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Title VII—Allotments for Vulnerable Elder Rights Protection Activities: Chapter 2

CHAPTER 2—OMBUDSMAN PROGRAMS

SEC. 711. DEFINITIONS.

As used in this chapter:

(1) OFFICE.—The term “Office” means the office established in section 712(a)(1)(A).

(2) OMBUDSMAN.—The term “Ombudsman” means the individual described in section 712(a)(2).

(3) LOCAL OMBUDSMAN ENTITY.—The term “local Ombudsman entity” means an entity designated under section 712(a)(5)(A) to carry out the duties described in section 712(a)(5)(B) with respect to a planning and service area or other substate area.

(4) PROGRAM.—The term “program” means the State Long-Term Care Ombudsman program established in section 712(a)(1)(B).

(5) REPRESENTATIVE.—The term “representative” includes an employee or volunteer who represents an entity designated



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Real People Real Problems: An Evaluation of the Long-Term Care Ombudsman Programs of the Older Americans Act B Title VII—Allotments for Vulnerable Elder Rights Protection Activities: Chapter 2 CHAPTER 2—OMBUDSMAN PROGRAMS SEC. 711. DEFINITIONS. As used in this chapter: (1) OFFICE.—The term “Office” means the office established in section 712(a)(1)(A). (2) OMBUDSMAN.—The term “Ombudsman” means the individual described in section 712(a)(2). (3) LOCAL OMBUDSMAN ENTITY.—The term “local Ombudsman entity” means an entity designated under section 712(a)(5)(A) to carry out the duties described in section 712(a)(5)(B) with respect to a planning and service area or other substate area. (4) PROGRAM.—The term “program” means the State Long-Term Care Ombudsman program established in section 712(a)(1)(B). (5) REPRESENTATIVE.—The term “representative” includes an employee or volunteer who represents an entity designated

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Real People Real Problems: An Evaluation of the Long-Term Care Ombudsman Programs of the Older Americans Act 127 OLDER AMERICANS ACT OF 1965 Sec. 712 under section 712(a)(5)(A) and who is individually designated by the Ombudsman. (6) RESIDENT.—The term “resident” means an older individual who resides in a long-term care facility. (42 U.S.C. 3058f) SEC. 712. STATE LONG-TERM CARE OMBUDSMAN PROGRAM. (a) ESTABLISHMENT.— (1) IN GENERAL.—In order to be eligible to receive an allotment under section 703 from funds appropriated under section 702(a), a State agency shall, in accordance with this section— (A) establish and operate an Office of the State Long-Term Care Ombudsman; and (B) carry out through the Office a State Long-Term Care Ombudsman program. (2) OMBUDSMAN.—The Office shall be headed by an individual, to be known as the State Long-Term Care Ombudsman, who shall be selected from among individuals with expertise and experience in the fields of long-term care and advocacy. (3) FUNCTIONS.—The Ombudsman shall serve on a full-time basis, and shall, personally or through representatives of the Office— (A) identify, investigate, and resolve complaints that— (i) are made by, or on behalf of, residents; and (ii) relate to action, inaction, or decisions, that may adversely affect the health, safety, welfare, or rights of the residents (including the welfare and rights of the residents with respect to the appointment and activities of guardians and representative payees), of— (I) providers, or representatives of providers, of long-term care services; (II) public agencies; or (III) health and social service agencies; (B) provide services to assist the residents in protecting the health, safety, welfare, and rights of the residents; (C) inform the residents about means of obtaining services provided by providers or agencies described in subparagraph (A)(ii) or services described in subparagraph (B); (D) ensure that the residents have regular and timely access to the services provided through the Office and that the residents and complainants receive timely responses from representatives of the Office to complaints; (E) represent the interests of the residents before governmental agencies and seek administrative, legal, and other remedies to protect the health, safety, welfare, and rights of the residents; (F) provide administrative and technical assistance to entities designated under paragraph (5) to assist the entities in participating in the program; (G)(i) analyze, comment on, and monitor the development and implementation of Federal, State, and local laws, regulations, and other governmental policies and actions,

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Real People Real Problems: An Evaluation of the Long-Term Care Ombudsman Programs of the Older Americans Act Sec. 712 OLDER AMERICANS ACT OF 1965 128 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; (H)(i) provide for training representatives of the Office; (ii) promote the development of citizen organizations, to participate in the program; and (iii) provide technical support for the development of resident and family councils to protect the well-being and rights of residents; and (I) carry out such other activities as the Commissioner determines to be appropriate. (4) CONTRACTS AND ARRANGEMENTS.— (A) IN GENERAL.—Except as provided in subparagraph (B), the State agency may establish and operate the Office, and carry out the program, directly, or by contract or other arrangement with any public agency or nonprofit private organization. (B) LICENSING AND CERTIFICATION ORGANIZATIONS; ASSOCIATIONS.—The State agency may not enter into the contract or other arrangement described in subparagraph (A) with— (i) an agency or organization that is responsible for licensing or certifying long-term care services in the State; or (ii) an association (or an affiliate of such an association) of long-term care facilities, or of any other residential facilities for older individuals. (5) DESIGNATION OF LOCAL OMBUDSMAN ENTITIES AND REPRESENTATIVES.— (A) DESIGNATION.—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 to represent the entity. (B) DUTIES.—An individual so designated shall, in accordance with the policies and procedures established by the Office and the State agency— (i) provide services to protect the health, safety, welfare and rights of residents; (ii) ensure that residents in the service area of the entity have regular, timely access to representatives of the program and timely responses to complaints and requests for assistance; (iii) 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; (iv) represent the interests of residents before government agencies and seek administrative, legal, and

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Real People Real Problems: An Evaluation of the Long-Term Care Ombudsman Programs of the Older Americans Act 129 OLDER AMERICANS ACT OF 1965 Sec. 712 other remedies to protect the health, safety, welfare, and rights of the residents; (v)(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; (vi) support the development of resident and family councils; and (vii) carry out other activities that the Ombudsman determines to be appropriate. (C) ELIGIBILITY FOR DESIGNATION.—Entities eligible to be designated as local Ombudsman entities, and individuals eligible to be designated as representatives of such entities, shall— (i) have demonstrated capability to carry out the responsibilities of the Office; (ii) be free of conflicts of interest; (iii) in the case of the entities, be public or nonprofit private entities; and (iv) meet such additional requirements as the Ombudsman may specify. (D) POLICIES AND PROCEDURES.— (i) IN GENERAL.—The State agency shall establish, in accordance with the Office, policies and procedures for monitoring local Ombudsman entities designated to carry out the duties of the Office. (ii) POLICIES.—In a case in which the entities are grantees, or the representatives are employees, of area agencies on aging, the State agency shall develop the policies in consultation with the area agencies on aging. The policies shall provide for participation and comment by the agencies and for resolution of concerns with respect to case activity. (iii) CONFIDENTIALITY AND DISCLOSURE.—The State agency shall develop the policies and procedures in accordance with all provisions of this subtitle regarding confidentiality and conflict of interest. (b) PROCEDURES FOR ACCESS.— (1) IN GENERAL.—The State shall ensure that representatives of the Office shall have— (A) access to long-term care facilities and residents; (B)(i) appropriate access to review the medical and social records of a resident, if— (I) the representative has the permission of the resident, or the legal representative of the resident; or (II) the resident is unable to consent to the review and has no legal representative; or (ii) access to the records as is necessary to investigate a complaint if— (I) a legal guardian of the resident refuses to give the permission;

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Real People Real Problems: An Evaluation of the Long-Term Care Ombudsman Programs of the Older Americans Act Sec. 712 OLDER AMERICANS ACT OF 1965 130 (II) a representative of the Office has reasonable cause to believe that the guardian is not acting in the best interests of the resident; and (III) the representative obtains the approval of the Ombudsman; (C) access to the administrative records, policies, and documents, to which the residents have, or the general public has access, of long-term care facilities; and (D) access to and, on request, copies of all licensing and certification records maintained by the State with respect to long-term care facilities. (2) PROCEDURES.—The State agency shall establish procedures to ensure the access described in paragraph (1). (c) REPORTING SYSTEM.—The State agency shall establish a statewide uniform reporting system to— (1) collect and analyze data relating to complaints and conditions in long-term care facilities and to residents for the purpose of identifying and resolving significant problems; and (2) submit the data, on a regular basis, to— (A) the agency of the State responsible for licensing or certifying long-term care facilities in the State; (B) other State and Federal entities that the Ombudsman determines to be appropriate; (C) the Commissioner; and (D) the National Ombudsman Resource Center established in section 202(a)(21). (d) DISCLOSURE.— (1) IN GENERAL.—The State agency shall establish procedures for the disclosure by the Ombudsman or local Ombudsman entities of files maintained by the program, including records described in subsection (b)(1) or (c). (2) IDENTITY OF COMPLAINANT OR RESIDENT.—The procedures described in paragraph (1) shall— (A) provide that, subject to subparagraph (B), the files and records described in paragraph (1) may be disclosed only at the discretion of the Ombudsman (or the person designated by the Ombudsman to disclose the files and records); and (B) prohibit the disclosure of the identity of any complainant or resident with respect to whom the Office maintains such files or records unless— (i) the complainant or resident, or the legal representative of the complainant or resident, consents to the disclosure and the consent is given in writing; (ii)(I) the complainant or resident gives consent orally; and (II) the consent is documented contemporaneously in a writing made by a representative of the Office in accordance with such requirements as the State agency shall establish; or (iii) the disclosure is required by court order. (e) CONSULTATION.—In planning and operating the program, the State agency shall consider the views of area agencies on aging, older individuals, and providers of long-term care.

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Real People Real Problems: An Evaluation of the Long-Term Care Ombudsman Programs of the Older Americans Act 131 OLDER AMERICANS ACT OF 1965 Sec. 712 (f) CONFLICT OF INTEREST.—The State agency shall— (1) ensure that no individual, or member of the immediate family of an individual, involved in the designation of the Ombudsman (whether by appointment or otherwise) or the designation of an entity designated under subsection (a)(5), is subject to a conflict of interest; (2) ensure that no officer or employee of the Office, representative of a local Ombudsman entity, or member of the immediate family of the officer, employee, or representative, is subject to a conflict of interest; (3) ensure that the Ombudsman— (A) does not have a direct involvement in the licensing or certification of a long-term care facility or of a provider of a long-term care service; (B) does not have an ownership or investment interest (represented by equity, debt, or other financial relationship) in a long-term care facility or a long-term care service; (C) is not employed by, or participating in the management of, a long-term care facility; and (D) does not receive, or have 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; and (4) establish, and specify in writing, mechanisms to identify and remove conflicts of interest referred to in paragraphs (1) and (2), and to identify and eliminate the relationships described in subparagraphs (A) through (D) of paragraph (3), including such mechanisms as— (A) the methods by which the State agency will examine individuals, and immediate family members, to identify the conflicts; and (B) the actions that the State agency will require the individuals and such family members to take to remove such conflicts. (g) LEGAL COUNSEL.—The State agency shall ensure that— (1)(A) adequate legal counsel is available, and is able, without conflict of interest, to— (i) provide advice and consultation needed to protect the health, safety, welfare, and rights of residents; and (ii) assist the Ombudsman and representatives of the Office in the performance of the official duties of the Ombudsman and representatives; and (B) legal representation is provided to any representative of the Office against whom suit or other legal action is brought or threatened to be brought in connection with the performance of the official duties of the Ombudsman or such a representative; and (2) the Office pursues administrative, legal, and other appropriate remedies on behalf of residents. (h) ADMINISTRATION.—The State agency shall require the Office to— (1) prepare an annual report—

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Real People Real Problems: An Evaluation of the Long-Term Care Ombudsman Programs of the Older Americans Act Sec. 712 OLDER AMERICANS ACT OF 1965 132 (A) describing the activities carried out by the Office in the year for which the report is prepared; (B) containing and analyzing the data collected under subsection (c); (C) evaluating the problems experienced by, and the complaints made by or on behalf of, residents; (D) containing recommendations for— (i) improving quality of the care and life of the residents; and (ii) protecting the health, safety, welfare, and rights of the residents; (E)(i) analyzing the success of the program including success in providing services to residents of board and care facilities and other similar adult care facilities; and (ii) identifying barriers that prevent the optimal operation of the program; and (F) providing policy, regulatory, and legislative recommendations to solve identified problems, to resolve the complaints, to improve the quality of care and life of residents, to protect the health, safety, welfare, and rights of residents, and to remove the barriers; (2) analyze, comment on, and monitor the development and implementation of Federal, State, and local laws, regulations, and other government policies and actions that pertain to long-term care facilities and services, and to the health, safety, welfare, and rights of residents, in the State, and recommend any changes in such laws, regulations, and policies as the Office determines to be appropriate; (3)(A) provide such information as the Office determines to be necessary to public and private agencies, legislators, and other persons, regarding— (i) the problems and concerns of older individuals residing in long-term care facilities; and (ii) recommendations related to the problems and concerns; and (B) make available to the public, and submit to the Commissioner, the chief executive officer of the State, the State legislature, the State agency responsible for licensing or certifying long-term care facilities, and other appropriate governmental entities, each report prepared under paragraph (1); (4)(A) not later than 1 year after the date of the enactment of this title, establish procedures for the training of the representatives of the Office, including unpaid volunteers, based on model standards established by the Associate Commissioner for Ombudsman Programs, in consultation with representatives of citizen groups, long-term care providers, and the Office, that— (i) specify a minimum number of hours of initial training; (ii) specify the content of the training, including training relating to— (I) Federal, State, and local laws, regulations, and policies, with respect to long-term care facilities in the State;

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Real People Real Problems: An Evaluation of the Long-Term Care Ombudsman Programs of the Older Americans Act 133 OLDER AMERICANS ACT OF 1965 Sec. 713 (II) investigative techniques; and (III) such other matters as the State determines to be appropriate; and (iii) specify an annual number of hours of in-service training for all designated representatives; and (B) require implementation of the procedures not later than 21 months after the date of the enactment of this title; (5) prohibit any representative of the Office (other than the Ombudsman) from carrying out any activity described in subparagraphs (A) through (G) of subsection (a)(3) unless the representative— (A) has received the training required under paragraph (4); and (B) has been approved by the Ombudsman as qualified to carry out the activity on behalf of the Office; (6) coordinate ombudsman services with the protection and advocacy systems for individuals with developmental disabilities and mental illnesses established under— (A) part A of the Developmental Disabilities Assistance and Bill of Rights Act (42 U.S.C. 6001 et seq.); and (B) the Protection and Advocacy for Mentally Ill Individuals Act of 1986 (42 U.S.C. 10801 et seq.); (7) coordinate, to the greatest extent possible, ombudsman services with legal assistance provided under section 306(a)(2)(C), through adoption of memoranda of understanding and other means; and (8) permit any local Ombudsman entity to carry out the responsibilities described in paragraph (1), (2), (3), (6), or (7). (i) LIABILITY.—The State shall ensure that no representative of the Office will be liable under State law for the good faith performance of official duties. (j) NONINTERFERENCE.—The State shall— (1) ensure that willful interference with representatives of the Office in the performance of the official duties of the representatives (as defined by the Commissioner) shall be unlawful; (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; and (3) provide for appropriate sanctions with respect to the interference, retaliation, and reprisals. (42 U.S.C. 3058g) SEC. 713. REGULATIONS. The Commissioner shall issue and periodically update regulations respecting— (1) conflicts of interest by persons described in paragraphs (1) and (2) of section 712(f); and (2) the relationships described in subparagraphs (A) through (D) of section 712(f)(3). (42 U.S.C. 3058h)