Older Americans Act: Grants to State and Community Programs on Aging; Grants to Indian Tribes and Native Hawaiian Grantees for Supportive, Nutrition, and Caregiver Services; Grants for Supportive and Nutritional Services to Older Hawaiian Natives; and Allotments for Vulnerable Elder Rights Protection Activities

Federal RegisterFeb 14, 2024

Ask Donna

What actually matters in this document.

Text

DEPARTMENT OF HEALTH AND HUMAN SERVICES

Administration for Community Living

45 CFR Parts 1321, 1322, 1323, and 1324

RIN 0985-AA17

Older Americans Act: Grants to State and Community Programs on Aging; Grants to Indian Tribes and Native Hawaiian Grantees for Supportive, Nutrition, and Caregiver Services; Grants for Supportive and Nutritional Services to Older Hawaiian Natives; and Allotments for Vulnerable Elder Rights Protection Activities

AGENCY:

Administration for Community Living (ACL), Department of Health and Human Services (HHS or “the Department”).

ACTION:

Final rule.

SUMMARY:

ACL is issuing this final rule to modernize the implementing regulations of the Older Americans Act of 1965 (“the Act” or OAA). These changes advance the policy goals of the Act as articulated by Congress, including equity in service delivery, accountability for funds expended, and clarity of administration for ACL and its grantees. This final rule ultimately facilitates improved service delivery and enhanced benefits for OAA participants, particularly those in greatest economic need and greatest social need consistent with the statute.

DATES:

Effective date:

This final rule is effective on March 15, 2024.

Compliance date:

October 1, 2025.

FOR FURTHER INFORMATION CONTACT:

Amy Wiatr-Rodriguez, Director of Regional Operations, Administration for Community Living, Department of Health and Human Services, 330 C Street SW, Washington, DC 20201. Email:

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

Telephone: (312) 938-9858. Alice Kelsey, Deputy Director for the Administration on Aging, Administration for Community Living, Department of Health and Human Services, 330 C Street SW, Washington, DC 20201. Email:

alice.kelsey@acl.hhs.gov,

Telephone: (202) 795-7342.

Assistance to Individuals with Disabilities in Reviewing the Rulemaking Record:

Upon request, the Department will provide an accommodation or auxiliary aid to an individual with a disability who needs assistance to review the comments or other documents in the public rulemaking record for the regulations. To schedule an appointment for this type of accommodation or auxiliary aid, please call (312) 938-9858 or email

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

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Background

A. Statutory and Regulatory History

B. Overview of the Final Rule

C. Severability

II. Provisions of the Final Rule and Analysis and Responses to Public Comments

Part 1321: Grants to State and Community Programs on Aging

A. Provisions Revised To Reflect Statutory Changes and/or for Clarity

Subpart A—Introduction

1. § 1321.1 Basis and Purpose of This Part

2. § 1321.3 Definitions

Subpart B—State Agency Responsibilities

1. § 1321.5 Mission of the State Agency

2. § 1321.7 Organization and Staffing of the State Agency

3. § 1321.9 State Agency Policies and Procedures

4. § 1321.11 Advocacy Responsibilities

5. § 1321.13 Designation of and Designation Changes to Planning and Service Areas

6. § 1321.15 Interstate Planning and Service Area

7. § 1321.17 Appeal to the Departmental Appeals Board on Planning and Service Area Designation

8. § 1321.19 Designation of and Designation Changes to Area Agencies

9. § 1321.21 Withdrawal of Area Agency Designation

10. § 1321.25 Duration, Format, and Effective Date of the State Plan

11. § 1321.27 Content of State Plan

12. § 1321.29 Public Participation

13. § 1321.31 Amendments to the State Plan

14. § 1321.33 Submission of the State Plan or Plan Amendment to the Assistant Secretary for Aging for Approval

15. § 1321.35 Notification of State Plan or State Plan Amendment Approval or Disapproval for Changes Requiring Assistant Secretary for Aging Approval

16. § 1321.39 Appeals to the Departmental Appeals Board Regarding State Plan on Aging

17. § 1321.41 When a Disapproval Decision Is Effective

18. § 1321.43 How the State Agency May Appeal the Departmental Appeals Board's Decision

19. § 1321.45 How the Assistant Secretary for Aging May Reallot the State Agency's Withheld Payments

20. § 1321.49 Intrastate Funding Formula

21. § 1321.51 Single Planning and Service Area States

Subpart C—Area Agency Responsibilities

1. § 1321.55 Mission of the Area Agency

2. § 1321.57 Organization and Staffing of the Area Agency

3. § 1321.61 Advocacy Responsibilities of the Area Agency

4. § 1321.63 Area Agency Advisory Council

5. § 1321.65 Submission of an Area Plan and Plan Amendments to the State Agency for Approval

Subpart D—Service Requirements

1. § 1321.71 Purpose of Services Allotments Under Title III

2. § 1321.73 Policies and Procedures

3. § 1321.75 Confidentiality and Disclosure of Information

4. § 1321.79 Responsibilities of Service Providers Under State and Area Plans

5. § 1321.83 Client and Service Priority

6. § 1321.93 Legal Assistance

B. New Provisions Added To Clarify Responsibilities and Requirements Under Grants to State and Community Programs on Aging

Subpart B—State Agency Responsibilities

1. § 1321.23 Appeal to the Departmental Appeals Board on Area Agency on Aging Withdrawal of Designation

2. § 1321.37 Notification of State Plan Amendment Receipt for Changes Not Requiring Assistant Secretary for Aging Approval

3. § 1321.47 Conflicts of Interest Policies and Procedures for State Agencies

4. § 1321.53 State Agency Title III and Title VI Coordination Responsibilities

Subpart C—Area Agency Responsibilities

1. § 1321.59 Area Agency Policies and Procedures

2. § 1321.67 Conflicts of Interest Policies and Procedures for Area Agencies on Aging

3. § 1321.69 Area Agency on Aging Title III and Title VI Coordination Responsibilities

Subpart D—Service Requirements

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

2. § 1321.81 Client Eligibility for Participation

3. § 1321.85 Supportive Services

4. § 1321.87 Nutrition Services

5. § 1321.89 Evidence-Based Disease Prevention and Health Promotion Services

6. § 1321.91 Family Caregiver Support Services

7. § 1321.95 Service Provider Title III and Title VI Coordination Responsibilities

Subpart E—Emergency and Disaster Requirements

1. § 1321.97 Coordination With State, Tribal, and Local Emergency Management

2. § 1321.99 Setting Aside Funds To Address Disasters

3. § 1321.101 Flexibilities Under a Major Disaster Declaration

4. § 1321.103 Title III and Title VI Coordination for Emergency and Disaster Preparedness

5. § 1321.105 Modification During Major Disaster Declaration or Public Health Emergency

C. Deleted Provisions

Subpart A—Introduction

1. § 1321.5 Applicability of Other Regulations

Subpart D—Service Requirements

1. § 1321.75 Licenses and Safety

Part 1322: Grants to Indian Tribes and Native Hawaiian Grantees for Supportive, Nutrition, and Caregiver Services

A. Provisions Revised To Reflect Statutory Changes and/or for Clarity

Subpart A—Introduction

1. § 1322.1 Basis and Purpose of This Part

2. § 1322.3 Definitions

Subpart B—Application

1. § 1322.5 Application Requirements

2. § 1322.7 Application Approval

3. § 1322.9 Hearing Procedures

Subpart C—Service Requirements

1. § 1322.13 Policies and Procedures

2. § 1322.15 Confidentiality and Disclosure of Information

3. § 1322.25 Supportive Services

4. § 1322.27 Nutrition Services

B. New Provisions Added To Clarify Responsibilities and Requirements Under Grants to Indian Tribes and Native Hawaiian Grantees for Supportive, Nutrition, and Caregiver Services

Subpart C—Service Requirements

1. § 1322.11 Purpose of Services Allotments Under Title VI

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

3. § 1322.19 Responsibilities of Service Providers

4. § 1322.21 Client Eligibility for Participation

5. § 1322.23 Client and Service Priority

6. § 1322.29 Family Caregiver Support Services

7. § 1322.31 Title VI and Title III Coordination

Subpart D—Emergency and Disaster Requirements

1. § 1322.33 Coordination With Tribal, State, and Local Emergency Management

2. § 1322.35 Flexibilities Under a Major Disaster Declaration

3. § 1322.37 Title VI and Title III Coordination for Emergency and Disaster Preparedness

4. § 1322.39 Modification During Major Disaster Declaration or Public Health Emergency

C. Deleted Provisions

1. § 1322.5 Applicability of Other Regulations

Part 1323: Grants for Supportive and Nutritional Services to Older Hawaiian Natives

A. Deleted Provisions

1. Part 1323: Grants for Supportive and Nutritional Services to Older Hawaiian Natives.

Part 1324: Allotments for Vulnerable Elder Rights Protection Activities

A. Provisions Revised To Reflect Statutory Changes and/or for Clarity

Subpart A—State Long-Term Care Ombudsman Program

1. § 1324.1 Definitions

2. § 1324.11 Establishment of the Office of the State Long-Term Care Ombudsman

3. § 1324.13 Functions and Responsibilities of the State Long-Term Care Ombudsman

4. § 1324.15 State Agency Responsibilities Related to the Ombudsman Program

5. § 1324.17 Responsibilities of Agencies Hosting Local Ombudsman Entities

6. § 1324.19 Duties of the Representatives of the Office

7. § 1324.21 Conflicts of Interest

B. New Provisions Added To Clarify Responsibilities and Requirements Under Allotments for Vulnerable Elder Rights Protection Activities

Subpart B—Programs for Prevention of Elder Abuse, Neglect, and Exploitation

1. § 1324.201 State Agency Responsibilities for the Prevention of Elder Abuse, Neglect, and Exploitation

Subpart C—State Legal Assistance Development

1. § 1324.301 Definitions

2. § 1324.303 Legal Assistance Developer

III. Required Regulatory Analyses

A. Regulatory Impact Analysis

B. Regulatory Flexibility Act

C. Executive Order 13132 (Federalism)

D. Executive Order 13175 (Consultation and Coordination With Indian Tribal Governments)

E. Unfunded Mandates Reform Act of 1995

F. Plain Language in Government Writing

G. Paperwork Reduction Act (PRA)

I. Background

Congress passed the OAA in 1965 to expand and enhance community social services for older persons.

The original legislation established authority for grants to State agencies for community planning and social services, research and development projects, and personnel training in the field of aging. Subsequent reauthorizations expanded and enhanced the reach of the Act, including through the authorization of the Long-Term Care Ombudsman Program (LTCOP or Ombudsman program). The Act created the Administration on Aging (AoA) within the Department of Health, Education and Welfare, now the Department of Health and Human Services (HHS), to serve as the principal agency designated to carry out the provisions of the OAA and as the Federal focal point on matters concerning older persons.

It designated a Commissioner on Aging, now Assistant Secretary for Aging, to lead the activities of AoA and administer the OAA.

Since 2012, AoA has been housed in ACL.

Public Law 89-73, 79 Stat. 218 (1965). 42 U.S.C. 3001

et seq.

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

Section 202 of the OAA; 42 U.S.C. 3012. Title V of the OAA added in the 1978 reauthorization is administered by the Dep't of Labor.

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

Title III of the OAA authorizes grants to State agencies on aging (State agencies), who in turn provide funding to area agencies on aging (AAAs or area agencies) to serve as advocates on behalf of older persons and create comprehensive and coordinated community-based continuums of services and supports.

In 2022 the national aging network included 56 State agencies (including the District of Columbia and five Territories), over 600 AAAs, and over 20,000 local service providers.

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

et seq.

Cong. Research Serv., R43414, Older Americans Act: Overview and Funding (May 17, 2023),

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

Title III authorizes the largest OAA programs by population served and Federal funds expended as administered by ACL. These include supportive, nutrition, evidence-based disease prevention and health promotion, caregiver, legal, and other services.

Title III programs served 10.1 million older persons in 2020 (the most recent year for which data is available).

Title III accounted for nearly three quarters of the of the $2.378 billion OAA 2023 budget and funding for these programs is based on a statutory formula that determines yearly allocations to individual Territories and States.

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

et seq.

Admin. for Cmty. Living, Overview of Older Americans Act Title III, VI, and VII Programs: 2020 Summary of Highlights and Accomplishments, p. III-2 (2022),

https://acl.gov/sites/default/files/news%202022-09/2020%20OAA%20Report_Complete%20Product%209-1-22_508.pdf.

Admin. For Cmty. Living, FY 2022 OAA Title III Annual Grant Awards (without transfers) (Apr. 27, 2022),

https://acl.gov/sites/default/files/about-acl/2022-05/Title%20III-2022.pdf

Title III services are available to persons aged 60 and older and family caregivers; however, they are prioritized to serve those with the greatest economic need and greatest social need, particularly low-income minority older individuals, older persons with limited English proficiency (LEP), older persons residing in rural areas, and older persons with disabilities.

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

et seq.

First included as a part of the 1978 reauthorization of the Act, Title VI authorizes funds for nutrition, supportive, and caregiver services to older Native Americans. The purpose of Title VI programs is to support the independence and well-being of Tribal elders and caregivers living in their communities consistent with locally determined needs. ACL awards funding directly to Federally recognized Tribal organizations, including Native Alaskan organizations, and a designated not-for-profit group representing Native Hawaiians. To be eligible for funding, a Tribal organization or Hawaiian Native grantee must represent at least 50 Native Americans aged 60 and older who reside in the service area. In FY2023, grants were awarded to 290 Tribal organizations representing approximately 400 Indian Tribes and Alaskan Native entities and one

organization serving Native Hawaiian elders.

U.S. Dep't of Health & Human Servs., Tracking Accountability in Government Grants System (TAGGS),

https://taggs.hhs.gov

(last visited Oct. 13, 2023).

Title VII authorizes the Ombudsman program, programs for elder abuse, neglect, and exploitation prevention, and a requirement for State agencies to provide a State Legal Assistance Developer.

States' Ombudsman programs investigate and resolve complaints related to the health, safety, welfare, and rights of individuals who live in long-term care facilities. Begun in 1972 as a demonstration program, Ombudsman programs today exist in all States, the District of Columbia, Puerto Rico, and Guam, under the authorization of the Act.

These States and Territories have an Office of the State Long-Term Care Ombudsman (the Office), headed by a full-time State Long-Term Care Ombudsman (the Ombudsman). In FY 2022, the program had a budget of $19.9 million.

That same year, Ombudsman fielded 182,000 complaints and provided more than 569,000 instances of information and assistance to individuals and long-term care facilities.

Title VII also authorizes grants to State agencies for program activities aimed at preventing and remedying elder abuse, neglect, and exploitation.

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

et seq

Cong. Research Serv., R43414, Older Americans Act: Overview and Funding (May 17, 2023),

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

Admin. For Cmty. Living, Fiscal Year 2023 Justification of Estimates for Appropriations Committees, 132,

https://acl.gov/about-acl/budget.

National Ombudsman Reporting System (NORS), Data at a Glance,

Admin. for Cmty. Living (last visited Jan. 18, 2023).

A. Statutory and Regulatory History

This final rule is published under the authority granted to the Assistant Secretary for Aging by the Older Americans Act of 1965, Public Law 89-73, 79 Stat. 218 (1965), as amended through the Supporting Older Americans Act of 2020, Public Law 116-131, 134 Stat. 240 (2020), sections 201(e)(3), 305(a)(1), 306(d)(1), 307(a), 307(d)(3), 331(a), 614(a), 624(a) and 712-713 (42 U.S.C. 3011(e), 42 U.S.C. 3025, 42 U.S.C. 3026(d), 42 U.S.C. 3027(a), 42 U.S.C. 3027(a), 3027(d), 42 U.S.C. 3057e, 42 U.S.C. 3057j, and 3058g-3058h, respectively). These provisions authorize the Assistant Secretary for Aging to prescribe regulations regarding designation of State agency activities; development and approval of State plans on aging; and funding for supportive, nutrition, evidence-based disease prevention and health promotion, family caregiver support, and legal services under Title III of the Act; funding for Indian Tribes, Tribal organizations, and a Hawaiian Native grantee to serve Hawaiian Native and Tribal elders and family caregivers under Title VI of the Act; and allotments for vulnerable elder rights protection activities, including the Long-Term Care Ombudsman Program under Title VII of the Act.

The OAA was passed in 1965 and vested authority for carrying out the purposes of the Act, including through the issuance of regulations, in the Assistant Secretary for Aging (then the Commissioner for Aging). Since its initial passage, the OAA has been amended a total of eighteen times. Regulations for programs authorized under the Act date from 1988.

Title III, except regarding the Ombudsman program, and Title VI implementing regulations have not been revised since that time, while Title VII regulations 45 CFR part 1324

Allotments for Vulnerable Elder Rights Protection Activities, subpart A

and portions of 45 CFR part 1321—

Grants to State and Community Programs on Aging

regarding the Ombudsman program were published in 2015.

53 FR 33758 (Aug. 31, 1988).

80 FR 7704 (Feb. 11, 2015).

There have been substantial statutory changes since 1988, as detailed by the Congressional Research Service in several summary publications.

Title VII: State Long-Term Care Ombudsman and Vulnerable Elder Rights Protection

was added to the Act by the 1992 amendments (Pub. L. 102-375; 42 U.S.C. 3058g-3058i), which consolidated and expanded existing programs focused on protecting the rights of older persons. Title VII incorporated separate authorizations of appropriations for the Ombudsman program; the program for the prevention of elder abuse, neglect, and exploitation; elder rights and legal assistance development; and outreach, counseling, and assistance for insurance and public benefit programs. The 1992 amendments also strengthened requirements related to focusing Title III funding and services on populations in greatest need with particular attention to older low-income minority individuals. Other elements of the 1992 amendments authorized programs for assistance to caregivers of the frail elderly, clarified the role of Title III agencies in working with the private sector, and required improvements in AoA data collection.

Cong. Research Serv., R46439, Older Americans Act: A 2020 Reauthorization (July 1, 2020),

https://crsreports.congress.gov/product/pdf/R/R46439;

Cong. Research Serv., R43414, Older Americans Act: Overview and Funding (May 17, 2023),

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

The National Family Caregiver Support Program under Title III and Native American Caregiver Support Program under Title VI were authorized by the 2000 amendments (Pub. L. 106-501), which also permitted State agencies to impose cost-sharing, subject to limitations, for some Title III services certain older persons receive while retaining authority for voluntary contributions toward the costs of services. The 2006 amendments (Pub. L. 109-365) authorized the Assistant Secretary for Aging to designate an individual within AoA to be responsible for prevention of elder abuse, neglect, and exploitation and to coordinate Federal elder justice activities. In addition, the 2006 amendments expanded the reach of Aging and Disability Resource Centers (ADRCs), brought increased attention to services and supports related to mental health and mental disorders, required State agencies to conduct increased planning efforts related to the growing number of older people in coming decades, and focused attention on the needs of older people with LEP and those at risk of institutional placement.

The 2016 amendments (Pub. L. 114-144) provided additional flexibility to State agencies, AAAs, and social services providers in addressing the modernization of senior centers, falls prevention, and behavioral health screening, and codified existing practices, such as requiring “evidence-based” disease prevention and health promotion services. For the Ombudsman program, they clarified conflicts of interest (COI) provisions, strengthened confidentiality and Ombudsman training requirements, and improved resident access to representatives of the Office. They addressed coordination among ADRCs and other home and community-based service (HCBS) organizations providing information and referrals.

The Supporting Older Americans Act of 2020 (Pub. L. 116-131) added new definitions, including

person-centered

and

trauma-informed.

The legislation amended the Act to address a range of disease prevention and health promotion activities, such as chronic disease self-management and falls prevention, as well as address the negative effects of social isolation among older individuals. Congress focused on other reauthorization issues as well, including changes to nutrition

services programs and to programs that provide support to family caregivers.

We issued a Request for Information (RFI) on May 6, 2022 seeking input from the aging network, Indian Tribes, States, and Territories on challenges they face administering services, as well as feedback from individuals and other interested parties on experiences with services, providers, and programs under the Act.

Most of the comments we received focused on: equitably serving older adults and family caregivers from underserved and marginalized communities, the Ombudsman program, area plans on aging, and flexibilities within the nutrition and other programs.

87 FR 27160 (May 6, 2022); section 2013A of the OAA, 42 U.S.C. 3013a.

On June 16, 2023, the

Federal Register

published a notice of proposed rulemaking (NPRM) regarding OAA Titles III, VI, and VII (88 FR 39568). Through this NPRM, ACL sought feedback regarding ACL's proposal to modernize the implementing regulations of the OAA, which have not been substantially altered since their promulgation in 1988. The NPRM addressed supportive, nutrition, evidence-based disease prevention and health promotion, caregiver, legal, long-term care ombudsman, and other services provided by State agencies, Tribal organizations and a Hawaiian Native grantee, AAAs, and service providers under the OAA. The 60-day comment period for the NPRM closed on August 15, 2023.

B. Overview of the Final Rule

This final rule adopts the same structure and framework as the proposed rule. Part 1321 addresses programs authorized under Title III of the Act and includes subpart A (basis, purpose, and definitions), subpart B (State agency responsibilities), subpart C (area agency responsibilities), subpart D (service requirements), and subpart E (emergency and disaster requirements). Part 1322 addresses programs authorized under Title VI of the Act and includes subpart A (basis, purpose, and definitions), subpart B (application), subpart C (service requirements), and subpart D (emergency and disaster requirements). Part 1324 includes programs authorized under Title VII of the Act and includes subpart A (State Long-Term Care Ombudsman Program), subpart B (programs for prevention of elder abuse, neglect, and exploitation), and subpart C (State legal assistance development).

ACL has made changes to several of the proposed rule's provisions based on public comments. Our final rule is a direct response to feedback from interested parties and reflects the evolving needs of both grantees and OAA program participants. In response to robust comment, we have clarified the flexibilities available during a major disaster, increased the amount of funds under Title III, part C-1 of the Act that may be used for shelf-stable, pick-up, carry-out, drive-through, or similar meals, and provided more information about implementing the definition of “greatest social need” in State and area plans, among other clarifications.

C. Severability

To the extent that any portion of the requirements arising from the final rule is declared invalid by a court, ACL intends for all other parts of the final rule that are capable of operating in the absence of the specific portion that has been invalidated to remain in effect. While our expectation is that all parts of the final rule that are operable in such an environment would remain in effect, ACL will assess at that time whether further rulemaking is necessary to amend any provisions subsequent to any holding that ACL exceeded its discretion, or the provisions are inconsistent with the OAA, or are vacated or enjoined on any other basis.

II. Provisions of the Final Rule and Analysis and Responses to Public Comments

We received 780 public comments from individuals and organizations, including State agencies, Tribes and Tribal organizations, AAAs, service providers, Ombudsman programs, advocacy groups, and private citizens. We thank commenters for their consideration of the proposed rule and appreciate all comments received. We particularly are grateful for the OAA program participants who wrote to share their experience of OAA services and their thoughts on what they enjoy and would like to see in the future regarding OAA programming. In the subsequent sections, we summarize the rule's provisions and the public comments received, and we provide our response.

General Comments on the NPRM

General Support

Comment:

Commenters overwhelmingly supported most provisions in the proposed rule. Many commenters expressed general support for our updates to modernize the regulations. Other commenters appreciated the flexibilities in the rule and noted that they would like to work with their State and local leaders to identify other creative approaches to expanding services to older adults. A significant number of commenters requested additional funds to provide services under the Act.

Response:

ACL appreciates these comments. We encourage collaboration at the State and local levels to identify solutions that are responsive to the needs and resources in local communities. Requests for funding are outside the scope of this rule.

Technical Corrections; Recommendations for Sub-Regulatory Guidance

Comment:

A number of commenters identified technical corrections, including citation errors and a misnumbered preamble provision. Commenters also provided suggestions and raised questions that could be addressed in future sub-regulatory guidance on a variety of topics.

Response:

We appreciate these comments and have made the recommended technical corrections. We have also clarified the regulation text to remove references to sub-regulatory guidance that has not yet been issued, and we have revised the regulation title to accurately reflect program titles. We look forward to providing technical assistance and guidance on a number of topics subsequent to promulgation of the final rule.

LGBTQI+ Older Adults and Older Adults Living With HIV

Comment:

A significant number of comments focused on the importance of serving those in greatest economic need and greatest social need, including older adults and family caregivers who are lesbian, gay, bisexual, transgender, queer, intersex and/or have other sexual orientations, gender identities and expressions, and sex characteristics (LGBTQI+). Many commenters expressed support overall, and for specific provisions, concerning LGBTQI+ older adults and older adults with HIV. Specifically, commenters voiced support for full legal protections, protection of rights and privacy, and protection from discrimination when accessing services or meeting with providers. Commenters also supported quality, inclusive, and equitable legislation, regulations, aging policies, programs, services, and initiatives. Many commenters also suggested that staff and professionals working with older adults be trained in sensitivity, cultural competency, and needs specific to LGBTQI+ older adults and older adults with HIV. Specifically, commenters expressed the importance of ensuring that providers foster a welcoming, safe, and respectful

environment. Several commenters noted the importance of considering other noneconomic factors, such as geographic location (

e.g.,

rural), disabilities, ethnicity, and the intersectional challenges of multiply marginalized populations. Several commenters noted the specific concerns of this community related to services funded under Title VII of the Act, such as the Ombudsman program and prevention of elder abuse, neglect, and exploitation.

A few commenters specifically recommended engaging State agencies, AAAs, and service providers in providing funding, outreach, and services specific to older adults with HIV. Additionally, a few commenters noted the importance of hiring LGBTQI+ service provider employees and professionals. Several commenters referenced support for and access to high quality and culturally competent medical and mental health care. Some commenters noted the importance of recognition of and respect for partners, friends, and families. One commenter suggested requiring inclusive language and graphics in marketing materials as a matter of compliance. One commenter observed that LGBTQI+ individuals and people with HIV have a greater need to overcome isolation. Several commenters expressed concerns about finding affordable senior supported living options.

Response:

ACL appreciates these comments expressing concern for older adults and family caregivers who are LGBTQI+, as well as older adults and family caregivers with HIV. A majority of these comments are beyond the scope of this regulation because they do not relate to the substance of the rule, and in some cases address areas that are outside of ACL's statutory authority. However, we appreciate the numerous comments in support of these communities and believe the provisions at § 1321.3 (defining “

Greatest social need”

), § 1321.11 (

Advocacy responsibilities

), § 1321.27 (

Content of State plan

), § 1321.61 (

Advocacy responsibilities of the area agency

), § 1321.65 (

Submission of an area plan and plan amendments to the State agency for approval

), § 1321.75 (

Confidentiality and disclosure of information

), and § 1321.93 (

Legal assistance

) will improve services to these populations.

ACL funds the National Resource Center on LGBTQ+ Aging (

https://www.lgbtagingcenter.org

), which provides training and technical assistance to aging services providers, including those funded under the OAA, in their work to support and include LGBTQI+ older adults and family caregivers. In a partnership with the Office of the Assistant Secretary for Health, ACL has worked to support the development of innovative efforts that improve health outcomes and quality of life for people aging with HIV and long-term survivors in both rural and urban areas, particularly among underserved communities, including on the basis of race, ethnicity, and LGBTQI+ status.

We expect to build on these efforts and anticipate providing training and technical assistance following promulgation of the final rule to support effective implementation of these provisions.

HHS Selects Phase 2 Winners of National HIV and Aging Challenges,

HIV.gov,

https://www.hiv.gov/blog/hhs-selects-phase-2-winners-of-national-hiv-and-aging-challenges/

(last updated Sept. 21, 2023).

Collaboration Between State Agencies and Area Agencies

Comment:

ACL received many comments expressing concern that the rule allows State agencies to exert too much control in a variety of areas (

e.g.,

which programs AAAs implement under the Act, how AAAs implement programs, minimum expenditures for certain services, prioritization of services, voluntary contributions). Commenters also expressed concern that the extent of control afforded to State agencies by the rule will stifle AAAs' abilities to tailor programs to the needs of their respective planning and service areas (PSAs).

Response:

Section 305 of the Act requires designated State agencies to “[. . .] be primarily responsible for the planning, policy development, administration, coordination, priority setting, and evaluation of all State activities related to the objectives of this Act[.]”

As the grantees under the Act, State agencies are responsible to ACL for monitoring the compliance of activities initiated under Title III with all applicable requirements to ensure grant awards are used for authorized purposes and are in compliance with Federal law. In light of these responsibilities, we believe the rule affords State agencies appropriate authority over the administration and implementation of the Act within their states.

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

Notwithstanding these State agency obligations, AAAs have a critical role in the development of State agency policies and procedures. Section 1321.9(a) requires that the policies and procedures be developed by State agencies in consultation with AAAs, program participants, and other appropriate parties in the State. As set forth in § 1321.61 (

Advocacy responsibilities of the area agency

), AAAs also have an obligation to monitor, evaluate, and comment on policies, programs, hearings, levies, and community actions which affect older persons and family caregivers; this includes regarding the policies and procedures developed and implemented by State agencies. Further, except for the Ombudsman program as set forth in 45 CFR part 1324, subpart A and where otherwise indicated, the State agency policies may allow for such policies and procedures to be developed at the AAA level. Accordingly, the final rule provides tools for State and area agencies to work in tandem with one another and to address the concerns raised by these comments.

The OAA is clear that State agencies and AAAs should work together to achieve the mission set forth in the Act. AAAs and State agencies have distinct but related roles that are all vitally important in providing services to older adults and family caregivers. ACL is available to provide technical assistance and support to State agencies and AAAs in maintaining positive working relationships, fulfilling their roles, and meeting the expectations of the OAA.

Housing, Housing Instability, and Homelessness

Comment:

Many commenters expressed support for addressing housing, housing instability, and homelessness, including information and assistance/referral (I&A/R), partnerships with the U.S. Department of Housing and Urban Development (HUD), assistance with paying for housing costs and shared living options, advocacy regarding rising housing costs and development which displaces older residents, and legal assistance to assist with housing problems, including evictions.

Response:

ACL appreciates these comments expressing concern for older adults and family caregivers who experience challenges with housing, housing instability, and homelessness. ACL notes the OAA's long-standing role in support of this topic, including State agency and AAA development of a comprehensive and coordinated network of services and supports; instances of co-location of congregate meal programs under Title III, part C-1 of the Act in affordable housing facilities; and the provision of legal assistance under the Act to respond to various housing and housing-related concerns. While regulating the provision of housing, including paying for housing costs, is beyond the scope

of the Act, we believe the provisions at § 1321.3 (defining “

Access to services or access services,”

“

In-home supportive services,”

and “

Greatest social need”

), § 1321.27 (

Content of State plan

), § 1321.61 (

Advocacy responsibilities of the area agency

), § 1321.65 (

Submission of an area plan and plan amendments to the State agency for approval

), § 1321.75 (

Confidentiality and disclosure of information

), § 1321.85 (

Supportive services

), and § 1321.93 (

Legal assistance

) will support the aging network in responding to issues relating to housing, housing instability, and homelessness. This includes local partnerships between AAAs and housing authorities or providers and enabling access to services and supports for older adults residing in HUD-assisted housing as well as the braiding of funding to support housing stability with service coordination and delivery.

ACL leads the Housing and Services Resource Center (

https://acl.gov/HousingAndServices

), a partnership between HHS and HUD. We expect to build on these efforts and anticipate providing training and technical assistance following promulgation of the final rule to support effective implementation of these provisions.

Accessibility and Civil Rights Obligations

Comment:

Numerous commenters expressed concern with the elimination of the definition of “severe disability,” as well as the lack of a specific definition of disability, and the absence of specific incorporation of major sensory disabilities and accessibility in the definition of “greatest social need.” Many of these commenters reported instances in which OAA grantees and subrecipients had not respected the civil rights of people with sensory or mobility disabilities. Some shared specific accounts of AAAs and legal service providers failing to provide culturally competent, accessible services to older adult consumers who are blind, low-vision, deaf, hard-of-hearing, deafblind, or who have limited mobility. Many requested that we expand the definition of greatest social need to encompass these disability populations, codify the terms “accessibility” and “vision rehabilitation services,” require training in disability competency, and more clearly and forcefully require grantees to meet their civil rights obligations to older adults with disabilities.

Commenters also recommended that ACL direct resources specifically to research on aging and vision loss, treatment for diseases that result in vision loss, and supportive services for people with vision loss so that they may age in place—such as transportation and home care assistance.

Response:

All recipients of Federal funding, including OAA grantees and subrecipients, must comply with the Americans with Disabilities Act,

Section 504 of the Rehabilitation Act,

Section 1557 of the Affordable Care Act,

and all other applicable laws that protect against discrimination, including against people with disabilities. These civil rights laws require OAA grantees and subrecipients to provide auxiliary aids and services to ensure effective communication and to ensure that no eligible person with a disability is denied access to OAA programs and services due to disability. Older adults with disabilities and advocates may file complaints with the HHS Office for Civil Rights if anyone is denied equitable access to OAA programs or services, including due to lack of effective communication.

42 U.S.C. 12101

et seq.

29 U.S.C. 794.

42 U.S.C. 18116.

How to File a Civil Rights Complaint,

U.S. Dept. of Health and Human Serv., Office for Civil Rights,

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

(last visited Oct. 11, 2023).

While we strongly recommend that OAA grantees and subrecipients train staff on cultural competency and disability accommodations as a best practice, training requirements in disability accommodation and cultural competency are beyond the scope of this rulemaking. We decline to adopt definitions of accessibility, vision rehabilitation services, and related terms, preferring to defer to existing definitions in relevant civil rights laws. However, we have reincorporated the definition of “severe disability” in this final rule. In addition, the definition of “greatest social need” already includes “physical and mental disabilities,” and this includes all severe disabilities and sensory and communication disabilities.

Directing resources for research on aging and vision loss is also outside the scope of this rule. However, we believe the provisions at § 1321.3 (defining “

Access to services or access services”

and “

Greatest social need”

), § 1321.27 (

Content of State plan

), § 1321.61 (

Advocacy responsibilities of the area agency

), § 1321.65 (

Submission of an area plan and plan amendments to the State agency for approval

), and § 1321.85 (

Supportive services

) will support the aging network in responding to issues relating to vision and hearing loss.

Age Discrimination in the Workplace

Comment:

Several commenters expressed concern about age discrimination in the workplace.

Response:

While addressing age discrimination in the workplace broadly is outside of the scope of these regulations, ACL notes that supportive services provided under Title III of the Act may be helpful to those experiencing work-related concerns. For example, age discrimination is one of the priority areas that may be addressed by legal assistance provided under the Act (§ 1321.93

Legal assistance

). While Title V, the Senior Community Service Employment Program, is outside the scope of these regulations because it is implemented by the Department of Labor, programs funded under Title III, VI, and VII of the Act are encouraged to have referral mechanisms among programs funded under all Titles of the Act.

Administrative Burden, Implementation Costs, Implementation Timeframe

Comment:

We received a significant number of comments related to concerns about the burden, cost, and amount of time regulated entities would need to implement the final rule (

e.g.,

costs and time needed to review and update existing policies and procedures, to create new policies and procedures, create or update state regulations, and to train staff), as well as concerns about the ongoing costs of monitoring compliance with the final rule. Some State agencies commented that they anticipate that consultants and/or additional staff will need to be hired and/or that changes will need to be made to information technology systems. Some State agencies asserted that ACL has greatly underestimated both the cost, and the amount of time, needed to come into compliance with the rule.

Response:

A limited number of substantive changes were made by the 2020 reauthorization to the implementation of programs under the Act, and much of this final rule codifies the policies and procedures that Title VI grantees, State agencies, AAAs, and service providers already have or should have in place to administer programs and deliver services under the Act. Similarly, State and area agencies should already be engaging in monitoring activities for compliance with the Act and implementing regulations. State and area agencies will have to review and revise their existing practices, policies, and procedures to ensure they comply with the final rule. For example, State agencies and AAAs will need to update definitions of

greatest social need and greatest economic need. However, this final rule does not require States to have regulations, and many of the new potentially burdensome aspects of the final rule are at the State agency's option to implement (for example, allowing shelf-stable, pick-up, carry-out, drive-through, or similar meals to complement the congregate meals program). We also note that public comments that provided State-specific cost estimates to implement and administer the final rule did not clearly differentiate between costs attributable to the statute and the incremental costs of implementing the final rule; accordingly, it is not feasible to incorporate this information into our analysis of the impact of the final rule. As more particularly discussed in the Regulatory Impact Analysis below, we anticipate that any costs to regulated entities associated with the final rule will not be onerous.

In consideration of comments related to the time required for implementation of the rule, we have decided to delay the compliance date of this rule until October 1, 2025. This should give all regulated entities sufficient time to come into compliance with these regulations. It will also allow time for State and area plans on aging that will be effective as of October 1, 2025, to incorporate the requirements of this final rule into new or amended plans.

Consistent with current practice, if State agencies encounter challenges implementing specific provisions of the rule, they should engage with ACL for technical assistance and support. In addition, State agencies that need additional time to comply with one or more provisions of the rule may submit a request to proceed under a corrective action plan. A request should include the reason the State needs additional time, the steps the State will take to reach full compliance, and how much additional time the State anticipates needing. The corrective action plan process is intended to be highly collaborative and flexible. Under a corrective action plan, States agencies and ACL will jointly identify progress milestones and a feasible timeline for the State agency to come into compliance with the provision(s) of the rule incorporated into the corrective action plan. State agencies must make a good faith effort at compliance to continue operating under a corrective action plan. Requests for corrective action plans will be reviewed after April 1, 2024, and ACL will provide guidance on this process after this rule takes effect.

Part 1321: Grants to State and Community Programs on Aging

A. Provisions Revised To Reflect Statutory Changes or Provide Clarity

The following provisions of this final rule reflect statutory changes (

e.g.,

changing “Commissioner for Aging” to “Assistant Secretary for Aging” throughout), revisions for clarity, and direction in response to requests for technical assistance from grantees and other interested parties, RFI responses, listening sessions, Tribal consultation, and public comment received on the NPRM.

Subpart A—Introduction

§ 1321.1 Basis and Purpose of This Part

Section 1321.1 sets forth the requirements of Title III of the Act to provide grants to State and community programs on aging. This final rule ensures consistency with statutory terminology and requirements, such as referring to evidence-based disease prevention and health promotion and caregiver services, specifying family caregivers as a service population, and listing the key roles of the State agency identified to implement Title III and Title VII of the Act.

Comment:

Commenters expressed support for the priority given to services for those with the greatest economic and social need. One commenter requested § 1321.1(c)(4) also recognize the need for advocacy on behalf of family caregivers.

Response:

We appreciate these comments and have revised § 1321.1(c)(4) to read, “Serve as an advocate for older individuals and family caregivers[.]”

Comment:

One commenter stated that given the authority for the State agency to allocate funds to the Ombudsman program, they strongly recommend language be added at § 1321.1(c)(7) to reflect allocation of funds for the Ombudsman program.

Response:

ACL appreciates this comment and has revised § 1321.1(c)(7) to remove “or” in (i), add “or” to the end of (ii), and add (iii) to read, “The Ombudsman program, as set forth in part 1324.”

§ 1321.3 Definitions

The final rule updates the definitions of significant terms in § 1321.3 by adding several new definitions, revising several existing definitions, and deleting definitions of terms that are obsolete or no longer necessary. The additions, revisions, and deletions are intended to reflect changes to the statute, important practices in the administration of programs under the Act, and feedback we have received from a range of interested parties.

We add definitions of the following terms: “Access to services,” “Acquiring,” “Area agency on aging,” “Area plan administration,” “Best available data,” “Conflicts of interest,” “Cost sharing,” “Domestically produced foods,” “Family caregiver,” “Governor,” “Greatest economic need,” “Greatest social need,” “Immediate family,” “Local sources,” “Major disaster declaration,” “Multipurpose senior center,” “Native American,” “Nutrition Services Incentive Program,” “Older relative caregiver,” “Planning and service area,” “Private pay programs,” “Program development and coordination activities,” “Program income,” “Single planning and service area State,” “State,” “State agency,” “State plan administration,” “Supplemental foods,” and “Voluntary contributions.”

We retain and make minor revisions to the terms: “Altering or renovating,” “Constructing,” “Department,” “Direct services,” “In-home supportive services,” “Means test,” “Official duties,” “Periodic,” “Reservation,” “Service provider,” and “Severe disability.” We retain with no revisions the terms: “Act” and “Fiscal year” and we remove the terms: “Frail” and “Human services.”

Comment:

We received many comments in support of these updated definitions.

Response:

We appreciate these comments. ACL's responses to comments of particular note follow.

“Access to Services” or “Access Services”

Comment:

We received one comment requesting additional examples of access services.

Response:

ACL appreciates this comment and acknowledges that service provision and technologies continue to evolve. In response to this comment, we have added “options counseling” to the list of examples.

“Acquiring,” “Altering or Renovating,” and “Constructing”

Comment:

We received comments supporting the removal of the term “multipurpose senior center” from the definitions of “altering or renovating” and “constructing.” Other commenters expressed confusion related to these terms, because the rule only allows grantees to use OAA funding for “acquiring” and “constructing” multipurpose senior centers. Other commenters sought clarity as to whether these terms apply to minor home repairs

or modifications provided to individual service participants under the Act.

Response:

We only use these terms to clarify how grantees may use OAA funds on facilities where OAA services are provided or facilities that are otherwise necessary to satisfy the administrative requirements of the Act. These terms do not apply to “in-home supportive services” provided to individuals, such as minor modification of homes or individual residences.

“Conflicts of Interest”

Recognizing the importance of ensuring the integrity of, and trust in, activities carried out under the Act, section 307(a)(7) of the Act requires State agencies to have mechanisms in place to identify and remove COI.

We include several provisions related to COI to provide clarity for State agencies, AAAs, and service providers: §§ 1321.3, 1321.47, and 1321.67. These provisions include a general definition of COI and specific requirements for State agencies and AAAs, respectively, which are discussed in more detail below. These provisions reflect the expanded potential for COI due to changes in the scope of activities undertaken by these entities since the Act was first passed and these regulations were first issued. The intent of the COI provisions is to ensure that State agencies, AAAs, and service providers carry out the objectives of the Act consistent with the best interests of the older people they serve.

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

“Cost Sharing”

We clarify the definition of cost sharing to implement the intent of section 315 of the Act.

The term “cost sharing” generally refers to the portion of the cost of an item or service for which an individual is responsible in order to receive that item or service. However, this term is used differently in the Act than it is commonly used in other settings. There are many restrictions on how cost sharing may be implemented under the Act, including that an eligible individual may not be denied service for failure to make a cost sharing payment. The OAA allows for cost sharing from certain individuals for some services,

but State agencies that wish to allow the practice of cost sharing must comply with a number of requirements, which are described in § 1321.9(c)(2)(xi).

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

42 U.S.C. 3030c-2(a)(2) prohibits a State agency from implementing cost sharing for the following services: information and assistance, outreach, benefits counseling, or case management; ombudsman, elder abuse prevention, legal assistance, or other consumer protection services; congregate and home-delivered meals; and any services delivered through Tribal organizations. 42 U.S.C. 3030c-2(a)(3) prohibits cost-sharing for any services delivered through a Tribal organization or to an individual whose income is at or below the FPL. State agencies are prohibited from considering assets and other resources when considering whether a low-income individual is exempt from cost-sharing, when creating a sliding scale for cost sharing, or when seeking a contribution from a low-income individual.

“Cost Sharing” and “Voluntary Contributions”

Comment:

We received a mix of comments on these definitions; some commenters felt the definitions were clear as drafted, while others disagreed or asked for further clarification.

Response:

We have revised the definition of “voluntary contributions” to read, “[. . .] means donations of money or other personal resources given freely, without pressure or coercion, by individuals receiving services under the Act.” For consistency, we have also revised this definition in part 1322. We intend to address other suggestions and requests for clarification through technical assistance.

“Family Caregiver”

We define “family caregiver” to include the following subsets: adult family members or other individuals who are caring for an older individual, adult family members or other individuals who are caring for an individual of any age with Alzheimer's disease or a related disorder with neurological and organic brain dysfunction, and “older relative caregivers” (defined below). With this inclusive approach to defining “family caregiver,” we include those populations specified in the National Family Caregiver Support Program, as set forth in Title III, part E of the Act. For example, this includes unmarried partners, friends, or neighbors caring for an older adult.

Comment:

We received one comment suggesting that individuals of working age who are not adults should be included in the definition of family caregiver.

Response:

ACL appreciates this comment. Entities implementing services for family caregivers have the discretion to define an “adult” in this context or to consider such individuals as “other individuals” as used in the definition, so long as they comply with State agency policies and procedures, these regulations, and any other applicable Federal requirements.

Comment:

We received many comments supporting an inclusive definition of family caregiver, as well as suggestions for expanded wording of the definition. One commenter recommended ACL consider alternatives to the term “informal” within the family caregiver definition to avoid minimizing their invaluable role and avoid inaccuracy due to some receiving financial compensation.

Response:

ACL appreciates these comments and concurs that the definition includes non-traditional families and families of choice. We believe that the definition of “an adult family member, or another individual” and the subsequent preamble explanation that this “includes unmarried partners, friends, or neighbors” is sufficiently broad. To address family caregivers who may receive limited financial compensation, we have revised the definition to add, “For purposes of this part, family caregiver does not include individuals whose primary relationship with the older adult is based on a financial or professional agreement.” We have also revised this definition in part 1322.

“Greatest Economic Need”

One of the basic tenets of the Act is focusing OAA services on individuals who have the greatest economic need. The definition of “greatest economic need” in the Act incorporates income and poverty status. The Act also permits State agencies to set policies, consistent with our regulations, that incorporate other considerations into the definition of “greatest economic need.”

Through its policies, the State agency may permit AAAs to further refine specific target populations of greatest economic need within their PSA.

A variety of local conditions and individual situations, other than income, could factor into an individual's level of economic need. State agencies and AAAs are in the best position to understand the conditions and factors in their State and local areas that contribute to individuals falling within this category. Accordingly, this definition allows State agencies and AAAs to further refine target populations of greatest economic need.

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

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

Comment:

We received multiple comments expressing support for focusing services on those in greatest economic need. One commenter stated that it would be beneficial to create a process of enabling local AAAs to set standards and definitions to reflect local needs.

Response:

ACL appreciates these comments and notes that the preamble discussion supports local targeting. Furthermore, § 1321.27(d) and

§ 1321.65(b)(2) permit the State agency and AAAs to further refine specific target populations of greatest economic need based on local and individual factors.

Comment:

Some commenters noted that the definition in § 1321.3 of “greatest social need” does not entirely align with the text at § 1321.27 and § 1321.65.

Response:

We appreciate commenters raising this issue; we have revised these provisions for consistency.

Comment:

Some commenters expressed concern that the expanded definition of greatest social need could diminish the focus on those in greatest economic need if the revised definition results in changing an intrastate funding formula (IFF).

Response:

Changes to IFFs are one, but not an exclusive, method of targeting and prioritizing services to those in greatest social need. We provide additional discussion on methods to target and prioritize services to those in greatest economic and greatest social need in the preamble discussion under § 1321.27.

“Greatest Social Need”

Focusing OAA services on individuals who have the greatest social need is one of the basic tenets of the Act. “Greatest social need” is defined in the Act as “need caused by noneconomic factors” including physical and mental disabilities, language barriers, and cultural, social, or geographic isolation, including isolation caused by racial or ethnic status that restricts the ability of an individual to perform normal daily tasks or threatens the capacity of the individual to live independently.

This definition allows for consideration of other noneconomic factors that contribute to cultural, social, or geographic isolation.

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

For example, in multiple places the Act requires special attention to the needs of older individuals residing in rural locations. In some communities, such isolation may be caused by religious affiliation. Isolation may also be related to sexual orientation, gender identity, or sex characteristics. For example, research indicates that LGBTQI+ older adults are at risk for poorer health outcomes and have lived through discrimination, social stigma, and the effects of prejudice, impacting their connections with families of origin, lifetime earnings, opportunities for retirement savings, and ability to trust health care professionals and aging services providers.

People aging with HIV are a growing population with distinct needs. The experience of HIV stigma may contribute to isolation and feelings of loneliness and be complicated by other stigmatized or marginalized components of an individual's identity, including age, race, sexual orientation, and gender identity. Older people with HIV report poor mental and physical health at higher rates than their HIV negative counterparts, as well as difficulty accessing necessary supports and services like transportation, nutrition, and housing.

Nat'l Resource Ctr. on LGBT Aging, Inclusive Services for LGBT Older Adults: A Practical Guide to Creating Welcoming Agencies (2020),

https://www.lgbtagingcenter.org/resources/pdfs/Sage_GuidebookFINAL1.pdf.

State of Aging with HIV: Third National Survey, HealthHIV (2023)

https://healthhiv.org/stateof/agingwithhiv/?eType=EmailBlastContent&eId=883056c6-e9af-47dc-a653-022e1f4fb9fc;

Mark Brennan-Ing,

Emerging Issues in HIV and Aging,

prepared for the HIV and Aging Policy and Action Collation (May 11, 2020),

https://www.sageusa.org/wp-content/uploads/2020/07/emerging-issues-in-hiv-and-aging-may-2020.pdf.

Other chronic conditions may also result in isolation or stigma, as may housing instability, food insecurity, lack of access to reliable and clean water supply, lack of transportation, utility assistance needs, or interpersonal safety concerns, including abuse, neglect, and exploitation.

We received many comments through the RFI and the NPRM comment period urging ACL to set clear and consistent expectations regarding the populations to be included, and our intent is to do so in this definition. As with “greatest economic need,” the Act permits State agencies to set policies, consistent with our regulations, that further define the noneconomic considerations that contribute to populations designated as having the “greatest social need.”

Through its policies, the State agency may permit AAAs to further refine specific target populations of greatest social need within their PSAs.

State agencies and AAAs are in the best position to understand additional conditions and factors in their State and local areas that contribute to individuals falling within this category. Accordingly, this definition allows State agencies and AAAs to further refine target populations of greatest social need.

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

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

Comment:

We received multiple comments expressing support for focusing services on those in greatest social need. One commenter stated it would be beneficial to create a process of enabling local AAAs to set standards and definitions to reflect local needs.

Response:

ACL appreciates these comments and notes that the preamble discussion supports local targeting. Furthermore, § 1321.27(d) and § 1321.65(b)(2) permit the State agency and AAAs to further refine specific target populations of greatest social need based on local and individual factors.

Comment:

Commenters suggested various additions to the list of non-economic factors, such as “solo older adults,” people living alone with cognitive impairments, older individuals who are experiencing abuse, neglect, self-neglect, and/or exploitation, and formerly incarcerated individuals. One commenter requested a modification from “normal” to “routine” in proposed (9)(i). Other commenters disagreed with the proposed definition and/or provided other suggestions. For example, some commenters raised the concern that the definition is inadequate regarding racial or ethnic status because it only mentions it in the context of isolation when impacts are far more extensive, including experiences of incarceration, higher rates of poverty and homelessness, health inequities such as being served in underperforming facilities, and lack of trust in external services and service providers. Commenters also requested clarification as to whether sensory loss or sensory impairment, including deafness, being hard of hearing, blindness, and having low vision, may be considered under “physical and mental disabilities” or “chronic conditions.”

Response:

ACL appreciates these comments and recognizes that there are various additional factors that a State agency or a AAA may wish to include within the category of “[o]ther needs as further defined by State and area plans based on local and individual factors[.]” Such factors may be included in the target populations that a State agency or a AAA may define pursuant to § 1321.27(d)(1) and § 1321.65(b)(2)(i), respectively. Additionally, we acknowledge that the concepts included in our definition may be expressed using different words. For example, “solo older adults” or “older adults living alone” may be included as examples of experiences of cultural, social, or geographical isolation due to “any other status” under (3)(x) of this revised definition. We have added “routine” to (3)(x)(a) in addition to the statutory term, “normal.”

ACL recognizes the extensive impacts to older adults who may face cumulative effects of a lifetime of

isolation caused by racial or ethnic status which restrict the ability of an individual to perform routine daily tasks or threaten the capacity of an individual to live independently, such as experiences of incarceration, higher rates of poverty and homelessness, health inequities due to being served in underperforming facilities, and lack of trust in external services and service providers. Considerations relating to racial or ethnic status may be further defined under “(x) Other needs as further defined by State and area plans based on local and individual factors[.]”

ACL confirms that sensory loss or sensory impairment, including deafness, being hard of hearing, blindness, and having low vision, may be considered under “Physical and mental disabilities,” “Chronic conditions,” or separately defined as provided at “Other needs as further defined by State and area plans based on local and individual factors[.]” Older individuals who are experiencing abuse, neglect, self-neglect, and/or exploitation may be considered under “Interpersonal safety concerns,” as well as under several of the other population categories listed here, depending on the individual's personal situation.

Comment:

A commenter recommended including the concept of “lifesaving/preservation” (relating to the availability of necessities such as water, access to food supplies, and electricity) in the definition of greatest social need. This comment was raised in the context of Indian reservations where, for example, water may need to be manually hauled and electricity may be unavailable.

Response:

ACL appreciates these comments. We acknowledge that access to these types of necessities is important, and we have revised the definition to include lack of access to reliable and clean water supply. We have also amended the regulatory definition to better align with the structure of the statutory provision.

ACL has determined that the definition as proposed, with the revisions noted here, provides an appropriate balance in meeting the intent of the Act and allowing for State and local agency customization.

“Immediate Family”

Comment:

We received one comment stating that the term “immediate family” should include non-relatives that are socially connected, especially including clan relationships in Tribal communities.

Response:

This term is used specifically in the context of COI policies at § 1321.47 and § 1321.67 requiring State agencies and AAAs, respectively, to have policies and procedures “[e]nsuring that no individual, or member of the immediate family of an individual, involved in administration or provision of a Title III program has a conflict of interest[.]” ACL declines to expand the definition of immediate family to avoid creating an overly broad application of COI provisions in Tribal communities. ACL notes that the definition of “family caregiver” set forth in § 1321.3 and used in § 1321.91 for provision of family caregiver support services includes “[. . .] an adult family member, or another individual [. . .]” which includes non-relatives that are socially connected and clan relationships in Tribal communities.

“In-Home Supportive Services”

Comment:

We received supportive comments regarding this provision, as well as comments requesting expansion of the in-home supportive services identified. We received comment asking for the definition to be altered or to otherwise remove the phrase “[. . .] and that is not available under another program” regarding the example of minor modification of homes for parity with the definition under part 1322, to allow for collaboration with other programs, and to avoid excessive burden in proving no other program is available.

Response:

ACL appreciates these comments. We have revised (1) under this definition to read, “Homemaker, personal care, home care, home health, and other aides[.]” Recognizing that respite care of all types assists older adults in avoiding institutionalization, we have revised (4) under this definition to begin, “Respite care for families[.]” To facilitate consistency of definitions and avoid excessive burden, we have amended the phrase regarding minor modification of homes to state, “[. . .] and that is not readily available under another program.” We have similarly amended this definition in part 1322 for consistency.

“Means Test”

Comment:

We received several comments questioning how to prioritize participants without means testing.

Response:

The definition of “means test” in the final rule is very similar to the previous regulatory definition. We updated the definition to be consistent with the statute by adding family caregivers and made other edits for clarity. Under the Act, service providers may not determine an older adult or family caregiver to be ineligible for services due to the participant's income, assets, or other resources.

However, service providers may determine that due to limited resources and requirements to focus providing services to those in greatest economic need and greatest social need, they are unable to provide immediate service to some individuals. In such situations, service providers may include prospective participants on a waiting list; make referrals to other service providers or services; offer to provide services under a private pay program, as set forth in § 1321.9(c)(2)(xiii); and/or advocate for additional resources. Service providers may ask for financial information from prospective participants to assess for needs, screen for other benefits or services that may be available, establish priority for receipt of services, and collect data for needs assessment, reporting, evaluation, and other appropriate purposes.

Section 315 of the OAA; 42 U.S.C. 3030c-2 (b)(3).

For example, a family caregiver seeking respite assistance may be assessed by a AAA and found to have some financial resources, several other family members providing care as back-up to the primary caregiver, and a care recipient who has fewer care needs. A second family caregiver seeking respite assistance from the AAA is caring for a care recipient with very high care needs and is from an underserved community, as identified in the State and area plan. This second family caregiver may be prioritized for respite services by the AAA, as they have very limited financial resources and no nearby sources of back-up caregiving. The first family caregiver would not be ineligible for services, but due to the respite program's limited resources might be placed on a waiting list and referred to other services, including those under private pay arrangements. While not receiving respite services, the first family caregiver could also participate in caregiver support group and education services provided by the AAA under the Act.

The AAA could use the data collected regarding waiting lists and unmet needs in its advocacy efforts. With successful advocacy efforts resulting in an increase in funding for family caregiver programs, the first family caregiver could then receive respite services when those additional resources become available.

“Multipurpose Senior Center”

Comment:

We received comments requesting a change from “shall” to “may” in the definition as proposed. We received comments questioning the use

of the term “multipurpose senior center” to reference a service. We also received comment disagreeing with the definition, including with the inclusion of “virtual facilities” to the definition. Other commenters expressed appreciation for the inclusion of “virtual facilities” to reflect a growing number of programs and services offered online after the pandemic, noting this may make programs more accessible and equitable.

Response:

We appreciate these comments and have revised § 1321.3 (

Definitions

) to indicate “[. . .] as used in § 1321.85, facilitation of services in such a facility.” We have determined that the inclusion of virtual facilities allows for the option of various service modalities and that the use of the term “as practicable” allows for appropriate variation in local circumstances, while remaining true to the definition of “multipurpose senior center” as set forth in the Act and the intent for facilitation of such services. We have made a corresponding revision to this definition in part 1322.

“Official Duties”

Comment:

We received recommendations to clarify that representatives of the Office may be carrying out the duties “[. . .] by direct delegation from, the State Long-Term Care Ombudsman” in addition to the proposed “[. . .] under the auspices and general direction of [. . .] the State Long-Term Care Ombudsman.”

Response:

We appreciate the comments. We recognize that Ombudsman programs operate in a variety of organizational structures and that direct delegation is one way that programs are managed. We have modified the definition as recommended and made a corresponding revision to part 1324.

“Private Pay”

Comment:

We received a comment requesting private pay and commercial relationship be defined separately.

Response:

We define private pay as a type of commercial relationship. As discussed in our response to comments on § 1321.9(c)(2)(xiv), we have declined to define “commercial relationship.”

“Program Development and Coordination Activities”

This term explains certain activities of State agencies and AAAs to achieve the goals of the Act. This work includes the development of innovative ways to address the evolving social service, health, and economic climates in which they operate. Separate from administering programs to provide direct services, State agencies and AAAs plan, develop, provide training regarding, and coordinate at a systemic level, programs and activities aimed at the Act's target populations. In addition to this definition, we include language in § 1321.27 to clarify requirements for these activities.

“Severe Disability”

Comment:

A number of commenters objected to our proposal to eliminate the definition of “severe disability” from the regulation. Commenters expressed concern that people with disabilities would no longer sufficiently be considered within the definition of greatest social need.

Response:

We have reincorporated the statutory definition of “severe disability” into the regulation. We reiterate that people with disabilities also meet the definition of the general term “physical and mental disabilities.” However, there are several statutory references that require specifically prioritizing people with “severe disabilities,” and so we have incorporated the statutory definition in this final rule.

Comment:

We received other suggestions, program management recommendations, and implementation questions regarding the definitions in this provision.

Response:

We decline to make further changes to this provision and intend to address other suggestions and requests for clarification through technical assistance.

Subpart B—State Agency Responsibilities

§ 1321.5 Mission of the State Agency

Section 1321.7 of the existing regulation (

Mission of the State agency

) is redesignated here as § 1321.5 for clarity with respect to other relevant provisions. Section 1321.5 sets forth the State agency's mission, role, and functions as a leader on all aging issues in the State, and it specifies that the State agency will designate AAAs in States with multiple PSAs to assist in carrying out the mission. We include minor revisions to align with reauthorizations of the statute, such as adding family caregivers as a service population per the 2000 amendments (Pub. L. 106-501). We also update regulatory references and revise language for clarity.

Comment:

We received comments expressing support for the wording used in this section, including the additional detailed grant requirements for State agencies to develop comprehensive and coordinated systems of service delivery. We received several suggestions for other text to add to this section. Several commenters also recommended cultural humility and cultural competency training for the aging network, including regarding Tribal and disability issues.

Response:

We appreciate these comments. We believe the text is sufficient as drafted and that further examples, explanation, and training opportunities may be addressed through technical assistance, as appropriate.

Comment:

One commenter questioned the proposed change to “[. . .] shall be the lead on all aging issues” recommending instead “be the leader,” recognizing that some aging issues may be led by other entities within the State.

Response:

ACL appreciates this comment and has revised this statement to “[. . .] shall be a leader on all aging issues[.]”

§ 1321.7 Organization and Staffing of the State Agency

Section 1321.9 of the existing regulation (

Organization and staffing of the State agency

) is redesignated here as § 1321.7. We make several changes to the provision on organization and staffing for consistency and for clarification. Minor changes at § 1321.7(a), (c), and (d) reflect consistent wording with the State agency's obligations under 45 CFR part 1324 with respect to the administration of the Ombudsman program. The Ombudsman program is authorized under Title VII of the Act, and the implementing regulations for the program were promulgated in 2015 at 45 CFR part 1324. Section 1321.7(d) includes minor language changes to clarify the State agency's existing obligations to carry out the Ombudsman program in accordance with the Act's requirements, regardless of any applicable State law requirements.

Section 307(a)(13)

and section 731

of the Act require the State agency to ensure that there is a Legal Assistance Developer and other personnel, as needed, to provide State leadership in developing legal assistance programs for older individuals throughout the State. These staffing requirements are absent from the existing regulation regarding staffing; we add a new paragraph (e) to this provision that sets forth these requirements to assist State agencies to better understand their obligations under the Act related to staffing. The role of the Legal Assistance Developer is

discussed more fully in the preamble, below.

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

42 U.S.C. 3058j.

Comment:

We received comments of support for language recognizing the Ombudsman as the head of the Office of the State Long-Term Care Ombudsman and for including expectations for the Legal Assistance Developer. Other commenters expressed concern that provisions regarding State agency oversight of the Ombudsman program would create complexities within their State agency's current organizational structure.

Response:

We appreciate these comments. Regarding concerns with oversight of the Ombudsman program, the updates included in the proposed rule did not differ significantly from current regulatory expectations. We have made a minor revision to proposed § 1321.7(c) for clarity. ACL will provide technical assistance to help State agencies understand and satisfy these requirements.

Comment:

We also received a recommendation that State agencies be allowed to enter into a contract or other arrangement to designate an individual as Legal Assistance Developer.

Response:

State agencies have the discretion to make human resources decisions about how to staff their agencies in order to fulfill their obligations under the Act.

§ 1321.9 State Agency Policies and Procedures

We retitle the provision contained in § 1321.11 of the existing regulation (

State agency policies

) to better reflect the intent of the provision and to redesignate it here as § 1321.9. We also incorporate provisions contained in § 1321.45 (

Transfer between congregate and home-delivered nutrition service allotments

), § 1321.47 (

Statewide non-Federal share requirements

), § 1321.49 (

State agency maintenance of effort

), § 1321.67 (

Service contributions

), and § 1321.73 (

Grant related income under Title III-C

) within this provision to consolidate and streamline applicable requirements.

Section 305 of the Act requires the designated State agencies to “[. . .] be primarily responsible for the planning, policy development, administration, coordination, priority setting, and evaluation of all State activities related to the objectives of this Act[.]”

Consistent with that obligation, this final rule requires State agencies to promulgate policies and procedures related to a range of topics that fall within the State agency's authority to oversee compliance with the State plan in § 1321.9(c)(1) (policies and procedures related to direct service provision) and § 1321.9(c)(2) (policies and procedures related to fiscal requirements). The policy development process includes the establishment of procedures, which set forth the steps to follow to implement policies. Accordingly, we have included minor revisions to clarify that the policy development and implementation process includes the establishment of procedures, as well as policies.

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

The language at § 1321.9(a) is intended to (1) reflect statutory updates (

i.e.,

the LTCOP regulation (45 CFR part 1324) which was promulgated in 2015); (2) clarify that the State agency's obligations to develop policies and procedures extend to elder abuse prevention and legal assistance development programs; (3) confirm the ability of the State agency to allow procedures to be developed at the AAA level, except where specifically prohibited; and (4) clarify the State agency's responsibility for monitoring the compliance of activities initiated under Title III with all applicable requirements to ensure that grant awards are used for the authorized purposes and in compliance with Federal law.

The Act contains many programmatic and fiscal requirements of which State agencies must be aware and for which State agencies must have established policies and procedures. For clarity and ease of reference, we combine the areas for which State agencies must have established policies and procedures in this provision. The first area relates to data collection and reporting. Section 307 of the Act requires the collection of data and periodic (at a minimum, once each fiscal year) submission of reports to ACL regarding State agency and AAA activities.

ACL has implemented a national reporting system and reporting requirements that must be used by all State agencies to ensure timely and consistent reporting. Section 1321.9(b) sets forth the State agency's responsibility to have policies and procedures to ensure that its data collection and reporting align with ACL's requirements.

42 U.S.C. 3027.

Section 1321.9(c)(1) describes policies and procedures that State agencies must establish to ensure that services provided under the Act meet the requirements of the Act and are provided equitably and in a consistent manner throughout the State, as appropriate.

In response to the RFI and the NPRM comment period, this section addresses comments from AAAs and service providers that requested State agencies provide transparency and clarity to AAAs and service providers about the policies and procedures that they must follow, including setting requirements for client eligibility, assessment, and person-centered planning; specifying a listing and definitions of services that may be provided; detailing any limitations on the frequency, amount, or type of service provided; defining greatest economic need and greatest social need, and specific actions the State agency will use or require to provide services to those identified populations; how AAAs can provide services directly; how voluntary contributions are to be collected; and the grievance process for older adults and family caregivers who are dissatisfied with or denied services under the Act. As indicated in § 1321.9(a), except for the Ombudsman program and where otherwise indicated, the State agency policies may allow for procedures to implement specific policies to be developed at the AAA level. ACL strongly encourages State agencies to make their OAA policies and procedures available to the public, either by posting them online or by providing a point of contact at the State agency to respond to requests for this information. Doing so may help ensure accountability to the public regarding the implementation of OAA programs and services.

42 U.S.C. 3025(a)(2); 42 U.S.C. 3012(a)(9).

Under section 306(a)(4)(A)(i)(I)(aa), AAAs are responsible for setting specific objectives, consistent with State agency policy, for provision of services to older individuals with greatest economic need and greatest social need.

Identifying such populations at the State level facilitates consistent messaging and outreach, collaboration with other State level organizations and interested parties, and development of specific plans for the State agency, AAAs, and service providers to implement, as intended by the Act. Definitions of these populations at the State level are intended to provide statewide direction, while maintaining the opportunity for additional definition of populations at greatest economic need and greatest social need specific to local circumstances as part of an area plan on aging as further set forth in § 1321.65. For example, a State agency might choose to define those at greatest economic need to include individuals or households with an income within a specific range (

e.g.,

up to 125 percent of the Federal poverty level (FPL)), and another State agency may include older

adults experiencing housing instability in their definition of greatest economic need. A State agency might also choose to define those at greatest social need to include people with low literacy, while another State agency may include grandparents raising grandchildren due to substance use disorder or loss of parents to COVID-19 in their definition of greatest social need. There are multiple circumstances where State level identification of needs may be further complemented at the AAA level, such as older adults experiencing economic need due to catastrophic flooding in a rural portion of a State, or a AAA including older refugees in the community in their definition of greatest social need.

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

The Act sets forth at section 307(a)(8)(A) that services will not be directly provided by a State agency or by a AAA, subject to certain conditions. AAAs must receive State agency approval to provide direct services. We clarify in this rule that the State agency must communicate how the area agencies may request approval to directly provide services.

This section also incorporates the requirement under section 307(a)(5)(B) of the Act that State agencies are required to issue guidelines applicable to grievance processes for any older adult or family caregiver who has a complaint about a service or has been denied a service.

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

Id.

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

Section 1321.9(c)(2) requires State agencies to establish policies and procedures related to the fiscal requirements associated with being awarded funding for the Nutrition Services Incentive Program (NSIP),

Title III,

and Title VII

under the Act. Over the years, we have found that some State agencies may be unaware of certain requirements or may not understand their obligations under these requirements. Section 1321.9(c)(2) provides guidance on the following fiscal requirements: distribution of Title III

and NSIP

funds; non-Federal share (match) requirements;

permitted transfers of service allotments;

maximum allocation amounts for State, Territory, and area plan administration;

minimum funding expenditures for access to services, in-home supportive services, and legal assistance;

State agency maintenance of effort obligations;

requirements related to Ombudsman program expenditures and fiscal management;

minimum expenditures for services for older adults who live in rural areas;

reallotment of funds;

voluntary contributions, including cost-sharing at the election of the State agency;

use of program income;

private pay programs;

commercial relationships;

buildings, alterations or renovations, maintenance, and equipment;

prohibition against supplantation;

monitoring of State plan assurances;

advance funding;

and fixed amount subawards.

We provide further context for these fiscal requirements in the following paragraphs.

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

42 U.S.C. 3023.

42 U.S.C. 3058a.

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

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

42 U.S.C. 3024(d), 3028(a)(1), 3029(b), 3030s-1(h)(2).

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

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

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

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

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

Id.

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

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

42 U.S.C. 3030c 2.

Id.

section 3030c-2(a)(5)(c).

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

42 U.S.C. 3026(a)(13)-(14).

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

42 U.S.C. 3026(a)(9)(B), 3030c-2(b)(4)(E), 3030d(d), 3030s-2, 3058d(a)(4).

42 U.S.C. 3025(a)(1)(A)-(C).

45 CFR 75.305.

Id.

section 75.353.

Comment:

Many commenters, including but not limited to State and area agencies, expressed support for this section generally. One commenter expressed support for the proposed rule, specifically § 1321.9(a) and (b). Other commenters expressed support for specific portions of § 1321.9, including one commenter noted that the prohibition against means testing is a strength of the Act, and another expressed support for the requirement in § 1321.9(c)(2)(i) that State agency policies and procedures must provide for the prompt disbursement of Title III funds and NSIP funds. Commenters also supported the clarification in § 1321.9(c)(2)(vi) that excess State match reported on the Federal financial report does not become part of the maintenance of effort unless the State agency certifies the excess. Commenters additionally supported the requirement to have policies clarifying that funds awarded under certain sections of the Act cannot supplant existing Federal, State, and local funds (§ 1321.9(c)(2)(xvi)) and the requirement to have policies which address monitoring for compliance with assurances (§ 1321.9(c)(2)(xvii)).

Response:

ACL appreciates the support for this provision, the purpose of which is to consolidate, and to make easier to locate, applicable requirements of the Act for which State agencies should have established policies and procedures.

Comment:

A commenter sought guidance as to whether § 1321.9 requires State agencies to monitor the performance of Ombudsman programs.

Response:

Regarding concerns with oversight of the Ombudsman program, the requirements in the final rule do not differ significantly from current regulatory expectations. ACL will provide technical assistance to help State agencies understand and sufficiently meet these requirements.

§ 1321.9(b)

Comment:

ACL received several comments requesting additional guidance and direction with respect to the collection of data (such as data on sexual orientation and gender identity, data regarding populations experiencing greatest economic need and greatest social need, and data stratification). Some commenters expressed concern as to additional data collection that may be required in connection with the expansion of the definitions of greatest economic need and greatest social need. Other commenters were concerned about potential costs associated with changes to data collection expectations. We also received various comments asking for improvements in ACL's data collection efforts, including specific data collection on sexual orientation and gender identity.

Response:

Section 307(a)(4) of the Act requires the collection of data and periodic submission of reports to ACL regarding State agency and AAA activities.

ACL has developed a system for these purposes and has implemented reporting requirements that must be used by all State agencies to ensure timely and consistent reporting, as well as the quality and accuracy of the data reported. These reporting requirements include, among other things, data that must be collected by all State agencies (at a minimum, once each fiscal year). Specific details on the reporting system and its related requirements are outside the scope of the final rule. ACL is available to provide technical assistance to State agencies regarding data collection and reporting.

42 U.S.C. 3027(a)(4).

Comment:

Some commenters suggested that certain requirements be added to the proposed rule related to abuse and neglect of older adults. One commenter noted that the Ombudsman program is required to serve all residents and does not prioritize clients

based on greatest social need or greatest economic need and requested the proposed rule be clarified to acknowledge this distinction.

Response:

ACL declines to add any requirements to part 1321 of the rule related to abuse and neglect of older adults. The Ombudsman program and programs for the prevention of elder abuse, neglect, and exploitation are established pursuant to Title VII of the Act.

ACL believes that Title VII of the Act and its accompanying regulation (45 CFR part 1324) adequately address requirements for these programs and that no additional clarification is needed in the final rule.

42 U.S.C. 3058

et seq.

Comment:

Some State agencies and AAAs expressed concern that the requirements in § 1321.9 regarding the promulgation of policies and procedures are too burdensome.

Response:

The Act contains many programmatic and fiscal requirements of which State agencies should be aware, and section 305 of the Act requires State agencies to develop policies for “[. . .] all State activities related to the objectives of this Act[.]”

Substantially all requirements included in this section are set forth in the Act; accordingly, State agencies should be aware of them and already should have policies and procedures in place. For clarity and ease of reference, we combined the areas for which State agencies should have established policies and procedures in this provision to assist State agencies in understanding their obligations under, and ensuring their compliance with, the Act. ACL understands that some State agencies' existing policies and procedures may not address all areas included in this section. To give State agencies ample time to establish or update their policies and procedures, ACL has deferred the compliance date of the rule to October 1, 2025.

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

Comment:

One commenter recommends that the term “policies and procedures” be defined to also include State administrative rules or contractual obligations.

Response:

ACL declines to define “policies and procedures” in order to provide flexibility to the State agencies and to allow them to take into account applicable State requirements and standard practices with respect to the development of policies and procedures, which can vary from one State to another.

§ 1321.9(c)(1) Direct Service Provision

Comment:

A commenter requested that the list in § 1321.9(c)(1) of topics related to direct services for State agencies be a suggested list, rather than a required list of topics to be covered.

Response:

ACL declines to revise the regulatory language as requested. The topics covered are the minimum, essential areas for which State agencies should have policies and procedures to administer direct services as contemplated by the Act. State agencies may elect to adopt additional policies and procedures with respect to the provision of direct services under the Act.

Comment:

With respect to § 1321.9(c)(1)(i), which requires State agencies to develop policies and procedures regarding requirements for client eligibility, periodic (at a minimum, once each fiscal year) assessment, and person-centered planning, one commenter suggested that ACL require AAAs to consider the full array of available long-term service and support options, inclusive of community-based long-term services and supports, such as Programs of All-Inclusive Care for the Elderly (PACE programs).

Response:

ACL appreciates the comment, but ACL declines to direct State agencies as to the specific requirements that State agencies must include in these policies and procedures. State agencies are in the best position to make such decisions based on conditions and need in their States, and ACL leaves these determinations to the State agencies.

Comment:

Section 1321.9(c)(1), requires State agencies to have policies and procedures regarding the definition of those with greatest economic need and those with greatest social need within their States. One commenter recommended that ACL provide more detailed guidance on strategies for reaching populations with the “greatest economic need.” The commenter also recommended that ACL provide guidance regarding methods for measuring their success in reaching such populations and requested additional guidance regarding the definition of “greatest economic need” to prevent “unintended consequences” and to ensure that vulnerable older adults receive essential services. Commenters also recommended that we impose additional limitations on State agency determinations related to the definitions of greatest social need and greatest economic need, including recommendations of other populations to include and how such determinations should be made and disclosed.

Response:

ACL retains the regulatory text in § 1321.9(c)(1) as proposed. ACL believes the definitions in § 1321.3 of greatest economic need and greatest social need, as well as the requirements in § 1321.27 regarding information required to be included in the State plan, adequately address these concerns.

Regarding the comments raised with respect to the definition of “greatest economic need,” the definition in the Act incorporates income and poverty status. The Act also permits State agencies to set policies, consistent with ACL's regulations, that incorporate other considerations into the definition of “greatest economic need,” and the discussion in § 1321.3 above includes additional guidance for State agencies regarding how to define “greatest economic need.”

Through its policies, the State agency may permit AAAs to further refine specific target populations of greatest economic need within their PSAs. A variety of local conditions and individual situations, other than income, could factor into an individual's level of economic need. State agencies and AAAs are in the best position to understand the conditions and factors in their State and local areas that contribute to individuals falling within this category. Accordingly, this definition allows State agencies and AAAs to further refine target populations of greatest economic need. To maximize the flexibility afforded to State agencies in making these determinations, ACL declines to provide more specific direction in the final rule. Any additional guidance that may be appropriate will be offered by ACL via technical assistance.

42 U.S.C. 3026(a)(4)(A)(i)(I)(aa); 42. U.S.C. 3025(a)(1).

§ 1321.9(c)(2)(i) Intrastate funding formula (IFF).

The Act sets forth requirements for distribution of Title III funds within the State in section 305(a)(2)(C)-(D).

The Act requires distribution to occur via an IFF (further defined in § 1321.49) or funds distribution plan (further defined in § 1321.51). The IFF is required for States with multiple PSAs, and a funds distribution plan is required for single PSA States. Through this provision, we also require that funds be promptly disbursed using the IFF or funds distribution plan and to allow fixed amount subawards up to the simplified acquisition threshold, as set forth in 45 CFR 75.353.

42 U.S.C. 3025(a)(2)(C)-(D).

Comment:

Some commenters requested definitions of the terms “promptly disbursed” “fixed amount subawards,” and “subaward” as used in this section. One commenter asked how

State agencies will be monitored for compliance.

Response:

The requirement that funds be promptly disbursed can be found in section 311(d)(4) of the Act, and ACL declines to provide a definition for this term.

State agencies should define this term in their policies and procedures. Such definitions should include a reasonable time frame and should take into account State fiscal policy (which can vary from one State to another). For a definition of “subaward” see 2 CFR 200.1 and 45 CFR 75.2, and for an explanation of “fixed amount subaward” see 2 CFR 200.333 and 45 CFR 75.353. State agencies should have systems in place to monitor their compliance with the requirements of the Act, which ACL will regularly review as part of State plan review, in addition to ACL's other fiscal and program monitoring activities.

42 U.S.C. 3030a.

In the course of reviewing § 1321.9(c)(2)(i) in response to comments received, ACL has determined that the language in this section should be clarified. Accordingly, ACL has revised the regulatory text of § 1321.9(c)(2)(i). In addition, ACL has moved the language regarding fixed amount subawards from this section to a new § 1321.9(c)(2)(xix) and has simplified the language used in this provision. For a definition of “simplified acquisition threshold” see 2 CFR 200.1 and 45 CFR 75.2. ACL will provide technical assistance, as needed, regarding § 1321.9(c)(2)(xix).

Comment:

ACL received several other suggestions, recommendations, and implementation questions regarding the IFF.

Response:

We intend to address any additional issues related to the IFF through technical assistance.

§ 1321.9(c)(2)(ii) Non-Federal Share (Match)

The provision contained in § 1321.47 (

Statewide non-Federal share requirements

) of the existing regulation is redesignated here as § 1321.9(c)(2)(ii) and revised. The Act includes requirements for non-Federal share (match) funds from State or local sources, as set forth in sections 301(d)(1),

304(c),

304(d)(1)(A),

304(d)(1)(D),

304(d)(2),

309(b),

316(b)(5),

and 373(h)(2).

We consolidate and streamline the requirements by listing the requirements and considerations that apply to such funds. We have received frequent technical assistance requests concerning the allowability of using funding for services that are means tested for match. We clarify that State or local public resources used to fund a program which uses a means test shall not be used to meet match requirements. We also clarify that a State agency or AAA may determine match in excess of required amounts, and we clarify match requirements that apply to service and administration costs for each type of grant award under Title III of the Act. We also provide prior written approval for unrecovered indirect costs to be used as match.

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

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

Id.

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

Id.

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

Id.

section 3023(d)(2).

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

42 U.S.C. 3030c-3(b)(5).

42 U.S.C. 3030s-1(h)(2).

Comment:

One commenter suggested that ACL encourage State agencies to allow the use of unrecovered facilities and administrative or indirect costs as match for administration.

Response:

ACL appreciates this comment and notes that the rule authorizes unrecovered indirect costs to be used as match (see § 1321.9(c)(2)(ii)(J)(

)). ACL encourages State agencies to consider this approach, subject to State agency policies and procedures. ACL will provide technical assistance, as requested.

Comment:

We received multiple comments supporting the use of means tested funds to count toward the required match. In addition, many commenters requested clarification on, or objected to, § 1321.9(c)(2)(ii)(C), which provides that “State or local public resources used to fund a program which uses a means test shall not be used to meet the match.”

Response:

The prohibition against using State or local public resources which use a means test to count toward match is due to the prohibition against means testing in the OAA under section 315(b)(3).

Match for the federal grant is the non-federal share of the total project costs that a grantee is required to contribute to achieve the purposes of the award and allowability of costs must conform to any limitations or exclusions set forth in the Federal award, 2 CFR 200.403(b) and 45 CFR 75.403(b). Therefore, match must meet the same requirements that apply to allowed costs under the Act, and the Act prohibits means testing. Accordingly, we maintain the regulatory language of § 1321.9(c)(2)(ii)(C) as proposed. ACL will further address this requirement through technical assistance, as needed.

42 U.S.C. 3030c-2(b)(3).

Comment:

A commenter asked for clarification regarding the difference between means testing and prioritizing services for individuals of “greatest economic need.”

Response:

Means testing is a criterion used to determine an individual's financial eligibility for a program. If an individual's resources exceed the determined limit for a program, the individual is ineligible for a program—that individual cannot participate in the program even if the program has sufficient resources to be able to serve them. On the other hand, the use of “greatest economic need” is a way to prioritize services for those who are most in need of the service; it does not deem those of lesser economic need to be ineligible for the program.

Comment:

Some commenters expressed concern that a State agency or AAA may determine a match in excess of amounts required under the Act.

Response:

The Act does not prohibit a State agency or AAA from requiring a match in excess of amounts required under the Act, and ACL leaves these decisions to State agencies and AAAs to determine in accordance with State agency and AAA policies and procedures. ACL encourages State agencies to make requirements clear in terms and conditions of subaward agreements.

Comment:

Some commenters requested that the match requirements be reduced.

Response:

The match requirements are set by the Act, and ACL has no authority to reduce them.

Comment:

Some commenters requested clarification regarding § 1321.9(c)(2)(ii)(I), which provides that other Federal funds may not be used as match for programs funded under Title III of the Act unless there is specific statutory authority.

Response:

The Act does not provide statutory authority for other Federal programs to meet match requirements. ACL will provide additional guidance through technical assistance, as needed.

§ 1321.9(c)(2)(iii) Transfers

The provision contained in § 1321.45 of the existing regulation (

Transfer between congregate and home-delivered nutrition service allotments

) is redesignated here as § 1321.9(c)(2)(iii) and revised. The Act allows for transfer of service allotments to provide some flexibility to meet State and local needs. ACL allocates Title III funding to State agencies by parts of the Act (for example, the supportive services allocation is designated as part B and the nutrition services allocation is designated as part C, and further by subpart (for example, part C-1 funding is for congregate meals and part C-2

funding is for home-delivered meals)). We list the requirements and considerations that apply if a State agency elects to make transfers between allotments, including the parts and subparts of Title III which are subject to transfer of allocations, the maximum percentage of an allocation which may be transferred between parts and subparts, and a confirmation that such limitations apply in aggregate to the State agency. For example, a State may find that older individuals have a need for transportation to congregate meal sites. A State agency is able to transfer, within allowed limits, allotments from the congregate meal nutrition grant award (part C-1) to the supportive services grant award (part B) to provide transportation to meet State and local service needs.

Comment:

ACL received several comments on this section, which addresses transfers between Title III, parts C-1 and C-2 and between Title III, parts B and C. The comments on this section were mixed. Some expressed support for the provision, while other commenters expressed that the transfer limitations are unnecessarily burdensome, and that AAAs should be able to make transfers as they see fit and without State agency approval.

Response:

ACL does not have the authority to modify this requirement. Section 308(b) of the Act does not allow the State agency to delegate authority to make a transfer to a AAA or any other entity.

However, section 308 of the Act requires the State agency, in consultation with AAAs, to ensure that the process used by the State agency in transferring funds between Title III, parts C-1 and C-2 and between Title III, parts B and C is simplified and clarified to reduce administrative barriers. We have also clarified that for transfers between parts C-1 and C-2, State agencies must direct limited resources to the greatest nutrition service needs at the community level. We have added these requirements to § 1321.9(c)(2)(iii). Given the volume of comments on this issue, ACL will further address these requirements through technical assistance, as needed.

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

§ 1321.9(c)(2)(iv) State, Territory, and Area Plan Administration

Section 308 of the Act sets limits on the amount of Title III funds which may be used for State, Territory, and area plan administration.

In this provision, we specify the requirements and considerations that apply, including flexibilities that some State agencies of single planning and service States may exercise and how the State agency may calculate the maximum amounts available for AAAs to use. We receive regular requests for technical assistance about the use of funds for plan administration. This provision is intended to provide clarity to State agencies. For example, State agencies may either receive five percent of their funding allocation or $750,000 ($100,000 for certain Territories) of their total Title III allocation as set forth in the Act to complete the State plan administration activities required by the Act. Plan administration activities include planning, coordination, and oversight of direct services provided with the remainder of the Title III allocation. The State, Territory, and area plan administration allocation amounts may be taken from any same fiscal year Title III award allocation at any time during the grant period and may be allocated to any part of the same fiscal year Title III grant allocation, with the statutory exception of allocation of area plan administration to part D (which provides funding for evidence-based disease prevention and health promotion programs). In States with multiple PSAs, we clarify section 304(d)(1)(A) of the Act and better streamline implementation of maximum allocation amounts.

We specify that the maximum amount the State agency may make available for area plan administration is ten percent of the total amount of funding allocated to AAAs. This funding may be made available to AAAs in accordance with the IFF for the purpose of area plan administration, which we further address in § 1321.57(b).

Id.

section 3028.

42 U.S.C. 3024(d)(1)(A).

Comment:

We received comment asking ACL to limit the amount of area plan administration funds that may be spent on the development of private pay or other contracts and commercial relationships.

Response:

Funds for area plan administration are limited to ten percent of the total funding allocated to AAAs. AAAs must complete the area plan activities required under the Act and as set forth by State agency policies and procedures; development of private pay programs or other contracts and commercial relationships is allowable, but not required. Given the levels of funding for Title III programs under the Act and the responsibility for State agencies to set policies and procedures, ACL does not believe further limitation is needed.

Comment:

One commenter expressed that too much OAA funding is allocable to State and area plan administration and requested that the administration of OAA programs be streamlined, while another expressed that amounts available for area plan administration should be increased, noting that area plan administration costs exceed the maximum that can be made available under the Act.

Response:

The maximum amounts for State and area plan administration are specified in the Act, and ACL does not have the authority to modify such amounts. Accordingly, ACL maintains the regulatory language for this provision as proposed.

§ 1321.9(c)(2)(v) Minimum Adequate Proportion

The Act sets forth requirements that the State plan must identify a minimum proportion of funds that will be spent on access services, in-home supportive services, and legal assistance. Our final rule requires the State agency to have policies and procedures to implement these requirements.

Comment:

A commenter expressed concern about the impact of § 1321.9(c)(2)(v) in States that may lack continuity of leadership in their State agencies. The commenter also expressed concern that minimum expenditure requirements set by State agencies could impact the area agency and service provider network, given limited availability of OAA funds. Another commenter expressed concern that decisions on minimum adequate proportion amounts that will be expended on access services, in-home supportive services, and legal assistance will take away from current service levels in other areas without more funding being made available.

Response:

ACL appreciates these concerns but declines to make any modifications to this section. Section 307(a)(2)(C) of the Act requires each State plan to specify a minimum proportion of Title III, part B funds that will be used by area agencies to provide access services, in-home supportive services, and legal assistance.

Accordingly, ACL does not have the authority to modify this requirement. Finally, the minimum expenditure requirements in this section are not new requirements; State and area agencies are already subject to these requirements.

42 U.S.C. 3027(a)(2)(C).

Comment:

A commenter suggested that ACL modify § 1321.9(c)(2)(v) to require each State plan to specify a minimum proportion of funds that will be used by area agencies to provide caregiver support services, in addition

to access services, in-home supportive services, and legal assistance.

Response:

ACL declines to make the requested change. The Act does not require that Title III, part B funds be used to provide caregiver support services, and ACL declines to impose such a requirement on State agencies. Title III, part E funds are specified to provide family caregiver support services. ACL leaves the decision to the State agencies as to whether to use Title III, part B funds for caregiver services in accordance with the Act, in order to afford flexibility to the State agencies as to how to allocate Title III, part B funding.

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

The provision contained in § 1321.49 (

State agency maintenance of effort

) of the existing regulation is redesignated here as § 1321.9(c)(2)(vi) and revised. The final rule requires State agencies to develop fiscal policies and procedures related to requirements under the Act, corresponding to sections 309(c)

and 374.

These requirements include expending specific minimum maintenance of effort amounts, which are calculated as required by the Act. In response to technical assistance requests, we also clarify that excess amounts reported in other reports, such as the Federal financial report (SF-425), do not become part of the amounts used in calculating the minimum required maintenance of effort expenditures, unless the State agency specifically certifies the excess amounts for such purpose.

42 U.S.C. 3029.

42 U.S.C. 3030s-2.

Comment:

Two commenters recommended that § 1321.9(c)(2)(vi) be amended to allow for one-time appropriations of State funding to be excluded from the Act's maintenance of effort requirement for Title III.

Response:

ACL understands these concerns. ACL is unable to accommodate this suggestion, however, as this requirement is based on the language in section 309(c) of the Act, which provides that “[a] State's allotment under section 304 [of the Act] for a fiscal year shall be reduced by the percentage (if any) by which its expenditures for such year from State sources under its State plan approved under section 307 [of the Act] are less than its average annual expenditures from such sources for the period of 3 fiscal years preceding such year.”

42 U.S.C. 3029.

Comment:

A commenter recommended that § 1321.9(c)(2)(vi)(C) be removed. This paragraph provides that any amount of State resources included in the Title III maintenance of effort certification that exceeds the minimum amount required becomes part of the permanent maintenance of effort. The commenter expressed that this requirement may disincentivize States from providing more than the minimum amount of funds.

Response:

ACL appreciates the comment but declines to remove this paragraph, in order to provide maximum flexibility to the State agencies. Contrary to the commenter's note, a State agency may have reason to employ this provision to increase the required maintenance of effort. In addition, as set forth in § 1321.9(c)(2)(vi)(D), excess State match reported on the Federal financial report does not become part of the maintenance of effort unless the State agency certifies the excess.

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

This final rule requires State agencies to develop fiscal policies and procedures related to requirements under the Act, corresponding to section 307(a)(9).

These requirements include that the State agency will expend no less than the minimum amounts that are required to be expended by section 307(a)(9) of the Act. We also clarify that the State agency must provide the Ombudsman with information to complete Ombudsman program requirements and that the fiscal activities relating to the operation of the Office comply with the requirements set forth in § 1324.13(f).

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

Comment:

Two commenters expressed support for this provision. Currently, the Act sets the required minimum expenditure amount at the amount expended by the State agency during fiscal year 2019 for the Ombudsman program under Titles III and VII of the Act,

and subsection (A) of § 1321.9(c)(2)(vii), which addresses the minimum expenditure amount, likewise refers specifically to fiscal year 2019. Several commenters recommended not including a specific fiscal year in § 1321.9(c)(2)(vii)(A), as such fiscal year may be modified as a result of future reauthorizations of the Act and recommends instead using language in § 1321.9(c)(2)(vii)(A) that avoids mentioning a specific fiscal year.

Id.

Response:

ACL appreciates the support expressed for § 1321.9(c)(2)(vii). We agree with the suggestion to remove the reference to fiscal year 2019 and have revised subsection (A) accordingly.

Comment:

A commenter expressed concern that the language in § 1321.9(c)(2)(vii)(A), which sets forth the minimum amount State agencies must expend for the Ombudsman program, is unclear.

Response:

ACL will address any questions regarding minimum expenditures for the Ombudsman program through technical assistance, as needed.

§ 1321.9(c)(2)(viii)—Rural Minimum Expenditures

The final rule requires State agencies to develop fiscal policies and procedures related to requirements under the Act, corresponding to section 307(a)(3)(B).

These requirements include that the State agency must: expend not less than the amount expended in accordance with the level set in the Act for services for older individuals residing in rural areas, project the cost of providing such services, and specify a plan for meeting the needs for such services. To implement these requirements, we set forth that the State agency establish a process and control for determining how rural areas within the State shall be defined.

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

Comment:

A few commenters expressed support for § 1321.9(c)(2)(viii). Many commenters sought more clarity about the requirements in § 1321.9(c)(viii). One commenter shared the concern that State agencies will lack the necessary information to project the cost of providing services to rural areas.

Response:

ACL appreciates the support of this provision. ACL appreciates these comments but declines to provide further direction in this final rule to State agencies as to how to comply with these requirements (which can be found in section 307(a)(3)(B) of the Act).

State agencies are best positioned to make these determinations.

Id.

The term “rural” appears many times in the Act with respect to the delivery and prioritization of services. In addition, State agencies may use the IFF to direct Title III funding to rural areas. There is no one universally accepted or mandated definition of what constitutes a “rural area.” Over the years, State agencies have determined what areas in their States are rural, and the factors that State agencies have used to make this determination can vary. In recognition of this variation in how State agencies determine what areas in their State are rural, the Act does not

mandate a definition of rural areas, and ACL declines to limit the flexibility afforded to the State agencies by the Act.

Likewise, State agencies are better positioned than ACL to project the cost of providing services and to develop a plan for meeting the needs for services in the rural areas of their respective States. We note that State agencies provide these projections in their current State plans on aging, as this is an existing requirement. For clarity, we have revised the final rule to specify that the minimum amount as set forth in the Act must be maintained. ACL will provide technical assistance with respect to this requirement, as needed.

Comment:

Two commenters raised questions about the relationship between the requirement in § 1321.9(c)(2)(viii) that State agencies develop a process for determining how “rural areas” are defined and the Older Americans Act Performance System (OAAPS) definition of “rural” for reporting purposes. Another commenter raised a concern that this requirement conflicts with the OAAPS definition of “rural.”

Response:

ACL appreciates these questions and concerns and acknowledges the potential for confusion due to the requirement of § 1321.9(c)(2)(viii) related to defining “rural areas” and the separate requirement to submit annual performance report data on “rural” program participants. OAAPS is the reporting tool that State agencies and, in some cases area agencies, use to submit their annual performance report data on program participants, services, and expenditures related to the Act. OAAPS uses rural-urban commuting area (RUCA) codes defined at the ZIP code level to determine whether an individual program participant resides in a rural or non-rural area.

With respect to those clients for whom demographic data must be reported into OAAPS, all State agencies must use this definition and tool to report on “rural” program participants. State agencies are not required to use this definition of “rural” for any other purpose.

Specifically, OAAPS uses Categorization C of the Rural-Urban Commuting Area (RUCA) codes to determine geographic distribution between rural and non-rural.

See

The Rural Health Research Ctr.,

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

(last visited Oct. 25, 2023). For additional information and background on the zip code-based RUCA,

see also Rural-Urban Commuting Area,

The U.S. Dep't. of Agric., Econ. Research Serv.,

https://www.ers.usda.gov/data-products/rural-urban-commuting-area-codes/documentation/

(last visited Oct. 25, 2023).

Section 1321.9(c)(2)(viii) of the final rule, by contrast, relates to the State agency's projections, plans, and expenditures pertaining to its implementation and administration of programs and services under the Act. The definition of “rural areas” referred to in this section may be separate and distinct from the definition of “rural areas” that is required to be used for annual program reporting on individual program participants.

Comment:

A commenter expressed concern that the language of § 1321.9(c)(2)(viii)(B), which requires State agencies to expend annually on services for older individuals residing in rural areas no less than the amount expended for such services as set forth in the Act, may cause State agencies to believe they are not allowed to spend on such services more than the required minimum expenditure.

Response:

ACL appreciates this comment but disagrees with this interpretation of the section (the language of which is the same as that found in section 307(a)(3)(B) of the Act).

The language provides the minimum amount that State agencies must spend; it does not impose a maximum amount that State agencies may spend on services for older adults residing in rural areas.

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

Comment:

With respect to the requirement in § 1321.9(c)(2)(viii)(B) that State agencies expend annually on services for older individuals residing in rural areas no less than the amount expended for such services as set forth in the Act, a commenter proposed that State agencies be required to demonstrate how their IFFs meet the needs of older adults with greatest social need and with greatest economic need, in lieu of a policy of requiring minimum expenditure levels for one category of older adults (

i.e.,

older adults residing in rural areas).

Response:

There is a requirement that State agencies expend annually on services for older individuals residing in rural areas no less than the amount as set forth in section 307(a)(3)(B) of the Act.

This provision is included to further implementation of this statutory requirement. ACL requires State agencies to include in the IFF a descriptive statement and application of the State agency's definitions of greatest economic need and greatest social need (see § 1321.49); we believe this requirement addresses the concern.

Id.

Comment:

A few commenters expressed concern as to how State agencies will be able to comply with the rural minimum expenditure amount requirement set forth in § 1321.9(c)(2)(viii)(B) when the rule allows for various definitions among the State agencies. Another commenter recommends that ACL add clarifying language requiring State agencies to address their application of the rural minimum expenditure requirement, including how this requirement relates to each State agency's IFF.

Response:

ACL appreciates the above comments related to rural minimum expenditure requirements set forth § 1321.9(c)(2)(viii)(B) but maintains the regulatory language as proposed. Regarding potential varying definitions of what constitutes rural areas, each State agency only compares what it will spend for each fiscal year against what was spent in that State as set forth in the Act. The definitions applied in other States will be irrelevant to this calculation. In addition, § 1321.9 (c)(2)(viii)(A) requires the State agency to establish a process and control for determining the definition of rural areas within their State in part so that the State agency will be able to comply with the rural minimum expenditure requirement.

Regarding the recommendation that State agencies be required to address their application of the rural minimum expenditure requirement, section 307(a)(3) of the Act requires State agencies to provide assurances in their State plans with respect to their compliance with the rural minimum expenditure.

ACL declines to impose additional requirements.

Id.

section 3027(a)(3).

Comment:

Two commenters noted that without additional funding, the requirements of § 1321.9(c)(2)(viii) may result in decreased services to metropolitan areas with a higher proportion of older adults.

Response:

The commenters' concerns relate to the distribution of Title III funds throughout the State, which is addressed elsewhere in the rule. Section 305(a)(2)(C) through (D) of the Act

requires distribution of Title III funds to occur via an IFF (further defined in § 1321.49) or funds distribution plan (further defined in § 1321.51). The IFF is required for States with multiple PSAs, and a funds distribution plan is required for single PSA States. Sections 1321.49 and 1321.51 require State agencies to develop the IFF or funds distribution plan, through a process that allows for input from area agencies, interested parties, and the public; the concerns raised by the commenters can be addressed during this public input process.

42 U.S.C. 3025(a)(2)(C-D).

Comment:

A commenter expressed concern that the OAAPS definition of rural is an inaccurate reflection of rural areas and could negatively impact area agencies. Another commenter expressed concerns as to U.S. Census data used in the OAAPS definition of rural.

Supra

note 93.

Response:

States are not required to use the OAAPS definition of rural in their IFFs; accordingly, the commenter's concern that the OAAPS definition could negatively impact area agencies is misplaced. The comments regarding the inaccuracy of, and the data used in, the OAAPS definition of rural are outside of the scope of the rule, which does not address the OAAPS reporting system. ACL is available to provide technical assistance regarding defining and serving rural areas.

§ 1321.9(c)(2)(ix) Reallotment

Our final rule requires State agencies to develop fiscal policies and procedures related to a State agency's voluntary release of funds (reallotment), corresponding with sections 304(b)

and 703(b)

100

of the Act. These policies and procedures include that the State agency must communicate annually to ACL if the State agency has funding that will not be expended in the grant period to be voluntarily reallotted to the Assistant Secretary for Aging that will then be redistributed to other State agencies who identify as being able to utilize funds within the grant period. Additionally, the State agency should communicate annually to ACL whether they are able to receive and expend within the grant period any reallotted funds that may become available from the Assistant Secretary for Aging. We also clarify that the State agency must distribute any such reallotted funds it receives in accordance with the IFF or funds distribution plan, as set forth in § 1321.49 or § 1321.51.

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

100

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

§ 1321.9(c)(2)(x) Voluntary Contributions; § 1321.9(c)(2)(xi) Cost Sharing

The provision contained in § 1321.67 of the existing regulation (

Service contributions

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

Voluntary contributions

) and revised, and we add § 1321.9(c)(2)(xi) (

Cost sharing

) to delineate between the two types of consumer contributions. Section 315 of the Act allows for consumer contributions which may take the form of (1) an individual voluntarily contributing toward the cost of a service (a voluntary contribution)

101

and (2) the State agency establishing a cost sharing policy, creating a structured system for collecting sliding scale payments from some service participants for some services (cost sharing).

102

For many decades, State and area agencies and service providers have collected voluntary contributions from participants receiving services under the Act. Such voluntary contributions allow service participants to demonstrate their support of these services and for expansion of services to others in the community. For example, in FY 2021 State agencies reported nearly $166 million in program income for Title III-funded services to ACL, a significant amount we estimate was in the form of voluntary contributions.

101

42 U.S.C. 3030c-2(b).

102

Id.

section 3030c-2(a).

Cost sharing provisions were added in the 2000 amendments to the OAA (Pub. L. 106-501). Because the Act includes many restrictions regarding cost sharing, in practice ACL has seen cost sharing implemented for a few limited services such as transportation and respite. For example, a State agency may wish to pursue cost sharing under the Act as a way of more consistently soliciting contributions or for administrative simplicity to align with services provided under other funding sources that use a cost sharing model. Many State agencies choose not to pursue cost sharing as they find no benefit in comparison to the traditional model of collecting voluntary contributions.

We discuss these two provisions together because ACL has received many questions about how voluntary contributions and cost sharing compare. We discuss voluntary contributions first because, as explained above, State agencies have a long history of requesting voluntary contributions and are less likely to pursue cost sharing arrangements.

We specify in § 1321.9(c)(2)(x) that the Act states that voluntary contributions are allowed and may be solicited for all services, as long as the method of solicitation is non-coercive.

103

In contrast, we also list the services for which the Act prohibits cost sharing, which include information and assistance, outreach, benefits counseling, and case management services; long-term care ombudsman, elder abuse prevention, legal assistance, and other consumer protection services; congregate or home-delivered meals; and any services delivered through Tribal organizations.

104

103

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

104

Id.

section 3030c-2(a)(2).

In § 1321.9(c)(2)(xi) we list applicable requirements to include how suggested contribution levels for cost sharing are established, which individuals are encouraged to contribute, the manner of solicitation of contributions, a prohibition on means testing, provisions that apply to all service recipients, a prohibition on denial of services, procedures that are to be established, that amounts collected are considered to be program income, and further provisions that apply to cost sharing. Both § 1321.9(c)(2)(x) and § 1321.9(c)(2)(xi) are intended to clarify that services may not be denied, even when a State agency has a cost sharing policy and or a voluntary contribution policy, if someone cannot or chooses not to contribute or to pay a suggested cost sharing amount. In other words, any State agency cost sharing and consumer contribution policies must not be required for OAA program participants, and State agencies must ensure that program participants are aware that they are not required to contribute, and services will not be impacted if they choose not to contribute. We also clarify that State agencies, AAAs, and service providers are prohibited from using means testing to determine eligibility for or to deny services to older people and family caregivers, as set forth in section 315(a)(5)(E)

105

and (b)(3),

106

and we confirm that both voluntary contribution and cost sharing solicitation amounts are to be based on the actual cost of services.

105

Id.

section 3030c-2(a)(5)(E).

106

Id.

section 3030c-2(b)(3).

In specifying differences between voluntary contributions and cost sharing, voluntary contributions are encouraged for individuals whose self-declared income is at or above 185 percent of the FPL, while the Act further restricts the implementation of cost sharing and does not allow it to be imposed on service participants who are at or below the FPL or are otherwise low-income as specified by the State agency. Cost sharing is also prohibited for services delivered through Tribal organizations.

Additionally, if a State agency chooses to establish a cost sharing policy, it must be implemented statewide at all AAAs in the State, with limited exceptions, where a State agency approves a waiver request from a AAA where the AAA demonstrates that a significant proportion of persons receiving services under the Act have incomes below a certain threshold or that applying the cost sharing policy would place an unreasonable burden

upon the AAA, as set forth in section 315(a)(6).

107

Id.

section 3030c-2(a)(6).

§ 1321.9(c)(2)(x) Voluntary Contributions

Comment:

A few commenters expressed support for § 1321.9(c)(2)(x) and § 1321.9(c)(2)(xi), which detail requirements related to voluntary contributions and cost sharing, respectively, and expressed appreciation for the distinctions made between the two concepts.

Response:

ACL appreciates the support for these provisions.

Comment:

A few commenters recommended removal of the requirement in § 1329.9(c)(2)(x)(B) that voluntary contributions be encouraged for individuals whose self-declared income is at or above 185 percent of the FPL. One commenter requested clarity as to whether this requirement applies to both registered and non-registered services, as defined in OAAPS.

108

The commenter also suggested that an exception be added to this provision for non-registered services under OAAPS where self-reported income is not collected as part of service delivery. Another commenter recommended that the voluntary donation policy be eliminated for Title III, part C meal programs and replaced with an income-based charge for meals.

108

Registered services are certain services for which demographic and other information are collected from each client and reported into OAAPS (such as home-delivered meals), while non-registered services are those for which no client demographic information is required to be reported in OAAPS (such as public information sessions).

Response:

ACL appreciates these comments but does not have the authority to modify this requirement because it is mandated by section 315 of the Older Americans Act.

109

However, § 1329.9(c)(2)(x)(B) does not require an agency to obtain the income levels of all clients to determine whether the clients should be encouraged to voluntarily donate; rather, the provision merely requires that voluntary contributions be encouraged for individuals whose self-declared income is at or above 185 percent of the FPL.

109

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

Comment:

ACL received a few comments objecting to allowing Ombudsman programs to seek voluntary contributions, noting a concern that it could be a barrier to residents accessing ombudsman services.

Response:

The language of the rule is permissive, and we defer to Ombudsman programs to make determinations about voluntary contributions. We decline to make further revisions to this provision.

§ 1321.9(c)(2)(xi) Cost Sharing

Comment:

ACL received many comments regarding this section. There was disagreement among the commenters about this section. Some commenters expressed that the section helped to clarify the requirements of the Act. Most commenters, however, had issues with the concept of cost sharing as set forth in the provision (some felt the concept should be eliminated) or had issues with the process as set forth in the provision (many felt decisions as to cost sharing should be made at the area agency level).

Response:

ACL appreciates these comments but declines to make the commenters' requested changes to this section. The requirements in § 1329.9(c)(2)(xi) is mandated by section 315 of the Act.

110

Id.

section 3030c-2.

Comment:

Some commenters expressed confusion regarding the distinctions between voluntary contributions and cost sharing, and one commenter's understanding was that cost sharing is not voluntary.

Response:

For many decades, State and area agencies and service providers have collected voluntary contributions from participants receiving services under the Act. Cost-sharing provisions were added in the 2000 amendments to the Act (Pub. L. 106-501). Because the Act includes many restrictions and requirements regarding cost sharing, in practice ACL has only seen cost sharing implemented for a few limited services, such as transportation and respite. Many State agencies choose not to pursue cost sharing as they find limited or no benefit in comparison to the traditional model of collecting voluntary contributions. We clarify in § 1321.9(c)(2)(x) that voluntary contributions are allowed and may be solicited for all services, as long as the method of solicitation is noncoercive. In contrast, we also list the services for which the Act prohibits cost sharing.

In § 1321.9(c)(2)(xi) we list applicable requirements to include how suggested contribution levels for cost sharing are established, which individuals are encouraged to contribute, the manner of solicitation of contributions, a prohibition on means testing, provisions that apply to all service recipients, a prohibition on denial of services, procedures that are to be established, that amounts collected are considered to be program income, and further provisions that apply to cost sharing. Both § 1321.9(c)(2)(x) and (xi) are intended to clarify that services may not be denied, even when a State agency has a cost-sharing policy and a voluntary contribution policy, if someone cannot or chooses not to contribute or to pay a suggested cost-sharing amount. In other words, all State agency cost sharing and consumer contribution policies must be voluntary for OAA program participants, and State agencies must ensure that program participants are aware that they are not required to contribute.

ACL will offer technical assistance to any State agencies that request assistance in implementing voluntary contributions and cost sharing.

Comment:

One commenter expressed concern regarding the applicability of cost sharing to Tribal organizations and requested that Tribal organizations be allowed to request a waiver from such requirements.

Response:

ACL appreciates the comment but believes the commenter's concerns are adequately addressed in the rule. Section 315(a) of the Act

111

and § 1321.9(c)(2)(xi)(D)(

)(

) expressly prohibit cost sharing for any services delivered through Tribal organizations.

111

Id.

section 3030c-2(a).

Comment:

One commenter requested that AAAs be allowed to implement cost sharing for Title III, part C nutrition programs (congregate and home-delivered meals). The commenter also expressed concern that some clients with the financial means to voluntarily contribute to the cost of the meals do not do so, which can impact a AAA's ability to provide services to those at greatest social need and greatest economic need.

Response:

Section 315(a) of the Act

112

expressly prohibits cost sharing for congregate and home-delivered meals. Even if cost sharing were permitted for these services, an area agency would not be permitted to deny the service to any client who is unwilling to contribute, as discussed above. Section 1321.9(c)(2)(x) requires that voluntary contributions be encouraged for clients whose self-reported income is at or above 185 percent of the FPL. In addition, serving clients with the “greatest social need” could include clients of considerable financial means.

112

Id.

§ 1321.9(c)(2)(xii) Use of Program Income

The provision contained in § 1321.73 of the existing regulation (

Grant related income under Title III-C

) is redesignated here as § 1321.9(c)(2)(xii) and revised. We clarify the fiscal requirements that apply to program income, which include voluntary contributions and cost-sharing

payments. For example, we clarify that State agencies are required to report contributions as program income and set forth restrictions on the use of program income.

Comment:

ACL received comments requesting clarification of the requirement in § 1321.9(c)(2)(xii)(B) that “[p]rogram income collected must be used to expand the service category by part of Title III of the Act, as defined in § 1321.71, for which the income was originally collected;” as well as requesting that § 1321.9(c)(2)(xii) be modified to permit area agencies the flexibility to allow program income to be used to expand any Title III service.

Response:

Section 315 of the Act

113

does not authorize ACL to permit area agencies to use program income collected under one part of Title III to expand a service provided under another part of Title III.

113

Id.

section 3030c-2.

In addition, in the course of reviewing these comments, ACL has determined that contributions must be used to expand a service funded under the Title III grant award pursuant to which the income originally was collected, and that the language of this section was in need of revision. Accordingly, § 1321.9(c)(2)(xii)(B) has been revised to state that program income collected must be used to expand a service funded under the Title III grant award pursuant to which the income was originally collected.

Thus, a contribution for transportation (a supportive service under Title III, part B) can only be reported as income and used to expand Title III, part B supportive services such as transportation or multipurpose senior centers. Similarly, if someone pays a portion of the cost of a Title III, part B transportation service under a cost-sharing arrangement, that portion must be reported as income to the Title III, part B supportive services program. In addition, because Title III, part C-1 funding for congregate meals and Title III, part C-2 funding for home-delivered meals are issued under separate grant awards, contributions for services under these two awards cannot be commingled. A contribution for the nutrition service of home-delivered meals must be reported as income to the home-delivered nutrition program and used to expand home-delivered nutrition services, such as home-delivered meals, or nutrition education for home-delivered meals clients; it cannot be used to expand congregate meals services.

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

AAAs and service providers may, in addition to programs supported by funding received under the Act, offer separate private pay programs for which individual consumers agree to pay to receive services. These private pay programs may offer similar or the same services as those funded under Title III. We add paragraph (c)(2)(xiii) to this provision to provide guidance as to policies and procedures that should be in place to ensure that private pay programs offered by AAAs and service providers do not compromise core responsibilities under the Act. One such core responsibility, for example, is to ensure that individuals who receive information about private pay programs and who are eligible for services provided with Title III funds also are made aware of Title III-funded services and waitlist opportunities for those services.

§ 1321.9(c)(2)(xiv) Contracts and Commercial Relationships

AAAs and service providers may receive and administer funding from multiple sources as they seek to provide comprehensive services to older adults. In doing so, they may enter into contracts and commercial relationships with various entities to accomplish the delivery of comprehensive services, as authorized in sections 212

114

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

115

114

42 U.S.C. 3020c.

115

42 U.S.C. 3026(a)(13)-(14).

The Act has always contemplated an aging network that plans, coordinates, and facilitates comprehensive and coordinated systems for supportive, nutrition, and other services, leveraging resources beyond what the OAA alone can support. The aging network has growing opportunities to braid different sources of government with private funding to serve older adults in need, which has been accomplished through contracts and commercial relationships with organizations such as Medicaid managed care plans and health systems, among others. Congress further strengthened this flexibility in the 2020 reauthorization of the OAA.

116

42 U.S.C. 3027(a)(26) (2018) as amended by Public Law 116-131 (2020).

In response to numerous questions about the appropriate roles, responsibilities, and oversight of such activities, feedback received in response to the RFI and the NPRM, and based on our observations of program activities, this final rule clarifies the policies and procedures that State agencies must establish related to all contracts and commercial relationships in subsection § 1321.9(c)(2)(xiv). We intend this rule to respond to numerous concerns from AAAs regarding inconsistent State agency approaches to contracts and commercial relationships, as well as concerns from State agencies about the level of risk and associated oversight required. We encourage a review and approval process that complies with the statutory requirements found in section 212

117

and throughout Title III but is not onerous, can be implemented easily, and does not cause undue delay. We anticipate providing technical assistance in this area to State agencies and AAAs.

117

42 U.S.C. 3020c.

As a component of these policies and procedures, and consistent with their authority under sections 305(a)(1)(C),

118

306(a),

119

306(b),

120

and 212(b)(1),

121

State agencies must establish processes for AAAs to receive prior approval for contracts and commercial relationships permitted under section 212 of the Act.

122

We expect such processes to be flexible and streamlined. This provision will help ensure that the activities of recipients and subrecipients of funding further the intended benefits of the Act and do not compromise core responsibilities or the statutory mission of State agencies, AAAs, and service providers. Through these requirements, we intend to promote and expand the ability of the aging network to engage in business activities.

118

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

119

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

120

Id.

section 3026(b).

121

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

122

Id.

section 3020c.

Comment:

Several commenters recommended that we define “commercial relationships.” Commenters also sought clarity as to whether this provision applies to contracts or commercial relationships to provide services to non-profit entities in addition to “profitmaking” entities (under section 212 of the Act).

123

We have received several questions through public comments and requests for technical assistance seeking to understand when a business arrangement is or is not a “commercial relationship.”

123

Id.

Response:

Typically, an organization seeking clarity on this issue either wants to or is already engaged in a business arrangement and is trying to understand whether certain OAA requirements apply to that arrangement. Our intent is to broadly define “commercial relationships.” Whether they are contracts, “business arrangements,” “agreements,” “business transactions,”

or any other term that an organization might use to describe the activity, it is broadly encompassed within the statutory term “contracts or commercial relationships.”

The Act only uses the phrase “commercial relationship” in tandem with “contracts” or “contractual.”

124

We have sought to consistently adopt the phrase “contracts and commercial relationships” throughout the NPRM and in this final rule. When we are not referring to all “contracts and commercial relationships,” we explain which subset is relevant. For example, the phrase “contracts and commercial relationships that fall under section 212 of the Act” would refer to the agreements described in section 212 of the Act.

125

It is not relevant to distinguish between a “contract” and a “commercial relationship” under section 212; the same requirements apply, regardless of how an organization defines the agreement.

124

42 U.S.C. 3026; 42 U.S.C. 3027; 42 U.S.C. 3012.

125

42 U.S.C. 3020c.

We appreciate comments seeking a clearer definition of “private pay” in the final rule. We have revised the definitions of “area plan administration,” “private pay programs” and “program development and coordination activities” to use “contracts and commercial relationships,” consistent with our use throughout the rest of the rule.

We also decline to provide a regulatory definition of “profitmaking” as used in section 212 of the Act, which lays out the circumstances under which a recipient may enter “[. . .] an agreement with a profitmaking organization for the recipient to provide services to individuals or entities not otherwise receiving services under this Act[.]”

126

We interpret “profitmaking” as referring to entities that are not non-profits. However, because section 212 establishes a framework for understanding how and when these arrangements are consistent with the intent of the Act, we think it is reasonable for a State agency to apply the same opportunities and obligations in the context of agreements with non-profit entities. In other words, if an agreement would be permitted under section 212 with a for-profit entity, a State agency could determine that a similar agreement with a non-profit entity is permissible so long as the other requirements of section 212 are met. We encourage State agencies to take this approach or otherwise explain why they decline to do so in their policies and procedures.

126

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

Comment:

We received a significant number of comments related to contracts and commercial relationships, generally focusing on approval requirements for agreements that fall under section 212 of the Act.

127

Many commenters raised concerns about the appropriate degree of State oversight and the role of the State agency. Commenters had concerns about how time-consuming State agency approval processes can be, both out of concern for the burden and potential cost to State agencies and because of the potential delay in executing contracts and commercial relationships and subsequent impact on potential partnerships. Several commenters were concerned that this provision could deter OAA grantees from innovating and forming relationships with health and social sector commercial entities.

127

Id.

section 3020c.

All commenters that raised this issue agreed that oversight of contracts and commercial relationships should be streamlined and not overly burdensome. Several commenters described the proposed policies and procedures as an expansion of State agency control and were concerned that “excessive approval requirements” would usurp local decision-making. Other commenters suggested that ACL limit the State agency approval process to a generic review of AAA activity, and that State agencies should not be authorized to review and approve of specific contracts or contract details. Commenters recommended relying solely on assurances in AAA contracts that reflect adherence to all key principles within the OAA as a maximum degree of State oversight. One commenter suggested that State agency approval should be limited to approval of standard language for AAAs to incorporate into agreements with third-party entities, as appropriate.

Many comments related to the State approval process under section 212 of the Act,

128

including requests for more clarity about how comprehensive the process should be. One commenter recommended incorporating more specific information about the nature of State agency “approval” into the regulation and establishing a right of appeal if a State agency opts not to approve of a contract or commercial relationship. Several commenters noted that State agencies are not a party to the contract they are responsi

This text is long and has been trimmed here. Open the source document for the complete record.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.