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Real People Real Problems: An Evaluation of the Long-Term Care Ombudsman Programs of the Older Americans Act
Legal Counsel and Conflict of Interest
The committee acknowledges the importance of the availability of adequate independent counsel for every LTC ombudsman program to ensure that appropriate remedies are pursued by ombudsmen on behalf of residents. Unless such counsel is provided free of conflicts of interest, many residents served by the ombudsman programs receive inferior service. The ombudsman program and its designated representatives cannot be held to high standards of program performance unless they can bring adequate legal counsel to bear on such cases, and adequate counsel must be free from conflicts of interest. Accordingly:
4.4. The committee recommends that each state unit on aging, in exercising its responsibility to ensure that legal counsel is available without conflict of interest to the statewide long-term care ombudsman program, adopt the following three principles to guide the selection of counsel:
For purposes of representing the ombudsman in (a) employment, contract, or other administrative functions and (b) litigation brought against the ombudsman in connection with the performance of his or her official duties, representation by the state’s office of the attorney general is appropriate and generally free of conflict of interest.
If advice and counsel related to the rights of long-term care facility residents is provided by a government-employed lawyer, then the lawyer and agency employing the lawyer, including any “umbrella” agency, should not advise or represent other agencies or interests that could conceivably have a conflict of interest with the resident’s interests or ombudsman’s responsibilities.
If advice and counsel related to the rights of long-term care facility residents is provided by a lawyer not employed by government, then the ombudsman should receive assurances of conformance to state rules of professional conduct for the legal profession.
The OAA has always contained prohibitions of conflicts of interest pertinent to the LTC ombudsman programs. Current provisions cover such areas as the location of the Office of the State LTC Ombudsman, the designation of individuals and entities as ombudsmen or host agencies, confidentiality policies and procedures, employment policies, and legal counsel. Additionally, the OAA prohibits any willful interference with representatives of the ombudsman office in the performance of their official