the Ombudsman is 

held accountable to no one. The 

commenter expressed concern about the 

ability of local Ombudsman entities to 

advocate for residents in States where 

the Ombudsman misuses this power 

and indicated that the proposed 

regulations provide for no recourse for 

situations in which the Ombudsman’s 

actions violate the Act. 

Response: We believe that the 

proposed rule appropriately follows the 

provisions of the Act which clearly set 

forth the Ombudsman (i.e. State 

Ombudsman, not all representatives of 

the Office) as responsible for the 

leadership of the Office, as the head of 

the Office. Section 712(a)(2) of the Act. 

We disagree with the assertion that the 

Ombudsman is accountable to no one. 

State agencies and other agencies which 

house the Office have the authority to 

provide personnel supervision and the 

ability to take personnel actions related 

to the performance of the Ombudsman 

as they would with any other employee. 

Some States have also set up additional 

mechanisms for accountability of the 

Ombudsman program, including 

governing or advisory boards. The Act 

does not prohibit the State agency or the 

Office from establishing additional 

mechanisms for accountability so long 

as the Ombudsman can fully perform 

his or her functions under the Act. 

The Ombudsman program is 

established through OAA grants to State 

agencies on aging. State agencies are 

required to assure AoA that the 

Ombudsman program is established and 

carried out consistent with the 

provisions of the Act. If AoA determines 

that a State fails to comply with any 

term of an award, AoA, as the granting 

agency, has several remedies available 

to it, including but not limited to wholly 

or partly suspending or terminating the 

award. 45 CFR 75.371. 

Comment: One commenter, in 

reference in § 1327.13(a), questioned the 

ability of an Ombudsman to serve on a 

full-time basis if other populations are 

served beyond the scope of the Act. 

Response: We have added clarity to a 

new provision at § 1327.11(c) in the 

final rule by indicating that full-time 

shall mean that the functions and 

responsibilities set forth in this section 

are to constitute the entirety of the 

Ombudsman’s work. AoA does not 

object to a State choosing to utilize nonOAA resources for the Ombudsman 

program to provide services to 

additional populations (for example, to 

recipients of in-home long-term services 

and supports), so long as the functions 

and responsibilities relating to the 

expanded population are consistent 

with the services of an ombudsman. The 

State agency or other agency carrying 

out the Ombudsman program shall not 

require or request the Ombudsman to be 

responsible for leading, managing or 

performing the work of non-ombudsman 

services or programs except on a timelimited, intermittent basis. This 

provision is not intended to limit the 

ability of an Ombudsman to access 

grants or otherwise perform special 

projects so long as the activities of the 

grant or project are consistent with the 

functions and responsibilities of the 

Ombudsman. 

Comment: Two commenters (one 

commenting on § 1327.11 and the other 

commenting on § 1327.13) 

recommended that the final rule include 

qualifications or criteria for hiring the 

Ombudsman. One of these commenters 

indicated that the Ombudsman program 

would benefit from strong Federal 

standards in this domain since 

Ombudsmen who lack basic 

qualifications for the position are likely 

to not perform well. This commenter 

recommended that Ombudsman 

candidates have a strong background in 

the Ombudsman program or ensure that 

a newly hired Ombudsman promptly 

complete State certification training, as 

required by representatives of the 


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Office, and complete an internship 

within a long-term care facility. Without 

qualifications, the commenter wondered 

how AoA could remedy situations in 

which the State hires an unqualified 

candidate. 

The other commenter suggested 

examples of recommended criteria: 

Knowledge of the long-term care system; 

demonstrated evidence of residentfocused advocacy on both an individual 

and systemic basis; knowledge of State 

and local government; communication, 

management, and conflict resolution 

skills; and clinical and/or direct health 

and human services experience. 

Response: We agree with the 

commenters that minimum 

qualifications for the Ombudsman could 

be helpful to ensure selection from 

among highly-qualified candidates with 

appropriate expertise. We note that AoA 

has provided States with guidance on 

Ombudsman minimum qualifications 

since 1981, when it indicated that the 

Ombudsman ‘‘should minimally possess 

the following qualifications: 

a. Demonstrated experience with 

long-term care systems or professional 

training in long-term care and 

institutions; 

b. Program development background 

and skills; 

c. Administrative, arbitration, 

conciliation and/or negotiation 

experience and skills; 

d. Experience or education in 

gerontology and/or aging programs.’’ 

AoA Program Instruction 81–8. 

Based on the 1981 guidance, the 

qualifications indicated in the Act (i.e. 

‘‘expertise and experience in the fields 

of long-term care and advocacy.’’ 

Section 712(a)(2)), and considering 

these comments, we have developed a 

new provision regarding minimum 

qualifications at § 1327.11(d). 

Comment: One commenter indicated 

that the proposed provisions at 

§ 1327.11 would be difficult for States to 

implement and for AoA to uphold. The 

commenter indicated that in their State, 

the Ombudsman is an employee of the 

State agency on aging and bound by its 

policies regarding communications with 

the legislature and the media. Therefore, 

the Ombudsman is currently unable to 

independently make determinations, 

make recommendations for changes to 

policies, or provide information to the 

public. The commenter indicated that, 

for AoA to suggest that the Ombudsman 

has authority to override his or her 

supervisor, agency director, and 

Governor, shows that AoA is not in 

touch with the realities of State 

government and the context in which 

Ombudsmen must work. Another 

commenter indicated that it is 

unrealistic for AoA to think that an 

Ombudsman employed by a State 

agency can make recommendations 

which conflict with those of the State 

agency or the Governor. 

Response: We appreciate the 

commenters’ perspectives of the 

circumstances in their States. We would 

like to clarify that the rule does not 

suggest that the Ombudsman has the 

authority to override his or her 

supervisor, agency director, or 

Governor. However, the Act requires 

that any State, in order to receive grant 

funds under the Act, assure to AoA that, 

among other things, it will permit the 

Ombudsman to fulfill all of the 

functions under the Act. These include 

the ability to make certain 

determinations which represent the 

positions of the Office, and not 

necessarily those of the supervisor, 

agency director, or Governor. A number 

of State agencies or other agencies in 

which the Office is organizationally 

located already include language in 

their personnel policies or other 

relevant laws or policies which 

implement this requirement of the Act. 

In order to reduce confusion at the 

State level where the recommendations 

of an Ombudsman might be mistaken 

for the position of the Governor or any 

other agency, AoA has specifically 

indicated in the final rule that these 

determinations and positions are to be 

those of the Office and do not represent 

other State entities. § 1327.13(a)(7)(vi). 

We wish to remind the commenters 

that their States have previously 

provided to AoA assurances in its State 

plan on aging that they will carry out 

the Ombudsman program in compliance 

with the Act. These State plans were 

signed by their respective governors and 

submitted to AoA for approval and as a 

condition of receiving grant funds under 

the Act. 

We respectfully disagree with the 

comment that AoA is not in touch with 

the realities of State government and the 

context in which Ombudsmen must 

work. In fact, numerous AoA staff have 

had previous employment experience 

within State government entities, and 

AoA staff regularly communicate with 

State government entities. AoA is aware 

that the Act requires functions of the 

Ombudsman program that are 

uncharacteristic of other programs and 

services under the Act and that these 

requirements have been challenging for 

some States to successfully implement. 

AoA is also aware of the wide variations 

among States in their implementation of 

programs and services under the Act. 

Numerous States that have been able to 

successfully implement the 

Ombudsman program, even when the 

Office is organizationally located within 

State government. 

The Act specifically provides for the 

opportunity for the State agency to carry 

out the Office through a contract with a 

nonprofit entity. Section 712(a)(4) of the 

Act. Should any State government be 

unable to follow the requirements of the 

Act and this final rule when it houses 

the Office within State government, it 

has the opportunity to seek other 

arrangements to enable the Office to 

fulfill all of its statutory responsibilities 

and to, most importantly, effectively 

serve residents of the State’s long-term 

care facilities. Currently, Offices in six 

States and the District of Columbia are 

organizationally located outside of State 

government. 

Comment: Eleven commenters 

indicated general support for the 

proposed language in § 1327.11(b), 

describing the Office as a ‘‘distinct 

entity, separately identifiable’’ 

regardless of its organizational 

placement. One of these commenters 

indicated support for the language as it 

assures autonomy of the Office to 

advocate for residents. Another 

indicated that the proposed language 

would ensure the independence of the 

Office and would strengthen the 

Ombudsman program. One commenter 

described the proposed language as an 

excellent clarification of the 

responsibilities of the Office that will 

benefit all levels of the organization in 

carrying out the Ombudsman program 

functions. Another commenter 

indicated support for the language in 

that it permits State agency flexibility to 

decide the best location for the 

Ombudsman program in order to best 

serve residents and maintain 

compliance with the requirements of the 

Act. 

Response: We appreciate the 

supportive comments. 

Comment: One commenter described 

challenges to implementation of 

§ 1327.11 where a representative of the 

Office is hosted within an area agency 

on aging with organizational conflicts of 

interest. 

Response: We have described this 

comment more fully and responded in 

more detail in section H. Conflicts of 

interest, below. 

Comment: Four commenters indicated 

general support for the proposed 

language of § 1327.11(c) (moved in the 

final rule to § 1327.11(e)(8)) regarding 

the ability of the Ombudsman to 

independently make certain 

determinations and establish certain 

positions of the Office. One of these 

commenters indicated that this 

clarification will encourage 

Ombudsmen to work with 


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representatives of the Office to bring 

forth resident issues. Another indicated 

that the proposed language is helpful 

because independence is critical to the 

Ombudsman program’s ability to carry 

out all of its functions and duties. 

Response: We appreciate the 

supportive comments. 

Comment: One commenter 

recommended that the final rule include 

a definition of the term 

‘‘determinations’’ as used in proposed 

§ 1327.11(c) (moved in the final rule to 

§ 1327.11(e)(8)). 

Response: We do not agree that a 

definition is needed because the 

common definition of the word 

‘‘determination’’ is sufficient. According 

to the Merriam Webster Dictionary, 

‘‘determination’’ means ‘‘the act of 

officially deciding something.’’ Further, 

we believe that the provisions regarding 

determinations at § 1327.11(e)(8), when 

read in the context of the provisions 

related to the functions and 

responsibilities of the Ombudsman 

(§ 1327.13) and the State agency 

responsibilities related to the 

Ombudsman program (§ 1327.15) 

provide sufficient guidance on the Act’s 

requirements related to Ombudsman 

determinations. 

Comment: One commenter suggested 

the need for a definition of 

‘‘independently.’’ 

Response: We do not agree that a 

definition is needed because the 

common definition of the word 

‘‘independent’’ is sufficient. According 

to the Merriam Webster Dictionary, 

‘‘independent’’ means ‘‘not requiring or 

relying on something else; not 

contingent.’’ Further, we believe that the 

provisions in the final rule regarding the 

Ombudsman independently making 

determinations and establishing 

positions, the functions and 

responsibilities of the Ombudsman, the 

State agency responsibilities, and 

conflicts of interest provide sufficient 

clarity on the Act’s requirements related 

to Ombudsman independence. 

Comment: One commenter inquired 

about an appeal process if the Office 

organizational structure does not permit 

independence or adherence to the 

provisions of § 1327.11. 

Response: No formal Federal appeal 

process exists for review of the 

independence of the Office. State 

agencies may develop appeal processes 

for these or other grievances. The final 

rule does require the development of a 

grievance process regarding 

determinations or actions of the 

Ombudsman or the representatives of 

the Office. § 1327.11(e)(7). Moreover, it 

is ACL’s intention, through this final 

rule, to clarify the requirements in the 

Act so that States, in carrying out the 

Ombudsman program through OAA 

grants, will better understand their 

responsibility to assure that the 

Ombudsman has the ability to perform 

all of the functions and responsibilities 

set forth in the Act. 

Comment: One commenter inquired 

whether there may be other situations in 

which the Ombudsman may need to 

make determinations and whether the 

rule should provide for these other 

situations. 

Response: The final rule at 

§ 1327.11(e)(8) addresses all of the 

determinations of the Office which are 

specifically required in the Act. 

Comment: One commenter suggested 

that language be added to § 1327.11(c) 

(moved in the final rule to § 1327.11(e)) 

to specify that a ‘‘nonprofit 

organization’’ could be carrying out the 

Ombudsman program. 

Response: The language in 

§ 1327.11(b)(2) is sufficiently clear that 

the State agency may enter into a 

contract or other arrangements with a 

‘‘nonprofit organization’’ to establish the 

Office. We believe the term ‘‘State 

agency or other agency’’ is sufficient to 

cover the variety of entities in which the 

Office can be organizationally located. 

Comment: One commenter indicated 

that the proposed language regarding 

Ombudsman determinations could be 

interpreted to mean that the 

Ombudsman must individually approve 

all disclosures, testimony or information 

provided by any local Ombudsman 

representative on a public policy issue. 

The commenter indicated that an 

Ombudsman might choose to delegate 

some determinations to local 

Ombudsman entities. 

Response: We do not intend for the 

proposed provision to limit ability of 

Ombudsman to utilize representative of 

the Office for appropriate tasks in order 

carry out the determinations of the 

Office. We do not believe that the 

proposed or final rule, at § 1327.11(e)(8), 

limits this ability. 

Comment: With respect to 

§ 1327.11(c)(2) (moved in the final rule 

to § 1327.11(e)(8)), regarding 

recommendation to changes in laws, 

regulations, etc., one commenter 

indicated that in their State, the 

Ombudsman is organizationally located 

within an umbrella State government 

structure and must adhere to State 

government protocols related to 

legislative action and lobbying. The 

commenter requested consideration for 

differences in structure of the Office 

from State to State. 

Response: The language in the final 

rule at § 1327.11(e)(8) is derived directly 

from the Act which states that making 

recommendations to changes in laws, 

regulations, etc. is a function of the 

Ombudsman. Section 712(a)(3)(G)(ii) of 

the Act. Further, the Act requires State 

agencies to require the Office to analyze, 

comment on, monitor and recommend 

changes to laws, regulations, and 

policies, and provide information to, 

among others, legislators. Section 

712(h)(2),(3) of the Act. We do not 

believe that AoA has the authority 

under the Act to make this provision 

optional for some States and not others. 

The Act creates the Ombudsman 

program to resolve problems for 

residents of long-term care facilities on 

individual as well as systemic levels. 

Therefore, the ability to take positions 

and make recommendations that reflect 

the interests of residents is critical to the 

effectiveness of the Ombudsman 

program. 

Comment: One commenter 

recommended that we add ‘‘the media’’ 

to the list of persons to whom 

information can be provided by the 

Office in proposed regulation 

§ 1327.11(c)(3). The commenter 

indicated that providing access to the 

media logically follows from the 

statutory authority of the Office to 

provide information and 

recommendations and to facilitate 

public comment. The commenter says 

that there have been instances of State 

agencies and local Ombudsman entities 

that have restricted Ombudsman 

program contact with the media and 

that explicit inclusion of this term in the 

regulation would be helpful. 

Response: We have accepted this 

recommendation in the final rule, 

revising § 1327.11(c)(3) (moved in the 

final rule to § 1327.11(e)(8)(iii)). We 

believe it further clarifies 

implementation of the Act. Further, it is 

consistent with the AoA 2011 finding of 

non-compliance regarding information 

dissemination in a State which required 

State agency and Governor prior 

approval of Ombudsman program press 

releases and which used orders and 

intimidation to ensure the cancellation 

of press conference activities. As we 

indicated in the AoA compliance review 

of this State, while we encourage 

Ombudsman programs to have excellent 

lines of communication with their State 

agency to avoid blind-side surprises, the 

Ombudsman must have the option to 

communicate with the media in order to 

advocate for residents and their 

interests. 

Comment: One commenter suggested 

that we move § 1327.11(c)(4) so that it 

modifies subparagraphs (1)–(3) rather 

than standing alone as a separate 

activity. 


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Response: We have moved this 

provision to § 1327.13(a)(7)(vi) 

(regarding functions of the Ombudsman) 

in the final rule where it more clearly 

modifies the determinations of the 

Office related to recommendations and 

information dissemination. 

Comment: One commenter indicated 

that the proposed language in 

§ 1327.11(c)(4) is beneficial to State 

agencies in order to distinguish 

determinations and positions of the 

Office as not necessarily representing 

those of the State agency. The 

commenter indicated that the proposed 

language makes the reality of opposed 

positions and determinations 

understood and explainable. 

Response: We appreciate the 

supportive comment. 

Comment: One commenter suggested 

that the Ombudsman should have the 

authority to make autonomous hiring 

and firing decisions and should be 

solely responsible for determining the 

qualifications and positions necessary 

for the Ombudsman program to fulfill 

its mission. Without such a provision, 

the commenter indicated that States 

could significantly undermine the 

functions of the Ombudsman program 

by limiting who and what types of staff 

the Ombudsman is able to hire and 

retain. 

Response: The Act specifically gives 

the Ombudsman the authority to 

designate local Ombudsman entities and 

to designate representatives of the 

Office. Section 712(a)(5) of the Act. It 

does not, however, require an 

arrangement where representatives of 

the Office are directly hired or fired by 

the Ombudsman. In many States, local 

Ombudsman entities are hosted by an 

agency that is not the same agency that 

employs the Ombudsman. This 

arrangement is envisioned by the Act, 

not prohibited by it. In fact, the most 

frequently utilized organizational 

structure for Ombudsman programs is 

that the Office is organizationally 

located within or is attached to the State 

agency which contracts with agencies 

hosting local Ombudsman entities. 

In light of the Ombudsman 

responsibility to designate 

representatives of the Office, we 

encourage Ombudsmen and State 

agencies to develop policies and 

procedures that: (1) Coordinate the 

hiring and firing of individuals by 

agencies hosting local Ombudsman 

entities with the Ombudsman and (2) 

incorporate minimum qualifications. 

Such coordination will enable the 

Ombudsman to make designation and 

de-designation determinations in ways 

that are coordinated with the employing 

agency which hosts the local 

Ombudsman entity. 

In addition, we require Ombudsmen 

or State agencies, in this final rule, to 

develop policies and procedures 

regarding conflicts of interest in 

employing or appointing representatives 

of the Office. § 1327.11(e)(4)(ii). We 

have also added a new section regarding 

responsibilities of agencies hosting local 

Ombudsman entities at § 1327.17. 

D. Functions and Responsibilities of the 

State Long-Term Care Ombudsman 

(§ 1327.13) 

In § 1327.13, AoA provides 

clarification regarding the functions and 

responsibilities of the Ombudsman, as 

the head of the Office. 

Comment: Eight commenters 

indicated support for the proposed 

language in the proposed regulation 

§ 1327.13. Three of these commenters 

indicated that the language clearly 

describes the leadership role of the 

Ombudsman as the programmatic head 

of the Office. One commenter stated that 

the proposed language will identify the 

Ombudsman as responsible for the 

leadership and management of the 

Office. Three commenters stated that the 

language reflects the intent of Congress 

as set forth in the Act for the Office to 

be a unified entity. One commenter 

indicated that the language supports the 

concept that the Office speaks with one 

independent voice. One commenter 

indicated that they were pleased to see 

an emphasis on the independence of the 

Office in this proposed language. One 

commenter indicated that the proposed 

language is helpful in clarifying that 

there is only one State Long-Term Care 

Ombudsman in each State, critical in 

situations where there are agencies 

hosting local Ombudsman entities 

which hire, fire, and supervise the 

representatives of the Office who must 

look to the Ombudsman for designation 

and programmatic guidance. 

Response: We appreciate the 

supportive comments. 

Comment: One commenter indicated 

support for the proposed provisions in 

this section but indicated that there will 

be challenges in upholding them at the 

State level. The commenter indicated 

that the Ombudsman program benefits 

from being within the State agency and 

that the Federal funds appropriated 

under the Act are not adequate to permit 

the Office to stand on its own separate 

and apart from the State agency. The 

commenter indicated that AoA must 

increase funding for the Ombudsman 

program before implementing this rule 

because moving the Ombudsman out of 

the State agency would result in loss of 

State agency resources and access to 

State general funds to the Ombudsman 

program. 

Response: Nowhere in this rule does 

AoA require State agencies which 

operate the Ombudsman program 

directly to move the Office out of the 

State agency. In fact, a number of States 

house the Office within or attached to 

the State agency and successfully fulfill 

the functions required by the Act. To 

the extent that this comment refers to 

conflicts of interest that may be present 

within a State agency, we address these 

comments more fully in the discussion 

related to § 1327.21, below. AoA is 

available to provide technical assistance 

to help States to fully implement the 

requirements of the Act, regardless of 

the organizational placement of the 

Office. 

AoA appreciates that many States 

provide resources to supplement the 

Ombudsman program. As a result of 

these States’ commitment to this work, 

residents have improved access to 

ombudsman services. We fail to see how 

compliance with this rule would 

jeopardize any State’s ability to support 

the work of the Ombudsman program. 

Comment: One commenter suggested 

that AoA amend the proposed language 

in § 1327.13 to read ‘‘The Ombudsman 

. . . shall have independent 

responsibility for the leadership and 

management . . . .’’ 

Response: We find the proposed 

language sufficiently clear. Moreover, 

depending on the structure of the 

Ombudsman program, some 

management tasks (for example, 

personnel, contracting, bookkeeping, or 

budgeting processes) may be the 

primary responsibility of other parts of 

the agency in which the Office is 

organizationally located. We do not 

wish to create confusion by implying 

that the Ombudsman must perform or 

oversee all of these functions directly 

and independently. An Ombudsman 

may certainly rely on others to perform 

these important management processes 

and work cooperatively with others 

outside of the Office to carry out certain 

management functions. To require 

otherwise could require significant time 

and energy from the Ombudsman and 

take away from his or her ability to 

focus on the functions that benefit 

residents as required by the Act. 

Comment: One commenter 

recommended that we omit the language 

‘‘in coordination with the State’’ in 

§ 1327.13. The commenter indicated 

that there is no mention of coordination 

with the State agency in the list of 

Ombudsman functions in the Act at 

section 712(a)(3). In addition, using the 

word ‘‘coordination’’ only prolongs the 

enmeshing of the Ombudsman and the 


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Office with the State agency. The 

commenter contrasted the provision in 

section 712(a)(5)(B) of the Act related to 

local Ombudsman entities which are to 

act ‘‘in accordance with the policies and 

procedures of the Office and the State 

agency.’’ 

Response: The Act sets forth a grantee 

relationship between AoA and the State 

agency, making the State agency 

accountable to the AoA for the 

appropriate establishment and operation 

of the Ombudsman program. See 

Section 712(a)(1) of the Act. We believe 

that there must, therefore, be a 

coordinated relationship between the 

State agency and the Ombudsman in 

order for the State agency to be able to 

fulfill its responsibilities as grantee. We 

further believe that coordination is only 

successful if all involved parties take 

responsibility for its success. Therefore, 

we believe that coordination with the 

State agency should be a responsibility 

of the Ombudsman as well as of the 

State agency and have not adopted these 

recommendations. 

We have made a revision in the final 

rule, changing ‘‘State’’ to ‘‘State agency’’ 

to clarify that we are specifically 

referring to the State agency on aging as 

the AoA grantee. Should coordination 

with other State agencies be involved in 

carrying out the program, the rule 

directs the Ombudsman to coordinate 

with them as well. 

Comment: Two commenters 

recommended a new provision in 

§ 1327.13 that establishes criteria to be 

used when selecting a State 

Ombudsman. One of these commenters 

indicated a need for strict guidance 

related to qualifications and conflicts of 

interest in selecting the Ombudsman. 

Response: We have established 

minimum qualifications for the 

Ombudsman in a new provision at 

§ 1327.11(d). 

Comment: Two commenters 

recommended that the Ombudsman not 

be a political appointee. 

Response: The Act provides States 

with significant latitude in how an 

Ombudsman is selected within a 

particular State. In AoA’s experience, 

we have not seen, nor have we been 

presented with evidence of, a 

correlation between effective 

Ombudsman programs and the 

mechanism by which the Ombudsman 

in that State has been selected or 

appointed. 

While we have not prohibited 

political appointments in this rule, we 

do provide for minimum qualifications 

for the selection of an Ombudsman, in 

§ 1327.11(d), and clarify conflicts of 

interest considerations relative to the 

selection process in § 1327.21. 

Comment: One commenter 

recommended that criteria be used 

when firing an Ombudsman. They 

indicated that such criteria are the 

logical extension of the independence 

and anti-retaliation provisions in the 

OAA. They further indicated that, since 

the Act establishes the role of the 

Ombudsman as a potential critic of 

facilities and government agencies, if 

the governor or State agency head could 

fire the Ombudsman (or terminate the 

contract with the host agency) whenever 

they wish, the Ombudsman cannot truly 

be independent and a voice for 

residents, as opposed to a cautious 

appointee. 

Response: After careful consideration, 

we have decided against providing 

specific criteria regarding the firing of 

the Ombudsman. We believe that the 

clarifications provided by this rule 

related to the operation of the program; 

organizational and individual conflicts 

of interest; and freedom from 

interference, retaliation, and reprisals 

provide sufficient clarity to protect the 

Ombudsman from retaliation for 

performing the duties required by the 

Act. 

The Act specifically provides State 

agencies with significant latitude in 

determining whether to operate the 

program directly (and how to structure 

the program within or attached to the 

State agency) or operate it through 

contract or other agreement with 

another agency. Therefore, States have 

appropriately structured a wide variety 

of organizational placements for the 

Ombudsman and, as a result, there is 

wide variation among applicable laws 

impacting employment, labor, 

government contracting, and 

interagency agreements that may apply 

to the firing of an Ombudsman or the 

termination of a contract for the 

operation of the Office. AoA believes 

that developing criteria regarding firing 

might create confusion in the context of 

the wide variety of applicable legal 

requirements. 

However, AoA is aware that a number 

of employment arrangements and 

organizational structures have been 

developed to protect employees within 

other types of ombudsman programs, 

inspectors general, and other entities 

where independent oversight or 

consumer advocacy are required 

activities. Therefore, AoA plans to 

provide States with further guidance 

and technical assistance regarding 

employment provisions and structures 

which they may consider in further 

strengthening the ability of the 

Ombudsman to fulfill his or her 

functions under the Act. 

Comment: Ten commenters 

recommended that the proposed 

language in § 1327.13(a)(1) be revised to 

clarify that Ombudsman programs have 

authority to identify, investigate, and 

resolve complaints related to the 

actions, inactions, or decisions of 

guardians, legal representatives, family 

members, or other resident 

representatives. Some indicated that 

this should be a longer list of people 

whose actions may adversely impact a 

resident than merely guardians and 

representative payees. 

Response: We have maintained the 

statutory structure in the final rule at 

§ 1327.13(a)(1) regarding the types of 

entities which may be the object of 

Ombudsman program complaint 

investigation and resolution. See section 

712(a)(3)(A) of the Act. However, we 

agree with commenters that other types 

of resident representatives, beyond 

guardians and representative payees 

specifically indicated in the Act, should 

be specifically added to the rule. It is 

reasonable to include issues related to 

activities of powers of attorney agents, 

for example, among the actions that may 

adversely affect the health, safety, 

welfare, or rights of residents, consistent 

with the Congressional examples of 

guardians and representative payees. 

Therefore, we have changed the 

language of this provision to use the 

term ‘‘resident representative’’ which 

we have defined in the final rule at 

§ 1327.1, incorporating the categories of 

representatives indicated by the 

commenters. 

Comment: One commenter indicated 

that the Ombudsman for long-term care 

facility residents should serve on a fulltime basis and solely on behalf of such 

residents as required in the Act. The 

commenter questioned the capacity of 

the one individual to adequately serve 

as the Ombudsman for both long-term 

care facility residents and for home care 

consumers, while noting that these 

individuals need access to ombudsman 

services. In addition, the commenter 

indicated that the Ombudsman program 

should be funded adequately and fully 

funded for its current work before it 

expands into the home setting. 

Response: As the commenter correctly 

notes, the Act provides authority for the 

Ombudsman program to serve residents 

living in ‘‘long-term care facilities’’ as 

defined at OAA section 102(35) (i.e. 

nursing facilities, board and care homes, 

assisted living, and similar adult care 

facilities.) Congress has not chosen to 

authorize or fund Ombudsman program 

services to individuals receiving longterm supports and services in in-home 

settings or in non-residential settings 

such as adult day health centers. 


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States which choose to expand the 

Ombudsman program to serve 

individuals in settings beyond those 

provided for in the OAA are not 

prohibited from doing so. AoA has no 

objection to those States which choose 

to utilize resources other than those 

appropriated through the OAA to 

expand ombudsman services to 

individuals living in a variety of settings 

or receiving a variety of long-term 

services and supports. However, absent 

Congressional authorization for the 

Ombudsman program to expand its 

services to new settings, AoA does not 

believe that it has the authority to 

provide for such an expansion of service 

through this rule. 

We note that historically Congress 

changed the title of Nursing Home 

Ombudsman to Long-Term Care 

Ombudsman in the 1981 reauthorization 

of the OAA, expanding the service 

population to include residents of board 

and care residents and other similar 

adult care facilities. Then, in the 2006 

reauthorization, Congress clarified that 

the Ombudsman program service 

population includes residents of 

assisted living. However, Congress did 

not choose on either occasion to create 

separate ombudsman programs for these 

populations; instead, it choose to 

coordinate the efforts so that long-term 

care facility residents in a variety of 

residential settings had access to the 

services of the Long-Term Care 

Ombudsman program. In addition, AoA 

has long held that States are not 

prohibited from using OAA funds to 

support Ombudsman services to 

younger residents of long-term care 

facilities, even though the Act is 

designed to primarily benefit 

individuals over age 60. AoA Program 

Instruction 81–8. 

Many of the individuals who would 

have lived in nursing homes in previous 

decades now live and receive long-term 

services and supports in a variety of 

other settings. Many of the long-term 

services and supports issues that impact 

individuals in one long-term care setting 

relate to individuals receiving services 

in other settings. Much of the expertise 

and experience of the Ombudsman and 

representatives of the Office is relevant 

to individuals receiving long-term 

services and supports in a variety of 

settings. Therefore, we believe there is 

good reason for a State to support this 

coordinated approach to serve 

individuals receiving long-term services 

and supports, regardless of setting, 

through the Long-Term Care 

Ombudsman program. 

The discussion regarding an 

Ombudsman serving on a full-time basis 

is found above related to § 1327.11(c). 

Comments: Two commenters 

indicated that the scope of complaint 

investigations indicated in 

§ 1327.13(a)(1) should include 

complaints regarding a representative of 

the Ombudsman program. 

Response: Section 1327.13(a)(1) 

describes functions of the Ombudsman 

program to benefit long-term care 

facility residents. These complaints are 

reported to the National Ombudsman 

Reporting System, and inform AoA, 

States and other entities regarding 

issues facing residents and Ombudsman 

program services to resolve problems for 

residents. These complaints related to 

the resident’s experience within a longterm care facility are qualitatively 

different than grievances regarding 

fulfillment of duties by a representative 

of the Office. 

While we have not revised this 

provision, we have included, in the 

final rule, a new provision at 

§ 1327.11(e)(7), to require the 

establishment of a grievance process 

within the Ombudsman program so that 

individuals served by the Ombudsman 

program have a clear process for filing 

a grievance, having their concern 

investigated, and receiving a response to 

the grievance. We note that some States 

already have such processes in place. 

Comments: Three commenters 

indicated that the scope of complaint 

investigations indicated in 

§ 1327.13(a)(1) should include 

complaints related to interference with 

a representative of the Ombudsman 

program. Two commenters indicated 

that the scope of complaint 

investigations indicated in 

§ 1327.13(a)(1) should include 

complaints regarding retaliation against 

any person who cooperates with the 

Ombudsman program. 

Response: Complaints related to 

interference with the work of a 

representative of the Office or to 

retaliation for cooperating with the 

Ombudsman program are qualitatively 

different from the types of residentrelated complaints described in 

§ 1327.13(a)(1). We have added 

provisions related to protection from 

interference, reprisals and retaliation in 

§ 1327.15(i). 

Comment: One commenter suggested 

that we consider expanding complaint 

resolution work to include individuals 

who receive services from home care, 

hospice and Program for All-Inclusive 

Care for the Elderly (PACE) programs. 

Another commenter asked whether 

individuals who receive such services 

are included within the list of 

individuals to be served with complaint 

resolution services pursuant to 

§ 1327.13(a)(1). 

Response: As noted above, the OAA 

provides authority for the Ombudsman 

program to serve residents living in 

‘‘long-term care facilities’’ (i.e. nursing 

facilities, board and care homes, 

assisted living, and similar adult care 

facilities). Congress has not chosen to 

authorize or fund ombudsman services 

to individuals receiving long-term 

supports and services in in-home 

settings or in non-residential settings. 

Absent authorization for the 

Ombudsman program to expand its 

services to new settings, AoA does not 

believe that it has the authority to 

provide for such an expansion of service 

through this rule. 

Comment: One commenter suggested 

clarifying that the Ombudsman function 

of informing residents about the means 

of obtaining services does not duplicate 

work done by other OAA-funded 

programs or by Aging and Disability 

Resource Centers (ADRCs). 

Response: We agree that the Act’s 

requirement that the Ombudsman 

inform residents about means of 

obtaining services does not duplicate 

the work of other OAA programs, 

including those providing information 

and assistance services, defined in 

section 102(a)(28) of the Act, or ADRCs, 

defined in section 102(a)(4) of the Act. 

While we agree with the comment that 

this provision does not create 

duplication of services, we do not agree 

that such an explanation needs to be 

incorporated into the final rule. 

However, we have added the ADRC as 

an entity with which the Ombudsman 

must coordinate, in the final rule at 

§ 1327.13(h), to enhance collaboration 

and reduce any risk of duplication. 

Comments: Two commenters 

recommended language to enhance the 

independence of the Ombudsman in 

describing the functions in § 1327.13(a). 

Response: We believe that we have 

adequately addressed the independence 

of the Ombudsman in other provisions 

of this rule. 

Comments: Two commenters 

suggested incorporation of language in 

§ 1327.13(a)(3), requiring the 

Ombudsman to inform residents of the 

services provided by the protection and 

advocacy system. 

Response: As ACL administers funds 

to States for protection and advocacy 

systems, we are aware that these 

systems provide critically important 

services, as do an array of other entities 

which are also not mentioned in this 

provision. We are choosing to retain the 

broad description in the rule regarding 

the function of the Ombudsman to 

‘‘inform residents about means of 

obtaining services provided by 

providers or agencies,’’ rather than 


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singling out any particular entity or 

service provider. We note that the final 

rule requires the Ombudsman to 

coordinate with protection and 

advocacy systems at § 1327.13(h)(4). 

Comments: Three commenters 

suggested a need for additional 

guidance or definition of ‘‘regular 

access’’ in § 1327.13(a)(4), indicating 

that the presence of a representative of 

the Office in facilities is critical for 

ensuring resident access, and 

recommending at least quarterly visits 

to each facility as a minimum standard. 

Response: Currently there is wide 

variation among States’ Ombudsman 

programs in providing ‘‘regular visits.’’ 

For example, in 2012, Ombudsman 

programs in 10 States reported regular 

visits to 100% of all facilities, but, in 

three States, the Ombudsman program 

reported making regular visits to fewer 

than 10% of facilities. ACL, National 

Ombudsman Reporting System. (Note 

that, for reporting purposes, AoA asks 

Ombudsmen to report on the number of 

facilities that received ‘‘regular visits’’ at 

least once per quarter.) 

We encourage Ombudsman programs 

to provide residents with access to the 

Ombudsman program through, among 

other means, regular visits to facilities. 

However, we believe creating one 

national minimum standard for visits to 

facilities would be unrealistic, given the 

extremely different variables among 

States. While some in some States, 

Ombudsman programs are able to make 

weekly or monthly visits to many 

facilities because they have the 

volunteer and/or employee capacity to 

do so, in other States, Ombudsman 

programs are unable to make even 

quarterly visits. Ombudsman programs 

face significant variables such as 

program resources (including funding, 

staff, volunteers), geographic 

distribution of facilities, geographic 

distribution of staff and/or volunteers, 

as well as means of and cost of 

transportation (while most programs are 

able to visit facilities using automobiles 

or public transportation, others must 

use airplanes or boats to reach some 

facilities). 

Some Ombudsman programs have 

minimum standards related to 

frequency of these visits that are 

responsive to the variables in that State. 

We strongly encourage development of 

minimum standards to provide 

consumers, providers, and others with 

an expectation of the frequency of 

regular visits. We note that standards 

also provide an important mechanism 

for Ombudsman program accountability. 

We are available to provide technical 

assistance regarding development of 

such standards. 

We also encourage Ombudsman 

programs and States to consider, in 

developing minimum standards, that 

providing ‘‘regular access’’ requires 

more than providing visits to facilities 

by representatives of the Office. 

Ombudsman programs should be easily 

accessible to residents, complainants, 

and others—including individuals with 

limited English proficiency—because, 

among other things, they have multiple 

methods of communication available to 

the public (such as telephone, email, 

facsimile, Web site, TTY (text 

telephone) and other communication 

services, and mail, as well as in-person 

visits). 

Comments: One commenter suggested 

the need for a national standard on what 

constitutes ‘‘timely access’’ in 

§ 1327.13(a)(4). 

Response: The Act requires the 

Ombudsman to ensure that residents 

have timely access to the services of the 

Office. Section 712(a)(3)(D) of the Act. 

We interpret this provision to mean that 

a resident or other individual who 

reaches out to the Ombudsman program 

is able to communicate with the 

program to file a complaint or otherwise 

make a request in a reasonably prompt 

manner. Timely access is provided, for 

example, when the Ombudsman 

program returns telephone calls or 

emails in a reasonably prompt manner 

and a resident request for an in-person 

discussion with a representative of the 

Office is met in a reasonably prompt 

manner. 

We believe creating one national 

minimum standard for timely access 

would be unrealistic, given the 

extremely different variables among 

States, as described in the response to 

‘‘regular access,’’ above. We note that 

some States have developed standards 

related to timely access, such as 

indicating maximum time frames in 

which representatives of the Office must 

return telephone or email messages. We 

strongly encourage the development of 

minimum standards to provide 

consumers, providers and others with 

an expectation of what constitutes 

timely access. 

We note that the Act and this rule also 

require that ‘‘residents and 

complainants receive timely responses 

from representatives of the Office to 

complaints,’’ distinguished from 

‘‘timely access.’’ After a resident has 

received access and the opportunity to 

file a complaint, the ‘‘timely response’’ 

requirement envisions that a response 

(for example, initiating a complaint 

investigation) is done in a reasonably 

prompt manner. Some States have 

developed standards of promptness 

related to complaint response that are 

responsive to the realities in that State. 

Again, we strongly encourage the 

development of minimum standards to 

provide consumers, providers and 

others with an expectation of what 

constitutes a timely response to a 

complaint. 

Comment: Two commenters requested 

additional clarification of 

§ 1327.13(a)(5) related to the statutory 

and proposed regulatory language 

requiring the Ombudsman to ‘‘seek 

administrative, legal, and other 

remedies to protect the health, safety, 

welfare and rights of the residents.’’ One 

of these commenters recommended that 

AoA add language to clarify that this 

requirement should include 

‘‘representation in administrative fair 

hearings, before legislative bodies, and 

on behalf of residents before judicial 

forums.’’ This commenter indicated that 

this suggested language would clarify 

that the Ombudsman program would be 

able to go to court on behalf of a 

resident. 

Response: We agree with the 

commenters that the term used in the 

statutory and proposed regulatory 

language requiring the Ombudsman to 

‘‘seek administrative, legal, and other 

remedies’’ would benefit from further 

clarity. We note that this provision also 

relates to section 712(g)(2) of the Act 

which requires that the ‘‘State agency 

shall ensure that . . . the Office pursues 

administrative, legal, and other 

appropriate remedies on behalf of 

residents.’’ 

In the final rule we have replaced the 

term ‘‘seek’’ in order to clarify that the 

Ombudsman is required to assure that 

individual residents have access to and 

is required to pursue remedies, with a 

goal of protecting the health, safety, 

welfare and rights of residents. See 

§ 1327.13(a)(5). 

We do not agree with the commenter 

that the Ombudsman program should be 

required to provide legal representation 

of individual residents in administrative 

fair hearings or before courts. An 

ombudsman service is first and foremost 

a conflict resolution service and not a 

legal service. The primary role of any 

ombudsman (not only a Long-Term Care 

Ombudsman) is to investigate and 

resolve complaints, whether on an 

individual or systemic level. 

While we are aware of a few examples 

of States which have in-house legal 

counsel available (or which retain an 

attorney directly) to represent 

individual residents, these are 

exceptional arrangements. More often, 

Ombudsman programs have developed 

referral relationships with not-for-profit 

legal services providers and/or maintain 

lists of referral options of law offices 


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with relevant expertise so that they are 

able to assist residents in accessing 

appropriate legal representation when 

needed. We do not intend to prohibit inhouse legal counsel representation of 

individual residents by the Ombudsman 

program, where a State provides this 

service, but rather we are 

acknowledging that this activity is 

currently the exception among States in 

their operation of the Ombudsman 

program. We also do not intend to 

prohibit a representative of the Office 

from serving as a spokesperson for a 

resident in an administrative hearing as 

provided in 42 CFR 431.206(b)(3). 

We have addressed the issue of legal 

counsel for the Ombudsman program 

more fully in a new provision at 

§ 1327.15(j) and in the related 

discussion found below. 

Comment: One commenter indicated 

that most Ombudsman programs are not 

adequately equipped to undertake the 

requirement to pursue ‘‘administrative, 

legal, and other remedies.’’ 

Response: We note that this is not a 

new requirement, but has long been 

required by the Act at section 

712(a)(3)(D) and (g)(2). Our intent in 

finalizing this rule is to help provide 

additional clarity around this 

expectation. To further clarify the 

meaning of § 1327.13(a)(5), we provide 

the following examples of ways States 

can fulfill this requirement: 

1. Ombudsman assures individual 

resident access to an administrative 

remedy: A resident receives an 

involuntary discharge notice that 

provides a notice of right to a fair 

hearing. The Ombudsman makes sure 

the resident knows how to request the 

hearing and is informed of available 

supports to make sure his/her interests 

are represented in the process. The 

Ombudsman program could, for 

example, refer the resident to a nonprofit legal services program to file the 

appeal and represent the resident 

interests at the hearing, or provide inhouse legal counsel to represent the 

resident, and/or provide a 

representative of the Office to 

accompany the resident to the hearing 

as emotional support. Alternatively, a 

representative of the Office could serve 

as a spokesperson for a resident in a 

hearing as provided in 42 CFR 

431.206(b)(3). 

2. Ombudsman assures individual 

resident access to a legal remedy: A 

resident wishes to have a power of 

attorney revoked to remedy financial 

exploitation by agent. The Ombudsman 

could, for example, refer the resident to 

a non-profit legal services program to 

provide legal advice to the resident and 

to execute the revocation of the power 

of attorney, or provide in-house legal 

counsel to provide legal advice to the 

resident and to execute the revocation of 

the power of attorney, and/or provide 

protocols to representatives of the Office 

regarding what actions could be taken 

directly by the representative consistent 

with State laws relating to revocations 

of powers of attorney and avoiding the 

unauthorized practice of law. 

3. Ombudsman pursues an 

administrative remedy to protect 

resident interests: The Ombudsman 

advocates before State-level policy 

makers to create a fair hearing process 

where the State that lacks a fair hearing 

process for involuntary transfer or 

discharge of nursing home residents (as 

required in Federal regulation at 42 CFR 

431.200 et seq.) or for board and care/ 

assisted living residents (as regulated 

under State law). 

4. Ombudsman pursues a legal 

remedy to protect resident interests: The 

Ombudsman program serves as the 

Patient Care Ombudsman in a long-term 

care facility bankruptcy filing pursuant 

to the Federal Bankruptcy law. 

5. Ombudsman pursues a legal 

remedy to protect resident interests: The 

Ombudsman program files a mandamus 

action against the State, representing the 

collective interest of residents, to ask a 

court to require the State to enforce its 

regulatory requirements related to longterm care facilities. 

The above examples are some of the 

many possible ways that Ombudsman 

programs can, and currently do, fulfill 

this requirement. We are available to 

provide technical assistance to States to 

assist them in further meeting the 

requirements of § 1327.13(a)(5). 

Comment: One commenter indicated 

the importance of the language in 

§ 1327.13(a)(5) related to assisting 

residents who face end-of-life decisions, 

indicating the important role of the 

Ombudsman program in assisting 

residents so that their wishes, as 

expressed in advance directives, are 

adhered to. 

Response: We appreciate the 

comment and note that Ombudsman 

program support for residents related to 

end-of-life decision-making is yet 

another example of ways that 

Ombudsman programs can, and 

currently do, fulfill the requirements of 

§ 1327.13(a)(5). 

Comment: One commenter 

recommended language defining 

adequate legal representation in 

§ 1327.13(a)(5). 

Response: We have added a new 

provision related to legal counsel at 

§ 1327.15(j) and have addressed this 

recommendation in the comments 

related to that provision below. 

Comment: Three commenters 

suggested that this provision include a 

requirement for, and/or a reference to, 

collaboration with the protection and 

advocacy system. One of these 

commenters indicated that such 

collaboration can be an efficient and 

cost-effective way for the Ombudsman 

program to meet this mandate. 

Response: While we have chosen not 

to specifically include protection and 

advocacy systems within this regulatory 

provision, ACL is committed to 

continuing to provide training and other 

support for Ombudsman programs 

related to appropriate referrals of 

resident issues to protection and 

advocacy systems. The final rule 

requirement for the Ombudsman to 

coordinate with protection and 

advocacy systems at § 1327.13(h) further 

supports this intent. 

Comment: Three commenters 

indicated support for the proposed 

language of § 1327.13(a)(7). One of the 

commenters stated that the proposed 

language makes clear that Ombudsmen 

have authority for systemic advocacy, 

indicating that many Ombudsmen are 

restricted currently from taking systemic 

advocacy actions (such as 

communications with legislators, 

policymakers or the media) at all or 

without prior approval from the agency 

in which the Ombudsman is 

organizationally located. 

Response: We appreciate the 

supportive comments. We note that 

AoA is creating no additional 

requirements in this provision. Both the 

final rule and the proposed language are 

identical to the language that has long 

been in the Act. However, it is our hope 

that the final rule in its entirety will 

provide the clarity needed to enable 

Ombudsman programs to more 

adequately fulfill this function. 

Comment: One commenter 

recommended a separate paragraph be 

added to the final language of 

§ 1327.13(a)(7) to focus on consumer 

protection issues. 

Response: We believe that consumer 

protection issues fall within the 

purview of this provision, which 

provides for the Ombudsman program 

to make recommendations, and take 

other actions related to governmental 

policies and actions that pertain to ‘‘the 

health, safety, welfare and rights of 

residents.’’ Therefore, we do not believe 

that additional language is necessary to 

provide the Ombudsman program with 

this authority. 

Comment: Five commenters 

recommended that we add specific 

guidance regarding training 

requirements for certified 

representatives of the Office in the final 


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rule. Two commenters recommended 

sub-regulatory guidance related to 

training requirements. One commenter 

indicated that budgetary constraints 

have resulted in inadequate training of 

representatives of the Office in their 

State. Without consistent access to 

quality training, the commenter stated, 

the Ombudsman program is hampered 

in its ability to achieve positive 

outcomes for residents and the 

Ombudsman is hampered in his or her 

ability to advocate for resident interests 

on a policy level. 

Response: We appreciate the 

importance of consistent access to 

quality training by the Ombudsman and 

representatives of the Office. In 

§§ 1327.13(c)(2) and 1327.15(c) of the 

final rule, we have clarified 

requirements related to training, 

including requiring State agencies to 

provide opportunities for training for 

the Ombudsman and representatives of 

the Office in order to maintain expertise 

to serve as effective advocates for 

residents. Further, we clarify that State 

agencies may utilize funds appropriated 

under Title III and/or Title VII of the Act 

in order to provide access to such 

training opportunities. 

While AoA has not incorporated 

training standards into this rule, it 

intends to develop training standards 

for the Ombudsman program. In the 

meantime, we recommend that 

Ombudsman programs refer to the AoAfunded National Ombudsman Resource 

Center for training resources and a core 

curriculum designed for certification 

training of representatives of the Office. 

Comment: Two commenters indicated 

concern with the use of the term 

‘‘citizen organizations.’’ They indicated 

that the word ‘‘citizen’’ might 

mistakenly imply reference to United 

States citizenship. One of the 

commenters suggested that the term 

should be ‘‘consumer organizations’’ or 

‘‘resident and family organizations.’’ 

Response: We do not interpret the 

statutory requirement for the 

Ombudsman to ‘‘promote the 

development of citizen organizations’’ 

(at section 712(a)(3)(H) of the Act) to 

imply that the need for participants of 

such organizations must be determined 

to be United States citizens. We do not 

agree that a different term than that 

provided by Congress is necessary, as 

the commonly defined use of the word 

‘‘citizen’’ is not limited to the context of 

national citizenship. According to the 

Merriam Webster Dictionary, definitions 

for ‘‘citizen’’ include ‘‘an inhabitant of 

a city or town’’ and ‘‘a civilian as 

distinguished from a specialized servant 

of the state.’’ We believe that ‘‘consumer 

organizations’’ and ‘‘resident and family 

organizations’’ (alternative terms 

suggested by a commenter) are clearly 

included within the meaning of the 

broader term ‘‘citizen organization’’ 

used in the statute and in the final rule 

at § 1327.13(a)(8). 

Comment: Three commenters 

recommended that we eliminate the 

words ‘‘to participate in the program; 

and’’ from proposed language at 

§ 1327.13(a)(8)(ii). Two of the 

commenters indicated that this phrase 

could be misinterpreted to mean that 

the Ombudsman only develops or works 

with citizen organizations which work 

under the direct control of the 

Ombudsman program. 

Response: While we are unfamiliar 

with the existence of any citizen 

organizations which work under the 

direct control of the Ombudsman 

program, we agree that this language 

could lead to confusion. In addition, we 

read the corresponding language in the 

Act regarding participation in the 

program as support for coordination 

between the Ombudsman program and 

citizen organizations. Section 

712(a)(3)(H) of the Act. Therefore we 

have revised the language in the final 

rule to require the Ombudsman to 

‘‘[c]oordinate with and promote the 

development of citizen organizations 

consistent with the interests of 

residents.’’ § 1327.13(a)(8). 

Comment: One commenter indicated 

that ‘‘citizen organization’’ should be 

inclusive of family councils. 

Response: While we agree that the 

term ‘‘citizen organizations’’ could be 

inclusive of groups consisting of or 

representing family members, we have 

not made a change to the final rule. 

Family councils are more specifically 

addressed at § 1327.13(a)(9). 

Comment: Two commenters 

recommended that we add the language 

‘‘actively promote’’ to the provision 

related to the Ombudsman 

responsibilities towards resident and 

family councils. The commenters 

indicated that some family members do 

not know what a family council is or 

how it can be formed and, therefore, 

need support and encouragement to join 

or create a family council. Further, the 

commenters indicate that to require the 

Ombudsman to ‘‘promote’’ family 

councils would make the Ombudsman 

work with family councils more 

consistent with the requirement to 

‘‘promote’’ citizen organizations. 

Response: We agree that it is 

appropriate for the Ombudsman to be 

responsible to promote the development 

of resident and family councils, similar 

to the requirement to promote citizen 

organizations, as required by 

§ 1327.13(a)(8). We have made the 

corresponding amendment at 

§ 1327.13(a)(9). 

Comment: Two commenters suggested 

language regarding Ombudsman duty to 

ensure the ability of resident and family 

councils to exercise their rights under 

Federal law. The commenters indicated 

that resident and family councils can be 

fragile entities that need support in the 

formation period as well as ongoing 

support. 

Response: We agree that Ombudsman 

program support to resident and family 

councils can be important to protect 

councils’ rights under Federal law and 

to enhance their ongoing effectiveness. 

We believe the final rule adequately 

describes the Ombudsman 

responsibility to promote and provide 

technical support for the development 

of resident and family councils and is 

inclusive of Ombudsman program 

support for resident and family councils 

in the exercise of the rights provided to 

them by Federal law. Therefore, we do 

not see a need to further revise this 

provision as recommended. 

Comment: One commenter 

recommended adding language to 

support the maintenance or 

continuation, not merely the 

development of, resident and family 

councils. 

Response: We agree with the 

comment that it is appropriate for the 

Ombudsman program to be available to 

provide support to resident and family 

councils after they have been 

developed. However, given that resident 

and family councils should be led by 

residents and family members, 

respectively, and that AoA wishes to 

honor the autonomy of these councils, 

we indicate, at § 1327.13(a)(9), that this 

support is to be provided as requested 

by the council. 

Comment: One commenter requested 

that we add a definition of family 

council to include past family members 

and that we provide reference to the 

Centers for Medicare and Medicaid 

Services (CMS) regulations regarding 

‘‘family groups.’’ 

Response: Terms such as ‘‘family 

councils’’ and ‘‘family groups’’ may be 

defined by relevant State licensure 

regulations governing long-term care 

facilities. CMS regulations governing 

nursing facilities set out various rights 

for ‘‘resident groups’’ and ‘‘family 

groups’’ in such facilities, which are set 

out at 42 CFR 483.15(c). See also CMS 

Pub. 100–01, State Operations Manual, 

Appendix PP. Our intent in this rule is 

to clarify AoA’s expectation of the 

Ombudsman program where such 

family councils or family groups exist, 

regardless of how they are defined by 


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the laws or regulations governing 

facilities. 

Comment: One commenter 

recommended that someone from the 

Ombudsman program should speak to 

all family members and residents at an 

annual event focused on increasing 

awareness of resident and family 

councils and how they affect quality of 

care. 

Response: We believe that the final 

rule permits this strategy within the 

Ombudsman function to ‘‘promote, 

provide technical support for the 

development of, and provide ongoing 

support as requested by resident and 

family councils.’’ § 1327.13(a)(9). 

However, we do not believe it is 

advisable for AoA to specify which 

strategies an Ombudsman should 

pursue to fulfill this function. This may 

be a very successful strategy, but there 

may be other strategies that an 

Ombudsman may wish to employ. 

Comment: Seven commenters 

indicated support for the proposed 

language in § 1327.13(b) requiring that 

the Ombudsman ‘‘oversee a unified 

statewide program.’’ One of these 

commenters indicated that this language 

is important to ensure effective, 

efficient, and consistent Ombudsman 

services throughout the country. Two of 

these commenters indicated that the 

proposed language clarifies that 

representatives of the Office are 

accountable to the Ombudsman 

regarding Ombudsman program duties; 

providing clarity for representatives of 

Office and local Ombudsman entities. 

Another commenter indicated that the 

proposed language recognizes the need 

for coordination and unity among 

operations at state and local levels, with 

the Ombudsman as the leader of the 

coordinated effort. 

Response: We appreciate the 

supportive comments. 

Comment: One commenter 

recommended that we add language 

indicating that representatives of the 

Office shall act ‘‘in accordance with the 

policy and procedures of the Office and 

the State agency’’ as set forth in Section 

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

Response: The provisions of § 1327.13 

specifically focus on the functions of the 

Ombudsman. The duties of the 

representatives of the Office are 

enumerated in § 1327.19. The 

recommended language is found at 

§ 1327.19(a). 

Comment: Twelve commenters 

indicated support for the proposed 

language in § 1327.13(c) regarding the 

Ombudsman responsibility for 

designation and de-designation of local 

Ombudsman entities and 

representatives of the Office. One of the 

commenters described the proposed 

language as an accurate and logical 

interpretation of the Ombudsman’s 

authority, indicating that the authority 

to de-designate is the only logical 

reading of the Ombudsman’s authority 

to designate a representative, and 

comparing this to the understanding 

that informed consent includes the right 

to say no (i.e. informed refusal). This 

commenter went on to say that, if 

another entity had the authority to dedesignate an Ombudsman 

representative, then the Ombudsman 

would no longer be able to designate 

that individual, which is clearly 

contrary to the Act. 

Another commenter indicated that the 

proposed language clarifies that the 

Ombudsman can de-designate a 

representative of the Office who may 

not be appropriate for the role. Two 

commenters indicated support for the 

clarification that the Ombudsman has 

the sole authority to designate and dedesignate representatives of the Office 

since the Act does not clearly indicate 

where authority for de-designation 

resides and indicated that the 

clarification will significantly improve 

the ability of the Ombudsman to meet 

program requirements. One commenter 

described the proposed language as an 

important clarification, essential to 

ensure the strength and integrity of the 

program. 

Response: We appreciate the 

supportive comments. 

Comment: One commenter asked 

whether this provision permits the 

Ombudsman to override the decision of 

an AAA to terminate an employee. 

Another commenter indicated concerns 

regarding lines of responsibility since, 

in the commenter’s State, 

representatives of the Office are 

employees of AAAs who provide direct 

oversight and monitoring of their 

employees. 

Response: This provision is not 

intended to provide the Ombudsman 

with authority to override a personnel 

decision made by any other entity. 

However, we do expect that 

Ombudsmen who designate AAAs or 

other entities to operate as local 

Ombudsman entities have procedures in 

place to clearly delineate how the 

Ombudsman responsibilities to 

designate, or to refuse, suspend or 

remove designation of, representatives 

of the Office are coordinated with the 

personnel decisions of the agency 

hosting the local Ombudsman entity. A 

number of States have developed 

procedures to address this question, and 

we are available to provide States with 

technical assistance as needed. 

Comment: Four commenters 

suggested that the Ombudsman be 

required to have policies, protocols, 

and/or criteria in place regarding 

designation and de-designation actions 

to which the Ombudsman should be 

held accountable. 

Response: We have adopted this 

recommendation by adding a new 

provision to § 1327.11(e)(6) requiring 

procedures which set forth the criteria 

and process implementing the 

Ombudsman responsibility to designate, 

or to refuse, suspend or remove 

designation, of representatives of the 

Office and local Ombudsman entities. 

We recognize that many States already 

have such procedures in place. In 

addition, the grievance process required 

by § 1327.11(e)(7) can be utilized by any 

individual or entity with reason to 

believe that the procedures were not 

adhered to by the Ombudsman. 

Comment: One commenter 

recommended that we add definition or 

guidance regarding the term 

‘‘designation’’ and that we distinguish 

between the term ‘‘designation’’ and the 

term ‘‘certification.’’ 

Response: We do not agree that a 

definition of ‘‘designation’’ is needed, as 

we believe the commonly defined use of 

these terms is sufficient to explain their 

use. According to the Merriam Webster 

Dictionary, to ‘‘certify’’ means ‘‘to say 

officially that something or someone has 

met certain standards or requirements’’ 

and ‘‘designation’’ means ‘‘appointment 

to or selection for an office, post, or 

service.’’ 

Comment: One commenter 

recommended that we add to 

§ 1327.13(c) language clarifying that the 

local Ombudsman entity must be a 

public or non-profit private entity as 

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

Response: We believe this 

recommendation adds additional clarity 

consistent with the Act and have made 

the recommended revision. 

Comment: One commenter 

recommended that we include the word 

‘‘independently’’ to describe the 

designation authority of the 

Ombudsman. 

Response: We believe that the final 

rule is sufficiently clear that the 

Ombudsman has sole authority for 

designation and de-designation of local 

Ombudsman entities and 

representatives of the Office. 

Comment: Two commenters 

recommended the need for a fair hearing 

process or appeal procedures for 

situations in which a representative of 

the Office is de-designated for good faith 

performance of their duties. One of 

these commenters recommended that 

representatives of the Office should 


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have an opportunity to appeal to AoA 

or that appeals be heard by an 

independent entity mutually selected by 

parties to the appeal. 

Response: We have added a 

requirement that Ombudsman program 

policies include the criteria and process 

for de-designation at § 1327.11(e)(6). In 

addition, we have added a grievance 

process requirement in § 1327.11(e)(7) 

to address situations where an 

opportunity for review of an 

Ombudsman action or determination is 

warranted. Given that the Ombudsman 

has the sole authority responsibilities to 

designate, or to refuse, suspend or 

remove designation, of representatives 

of the Office, we do not agree that it is 

appropriate for AoA or another entity to 

override the designation decisions of the 

Ombudsman. However, we do believe 

that it is appropriate for there to be a 

process in which another entity or 

person reviews the grievance and makes 

recommendations to the Ombudsman 

for his or her re-consideration related to 

his or her decision to designate, or to 

refuse, suspend or remove designation. 

Comment: One commenter indicated 

that in their State, Ombudsman program 

volunteers are appointed by county 

commissioners, not designated by the 

Ombudsman. As a result, when a 

volunteer does not appropriately 

perform programmatic duties, the 

appointing authority—and not the 

Ombudsman—has the only authority to 

remove the volunteer from this role. 

Response: We appreciate the 

commenter bringing this issue to our 

attention in the comment. The Act is 

clear that the Ombudsman has the 

authority to designate representatives of 

the Office. OAA section 712(a)(5). 

Further, this rule clarifies that the 

Ombudsman has the sole authority to 

designate and to refuse, suspend or 

remove designation, of representatives 

of the Office. § 1327.13(c). AoA plans to 

assist to States in coming into 

compliance with this rule. 

Comment: Six commenters indicated 

support for the proposed language 

related to Ombudsman approval of local 

Ombudsman entity plans or contracts 

related to Ombudsman program 

operations in § 1327.13(d). One of these 

commenters indicated that this 

provision is critical in establishing a 

clear understanding among all parties 

regarding expectations of the local 

Ombudsman entities. Another indicated 

strong support, saying that the 

Ombudsman needs this authority to 

coordinate an effective program. 

Another indicated that the proposed 

language is critical in order to manage 

a unified statewide program. One 

commenter appreciated that the 

proposed language recognizes and 

supports meaningful input of 

Ombudsmen into area plans on aging as 

they relate to Ombudsman services. 

Response: We appreciate the 

supportive comments and note that the 

relevant provisions are in newly 

numbered § 1327.13(c). 

Comment: Two commenters 

recommended the removal of the 

parenthetical ‘‘(in coordination with the 

State agency)’’ in § 1327.13(d) in order 

to bolster the Ombudsman’s autonomy. 

The commenters indicated that the 

Ombudsman must have final right of 

approval for any Ombudsman program 

plans, contracts, or other agreements. 

Response: We disagree with this 

recommendation. The OAA establishes 

the Ombudsman program through grants 

to State units on aging. The most 

common model used in States is where 

the State agency directly operates the 

Office of the State Long-Term Care 

Ombudsman and contracts with AAAs 

for an array of services, including, but 

not limited to, operation of a local 

Ombudsman entity. In fact, the Act 

utilizes this aging network structure as 

the basis for the vast majority of 

programs and services provided through 

the Act. 

Although the Act specifically 

provides the option for the State agency 

to determine where the Office is to be 

organizationally located, there is no 

prohibition from using the aging 

network structure to also operate the 

Ombudsman program at state and local 

levels. Further, there is no prohibition 

from incorporating the Ombudsman 

program allocations and requirements 

into the standard contracts between the 

State agency and the AAAs, nor a 

prohibition from incorporating 

Ombudsman program activities into the 

area plans on aging of AAAs. 

When this model is utilized, close 

coordination between the Ombudsman 

and the State agency is absolutely 

critical to its success. There must be 

parallel and coordinated processes so 

that the Ombudsman retains the 

statutory ability to designate (or refuse, 

suspend, or remove designation of) 

AAAs or their subcontractors as local 

Ombudsman entities and employees 

and volunteers of AAAs or their 

subcontractors as representatives of the 

Office. Simultaneously, the State agency 

must retain its ability fulfill all of its 

duties under the Act and applicable 

State law. 

Comment: One commenter 

recommended that representatives of 

the Office be consulted in the 

development of all Ombudsman 

program-related policies, procedures, 

positions and reports, including 

establishment of area plans. 

Response: We agree that consultation 

with representatives of the Office can 

add significant value to the 

development of program-related policies 

and procedures. Therefore, we have 

incorporated a revision to § 1327.11(e) 

which requires the Ombudsman or State 

agency, in developing policies and 

procedures, to consult with the 

representatives of the Office. 

We disagree with the 

recommendation to require the 

Ombudsman to consult with 

representatives of the Office for all 

positions and reports. Instead, we 

believe the benefit of such consultation 

should be left to the discretion of the 

Ombudsman or to relevant Ombudsman 

program policies and procedures. 

With respect to area plans, the final 

rule requires that, where applicable, the 

State agency shall require inclusion of 

goals and objectives of local 

Ombudsman entities into area plans on 

aging. § 1327.15(g) 

Comment: One commenter indicated 

that the proposed language would result 

in a cumbersome process related to area 

plan approval. 

Response: We are aware of a number 

of States which have successfully 

developed procedures that provide for 

Ombudsman review and approval of 

area plans as they relate to Ombudsman 

program operations. We are available to 

provide States with technical assistance 

as needed to implement this provision. 

Comment: One commenter indicated 

that the proposed language could be 

interpreted to require the Ombudsman 

to review every contract to which the 

local Ombudsman entity is a party, 

which would be a waste of resources. 

Response: Our intent is to provide the 

Ombudsman with the opportunity to 

review and approve those plans or 

contracts which establish the local 

Ombudsman entity and provide 

parameters governing the operation of 

the Ombudsman program, but not to 

require the Ombudsman to review every 

contract to which the agency hosting the 

local Ombudsman entity is a party. 

To clarify this intent, we have revised 

§ 1327.13(c) to indicate that this 

requirement only applies to those 

contracts which govern the local 

Ombudsman program. We have also 

clarified through a new § 1327.17, and 

in other places in the final rule, that the 

agency hosting a local Ombudsman 

entity is not the same as the local 

Ombudsman entity but rather is the 

agency in which the local Ombudsman 

entity is organizationally located. 

Comment: Four commenters indicated 

support for the proposed language in 


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§ 1327.13(e) related to management of 

the information of the Office. One of 

these commenters called the proposed 

language a welcome clarification. One 

commenter indicated that the provision 

is consistent with the Ombudsman’s 

responsibilities of disclosure of 

information and of statewide operation 

of the Ombudsman program. The 

commenter also noted that this 

provision ensures consistency with 

access to information should there be an 

agency change at the State level or 

changes in local Ombudsman entities. 

One of these commenters indicated that 

this clarification should eliminate 

current frictions and confusion 

regarding ownership and locus of 

decision-making with respect to record 

release in the Ombudsman program. 

Response: We appreciate the 

supportive comments. 

Comment: One commenter suggested 

that we add the language ‘‘files and 

information’’ in the last sentence of this 

provision. 

Response: We have added language to 

clarify that newly numbered 

§ 1327.13(d) refers to ‘‘files, records, and 

other information.’’ 

Comment: One commenter 

recommended that we clarify that it is 

permissible for the local Ombudsman 

entity to retain physical records if done 

securely. One commenter indicated that 

the information should be the property 

of the Office of the Ombudsman, 

including the representative of the 

Office. Another commenter indicated 

that the proposed language erodes the 

independence and integrity of local 

Ombudsman entities, sending a sign 

that local Ombudsman entities are not 

trusted to perform basic ombudsman 

functions, such as maintaining records. 

The commenter indicated that this 

approach is likely to be divisive and 

harmful in some States. 

Response: We have added language 

indicating that nothing in this provision 

shall prohibit a local Ombudsman entity 

from maintaining such information in 

accordance with Ombudsman program 

requirements. This provision is 

intended neither to indicate a lack of 

trust in local Ombudsman entities nor to 

indicate that they are prohibited from 

maintaining records. On the contrary, 

we anticipate that most, if not all, 

Ombudsmen, will make no change 

regarding the ability of local 

Ombudsman entities to physically 

maintain Ombudsman program 

information as a result of this rule. 

We believe that, ultimately, the 

Ombudsman must be held responsible 

for the management of Ombudsman 

program information. Otherwise, the 

Ombudsman might lack sufficient 

access to records to meet the 

requirement to determine disclosure of 

Ombudsman program information. 

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

addition, if the Ombudsman should 

determine that a local Ombudsman 

entity should no longer be designated, 

he or she might have difficulty 

retrieving necessary information in 

order to provide continued services to 

residents. 

Comment: One commenter indicated 

concern about additional security 

needed to ensure protection of 

confidential information and requested 

clarification on record retention 

requirements. 

Response: We do not anticipate that 

additional security, beyond that already 

required to meet the requirements of the 

Act, is required by this rule. As a 

reminder, this rule does not require the 

Ombudsman to physically maintain the 

program files and records. Nothing 

prohibits the Ombudsman from 

delegating that responsibility to 

representatives of the Office or to local 

Ombudsman entities as is done 

currently in many Ombudsman 

programs. 

Similarly, we do not anticipate any 

change in record retention 

requirements. The Federal requirements 

related to retention of records 

maintained pursuant to HHS grants 

apply to records retention of the 

Ombudsman program. While there are 

some exceptions, in general, grants 

recipients and their sub-awardees must 

retain financial and programmatic 

records, supporting documents, 

statistical records, and all other records 

that are required by the terms of a grant, 

or may reasonably be considered 

pertinent to a grant, for a period of 3 

years from the date the final Financial 

Status Report is submitted by States to 

HHS. See 45 CFR 75.361. This Federal 

grant requirement does not prohibit a 

State agency, the Office, and/or a local 

Ombudsman entity from establishing 

record retention policies which provide 

for longer retention periods than the 

Federal requirements. 

Comment: Two commenters indicated 

support for the proposed language at 

§ 1327.13(f) regarding responses to 

requests for disclosure of information. 

One of these commenters indicated that 

the provision is important because it 

covers records and files regardless of 

format and because it applies to all 

funding sources for the Ombudsman 

program. 

Response: We appreciate the 

supportive comments and note that this 

provision is at newly numbered 

§ 1327.13(e). 

Comment: One commenter suggested 

adding a provision encouraging 

Ombudsman programs to share nonconfidential information with advocacy 

organizations and identifying 

information from a complainant with 

complainant permission. 

Response: We do not agree that AoA 

should encourage Ombudsman 

programs to share information with any 

particular type of entity. We believe the 

Act leaves that determination up to the 

Ombudsman where it does not 

otherwise prohibit the disclosure of 

resident-identifying information. The 

circumstances under which the 

Ombudsman program is permitted to 

disclose resident-identifying 

information with any outside entity is 

more fully described in § 1327.11(e)(3). 

Comment: One commenter indicated 

a need for further clarification that the 

Ombudsman is solely responsible for 

making decisions concerning disclosure. 

Response: We believe that the Act at 

section 712(d) does indicate that the 

Ombudsman has sole authority to make 

such determinations. We have amended 

§ 1327.13(e) to further clarify this 

authority in the final rule. 

Comment: One commenter indicated 

support for the proposed language at 

§ 1327.13(g). 

Response: We appreciate the 

supportive comment and note that this 

provision is at newly numbered 

§ 1327.13(b)(1). 

Comment: Nine commenters 

disagreed with proposed language at 

§ 1327.13(g) and indicated that the 

Ombudsman, not the State agency, 

should be responsible for developing 

policies, procedures, and standards, 

regarding the administration of the 

Ombudsman program, rather than 

merely proposing them to the State 

agency. Five of these commenters 

indicated that the Office should develop 

the policies, procedures and standards 

and then consult with the State agency 

or seek State agency review to ensure 

consistency with the Act. One of these 

commenters described the proposed 

language as potentially dangerous, 

particularly where the Ombudsman 

program is organizationally located in a 

State government agency other than the 

State unit on aging. One commenter 

indicated that the proposed language 

should be amended to indicate that the 

Ombudsman shall ‘‘independently’’ 

propose policies, etc. 

Response: We have amended this 

provision to provide for the 

Ombudsman to ‘‘establish or 

recommend’’ policies, procedures, and 

standards. In addition, a new provision 

at § 1327.11(e) more fully describes the 

process and responsibility for 


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establishing policies, procedures, and 

standards for the Ombudsman program. 

Comment: Two commenters 

recommended that policies should be 

developed in consultation with 

representatives of the Office who work 

at local Ombudsman entities. One of 

these commenters indicated that, since 

representatives of the Office deal daily 

with complaints, they can strengthen 

policies and provide valuable insight. 

Response: We agree with the 

comments and have incorporated 

consultation with representatives of the 

Office and local Ombudsman entities as 

part of the required process of 

establishing policies and procedures in 

a new provision at § 1327.11(e). 

Comment: One commenter indicated 

support for the proposed language at 

§ 1327.13(h). 

Response: We appreciate the 

supportive comment and note that this 

provision is at newly numbered 

§ 1327.13(a)(7)(iv). 

Comment: Four commenters 

suggested language to enhance 

coordination of advocacy efforts with 

representatives of the Office, indicating 

that accountability for the positions of 

the Office lies with the Ombudsman, 

consistent with § 1327.13(b) which 

provides for the representatives of the 

Office to report to the Ombudsman 

regarding Ombudsman program 

functions and duties. 

Response: We have accepted this 

recommendation by adding the language 

‘‘including coordination of systems 

advocacy efforts carried out by 

representatives of the Office’’ to the 

functions of the Ombudsman set forth at 

§ 1327.13(a)(7)(iv). 

Comment: One commenter indicated 

that the proposed language should be 

amended to indicate that the 

Ombudsman shall ‘‘independently’’ 

provide leadership to statewide 

advocacy efforts. 

Response: We believe that this 

provision, along with the provision 

regarding the Ombudsman 

independently making determinations 

and establishing positions at 

§ 1327.11(e)(5) and (8), sufficiently 

describe the independence of the 

Ombudsman related to policy advocacy. 

Comment: Seven commenters 

indicated support for the proposed 

language regarding Ombudsman 

management of fiscal resources at 

§ 1327.13(i). One of these commenters 

indicated that the provision is important 

to the Ombudsman’s effective 

leadership of the Ombudsman program. 

One of the commenters noted that this 

provision is consistent with the 1995 

Institute of Medicine recommendation 

that, without fiscal control, the Office 

cannot adequately manage the statewide 

program. 

Response: We appreciate the 

supportive comment and note that this 

provision is at newly numbered 

§ 1327.13(f). 

Comment: Two commenters 

recommended that the Ombudsman 

should determine the use of, or approve 

allocation of, funds to local 

Ombudsman entities at § 1327.13(i). 

Response: The suggested language 

helps clarify our intent, so we have 

accepted the recommendation at 

§ 1327.13(f). 

Comment: One commenter suggested 

language that would clarify that the 

Ombudsman should determine that 

‘‘program expenditures of the Office and 

local Ombudsman entities are consistent 

with policies established by the Office’’ 

at § 1327.13(i). 

Response: The suggested language 

helps clarify our intent, so we have 

accepted the recommendation at 

§ 1327.13(f). 

Comment: One commenter 

recommended that the rule at 

§ 1327.13(i) not prohibit the ability of 

the Office or local Ombudsman entities 

from seeking additional funds to 

support the Ombudsman program. 

Response: We agree with the 

comment, but we do not read the 

proposed language, nor that of the final 

rule at § 1327.13(f), to prohibit 

fundraising efforts. We do note, 

however, that fundraising efforts need to 

be consistent with the policies and 

procedures established by the Office. 

For example, the Office might 

appropriately have a policy prohibiting 

the receipt of funds from a source that 

would pose a conflict of interest to the 

local Ombudsman program. 

Comment: Three commenters 

requested additional clarification on the 

extent of Ombudsman involvement in 

fiscal monitoring of local Ombudsman 

entities anticipated by the proposed 

provision at § 1327.13(i). One 

commenter recommended that we 

require transparency in the management 

of the financial resources of the Office, 

including of local Ombudsman 

programs. 

Response: We believe that the 

organizational location of the Office as 

well as the nature of the relationship 

between the Office and the local 

Ombudsman entities will determine 

whether the Ombudsman should be 

responsible for fiscal monitoring of local 

Ombudsman entities. Depending on the 

organizational structure used to host the 

Office and local Ombudsman entities, 

the State agency or other agency may be 

most appropriately responsible for fiscal 

monitoring of area agencies on aging or 

other agencies hosting local 

Ombudsman entities. 

Rather than make one approach that 

may not adequately cover all States’ 

organizational structures, we have 

clarified in § 1327.13(f) that the unique 

Ombudsman responsibility, regardless 

of organizational structure, is to 

determine that program budgets and 

expenditures of the Office and local 

Ombudsman entities are consistent with 

policies and procedures established by 

the Office. In order to assure that the 

Ombudsman has access to the 

information needed to perform this 

function, we have amended § 1327.15(b) 

to require the State agency to assure that 

the Ombudsman has access to 

information needed to perform required 

functions and responsibilities. 

We encourage the Ombudsman to be 

involved in the fiscal monitoring of 

local Ombudsman entities. Where 

applicable, we encourage the State 

agency or other entity in which the 

Office is organizationally located to 

provide opportunities to the 

Ombudsman to be involved in its fiscal 

monitoring activities related to agencies 

hosting local Ombudsman entities. 

Comment: Three commenters did not 

support the provision at § 1327.13(i), 

indicating that the proposed language 

fails to address the issue of a 

representative of the Office’s access to 

financial information related to the local 

Ombudsman entity. These commenters 

recommended that local Ombudsman 

entities should have fiscal oversight 

over their allocated funds or control 

over their own finances. One 

commenter recommended that we 

require transparency in the management 

of the financial resources of the Office, 

including of local Ombudsman 

programs. One commenter suggested 

that the provision require the 

Ombudsman to work in consultation 

with representatives of the Office and 

local Ombudsman entities in developing 

the fiscal determinations. 

Response: We believe that the 

revisions made in the final rule at 

§ 1327.13(f) adequately clarify the 

responsibility of the Ombudsman. In 

addition, we require that the policies 

and procedures of the Office should 

clarify for the local Ombudsman entity, 

among other things, the appropriate 

fiscal responsibilities and/or access to 

financial information at 

§ 1327.11(e)(1)(vi). 

Comment: One commenter suggested 

addition of language at § 1327.13(i) that 

clarifies the authority and autonomy of 

the Ombudsman to determine the use of 

fiscal resources. The commenter 

indicated that, given State budgetary 

constraints, the Ombudsman may be at 


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the mercy of the State agency for fiscal 

resources required to operate an 

effective Ombudsman program. 

Response: We agree that budgetary 

constraints (at any level, not only due to 

State budget constraints) can limit the 

ability of the Ombudsman program to 

have sufficient fiscal resources required 

to operate an effective Ombudsman 

program. However, we do not intend to 

suggest in this provision that the 

Ombudsman has the authority to 

appropriate funds (which is the duty of 

Congress at the Federal level and State 

legislatures at the State level). 

Therefore, in this provision, we intend 

to clarify that the Ombudsman is to 

have the authority to make fiscal 

determinations regarding those funds 

available to the Ombudsman program. 

We also note that it is appropriate for 

the Ombudsman to work with the State 

agency and other potential sources of 

funding to explain Ombudsman 

program resource needs and to seek 

ways to maximize resources available to 

operate the Ombudsman program. 

Comment: One commenter 

recommended that we use a word other 

than ‘‘designated’’ when referring to 

funds, given that the term ‘‘designated’’ 

has a specialized meaning in the context 

of designating local Ombudsman 

entities and representatives of the 

Office. 

Response: We have made a change in 

the wording at § 1327.13(f) to reflect this 

comment, intending to avoid confusion 

around the meaning of the term 

‘‘designated.’’ 

Comment: Two commenters asked 

whether this provision will apply to 

funds raised locally. One of the 

commenters indicated that, while local 

fundraising should not be discouraged, 

it should be clarified what level of 

control the Ombudsman should have 

over locally raised funds. The other 

commenter recommended that the 

provision state that the Ombudsman 

should have control over only those 

funds allocated by the State agency, and 

not to funding for local Ombudsman 

entities. This commenter indicated that 

it would be inappropriate to give the 

Ombudsman control over funds raised 

locally to support the work of the local 

Ombudsman entity. 

Response: The Ombudsman is 

responsible with respect to fiscal 

management, as described in the final 

rule at § 1327.13(f), for: (a) Determining 

the use of the fiscal resources 

appropriated or otherwise available for 

the operation of the Office, (b) where 

local Ombudsman entities are 

designated, approving the allocations of 

Federal and State funds provided to 

such entities, and (c) determining that 

program expenditures of the Office and 

local Ombudsman entities are consistent 

with policies and procedures 

established by the Office. We do not 

believe that this language limits the 

ability of local Ombudsman entities to 

seek diversified funding or other 

resources to support the operations of 

the Ombudsman program at the local or 

regional level. 

Comment: One commenter 

recommended that we include the word 

‘‘independently’’ to describe the fiscal 

determinations of the Ombudsman at 

§ 1327.13(i). 

Response: Depending on the 

organizational structure of the agency in 

which the Ombudsman is hosted, fiscal 

management may necessarily be 

coordinated with the State agency or 

other agency or non-profit entity in 

which the Ombudsman is located. We 

are not convinced that the term 

‘‘independently’’ would therefore be 

appropriate in this provision. While we 

intend to signal here that the 

Ombudsman should make 

determinations, including fiscal 

determinations regarding available 

funds, related to Ombudsman 

programmatic priorities, we are aware 

that the Ombudsman program is often 

one part of a larger entity with multiple 

services and programs that may manage 

the fiscal duties of the entity. We do not 

intend to suggest that the Ombudsman 

must independently perform all of these 

fiscal duties, which could include 

budgeting, tracking of expenditures, 

fiscal reporting to funders, responses to 

auditors, etc. 

Comment: Four commenters indicated 

support for the proposed language in 

§ 1327.13(j). One of these commenters 

indicated that the proposed language 

will strengthen the integrity of the 

program. Another indicated that 

monitoring is essential to a unified and 

effective statewide program. Another 

indicated that the proposed language 

would strengthen accountability. 

Response: We appreciate the 

supportive comments and note that this 

provision is found in the final rule at 

§ 1327.13(c)(1)(iii), related to 

designation of local Ombudsman 

entities. 

Comment: Two commenters suggested 

that monitoring, as required in 

§ 1327.13(j), should occur on a regular 

basis. 

Response: We agree that monitoring 

cannot be a one-time occurrence but 

should be on-going; therefore we have 

adopted this recommended language 

that monitoring be on a ‘‘regular basis’’ 

at the final rule at § 1327.13(c)(1)(iii). 

Comment: One commenter 

recommended an added requirement, in 

§ 1327.13(j), that the Ombudsman 

consult with the local supervisor of the 

Ombudsman representative when 

determining performance. 

Response: We agree that this approach 

is an important practice where it is 

applicable. Since the applicability of an 

Ombudsman consulting with others, 

such as area agency on aging directors, 

who may have responsibility for 

personnel supervision of a 

representative of the Office, depends 

upon the organizational structure of 

local Ombudsman entities, we believe 

that State agencies and Ombudsmen can 

most appropriately address this practice 

through State-specific policies and 

procedures. We plan to also promote 

this type of coordination in monitoring 

practices through technical assistance to 

States and Ombudsmen. 

Comment: One commenter indicated 

that the proposed language should be 

amended to indicate that the 

Ombudsman shall ‘‘independently’’ 

develop and provide final approval of 

an annual report at § 1327.13(k). 

Response: We have accepted this 

recommended change at § 1327.13(g). 

We are aware of circumstances in some 

States in which questions have arisen 

regarding the process by which this 

report is to be developed. Since the Act 

specifically requires this report and 

requires it to include some content 

which would be necessarily determined 

by the Ombudsman (e.g., evaluation of 

problems experienced by and 

complaints made by or on behalf of 

residents; providing relevant policy, 

regulatory, and legislative 

recommendations), we believe it is 

consistent with the Act that the 

Ombudsman, as head of the Office, be 

responsible to independently develop 

and approve the content of this report. 

See section 712(h)(1) of the Act. 

Comment: Three commenters 

indicated support for the proposed 

language in § 1327.13(l). One of these 

commenters indicated that this 

provision will help establish clear lines 

of communication and education among 

programs and services. Another 

indicated that the proposed language 

effectively describes the critical and 

unique dynamic between the Office and 

the State agency, maintaining separation 

yet coordinating closely on the State’s 

elder rights agenda. 

Response: We appreciate the 

supportive comments and note that the 

applicable provisions are in the final 

rule at § 1327.13(h). 

Comment: Three commenters 

indicated that the proposed language is 

unclear. Two of the commenters 

questioned whether AoA is requiring a 

new, additional responsibility with 


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respect to other programs and with no 

resources. Since the Act already 

requires the State agency to coordinate 

programs for vulnerable adults, the 

commenter indicated that this 

responsibility is more appropriate for 

the State agency than the Ombudsman. 

Another commenter indicated that the 

proposed language is unclear whether 

the expectation for the Ombudsman to 

lead the statewide coordination or to 

lead the Ombudsman program-specific 

portion of that effort. 

Response: This provision is not 

intended to require a new undertaking 

of the Ombudsman, nor is it intended to 

detract from the State agency leadership 

role with respect to elder rights 

activities as set forth in section 721(d) 

of the Act. We have, therefore, revised 

this provision in order to further clarify 

our intent to implement the provisions 

of the Act which require coordination of 

Ombudsman program services with 

protection and advocacy networks, legal 

assistance programs, law enforcement 

agencies and courts of competent 

jurisdiction, as well as other entities 

with responsibilities which relate to the 

health, safety, welfare, or rights of 

residents of long-term care facilities. See 

section 712(h)(6)–(8) of the Act. 

AoA’s intent in this provision is for 

the Ombudsman to lead the 

coordination at the state level between 

the activities of the Ombudsman 

program and of the enumerated entities, 

not to be responsible for the statewide 

leadership of broader elder rights 

coordination, which is more 

appropriately the role of the State 

agency. We have revised language in the 

final rule at §§ 1327.13(h); 1327.15(h), 

and (k)(5) to reflect this intent. 

Comment: One commenter suggested 

language to clarify that memoranda of 

understanding should not be limited to 

the coordination between the Office and 

the legal assistance developer and legal 

assistance programs as indicated in 

proposed language at § 1327.13(l)(8). 

Response: We have adopted the 

recommended language at § 1327.13(h). 

Comment: Three commenters 

recommended that we use alternate 

language, rather than the language used 

in the Act at section 712(h)(6) for the 

reference to the protection and advocacy 

system in § 1327.13(l)(3). The 

commenters indicated that the proposed 

language is more descriptive and clear 

since the network serves people with all 

types of disabilities, not only 

individuals with developmental 

disabilities or mental illness that are 

referenced in the statutory references. 

Response: We have worked with the 

Administration for Intellectual and 

Developmental Disabilities to revise the 

description of ‘‘protection and advocacy 

system’’ in the final rule at 

§ 1327.13(h)(4). 

Comment: One commenter 

recommended that the final rule 

expressly acknowledge the existing 

relationship between protection and 

advocacy systems and Ombudsman 

program and should reflect the reality 

that the leadership of the coordination 

effort may lie in other entities. 

Response: We acknowledge and 

appreciate the existing coordination 

between many States’ Ombudsman 

programs and protection and advocacy 

systems, as well as Ombudsman 

program coordination with the other 

entities listed in this provision. This 

provision is not intended to imply that 

such coordination does not exist, but 

rather to reflect the statutory 

requirement as well as to reinforce that 

such coordination is absolutely critical 

to the well-being of residents served by 

the respective entities. It is, therefore, an 

AoA expectation of the Ombudsman in 

every State. 

We also acknowledge and appreciate 

that the leadership for such 

coordination could happen in a variety 

of ways. Our intent in this provision is 

to indicate that the Ombudsman is 

responsible for providing state-level 

leadership within the statewide 

Ombudsman program, but not that the 

Ombudsman is to exclusively provide 

leadership across all of the entities in 

this coordinated effort, nor that this 

duty is to exclude leadership 

opportunities at the local or regional 

level of local Ombudsman entities. 

Comment: Two commenters requested 

that we add a duty of the Ombudsman 

to investigate allegations of 

inappropriate conduct by a 

representative of the Office. 

Response: We agree that this is should 

be the responsibility of an Ombudsman 

and inherent his or her duty to 

designate representatives of the Office. 

We have therefore added a provision 

reflecting this duty at a new 

§ 1327.13(c)(4). We also address the 

policies governing grievance processes 

at a new § 1327.11(e)(7). 

Comment: One commenter 

recommended that we add protections 

that provide due process through a third 

party formal appeals process if 

representative of the Office faces dedesignation. 

Response: We address this comment 

in a new provision regarding grievance 

processes at § 1327.11(e)(7). 

E. State Agency Responsibilities Related 

to the Ombudsman Program (§ 1327.15) 

In § 1327.15, AoA provides 

clarification regarding the State unit on 

aging (State agency) and its 

responsibilities as OAA grantee in 

relation to the Long-Term Care 

Ombudsman Program. 

Comment: Four commenters indicated 

general support for the proposed 

provision at § 1327.15. One indicated 

that the proposed language provided 

welcome clarifications. 

Response: We appreciate the 

supportive comments. 

Comment: One commenter indicated 

that they foresee challenges in 

implementing the proposed rule as there 

are several policies and protocols in 

place that would prohibit their State 

agency from meeting several of the 

requirements indicated in § 1327.15. 

Response: The Act is clear on a 

number of these requirements of the 

State agency which are incorporated 

into this rule. It is our intent to further 

clarify these requirements. AoA plans to 

provide technical assistance to States 

regarding compliance with this rule. 

Comment: One commenter indicated 

that the proposed language could have 

unintended consequences for 

Ombudsman programs located outside 

of the State agency. The commenter 

recommended language to clarify that 

the State’s responsibility is to ensure 

that the Ombudsman program has the 

resources necessary to meet the 

requirements of the Act and conforms to 

Federal and State law. 

Response: We have adopted the 

recommendation to add language in 

§ 1327.15(a) regarding the State agency 

duty to ensure that the Office complies 

with the relevant provisions of the Act 

and of this rule. 

Comment: Two commenters 

recommended that we add clarifying 

language in § 1327.15(a)(1) to ensure the 

independence of the Ombudsman 

program. 

Response: We believe that the rule in 

its entirety supports the operation of the 

Office as a distinct entity and the ability 

of the Ombudsman to make 

independent determinations. Therefore, 

we do not believe that additional 

language regarding independence is 

necessary in § 1327.15. 

Comment: One commenter suggested 

that where conflict of interest exists, the 

State agency should assist the Office in 

identifying and remedying the conflict. 

Response: We believe we have 

adequately described responsibilities of 

the State agency and the Office related 

to conflict of interest in § 1327.19 of the 

final rule. 

Comment: In commenting on the 

definitions section, § 1327.1, one 

commenter recommended that we 

define ‘‘State agency.’’ 


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Response: While we have not 

incorporated a definition within the 

final rule, we have added a crossreference to part 1321 to clarify that 

references to the State agency found in 

part 1321 also apply to those references 

in part 1327. 

Comment: One commenter suggested 

that the language should be amended to 

indicate that ‘‘[t]he State agency shall 

require the Office to’’ perform the 

enumerated duties in § 1327.15(c). 

Response: Our intent in § 1327.15 is 

to describe the responsibilities of the 

State agency. The functions and 

responsibilities of the Ombudsman are 

enumerated in § 1327.13. To further 

clarify this intent and with a goal of 

reducing confusion regarding which 

entity is responsible for which duty, we 

have reduced the level of detail for the 

Ombudsman responsibilities, which the 

Act requires the State agency to ensure 

(section 712(h) of the Act). These 

provisions are now found at 

§ 1327.15(k). We have moved many of 

the more detailed provisions that had 

been in § 1327.15(c) to § 1327.13, in 

order to clarify that these are 

responsibilities of the Ombudsman to 

perform through the Office, and not of 

the State agency. 

In addition, we believe the 

responsibility of the State agency, at 

§ 1327.15(b), to ensure that the 

Ombudsman program has sufficient 

authority and access to information 

needed to fully perform all of the 

functions, responsibilities, and duties 

enumerated in the rule, sufficiently 

describes the State agency 

responsibilities related to these 

provisions. 

Comment: Twelve commenters 

recommended revisions to proposed 

language § 1327.15(a)(2), recommending 

that the Ombudsman, rather than the 

State agency, should have primary 

responsibility for (or, at a minimum, the 

Ombudsman should have enhanced 

participation in) developing the 

policies, procedures, and standards of 

the Ombudsman program. One of the 

commenters indicated that if the State 

agency establishes the policies and 

procedures, the autonomy of the 

Ombudsman and of local Ombudsman 

entities would be at risk. Two 

commenters indicated that this 

provision is in direct contravention of 

the independence of the Office. One 

commenter indicated that it would be 

more realistic and effective if the 

Ombudsman would be primarily 

responsible for the development of 

policies and procedures. One of the 

commenters indicated that, where the 

Ombudsman is organizationally located 

in another State agency, for the State 

unit on aging to dictate the policies of 

another State agency would be 

problematic and potentially dangerous. 

Response: The final rule at 

§ 1327.11(e) more fully describes the 

process and responsibility for 

establishing policies, procedures, and 

standards for the Ombudsman program. 

Comment: One commenter 

recommended that we change the 

format of subparagraph § 1327.15(a)(2) 

to make the language more readable. 

Response: We have adopted this 

recommendation within the new 

provision at paragraph § 1327.11(e). 

Comment: Two commenters indicated 

support for the proposed language in 

§ 1327.15(a)(2)(i) requiring policies 

related to Ombudsman monitoring of 

local Ombudsman entities. 

Response: We appreciate the 

supportive comments and note that we 

have moved the relevant provision in 

the final rule to § 1327.11(e)(1)(iii). 

Comment: One commenter requested 

that we add the descriptor 

‘‘periodically’’ to indicate that 

monitoring in § 1327.15(a)(2)(i) should 

be on-going. 

Response: We believe that the final 

rule at § 1327.11(e)(1)(iii) is adequate. 

Comment: One commenter 

recommended the development of a fair 

hearing process, indicating that, when 

representatives of the Office are 

employees of agencies hosting local 

Ombudsman entities, there is risk of 

conflict of interest or willful 

interference, and that employees may be 

caught between following policies of 

their employer and those of the 

Ombudsman. 

Response: We have addressed the 

requirement for a grievance process in 

§ 1327.11(e)(7). 

Comment: Three commenters 

indicated support for the proposed 

language at § 1327.15(a)(2)(ii) regarding 

standards to assure prompt response to 

complaints. One of these commenters 

indicated that States are in the best 

position to determine any response time 

frames through policies and procedures, 

and that a more specific requirement 

would place some States which rely 

entirely on Federal funds to operate the 

Ombudsman program in an untenable 

position. 

Response: We appreciate the 

supportive comments and note that we 

have moved the relevant provision in 

the final rule to § 1327.11(e)(1)(v). 

Comment: Five commenters indicated 

a need for a national standard or 

additional guidance for what is 

considered a ‘‘prompt response.’’ 

Response: We believe creating one 

national standard of promptness would 

be unrealistic, given the extremely 

different variables among States. Some 

States have developed standards of 

promptness related to complaint 

response that are responsive to the 

realities in that State. We strongly 

encourage the development of minimum 

standards to provide consumers, 

providers and others with an 

expectation of what constitutes a timely 

response to a complaint. We note that 

these standards provide an important 

mechanism for Ombudsman program 

accountability. We are available to 

provide technical assistance to States 

and Ombudsmen as they develop these 

standards. 

Comment: One commenter 

recommended that we refer to the 

availability of resources to the 

Ombudsman program, agreeing with the 

need for high standards, but not wanting 

to create unrealistic expectations. 

Response: We provide sufficient 

flexibility to the States for state-specific 

standards in this rule, providing 

opportunity for the State agency and 

Ombudsman program to consider 

available resources as they develop the 

standards. 

Comment: Eight commenters 

suggested that we use the term 

‘‘neglect’’ instead of ‘‘gross neglect’’ or 

provide further clarification of ‘‘gross 

neglect’’ in § 1327.15(a)(2)(ii) and in 

other places where it occurs. 

Response: We have adopted this 

recommendation within 

§ 1327.11(e)(1)(v). In both the proposed 

rule and the final rule, the Ombudsman 

program is required to respond to and 

work to resolve complaints of neglect. In 

contrast, this provision specifically 

relates to what AoA requires of State 

agencies and Ombudsmen as they 

develop standards of promptness to 

respond to these and other types of 

complaints. The final rule, rather than 

distinguishing between ‘‘gross neglect’’ 

and ‘‘neglect’’ for purposes of triage, 

requires development of standards of 

promptness which can guide the 

Ombudsman program to prioritize 

abuse, neglect, exploitation, and timesensitive complaints. The rule also 

requires consideration of the severity of 

the risk to the resident, the imminence 

of the threat of harm to the resident, and 

the opportunity for mitigating harm to 

the resident by providing services of the 

Ombudsman program in response to a 

complaint. Rather than distinguishing 

between ‘‘neglect’’ and ‘‘gross neglect’’ 

in this provision, this rule provides 

States with the latitude to consider the 

use of the terms (and accompanying 

definitions) that are most appropriate to 

their State’s Ombudsman program. 

For purposes of determining 

standards of promptness, States may 


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choose to use ‘‘gross neglect,’’ which is 

defined in NORS instructions, or 

‘‘neglect.’’ We note that, ‘‘neglect’’ is 

defined in the Act at section 102(38) 

and by the Centers for Medicaid & 

Medicaid Services (CMS) regarding 

nursing facilities at 42 CFR 488.301. 

Alternatively, States may choose to rely 

on their relevant State definition of 

‘‘neglect’’ in developing their standard 

of promptness. 

Comment: One commenter indicated 

the need for the final rule to have a 

provision implementing section 712(b) 

of the Act (‘‘Procedures for Access’’) 

requiring States to have policies on 

Ombudsman program access to 

facilities, residents, and records and 

providing guidance on how to 

appropriately implement this statutory 

requirement. The commenter indicated 

that, before addressing disclosure of 

Ombudsman program records and files, 

Ombudsman program authority to 

access and obtain records should be 

addressed, and provided a number of 

related recommendations, including the 

need for the final rule to: 

• Clarify times when the 

representative of the Office may have 

access to facilities and residents and 

providing for privacy in resident access. 

• Provide for representatives of the 

Office to have access to the name and 

contact information of the resident 

representative, indicating that, when a 

resident is not competent to 

communicate with the Ombudsman, the 

resident representative is authorized by 

law to provide consent. The commenter 

indicated that, if the Ombudsman does 

not know how to contact the resident 

representative, he or she cannot fulfill 

his or her duties to the resident. 

• Clarify that access to resident 

records should include ‘‘other records 

relating to the resident’’ and maintained 

by the facility. The commenter 

indicated that, should a facility consider 

nursing, therapy, financial or other 

common records that the facility 

maintains which relate to the resident to 

be other than ‘‘medical or social,’’ there 

could be a question about whether a 

representative of the Office has access to 

such records. 

• Clarify that the statutory provision 

providing Ombudsman access to ‘‘all 

licensing and certification records 

maintained by the State’’ (at section 

712(b)(1)(D)) includes unredacted 

licensing, certification, and complaint 

investigation files maintained by the 

State regarding long-term care facilities. 

This would enable the Ombudsman to 

meet the Act’s requirement to monitor 

and analyze the implementation of laws 

pertaining to the ‘‘health, safety, 

welfare, or rights of the residents, with 

respect to the adequacy of long-term 

care facilities and services’’ as required 

by section 712(a)(3)(G)(i) of the Act, 

since the primary way a State 

implements the laws is through 

licensing and certification inspections 

and complaint investigations. The 

commenter argues that, if the access in 

this provision of the statute were to be 

limited to redacted records, the 

Ombudsman would have no more 

access than the general public under the 

state’s public disclosure laws. 

The commenter further notes that the 

confidential information in these State 

records would be subject to the 

disclosure limitations of section 712(d) 

of the Act. 

Other commenters, in comments 

related to proposed language at 

§ 1327.15(b), recommended that the 

final rule require ‘‘prompt’’ access to 

resident records and clearly state that all 

persons acting under the authority of 

the Office have access to resident 

records as part of a health oversight 

agency pursuant to HIPAA. Three 

commenters recommended that we 

incorporate language to clarify that 

access to resident records by the 

Ombudsman program should include 

authority to view records in any format 

and to obtain copies of the records. Two 

commenters indicated the need for 

additional clarity regarding how a 

representative of the Office should carry 

out his or her duties when a resident 

representative opposes a request for 

access to records. 

Response: We agree that the rule is 

strengthened by incorporating 

provisions related to Ombudsman 

program access to facilities, residents 

and records and have added 

§ 1327.11(e)(2) to require policies and 

procedures related to access. We have 

also added a provision in § 1327.15(b) to 

clarify the State agency’s responsibility, 

as required by section 712(b) of the Act, 

to ensure that the Ombudsman program 

has sufficient authority and access to 

facilities, residents and needed 

information in order to perform required 

functions, responsibilities, and duties. 

In addition, we have incorporated a 

provision at § 1327.11(e)(2)(vi) related to 

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, reflecting the statutory 

requirement in section 712(b)(1)(D) of 

the Act. While we are not suggesting 

that representatives of the Office be 

prohibited from this access, we 

anticipate that the Ombudsman and/or 

State agency will coordinate this policy 

and procedure development, and 

incorporate procedures for appropriate 

access of representatives of the Office, 

with the State agency or agencies which 

maintain such licensing and 

certification records. Ombudsman 

programs are not prohibited from access 

to unredacted licensing and certification 

records, which may include residentidentifying information, under the 

Health Insurance Portability and 

Accountability Act (HIPAA) of 1996. 

See HIPAA Privacy Rule, 45 CFR part 

160 and subparts A and E of part 164; 

see also § 1327.11(e)(2)(vii) of this rule. 

Comment: Two commenters disagreed 

with the proposed language that the 

Ombudsman program be required to 

prioritize abuse complaints, indicating 

that investigation of abuse is a 

protective services responsibility. One 

of the commenters indicated that, in 

their State, where an individual is the 

victim of abuse or at imminent risk, the 

Ombudsman program refers to 

protective services for investigation, 

indicating that the Ombudsman 

program will report abuse on certain 

occasions without resident consent if 

the allegation would potentially impact 

the health and safety of the individual 

and/or other residents. Another 

commenter requested clarification 

regarding establishing policy and 

procedure for the Ombudsman program 

to respond to abuse complaints, as 

required in the proposed rule at 

§ 1327.11(a)(2)(ii), in light of the fact 

that the State agency that, in their State, 

serves as the official finder of fact 

related to allegations of abuse, neglect 

and exploitation. 

Response: The Act requires the 

Ombudsman program to ‘‘identify, 

investigate, and resolve complaints that 

. . . relate to action, inaction or 

decisions that may adversely affect the 

health, safety, welfare, or rights of the 

residents.’’ Section 712(a)(3)(A) and 

(5)(B)(iii) of the Act. Abuse, neglect and 

exploitation of residents are among the 

complaints that fall within this purview. 

Through NORS, States report on the 

types of complaints processed by the 

Ombudsman program, specifically 

including complaint codes and 

definitions related to abuse, gross 

neglect and exploitation. ‘‘Long-Term 

Care Ombudsman Program Complaint 

Codes,’’ OMB 0985–0005, at pp. 1–3, 

17–18. 

The services of the Ombudsman 

program are distinct from, and as 

indicated in § 1327.21(c), may even 

conflict with the responsibilities of 

protective services. An individual 

resident, may, for example, have a 

complaint about protective services or 

may seek support from the Ombudsman 

program to realize a goal that is 


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inconsistent with his or her protective 

services plan. 

While the complaint resolution 

function of the Ombudsman program 

requires ‘‘investigation,’’ an 

Ombudsman investigation is not for the 

same purposes as an investigation by 

protective services, licensing and 

regulatory agencies, law enforcement or 

other entities. This may result in 

confusion regarding the appropriate 

investigatory role of such entities. When 

an Ombudsman program receives any 

complaint (including, but not limited to, 

an abuse-related complaint), the goal is 

to resolve the complaint to the 

resident’s satisfaction, rather than to 

substantiate whether the abuse or other 

allegation occurred. The Ombudsman 

program does not have a duty to collect 

sufficient evidence to meet the higher 

legal standards of proof that protective 

services, licensing or regulatory 

agencies, or law enforcement may need 

to meet their respective purposes. The 

Ombudsman program investigates solely 

for the purpose of gathering necessary 

information to resolve the complaint to 

the resident’s satisfaction, not to 

determine whether any law or 

regulation has been violated for 

purposes of a potential civil or criminal 

enforcement action. 

With the Ombudsman program 

fulfilling its duties, the priorities and 

interests of the individual resident can 

be supported and advocated for. If the 

protective services and other 

government systems charged with 

taking protective or enforcement actions 

are not providing the outcomes that 

serve the health, safety, welfare or rights 

of residents, the Ombudsman program is 

available to address the larger systemic 

problems. Therefore, it is critically 

important that each of these agencies is 

able to fully and distinctly fulfill their 

duties. 

The provisions related to disclosure of 

resident identifying information, 

including exclusion from abuse 

reporting requirements, are set forth in 

§ 1327.11(e)(3). 

Comment: Three commenters 

indicated support for the proposed 

language at § 1327.15(a)(2)(iii). One of 

these commenters indicated that the 

proposed language very effectively 

addresses the practical and achievable 

balance between Ombudsman program 

requirements regarding disclosure and 

the State agency’s need to responsibly 

monitor for Ombudsman program 

integrity and effectiveness. 

Response: We appreciate the 

supportive comments and note that the 

provisions regarding disclosure policies 

and procedures are now found at 

§ 1327.11(e)(3). 

Comment: One commenter indicated 

that, since the State agency has the 

responsibility to monitor and provide 

oversight of the operation and 

performance of the Ombudsman 

program, it must be able to define, 

specify and require reports that reflect 

Ombudsman program activities and 

performance. While acknowledging the 

need to protect the identity of 

individuals served by the program, the 

commenter indicated that the State 

agency should be able to require the 

Ombudsman program to provide 

requested reports of aggregated program 

information. 

Response: We agree that the State 

agency, in order to provide monitoring 

and personnel management, as required 

in §§ 1321.11 and 1327.15, may need to 

reasonably request reports regarding the 

activities of the Ombudsman program 

which do not conflict with the 

disclosure provisions of § 1327.11(e)(3). 

We have added language to the final 

rule at § 1327.15(e), clarifying this 

requirement. 

Comment: One commenter requested 

further clarification regarding the 

decision point for disclosure of records 

and identities. Another commenter 

indicated that the discretion of the 

Ombudsman to decide whether to 

disclose any of the files or records 

maintained by the Ombudsman 

program, set forth in the proposed 

language at § 1327.15(a)(2)(iii)(A) and 

required by the Act at section 

712(d)(2)(A), should also apply to the 

disclosure of the resident or 

complainant identifying information in 

the final rule, as required by the Act at 

section 712(d)(2)(B). 

Response: We agree that the final rule 

should be consistent with the 

requirement of the Act at section 

712(d)(2)(B) regarding Ombudsman 

discretion and have revised 

§ 1327.11(e)(3) to provide that 

clarification. 

Comment: One commenter 

recommended that the final rule direct 

the Ombudsman to use criteria to guide 

his or her discretion in determining 

whether to disclose the files, records or 

other information of the Office and to 

include in procedure the different types 

of requests, source of the request, and 

identification of the appropriate 

designee for determination of the 

disclosure. For example, the commenter 

indicated that a representative of the 

Office should be able, with resident 

permission, to share with facility staff 

that the resident has requested a 

particular service. In contrast, the 

Ombudsman may wish to make a 

determination directly should a 

representative of the Office receive a 

subpoena to testify at and bring case 

records to a deposition. 

Response: We believe that the 

discretion described by the commenter 

is consistent with the proposed 

language, but the request to provide 

additional clarification has merit. We 

have revised the provision at 

§ 1327.13(e)(3) in the final rule to 

require that the Ombudsman, in 

carrying out the responsibility to use his 

or her discretion related to the 

disclosure of Ombudsman program 

information, be required to develop and 

adhere to criteria to guide this 

determination. In addition, we require 

the Ombudsman to develop and adhere 

to a process for determining which 

types of information, to whom, and 

under what circumstances, the 

Ombudsman may delegate 

determinations regarding the disclosure 

of information. 

Comment: One commenter 

recommended that some entity must 

have access to review basic file 

information to be sure that records are 

kept up to date and proper information 

maintained. They indicated familiarity 

with a situation in which an AAA 

determined that a number of 

representatives of the Office within a 

local Ombudsman entity were not 

keeping records updated and some did 

not know how to properly use case 

management software. 

Response: We agree that regular 

monitoring of the records and reporting 

of the representatives of the Office is 

important. It is the responsibility of the 

Ombudsman to monitor the 

performance of local Ombudsman 

entities in fulfilling their Ombudsman 

program duties, including maintaining 

updated and accurate records and 

reporting their work in a timely and 

accurate manner. See § 1327.13(c)(1)(3). 

The State agency is required to 

monitor the performance of the 

Ombudsman program for quality and 

effectiveness; in so doing, it may request 

and review reports of aggregate data (see 

§ 1327.15(e)). However, we believe the 

Act is clear in limiting access to the 

identifying information of residents and 

complainants to the Office (i.e. the State 

Ombudsman and representatives of the 

Office) with very limited and specified 

exceptions. Section 712(d)(2)(B) of the 

Act. 

Comment: Six commenters 

recommended that language be added to 

provide for Ombudsman program 

disclosure to protection and advocacy 

systems (P&As). One of these 

commenters indicated that limiting 

access to information by the P&As may 

violate P&A authority to access records 

under Federal statute, may jeopardize 


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the work of the protection and advocacy 

network, and may be harmful to the 

people served. Another commenter 

recommended language clarifying that 

representatives of the Office must share 

records with P&As when confidentiality 

standards are met to assure cooperation 

between the two entities. Three of the 

commenters indicated the importance of 

the P&A mission to access Ombudsman 

information especially in light of 

residents who are unable to 

communicate informed consent. One 

commenter recommended that we 

require Ombudsman programs to report 

allegations of abuse, neglect and 

exploitation to P&As. 

Three commenters recommended 

specific language to permit disclosure of 

resident or complainant-identifying 

information to P&As in the proposed 

rule at § 1327.15(a)(2)(iii) (the 

corresponding provisions are in the 

final rule at § 1327.11(e)(3)). One of 

these commenters indicated some P&As 

have faced barriers in accessing needed 

documents from Ombudsman programs. 

Response: As ACL is the entity that 

administers grants to States both for the 

P&As and the Ombudsman program, we 

appreciate the significant value of both 

programs and understand the 

distinctions between them. We strongly 

support coordination of these programs, 

noting that such coordination is 

required in § 1327.13(h) of this rule. 

Nothing in this rule prohibits the 

Ombudsman from making a 

determination to disclose information in 

response to a P&A request where the 

information: 

• Does not provide residentidentifying information (for example, 

aggregated complaint trends); 

• provides resident-identifying 

information where the resident 

indicates his or her consent to the 

Ombudsman to do so; or 

• is provided consistent with a court 

order requiring such disclosure. 

Further, we have clarified that the 

Ombudsman has the authority to 

determine when resident-identifying 

information maintained by the 

Ombudsman program may be disclosed 

to appropriate agencies (which may 

include P&As) for, among other things, 

‘‘access to administrative, legal, or other 

remedies’’ in specified circumstances in 

which the resident is unable to 

communicate informed consent. See 

§ 1327.19(b)(6), (7), and (8). 

ACL understands that these 

provisions address some, but not all, of 

the recommendations of these 

commenters. In implementing the DD 

Act, ACL seeks to ensure that P&As 

have access to information and records 

as described in the DD Act. In 

implementing the OAA, ACL seeks to 

assist Ombudsman programs to fulfill 

their duty to protect resident and 

complainant privacy and to honor the 

preferences of residents and 

complainants to reveal (or not reveal) 

identifying information. In addition, 

ACL seeks to implement the statutory 

requirement that Ombudsman program 

files and records ‘‘may be disclosed only 

at the discretion of the Ombudsman.’’ 

OAA Section 712(d)(2)(A). 

Questions regarding P&A and 

Ombudsman program information 

sharing have understandably emerged in 

the context of implementation of these 

statutes and coordination of these 

programs. ACL plans to separately 

develop a process for additional public 

input focused on these questions in 

order to assist ACL in its 

implementation of these statutes and 

administration of these programs. 

However, since we did not include a 

request for comment regarding 

information sharing between P&A and 

Ombudsman programs in the notice of 

proposed rulemaking, ACL has made no 

change to the final rule on this topic. 

Comment: One commenter 

recommended language to incorporate 

the statutory provision protecting the 

identity of any complainant, including 

staff of a long-term care facility. 

Response: We agree that the Act, at 

section 712(d)(2) addresses protection of 

identifying information of the 

complainant as well as the resident at 

issue. We have, therefore, added a new 

provision at § 1327.11(e)(3)(iii) in the 

final rule that specifically addresses 

disclosure of identifying information of 

complainants. This provision is 

intended to protect the identity of any 

individual making a complaint to the 

Ombudsman program, including, but 

not limited to, the staff of a long-term 

care facility. We also note that the final 

rule includes a new provision requiring 

the prohibition and investigation of 

allegations of interference, reprisals and 

retaliation 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. 

§ 1327.15(i). 

Comment: One commenter 

recommended that 

§ 1327.15(a)(2)(iii)(B)(1) and (2) include 

parallel provisions which clearly permit 

oral consent for disclosure by the 

resident representative. 

Response: We believe that the 

recommendation is consistent with the 

Act at section 712(d)(2)(B)(ii), which 

permits oral consent for disclosure with 

contemporaneous documentation by the 

representative of the Office and have 

made this revision in the final rule, in 

a newly numbered provision at 

§ 1327.11(e)(3)(ii)(B). 

Comment: One commenter indicated 

that the ability of an individual to 

communicate consent may be difficult 

to ascertain and recommended 

inclusion of language that permits 

visual consent, such as by use of video 

or other visual means, nods, blinks of 

eye, finger tapping, etc. 

Response: We agree that residents 

with varying abilities may communicate 

consent in a number of ways. This is 

why we did not limit communication to 

verbal communication and have added 

the use of auxiliary aids and services as 

an appropriate aid to communication. 

We believe that adoption of this 

recommendation appropriately adapts 

the services of the Ombudsman program 

to accommodate individuals with a 

variety of disabilities. In light of this 

recommendation, we have added 

‘‘visually,’’ to the final rule wherever 

‘‘consent orally’’ is found, at 

§§ 1327.11(e)(2)(iv)(B), (e)(3)(ii)(B), 

(e)(3)(iii)(B) and 1327.19(b)(4). 

Comment: One commenter indicated 

that the proposed language at 

§ 1327.15(a)(2)(iii)(B)(2) should be 

amended to clarify that the resident’s 

guardian or other legal representative 

may provide consent. 

Response: We agree that this 

recommendation provides for additional 

clarity and consistency among the 

consent-related provisions of the rule 

and the Act. We have made these 

amendments in the newly numbered 

provision at § 1327.11(e)(3)(ii)(B). 

Comment: One commenter indicated 

support for the language of the proposed 

rule at § 1327.15(a)(2)(iii)(D). 

Response: We appreciate the 

supportive comment and note that the 

corresponding provision is now found 

as part of the Ombudsman 

responsibilities related to disclosure at 

§ 1327.13(e). 

Comment: One commenter indicated 

that the language of the proposed rule 

at § 1327.15(a)(2)(iii)(D) appears to 

require a separate procedure for 

disclosure of each type of file, rather 

than an over-arching procedure. 

Response: We believe the revised 

language at in the newly numbered 

provision at § 1327.13(e) addresses this 

comment. 

Comment: Two commenters indicated 

that the language of the proposed rule 

at § 1327.15(a)(2)(iii)(D) should include 

the limitation that disclosure of facility 

records be limited to those which 

‘‘residents have, or the general public 

has access,’’ referencing this language in 

section 712(b)(1)(C) of the Act. 


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Response: The language cited by the 

commenter relates to Ombudsman 

program access to facility information, 

rather than disclosure of Ombudsman 

program information once it is obtained 

from the facility. However, we have 

incorporated this relevant statutory 

language into the new provision 

regarding ‘‘procedures for access’’ in the 

final rule at § 1327.11(e)(2)(v). 

Comment: One commenter indicated 

that the language of the proposed rule 

at § 1327.15(a)(2)(iii)(D) fails to put 

limitations on the Ombudsman’s 

discretion regarding disclosure of 

Ombudsman records and files, that the 

term ‘‘for appropriate disclosure’’ is too 

vague, and that the requirement that the 

State agency must comply with section 

712(d) of the Act is omitted. The 

commenter recommended inclusion of 

the discretionary authority of the 

Ombudsman over Ombudsman program 

records and files in this provision. 

Response: We believe the revised 

language in the newly numbered 

provision at § 1327.11(e)(3), regarding 

disclosure policies and procedures, and 

at § 1327.13(e), regarding Ombudsman 

responsibilities related to disclosure, 

addresses this comment. 

Comment: Nine commenters 

indicated support for the language of the 

proposed rule at § 1327.15(a)(2)(iii)(E) 

regarding abuse reporting requirements. 

One of these commenters indicated that 

the proposed language is essential for 

the Ombudsman to gain a resident’s 

trust, given the unique role of the 

Ombudsman as the resident advocate 

and that, without the ability to assure 

confidentiality of resident information, 

the ability of the Ombudsman to gather 

information needed for successful 

resolution of problems would be 

impaired. One of these commenters 

indicated that some State laws currently 

conflict with the requirements of the 

Act and that this language would help 

clarify the need for changes in the 

language and/or interpretation of State 

laws with respect to Ombudsman 

reporting. Six commenters indicated 

that the proposed language is a welcome 

clarification since a number of States 

have experienced confusion in resolving 

the conflict between the Act’s 

limitations on Ombudsman disclosure 

of resident identifying information and 

State mandated abuse reporting laws. 

One commenter indicated that the 

proposed language would strengthen the 

Ombudsman program ability to resolve 

complaints on behalf of residents. 

Response: We appreciate the 

supportive comments and note that the 

relevant provision is now incorporated 

into a newly numbered provision in the 

final rule at § 1327.11(e)(3)(iv). 

Comment: Two commenters 

recommended the inclusion of penalties 

for a State agency which violates this 

provision. 

Response: We have not included 

penalties in this provision specifically; 

the broader topic of the State agency 

duty to provide for sanctions with 

respect to interference, retaliation and 

reprisals is addressed at § 1327.15(i). In 

addition, the Federal regulation 

provides options for HHS grant 

awarding agencies such as AoA to 

respond when a grantee fails to comply 

with any term of an award ensure 

compliance by its grantees. 45 CFR 

75.371. 

Comment: Two commenters disagreed 

with the language of the proposed rule 

at § 1327.15(a)(2)(iii)(E) regarding abuse 

reporting requirements. One of these 

commenters indicated that the 

Ombudsman program should defer to 

State regulations with respect to 

mandatory reporting requirements in 

protective services matters. The other 

commenter asked why the Federal 

government would not want a system 

that requires advocates to keep people 

safe from further abuse. 

Response: Through the strict 

disclosure limitations within the OAA 

at section 712(d)(2)(B), Congress has 

indicated its intent for the Ombudsman 

program to be a safe place for the 

concerns of residents to be brought, 

knowing that their information will not 

be disclosed without their consent (or 

the consent of the resident 

representative). Despite numerous 

Congressional reauthorizations of the 

Act, Congress has never provided an 

exception for abuse reporting in the Act. 

While we have provided, in this final 

rule, limited exceptions for reporting 

resident-identifying information where 

residents are unable to communicate 

informed consent (see § 1327.19(b)), we 

do not believe that the Act provides us 

with the authority to promulgate a rule 

that would permit Ombudsman program 

reporting of resident identifying 

information if the resident or resident 

representative, who is able to 

communicate informed consent, has not 

provided consent nor do we support 

such reporting over the resident’s 

objection, as a matter of policy. 

Residents reaching out for assistance 

on an abuse, neglect or exploitation 

complaint may well want their 

information conveyed by the 

Ombudsman program to protective 

services, the licensing and regulatory 

agency, and/or law enforcement; 

indeed, the final rule clarifies that the 

Ombudsman program has a duty to 

make such a referral when requested by 

the resident. See § 1327.19(b)(3)(i)). The 

Ombudsman program may inform 

complainants who report suspected 

abuse that they may (and, under some 

circumstances, must) report the 

complaint information to protective 

services, the licensing and regulatory 

agency, and/or law enforcement. The 

Ombudsman program may advise the 

resident of the appropriate role and 

limitations of the Ombudsman program, 

assist the resident in understanding his 

or her options, and encourage the 

resident to report—and/or consent to 

the Ombudsman program referral—to 

protective services, the licensing and 

regulatory agency, and/or law 

enforcement. 

However, the Ombudsman program is 

designed to represent the interest of the 

resident (and not necessarily the interest 

of the State) in order to support the 

resident to make informed decisions 

about the disclosure of his or her own 

information. Residents may be 

concerned about retaliation if their 

concern is known or have other reasons 

why they do not want the Ombudsman 

program to disclose their private 

information. While Congress intends for 

the Ombudsman program to resolve 

complaints related to the health, safety, 

welfare and rights of residents, and 

while that intent logically includes 

response to and protection from abuse, 

Congress provided the resident—and 

not the Ombudsman program—with the 

authority to make the decision about 

when and where resident-identifying 

information can be disclosed by the 

Ombudsman program. That is as it 

should be. 

Comment: One commenter 

recommended adding the word 

‘‘including’’ to modify ‘‘when such 

reporting discloses the identity of a 

complainant or resident’’ in the 

proposed rule at § 1327.15(a)(2)(iii)(E) 

regarding abuse reporting requirements. 

According to the commenter, as 

proposed, the Ombudsman program 

could be included as a mandatory 

reporter under State law so long as they 

don’t include resident or complainant 

identity. 

Response: We have adopted this 

recommendation in the provisions 

related to policies and procedures for 

disclosure at § 1327.11(e)(3)(iv). The 

circumstances which set forth 

appropriate parameters for Ombudsman 

program reporting of abuse as part of 

complaint processing are more fully 

described in the final rule at 

§ 1327.19(b). 

Comment: One commenter requested 

technical assistance to States for which 

the current State law is inconsistent 

with the Act regarding abuse reporting. 

Another commenter requested 


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additional clarification regarding State 

agency responsibility and Ombudsman 

authority related to abuse reporting. 

Response: AoA continues to be 

available to provide technical assistance 

to State agencies and Ombudsmen 

regarding compliance with these and 

other provisions of the Act. 

Comment: One commenter requested 

an exception related to reporting where 

an incident of abuse is witnessed by a 

representative of the Office. 

Response: We have provided clarity 

regarding this circumstance in the final 

rule at § 1327.19(b)(8). 

Comment: One commenter 

recommended guidance regarding 

Ombudsman program responsibility 

related to attending consent for identity 

disclosure when a resident alleges 

suicidal ideation. 

Response: While we have not 

included a regulation regarding 

disclosure of resident identifying 

information when the resident alleges 

suicidal ideation into this rule, we 

appreciate the comment and have noted 

the need for technical assistance for 

State agencies and Ombudsman 

programs related to this issue. 

Comment: Three commenters 

indicated support for the language of the 

proposed rule at § 1327.15(a)(2)(iii)(F) 

regarding the source of the request for 

information or source of funding for the 

Ombudsman program services. 

Response: We appreciate the 

supportive comments and note that the 

relevant provision is now incorporated 

into a newly numbered provision in the 

final rule at § 1327.11(e)(3)(v). 

Comment: One commenter 

recommended that we add reference to 

the fact that the requirements of the 

proposed provision should be effective 

notwithstanding section 705(a)(6)(c) of 

the Act. 

Response: We are aware that some 

State agencies and other entities have 

found this provision (governing 

administration of the Title VII, Chapter 

3, Prevention of Elder Abuse, Neglect 

and Exploitation Program, and not the 

Ombudsman program) confusing, 

particularly since both of these 

programs are established within Title 

VII of the Act. Additionally, in some 

States, Title VII, Chapter 3-funded 

activities are performed in whole or in 

part by the Ombudsman program. 

Therefore, we are including this 

recommendation to clarify our intent in 

the final rule at § 1327.11(e)(3)(v). 

Comment: One commenter 

recommended that we clarify the 

protection of facility staff members who 

are willing to speak openly in 

Ombudsman program investigations and 

may be at risk of retaliation for their 

cooperation. 

Response: The Ombudsman is 

provided discretion by the Act to 

determine disclosure of files, records 

and other information of the Office. The 

policies and procedures regarding 

disclosure, required by § 1327.11(e)(3), 

and the criteria developed by the 

Ombudsman related to disclosure, 

required by § 1327.13(e), may 

appropriately include provisions related 

to protection of sources of information. 

The Act does not prohibit the 

Ombudsman program from disclosing 

identifying information for facility staff 

members or other individuals who 

provide information to the Ombudsman 

program. However, it does provide that 

‘‘[t]he State shall . . . (2) prohibit 

retaliation and reprisals by a long-term 

care facility or other entity 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.’’ Section 712(j)(2) of the Act. 

Therefore, we have added a provision 

in this final rule at § 1327.15(i) 

regarding interference, retaliation and 

reprisals. 

Comment: One commenter 

recommended that we include the word 

‘‘independently’’ to describe the 

authority of the Ombudsman to 

recommend changes to laws, 

regulations, and policies as set forth in 

the proposed language of 

§ 1327.15(a)(2)(v). 

Response: We believe that the final 

rule, at § 1327.11(e)(8) is sufficiently 

clear that the Ombudsman has 

discretion to make such 

recommendations. The Ombudsman is 

the head of the Office, and Act is clear 

that the Office is to make the 

determination regarding the 

appropriateness of recommendations. 

Therefore, we do not believe the 

recommended change is necessary. 

Comment: One commenter indicated 

that in their State, current policies and 

protocols prohibit the State agency from 

upholding this requirement. 

Response: We appreciate the 

commenter bringing this issue to our 

attention in the comment. The Act is 

clear that the Office has the authority to 

make recommendations regarding 

changes to laws, regulations, and 

policies pertaining to the interests of 

long-term care facility residents. This is 

both a required function of the 

Ombudsman (at section 712(a)(3)(G) of 

the Act) and an expectation of the State 

agency to require of the Office (section 

712(h)(2) of the Act). AoA plans to 

provide assistance to State agencies and 

Ombudsmen to assist them in coming 

into compliance with this rule. 

Comment: Twelve commenters 

indicated support for the proposed 

language at § 1327.15(a)(2)(v)(A) 

regarding the State’s duty to exclude the 

Ombudsman and representatives of the 

Office from State lobbying prohibitions 

inconsistent with the Act. One of these 

commenters indicated that this is a 

welcome clarification since many States 

have experienced problems with 

implementing these provisions of the 

Act. One commenter indicated that the 

proposed language supports the 

independence of the Office and the 

ability of the Ombudsman to fulfill 

requirements of the Act. One 

commenter indicated that the proposed 

language is essential to shield the 

Ombudsman program from potential 

interference. 

Another commenter indicated that the 

Act is clear in its directive that the 

Ombudsman program is to provide 

input on public policy decisions that 

pertain to health, safety, welfare and 

rights of residents, and that the 

proposed language will help secure this 

vital voice for long-term care consumers 

in the public policy arena. 

Response: We appreciate the 

supportive comments and note that 

relevant provisions are found at 

§§ 1327.11(e)(5) and 1327.13(a)(7)(vii) of 

the final rule. 

Comment: One commenter 

recommended that we indicate that 

obstruction of the activity required at 

§ 1327.15(a)(2)(v)(A) (i.e. the State 

agency responsibility to exclude the 

Office Ombudsman and representatives 

of the Office from State lobbying 

prohibitions inconsistent with section 

712 of the Act) by a host agency is 

willful interference and should be 

reported to AoA for investigation. 

Another recommended that the 

provision should include penalties for a 

State agency that violates this provision 

of the Act. 

Response: In the final rule, the 

corresponding provision related to State 

lobbying prohibitions is found at 

§ 1327.11(e)(5)(i). Federal regulation 

provides options for HHS grant 

awarding agencies such as AoA to 

respond when a grantee, such as a State 

agency, fails to comply with any term of 

an award. 45 CFR 75.371. 

Comment: One commenter 

recommended that the provision at 

§ 1327.15(a)(2)(v)(A) indicate that the 

Ombudsman and representatives of the 

Office are excluded from lobbying 

restrictions within the State agency or 

local Ombudsman entities’ personnel 

policies. 


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Response: The final rule requires that 

the agency hosting the Office and any 

agency hosting local Ombudsman 

entities may not have personnel policies 

or practices which prohibit the 

Ombudsman or representatives of the 

Office, respectively, from carrying out 

their functions, responsibilities or 

duties required by this rule. 

§§ 1327.11(e)(1)(i), 1327.17(b). 

Comment: One commenter indicated 

that, in their State, the Ombudsman is 

organizationally located in a 

government umbrella agency and must 

adhere to State protocols related to 

legislative action and lobbying which 

apply to State employees. The 

commenter recommended that AoA 

consider differences in structure from 

State to State in finalizing this rule. 

Another commenter indicated that the 

Ombudsman in their State is a State 

employee and is therefore bound by 

policy that does not exclude the 

Ombudsman from State lobbying 

prohibitions. The commenter 

anticipates significant challenges in 

their State in upholding this proposed 

provision based on current State policy. 

Response: We appreciate the 

commenters bringing these issues to our 

attention. The Act is clear that Congress 

intends for the Office to have the 

authority to make recommendations 

regarding changes to laws, regulations, 

and policies pertaining to the interests 

of long-term care facility residents. This 

is both a required function of the 

Ombudsman (at section 712(a)(3)(G) of 

the Act) and an expectation of the State 

agency to require of the Office (section 

712(h)(2) of the Act). 

Should a State not wish to have a 

State employee in the role of fulfilling 

the Ombudsman functions of the Act, 

the Act provides States with options to 

carry out the program by contract or 

other arrangement with another public 

agency or a nonprofit private 

organization. Section 712(a)(4)(A) of the 

Act. AoA plans to assist State agencies 

and Ombudsmen to comply with this 

rule. 

Comment: One commenter indicated 

that the proposed language at 

§ 1327.15(a)(2)(v)(A) essentially negates 

the wisdom of input of others and 

questioned the wisdom of one person 

having unilateral authority to express 

their opinion about any legislative bill 

or legal matter. The commenter 

indicated that the State aging network is 

to be a comprehensive, coordinated 

system of care for older adults and that 

this proposed rule pits one part of the 

network against another. The 

commenter also questioned how the 

State agency can be required by the Act 

to advocate for older adults except 

where the Ombudsman program exists, 

describing this as an inconsistent 

message. 

Response: It is not the intent of AoA 

to negate the wisdom of input of others 

in the work of the Ombudsman 

program. On the contrary, we expressly 

provide (at newly numbered 

§ 1327.11(e)(5)(ii)) that policies which 

promote consultation regarding the 

determinations of the Office are not 

prohibited and we require that the 

Office coordinate its activities with a 

large number of relevant entities (at 

§ 1327.13(h)). We strongly encourage 

collaboration between the Ombudsman 

and the State agency, as well as with 

other stakeholders. 

We intend to clarify in this rule how 

both the State agency and the 

Ombudsman program can successfully 

fulfill all of the functions and duties 

required by the Act. AoA is available to 

provide technical assistance to any State 

in its implementation of the final rule. 

Comment: One commenter requested 

additional clarification regarding the 

roles and responsibilities of the 

Ombudsman program with respect to 

lobbying and legislative advocacy as 

well as the interaction between the 

Ombudsman program and the State 

agency in its fulfillment of oversight 

duties. The commenter requested 

enhanced technical assistance and subregulatory guidance for gubernatorial, 

State agency, State legislative, and local 

levels regarding the proposed language 

at § 1327.15(a)(2)(v)(A). 

Response: We believe that the final 

rule assists in clarifying the 

responsibilities of the Ombudsman, the 

representatives of the Office, and the 

State agency. We are available to 

provide training and technical 

assistance regarding the implementation 

of the final rule. 

Comment: One commenter requested 

that we amend the proposed language 

regarding the Office making 

recommendations to ensure that local 

Ombudsman entities are able to carry 

out their duties freely and 

independently from the Office. The 

commenter indicated that, if the 

Ombudsman is given authority to veto 

positions of representatives of the 

Office, in many States residents of longterm care facilities may have no voice at 

all. 

Response: The Act sets out the 

Ombudsman as the head of the Office. 

Section 712(a)(2) of the Act. The 

Ombudsman has the authority to make 

determinations regarding the positions 

of the Office, including but not limited 

to recommendations for changes in 

laws, regulations and policies. See 

section 712(h)(2) of the Act. We note 

that there is nothing prohibiting the 

Ombudsman establishing policies that 

provide for representatives of the Office 

to also perform the function of making 

recommendations, and that the final 

rule requires procedures that exclude 

representatives of the Office from any 

state lobbying prohibitions inconsistent 

with section 712 of the Act. 

However, the duties of the 

representatives of the Office are to be 

performed in accordance with the 

policies and procedures established by 

the Office and the State agency. Section 

712(a)(5)(B) of the Act. Therefore, we 

believe that requiring the State agency 

or the Ombudsman to permit 

representatives of the Office to make 

recommendations freely and 

independently from the Office would be 

inconsistent with the Act. 

Comment: One commenter indicated 

that, related to the proposed language at 

§ 1327.15(a)(2)(v)(A), some local 

Ombudsman entities are 

organizationally located within agencies 

funded by Legal Services Corporation 

(LSC) which prohibits lobbying. The 

commenter recommended that AoA 

require LSC-funded entities to comply 

with the Act or the Ombudsman should 

be required to ensure that advocacy for 

residents in areas served by legal 

services programs is being done by 

contracting with a separate entity to 

perform services prohibited by the LSC. 

Response: Congress has prohibited 

LSC-funded entities from participating 

in certain lobbying activities, except in 

limited situations. This prohibition also 

applies to activities performed with 

non-LSC funds. See 42 U.S.C. 2996e; 

section 504 (a)–(e), Public Law 104–134, 

110 Stat. 1321, 1321–53—1321–57; 45 

CFR parts 1610, 1612. (We note that a 

transfer of non-LSC funds from a LSC 

entity to a non-LSC sub-grantee is not 

subject to LSC restrictions. See 45 CFR 

part 1610; see also 62 FR 27695–27597.) 

AoA does not have the authority to 

require LSC-funded entities to violate 

Federal requirements under the LSC 

laws and regulations in order to carry 

out the requirements of the Act. 

AoA has concluded that, in light of 

the current LSC limitations on policy 

work with a legislative body or other 

government offices or agencies, if an 

Office were to be organizationally 

located in a LSC-funded entity, the 

Ombudsman would be unable to fulfill 

all of the functions required by the Act. 

Therefore, it would not be appropriate 

for a State to select an LSC-funded 

entity for organizational placement of 

the Office under current laws and 

regulations governing LSC-funded 

entities. Nonetheless, LSC-funded 

entities could host local Ombudsman 


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entities or representatives of the Office 

so long as the Ombudsman determines 

that the representatives of the Office can 

adequately fulfill their duties directly or 

in conjunction with the Office. 

We note that the functions which 

could violate the LSC provisions are 

specifically listed as required functions 

of the Office (i.e. the Office of the State 

Long-Term Care Ombudsman), as 

opposed to duties required of local 

Ombudsman entities or representatives 

of the Office. For example, the function 

to recommend any changes in such 

laws, regulations, policies, and actions 

(section 712(a)(3)(G)(ii) of the Act) is 

required of the Office, but not listed 

within the duties of the representatives 

of the Office as set forth in section 

712(a)(5) of the Act. The State agency is 

required by the Act to require the Office 

to provide policy, regulatory, and 

legislative recommendations in its 

annual report (section 712(h)(1)(F)); 

recommend changes in laws, regulations 

and policies (section 712(h)(2)) and 

provide information to legislators 

regarding recommendations related to 

problems and concerns (section 

712(h)(3)). 

We recommend that, if the 

Ombudsman is considering designating 

(or continuing to designate) an LSCfunded entity as a local Ombudsman 

entity, the Ombudsman be familiar with 

the relevant LSC requirements that may 

impact the ability of the representatives 

of the Office to perform some systems 

advocacy activities. 

The Ombudsman should evaluate 

whether the LSC requirements limit the 

ability of the representatives of the 

Office to adequately fulfill their 

requirements under the policies and 

procedures of that State’s Ombudsman 

program. So long as the Office is able to 

fulfill all of its functions required by the 

Act, we do not interpret the Act to 

prohibit the Ombudsman from 

designating a local Ombudsman entity 

hosted by a LSC-funded entity. AoA is 

available to provide technical assistance 

to State agencies and Ombudsmen. Any 

LSC-funded entity which is requesting 

consideration to host (or continue to 

host) a local Ombudsman entity should 

similarly be familiar with these 

limitations, seek guidance from LSC 

regarding their interpretation, and 

evaluate its ability to support its 

employees and volunteers in fulfilling 

their duties as representatives of the 

Office. Ultimately, the LSC-funded 

entity is responsible for its compliance 

with LSC requirements and 

prohibitions. LSC has developed helpful 

guidance regarding these LSC lobbying 

restrictions that is available on its Web 

site at www.lsc.gov. The most recent 

guidance is at http://www.lsc.gov/sites/ 

lsc.gov/files/AO-2014-005.pdf. 

Comment: One commenter supported 

the proposed language at 

§ 1327.15(a)(2)(v)(B) regarding 

consultation on Ombudsman 

determinations by the State agency or 

other agency carrying out the 

Ombudsman program and regarding 

accountability of the Ombudsman and 

representatives of the Office to the 

policies and procedures of their 

employer. The commenter indicated 

that, while the State agency may not 

interfere with the Ombudsman’s 

functions, and while the Ombudsman 

does have the authority to have a 

different agenda and position than that 

of the State agency, it is crucial that the 

State agency be permitted to request 

regular communication regarding the 

Ombudsman’s determinations. 

Response: We appreciate the 

supportive comment and note that the 

relevant provision in the final rule is 

§ 1327.11(e)(5)(ii). 

Comment: One commenter indicated 

that the proposed rule at 

§ 1327.15(a)(2)(v)(B) attempts to use the 

regulatory process to create a positive 

relationship. Where that already exists, 

this requirement is unnecessary and 

where there is tension, the State 

authority to create policies that force the 

Ombudsman to disclose and discuss 

policy strategies and determinations 

will make the relationship more 

difficult. The commenter indicated that 

the rule is silent on the State agency’s 

responsibility to share its policy 

decisions and determinations with the 

Ombudsman. 

Response: Our intent in this provision 

is to clarify the appropriateness of the 

relationship between the State agency 

and the Ombudsman program, given 

that the State agency is the Federal 

grantee with responsibility for making 

sure that an Ombudsman program is 

appropriately carried out in the State 

and that the Office has the statutory 

authority and requirements to make 

determinations which are not typical of 

other programs for which the State 

agency has responsibility. We believe 

the provision appropriately describes 

this relationship so that the State agency 

and the Ombudsman—as well as the 

entity carrying out the Office, if other 

than the State agency—have more 

clarity regarding both the 

appropriateness of consultation and the 

inappropriateness of interference with 

Ombudsman determinations. 

Comment: One commenter suggested 

separation of the employer policies and 

procedures and the opportunity for 

consultation at § 1327.15(a)(2)(v)(B). 

Response: We agree that it would be 

clearer to separate these concepts, rather 

than combining them into one 

paragraph. Therefore, in the final rule 

the provisions related to personnel 

policies and the Office have been 

incorporated into § 1327.11(e)(1)(ii). The 

provisions related to personnel policies 

of agencies hosting local Ombudsman 

entities are at § 1327.17(b). We retain 

the amended provision related to 

consultation and systems advocacy at 

newly numbered provision at 

§ 1327.11(e)(5)(ii). 

Comment: One commenter provided 

suggested language focusing the 

consultation requirement 

§ 1327.15(a)(2)(v)(B) on public policy 

determinations of the Office. 

Response: We agree that the 

determinations of the Ombudsman most 

appropriate for consultation are those 

related to recommendations to laws, 

regulations and policies of government 

agencies and have made this 

amendment to the final rule and moved 

the provision to the subparagraph 

entitled ‘‘Systems Advocacy’’ in 

§ 1327.11(e)(5). 

Comment: One commenter objected to 

and suggested deletion of the proposed 

language at § 1327.15(a)(2)(v)(B). The 

commenter indicated that the primary 

threat to the success and integrity of the 

Ombudsman program is its lack of 

independence and that the most 

common entity to threaten that 

independence is the State agency. The 

commenter indicated that AoA is 

unrealistic to believe that State agencies 

do not sometimes use consultation 

requirements to interfere with 

Ombudsman independence and, that, by 

authorizing the State agency to require 

consultation, AoA was putting 

Ombudsman independence into 

question. The commenter indicated that 

good communication can take place 

without putting this requirement into 

the final rule. 

Response: The provision regarding 

consultation, in the final rule at 

§ 1327.11(e)(5)(ii), permits the policies 

and procedures of a State’s Ombudsman 

program to promote Ombudsman 

consultation with the State agency on 

systems advocacy. It is permissive, 

rather than a requirement. While we 

appreciate the commenter’s concern 

regarding the Ombudsman program’s 

ability to independently fulfill its 

functions, we believe that the rule in its 

entirety supports the commenter’s 

concern that the Office should operate 

as a distinct entity (see, § 1327.11(b)) 

and that the Ombudsman be able to 

make independent determinations (see 

§ 1327.11(e)(8)). 


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We believe that the final rule strikes 

the right balance between this 

independence and the opportunity for a 

State agency to be knowledgeable of the 

determinations of the Office, since the 

head of the Office (i.e. the Ombudsman) 

is necessarily either its employee, or 

employed by an entity with which it has 

a contract or other arrangement. In 

addition, without consultation, the State 

agency may be limited in its ability to 

make its own determinations with full 

knowledge of the perspectives of the 

Office related to resident interests. 

Comment: One commenter indicated 

that the provision at 

§ 1327.15(a)(2)(v)(B) should be amended 

to indicate that an employer’s policies 

must be in accordance with the access, 

confidentiality and disclosure 

provisions set forth in section 712 of the 

Act. 

Response: We agree with this 

recommendation and have incorporated 

related language into § 1327.11(e)(1)(i) 

(regarding the Office) and 

§§ 1327.11(e)(ii) and .17(b) (regarding 

agencies hosting local Ombudsman 

entities). 

Comment: One commenter indicated 

that the proposed language at 

§ 1327.15(a)(2)(v)(B) should be amended 

to indicate that a policy promoting 

consultation cannot require a right to 

review or pre-approve communications 

by the Ombudsman or representatives of 

the Office. 

Response: We agree with the 

recommendation and have made a 

corresponding amendment in the final 

rule at § 1327.11(e)(5)(ii). 

Comment: One commenter 

recommended that the provision at 

§ 1327.15(a)(2)(v)(B) require, rather than 

not prohibit, consultation. The 

commenter argued that such a 

requirement would promote effective 

Ombudsman program operation by 

ensuring that both the Ombudsman and 

State agency have an opportunity to 

discuss and review positions and so that 

neither is caught off guard in public 

arenas. 

Response: We agree that consultation 

can promote effective Ombudsman 

program operation if done in a manner 

supportive of the Office’s responsibility 

to represent the interests of residents 

through recommended changes to laws, 

regulations and policies of government 

agencies. We believe that it is sufficient 

to clarify that such consultation is not 

prohibited and to leave the 

determination up to the State agency 

and Ombudsman of whether the 

parameters of consultation need to be 

formalized in state-level policies and 

procedures. 

Comment: One commenter indicated 

that the only way to make sure that 

political interference with the 

Ombudsman does not occur is to require 

that the State agency cannot fire the 

Ombudsman due to the nature or 

content of the Ombudsman’s advocacy. 

The commenter recommended this be 

required in State policies. 

Response: After careful consideration, 

we have decided against providing 

specific criteria regarding the firing of 

the Ombudsman. We believe that the 

clarifications provided by this rule 

related to the operation of the 

Ombudsman program; organizational 

and individual conflicts of interest; and 

freedom from interference, retaliation, 

and reprisals provide sufficient clarity 

to protect the Ombudsman from 

retaliation for performing the duties 

required by the Act. 

The Act specifically provides State 

agencies with significant latitude in 

determining whether to operate the 

Ombudsman program directly (and how 

to structure the program within or 

attached to the State agency) or operate 

it through contract or other agreement 

with another agency. Therefore, States 

have appropriately structured a wide 

variety of organizational placements for 

the Ombudsman and, as a result, there 

is wide variation among applicable laws 

impacting employment, labor, 

government contracting, and 

interagency agreements that may apply 

to the firing of an Ombudsman or the 

termination of a contract for the 

operation of the Office. AoA believes 

that developing criteria regarding firing 

might create confusion in the context of 

the wide variety of applicable legal 

requirements. 

However, AoA is aware that a number 

of employment arrangements and 

organizational structures have been 

developed to protect employees within 

other types of ombudsman programs, 

inspectors general, and other entities 

where independent oversight or 

consumer advocacy are required 

activities. Therefore, AoA plans to 

provide States with further guidance 

and technical assistance regarding 

employment provisions and structures 

which they may consider in further 

strengthening the ability of the 

Ombudsman to fulfill his or her 

functions under the Act. 

Comment: Three commenters 

indicated support for the proposed 

language of § 1327.15(a)(3) regarding the 

use of Title III and Title VII funds for 

access to training opportunities. 

Response: We appreciate the 

supportive comments and note that, in 

the final rule, this provision is at 

§ 1327.15(c). 

Comment: One commenter requested 

language that defines training standards 

and indicated that budgetary constraints 

have resulted in insufficient training 

availability to representatives of the 

Office. Another commenter indicated 

that current training is insufficient, 

creating inconsistencies among local 

Ombudsman entities. 

Response: We have decided to not 

incorporate training standards into this 

rule, but do plan to develop and 

implement training standards for the 

Ombudsman program. We also 

recommend that Ombudsman programs 

refer to the National Ombudsman 

Resource Center for training resources 

and a core curriculum. 

Comment: One commenter indicated 

support for the proposed language of 

§ 1327.15(a)(4) and (5) regarding the 

responsibilities of the State agency to 

provide personnel supervision and 

management, monitoring and oversight, 

and to clarify limitations on review of 

files, records or other information 

maintained by the Office. 

Response: We appreciate the 

supportive comment. 

Comment: One commenter indicated 

that the proposed language of 

§ 1327.15(a)(4) and (5) regarding 

limitations on the review of files, 

records or other information maintained 

by the Office is too broadly written and 

could open up virtually all of the of the 

Ombudsman program records, files and 

thought processes to the State agency, 

resulting in a chilling effect on the 

Ombudsman program. The commenter 

recommended that it would more 

appropriate to indicate to the State 

agency that access to aggregate data and 

required Ombudsman program reports 

is sufficient to fulfill these 

responsibilities. 

Response: In order to reduce 

confusion regarding disclosure of files, 

records or other information, we have 

revised these provisions in the final rule 

at newly numbered § 1327.15(d)–(f). 

Comment: One commenter 

recommended that the provisions 

related to oversight of the Office at 

proposed § 1327.15(a)(4) and (5) should 

include a process for investigating 

complaints against the Ombudsman and 

representatives of the Office and a 

mechanism for due process in the event 

of disciplinary action or de-designation. 

Response: We have included a new 

provision at § 1327.11(e)(6) of the final 

rule to require that the development of 

designation policies and procedures, 

which include the criteria and process 

for de-designation. In addition, we have 

added a grievance process requirement 

in § 1327.11(e)(7) to address this and 

other situations where an opportunity 


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for review of an action or determination 

is warranted. 

Comment: One commenter indicated 

that the regulations include language 

specifying that allegations against the 

Ombudsman for failure to carry out his 

or her duties as required in the Act shall 

be filed with the State agency with 

concurrent notification to the Director of 

the Office of Long-Term Care 

Ombudsman Programs at AoA. 

Response: We do not believe that we 

have authority to require a person with 

an allegation related to the Ombudsman 

to report to the State agency, AoA, or 

any other entity. Instead, we have 

required in the final rule, at 

§ 1327.11(e)(7), that a grievance process 

be available to address this and other 

situations where an opportunity for 

review of an action or determination is 

warranted. 

Comment: Two commenters indicated 

that the monitoring by the State agency, 

required at proposed rule 

§ 1327.15(a)(5), should include an 

assessment of whether the Office is 

performing all required functions, 

including systems advocacy, but should 

be clear that such monitoring should not 

include monitoring the substance of any 

public comment or recommendation so 

it does not hinder the independent 

voice of the Ombudsman. 

Response: We agree that the 

monitoring required in proposed 

§ 1327.15(a)(5) (newly numbered at 

§ 1327.15(e) shall include an assessment 

of whether the Office is performing all 

of its functions under the Act and have 

amended this provision accordingly. We 

have also made a parallel provision in 

the newly numbered § 1327.15(d), 

regarding personnel supervision and 

management. 

In addition, we appreciate the 

commenter’s concern regarding the 

Ombudsman program’s ability to 

independently fulfill its function related 

to systems advocacy. We believe that 

the rule in its entirety supports the Act’s 

requirement that the Ombudsman must 

be able to make independent 

determinations regarding recommended 

changes to laws, regulations or policies. 

Comment: One commenter indicated 

that the proposed language was a good 

clarification of the importance of 

integrating Ombudsman program 

operations into the State Plan. Another 

commenter appreciation for the 

proposed language at § 1327.15(a)(6) 

regarding integration of the goals and 

objectives of the Office into the State 

plan and coordinate the goals of the 

Office with those of other programs and 

services, indicating that, as an Office 

operating outside of the State agency, 

such integration and coordination does 

not currently occur. 

Response: We appreciate the 

supportive comments and note that the 

corresponding provision in the final 

rule is at § 1327.15(g). 

Comment: One commenter 

recommended that we substitute the 

term ‘‘promote collaborative efforts’’ 

with ‘‘require collaborative efforts’’ in 

§ 1327.15(a)(6) of the proposed rule. 

Response: Given that the range of 

programs and services referenced in this 

provision include some entities over 

which the State agency may have no 

authority, we believe the term 

‘‘promote’’ is more appropriate than 

‘‘require.’’ We note that the 

corresponding provision in the final 

rule is at § 1327.15(g). 

Comment: One commenter indicated 

that the proposed language at 

§ 1327.15(a)(7) effectively describes the 

critical and unique dynamic between 

the Office and State agency, 

simultaneously maintaining an 

important separateness while 

coordinating closely on the State’s elder 

rights agenda. 

Response: We appreciate the 

supportive comments and note that the 

corresponding provision in the final 

rule is at § 1327.15(h). 

We also note that we have added in 

the final rule the responsibility for the 

State agency to ‘‘provide elder rights 

leadership’’ in order to distinguish the 

role of the State agency from that of the 

Ombudsman, in response to comments 

made in response to proposed language 

at § 1327.13(l). We believe that this 

revision more accurately reflects the 

Act’s requirement of the State agency to 

‘‘coordinate the programs [to address 

elder abuse, neglect and exploitation] 

with other State and local program and 

services for the protection of vulnerable 

adults.’’ Section 721(d) of the Act. 

We have amended the term 

‘‘responsibilities relevant to the health, 

safety, well-being, or rights of older 

adults, including residents of long-term 

care facilities’’ for ‘‘protection of 

vulnerable adults’’ in order to more 

closely correspond to the language of 

§ 1327.13(h). Additionally, we note that 

we have maintained the term ‘‘older’’ in 

this provision (though not in 

§ 1327.13(h)) since this provision 

specifically relates to the duty of the 

State agency (i.e. the State unit on 

aging). 

Comment: Nine commenters 

indicated support for the proposed 

language at § 1327.15(a)(8). One of these 

commenters indicated that 

independence of the Office to conduct 

advocacy on both individual and 

systemic levels without interference of 

State agencies, facilities or others is of 

primary importance. Two of these 

commenters indicated that Ombudsmen 

and representatives of the Office have 

experienced limitations on their ability 

to act due to policies or practices of 

their host agencies which have made 

them unable to fulfill their mandates 

under the Act. Two commenters 

indicated appreciation for the preamble 

language related to potential 

interference by State agencies. One 

commenter indicated that the proposed 

language reference to duties of the 

representatives of the Office (i.e. at the 

local level) is particularly helpful. 

Response: We appreciate the 

supportive comments and note that the 

corresponding provision in the final 

rule is at § 1327.15(b). 

Comment: Nine commenters 

recommended that a mechanism be 

developed and implemented to protect 

the Office whenever State agencies 

attempt to curtail the advocacy of 

Ombudsmen for people the 

Ombudsman program was created to 

serve. Some commenters recommended 

penalties for willful interference be 

included, such as civil money penalties 

or intermediate sanctions including 

directed plans of correction; others 

recommended that AoA provide a 

grievance process for review and action 

where interference is found. 

Another commenter recommended 

that the final rule address sanctions for 

other parties, in addition to the State 

agency, that willfully interfere with 

representatives of the Office in the 

performance of their duties or retaliate 

against residents or other persons who 

complain to or cooperate with 

representatives of the Office as 

prohibited by 712(j) of OAA. 

Response: The final rule includes a 

new provision requiring that the State 

agency prohibit interference with the 

Office in the performance of its 

functions and duties, as a result of 

considering these and other related 

comments. Specifically, we have 

addressed the issue of interference in 

new provisions at § 1327.1 (defining 

‘‘willful interference’’) and § 1327.15(i) 

(related to interference, reprisals, and 

retaliation). 

We note that the relationship between 

AoA and the State agency is one of a 

grant awarding agency to a grantee. 

Federal regulation provides options for 

HHS grant awarding agencies such as 

AoA to respond when a grantee fails to 

comply with any term of an award. 45 

CFR 75.371 

Comment: One commenter 

recommended that the final rule include 

the requirements in section 712(j)(2) and 

(3) of the Act which require the State to 


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prohibit retaliation or reprisals by any 

entity, including the State and local 

agencies as well as to long-term care 

facilities, and which require the State to 

provide for appropriate sanctions. 

Another commenter recommended that 

the rule provide the Office with the 

authority and ability to perform all 

duties and ensure that allegations of 

willful interference are investigated, 

and, as appropriate, referred to outside 

agencies. Another commenter 

recommended that the State agency be 

responsible to identify and remedy 

allegations of willful interference. 

Response: We have incorporated 

provisions related to this 

recommendation at § 1327.15(b) and (i) 

of the final rule. 

Comment: One commenter 

recommended that the proposed 

language at § 1327.15(b) regarding 

Ombudsman access to records be 

amended to require long-term care 

facilities to disclose the name and 

contact information of the resident’s 

legal representative or guardian, 

indicating that this is necessary in order 

for a representative of the Office to 

identify whether a legal representative 

exists in order to make a contact when 

necessary. In addition, the commenter 

indicated that the provision should 

require ‘‘prompt’’ access to records as 

well as identify actions to be taken by 

the State agency where facilities violate 

this requirement. 

Response: We have added a new 

provision in the final rule at 

§ 1327.11(e)(2) requiring Ombudsman 

program policies and procedures which 

relate to timely access to facilities, 

residents and records, including contact 

information for the resident’s 

representative. 

We have also added a new paragraph 

in § 1327.15(b) to clarify the State 

agency’s responsibility to assure that 

Ombudsman authority to access to 

facilities, residents and records is 

adequately provided for in State law. 

We recognize that, in many States, the 

State agency does not have the authority 

to make requirements of long-term care 

facilities, but we expect that it can work 

with other appropriate State agencies to 

provide for this authority. 

Comment: Three commenters 

indicated support for the proposed 

language at § 1327.15(b)(1) regarding the 

relationship between the Health 

Insurance Portability and 

Accountability Act of 1996 (HIPAA) and 

Ombudsman program access to records. 

One of these commenters indicated that 

this provision will help support 

Ombudsman program education to 

facilities and reduce delays in 

complaint resolution for residents. 

Response: We appreciate the 

supportive comments and note that the 

corresponding provision is at 

§ 1327.11(e)(2)(vii). 

Comment: One commenter 

recommended that the language in the 

final rule should clearly state that all 

persons acting under the authority of 

the Office have access to resident 

records as part of a health oversight 

agency pursuant to HIPAA. 

Response: We have clarified that both 

Ombudsmen and representatives of the 

Office have access to resident records, 

as well as other appropriate access to 

facilities, residents and records, in the 

new provision regarding ‘‘procedures 

for access’’ in the final rule at 

§ 1327.11(e)(2). 

Comment: One commenter 

recommended that AoA communicate 

with CMS regarding the importance of 

enforcing the HIPAA provision. 

Response: We have shared this 

comment with CMS Division of Nursing 

Homes within the Center for Clinical 

Quality and Standards, as 

recommended. We also note that the 

HHS Office for Civil Rights enforces the 

HIPAA Privacy Rule, which protects the 

privacy of individually identifiable 

health information (www.ocr.hhs.gov). 

Comment: One commenter 

recommended that the final rule include 

language to clarify that HIPAA does not 

prohibit covered entities (such as 

nursing facilities) from releasing to the 

Office: 

(1) Other records related to the 

resident, 

(2) a list of resident names and room 

numbers (indicating that, while this 

may not be considered private health 

information, some facilities have used 

HIPAA to deny Ombudsman program 

access to such information), or 

(3) access to survey-related 

information, including at exit 

conferences during nursing facility 

surveys. 

Response: We have amended the final 

rule at § 1327.11(e)(2)(vii) to clarify that 

the HIPAA Privacy Rule does not 

preclude release by covered entities of 

resident private health information or 

other resident identifying information to 

the Office, 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. 

Comment: One commenter indicated 

support for the proposed language in 

§ 1327.15(b)(2), indicating that it assists 

the Ombudsman in performing essential 

functions of complaint investigations 

when a resident has a guardian or other 

legal representative. 

Response: We appreciate the 

supportive comment and note that the 

related provisions are incorporated in 

the final rule at § 1327.11(e)(2)(iv) 

regarding procedures for access. 

Comment: One commenter indicated 

that the proposed language in 

§ 1327.15(b)(2) is inadequate with 

regards to Ombudsman program access 

to records and fails to mention access to 

residents, facilities or licensing agency 

records. The commenter recommended 

inclusion of the provisions of section 

712(b) of the Act and additional 

provisions described in comments 

related to § 1327.15(a)(2). Another 

commenter recommended the need for 

provisions related to access to residents, 

as well as records. Two commenters 

indicated the need for additional clarity 

in the proposed language at 

§ 1327.15(b)(2) regarding how a 

representative of the Office should carry 

out his or her duties when a legal 

representative opposes a request for 

access to records. One commenter 

recommended that the proposed 

language at § 1327.15(b)(2) be amended 

to provide for ‘‘appropriate access to 

resident medical and social records.’’ 

Response: We have incorporated new 

provisions related to procedures for 

access in the final rule at § 1327.11(e)(2) 

in response to these comments. 

Comment: Three commenters 

recommended that we incorporate 

language to clarify that access to 

resident records by the Ombudsman 

program should include authority to 

view records in any format and to obtain 

copies of the records. 

Response: In response to these 

comments, we have added the language 

‘‘regardless of format and including, 

upon request, copies of such records’’ to 

the procedures for access provision in 

the final rule at § 1327.11(e)(2). 

Comment: One commenter indicated 

that the proposed language at 

§ 1327.15(c)(1) regarding the annual 

report is useful. 

Response: We appreciate the 

supportive comment and note that the 

corresponding provision is in the final 

rule at § 1327.15(k)(1). 

Comment: One commenter 

recommended that we change the 

proposed language to require the Office 

to ‘‘independently prepare an annual 

report’’ in § 1327.15(c)(1). 

Response: We have made the 

recommended change in § 1327.13(g). 

Comment: One commenter 

recommended that we change the 

proposed language to require the Office 

to ‘‘independently analyze, comment 

on, and monitor’’ in § 1327.15(c)(2). 

Response: We have not made the 

recommended change in this provision. 


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Instead, we believe that this 

recommendation is adequately 

addressed within other provisions of the 

final rule, which requires that the 

policies and procedures of the Office 

must provide that the Ombudsman, as 

head of the Office, shall be able to 

independently make determinations and 

establish positions of the Office 

regarding (among other things) 

recommendations to changes in Federal, 

State and local laws, regulations, 

policies and actions pertaining to the 

health, safety, welfare, and rights of 

residents; and provision of information 

to legislators, regarding the problems 

and concerns of residents and 

recommendations related to the 

problems and concerns. Further, the 

final rule clarifies that these 

determinations and positions of the 

Office shall be those of the Office and 

shall not necessarily represent the 

determinations or positions of the State 

agency, or entity carrying out the 

Ombudsman program, or any other State 

agency. See § 1327.11(e)(8). 

Comment: Two commenters 

recommended that we omit the word 

‘‘older’’ in the proposed language at 

§ 1327.15(c)(3)(i)(A). 

Response: We have made the 

recommended amendment in the final 

rule at § 1327.13(a)(7)(v). 

Comment: One commenter indicated 

that the proposed language at 

§ 1327.13(c)(3)(ii) is a good clarification 

of the intended recipients of 

information contained in the reports 

prepared under paragraph (c)(1). 

Response: We appreciate the 

supportive comment. We note that this 

language is identical to the provision at 

section 712(h)(3)(B) of the Act and that 

the corresponding provision is at 

§ 1327.13(g) of the final rule. 

Comment: One commenter indicated 

support for the proposed language at 

§ 1327.15(c)(4) regarding procedures for 

training. 

Response: We appreciate the 

supportive comment and note that the 

corresponding provision is at 

§ 1327.13(c)(2) of the final rule. 

Comment: One commenter 

recommended the need for additional 

guidance regarding minimum hours for 

initial training and continuing 

education as well as the content of such 

training. The commenter noted that 

training requirements vary widely 

among States and that this is a 

detriment to Ombudsman program 

consistency. 

Response: We appreciate the 

commenter’s perspective on the 

importance of consistency and 

minimum standards related to training 

for the Ombudsman program. In 

§ 1327.15(c) in the final rule, we have 

clarified that States must provide 

opportunities for training for the 

Ombudsman and representatives of the 

Office in order to maintain expertise to 

serve as effective advocates for residents 

and that they 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. 

While we have not incorporated 

training standards into this rule, we 

plan to develop and implement training 

standards for the Ombudsman program 

in the future. We also recommend that 

Ombudsman programs refer to the 

National Ombudsman Resource Center 

for training resources and a core 

curriculum. 

Comment: One commenter 

recommended that we add to the 

categories of representatives with which 

the State agency must require the Office 

to consult in establishing Ombudsman 

program training procedures, 

specifically including representatives of 

residents of facilities and families of 

residents in § 1327.15(c)(4)(i). 

Response: We have adopted this 

recommendation in the final rule by 

adding residents and resident 

representatives in § 1327.13(c)(2) of the 

final rule. We used the term ‘‘resident 

representatives’’ since friends, partners, 

and others whom a resident may 

authorize to represent them may 

include, but not be limited to, family 

members. 

Comment: One commenter 

recommended that we add a new 

provision to the proposed language at 

§ 1327.15(c)(4) to require that the 

representative of the Office must be a 

‘‘certified ombudsman.’’ 

Response: We have not adopted this 

recommendation since we believe this is 

already provided for in the final rule. 

The provision refers to the term 

‘‘representative of the Office,’’ which is 

defined in this rule at § 1327.1 to mean 

‘‘designated by the Ombudsman.’’ In the 

context of the Ombudsman program, the 

Ombudsman certifies that an individual 

has met the training and other 

requirements necessary for an 

individual to serve as a ‘‘representative 

of the Office.’’ 

Comment: One commenter requested 

that we revise the reference in 

§ 1327.15(c)(6)(ii) to protection and 

advocacy systems. Another commenter 

recommended that we include reference 

to the Protection and Advocacy of 

Individual Rights (PAIR) Act, 29 U.S.C. 

794e. 

Response: We have revised this 

reference in the final rule to be 

consistent with the broader references to 

protection and advocacy systems; the 

relevant provision is at § 1327.13(h)(4). 

F. Responsibilities of Agencies Hosting 

Local Ombudsman Entities (§ 1327.17) 

We have added a new section in the 

final rule, § 1327.17, in order for AoA to 

provide clarification regarding the 

responsibilities of agencies in which 

local Ombudsman entities are 

organizationally located. 

Comment: One commenter 

recommended that we incorporate into 

the final rule the inclusion of the 

concept, included in the preamble of the 

proposed rule, that personnel 

management of the local Ombudsman 

entity not conflict with Ombudsman 

law and policy. 

Response: We have incorporated this 

concept into a new § 1327.17 regarding 

‘‘Responsibilities of agencies hosting 

local Ombudsman entities.’’ 

G. Duties of the Representatives of the 

Office (§ 1327.19) 

At § 1327.19, AoA provides 

clarification regarding the duties of the 

representatives of the Office, 

particularly related to the core 

Ombudsman program service of 

complaint resolution. Through this rule, 

AoA emphasizes the person-centered 

nature of the Ombudsman program and 

its services to residents of long-term 

care facilities. 

Comment: One commenter indicated 

that the title of § 1327.17would be 

clearer if titled ‘‘Functions and Duties of 

Ombudsman Entities and 

Representatives,’’ which more closely 

reflects the language in the Act. The 

commenter indicated that the ‘‘Office of 

the State Long-Term Care Ombudsman’’ 

is more closely identified with the State 

Ombudsman and the functions and 

responsibilities set forth in § 1327.13. 

Response: In the proposed rule, this 

subsection was titled ‘‘Functions and 

duties of the Office of the State LongTerm Care Ombudsman.’’ We have 

titled the corresponding subsection, 

newly numbered as § 1327.19, ‘‘Duties 

of the representatives of the Office’’ in 

the final rule. 

Comment: One commenter 

recommended that introductory 

language to § 1327.17 be included to 

more closely reflect the language of the 

Act at section 712(a)(5)(A) and (B). 

Response: We have adopted this 

recommendation in the final rule, at 

§ 1327.19, so that it more closely reflects 

the applicable language of the Act. 

Comment: Three commenters 

expressed support for the proposed 

language in § 1327.17(a). Two of the 

commenters indicated that proposed 

language clarifies the role of the 


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representatives of the Office, including 

staff and volunteers. Another 

commenter indicated that the proposed 

language is helpful in that it clarifies 

that there is one Office of the State 

Long-Term Care Ombudsman within the 

State, made up of the Ombudsman and 

representatives of the Office. 

Response: We appreciate the 

supportive comments and note that the 

relevant provisions are at § 1327.19(a) in 

the final rule. 

Comment: One commenter indicated 

that § 1327.17(a) should include 

additional duties of representatives of 

the Office including survey involvement 

and transfer and discharge hearings. 

Response: We have not included 

survey participation as a duty in 

§ 1327.19(a) since it is not specifically 

required by the Act. However, we 

encourage Ombudsman program 

participation in survey process in the 

role of resident advocate (for example, 

by consulting with State survey agencies 

and providing relevant information to 

the survey agency prior to a facility 

survey subject to disclosure limitations, 

and by participating in resident group 

meetings or exit conferences). We note 

that many Ombudsman programs do 

participate in long-term care survey 

processes and that the AoA requires 

reporting of this activity in NORS. OMB 

NO.: 0985–0005. 

Where the representative of the Office 

receives a discharge or transfer 

complaint, he or she is required to work 

to resolve this complaint. In fact, this 

complaint category ranks among the 

most frequently received and processed 

complaints reported in NORS. OMB 

NO.: 0985–0005. However, whether a 

representative of the Office participates 

in a resident hearing, as part of the 

resolution of such a complaint, and in 

what capacity, depends on a number of 

factors, including the wishes of the 

resident, the availability of legal 

representation for the resident, and the 

policies and procedures of the 

Ombudsman program in that State. 

Comment: Two commenters indicated 

support for the proposed language at 

§ 1327.17(a)(2). One commenter 

indicated that the provision would 

provide representatives of the Office 

with unimpeded, private access to 

residents, noting that in some States, 

representatives of the Office face 

challenges gaining access to a resident 

or having the opportunity to privately 

communicate with a resident. 

Response: We appreciate the 

supportive comments and note that the 

relevant provisions are in the final rule 

at § 1327.19(a)(3). 

Comment: One commenter requested 

more clarity around the term ‘‘regular 

access.’’ 

Response: We encourage Ombudsman 

programs to provide residents with 

access to the Ombudsman program 

through, among other means, regular 

visits to facilities. However, we believe 

creating one national minimum 

standard for visits to facilities would be 

unrealistic, given the extremely 

different variables among States. We 

strongly encourage the development of 

minimum standards to provide 

consumers, providers and others with 

an expectation of what constitutes 

regular visits. We also encourage 

Ombudsman programs to consider that 

providing ‘‘regular access’’ requires 

more than providing visits to facilities 

by representatives of the Office. 

Ombudsman programs should be easily 

accessible to residents, complainants, 

and others—including individuals with 

limited English proficiency—because, 

among other things, they have multiple 

methods of communication available to 

the public (including telephone, email, 

facsimile, Web site contacts, TTY (text 

telephone) and other communication 

services, and mail). 

Comment: Two commenters indicated 

that the proposed language in 

§ 1327.17(a)(4) regarding representing 

the interests of residents before 

government agencies and seeking 

remedies is overlooked or disregarded 

by many States. The comment suggested 

that the responsibility needs to be 

emphasized and stringently enforced by 

AoA. The commenters indicated that 

failure by a State to remedy the 

organizational conflicts that prevent 

performance of this duty must be 

resolved immediately, that AoA should 

create a certification program for 

Ombudsman programs with an auditing 

component. 

Response: AoA expects that this final 

rule will help to clarify expectations of 

State agencies and Ombudsman 

programs related to this and other duties 

required by the Act. The Long-Term 

Care Ombudsman Program is 

established through Federal grants to 

State agencies. The State agency must 

assure AoA that the Ombudsman 

program is established and carried out 

consistent with the provisions of the 

Act. If AoA determines that a State fails 

to comply with any term of an award, 

AoA, as the granting agency, has several 

remedies available to it, including but 

not limited to wholly or partly 

suspending or terminating the award. 45 

CFR 75.371. 

The issue of organizational conflicts, 

as described in these comments, is more 

fully discussed at § 1327.21 of the final 

rule. 

Comment: One commenter indicated 

that the proposed language in 

§ 1327.17(a)(4) and (5) is unclear 

regarding whether the Ombudsman can 

override a representative of the Office in 

its duty to carry out these duties. The 

commenter indicated that it would be a 

grave mistake if the Ombudsman is the 

only one who is able to determine the 

positions of the Office or if the 

Ombudsman could prohibit 

representatives of the Office from taking 

positions without approval or from 

taking positions that are inconsistent 

with those of the Office. The commenter 

described a State in which the 

Ombudsman was not engaged with the 

legislature or government agencies 

related to resident issues but where 

local Ombudsman entities have made 

significant contributions to the interests 

of residents through their systems 

advocacy. The commenter indicated 

that the only reason why the 

Ombudsman is now able to take public 

positions in that State is due to the 

systems advocacy efforts of local 

Ombudsman entities. 

Response: The Act sets out the 

Ombudsman as the head of the Office. 

Section 712(a)(2) of the Act. The 

Ombudsman has the authority to make 

determinations regarding the positions 

of the Office, including but not limited 

to recommendations for changes in 

laws, regulations and policies. See 

section 712(h)(2) of the Act. We note 

that there is nothing prohibiting the 

Ombudsman establishing policies that 

provide for representatives of the Office 

to also perform the function of making 

recommendations, and that the final 

rule requires procedures that exclude 

representatives of the Office from any 

State lobbying prohibitions inconsistent 

with section 712 of the Act. 

However, the duties of the 

representatives of the Office are to be 

performed in accordance with the 

policies and procedures established by 

the Office and the State agency. Section 

712(a)(5)(B) of the Act. Therefore, we 

believe that it would be inappropriate 

for this rule to require the State agency 

or the Ombudsman to permit 

representatives of the Office to make 

recommendations which are 

inconsistent with the positions of the 

Office. Instead, we conclude that 

Congress intended that the 

Ombudsman, as head of the 

Ombudsman program, to provide 

leadership to the statewide advocacy 

efforts of the Office on behalf of longterm care facility residents, including 

coordination of advocacy efforts carried 


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out by representatives of the Office. See 

final rule at § 1327.13(a)(7)(iv) and (b). 

Comment: One commenter 

recommended that the final rule at 

§ 1327.17(a)(4) include a definition of 

adequate legal representation. 

Response: We have addressed this 

and similar comments in the provisions 

related to § 1327.15(j) of the final rule. 

Comment: One commenter supported 

the use of the phrase ‘‘if necessary’’ in 

the proposed language that indicates 

that the representative of the Office 

shall ‘‘review, and if necessary, 

comment on any existing and proposed 

laws, regulations policies and 

actions . . .’’ in § 1327.17(a)(4). The 

commenter indicated that this provision 

supports the concept that the 

Ombudsman is expected to provide 

comments on behalf of the Office and 

that representatives of the Office would 

only comment as necessary as 

determined by the Ombudsman. The 

commenter indicated that this provision 

allows for designation of local 

Ombudsman entities that may be 

restricted from certain public policy 

activities, such as those funded through 

the LSC. 

Response: We appreciate the 

supportive comment. We note that we 

have provided a more in-depth 

discussion of our analysis of lobbying 

by local Ombudsman entities within 

LSC-funded entities in the comments 

related to § 1327.15. 

Comment: Two commenters 

recommended greater specificity 

regarding what is expected of the Office 

with respect to the language in section 

712(a)(5)(B)(v)(II) of the Act and the 

proposed language at § 1327.17(a)(5)(ii). 

Response: We are available to provide 

State agencies and Ombudsman 

programs with technical assistance 

regarding this provision of the law and 

regulation, found at § 1327.19(a)(5)(ii) of 

the final rule. 

Comment: Three commenters 

indicated support for the proposed 

language at § 1327.17(b). One of these 

commenters indicated that the provision 

clarifies that the Ombudsman program 

serves the resident in complaint 

investigation and resolution. One 

commenter indicated that it is important 

that the Ombudsman program serve 

resident in a person-centered manner; 

including where the resident is unable 

to express wishes but the wishes have 

been made clear previously, such as in 

an advance directive. One commenter 

supported inclusion of phrase ‘‘the 

Ombudsman and/or the representative 

of the Office serve the resident of a longterm care facility,’’ describing it as a 

clear statement of whose satisfaction the 

Ombudsman program is trying to 

achieve. 

Response: We appreciate the 

supportive comments and note that the 

relevant provisions are at § 1327.19(b) in 

the final rule. 

Comment: One commenter indicated 

that a resident should not have to suffer 

abuse or neglect to benefit from 

Ombudsman program services. 

Response: We agree with this 

comment; both the proposed rule and 

final rule support this perspective. In 

fact, AoA requires Ombudsmen to 

report on Ombudsman program 

resolution using numerous types of 

complaint codes, only a few of which 

are complaints with abuse, gross 

neglect, or exploitation codes. OMB 

NO.: 0985–0005. 

We use the language ‘‘including but 

not limited to a complaint related to 

abuse, neglect, or exploitation’’ in 

§ 1327.19(b)(1) in order to clarify that 

the Ombudsman program does have a 

role to play in complaints related to 

abuse, neglect and exploitation. We 

have included this language in response 

to the policies and practices of a few 

States in which all complaints of abuse, 

gross neglect or exploitation are 

immediately referred to protective 

services, law enforcement, and/or a 

regulatory agency, with no further 

Ombudsman program service made 

available to the resident related to such 

a complaint. This practice deprives the 

resident of the services of the 

Ombudsman program and we intend, 

through this rule, to signal that such a 

practice is not an appropriate 

interpretation of the Act. 

Comment: Five commenters 

recommended that the rule use the term 

‘‘neglect’’ instead of ‘‘gross neglect’’ in 

§ 1327.17(b)(1). One of these 

commenters indicated that Ombudsman 

program purview should encompass any 

complaint of neglect without having to 

meet additional elements to 

demonstrate ‘‘gross neglect.’’ Another 

commenter indicated that, by using the 

term ‘‘neglect,’’ the rule would better 

support the Ombudsman program’s 

ability to resolve potentially dangerous 

problems before they escalate, 

describing this as one of the hallmarks 

of the Ombudsman program. 

Response: We agree that working to 

resolve ‘‘neglect’’ complaints are within 

the purview of the Ombudsman 

program. We also agree that one of the 

hallmarks of the Ombudsman program 

is its ability to resolve potentially 

dangerous problems before they 

escalate. To avoid any confusion on this 

point, we have omitted the term ‘‘gross’’ 

in the final rule at the corresponding 

provision, § 1327.19(b)(1). 

Comment: Six commenters indicated 

that the reference in § 1327.17(b)(1) that 

Ombudsman program investigation 

includes investigation of abuse 

complaints conflicts with their State’s 

requirement to separate the job duties of 

protective services from duties of 

representatives of the Office. Three of 

these commenters felt that, if the 

Ombudsman program is responsible for 

investigation of abuse, this is a conflict 

of interest. One of these commenters 

indicated that the provision would 

negatively impact the integrity of the 

Ombudsman program as the provision 

would require the Ombudsman program 

to substantiate abuse cases in conflict 

with the State protective services 

functions and the advocacy function of 

the Ombudsman program. 

Response: The Act requires the 

Ombudsman program to ‘‘identify, 

investigate, and resolve complaints that 

. . . relate to action, inaction or 

decisions, that may adversely affect the 

health, safety, welfare, or rights of the 

residents.’’ Section 712(a)(3)(A) and 

(5)(B)(iii) of the Act. Abuse, neglect and 

exploitation of residents are among the 

complaints that fall within this purview. 

AoA requires Ombudsmen to report in 

NORS the types of complaints processed 

by the Ombudsman program, 

specifically including complaint codes 

and definitions related to abuse, gross 

neglect and exploitation. ‘‘Long-Term 

Care Ombudsman Program Complaint 

Codes,’’ OMB 0985–0005, at pp. 1–3, 

17–18. 

The services of the Ombudsman 

program are distinct from, and as 

indicated in § 1327.21(a), at times may 

conflict with the responsibilities of 

protective services. An individual 

resident, may, for example, have a 

complaint about protective services or 

may seek support from the Ombudsman 

program for a goal that is inconsistent 

with his or her protective services plan. 

Some of the functions of the 

Ombudsman program use the same 

terms, such as ‘‘investigation,’’ which 

are not always used for consistent 

purposes among Ombudsman programs, 

protective services, licensing and 

regulatory agencies, or other programs. 

This may result in confusion regarding 

the appropriate role of such programs. 

When an Ombudsman program receives 

any complaint (including, but not 

limited to, an abuse-related complaint), 

its goal is to resolve the complaint to the 

resident’s satisfaction, but not to 

substantiate whether the abuse or other 

allegation occurred. The Ombudsman 

program does not have a duty to collect 

sufficient evidence to meet the higher 

legal standards of proof that protective 

services, licensing or regulatory 


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agencies, or law enforcement may need 

to meet their respective purposes. The 

Ombudsman program investigates solely 

for the purpose of gathering necessary 

information to resolve the complaint to 

the resident’s satisfaction, not to 

determine whether any law or 

regulation has been violated for 

purposes of a potential civil or criminal 

enforcement action. 

With the Ombudsman program 

fulfilling its duties, the priorities and 

interests of the individual resident can 

be supported and advocated for. If the 

protective services and other 

government systems charged with 

taking protective or enforcement actions 

are not providing the outcomes that 

serve the health, safety, welfare or rights 

of residents, the Ombudsman program is 

available to advocate for improvements 

to the system. Therefore, it is critically 

important that each of these agencies is 

able to fully and distinctly fulfill their 

duties. 

Comment: One commenter indicated 

that the proposed language is suited to 

States where the Ombudsman program 

is the finder of fact for abuse. The 

commenter recommended that we add 

language to include that the 

Ombudsman program should report 

abuse to the State entity which is the 

finder of fact for abuse complaints. 

Response: We intend, through this 

rule, to clarify that the Ombudsman 

program is not appropriately the finder 

of fact for abuse complaints. The 

requirements related to Ombudsman 

program referral of abuse complaints to 

other agencies for substantiation of the 

facts are set forth in § 1327.19(b)(3)–(8). 

Comment: Three commenters 

indicated support for the personcentered approach of the proposed 

language in § 1327.17(b)(1). One of these 

commenters indicated that the language 

strikes an appropriate balance between 

ensuring resident preference and 

encouraging family involvement (by 

using the term ‘‘guardian and other legal 

representative’’). Another commenter 

indicated that the person-centered 

approach driven by the wishes and 

goals of an individual resident is 

appropriate and necessary for 

individualized complaints. Another 

commenter indicated that the proposed 

rule is helpful in clarifying that 

perception of the resident and wishes of 

the resident are paramount for the 

Ombudsman program. 

Response: We appreciate the 

supportive comments and note that the 

corresponding provision is at 

§ 1327.19(b)(1) in the final rule. 

Comment: One commenter indicated 

that not all complaints are individual 

and recommended that the final rule 

should support the broader authority to 

advocate for residents for facility-wide 

complaints or observations. The 

commenter indicated that some 

representatives of the Office do not 

believe they have authority to respond 

to complaints regarding facility-wide 

problems without the written consent of 

the resident. 

Response: We agree with the 

commenter that some complaints may 

be facility-wide. It is not our intent to 

imply otherwise with the proposed 

language. We note that some complaints 

may impact multiple residents, even if 

they are not relevant to the facility as a 

whole. We have added language in the 

final rule at § 1327.19(b)(1) in order to 

clarify that the Ombudsman or 

representative of the Office may 

identify, investigate and resolve a 

complaint impacting multiple residents 

or all of the residents who live in a 

facility. 

We note that the representative of the 

Office may be considered a 

complainant. In order to avoid any 

confusion on this point, we have 

modified the language in the final rule 

at § 1327.19(b)(2) to clarify that the 

complainant may include the 

Ombudsman or representative of the 

Office. We further note that the 

provisions related to adequate evidence 

of resident or resident representative 

consent are found at § 1327.19(b)(4). 

Comment: One commenter indicated 

appreciation for the resident-centered 

focus of the proposed language at 

§ 1327.17(b)(2). 

Response: We appreciate the 

supportive comment and note that the 

corresponding provision is at 

§ 1327.19(b)(2) in the final rule. 

Comment: One commenter indicated 

that the Ombudsman program should be 

able to initiate as well as receive 

complaints. 

Response: We agree with the 

comment; the proposed language was 

not intended to limit or prohibit the 

Ombudsman or representative of the 

Office from initiating a complaint (i.e. 

from being the complainant) where they 

pro-actively identify a complaint that 

needs Ombudsman program 

intervention. In NORS, AoA requires 

Ombudsmen to report on the number of 

‘‘Ombudsman/ombudsman volunteer’’ 

complainants among the categories of 

complainants for cases closed by the 

Ombudsman program. OMB NO.: 0985– 

0005. In order to avoid any confusion on 

this point, we have modified the 

language in the final rule at 

§ 1327.19(b)(2) to clarify that the 

complainant may include the 

Ombudsman or representative of the 

Office. 

Comment: One commenter indicated 

that the proposed language ‘‘informed 

consent, wishes, or perspectives’’ at 

§ 1327.17(b)(2)(i) may be confusing and 

difficult to implement. The commenter 

recommended that we omit the term 

‘‘wish’’ and consider omitting 

‘‘perspective,’’ noting that these terms 

may be inconsistent with State surrogate 

decision-making rules. 

Response: We agree with this 

recommendation and have amended the 

phrase at § 1327.19(b)(2)(i) to omit 

‘‘wishes, or perspective.’’ 

Comment: One commenter 

recommended the addition of a 

statement that, where a resident has a 

court-appointed guardian or 

conservator, the resident may have 

already been determined unable to give 

informed consent, so the Ombudsman 

program should check the extent of the 

court order. The commenter 

recommended that, regardless of 

whether the resident has a 

representative, the right to participate in 

their care and resolution of a complaint 

should be supported by the 

Ombudsman program, since the greater 

the involvement of the resident in the 

resolution of the complaint, the higher 

the likelihood of its success. 

Response: We agree with these 

recommendations and have made the 

following revisions to the final rule as 

a result: 

(1) We have added language at 

§ 1327.19(b)(2) that requires the 

Ombudsman or representative of the 

Office to support and maximize resident 

participation in the process of resolving 

a complaint. 

(2) We have added a new paragraph 

at § 1327.19(b)(2)(iv) to clarify that the 

Ombudsman or representative of the 

Office must ascertain the extent of the 

authority that has been granted to the 

resident representative when 

determining whether to rely on a 

resident representative’s 

communications or determinations. 

Comment: Three commenters 

indicated that the terms ‘‘legal 

representative’’ and ‘‘resident 

representative’’ and ‘‘guardian’’ are used 

inconsistently and recommended 

further clarification of the terms. 

Response: In the final rule, we have 

used the term ‘‘resident representative’’ 

consistently and have defined the term 

at § 1327.1. 

Comment: One commenter 

recommended revising the proposed 

language to replace the word ‘‘or, 

where’’ at § 1327.17(b)(2)(i) with ‘‘and 

in the case where.’’ The commenter 

indicated that the change will make sure 

that both the resident and the resident’s 

representative viewpoints are to be 


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considered. Without the change, the 

commenter indicated that the 

representative of the Office could 

choose to consult with the resident or 

the resident representative but might 

omit consultation to the resident. 

Response: We have amended the 

corresponding § 1327.19(b)(2)(ii) in the 

final rule, replacing the ‘‘or, where’’ 

with ‘‘and, if’’). 

Comment: One commenter 

recommended that, since advising the 

resident of his or her rights does not 

require communication of informed 

consent, the ‘‘or’’ in proposed 

§ 1327.17(b)(2)(i)(D) should be changed 

to an ‘‘and’’ so that every resident is 

advised of his or her rights. 

Response: We believe that the 

suggested language helps to clarify the 

intent of AoA and have amended the 

corresponding provision at 

§ 1327.19(b)(2)(ii)(D) accordingly. 

Comment: One commenter indicated 

support for the proposed language at 

§ 1327.17(b)(2)(i)(C) regarding reporting 

of allegations to other appropriate 

agencies, but recommended that the 

provision be amended to include a 

reference to the statutory or regulatory 

parameters for disclosure of resident 

identifying information. 

Response: We have amended the 

language at § 1327.19(b)(2)(ii)(C) in the 

final rule to indicate that ‘‘Such report 

and disclosure shall be consistent with 

paragraph (b)(3).’’ 

Comment: Two commenters 

recommended that we add clarity that 

the representative of the Office may 

investigate a complaint even where the 

resident is unable to provide consent 

and has no resident representative. One 

of the commenters indicated that, as 

proposed, the rule implies that the 

representative of the Office may not take 

action unless the complaint relates to an 

allegation of abuse, neglect, or 

exploitation. The other commenter 

indicated that this authority is implied 

in the provision related to resolution at 

§ 1327.17(b)(2)(ii) but needs to be 

explicitly stated. 

Response: We agree that explicit 

statement of this authority would be 

helpful and note that it is consistent 

with the ‘‘Procedures for Access’’ 

provision of the Act which provides that 

the State shall ensure that 

representatives of the Office shall have 

‘‘appropriate access to review the 

medical and social records of a resident 

. . . if the resident is unable to consent 

to the review and has no legal 

representative.’’ Section 

712(b)(1)(B)(i)(II) of the Act. We have 

modified the corresponding provision at 

§ 1327.19(b)(2)(iii) in the final rule 

accordingly. 

Comment: Eight commenters 

expressed concerns related to the use of 

the ‘‘best interest’’ standard referenced 

in several places in the proposed 

language of § 1327.17(b). One of these 

commenters recommended that, in 

situations where the resident is unable 

to communicate informed consent, AoA 

should require that the Ombudsman 

program to attempt to obtain 

information about what the resident had 

expressed prior to being unable to 

communicate or having diminished 

capacity, or alternatively determine 

what the resident would have wanted, 

instead of using a ‘‘best interest’’ 

standard. Two commenters 

recommended that we use a 

‘‘substituted judgment’’ or ‘‘substitute 

decision making’’ standard instead of a 

‘‘best interest’’ standard in the final rule. 

One commenter indicated that the ‘‘best 

interest’’ standard weakens the 

relationship between the resident and 

the representative of the Office in their 

capacity as resident advocate, does not 

support resident choice, and will 

weaken the resident’s voice. Four 

commenters indicated that ‘‘best 

interest’’ is subjective and could be 

applied inconsistently. Several 

commenters recommended that we add 

an objective framework for determining 

‘‘best interest.’’ One commenter 

recommended that, if we use the ‘‘best 

interest’’ standard, that we link its use 

to the safety of the resident. 

Response: We agree with the 

commenters’ concern that Ombudsman 

programs should be cautious in using a 

paternalistic ‘‘best interest’’ standard, as 

opposed to a ‘‘substituted judgment’’ 

standard which is more consistent with 

the person-centered focus of the 

Ombudsman program. We agree that, 

where evidence exists of a resident’s 

previous expressions of values and 

choices or evidence of what the resident 

would have wanted, a ‘‘substituted 

judgment’’ standard is preferable. In 

light of this comment, in both 

§ 1327.19(b)(6) and (7), we have added 

the language: ‘‘The Ombudsman or 

representative of the Office has no 

evidence indicating that the resident 

would not wish a referral to be made.’’ 

However, when the Ombudsman or 

representative of the Office has no 

evidence to rely on, and has no resident 

representative available or appropriate, 

we believe that the Ombudsman or 

representative of the Office must 

consider what action is in the ‘‘best 

interest’’ of the resident. Therefore we 

have retained the provisions indicating 

that the Ombudsman or representative 

of the Office may make a referral, where 

all of the other provisions are met and 

where the Ombudsman or 

representative of the Office has 

reasonable cause to believe that it is in 

the best interest of the resident to make 

a referral. See § 1327.19(b)(6)(v) and 

(7)(iv). 

We understand that determining ‘‘best 

interest’’ does necessarily require some 

judgment, but we believe that 

Ombudsmen and representatives of the 

Office are required to use sound 

judgment in their work on a frequent 

basis. We further note that Ombudsman 

programs should be familiar with the 

use of this standard since the Act 

provides for use of the ‘‘best interest’’ 

standard in the situation where ‘‘a 

representative of the Office has 

reasonable cause to believe that the 

guardian is not acting in the best 

interests of the resident.’’ Section 

712(b)(1)(B)(ii)(II) of the Act. Moreover, 

the ‘‘best interest’’ standard is 

commonly used in ethical and 

professional literature. We are available 

to provide technical assistance 

regarding its use in the context of 

Ombudsman program practice. 

Comment: One commenter 

recommended language to ensure that 

the Ombudsman program can 

investigate and take action on a 

complaint in addition to disclose the 

resident name to other agencies. 

Response: We read § 1327.19(b)(1) 

and (2) in the final rule to provide 

authority to the Ombudsman program to 

investigate and take action on a 

complaint in addition to disclosing the 

resident name to other agencies. 

Comment: One commenter 

recommended that we use the term 

‘‘perspective of resident’’ regarding a 

complaint rather than ‘‘perception of 

resident’’ in the proposed language at 

§ 1327.17(b)(2)(i)(A), arguing that the 

term ‘‘perception’’ is vague. Another 

commenter recommended the use of the 

term ‘‘description of the problem.’’ 

Response: We believe that 

‘‘perspective’’ is a more appropriate 

term in this context and have adopted 

this change in the final rule at 

§ 1327.19(b)(2)(ii)(A). 

Comment: One commenter 

recommended that we further explain 

what evidence of satisfaction might be 

appropriate in order for a representative 

of the Office to determine that a 

complaint has been resolved. The 

commenter indicated that an example of 

evidence could be an affirmative 

response to a standard question. 

Response: We agree that an 

affirmative response to a question could 

be evidence of satisfaction of resolution 

of a complaint. We do not believe that 

a regulation is necessary in order to 

provide examples of evidence. However, 

a State agency or Ombudsman may 


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choose to develop policies to provide 

further specificity regarding adequate 

evidence of satisfaction for purposes of 

complaint resolution. 

Comment: One commenter 

recommended that anonymous 

complaints should be allowed in order 

to protect resident confidentiality. 

Response: Nothing in the proposed or 

final rule would limit the ability of the 

Ombudsman program to receive 

complaints from anonymous sources. 

Currently, the AoA requires States, 

through NORS, to report the types of 

complainants, including anonymous 

complainants, for closed cases of the 

Ombudsman program. OMB NO.: 0985– 

0005. We note, however, that the 

Ombudsman program must protect 

against inappropriate disclosure of 

resident and complainant-identifying 

information regardless of whether the 

complainant wishes to remain 

anonymous. See § 1327.11(e)(3). 

Comment: One commenter 

recommended that we add guidance to 

ensure that representatives of the 

Ombudsman program report complaint 

results to the complainant if known and 

other than the resident. The commenter 

indicated that family members and 

other complainants have criticized the 

Ombudsman program for not providing 

a report back to the complainant, 

leading them to incorrectly believe that 

the Ombudsman program failed to 

process the complaint. 

Response: We appreciate that 

complainants may wish to understand 

the results of their complaint. While we 

have not required this in the final rule, 

we note that Ombudsmen and State 

agencies, in developing Ombudsman 

program policies and procedures, may 

choose to provide guidance to 

representatives of the Office on the 

appropriateness of providing follow up 

with complainants consistent with the 

disclosure limitations of the Act and 

this final rule. We note that the 

guidance might also apply to follow up 

with resident representatives. 

Comment: One commenter 

recommended that we address the 

question of appropriate Ombudsman 

program response where a resident does 

not wish the representative of Office to 

act on a complaint. 

Response: We agree that the 

Ombudsman program should follow the 

direction of the resident regarding 

whether to act on a complaint. We 

believe that this issue is adequately 

addressed in the final rule at 

§ 1327.19(b)(2)(ii), which requires the 

Ombudsman or representative of the 

Office to determine and follow resident 

direction through every step of the 

complaint process. 

Comment: One commenter indicated 

that the introductory wording of the 

proposed rule at § 1327.17(b)(2) is 

confusing and recommended that we 

use ‘‘Regardless of the source of the 

complaint.’’ 

Response: We have adopted the 

recommended language at 

§ 1327.19(b)(2) in the final rule. 

Comment: Four commenters indicated 

support for the proposed language in 

§ 1327.17(b)(3). One of these 

commenters indicated that the proposed 

language is helpful in clarifying that the 

Ombudsman and representatives of the 

Office are not mandated reporters and 

that many States have had long-standing 

tensions around this question. Another 

commenter indicated that this is helpful 

in determining the circumstances under 

which it is appropriate for the 

Ombudsman program to share 

information with oversight agencies. 

Another commenter indicated that the 

proposed rule empowers residents to 

retain control over their own 

information while providing the 

Ombudsman with discretion in 

instances when the resident is at risk 

due to abuse but the resident lacks 

capacity (or a representative available) 

to provide consent. 

Response: We appreciate the 

supportive comments and note that the 

relevant provision is found at 

§ 1327.19(b)(3) in the final rule. 

Comment: One commenter 

recommended deleting or modifying the 

proposed provision at § 1327.17(b)(3)(ii) 

to include that, where adult protective 

services exists, the representative of the 

Office can and should advocate on the 

resident’s behalf as long as the 

individual provides consent. 

Response: We believe the final rule at 

§ 1327.19(b) adequately describes the 

appropriate relationship between the 

Ombudsman program and adult 

protective services, including the 

circumstances in which Ombudsman 

program referrals may, may not, or must 

be made to adult protective services or 

other entities. 

Comment: Four commenters 

recommended that we require that the 

Ombudsman or representatives of the 

Office report suspected abuse. One of 

these commenters indicated that the 

Ombudsman program has a duty to all 

residents of a facility, not only one 

resident. Two commenters indicated 

that reporting could protect other 

residents in some circumstances. One 

commenter indicated that, by not 

reporting, the representative of the 

Office would be subject to liability if the 

suspected abuse put other residents at 

risk. One commenter indicated deep 

concern if the Ombudsman program is 

unable to fulfill its very purpose where 

the representative of the Office is aware 

of allegations of abuse but is forced to 

be silent if informed consent is not 

obtained. 

Response: Through the strict 

disclosure limitations within the Act at 

section 712(d)(2)(B), Congress has 

indicated its intent for the Ombudsman 

program to be a safe place for residents 

to bring their concerns, knowing that 

their information will not be disclosed 

without their consent (or the consent of 

their representative). Through numerous 

reauthorizations of the Act, Congress 

has never chosen to provide an 

exception for abuse reporting in the Act. 

While we have provided, in § 1327.19(b) 

of the final rule, limited exceptions for 

reporting resident-identifying 

information where residents are unable 

to communicate informed consent, we 

do not believe that the Act provides us 

with the authority to promulgate a rule 

that would permit reporting of a 

resident’s identifying information when 

the resident (or resident representative) 

who is able to communicate informed 

consent has not done so. Nor would we 

support a rule that would permit such 

reporting, as a matter of policy 

Residents reaching out for assistance 

on an abuse, neglect or exploitation 

complaint may well want their 

information conveyed by the 

Ombudsman program to protective 

services, the licensing and regulatory 

agency, and/or law enforcement; 

indeed, the final rule clarifies that the 

Ombudsman program has a duty to 

make such a referral when requested by 

the resident (see § 1327.19(b)(3)(i)). The 

Ombudsman program may inform 

complainants who report suspected 

abuse that they may (and, under some 

circumstances, must) report the 

complaint information to protective 

services, the licensing and regulatory 

agency and/or law enforcement. The 

Ombudsman program may advise the 

resident of the appropriate role and 

limitations of the Ombudsman program, 

assist the resident in understanding his 

or her options, and encourage the 

resident to report—and/or consent to 

the Ombudsman program referral—to 

protective services, the licensing and 

regulatory agency and/or law 

enforcement. 

However, the Ombudsman program is 

designed to represent the interest of the 

resident (and not necessarily the interest 

of the State) in order to support the 

resident to make informed decisions 

about the disclosure of his or her own 

information. Residents may be 

concerned about retaliation if their 

concern is known or have other reasons 

why they do not want the Ombudsman 


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program to share their information. 

While Congress intends for the 

Ombudsman program to resolve 

complaints related to the health, safety, 

welfare and rights of residents, and 

while that intent logically includes 

protection from abuse, Congress 

provided the resident—and not the 

Ombudsman program—with the 

authority to make the decision about 

when and where the resident’s 

information can be disclosed. 

Comment: One commenter indicated 

that the proposed rule should have 

included provision for the consent of 

the resident’s legal representative at 

§ 1327.17(b)(3). 

Response: We agree that this 

recommendation provides further 

clarity so have added ‘‘or resident 

representative’’ in § 1327.19(b)(3)(i),(ii) 

of the final rule. 

Comment: One commenter indicated 

that, by giving a short list of types of 

assistance (i.e. regulatory, protective, or 

law enforcement) available under 

proposed rule § 1327.17(b)(3)(i), the 

provision implies that the Ombudsman 

program could not contact various other 

entities who could assist the resident 

and whom the resident or resident’s 

representative wishes to contact. 

Response: We believe that the 

language in § 1327.19(b)(3) adequately 

provides the Ombudsman program with 

discretion to provide information to 

other agencies for ‘‘other purposes’’ (i.e. 

not limited to regulatory, protective, or 

law enforcement purposes), where 

disclosure limitations are met. The 

reference to regulatory, protective, or 

law enforcement assistance in 

§ 1327.19(b)(3)(i) is to require the 

Ombudsman program to make referrals 

and disclose information in certain 

circumstances. 

To provide further clarity, as a result 

of this recommendation, we have added 

a new provision in the final rule at 

§ 1327.19(b)(3)(ii). This provision 

provides authority for the provision of 

contact information and/or referrals to 

other types of entities than those 

indicated in paragraph (b)(3)(i). 

Comment: One commenter indicated 

that the proposed language at 

§ 1327.17(b)(3)(ii) is an appropriate 

reminder that the Ombudsman program 

must respect the resident’s wishes. 

Response: We appreciate the 

supportive comment and note that this 

provision is now in a newly numbered 

provision in the final rule at 

§ 1327.19(b)(3)(iii). 

Comment: One commenter 

recommended that the proposed 

language at § 1327.17(b)(3)(ii) should 

extend to the resident’s representative 

when a resident lacks capacity. 

Response: We agree with this 

recommendation and have added the 

phrase: ‘‘(or, in the case where the 

resident is unable to communicate 

informed consent, the wishes of the 

resident representative)’’ into newly 

numbered provision in the final rule at 

§ 1327.19(b)(3)(iii). 

Comment: One commenter 

recommended that the reports 

referenced in the proposed language at 

§ 1327.17(b)(3)(ii) not be limited to 

suspected abuse, gross neglect or 

exploitation. 

Response: We believe that 

§ 1327.19(b)(3) adequately provides 

authority for the Ombudsman program 

to provide information regarding any 

type of complaint to another appropriate 

entity so long as the disclosure 

requirements are adhered to. The 

provision in newly numbered 

§ 1327.19(b)(3)(iii) of the final rule is 

intentionally limited in order to clarify 

this provision specifically related to 

abuse, neglect, or exploitation reporting, 

given need for additional clarity on this 

point. 

Comment: One commenter 

recommended that the final rule at 

§ 1327.17(b)(3) expressly state that the 

confidentiality and disclosure 

provisions in the Act preempt State 

mandatory reporting laws. 

Response: The Act specifically 

requires the State agency to establish the 

procedures for the appropriate 

disclosure of files maintained by the 

Ombudsman program, as a condition of 

receiving the grant to operate the 

Ombudsman program (Section 712(d)(1) 

of the Act) and to assure that it will 

carry out the provisions of section 712 

in its State Plan on Aging (Section 

307(a)(9) of the Act). We believe that the 

final rule appropriately describes the 

Ombudsman program duty to carry out 

(as well as the State duty to assure 

adherence to) the disclosure provisions 

in the Act. 

Comment: One commenter 

recommended that the final rule 

expressly state that the Ombudsman has 

sole discretion over the release of the 

program’s records and files, not only 

control over the release of files with 

resident or complainant identities. 

Response: We believe the language at 

§ 1327.11(e)(3)(i), regarding 

Ombudsman discretion over release of 

information maintained by the 

Ombudsman program, addresses this 

comment. 

Comment: Three commenters 

recommended that we add language to 

§ 1327.17(b)(3) to specifically include 

licensing agencies and protection and 

advocacy systems. 

Response: We agree that licensing 

agencies and protection and advocacy 

systems are among the other agencies to 

which an Ombudsman program may 

provide information as appropriate, but 

do not see a need to amend the 

provision in order to specifically list 

two examples of agencies potentially 

relevant to this provision. 

Comment: One commenter indicated 

support for the proposed language at 

§ 1327.17(b)(4). 

Response: We appreciate the 

supportive comment and note that the 

corresponding provision is at 

§ 1327.19(b)(4) in the final rule. 

Comment: One commenter 

recommended that informed consent 

can be provided orally or in writing 

without preference. The commenter 

indicated that oral consent allows the 

representative of the Office an 

opportunity to act more efficiently than 

waiting for exchange of written consent 

documents. 

Response: We do not believe that the 

proposed language implied a preference 

for the method of communication for 

consent. 

Comment: One commenter indicated 

that the proposed language at 

§ 1327.17(b)(4) appears to be a 

restatement of § 1327.15(a)(2)(iii)(B)(2), 

which establishes the range of options 

for communication of informed consent, 

and indicated that the reason for 

restatement in this section is unclear. 

Response: This provision (in 

§ 1327.19(b)(4) of the final rule) is not 

intended to be a duplication, but rather 

a consistent requirement regarding 

disclosure within (1) requirements 

related to development of Ombudsman 

program policies and procedures (in the 

final rule at § 1327.11(e)(3)(ii)) and (2) 

provisions related to the duties of the 

representatives of the Office and local 

Ombudsman entities (in the final rule at 

§ 1327.19(b)(4)). While the parameters 

related to appropriate disclosure found 

in these provisions are consistent (and 

therefore may appear redundant), the 

purposes of these sections are distinct. 

Comment: One commenter indicated 

that the ability of an individual to 

communicate consent may be difficult 

to ascertain and recommended 

inclusion of language at § 1327.17(b)(4) 

that permits visual consent, such as by 

use of video or other visual means, 

nods, blinks of eye, finger tapping, etc. 

Response: We agree that residents 

with varying abilities may communicate 

consent in a number of ways. This is 

why we did not limit communication to 

verbal communication and have added 

the use of auxiliary aids and services as 

an appropriate aid to communication. 

We believe that adoption of this 


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recommendation appropriately adapts 

the services of the Ombudsman program 

to accommodate individuals with a 

variety of disabilities. In light of this 

recommendation, we have added 

‘‘visually,’’ to the final rule wherever 

‘‘consent orally’’ is found. 

Comment: Seven commenters 

indicated support for the proposed 

language at § 1327.17(b)(5). One of these 

commenters indicated that the 

specificity of the proposed language is 

helpful in setting out what a 

representative of the Office may do if a 

resident is unable to communicate 

informed consent and has no authorized 

representative. The commenter 

indicated that the provision 

appropriately appreciates the central 

role of the resident in giving consent 

while recognizing the need for a process 

when the resident lacks capacity to 

provide consent. One commenter 

applauded the clarification that 

representatives of the Office are able to 

speak for vulnerable elders who cannot 

speak for themselves or have anyone 

available or willing to speak for them. 

Response: We appreciate the 

supportive comments and note that the 

corresponding language is at 

§ 1327.19(b)(6)) in the final rule. 

Comment: One commenter indicated 

that use of the term ‘‘unable to 

communicate informed consent’’ is 

problematic in determining when a 

representative of the Office should 

disclose identifying information of a 

resident, potentially weakening the core 

client advocate role of the Ombudsman 

program. The commenter indicated that 

it is paramount that the representative 

of the Office obtains permission from 

the resident prior to identifying them. 

Response: We agree that the 

representative of the Office must obtain 

consent from the resident whenever 

possible prior to identifying them; this 

requirement is consistent throughout 

this final rule. However, without the 

opportunity to disclose residentidentifying information, the 

Ombudsman program may be powerless 

to work with the facility or other 

agencies that may be needed in order to 

protect the health, safety, welfare or 

rights of the resident. In these cases, we 

disagree that taking such action 

weakens the core client advocate role of 

the Ombudsman program. 

Comment: Two commenters indicated 

support for the proposed language at 

§ 1327.17(b)(6). One commenter 

indicated that the proposed rule helps 

resolve the logical gap, contained in the 

Act, in that it allows the representative 

of the Office to access the records of an 

incompetent resident who has no 

guardian or legal representative but does 

not say what the representative of the 

Office can do with that information. 

Response: We appreciate the 

supportive comments and note that the 

corresponding provision is at 

§ 1327.19(b)(6) in the final rule. 

Comment: One commenter indicated 

appreciation for the clarification of the 

exception for the disclosure of resident 

identifying information in the proposed 

language at § 1327.17(b)(6)–(8). The 

commenter indicated that this provision 

will promote protection of vulnerable 

adults and enhance the capacity of the 

Ombudsman program to fulfill its duties 

to protect the health, safety, welfare, 

and rights of residents. 

Response: We appreciate the 

supportive comment and note that the 

corresponding provision is at 

§ 1327.19(b)(6)–(8) in the final rule. 

Comment: One commenter indicated 

that requiring approval of the 

Ombudsman for disclosure in 

§ 1327.17(b)(6) is appropriate. 

Response: We appreciate the 

supportive comment and note that the 

corresponding provision is at 

§ 1327.19(b)(6) in the final rule. 

Comment: Eight commenters 

indicated that obtaining approval from 

the Ombudsman for disclosure in 

§ 1327.17(b)(6)-(8) might delay referrals 

to law enforcement, adult protective 

services or the facility and suggested 

elimination of this requirement. One of 

these commenters indicated that this 

would especially be burdensome in a 

large State, recommending that 

standards be developed by the Office 

requiring the representative of the Office 

to notify the Ombudsman of the report. 

One of these commenters suggested that, 

alternatively, the final rule should 

require a time limit for Ombudsman 

decision on the approval. One of the 

commenters indicated that it is not 

practical, necessary or efficient to 

require approval of the Ombudsman for 

such disclosure. 

Response: We believe that the 

circumstances in which disclosure is 

made without resident or resident 

representative permission, as described 

in § 1327.19(b)(6)–(8) of the final rule, 

should be made with great caution. 

Ideally, the Ombudsman would be made 

aware of these circumstances and 

provide or deny approval. However, we 

understand that, particularly in States 

with large resident populations, this 

requirement could foreseeably create 

delays that could inhibit the ability of 

the representative of the Office, as well 

as other appropriate agencies, to protect 

the health, safety, welfare or rights of 

residents. 

Therefore, we have added the option, 

in § 1327.19(b)(6) and (8), for the 

representative of the Office to follow the 

relevant policies and procedures of the 

Office regarding disclosure and added a 

new paragraph at § 1327.19(b)(9) to 

provide additional clarity related to 

these policies and procedures of the 

Ombudsman program disclosure 

approval process. 

The final rule maintains the 

requirement for Ombudsman approval, 

however, in § 1327.19(b)(7) in 

circumstances where the resident has a 

resident representative who is not acting 

in the best interest of the resident. This 

requirement is maintained because it is 

consistent with the statutory 

requirement for the representative of the 

Office to obtain Ombudsman approval 

prior to accessing resident records when 

a resident’s guardian is not acting in the 

resident’s best interest. Section 

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

circumstances are likely to be less 

frequent, and since the provision related 

to records access already exists in the 

law so should be the current practice in 

States, we do not believe that this 

provision will be burdensome, even to 

States with large resident populations. 

Comment: Two commenters 

recommended that the final rule compel 

Ombudsman program disclosure in the 

circumstances set forth in the proposed 

language at § 1327.17(b)(6), replacing 

the ‘‘may refer’’ with ‘‘shall refer.’’ 

Response: The Act indicates that 

determinations regarding disclosure of 

Ombudsman program information may 

be disclosed only at the discretion of the 

Ombudsman or the person designated 

by the Ombudsman. Section 

712(d)(2)(A) of the Act. We believe that 

maintaining the proposed language 

‘‘may refer’’ in the final rule at 

§ 1327.19(b)(7) reflects this statutory 

provision, so have not made the 

recommended change. 

Comment: One commenter 

recommended that the authority for the 

Ombudsman program to act in the 

circumstances described in 

§ 1327.17(b)(6) not be limited to 

circumstances of abuse, gross neglect, or 

exploitation, indicating that the Act is 

not similarly limiting. 

Response: We agree with this 

recommendation and have instead more 

closely reflected the statutory language 

from section 712(a)(3)(A)(ii) and 

(5)(B)(iii) of the Act, to read ‘‘has 

reasonable cause to believe that an 

action, inaction or decision may 

adversely affect the health, safety, 

welfare, or rights of the resident’’ in the 

final rule at § 1327.19(b)(6). 

Comment: One commenter indicated 

that the P&A system should be 

explicitly included as an appropriate 

referral in § 1327.17(b)(6),(7) and (8). 


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Response: As ACL administers funds 

to States for P&A systems, we are aware 

that they provide critically important 

services, as do other entities which are 

also not specified in this provision. We 

are choosing to retain the broad 

description in the final rule at 

§ 1327.19(b)(6),(7), and (8) regarding 

referrals for ‘‘access to administrative, 

legal, or other remedies,’’ rather than 

specifying any particular entity or 

service provider. In addition, the final 

rule requirements at § 1327.13(h)(4) for 

the Ombudsman to coordinate with P&A 

systems will support these referrals. 

Comment: One commenter 

recommended that we replace the word 

‘‘may’’ with ‘‘shall’’ in the proposed 

language in § 1327.17(b)(6) and (7): ‘‘the 

procedures for disclosure may provide.’’ 

The commenter indicated the need for 

consistency across Ombudsman 

programs. 

Response: We have accepted this 

recommendation in the final rule at 

§ 1327.17(b)(6) and (7). While we have 

maintained the discretion of the 

Ombudsman regarding when to make 

such referrals, we agree that it is 

appropriate to require these policies and 

procedures regarding disclosure in order 

to promote quality ombudsman services 

for residents. 

Comment: Two commenters indicated 

support for the proposed language at 

§ 1327.17(b)(7). One commenter 

indicated that the Act contains a logical 

gap in that it allows the representative 

of the Office to access the records of an 

incompetent resident over the protests 

of a guardian or legal representative 

who is not acting in the resident’s best 

interest, but does not say what the 

representative of the Office can do with 

that information. 

Response: We appreciate the 

supportive comments and note that the 

corresponding provision in the final 

rule is § 1327.19(b)(7). 

Comment: One commenter 

recommended that the authority for the 

Ombudsman program to act in the 

circumstances described in 

§ 1327.17(b)(7) not be limited to 

circumstances of abuse, gross neglect, or 

exploitation, indicating that the Act is 

not similarly limiting. 

Response: We agree with this 

recommendation and have instead more 

closely reflected the statutory language 

from section 712(a)(3)(A)(ii) and 

(5)(B)(iii) of the Act, to read ‘‘a resident 

representative who has taken an action, 

inaction or decision that the 

Ombudsman or representative of the 

Office has reasonable cause to believe 

may adversely affect the health, safety, 

welfare, or rights of the resident’’ at 

§ 1327.19(b)(7). 

Comment: Two commenters indicated 

that the final rule should compel 

Ombudsman program disclosure in 

§ 1327.17(b)(6), replacing the ‘‘may’’ 

with ‘‘shall.’’ One of the commenters 

indicated that it is inconceivable that 

reporting to protective services and/or 

law enforcement would be anything but 

in the resident’s best interest. 

Response: The Act indicates that 

determinations regarding disclosure of 

Ombudsman program information may 

be disclosed only at the discretion of the 

Ombudsman or the person designated 

by the Ombudsman. Section 

712(d)(2)(A) of the Act. We believe that 

maintaining the proposed language 

‘‘may refer’’ in the final rule at 

§ 1327.19(b)(7) reflects this statutory 

provision, so have not made the 

recommended change. 

Comment: Five commenters indicated 

support for the proposed provision at 

§ 1327.17(b)(8). One of these 

commenters indicated agreement with 

the process, appreciation of the detail 

and careful weighing of competing 

values reflected in the proposed rule, 

and expectation that the proposed rule 

will give the Ombudsman program clear 

guidance in handling these difficult 

situations. 

Response: We appreciate the 

supportive comments and note that the 

corresponding provision in the final 

rule is § 1327.19(b)(8). 

Comment: Seven commenters 

recommended that the final rule should 

require implementation of policies that 

require the representative of the Office 

who witnesses abuse, gross neglect, or 

exploitation to report the observation. 

Several of these commenters indicated 

that, if any representative of the Office 

personally witnesses an event and takes 

no action, it gives the perpetrator 

permission to continue the behavior, 

and that the witness has the 

responsibility to report as a firsthand 

observer of the incident. One of the 

commenters indicated that reporting is 

not a violation of the Act since, by 

witnessing the event, the representative 

of the Office has not been provided 

information from a third party. 

Response: Both the proposed language 

and the final rule clarify that the 

procedures for disclosure shall provide 

that—where the Ombudsman or 

representative of the Office personally 

witnesses suspected abuse, neglect or 

exploitation of a resident—the 

representative of the Office shall follow 

the direction of the resident or resident 

representative. We believe this approach 

is consistent with the Act which permits 

disclosure of resident identifying 

information only with consent or in 

other very limited situations. 

The Act is silent on how to best 

handle this situation when the 

Ombudsman or representative of the 

Office personally witnesses an incident 

and the resident at issue is unable to 

communicate informed consent (and 

has no resident representative available 

to do so). In these cases, we have 

described the circumstances in the final 

rule, at § 1327.19(b)(8), that the 

Ombudsman or representative shall 

refer the matter and disclose the 

identifying information of the resident 

to the facility and/or appropriate agency 

for substantiation of abuse and may 

refer the matter to other appropriate 

agencies. 

Comment: One commenter indicated 

that, if the representative of the Office 

witnesses an issue, he or she must have 

the authority to initiate a complaint. 

Response: There is nothing in the rule 

that would limit the ability of the 

representative of the Office to initiate a 

complaint (i.e. open a case with one or 

more complaints). This rule at 

§ 1327.19(b)(8) addresses procedures for 

disclosure of resident-identifying 

information in the work to resolve such 

a complaint. 

Comment: Five commenters indicated 

that the proposed language at 

§ 1327.17(b)(8) appears to require 

representatives of the Office to be 

mandatory abuse reporters, at least in 

certain circumstances. One of these 

commenters described this as contrary 

to their State law. Two of these 

commenters indicated mandated 

reporting runs counter to the principles 

of the Ombudsman program and its 

unique role as resident advocate under 

the Act. Two of these commenters 

requested clarification to ensure that 

representatives of the Office are not 

mandated reporters in facilities where 

the resident has the ability to grant or 

deny consent. One commenter 

expressed that personally witnessing 

abuse versus being told or otherwise 

discovering evidence of abuse is an 

artificial distinction. 

Response: In the final rule at 

§ 1327.19(b)(8), we describe 

circumstances when an Ombudsman or 

representative of the Office has personal 

knowledge of circumstances that others 

may not have. This information is likely 

relevant to the ability of the facility to 

protect the resident and to the ability of 

the official finder of fact to determine 

whether the alleged abuse, gross neglect 

or exploitation can be substantiated. 

When an Ombudsman program 

receives any complaint (including, but 

not limited to, an abuse-related 

complaint), its goal is to resolve the 

complaint to the resident’s satisfaction, 

but not to serve as the official finder of 


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fact to substantiate whether the abuse or 

other allegation occurred. In most 

States, the substantiation decision is 

made either by adult protective services 

and/or the licensing and regulatory 

agency. By contrast, when a report has 

been made to the Ombudsman program 

or when a representative of the Office 

discovers information through review of 

resident records, someone else is 

necessarily aware of the circumstances 

and can (and in many instances is 

mandated to) report this information to 

the agency which is responsible for 

substantiating abuse. Therefore, absent 

an indication from the resident or 

resident representative that there is not 

consent for this information to be 

shared, we believe that the 

representative of the Office should be 

required to disclose such information. 

Comment: One of the commenters 

recommended that the proposed 

language at § 1327.17(b)(8) should 

require that reporting of Ombudsman 

program information remain within the 

discretion of the Ombudsman. 

Response: For the reasons mentioned 

above, we believe that the disclosure 

procedures should require reporting in 

the narrow circumstances provided in 

the final rule at § 1327.19(b)(8). We do, 

however, provide for Ombudsman 

discretion in determining whether the 

required reporting is in the best interest 

of the resident in § 1327.19(b)(8)(ii)(B). 

We further provide for Ombudsman 

discretion regarding referring or 

reporting to other agencies for 

regulatory oversight, protective services, 

access to remedies and/or law 

enforcement in § 1327.19(b)(8)(iii). 

Comment: One commenter requested 

definition of the term ‘‘suspected abuse, 

gross neglect, or exploitation’’ since 

States have differing interpretations and 

definitions of these terms. Some 

commenters recommended that we omit 

the term ‘‘gross’’ from the term ‘‘gross 

neglect.’’ 

Response: The rationale for our 

maintaining the use of ‘‘gross neglect’’ 

in the final rule at § 1327.19(b)(8)(iii) is 

consistent with the rationale used in 

AoA’s instructions for Ombudsman 

program reporting in the NORS. OMB 

NO.: 0985–0005. AoA provides a 

separate code for complaints of ‘‘gross 

neglect’’ (defined as ‘‘willful 

deprivation by a person, including a 

caregiver, of goods or services that are 

necessary to avoid physical harm, 

mental anguish, or mental illness’’). 

This distinction in NORS instructions is 

intended to differentiate ‘‘gross neglect’’ 

from other complaint codes which the 

Ombudsman program receives related to 

facility care and practices, many of 

which could also reasonably be 

considered ‘‘neglect.’’ 

Comment: One commenter 

recommended deletion of proposed 

paragraph § 1327.17(c), questioning how 

realistic it is to expect local 

Ombudsman entities to coordinate with 

this long list of programs and agencies. 

Response: We have accepted this 

recommendation by deleting this 

provision and incorporating into the 

final rule a responsibility for the 

Ombudsman to ‘‘support appropriate 

local Ombudsman entity coordination’’ 

with the listed entities at § 1327.13(h). 

Comment: Several commenters 

indicated support for the proposed 

language at § 1327.17(d). Some 

commenters indicated that providing 

information and speaking directly to 

legislators, including making 

recommendations for changes to laws, 

are critical to the Ombudsman program 

work. Some commenters indicated that 

this provision supports the premise that 

the Ombudsman has the ability to act 

independently, even if the target of the 

advocacy is the State government itself. 

Response: We appreciate the 

supportive comments and note that the 

corresponding provision is found at 

§ 1327.13(a)(7)(vii). 

Comment: One commenter indicated 

that they foresee challenges in States 

upholding the requirement related to 

lobbying activities found in the 

proposed language at § 1327.17(d). 

Response: The Act is clear that 

Congress intends for the Office to have 

the authority to make recommendations 

regarding changes to laws, regulations, 

and policies pertaining to the interests 

of long-term care facility residents. This 

is both a required function of the 

Ombudsman (at section 712(a)(3)(G) of 

the Act) and an expectation of the State 

agency to require of the Office (section 

712(h)(2) of the Act). AoA’s intent in the 

final rule at § 1327.13(a)(7)(vii) is to 

clarify that by performing these 

statutorily required functions, the Office 

is not violating the federal lobbying 

restrictions of 45 CFR part 93. 

Comment: Two commenters 

recommended that we add a provision 

to § 1327.17 which adds penalties and a 

process for reporting to AoA for 

interference with the Ombudsman 

program. 

Response: While we have not 

included penalties in this provision, we 

have addressed interference, retaliation 

and reprisals, including sanctions for 

interference, in the final rule at 

§ 1327.15(i). 

H. Conflicts of Interest (§ 1327.21) 

In § 1327.21, AoA provides 

clarification to State agencies and 

Ombudsman programs regarding the 

process of identifying conflicts of 

interest with the Ombudsman program, 

as required by the Act. This section 

provides examples of conflicts of 

interest at both the organizational and 

individual levels. It also provides 

clarification regarding the statutorilyrequired process of removing or 

remedying identified conflicts. 

Comment: Sixteen commenters 

expressed support for § 1327.19 

(§ 1327.21 in the final rule) as proposed. 

One of these commenters indicated that 

this proposed regulation is critical to 

promoting and maintaining the 

autonomy and integrity of the 

Ombudsman program. Two commenters 

indicated that the proposed language 

provides avenues for State agencies to 

address scenarios where the 

Ombudsman program is compromised 

by conflicts of interest. One commenter 

congratulated AoA on taking on this 

complicated issue which becomes 

increasingly complex as agencies 

become more diversified in provision of 

services. The commenter indicated that 

recognizing placement raises inherent 

conflicts is first step to finding ways to 

ensure that policies are in place to 

address conflicts when they do arise, 

ensuring that resident concerns are fully 

and appropriately addressed. 

Another indicated that the proposed 

language gives clarity regarding 

potential conflicts of interest and 

guidance for eliminating or remedying 

it. The commenter indicated that 

Ombudsmen in some State agencies 

have other job responsibilities or are 

located in agencies where 

responsibilities can appear to or actually 

compete with resident interests, 

resulting in residents perceiving that the 

Ombudsman is not truly representing 

their interests. 

One commenter indicated 

appreciation for AoA building in time to 

allow networks to make appropriate 

changes and construct effective 

remedies where conflicts exist. Several 

commenters requested further guidance 

and training to help States craft 

remedies or expressed appreciation for 

AoA’s indication of its intent to do so 

in advance of final rule implementation. 

Response: We appreciate the 

supportive comments and note that the 

corresponding provisions are at 

§ 1327.21 of the final rule. 

Comment: Two commenters indicated 

that the proposed rule is too weak given 

the reality of many of the enumerated 

conflicts of interest. 

Response: It is our intent that through 

the implementation of the final rule, 

State agencies and Ombudsman 

programs will be better equipped to 


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comply with the provisions related to 

conflicts of interest as required by 

section 712(f) of the Act. 

Comment: Seven commenters 

recommended that the final rule 

describe consequences for noncompliance with reporting or 

interference and indicated the need for 

AoA enforcement. Several of the 

commenters indicated that, unless AoA 

monitors and reinforces the 

requirements, compliance cannot be 

assured. 

Response: We have addressed the 

State agency responsibilities related to 

interference, retaliation and reprisals at 

§ 1327.15(i). In addition, Federal 

regulation provides options for HHS 

grant awarding agencies, including 

AoA, to respond when a grantee fails to 

comply with any term of an award. 45 

CFR 75.371. 

Comment: Three commenters 

indicated concern for adequate staffing 

in agencies housing local Ombudsman 

entities where every staff person must 

perform multiple roles and 

responsibilities, with insufficient 

funding for a full-time representative of 

the Office, or in entities with conflicting 

responsibilities which must share the 

same work space. Two of these 

commenters indicated that this is 

particularly a challenge in rural areas. 

Response: We acknowledge the 

significant challenges faced by 

individuals who must perform multiple 

roles and responsibilities. Multiple roles 

and responsibilities do not necessarily 

pose a conflict of interest. However, 

where they do, the Act, and this final 

rule in implementing the Act, require 

that the conflicts be identified and 

remedied or removed. We intend to 

provide additional technical assistance 

to State agencies and Ombudsman 

programs to assist them in complying 

with this rule. 

Comment: One commenter indicated 

that the benefits of coordination among 

programs (e.g., adult protective services 

and Ombudsman programs) may 

outweigh the potential conflicts of 

interest. 

Response: We agree that coordination 

between adult protective services and 

Ombudsman programs can and does 

benefit the individuals whom they 

serve. In fact, the Act (at section 

712(h)(6)–(8)) and this final rule (at 

§ 1327.13(h)) require the Ombudsman to 

coordinate Ombudsman program 

services with various entities; the rule 

requires coordination with adult 

protective services. We believe that the 

identification of a conflict of interest 

does not diminish the importance of 

coordination among relevant programs. 

Comment: Seven commenters 

recommended clarification related to 

conflict of interest and legal counsel for 

the Ombudsman program, requesting a 

requirement that any individual 

providing legal counsel to the Office is 

not subject to a conflict of interest. 

Response: As a result of these and 

other comments, we have included in 

the final regulation a provision that the 

State agency ensure the provision of 

conflict-free legal counsel at 

§ 1327.15(j). 

Comment: One commenter indicated 

that the best way to minimize conflicts 

is to legislatively require the Office to be 

moved outside of State government. 

Another commenter indicated that the 

rule should explicitly state that the 

Ombudsman program not be located 

within or connected to the State agency. 

Response: The Act specifically 

provides State agencies with significant 

latitude in determining whether to 

operate the program directly or operate 

it through contract or other agreement 

with another agency. Section 712(a)(4) 

of the Act. Therefore, we do not believe 

the Act provides us with the authority 

to promulgate a rule which would 

prohibit State agencies from operating 

the Office directly or from arranging for 

another State agency to operate the 

Office. Further, we have observed 

examples of Ombudsman programs 

located within or attached to State 

agencies which have been successfully 

able to perform the functions required 

in the Act. 

Comment: One commenter requested 

that AoA be flexible in addressing 

States’ unique programmatic concerns. 

Another recommended that AoA 

provide examples of acceptable 

remedies and situations which cannot 

be remedied. One commenter 

recommended that AoA provide 

oversight to enable States agencies and 

local Ombudsman entities to properly 

implement this rule without 

undermining existing infrastructure. 

Response: We plan to provide training 

and technical assistance to assist State 

agencies and Ombudsmen to implement 

the final rule. 

Comment: One commenter 

recommended that the Ombudsman, in 

addition to the State agency, be required 

in the final rule to identify possible 

conflicts and develop policies to remedy 

the conflicts. 

Response: We have adopted this 

recommended change in the final rule at 

§ 1327.21. In addition, the final rule 

provides for Ombudsman involvement 

in developing and/or collaborating on 

the development of Ombudsman 

program conflict of interest policy at 

§ 1327.11(e)(4). 

Comment: One commenter 

recommended that we include language 

requiring the State agency to have 

written policies and methods to identify 

and remove conflicts of interest and 

other influences that could limit the 

Ombudsman program’s ability to carry 

out its assigned functions. They 

recommended including methods by 

which the State agency will examine 

individuals and their immediate family 

members to identify conflicts and 

actions the State agency will require the 

individuals and such family members to 

take to remove such conflicts. 

Response: We have included language 

that incorporates this recommendation 

in the final rule at § 1327.11(e)(4) 

related to development of policies and 

procedures. We note that the 

recommended language is taken largely 

from the statutory provision at section 

712(f)(4) of the Act and agree that it is 

appropriate to reflect that statutory 

language in the rule. 

Comment: One commenter 

recommended that we include language 

requiring the State agency to have 

policies regarding interference, 

prohibiting retaliation and reprisals and 

providing for appropriate sanctions. 

Response: Provisions related to State 

agency development of policies and 

procedures on interference, retaliation, 

and reprisals, and providing for 

appropriate sanctions have been 

included in the final rule at § 1327.15(i). 

Comment: Eight commenters 

indicated support for the proposed 

language regarding identification of 

organizational conflicts at § 1327.19(a). 

Two commenters commended AoA for 

including surrogate decision-makers in 

the list of examples at § 1327.19(a)(12). 

Response: We appreciate the 

supportive comments and note that the 

corresponding provisions are in the 

final rule at § 1327.21(a). 

Comment: Several commenters 

interpreted the proposed rule to prohibit 

the operation of the Ombudsman 

program in a host agency with one or 

more of the conflicts enumerated in 

§ 1327.19(a). One commenter indicated 

concern that the proposed rule would 

prohibit the Office from being located in 

a host agency responsible for public 

guardianship or Medicaid assessments, 

given current locations of Ombudsman 

programs in agencies that have these 

responsibilities. One commenter 

recommended that the final rule clarify 

that a remedy might be found that does 

not require moving out of the agency 

with a conflicting responsibility. 

Another indicated that, if the 

Ombudsman program should be 

separated from the State unit on aging 

and its funding stream, this would have 


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a significant financial impact on the 

program as significant funds do not 

come from Federal sources. 

Response: We recognize that some 

States have organizationally located the 

Office and/or local Ombudsman entities 

inside agencies with duties which are 

identified as examples of conflicting 

duties under the final rule. The final 

rule does not prohibit the Office or local 

Ombudsman entities from being hosted 

in the entities enumerated in 

§ 1327.21(a), except for those conflicts 

enumerated in § 1327.21(b)(3). However, 

the final rule does require the State 

agency and Ombudsman to identify 

these conflicts and take steps to remove 

or remedy the conflicts. Further, the 

Ombudsman must report on these steps 

to AoA. See § 1327.21(b)(1). 

Comment: One commenter 

recommended defining ‘‘long-term care 

services’’ where it appears in § 1327.19, 

suggesting it be limited to services 

provided to residents and applicants of 

long-term care facilities but not services 

provided in the applicant or residents’ 

home outside of a long-term care 

facility. 

Response: We have added language in 

the final rule at § 1327.21(a) to clarify 

that a potential or actual conflict exists 

where the services are provided to 

residents of long-term care facilities, as 

defined by the Act at section 102(35), 

but not necessarily for services provided 

to individuals receiving long-term care 

(or long-term services and supports) in 

other settings. For consistency, we have 

also removed the term ‘‘long-term care 

services’’ from the other places where it 

was found in the proposed rule. 

We understand that some States have 

expanded the Ombudsman program’s 

jurisdiction to serve individuals in adult 

day health centers, in their own homes, 

and other settings, beyond the scope of 

the Act. While this rule does not restrict 

those State decisions which have 

expanded the Ombudsman program 

scope, it is equally important for the 

State agency and the Ombudsman 

program to identify and remedy or 

remove additional conflicts of interest 

that may exist where the Ombudsman 

program serves individuals receiving 

long-term care in settings other the longterm care facilities. 

Comment: One commenter indicated 

that, at the local level, a representative 

of the Office hosted by an AAA faces 

conflicts with the agency when the 

representative of the Office makes 

recommendations or investigates 

problems at county-based facilities. This 

is especially challenging, according to 

the commenter, where the 

representative of the Office is co-located 

with workers with roles such as 

guardians, protective services workers, 

and care managers. 

Response: Section 1327.21(b)(6) of the 

final rule requires the identification of 

such conflicts of interest and requires 

that the agency hosting a local 

Ombudsman entity take steps to remedy 

or remove such conflicts. 

Comment: One commenter 

recommended that the final rule 

indicate that conflicting activities 

performed by an Ombudsman or 

representatives of the Office are not 

permissible. 

Response: We have adopted this 

recommendation at § 1327.21(a) of the 

final rule. 

Comment: One commenter 

recommended that the final rule include 

‘‘supported decision makers’’ to the list 

of surrogate decision-makers in 

§ 1327.19(a)(12). 

Response: Since supported decisionmakers are designed to support the 

wishes of the individual, we do not 

understand this function to be a conflict 

of interest with the Ombudsman 

program. This is in contrast to surrogate 

decision-makers which may focus on 

the best interest of the individual and 

may have the authority to override the 

wishes of the individual. 

Comment: One commenter indicated 

that, since a number of States and AAAs 

provide both Ombudsman services and 

protective services, the final regulation 

should recognize that such an 

arrangement does not inherently present 

a conflict of interest. 

Response: While there may be 

remedies available to address this 

conflict of interest, we do not agree that 

the fact that these two programs are colocated in some States or AAAs 

eliminates the conflict. 

Comment: Several commenters 

recommended that AoA provide further 

guidance on implementation of this 

regulation, including clarification of 

terms such as ‘‘placement’’ in 

§ 1327.19(a), clarifying and 

distinguishing between ‘‘remedy’’ and 

‘‘removal,’’ to assist States as they 

identify conflicts. 

Response: We plan to provide 

additional training and technical 

assistance to assist State agencies and 

Ombudsmen to implement the final 

rule. 

Comment: One commenter 

recommended that the final rule 

indicate that ‘‘any aspect of licensing’’ 

be included in § 1327.19(a)(1) and 

(a)(2)(i) to address the circumstance 

where various regulatory 

responsibilities are divided among 

various agencies. 

Response: We believe that the 

proposed language is sufficiently clear 

to apply to more than one entity with 

functions of licensing, surveying or 

certifying long-term care facilities, so 

have not made this change in the final 

rule in the corresponding provisions at 

§ 1327.21(a)(1) and (a)(2)(i). 

Comment: One commenter indicated 

that some AAAs which organizationally 

house local Ombudsman programs 

receive donations from long-term care 

facilities. Another commenter indicated 

that some AAAs are county agencies in 

counties that own, operate and/or 

manage long-term care facilities and 

where the facility and the AAA report 

to the same leadership. 

Response: We acknowledge that 

conflicts of interest exist currently in 

some State agencies and agencies 

hosting local Ombudsman entities. It is 

our intent that the final rule will clarify 

the process by which State agencies and 

Ombudsmen can appropriately carry out 

their responsibilities to identify, remedy 

and/or remove such conflicts. 

Comment: One commenter indicated 

that co-locating care coordination 

services, protective services, 

guardianship services, and a local 

Ombudsman entity within an AAA has 

been positive and has strengthened 

working relationships. Another 

commenter indicated that co-location of 

protective services and a local 

Ombudsman entity has allowed for 

greater advocacy and efficiency. 

Response: We believe that positive 

relationships between the individuals 

who work for various programs and 

agencies—even those which provide 

potentially conflicting services—can be 

extremely beneficial for recipients. In 

fact, Ombudsman program coordination 

with many of these entities is required 

in the final rule at § 1327.13(h). 

Comment: One commenter 

recommended that the final rule include 

as a conflict: ‘‘determining training 

requirements for long-term care service 

providers.’’ 

Response: Since training requirements 

for long-term care facilities are typically 

established as part of licensing or 

certification requirements, we believe 

that the provision related to ‘‘licensing, 

surveying, or certifying long-term care 

facilities’’ (in the final rule at 

§ 1327.21(a)(1)) would typically be 

inclusive of this activity. The list of 

organizational conflicts of interest in the 

final rule is not exhaustive and does not 

preclude the identification of additional 

conflicts. 

Comment: Several commenters 

recommended approaches to remedying 

identified organizational conflicts. One 

commenter recommended that the final 

rule require development of firewalls to 

protect the Ombudsman program and 


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personnel from interference, 

intimidation and retaliation by State 

officials. Another commenter 

recommended that the rule indicate that 

each entity must ensure administrative 

separateness of all programs as a 

remedy. Another indicated that 

separating out AAA staff functions 

could help remedy conflicts with a local 

Ombudsman entity. One commenter 

recommended that all local 

Ombudsman entities have their own 

brand identity (e.g., signage, stationary, 

business cards, outreach materials) 

separate from the AAA to reduce 

perceived conflicts of interest and 

confusion (including questions from 

residents about why representatives of 

the Office wear name tags with the AAA 

name on them). 

One comment recommended that the 

final rule include criteria for steps that 

should be taken by the State agency as 

evidence of a process to remedy or 

remove conflicts. The commenter noted 

that some of these are included in the 

preamble to the proposed rule and 

proposed additional criteria. 

Response: We acknowledge that 

administrative structures, such as 

firewalls, may be appropriate remedies 

in some circumstances. AoA plans to 

provide additional technical assistance 

to States as they develop plans to 

remove and remedy existing conflicts of 

interest. Provisions related to 

development of policies and procedures 

on interference, retaliation and 

reprisals, and providing for appropriate 

sanctions have been included in 

§ 1327.15(i). 

Comment: One commenter 

recommended that the final rule should 

emphasize removal of conflicts, as 

opposed to remedy of conflicts, which 

may be superficial. The commenter 

recommended that, where conflicts 

exist, the Ombudsman program or the 

conflicting service should be relocated 

within a reasonable time frame. 

Response: We disagree. We are aware 

of examples where remedies have been 

effective in ensuring the credibility of 

the Ombudsman program. We plan to 

provide additional technical assistance 

to State agencies and to Ombudsman 

programs to assist them in developing 

effective steps to remedy or remove 

conflicts. 

Comment: One commenter 

recommended that the State agency and 

the Ombudsman should describe the 

organizational placement of the Office, 

identify any organizational conflicts, 

develop a proposal for removing or 

remedying the conflict, and submit their 

plan to AoA for approval, indicating the 

State’s plan to continue operating under 

the approved plan until there is some 

change in the Office that requires 

reporting. 

Response: The final rule at 

§ 1327.21(b)(1) requires the Ombudsman 

to report on any identified conflicts and 

steps taken to remedy the conflicts 

through the NORS. 

Comment: One commenter 

recommended that we add the term 

‘‘periodic’’ to describe the review 

process required in § 1327.19(b)(1)(ii) of 

the proposed rule in order to require 

that review be made on a regular basis. 

Response: We agree that periodic 

reviews are reasonable. The final rule 

provides flexibility for a State agency 

and Ombudsman program to develop a 

review process that includes periodic 

reviews. 

Comment: One commenter 

recommended clarity on enforcement 

actions that might be taken where 

conflicts exist. 

Response: Determinations regarding 

organizational placement of the Office 

and/or local Ombudsman entities may 

remove conflicts of interest. Further, the 

final rule at § 1327.21(b)(7) provides 

that failure to disclose a conflict by an 

agency hosting a local Ombudsman 

entity is adequate grounds for the 

Ombudsman to refuse, suspend, or 

remove the entity’s designation. 

In addition, the relationship between 

AoA and the State agency is one of a 

grant awarding agency to a grantee. 

Federal regulation provides options for 

HHS grant awarding agencies such as 

AoA to respond when a grantee fails to 

comply with any term of an award. 45 

CFR 75.371. 

Comment: Three commenters 

indicated support for the proposed 

requirement for reporting of conflicts 

into the NORS. 

Response: We appreciate the 

supportive comments. 

Comment: One commenter 

recommended language that would 

require submission of and approval of a 

plan for removing or remedying 

organizational conflicts. 

Response: The final rule at 

§ 1327.21(b)(1) requires the reporting of 

organizational conflicts and steps taken 

to remove or remedy them through the 

NORS. 

Comment: One commenter requested 

information on how AoA intends to use 

the information regarding disclosure of 

conflicts of interest reported in the 

NORS. Two commenters expressed 

concern for possible retaliation against 

the Ombudsman who submits 

information in NORS. 

Response: AoA intends to use the 

reports in order to assist it in assuring 

that State agencies and Ombudsman 

programs are complying with the 

requirements in the Act and in this rule 

to identify and remedy or remove 

conflicts of interest. We would also 

review the circumstances if we were to 

receive any reports of retaliation against 

an Ombudsman who truthfully submits 

information required by Federal rule, 

and we would take appropriate steps to 

address any such allegations. 

Comment: One commenter indicated 

that not all States use the NORS system. 

Another commenter recommended that 

AoA consider the cost to States if this 

reporting requires updating of NORS. 

Response: While not all States use the 

same software to collect their data, all 

States are required to report into NORS 

as a condition of receiving OAA funds. 

OMB NO.: 0985–0005. In order to make 

changes to NORS, the AoA is required 

to publish, and invite public comment 

on, the proposal as well as provide 

estimates of any cost impact, as required 

by the Paperwork Reduction Act. We 

will invite public comment on any 

proposed changes to NORS as a result 

of the implementation of this rule. 

Comment: Four commenters indicated 

that, in addition to NORS reporting, 

conflicts at the state level should be 

immediately reported to AoA. One of 

these commenters indicated that annual 

reporting in NORS is untimely to report 

a matter of such great significance. 

Instead, the commenter recommended 

that the rule at § 1327.19(b)(1)(v) require 

the State agency to immediately report 

(in no later than ten days) conflicts to 

AoA, indicating that the State agency is 

likely to be the source of the conflict. 

The commenter proposed that State 

agency failure to immediately disclose 

and adequately remedy or remove 

conflict should be grounds to remove 

State agency authority to operate the 

Office, and that the same penalty be 

applied to a local Ombudsman entity 

under § 1327.19(b)(6). Another 

commenter recommended that all 

Ombudsmen and representatives of the 

Office should be required in the final 

rule to report any perceived or real 

conflict of interest directly to a neutral 

third party. 

Response: We believe that the 

approach we have taken in the final rule 

at § 1327.21, which provides for annual 

identification of organizational conflicts 

and description of steps taken to remedy 

or remove conflicts, will provide an 

orderly process that will implement the 

requirements of the Act, enhance 

transparency, avoid burdensome 

reporting requirements on Ombudsman 

programs, and emphasize the 

importance of States providing credible, 

conflict-free Ombudsman programs for 

residents. 


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Comment: One commenter 

recommended that all conflicts of 

interest at state or local levels should be 

included in the NORS report. 

Response: The rule does not limit 

reporting in NORS to state-level 

organizational conflicts of interest. 

Comment: One of the commenters 

recommended that the final rule include 

stronger language to protect the 

Ombudsman from retaliation, indicating 

that retaliation occurs in spite of 

prohibitions under the Act. 

Response: Provisions related to 

development of policies and procedures 

on interference, retaliation, and 

reprisals, and providing for appropriate 

sanctions have been included in 

§ 1327.15(i). 

Comment: One commenter noted that 

the proposed rule at § 1327.19(b)(2) 

prohibits co-location of the Ombudsman 

program with only three of the twelve 

examples listed in § 1327.19(a). The 

commenter recommended that the final 

rule include a prohibition of co-location 

of the Ombudsman program with adult 

protective services and entities making 

admission or discharge decisions 

regarding long-term care facility 

residents. The commenter indicated that 

the actions of these entities may be too 

directly coercive for most residents or 

their families to be able to feel that the 

Ombudsman could be impartial. 

Response: A State agency or 

Ombudsman program may choose to 

implement policies that prohibit the colocation of the Ombudsman program 

with adult protective services and 

entities making admission or discharge 

decisions regarding long-term care 

facility residents. However, we have not 

amended the final rule to adopt this 

recommendation. 

Comment: One commenter 

recommended that there should not be 

an absolute prohibition of the Office 

being co-located with the entity 

responsible for licensing, surveying or 

certifying long-term care facilities as 

proposed in § 1327.19(b)(2)(i). 

Response: The Act prohibits a State 

agency to enter into a contract or other 

arrangement to carry out the Office with 

‘‘an agency or organization that is 

responsible for licensing or certifying 

long-term care services in the State.’’ 

Section 712(a)(4)(B)(i) of the Act. We 

have narrowed the applicability of this 

provision to ‘‘long-term facilities’’ in the 

final rule. However, we believe that 

same prohibition to co-locate the Office 

with a licensing or certification agency 

where the State agency contracts out the 

Office, should also apply to the State 

agency when it houses the Office, since 

the same conflicts of interest exist in 

either organizational placement. 

Comment: Three commenters 

recommended that AoA, rather than the 

State agency, be responsible for 

determining whether the State agency 

has adequately remedied or removed a 

conflict. The commenters indicated 

concerns that conflicts have increased 

as State agencies and AAAs increasingly 

take on additional direct service 

provision, including through Medicaid 

waiver programs. 

Response: The Act requires that the 

State agency establish mechanisms to 

identify and remove conflicts of interest. 

Section 712(f)(4) of the Act. We are 

available to provide technical assistance 

to support States in fulfilling this 

requirement. Moreover, the final rule, at 

§ 1327.21(b), provides AoA with a 

mechanism to become more aware of 

existing conflicts and steps States and 

Ombudsman programs have taken to 

remedy or remove the conflicts through 

regular reports. 

Comment: One commenter 

recommended that we add the term 

‘‘operational’’ to the proposed language 

at § 1327.19(b)(2)(iii). 

Response: We have accepted this 

recommended language in the final rule 

at § 1327.21(b)(3)(iii). 

Comment: One commenter 

recommended that the final rule address 

the situation of conflicts when the State 

agency has responsibility for oversight 

of a contract to operate the Office. 

Response: We have accepted this 

recommended language in the final rule 

at § 1327.21(b)(4)(i). 

Comment: One commenter indicated 

support for the State agency and the 

Ombudsman being in the best position 

to identify a process to remove and/or 

remedy any organizational conflicts 

within local agencies. 

Response: We appreciate the 

supportive comment. 

Comment: Two commenters indicated 

support for the proposed language at 

§ 1327.19(c). One of these commenters 

indicated appreciation for AoA’s 

indication of the importance of 

promoting conflict-free integrity of the 

Ombudsman program. 

Response: We appreciate the 

supportive comments and note that the 

corresponding provisions are in the 

final rule at § 1327.21(c). 

Comment: One commenter indicated 

that the proposed rule will create a 

challenge in rural areas where 

employees of long-term care facilities 

are neighbors, friends and family of 

representatives of the Office. 

Response: The Act requires the State 

to ensure that no representative of the 

Office or member of his or her 

immediate family is subject to a conflict 

of interest. Section 712(f)(2) of the Act. 

We appreciate that this requirement 

may create challenges to some 

Ombudsman programs and local 

Ombudsman entities, including in rural 

areas. Our intent is to help States and 

Ombudsman programs carry out this 

statutory requirement and to enhance 

the credibility of the Ombudsman 

program. We plan to provide additional 

technical assistance to State agencies 

and Ombudsman programs as they 

develop approaches to remove and 

remedy existing conflicts of interest. 

Comment: One commenter 

recommended that AoA provide States 

with deference in their hiring practices 

and not limit States from selecting 

otherwise qualified candidates from 

serving in the Office. 

Response: Under the final rule, State 

agencies and other entities responsible 

for employing or appointing the 

Ombudsman do have significant 

latitude to select a person who meets 

the qualifications of the position. See 

§ 1327.11(d). The Act requires that the 

State agency shall ensure that the 

Ombudsman be free of conflict of 

interest and provides a number of 

specific examples of prohibited interests 

or relationships. Section 712(f) of the 

Act. Our intent in this rule is to assist 

States to implement this statutory 

provision, but not to limit them from 

selecting qualified candidates. 

Comment: One commenter 

recommended that we add a new 

provision to the proposed language at 

§ 1327.19(c)(2) which prohibits the 

ability to gain financially through an 

action or potential action brought on 

behalf of individuals the Ombudsman 

serves. The commenter indicated that 

this language reflects the language of the 

Act at Section 712(a)(5)(C)(ii) and 

provide additional clarity. 

Response: We have not added this 

recommended provision in the final rule 

but note that other provisions, including 

§ 1327.21(c)(2)(iv), (v), and (vi) in the 

final rule, include examples of 

conflicting financial gains. 

Comment: One commenter 

recommended that individual conflicts 

identified in the proposed rule at 

§ 1327.19(c)(2)(i)–(vi) should have a 

one-year ban and that States may 

impose longer periods of 

disqualification. 

Response: We have not adopted this 

recommendation. However, the rule 

does not prohibit States from imposing 

periods of disqualification for these or 

other conflicts. 

Comment: One commenter 

recommended that the final rule require 

a period of two to five years before an 

individual can be employed as an 

Ombudsman or representative of the 


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Office after direct involvement with 

licensing or certification of a facility or 

provider. 

Response: We have not adopted this 

recommendation. However, the rule 

does not prohibit States from imposing 

periods of disqualification for this or 

other conflicts. 

Comment: One commenter 

recommended that the final rule require 

a cooling off period of two to five years 

for ownership or investment interest in 

an existing or proposed long-term care 

facility or service. 

Response: We have not adopted this 

recommendation. However, the rule 

does not prohibit States from imposing 

periods of disqualification for this or 

other conflicts. 

Comment: Several commenters 

recommended that the conflict 

identified in the proposed rule at 

§ 1327.19(c)(2)(iii) regarding 

employment in a long-term care facility, 

should not be limited to the service 

area, but statewide. One of the 

commenters indicated that their State 

has had several Ombudsmen which had 

been hired directly from long-term care 

provider employment, some of whom 

have exhibited sympathy with providers 

over consumers, and depriving residents 

of an autonomous and independent 

advocate. One commenter 

recommended that the final rule require 

a cooling off period of two to five years 

after employment in a long-term care 

facility. 

Response: We have eliminated the 

reference to employment in a long-term 

care facility ‘‘within the previous year’’ 

in the final rule at § 1327.21(c)(2)(iii), as 

this provision relates to identification of 

an existing conflict of interest. However, 

we have maintained for the 

Ombudsman a cooling off period of 

twelve months for previous employment 

in a long-term care facility in the final 

rule at § 1327.21(d)(3). 

Comment: One commenter 

recommended that we eliminate the 

prohibition on hiring representatives of 

the Office who have been employed in 

a long-term care facility within the 

previous year at § 1327.19(c)(2)(iii), and 

limit the prohibition to the 

Ombudsman, as qualified staff and 

volunteers are difficult to recruit. 

Another commenter recommended that 

we amend the provision in the proposed 

rule at § 1327.19(c)(2)(iii) to reduce the 

restriction to a six-month period after 

being employed at a long-term care 

facility for representatives of the Office 

(as opposed to the Ombudsman). 

Response: We have eliminated the 

reference to employment in a long-term 

care facility ‘‘within the previous year’’ 

in the final rule at § 1327.21(c)(2)(iii), as 

this provision relates to identification of 

an existing conflict of interest. In the 

final rule at § 1327.21(d)(3), we have 

limited the twelve month cooling off 

period to employment or appointment 

to the Ombudsman only. We encourage, 

but don’t require, that States apply a 

cooling off period to the representatives 

of the Office in the final rule at 

§ 1327.21(d)(4)(iv)(A). 

Comment: One commenter 

recommended that we provide 

additional clarity regarding what 

constitutes ‘‘significant value’’ related to 

gifts or gratuities of a facility, 

management, resident or resident 

representative in the proposed rule at 

§ 1327.19(c)(2)(v). 

Response: Some States define 

‘‘significant value’’ or similar terms in 

the context of gifts or gratuities. Rather 

than requiring States to replace existing 

definitions and standards, we have 

chosen to use the final rule (at 

§ 1327.21(c)(2)(v)) to establish the 

general expectation and defer to State 

agencies and Ombudsman programs to 

develop more specific definitions and 

standards as needed. 

Comment: Two commenters indicated 

support for the identification of a 

conflict where the Ombudsman or 

representative of the Office serves as a 

surrogate decision-maker for a resident 

in the service area in the proposed rule 

at § 1327.19(c)(2)(vii). 

Response: We appreciate the 

supportive comments and note that the 

corresponding provision appears in the 

final rule at § 1327.21(c)(2)(vii). 

Comment: Two commenters 

recommended that the conflict 

identified in the proposed rule at 

§ 1327.19(c)(2)(vii), regarding serving as 

a surrogate decision-maker, be more 

specific. One of the commenters 

indicated that this conflict should apply 

only to facilities served by the 

representative of the Office. The 

commenter indicated that a 

representative may hold a power of 

attorney for a family member who lives 

in the same county and that this would 

not create a conflict. The commenter 

indicated concern that this proposal 

would discourage qualified people from 

serving as representatives of the Office. 

Response: The cited provision 

provides an example of an existing 

conflict of interest. The commenter 

indicates an example of a remedy to that 

conflict (i.e. that the representative of 

the Office not serve the facility where a 

conflict exists). To prevent confusion, 

however, we have clarified that the 

conflict exists in a facility ‘‘in which the 

Ombudsman or representative of the 

Office provides services’’ in 

§ 1327.21(c)(2)(vii) of the final rule. 

Comment: One commenter indicated 

that the proposed language at 

§ 1327.19(c)(2)(viii) regarding 

immediate family residing in a facility 

is impractical and would limit the 

ability of the Ombudsman program to 

provide services in smaller communities 

where a large percentage of individuals 

are related. The commenter indicated 

that this provision would make it 

especially difficult to have Native 

Americans serve as representatives of 

the Office and serve residents of Tribal 

facilities. Instead, the commenter 

recommended that States be permitted 

to develop policies on how to mitigate 

the conflict. 

Response: The Act requires the State 

to ensure that no representative of the 

Office or member of his or her 

immediate family is subject to a conflict 

of interest. Section 712(f)(2) of the Act. 

We appreciate that this requirement 

may create challenges to some 

Ombudsman programs and local 

Ombudsman entities, including in 

Tribal areas. Our intent is to help State 

agencies and Ombudsman programs 

carry out this statutory requirement and 

to enhance the credibility of the 

Ombudsman program. We plan to 

provide additional technical assistance 

to State agencies and Ombudsman 

programs as they develop approaches to 

remove and remedy existing conflicts of 

interest. 

Comment: Two commenters 

recommended we delete the provision 

of the proposed rule at 

§ 1327.19(c)(2)(ix) regarding 

participation in activities which 

negatively impact the Ombudsman or 

the perception of the Office. One of the 

commenters indicated that this 

provision is too vague and could lead to 

unwarranted scrutiny by agencies who 

do not like the actions of the 

Ombudsman. Another commenter 

indicated that the provision could be 

used to unjustifiably discredit or 

retaliate against the Ombudsman. 

Response: We have accepted the 

recommended revision. 

Comment: One commenter 

recommended that the final rule include 

as an enumerated conflict, in 

§ 1327.19(c)(2), employment by a longterm care trade association or Medicaid 

managed care organization. 

Response: We agree with the 

commenter that there are circumstances, 

including employment by a long-term 

care provider trade association or by a 

managed care organization providing 

coverage for managed long-term services 

and supports, which are not listed in the 

rule but would constitute an individual 

conflict of interest. We created a list of 

examples, indicating that the list is not 


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exhaustive, in the final rule at 

§ 1327.21(c)(2). 

Comment: One commenter 

recommended that we add the term ‘‘or 

permitted’’ after ‘‘required’’ in the final 

rule at § 1327.19(d)(1). 

Response: This is a helpful 

clarification. We have revised the final 

rule at § 1327.21(d)(1) accordingly. 

Comment: Two commenters 

recommended that the final rule clarify 

that the provisions at § 1327.19(d)(1) 

apply to appointment by the Governor 

or other State official. 

Response: In light of this 

recommendation, we have revised the 

final rule at § 1327.21(d) to apply to 

circumstances of appointment as well as 

employment. 

Comment: One commenter 

recommended that a neutral third party 

with no stake in the Ombudsman 

program, not the State agency, be 

ultimately responsible for identifying, 

removing or remedying a conflict of 

interest. 

Response: The Act provides that the 

State agency has the duty to ensure that 

the Ombudsman and representatives of 

the Office are free of conflicts of interest 

as well as to establish mechanisms to 

identify and remove conflicts. Section 

712(f) of the Act. As the grantee, the 

State agency is held accountable by AoA 

for adherence to the terms and 

conditions of this grant. 

Comment: One commenter 

recommended that the final rule include 

a provision which would allow the State 

agency to de-designate a representative 

of the Office if there is an unremedied 

conflict of interest and the Ombudsman 

chooses not to de-designate the 

individual. 

Response: The Act provides that the 

Ombudsman has the authority to 

designate representatives of the Office. 

We interpret the Act to require that the 

Ombudsman should also be responsible 

to refuse, suspend or remove 

designation of the representatives of the 

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

and § 1327.13(c) of the final rule. 

Comment: Several commenters 

recommended approaches to remedying 

identified individual conflicts. 

Response: We appreciate that 

commenters have provided suggested 

remedies. We plan to provide additional 

technical assistance to States as they 

develop approaches to remove and 

remedy existing conflicts of interest. 

Comment: Three commenters 

recommended deletion of or 

clarification of the term ‘‘officer’’ in the 

proposed language at § 1327.19(d)(1) 

Response: The Act uses the term 

‘‘officer’’ in section 712(f)(2) of the Act. 

However, we have adopted this 

recommendation in the final rule at 

§ 1327.21(d)(1), because we believe that 

the final rule’s provisions covering the 

Ombudsman and representatives of the 

Office cover the relevant individuals 

envisioned by Congress in this 

provision of the Act. 

Comment: One commenter 

recommended that we add ‘‘The State 

agency and the Ombudsman shall 

develop and implement policies’’ at 

§ 1327.19(d)(1). 

Response: For consistency with the 

provisions related to development of 

policies in § 1327.11(e)(4), we have 

provided that either the State agency or 

the Ombudsman may develop policies 

and procedures on conflicts of interest. 

In addition, we have removed proposed 

language at § 1327.21(d)(4) and (8) so 

that all provisions related to required 

content of conflict of interest policies 

and procedures are found at 

§ 1327.11(e)(4). 

Comment: One commenter 

recommended that we clarify that the 

requirements of the proposed rule at 

§ 1327.19(d)(2) apply to the State entity 

or other entity that hires the 

Ombudsman. 

Response: We have added, in the final 

rule at § 1327.21(d)(2), the language ‘‘or 

other employing or appointing entity’’ 

in response to this recommendation. 

Comment: One commenter 

recommended that we add language to 

the proposed rule at § 1327.19(d)(2)(i) as 

a reminder that the Ombudsman, not 

the State agency or local entity, is the 

person with authority to designate and 

de-designate individuals as 

representatives of the Office. 

Response: We believe the authority of 

the Ombudsman to designate 

representatives of the Office is 

adequately set forth in other provisions 

of the final rule. This authority is also 

re-iterated at § 1327.11(e)(4)(iii) of the 

final rule regarding policies on conflicts 

of interest. 

Comment: One commenter 

recommended that we add a 

clarification that the proposed provision 

at § 1327.19(d)(2)(i) does not pre-empt 

stronger State laws. 

Response: Stronger State laws or 

regulations are not prohibited by this 

Federal regulation. 

Comment: One commenter indicated 

that the proposed rule at 

§ 1327.19(d)(2)(i) (prohibiting hiring of 

an individual with an immediate family 

member with a conflict of interest) 

ignores the possibility of an extension of 

the traditional definition of ‘‘family.’’ 

Response: We believe that the 

definition of ‘‘immediate family 

member’’ in the final rule at § 1327.1 

provides flexibility which covers nontraditional families and households. We 

also note, that, under ACL’s April 21, 

2014 Guidance on Federal Recognition 

of Same-Sex Marriage (available at 

http://www.acl.gov/Funding_

Opportunities/Grantee_Info/

Index.aspx), an immediate family 

member who is a member of the 

household or a relative includes a 

spouse in a same-sex marriage. 

Comment: One commenter described 

the proposed prohibitions on 

employment of individuals (in proposed 

§ 1327.19(d)(5)) as overly broad and 

precluding of significant numbers of 

individuals with expertise and 

experience in the fields of long-term 

care and advocacy. Another commenter 

indicated that when a conflict of interest 

exists in one facility, it should not 

prohibit individual representatives of 

the Office from serving in other 

facilities. 

Response: In the final rule at 

§ 1327.21(d)(4), we have modified the 

provision to prohibit the employment or 

appointment of an Ombudsman or 

representative of the Office under some 

circumstances. For example, we have 

deleted the cooling off period for 

individuals with direct involvement in 

licensing or certification and narrowed 

the scope of conflicting ownership or 

investment interest to long-term care 

facilities (rather than services). The rule 

does not prohibit States from imposing 

periods of disqualification or other more 

stringent requirements related to these 

or other conflicts. 

Comment: One commenter 

recommended the final rule should 

require that, should an individual be 

employed as Ombudsman or 

representative of the Office with a 

conflict of interest as described in 

proposed § 1327.19(d)(5), the State 

agency should provide a plan to AoA for 

remedying or removing the conflict, and 

AoA should determine whether the 

conflict has been adequately removed or 

remedied. 

Response: The final rule requires the 

Ombudsman to report on any identified 

conflicts and steps taken to remedy the 

conflicts through NORS at 

§ 1327.21(b)(1). 

Comment: One commenter indicated 

that proposed § 1327.19(d)(5) is 

unnecessary in light of subsection (2) 

and might incorrectly imply that some 

of the provisions in subsection (2) do 

not apply to the Ombudsman. 

Response: The provision in the final 

rule at § 1327.21(d)(2) broadly describes 

the process of employment or 

appointment related to conflict of 

interest and the Ombudsman program at 

any level. In contrast, the corresponding 

provision in the final rule at 


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§ 1327.21(d)(4) identifies specific 

prohibited conflicts regarding 

representatives of the Office. We note 

that the provision in the final rule at 

§ 1327.21(d)(3) identifies specific 

prohibited conflicts regarding the 

Ombudsman. 

Comment: One commenter 

recommended that we add a period of 

two years to five years to the proposed 

language at § 1327.19(d)(5)(ii) regarding 

ownership or investment interest in a 

long-term care facility or service. 

Response: In the final rule, at 

§ 1327.21(d)(4)(ii), we have modified the 

provision to prohibit the employment or 

appointment of an Ombudsman or 

representative of the Office in 

circumstances which more closely 

reflect the provisions of the Act, 

including by taking out references to the 

individual having had specified 

conflicts within the previous year. We 

note that the rule does not prohibit 

States from imposing periods of 

disqualification for these or other 

conflicts. 

Comment: Two commenters 

expressed support for the proposed rule 

at § 1327.19(d)(5)(iii) regarding the oneyear period before employing 

individuals who have been employed 

by, or participated in the management 

of, a long-term care facility. 

Response: We appreciate the 

supportive comments. The relevant 

provision in the final rule provides for 

a twelve month period and is limited to 

the Ombudsman. § 1327.21(d)(3)(iii). 

The final rule does not require a twelve 

month cooling off period for 

representatives of the Office at 

§ 1327.21(d)(4)(iv) of the final rule. We 

note that the rule does not prohibit 

States from imposing periods of 

disqualification for these or other 

conflicts. 

Comment: Five commenters 

expressed concerns regarding the 

proposed rule at § 1327.19(d)(5)(iii) 

regarding the one-year period before 

employing individuals who have been 

employed by, or participated in the 

management of, a long-term care 

facility. Several indicated that the 

proposed provision unnecessarily limits 

the ability of a State or Ombudsman 

program to recruit representatives with 

expertise. One of these commenters 

recommended the ability to permit a 

remedy. Two commenters 

recommended that States be provided 

with latitude to determine the best 

candidates and self-monitor for conflictfree assurance. Another recommended 

limiting the prohibition to the service 

area to avoid unduly limiting the pool 

of candidates. 

Response: The relevant provision in 

the final rule provides for a twelvemonth period and is limited to the 

Ombudsman. § 1327.21(d)(3)(iii). The 

final rule does not require a twelvemonth cooling off period for 

representatives of the Office at 

§ 1327.21(d)(4)(iv) of the final rule. We 

note that the rule does not prohibit 

States from imposing periods of 

disqualification for these or other 

conflicts. 

AoA realizes that this required 

twelve-month cooling off period serves 

as a proxy for avoiding conflicts of 

interest and does not guarantee the 

outcome of an Ombudsman free of 

potential conflicts. We also realize that 

this rule could—and likely would— 

disqualify some excellent and otherwise 

qualified candidates from the position 

of Ombudsman. However, we are 

convinced that the final rule will bolster 

the credibility of the Ombudsman 

program, particularly among residents 

and their representatives, when the 

Ombudsman is not selected from among 

individuals who are employed in longterm care facilities at or near the time of 

their selection. The Ombudsman is the 

head of a program with responsibility to 

identify, investigate, and resolve 

complaints of residents who live in 

these settings and to represent the 

interests of the residents. Residents 

must be able to trust that the 

Ombudsman has their interests as his or 

her primary focus, without a sense of 

loyalty to a previous employer or 

coworkers. 

Comment: Four commenters 

recommended that the final rule 

prohibit employment of individuals 

who have been employed by, or 

participated in the management of, a 

long-term care facility for a period 

longer than one year. Recommendations 

ranged from two years to five years 

before employing individuals as the 

Ombudsman or representative of the 

Office who have been employed by, or 

participated in the management of, a 

long-term care facility. 

Response: We believe that a twelvemonth cooling off period should be the 

minimum requirement when an 

Ombudsman is employed or appointed 

who has been previously employed by 

a long-term care facility. We note that 

the rule does not prohibit States from 

imposing periods of disqualification for 

these or other conflicts. 

Comment: Two commenters 

recommended the proposed rule at 

§ 1327.19(d)(7) be amended to add a 

requirement that AoA ensure that 

policies and procedures are in place. 

Two commenters indicated that, unless 

AoA monitors and provides Federal 

oversight, compliance with the conflict 

of interest provisions cannot be assured. 

Another commenter recommended that 

the proposed rule at § 1327.19(d)(7) be 

amended to add a requirement that the 

Ombudsman be required to comply with 

this provision, as opposed to the State 

agency ensuring that the Ombudsman 

complies. 

Response: The Act designed the 

Ombudsman program to be operated 

through grants to States. Therefore, AoA 

requires that State agencies (the grantee) 

ensure compliance by the Ombudsman 

with the requirements set forth in the 

final rule. We note that the provisions 

regarding the development of conflict of 

interest policies and procedures are in 

the final rule at § 1327.11(e)(4). 

Comment: One commenter requested 

AoA to adopt a regulation prohibiting 

the State agency from imposing 

restrictions on the actions of the 

attorney of the Ombudsman program 

under the guise of conflicts of interest. 

Response: The provisions related to 

legal counsel for the Ombudsman 

program are provided in a new 

provision at § 1327.15(j). 

Comment: One commenter 

recommended that the final rule include 

a provision that identifies conflicts 

relating to individuals involved in the 

designation of the Ombudsman as 

required by section 712(f)(1) of the Act. 

Response: In the final rule at 

§ 1327.11(e)(4)(i), we have added 

language requiring that policies and 

procedures ensure that no individual, or 

member of the immediate family of an 

individual, involved in the employment 

or appointment of the Ombudsman is 

subject to a conflict of interest. 

I. Additional Considerations 

Legal Counsel 

Comment: In the NPRM, we indicated 

that we believe the Act is adequately 

specific regarding what constitutes 

adequate legal counsel for the 

Ombudsman program but invited 

comments on the question of whether 

regulations are needed by States in 

order to more fully implement the Act’s 

requirements. Many commenters offered 

comments in response. All of them 

indicated the need for regulations to 

clarify what constitutes adequate legal 

counsel. No commenters indicated that 

a rule was unnecessary. Among the 

reasons cited for the need were: 

• It is rare that Ombudsman programs 

have adequate access to legal counsel. 

• Current policies and practices have 

not fulfilled this requirement of the Act. 

• The Act does not provide guidance 

to States regarding what functions 

should be performed, how counsel 


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should be financed, and identifying 

conflicts for purposes of legal counsel. 

• Conflicted legal counsel has 

contributed to misguided policies. 

• Conflicts exist when the legal 

counsel for the Office also represents 

the interest of State government 

programs such as Medicaid or public 

guardians. 

• It is critical for Ombudsman 

programs to have conflict-free legal 

counsel in order to ensure that resident 

rights are protected. 

• The authority and capacity of the 

Ombudsman program to provide 

individual representation for residents 

in administrative and legal proceedings 

is virtually non-existent in some States. 

• The Act requires that the 

Ombudsman program pursue legal 

remedies on behalf of residents. 

Response: In response to these 

comments, we have added a provision 

regarding legal counsel in the final rule 

at § 1327.15(j). 

Comment: Two commenters 

recommended that the final rule require 

that legal counsel not be part of the 

State agency or limited to an Attorney 

General’s office. One of these 

commenters indicated that in-house 

counsel in State agencies represents the 

interests of the State rather than of the 

residents or the Ombudsman program. 

Response: We have not prohibited 

legal counsel from being part of the 

State agency or limited to an Attorney 

General’s office. There are some legal 

issues for which attorneys in these 

entities may be quite appropriate and 

the issue at hand does not present a 

conflict of interest. However, where an 

in-house counsel in a State agency or 

the Attorney General’s office has a 

conflicting interest from the interest of 

the Ombudsman program or the 

residents it serves, the final rule 

requires that the State agency has a duty 

to ensure that the Ombudsman program 

has access to conflict-free legal counsel. 

Comment: One commenter 

recommended that the Ombudsman 

have access to independent legal 

counsel of the Ombudsman’s choosing. 

The commenter described how the legal 

counsel in their State has been 

extremely important to the success of 

the Ombudsman program in providing 

credible, effective services at both the 

systemic and individual levels. 

Response: The Act requires that the 

State agency shall ensure the provision 

of adequate and conflict-free legal 

counsel. While some States will choose 

to provide the opportunity for the 

Ombudsman to choose the legal counsel 

for the Ombudsman program, other 

States may choose to ensure the 

provision of legal counsel through a 

more collaborative process. We do not 

read the Act to require that legal counsel 

be selected solely by the Ombudsman 

but neither does it prohibit a State from 

providing that opportunity to the 

Ombudsman. 

Other Comments 

Comment: One commenter 

recommended that AoA, through NORS, 

require collection and reporting of 

demographic data including English as 

a second language (ESL); lesbian, gay, 

bi-sexual, transgender (LGBT); 

intellectual and developmental 

disabilities (I/DD), chronic mental 

illness and persons of color. The 

commenter indicated that collection of 

such data would better inform the work 

of the Ombudsman program, provide for 

new and creative approaches, and 

demonstrate the need for increased 

funding. Another commenter 

recommended that NORS require 

collection and reporting of the number 

of people residing in facilities in 

addition to the number of beds as is 

currently required. 

Response: AoA does not require 

reporting of any demographic 

information regarding individual 

residents through NORS. Currently AoA 

is reviewing the data elements it 

requires to be reported in NORS, and we 

will include these comments in that 

review process. Please note that any 

changes proposed to NORS by AoA will 

be published in the Federal Register 

with opportunity for public comment 

prior to their final adoption. 

Comment: One commenter 

recommended that, throughout the rule, 

we acknowledge that the term ‘‘family’’ 

includes domestic partners and 

significant others who are considered as 

members of families by residents. 

Response: In the definitions of 

‘‘immediate family member’’ and 

‘‘resident representative’’ in the final 

rule at § 1327.1, we have adopted 

language intended to be inclusive of 

domestic partners and significant 

others. 

Comment: One commenter 

recommended the use of ‘‘ombuds’’ 

instead of ‘‘ombudsman,’’ indicating 

that at least one State has done so 

through its State law. 

Response: AoA utilizes the same term 

as in the Act (i.e. ‘‘Ombudsman’’) in this 

rule, but States are not prohibited from 

using the term ‘‘ombuds’’ to describe the 

program. 

Comment: Two commenters 

recommended clarification of whether 

the Ombudsman program should serve 

residents under age sixty in the final 

rule. 

Response: AoA has long held that 

States are not prohibited from using 

OAA funds to support Ombudsman 

services to younger residents of longterm care facilities, even though the Act 

is designed to primarily benefit 

individuals over age 60. AoA Program 

Instruction 81–8. 

There are no provisions in the final 

rule which limit Ombudsman program 

services to individuals based on age. 

Although the proposed rule contained 

one reference to ‘‘older individuals’’ (at 

§ 1327.15(c)(3)(i)(A)), we have omitted 

the word ‘‘older’’ in the corresponding 

provision in the final rule at 

§ 1327.15(k)(3). 

Comment: One commenter 

recommended clarification of the types 

of facilities in which Ombudsman 

programs services are delivered in the 

final rule. Another commenter indicated 

that the local Ombudsman entity in 

which they serve does not visit board 

and care homes, asking whether States 

would be required in the final rule to 

visit board and care homes. The 

commenter recommended that the 

Ombudsman should determine the type 

of facilities to be visited within the 

respective State. 

Response: The term ‘‘long-term care 

facility’’—i.e. the settings in which the 

Ombudsman program has jurisdiction to 

serve residents—is defined in section 

102(a)(35) of the Act: 

The term ‘‘long-term care facility’’ 

means— 

(A) Any skilled nursing facility, as 

defined in section 1819(a) of the Social 

Security Act (42 U.S.C. 1395i–3(a)); 

(B) any nursing facility, as defined in 

section 1919(a) of the Social Security 

Act (42 U.S.C. 1396r(a)); 

(C) for purposes of sections 307(a)(9) 

and 712, a board and care facility; and 

(D) any other adult care home, 

including an assisted living facility, 

similar to a facility or institution 

described in subparagraphs (A) through 

(C). 

Comment: One commenter 

recommended guidance regarding how 

Ombudsman programs could access 

nursing home ownership information as 

provided by the Affordable Care Act. 

Response: This rule implements the 

provisions of the Act, not the Affordable 

Care Act. We have noted the need for 

technical assistance regarding the issue 

of Ombudsman programs accessing 

nursing home ownership information. 

III. Required Regulatory Analyses 

Under Executive Orders 13563 and 

12866 

Executive Orders 13563 and 12866 

direct agencies to assess all costs and 

benefits of available regulatory 


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1OMB No. 0985–0005. 

alternatives and, if regulation is 

necessary, to select regulatory 

approaches that maximize net benefits 

(including potential economic, 

environmental, public health and safety 

effects, distributive impacts, and 

equity). Executive Order 13563 

emphasizes the importance of 

quantifying both costs and benefits, of 

reducing costs, of harmonizing rules, 

and of promoting flexibility. This rule 

has been designated a ‘‘significant 

regulatory action’’ under Executive 

Order 12866; as such, this rule has been 

reviewed by the Office of Management 

and Budget. 

Regulatory Flexibility Act 

Under the Regulatory Flexibility Act, 

as amended by the Small Business 

Regulatory Enforcement Fairness Act 

(SBREFA) (5 U.S.C. 601 et seq.), 

agencies must consider the impact of 

regulations on small entities and 

analyze regulatory options that would 

minimize a rule’s impacts on these 

entities. Alternatively, the agency head 

may certify that the rule will not have 

a significant economic impact on a 

substantial number of small entities. 

AoA does not anticipate that this rule 

will have a significant economic impact 

on a substantial number of small 

businesses and other small entities. 

IV. Other Administrative Requirements 

A. Paperwork Reduction Act of 1995 

Under the Paperwork Reduction Act, 

before an agency submits a proposed 

collection of information to the Office of 

Management and Budget (OMB) for 

approval, it must publish a document in 

the Federal Register providing notice of 

the proposed collection of information 

and a 60-day comment period, and must 

otherwise consult with members of the 

public and affected agencies concerning 

the proposed collection. In accordance 

with Section 3507(d) of the Paperwork 

Reduction Act of 1995 (44 U.S.C. 3501 

et seq.), AoA determined there were 

limited new information collection 

requirements in the proposed rule. 

Therefore, AoA sought comments on 

these information collections at the time 

of the proposed rule. 

Currently, States are required to 

annually report on program activities, 

characteristics, and funding; complaint 

resolution; and recommendations for 

long-term care systems change of the 

Office of the State Long-Term Care 

Ombudsman through the National 

Ombudsman Reporting System 

(NORS).1 The final regulations would 

add one additional question to NORS: 

the identification of organizational 

conflicts of interest and a description of 

steps taken to remove or remedy any 

identified conflict(s). Prior to the 

effective date of the final rule, AoA 

intends to request OMB approval for an 

amendment to current NORS 

instructions. It also plans to alter 

existing reporting software to capture 

data consistent with this requirement. 

Comment: One commenter 

recommended that AoA consider the 

cost to States if this reporting requires 

updating of NORS. 

Response: While not all States use the 

same software to collect their data, all 

States are required to report into NORS 

as a condition of receiving OAA funds. 

OMB Control Number: 0985–0005. In 

order to make changes to NORS, the 

AoA is required to publish, and invite 

public comment on, the proposal as 

well as provide estimates of any cost 

impact, as required by the Paperwork 

Reduction Act. We will invite 

additional public comment on any 

proposed changes to NORS as a result 

of the implementation of this rule. AoA 

estimates that the proposed changes 

would expand the reporting 

requirement from 8569 hours to 8621 

hours. 

Title: State Annual Long-Term Care 

Ombudsman Report. 

OMB Control Number: 0985–0005. 

Type of Request: Modification of 

Information Collection Request. 

Respondents: 50 States, the District of 

Columbia and Puerto Rico. 

Frequency: Annually. 

Estimated Annual Burden on 

Respondents: 52 hours (52 respondents 

× 1 hour per year). 

In addition, States are already 

required by section 712 of the Act to 

develop policies and procedures for the 

operation of the Long-Term Care 

Ombudsman Program. The final 

regulations are intended to clarify this 

existing requirement without creating 

any additional burden on States. 

B. Executive Order 13132 

Executive Order 13132 prohibits an 

agency from publishing any rule that 

has federalism implications if the rule 

either, imposes substantial direct 

compliance costs on State and local 

governments and is not required by 

statute, or the rule preempts State law, 

unless the agency meets the 

consultation and funding requirements 

of section 6 of the Executive Order. This 

rule does not have federalism impact as 

defined in the Executive Order. 

C. Unfunded Mandates Reform Act of 

1995 

Section 202 of the Unfunded 

Mandates Reform Act of 1995 requires 

that a covered agency prepare a 

budgetary impact statement before 

promulgating a rule that includes any 

Federal mandate that may result in the 

expenditure by State, local, and Tribal 

governments, in the aggregate, or by the 

private sector, of $100,000,000 or more 

(adjusted annually for inflation) in any 

one year. If a covered agency must 

prepare a budgetary impact statement, 

section 205 further requires that it select 

the most cost-effective and least 

burdensome alternative that achieves 

the objectives of the rule and is 

consistent with the statutory 

requirements. In addition, section 203 

requires a plan for informing and 

advising any small governments that 

may be significantly or uniquely 

impacted by the rule. 

We have determined that this rule 

will not result in the expenditure by 

State, local, and Tribal governments, in 

the aggregate, or by the private sector, of 

$100,000,000 or more (adjusted 

annually for inflation) in any one year. 

Accordingly, we have not prepared a 

budgetary impact statement, specifically 

addressed the regulatory alternatives 

considered, or prepared a plan for 

informing and advising any significantly 

or uniquely impacted small 

governments. 

D. Assessment of Federal Regulations 

and Policies on Families 

Section 654 of the Treasury and 

General Government Appropriations 

Act of 1999 requires Federal agencies to 

determine whether a proposed policy or 

regulation may affect family well-being. 

If the agency’s determination is 

affirmative, then the agency must 

prepare an impact assessment 

addressing seven criteria specified in 

the law. This rule protects the 

confidentiality of information contained 

in the records of State child support 

enforcement agencies. This rule will not 

have an adverse impact on family wellbeing as defined in the legislation. 

E. Plain Language in Government 

Writing 

Pursuant to Executive Order 13563 of 

January 18, 2011, and Executive Order 

12866 of September 30, 1993, Executive 

Departments and Agencies are directed 

to use plain language in all proposed 

and final rules. AoA believes it has used 

plain language in drafting the final rule, 

and has incorporated a number of 

revisions in the rule in order to respond 

to comments requesting further clarity. 


tkelley on DSK3SPTVN1PROD with RULES2
7758 Federal Register / Vol. 80, No. 28 / Wednesday, February 11, 2015 / Rules and Regulations 

List of Subjects 

45 CFR Part 1321 

Administrative practice and 

procedure, Aged, Grant programs— 

Indians, Grant programs—social 

programs, Indians, Legal services, 

Nutrition, Reporting and recordkeeping 

requirements. 

45 CFR Part 1327 

Administrative practice and 

procedure, Aged, Long-term care. 

Dated: September 15, 2014. 

Kathy Greenlee, 

Administrator, Administration for 

Community Living. Assistant Secretary for 

Aging, Administration on Aging. 

Approved: October 9, 2014. 

Sylvia M. Burwell, 

Secretary. 

For the reasons stated in the 

preamble, the Administration on Aging, 

Administration for Community Living, 

U.S. Department of Health and Human 

Services, amends 45 CFR subchapter C 

as follows: 

PART 1321—GRANTS TO STATE AND 

COMMUNITY PROGRAMS ON AGING 

■ 1. The authority citation for part 1321 

continues to read as follows: 

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

of the Older Americans Act, as amended. 

■ 2. Section 1321.11 is amended by 

revising paragraph (b) to read as follows: 

§ 1321.11 State agency policies. 

* * * * * 

(b) The policies developed by the 

State agency shall address the manner 

in which the State agency will monitor 

the performance of all programs and 

activities initiated under this part for 

quality and effectiveness. The State 

Long-Term Care Ombudsman shall be 

responsible for monitoring the files, 

records and other information 

maintained by the Ombudsman 

program. 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 § 1327.11(e)(3) of this 

chapter. 

* * * * * 

■ 3. Part 1327 is added to read as 

follows: 

PART 1327—ALLOTMENTS FOR 

VULNERABLE ELDER RIGHTS 

PROTECTION ACTIVITIES 

Subpart A—State Long-Term Care 

Ombudsman Program 

Sec. 

1327.1 Definitions. 

1327.11 Establishment of the Office of the 

State Long-Term Care Ombudsman. 

1327.13 Functions and responsibilities of 

the State Long-Term Care Ombudsman. 

1327.15 State agency responsibilities 

related to the Ombudsman program. 

1327.17 Responsibilities of agencies hosting 

local Ombudsman entities. 

1327.19 Duties of the representatives of the 

Office. 

1327.21 Conflicts of interest. 

Subpart B—[Reserved] 

Authority: 42 U.S.C. 3001 et seq. 

Subpart A—State Long-Term Care 

Ombudsman Program 

§ 1327.1 Definitions. 

The following definitions apply to 

this part: 

Immediate family, pertaining to 

conflicts of interest as used in section 

712 of the Act, means a member of the 

household or a relative with whom 

there is a close personal or significant 

financial relationship. 

Office of the State Long-Term Care 

Ombudsman, as used in sections 711 

and 712 of the Act, means the 

organizational unit in a State or territory 

which is headed by a 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, 

means the employees or volunteers 

designated by the Ombudsman to fulfill 

the duties set forth in § 1327.19(a), 

whether personnel supervision is 

provided by the Ombudsman or his or 

her designees or by an agency hosting a 

local Ombudsman entity designated by 

the Ombudsman pursuant to section 

712(a)(5) of the Act. 

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 medical, social 

or other personal information of the 

resident; manage financial matters; or 

receive notifications; 

(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 medical, 

social or other personal information of 

the resident; manage financial matters; 

or receive notifications; 

(3) Legal representative, as used in 

section 712 of the Act; or 

(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, 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 §§ 1327.13 and 1327.19. 

State Long-Term Care Ombudsman 

program, Ombudsman program, or 

program, as used in sections 711 and 

712 of the Act, 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 

§ 1327.13, or the Ombudsman or a 

representative of the Office from 

performing any of the duties set forth in 

§ 1327.19. 

§ 1327.11 Establishment of the Office of 

the State Long-Term Care Ombudsman. 

(a) The Office of the State Long-Term 

Care Ombudsman shall be an entity 

which shall be headed by the State 

Long-Term Care Ombudsman, who shall 

carry out all of the functions and 

responsibilities set forth in § 1327.13 

and shall carry out, directly and/or 

through local Ombudsman entities, the 

duties set forth in § 1327.19. 

(b) The State agency shall establish 

the Office and, thereby carry out the 

Long-Term Care Ombudsman program 

in any of the following ways: 

(1) The Office is a distinct entity, 

separately identifiable, and located 

within or connected to the State agency; 

or 

(2) The State agency enters into a 

contract or other arrangement with any 

public agency or nonprofit organization 

which shall establish a separately 

identifiable, distinct entity as the Office. 

(c) The State agency 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 


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in §§ 1327.13 and 1327.19 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 

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 persons or 

individuals with disabilities; 

(2) Consumer-oriented public policy 

advocacy; 

(3) Leadership and program 

management skills; and 

(4) Negotiation and problem 

resolution skills. 

(e) Policies and procedures. Where 

the Ombudsman has the legal authority 

to do so, he or she 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. 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 and with representatives of the 

Office. The policies and procedures 

must address the matters within this 

subsection. 

(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 which prohibit the 

Ombudsman from performing the 

functions and responsibilities of the 

Ombudsman, as set forth in § 1327.13, 

or from adhering to the requirements of 

section 712 of the Act. 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. 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 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 assure prompt 

response to complaints by the Office 

and/or local Ombudsman entities which 

prioritize abuse, neglect, exploitation 

and time-sensitive complaints and 

which consider the severity of the risk 

to the resident, the imminence of the 

threat of 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. 

(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 

§§ 1327.13 and 1327.19; 

(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 §§ 1327.13 and 1327.19; 

(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; and 

(C) 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, 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 

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 


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7760 Federal Register / Vol. 80, No. 28 / Wednesday, February 11, 2015 / Rules and Regulations 

by the Ombudsman, as required by 

§ 1327.13(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 § 1327.19(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) Exclusion of the Ombudsman and 

representatives of the Office from abuse 

reporting requirements, including when 

such reporting would disclose 

identifying information of a 

complainant or resident without 

appropriate consent or court order, 

except as otherwise provided in 

§ 1327.19(b)(5) through (8); and 

(v) 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. 

(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 § 1327.21, 

including: 

(i) Ensuring that no individual, or 

member of the immediate family of an 

individual, involved in the employment 

or appointment of the Ombudsman is 

subject to 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 representatives of the 

Office with 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 

with a conflict of interest, which cannot 

be adequately 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. 

(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 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 a local 

Ombudsman entity or representative of 

the Office in situations in which an 

identified conflict of interest cannot be 

adequately removed or remedied as set 

forth in § 1327.21. 

(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, without 

necessarily representing the 

determinations or positions of the State 

agency or other agency in which the 

Office is organizationally located, 

regarding: 

(i) Disclosure of information 

maintained by the Ombudsman program 

within the limitations set forth in 

section 712(d) of the Act; 

(ii) Recommendations to changes in 

Federal, State and local laws, 

regulations, policies and actions 

pertaining to the health, safety, welfare, 

and rights of residents; and 

(iii) Provision of 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. 

§ 1327.13 Functions and responsibilities of 

the State Long-Term Care Ombudsman. 

The Ombudsman, as head of the 

Office, shall have responsibility for the 

leadership and management of the 

Office in coordination with the State 

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— 


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Federal Register / Vol. 80, No. 28 / Wednesday, February 11, 2015 / Rules and Regulations 7761 

(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; and 

(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; and 

(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 of regulations and policies to 

government agencies 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; 

and 

(b) The Ombudsman shall be the head 

of a unified statewide program and 

shall: 

(1) Establish or recommend policies, 

procedures and standards for 

administration of the Ombudsman 

program pursuant to § 1327.11(e); 

(2) Require representatives of the 

Office to fulfill the duties set forth in 

§ 1327.19 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 

and the policies and procedures set 

forth in § 1327.11(e)(6). 

(1) Where 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) Training requirements. The 

Ombudsman shall establish procedures 

for training for certification and 

continuing education of the 

representatives of the Office, based on 

model standards established by the 

Director of the Office of Long-Term Care 

Ombudsman Programs as described in 

section 201(d) of the Act, in 

consultation with 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; and 

(iii) 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 § 1327.19 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 

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 


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maintaining such information in 

accordance with Ombudsman program 

requirements. 

(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 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; and 

(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; 

and 

(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 paragraph (e) of this section. 

(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. The Ombudsman 

shall independently develop and 

provide final approval of an annual 

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

the Act and as otherwise required by the 

Assistant Secretary. 

(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, 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) Through adoption of memoranda 

of understanding and 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, but not limited to: 

(1) Area agency on aging programs; 

(2) Aging and disability resource 

centers; 

(3) Adult protective services 

programs; 

(4) 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.); 

(5) Facility and long-term care 

provider licensure and certification 

programs; 

(6) The State Medicaid fraud control 

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

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

(7) Victim assistance programs; 

(8) State and local law enforcement 

agencies; 

(9) Courts of competent jurisdiction; 

and 

(10) The State legal assistance 

developer and legal assistance 

programs, including those provided 

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

(i) The Ombudsman shall carry out 

such other activities as the Assistant 

Secretary determines to be appropriate. 

§ 1327.15 State agency responsibilities 

related to the Ombudsman program. 

(a) 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) The State agency shall ensure, 

through the development of policies, 

procedures, and other means, consistent 

with § 1327.11(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) 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) 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) The State agency shall provide 

monitoring, as required by § 1321.11(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 §§ 1327.13 and 1327.19. The 

State agency may make reasonable 

requests of reports, including aggregated 

data regarding Ombudsman program 

activities, to meet the requirements of 

this provision. 

(f) 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 

§§ 1327.11(e)(3) and 1327.13(e). 

(g) 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 


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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, 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) 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 

§ 1327.13(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 

§§ 1327.13 and 1327.19; 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, has 

competencies relevant to the legal needs 

of the program and of residents, and is 

without conflict of interest (as defined 

by the State ethical standards governing 

the legal profession), in order to— 

(A) Provide consultation and 

representation as needed in order for the 

Ombudsman program to protect the 

health, safety, welfare, and rights of 

residents; and 

(B) 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, but not limited to, 

complaint resolution and systems 

advocacy; 

(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 services 

developer, legal services providers, and 

victim assistance services to promote 

the availability of legal counsel to 

residents; and 

(iii) 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 the official duties. 

(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). However, 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 longterm 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 legal counsel are 

subject to attorney-client privilege. 

(k) 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 and 

§ 1327.13(g) and as otherwise required 

by the Assistant Secretary. 

(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; and 

(4) Establish procedures for the 

training of the representatives of the 

Office, as set forth in § 1327.13(c)(2). 

(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 

§ 1327.13(h). 

§ 1327.17 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, 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. 

§ 1327.19 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 


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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; and 

(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. 

(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 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 personally 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 

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; 

(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 and the procedures set forth in 

§ 1327.11(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 


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accordance with the procedures of the 

Office; 

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

paragraph (3) of this section, if a 

resident is unable to communicate his 

or her informed consent, or perspective 

on the extent to which the matter has 

been satisfactorily resolved, the 

Ombudsman or representative of the 

Office may rely on the communication 

of informed consent and/or perspective 

regarding the resolution of the 

complaint of a resident representative so 

long as 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 § 1327.11(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 § 1327.11(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 has no resident 

representative, or 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 

Ombudsman obtains the approval of the 

Ombudsman. 

(8) The procedures for disclosure, as 

required by § 1327.11(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 

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 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. 

§ 1327.21 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, 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 


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7766 Federal Register / Vol. 80, No. 28 / Wednesday, February 11, 2015 / Rules and Regulations 

conflicting activities, in an organization 

that: 

(1) Is responsible for licensing, 

surveying, or certifying long-term care 

facilities; 

(2) Is an association (or an affiliate of 

such an association) of long-term care 

facilities, or of any other residential 

facilities for older individuals or 

individuals with disabilities; 

(3) Has 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 

coordination or case management for 

residents of long-term care facilities; 

(7) Sets reimbursement rates for longterm care facilities; 

(8) Provides adult protective services; 

(9) Is responsible for eligibility 

determinations regarding Medicaid or 

other public benefits for residents of 

long-term care facilities; 

(10) Conducts preadmission screening 

for long-term care facility placements; 

(11) Makes decisions regarding 

admission or discharge of individuals to 

or from long-term care facilities; or 

(12) Provides guardianship, 

conservatorship or other fiduciary or 

surrogate decision-making services for 

residents of long-term care facilities. 

(b) Removing or remedying 

organizational conflicts. The State 

agency 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 

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 the designating, 

appointing, otherwise selecting or 

terminating the Ombudsman is subject 

to a conflict of interest; and 

(v) Assure that the Ombudsman has 

disclosed such conflicts and described 

steps taken to remove or remedy 

conflicts within the annual report 

submitted to the Assistant Secretary 

through the National Ombudsman 

Reporting System. 

(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. 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, 

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. The State agency 

shall not enter into such contract or 

other arrangement with an agency or 

organization which is responsible for 

licensing or certifying long-term care 

facilities in the state or is an association 

(or affiliate of such an association) of 

long-term care facilities. 

(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, 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; 

(ii) Ownership, operational, or 

investment interest (represented by 

equity, debt, or other financial 

relationship) in an existing or proposed 

long-term care facility; 


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Federal Register / Vol. 80, No. 28 / Wednesday, February 11, 2015 / Rules and Regulations 7767 

(iii) Employment of an individual by, 

or participation in the management of, 

a long-term care facility in the service 

area or by the owner or operator of any 

long-term care facility in the service 

area; 

(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; and 

(viii) Serving residents of a facility in 

which an immediate family member 

resides. 

(d) Removing or remedying individual 

conflicts. (1) The State agency or 

Ombudsman shall develop and 

implement policies and procedures, 

pursuant to § 1327.11(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 § 1327.21(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 

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 

participating in the management of a 

long-term care facility within the 

previous twelve months. 

(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 participating 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—[Reserved] 

[FR Doc. 2015–01914 Filed 2–10–15; 8:45 am] 

BILLING CODE 4150–04–P 


tkelley on DSK3SPTVN1PROD with RULES2