If a state is operating a LTC ombudsman program in compliance with congressional mandates, the program will perform several functions. For purposes of reviewing the extent of compliance, the committee collapsed the several statutory functions of the LTC ombudsman program into two primary services: (1) direct, individual advocacy services, which should be accessible, available, and meet the needs of residents of nursing and B&C facilities, and (2) systemic advocacy services.

Although in some states and locales elements of the ombudsman programs are vigorously implemented, the ombudsman program as a whole has not been fully implemented with regard to the provisions of the OAA that call for ombudsman services to be available and accessible to residents of LTC facilities. The committee finds the following:

• Not all residents of LTC facilities in need of advocacy assistance have meaningful access to the services of an ombudsman.

• Given the lack of a frequent visitation pattern to LTC facilities by ombudsmen in many parts of the country and little, if any, evidence that other methods are used effectively to build an awareness in the community of the availability of ombudsman services, large numbers of residents of LTC facilities are unaware of, and thus would probably not be able to use, the ombudsman programs' services.

• For the most part, ombudsmen provide timely responses to complaints. However, serious problems exist in some locales. For example, some state programs serve a large proportion of their LTC residents largely through one central toll-free telephone service. In such cases, it is not unusual for ombudsmen to investigate complaints through telephone inquiries only. Those residents most in need of an ombudsman to assist in protecting their health, safety, welfare, and rights may be reluctant or simply unable to initiate complaints to the ombudsman by such means as telephone calls because they are too frail or cognitively impaired.

• Implementation of the ombudsman program for residents of nursing facilities has been uneven among and within states.

• Implementation of the ombudsman program for residents of B&C homes has not been achieved in any significant way except in a small number of states.

• The ombudsman program activities of too many states are piecemeal, fragmented, and focused primarily on responding to complaints that relate to individual residents of nursing facilities. These states are not in compliance with the spirit of the program provisions as stated in the OAA; the Offices of the State LTC Ombudsman programs do not function as a whole, statewide, unified, integrated program delivering a range of individual, systemic, and educational efforts.

• AoA has not mandated any level of implementation for the legislated LTC ombudsman program, nor has the agency monitored the states' efforts at implementation. Although ombudsman programs vary in the amount of staff and volunteer resources being expended to serve the residents of LTC facilities, no agreed-upon level of effort exists to signify that an ombudsman program has been implemented at a minimum acceptable level in a state. States do not uniformly comply with the essential requirements for operating statewide ombudsman programs, and neither AoA nor any other federal agency employs mechanisms to require such compliance.

• AoA has not developed technical guidance materials that inform states of the federal government's operational definitions of a fully implemented Office of the State LTC Ombudsman program.

• Ombudsman programs need competent legal advice and backup, including, when the circumstances call for legal interventions, assistance to LTC facility residents in pursuing issues in the courts and in regulatory hearings. The availability of these services is extremely uneven across the country.

• Except in a very few states, SUAs have not fulfilled their responsibility to ensure that adequate and independent legal counsel is available to the ombudsman programs for the purpose of providing advice and counsel related to LTC residents.

The determination of whether actual or potential conflicts of interest in the administration and operation of the LTC ombudsman programs exist depends primarily on two factors: (1) the definition of or parameters describing occurrences of conflicts of interest and (2) the circumstances of the situation under review. Without a doubt, most state and local ombudsman programs are subject to one or more of the conflicts of interest reviewed by the committee.

Of particular concern to the committee is the prevalence of potential and real conflicts of interest that arise from the structural location of many of the Offices of the State LTC Ombudsman programs. Situations in which real, potential, and perceived conflicts of interest exist may be more prevalent than is typically understood, and perceived conflicts of interest may be as detrimental to operating the ombudsman program as real conflicts of interest. All conflicts of interest work to the disadvantage of the vulnerable client.

Ombudsmen--particularly state ombudsmen--operate in a politically charged environment accentuated by the fact that most often the state ombudsman is a state employee. Government cannot function efficiently if its employees work in opposing directions. All levels of government in the United States have formal and informal standards that govern chains of command. Every executive branch of government justifiably exercises some control over its employees' contacts with the legislative branch and media.

By federal statute, the ombudsman is required to speak out against government laws, regulations, policies, and actions when the circumstances justify such action. Taking such steps, however, is antithetical to the hierarchical rules of government. It is not surprising, therefore, that conflicts occur. The imposition of a state's routine chain-of-command rules on the ombudsman can significantly constrain his or her independence, although no person in such situations may intentionally act to interfere with the work of the ombudsman.

The committee began its review of conflicts of interest with the statutory provisions of the OAA that prohibit conflicts of interest in the LTC ombudsman programs. The parameters set forth in the act to identify situations of conflicts of interest are quite limited and outdated, focusing almost exclusively on financial interests and nursing facility settings. They provide little guidance for addressing the conceptually related variations of conflict of interest--conflicts of loyalty, commitment, and control--that characterize the environments in which the ombudsman program operates in the 1990s.

The committee reviewed four major types of conflicts of interest: (1) organizational, (2) individual, (3) those arising from willful interference in the independent operation of the program, and (4) those related to the provision of legal counsel. Conflicts of interest can be dealt with either by prevention or by detection and correction. These are concepts and approaches similar to those in the quality-of-care field. Not all conflicts of interest can be prevented in the ombudsman programs, although prevention is clearly the preferred method of program administration and the most effective means of assuring compliance with the statutory provisions. Numerous mechanisms can ameliorate individual conflicts of interest, such as disclosure, ethical behavior, and accountability to the public.

The committee determined that conflict of interest problems are sufficient to warrant greater vigilance and a broader array of tactics to prevent, identify, and correct pertinent and significant conflicts. To that end, the committee offers four recommendations.

4.1. The committee recommends that Congress amend the Older Americans Act to include the following policy directive. By fiscal year 1998, no ombudsman program should be located in an entity of government (state or local) or agency outside government whose head is responsible for:

• licensure, certification, registration, or accreditation of long-term care residential facilities;

• provision of long-term care services, including Medicaid waiver programs;

• long-term care case management;

• reimbursement rate setting for long-term care services;

• adult protective services;

• Medicaid eligibility determination;

• preadmission screening for long-term care residential placements; or

• decisions regarding admission of elderly individuals to residential facilities.

4.3. The committee recommends that the Assistant Secretary for Aging establish procedures and resources by which to identify potential conflicts of interest in the areas of loyalty, commitment, and control that are pertinent to the long-term care ombudsman and ombudsman representatives and provide guidance on how to address such conflicts of interest.

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 the government, then the ombudsman should receive assurances of conformance to state rules of professional conduct for the legal profession.

The committee attempted to assess the effectiveness of the state LTC ombudsman program from several perspectives. The underlying impediment to sound assessment has been the lack of reliable and valid information that could be fit into any defensible summative evaluation format. For that reason, the committee opted for a formative evaluation effort--one that would highlight program issues, strengths, and weaknesses and would point to more specific questions deserving in-depth attention in coming years.

On the basis of all the information it reviewed, collected, and analyzed, the committee concludes that the ombudsman program serves a vital public purpose. Every year the LTC ombudsman program helps many thousands of individual LTC facility residents, particularly those in nursing facilities, with a wide range of problems and concerns. The committee thus takes a strong supportive stance with respect to the ombudsman program. To underscore this commitment to the mission of the program:

5.1. The committee recommends that Congress continue the long-term care ombudsman program as set forth in the Older Americans Act.

Stating such a recommendation may seem superfluous from a group empaneled to examine a program that, on the face of it, serves a worthy cause and a needy population. However, the committee took seriously the question of whether the program merited continuation in its present form (or at all). Having concluded that it does, the committee intended, through the above recommendation, to make clear that the aims of those who crafted the original program and its subsequent modifications remain consequential today.

The LTC ombudsman program can justly claim to have improved the system of LTC services. Through systemic advocacy work and educational efforts, the state programs, individually and collaboratively, have brought to the attention of state and federal policymakers, regulatory agencies, and provider organizations a host of conditions that can and should be changed to improve the health, safety, rights, and welfare of LTC residents. Examples of changes advanced or promoted by ombudsman programs (often in conjunction with other organizations) include: enactment of the federal Nursing Home Reform Law of 1987 (in particular, provisions pertaining to quality of care and quality of life); increased personal needs allowances; protections from involuntary discharge and room transfers; reduced use of physical restraints; improved building and safety standards; increased state funding for inspection and surveying of LTC facilities; reduced use of psychotropic medications; better licensing oversight of health care professionals; increased use of advance directives; stronger LTC staff competencies and sensitivities; and empowerment of residents through stronger resident and family governance structures.

In the B&C area, the ombudsman program has been partially implemented at best. Hence, evaluating national program effectiveness in this area is premature.

The committee believes that the individual and systemic successes attributed to the ombudsman program occur despite considerable barriers in most, if not all, states. Obstacles to effective performance include inadequate funding, resulting staff shortages, low salary levels for paid staff, structural conflicts of interest that limit the ability to act, and uneven implementation among and within states. In many states, the program attempts to operate in a structural environment that expressly prohibits or, at least, does not foster its ability to carry out all federally mandated functions. The committee observed such examples as prohibitions on state and local ombudsmen from talking with any state or federal legislators about issues of concern to residents and ombudsmen who attempted to carry out additional and conflicting roles such as adult protective services officials.

As a consequence of what it perceived to be the significant drawbacks of this variation in basic program implementation and practice, the committee has developed a detailed scheme relating to the structure and activities of the program called "Elements of Infrastructure and Functions." The elements are expressed in terms of exemplary, essential, and unacceptable practices. They incorporate prerequisites for effective ombudsman program performance. The detailed elements and respective practice levels are found in tables in Chapter 5 of the committee's report. They include the following categories:

• Structure of the Office of the State LTC Ombudsman and Elements of the Host Agency(s) for the State and Local Entities;

• Qualifications of Representatives of the Office;

• Legal Authority;

• Resources (financial, information management, legal, and human);

• Office of the State LTC Ombudsman Program;

• Individual Resident Advocacy Services;

• Systemic Advocacy Work; and

• Educational Services.

5.2. The committee recommends that the Administration on Aging build upon the committee's proposed set of exemplary, essential, and unacceptable practices to develop and implement an objective method to assess compliance of state long-term care ombudsman programs.

As noted above, because the ombudsman program is still developing and evolving, and because data on program performance are not available, evaluating the program's effectiveness in any comprehensive way is not possible. Other barriers to adequate assessment also exist. Agreement has been lacking about the definition of goals. Implementation has been extremely varied, in part because of broad and uneven interpretations of the OAA mandate. No formal evaluation component was ever built into the program. Finally, only recently has AoA adopted a standardized data reporting system of any complexity.

Of all these issues, the committee focused on information systems as an area that AoA could and should remedy. Accordingly, the committee developed a set of recommendations in this area.

5.3. Building on work already begun by the Administration on Aging and the National Association of State Long-Term Care Ombudsman Programs, the committee recommends that the Secretary and Assistant Secretary for Aging, Department of Health and Human Services, establish and implement an information system for the ombudsman program that provides an empirical basis for:

• evaluating and improving complaint resolution efforts by identifying the extent to which ombudsmen have been effective in resolving complaints and issues to residents' satisfaction;

• identifying more precisely the kinds of problems (resolved or not) that affect the lives of residents of nursing and residential care facilities in order to provide a basis for systemic advocacy and change;

• documenting the key efforts made toward systemic advocacy and the results of those efforts to address priority long-term care issues; and

• documenting and analyzing the full range of activities of the long-term care ombudsman programs.

5.4. The committee recommends that the Assistant Secretary for Aging continue the efforts of the Administration on Aging to develop, refine, and implement a uniform data collection and reporting system. The committee recommends, at a minimum, that the data system should:

• be based on a manageable number of uniform and reliable data items--each of which has precisely specified, field-tested definitions;

• be derived from annual statistical reports submitted by state long-term care ombudsman offices that provide information in terms of the data items in the previous point;

• include a clear indication of status of complaint resolution from a consumer perspective;

• be used to provide feedback to state and local ombudsman programs;

• be available for public use to foster research and inform decision making;

• incorporate methods and procedures for continuous revision and improvement; and

• be reviewed and updated no less than once every three years.

The committee underscored the importance of well-defined, accurately reported, uniform data in which each item has precisely the same meaning for all state programs. Committee discussion emphasized the necessity of assuring that the burden of reporting is minimized and realistic, given the facts that staff resources are limited and that volunteers are crucial in data collection efforts. Time spent recording data is time not available for direct service. Thus, all items intended for a formal data collection instrument should be carefully examined and included only if they have demonstrated utility for AoA or state or local ombudsman programs (or, ideally, both). Preference should be given to items that are useful in documenting the nature and outcomes of the full range of ombudsman services. Committee members expressed particular interest in the value of all state ombudsmen offices commenting consistently on four specific elements of information, as noted in this recommendation:

5.6. The committee recommends that the Secretary and Assistant Secretary for Aging, Department of Health and Human Services, require that each Office of the State Long-Term Care Ombudsman include in its annual report, in addition to currently required elements, information on and comments about:

• the level of awareness of residents, their agents, and other parties regarding the ombudsman program, and the availability of ombudsmen to individual residents;

• the extent to which the complaints and concerns of residents have been satisfactorily resolved;

• the extent to which ombudsmen have provided input into activities designed to improve the overall system of care and services for long-term care residents; and

• the extent to which ombudsmen have improved the overall system of care and services for long-term care residents.

Almost no evidence exists that causally links the activities and the outcomes of the ombudsman program. For example, little, if any, empirical information relates participation in nursing facility surveys or development of an annual report with such outcomes as changes in LTC facility practices that show more respect for residents' rights or revisions in state or federal laws that provide legislative backing for residents' rights. Just as research is being conducted to assess linkages among processes, structures, and outcomes in various aspects of the U.S. health care system, so too the need exists for such research relating to the LTC ombudsman program. To this purpose, the committee offers the following recommendation:

5.7. The committee recommends that the Administration on Aging, the Health Care Financing Administration, the Agency for Health Care Policy and Research, other government agencies, and foundations support research to develop valid and reliable measures for assessing the impact of ombudsman activities on outcomes relative to the well-being of residents of long-term care facilities, at both individual and systemic advocacy levels.

A prerequisite to effectiveness is adequate resources. Paid staff is the most crucial of all resources. To ensure that capacity exists for an effective program, staffing issues must be addressed for each state LTC ombudsman program, quite apart from funding issues. Based on site visits and other data gathered and analyzed, the committee agreed that staffing resources were minimal to inadequate from a national perspective.

The committee was particularly interested in information that suggests that many of the more "successful" programs make good use of a large number of volunteers. Use of ombudsman volunteers is positively associated with routine visitation and number of complaints made and resolved. This fact calls attention to the importance of recruiting, training, and retaining volunteers and to their singular contributions to the adequate functioning and performance of the program. Volunteers can provide a level of authenticity and consumer "grassroots" participation that is lacking in most other systems designed to protect and support the frail elderly. The continued use of well-trained volunteers is very much in keeping with the original intent and design of the program.

The committee concluded that the establishment of a standard staff-to-volunteer ratio was needed to protect and manage this resource. Thus, in setting the standard recommended here, the span of management of individuals was emphasized rather than the quantity of effort provided per volunteer (i.e., hours volunteered). The committee suggests a minimum standard for this staff-to-volunteer ratio of 1:40. It strongly encourages state LTC ombudsman programs that involve volunteers to maintain paid staff-volunteer ratios at the more robust level of 1:20.

5.8. The committee recommends that the Assistant Secretary for Aging establish a standard for ensuring the adequate management of volunteers who serve as designated ombudsmen. The committee suggests that the ratio of staff to volunteers be in the range of 1 paid full-time equivalent manager for every 20 to 40 volunteers.