Grants for State and Community Programs on Aging; Grants for Vulnerable Elder Rights Protection Activities; Proposed Rule DEPARTMENT OF HEALTH AND HUMAN SERVICES

SUMMARY: This Notice of Proposed Rulemaking (NPRM) requests comments

from the public on proposed changes to regulations on Grants for State

and Community Programs on Aging, deleting certain references to the

Long-Term Care Ombudsman Program and amending one provision regarding

this program, and to a proposed new rule to implement the new Title VII

for Vulnerable Elder Rights Protection Activities enacted in the 1992

Amendments to the Older Americans Act (Act). The references to the

Ombudsman Program being deleted have either been superseded in the law

or are superseded by provisions in the proposed new rule. One provision

pertaining to ombudsman confidentiality requirements is retained in the

regulations for State and Community Programs on Aging and amended based

on changes made in the 1992 amendments to the Act. By clarifying the

statutory requirements, the regulations will eliminate any confusion

about the requirements of the Act and enable the States to carry out

advocacy programs on behalf of vulnerable older people, in accordance

with the intent of Congress.

DATES: In order to be considered, comments on this proposed rule must

be received on or before January 17, 1995.

Public hearings on the proposed regulations will be held from 9

a.m. until 12 noon on the dates listed at the beginning of

SUPPLEMENTARY INFORMATION.

ADDRESSES: All comments concerning these proposed regulations should be

addressed to: John F. McCarthy, Deputy Assistant Secretary on Aging,

Administration on Aging, 330 Independence Ave., SW., Washington, DC

20201.

A copy of any comments that concern information collection

requirements should also be sent to Allison Herron Eydt, AoA Desk

Officer, Office of Management and Budget, 1725 17th Street, N.W., Room

10235, Washington, D.C. 20503.

Public hearings on the proposed regulations will be held on the

dates and in the cities and locations listed at the beginning of

SUPPLEMENTARY INFORMATION. Requests to present oral testimony should be

transmitted to the Regional Administrator, AoA Regional Office, by

mail, telephone or fax, as provided in SUPPLEMENTARY INFORMATION.

Written comments may be presented to AoA at the hearings or mailed to

the Deputy Assistant Secretary for Aging at the address provided above.

Beginning 14 days after the close of the comment period, comments

will be available for public inspection in room 4278, 330 Independence

Ave., SW., Washington, DC 20201, Monday through Friday between the

hours of 9 a.m. and 4 p.m.

FOR FURTHER INFORMATION CONTACT: Sue Wheaton, Telephone (202) 619-7585.

SUPPLEMENTARY INFORMATION:

Hearings: Dates, Locations and Procedures

As stated above under DATES and ADDRESSES, AoA is holding public

hearings on the proposed regulations on the dates and at the locations

provided below. Oral presentations will be limited to three minutes per

person. Individuals will be scheduled to speak in the order in which

their request is received in the AoA Regional Office. Comments by those

making oral presentations must also be received by AoA in writing by

the close of the comment period in order to be accepted as part of the

official record.

November 18, 1994; Boston, MA: Boston Park Plaza Hotel and Towers,

64 Arlington Street. AoA Regional Office, John F. Kennedy Building,

Room 2075, Boston, MA 02203; Tel. (617) 565-1158; Fax (617) 565-4511.

December 2, 1994; Atlanta, GA: Atlanta Sheraton Gateway Hotel, 1900

Sullivan Road, College Park, GA. AoA Regional Office: 101 Marietta

Tower, Suite 1702, Atlanta, GA. 30323; Tel. (404) 331-5900; Fax (404)

331-2017.

December 9, 1994; Chicago, IL: Contact AoA Regional Office after

November 28 for location of hearing. AoA Regional Office: 105 West

Adams Street, 10th Floor, Chicago, IL 60603; Tel. (312) 353-3141; Fax

(312) 886-8533.

December 15, 1994; Denver, CO: Contact AoA Regional Office after

November 28 for location of hearing. AoA Regional Office: 1961 Stout

Street, Room 908, Federal Office Bldg., Denver, CO 80294; Tel. (303)

844-2951; Fax (303) 844-2943.

January 13 1995; San Francisco, CA: Contact AoA Regional Office

after November 28 for location of hearing. AoA Regional Office: 50

United Nations Plaza, Room 480, San Francisco, CA 94102; Tel. (415)

556-6003; Fax (425) 556-7393.

I. Program Background and Purpose

Title VII of the Older Americans Act (Act), enacted in the 1992

Amendments to the Older Americans Act, brings together into one title

advocacy programs which were previously in Title III. The purpose of

Title VII is to foster activities to assist vulnerable older people to

exercise their rights; to secure the benefits to which they are

entitled; and to be protected from abuse, neglect and exploitation.

Subtitle A encompasses programs for which the State Agency on aging has

leadership responsibility; Subtitle B provides a means to assist Native

American organizations to prioritize the needs of their service

population relating to elder rights and make grants (when this Subtitle

is funded) to carry out vulnerable elder rights protection activities.

Title VII emphasizes the leadership role of the State agency in

planning, implementing and coordinating statewide programs and

activities designed to help older people understand their rights, know

their benefits and make informed choices. Title VII provides a

framework upon which States, without abrogating the particular mission

and legislative and regulatory requirements of each Title VII program,

can build a coordinated, integrated statewide system of advocacy and

assistance for vulnerable older people.

The State leadership role for Title VII is underscored by the fact

that States may use funds available under Title VII to directly carry

out vulnerable elder rights protection activities. The Congressional

Committees of Jurisdiction for the Act made clear that Title III

requirements governing the allocation of funds within States are not

applicable to funds made available under any part of Title VII and

that, unlike Title III, area agencies are not the only entities

eligible to receive grants from States under any part of Title VII.

(138 CONG.REC., S125, 13503 (daily ed. September 15, 1992) (Joint

Explanatory Statement of the Committees of Jurisdiction, Older

Americans Act Amendments of 1992))

The Four Programs Under Title VII

Title VII authorizes funding for four advocacy programs previously

included in Title III. Establishing each program in a separate chapter

of Title VII underscores the distinct mission and strengthens the

definition and function of each program; and combining them under a

single title fosters increased collaboration among advocates within a

State--and between States--to assist individual older people and their

families and representatives.

The Long-Term Care Ombudsman Program (Chapter 2, Sections 711, 712

and 713 of the Act) requires States to establish and operate an Office

of the State Long-Term Care Ombudsman, headed by the State Long-Term

Care Ombudsman. The Ombudsman Program identifies, investigates and

resolves complaints made by or on behalf of residents of nursing, board

and care and similar adult care homes; addresses major issues which

affect residents; works to educate residents, nursing home personnel

and the public about residents rights and other matters affecting

residents; and performs other functions specified in the Act to protect

the health, safety, welfare and rights of residents.

Building upon established law, the 1992 Amendments to the Act

clarified and strengthened State ombudsman programs in the following

areas: The functions of the State Ombudsman; criteria for the

designation and duties of local ombudsman entities designated by the

State Ombudsman; procedures for ombudsman access to residents and

records, disclosure of ombudsman records, and ensuring against

conflicts of interest; legal assistance for ombudsmen; reporting on

ombudsman activities and providing recommendations; training of

ombudsman representatives; and non- interference with the performance

of ombudsman responsibilities. The 1992 Amendments emphasized the role

of local ombudsman programs and the State Ombudsman's leadership of the

statewide program; established detailed requirements for identifying

and resolving real and potential conflicts of interest; and reinforced

the role of the Ombudsman as an advocate for change to improve the

quality of care and quality of life for residents of long-term care

facilities.

The 1992 Amendments also added important Title II provisions to the

Ombudsman Program, including requirements for: The establishment in AoA

of an Office of Long-Term Care Ombudsman Programs headed by an

Associate Commissioner for Ombudsman Programs, with specific criteria

for appointment and detailed definition of duties; funding of a

National Ombudsman Resource Center at no less than the level at which

it was funded in 1990, to establish a national program to recruit

ombudsman volunteers, conduct research and assist State ombudsmen;

establishment of model ombudsman training standards; a study on the

effectiveness of the State long-term care ombudsman programs; and

expansion of the requirements for the annual ombudsman report to

Congress.

New provisions in Title III require State and area agencies to fund

their ombudsman programs at not less than the level at which the

programs were funded in Fiscal Year 1991.

The Chapter entitled Programs for Prevention of Elder Abuse,

Neglect, and Exploitation (Chapter 3, Section 721) requires States to

develop and enhance programs for the prevention of elder abuse, neglect

and exploitation. The section enumerates activities which States may

undertake, including but not limited to providing funding for public

education, ensuring the coordination of services provided by area

agencies on aging and adult protective services programs, promoting the

development of information and data systems, and training of

individuals and professionals in the identification, prevention and

treatment of abuse, neglect and exploitation.

This chapter does not require the State agency on aging to

establish a State protective services system. Rather, the State agency

is expected to work to enhance and improve the State's overall system

for the prevention and treatment of elder abuse, neglect and

exploitation, including protection of individual elders' dignity and

rights in the delivery of protective services. In this way, the State

agency on aging should be an ally of the State protective services

agency in working for more and better services for vulnerable older

people through enlisting the support and participation of other

agencies and networks in preventing elder abuse.

The State Elder Rights and Legal Assistance Development Program

(Chapter 4, Section 731) builds upon State legal and elder rights

development programs which were initiated through AoA Title IV

discretionary funds and addressed in Title III, Section 307(a)(18).

Section 731 requires the State agency to establish a program to provide

leadership for improving the quality and quantity of legal and advocacy

assistance as a means for ensuring a comprehensive elder rights system.

The State is to establish a focal point for conducting policy review,

analysis and advocacy on such issues as guardianship, age

discrimination, pension and health benefits, insurance, consumer

protection, surrogate decision-making, protective services, public

benefits and dispute resolution. In addition, the State is to provide a

legal assistance developer and other personnel sufficient to ensure

State leadership in securing and maintaining legal rights of older

individuals; State capacity for coordinating the provision of legal

assistance; State capacity to provide technical assistance, training

and other supportive functions to area agencies on aging, legal

assistance providers, ombudsmen and other persons as appropriate; and

State capacity to promote financial management services for older

individuals at risk of conservatorship.

The Outreach, Counseling, and Assistance Program for Insurance and

Public Benefits (Chapter 5, Section 741) requires the States to

establish programs of outreach, counseling and assistance to older

individuals related to obtaining insurance benefits and public benefits

to which they may be entitled. This chapter envisions a statewide

network of informed staff, including volunteers, who are informed about

insurance and public benefits and can assist older people and their

advocates--including the advocates working under the other Title VII

programs--to obtain needed benefits and make informed decisions on

insurance and pension matters.

II. Purpose of the NPRM

Prior to the 1992 amendments, the Long-Term Care Ombudsman Program

and parts of the other three programs in the new Title VII were in

Title III of the Older Americans Act. However, in most States, only the

Ombudsman Program was established and operating according to the basic

design provided in Title VII. In most States, the other three program

areas are still in a developmental stage. For this reason, the proposed

rule for part 45 CFR Part 1327 addresses only the Title VII mission of

the State and area agencies, general Title VII State plan and funding

requirements, consultation requirements, the Long-Term Care Ombudsman

Program (Title VII, Chapter 2), specific requirements for the Elder

Abuse, Neglect and Exploitation Prevention section of the Elder Rights

part of the State plan, and the requirement that States employ a Legal

Assistance Developer. AoA will develop more comprehensive regulations

for the programs under Title VII, Chapters 3, 4 and 5 at a later date,

based upon the regulatory needs identified as the activities under

these programs are implemented by the States.

Due to the transfer of the Ombudsman Program to Title VII and in

order to conform current regulations to the 1992 Amendments to the Act,

the proposed regulations would make the following changes in the Title

III regulations, 45 CFR Part 1321, Grants to State and Community

Programs: deletion of reference to the Ombudsman Program in three

sections, amendment of one section pertaining to confidentiality, and

deletion of another entire section which has been superseded by the

1992 Amendments pertaining to award of Title III funds to the area

agencies on aging.

The Ombudsman Program regulations (Subpart C, Secs. 1327.21 through

1327.29) address areas where the States' experience in administering

the program indicates the need for amplification of the statutory

requirements and/or the 1992 amendments to the Act require further

clarification.

III. Summary of the Provisions of the NPRM

Part 1321--Grants to State and Community Programs on Aging

Due to the transfer of the program requirements for the Long-Term

Care Ombudsman Program from Title III of the Act to the new Title VII,

references to the Ombudsman Program are deleted from 45 CFR Part 1321,

Grants to State and Community Programs on Aging, Secs. 1321.9, 1321.11

and 1321.17. In the event that an amended version of Sec. 1321.17(f)

proposed by the Administration on Aging in a Notice of Proposed

Rulemaking published in the Federal Register on March 17, 1994 (59 FR

12728-12738) becomes final before this NPRM goes into effect as a final

rule, Sec. 1321.17(f)(5) in that regulation will be amended to delete

reference to the Ombudsman Program.

The definition of ``official duties'' pertaining to the Ombudsman

Program is removed from Sec. 1321.3 and not transferred to the Title

VII regulation, as the statute sufficiently defines the duties of the

Ombudsman.

Section 1321.51, Confidentiality and disclosure of information--is

amended to prohibit a State or area agency on aging from requiring

information related to reports of neglect, abuse and exploitation of

individuals to be divulged except as provided under Sections

705(a)(6)(C) and 721(e)(2) of the Act or an ombudsman or ombudsman

representative to disclose the identity of a complainant or resident

except as permitted under the Act and under Sec. 1327.24 of these

regulations.

Section 1321.63, Purpose of service allotments under Title III--

subsection (b) pertaining to award of Title III funds to area agencies

on aging is deleted in its entirety because it is superseded by

Sections 304(d) and 308 of the Act, as amended in 1992.

Part 1327--Vulnerable Elder Rights Protection Activities Under Title

VII of the Older Americans Act, as Amended

Subpart A--General Provisions

1327.1 Basis and purpose--This section emphasizes the Title VII

mandate that States develop a conceptual framework for, and provide

leadership in implementing, comprehensive and coordinated statewide

elder rights systems to assist vulnerable older people to understand

their rights, know and secure their benefits and make informed choices.

It lists the types of programs and agencies that State agencies on

aging are expected to work with and through to develop statewide elder

rights systems.

Title VII is a new addition to the Act. Prior to the 1992

amendments, the Ombudsman Program and parts of the other three programs

now included under Title VII were in Title III. However, in most

States, only the Ombudsman Program was established and operating

according to the basic design provided in the new Title VII. In most

States, the other three program areas are still in a developmental

stage. For this reason, the proposed rule for this part addresses only

the Title VII mission of the State and area agencies, general Title VII

State plan and funding requirements, consultation requirements, the

Long-Term Care Ombudsman Program, specific requirements for the Elder

Abuse, Neglect and Exploitation Prevention section of the Elder Rights

part of the State plan, and the requirement that States employ a Legal

Assistance Developer. AoA will develop more comprehensive regulations

for Chapters 3, 4 and 5 at a later date, based upon the regulatory

needs identified as the activities under these programs are implemented

by the States.

Section 1327.3 Definitions--the definitions apply to the Ombudsman

Program. They explain the meaning of the statutory requirement that the

Ombudsman serve on a ``full-time basis,'' stipulate that the Ombudsman

Program is to be statewide in scope and define ``statewide ombudsman

coverage.'' They also amplify the meaning of ``immediate family''

related to conflict of interest requirements, ``other similar adult

long-term care facility'' related to ombudsman coverage, ``regular and

timely access'' to the Ombudsman Program, ``timely response'' to

complaints and ``willful interference'' with the representatives of the

Office of the Ombudsman in the performance of the representatives'

official duties.

Section 1327.5 Applicability of other regulations--this section

requires compliance with the statutory and regulatory requirements of

the Medicare and Medicaid programs, including the Omnibus Nursing Home

Requirements; the Developmental Disabilities Assistance and Bill of

Rights Act; the Civil Rights Act; the Americans With Disabilities Act;

and other relevant Federal requirements.

Section 1327.7 Mission of the State agency--this section

underscores the leadership role of the State agency to develop and

carry out throughout the State a system of programs, services and

protections to assist individual older persons and to advocate for

policy, regulatory and legislative changes to protect the rights,

dignity and benefits of vulnerable older individuals as a group.

Section 1327.9 Mission of the area agency--this section emphasizes

the mission of the area agency to assure that viable, effective systems

of both individual and collective advocacy are established and

operating within their planning and services areas to protect the

rights and address the needs of vulnerable older individuals.

Subpart B--General Title VII Requirements

1327.11 Title VII State Plan Requirements--this section requires

States, by March 31, 1995, to describe, in an addendum to their State

plan, the manner in which they will carry out Title VII and stipulates

the content for the description, including: a conceptual framework for

a comprehensive, coordinated statewide system; the process by which

Title VII activities were identified and prioritized in consultation

with parties specified in the Act and in accordance with these

regulations; a description of the roles, processes and activities for

elder abuse, neglect and exploitation prevention activities specified

in Subpart D, Section 1327.31; a brief description of the activities

carried out for the other Title VII programs; and outcomes expected and

methods by which the State will periodically assess the status of elder

rights in the State. In accordance with Section 705(a)(4) of the Act,

States are also required to provide assurances and documentation that

Title VII funding has not been used to supplant funds from other

sources.

1327.13 Consultation--this section stipulates that the State

agency on aging shall develop policies governing the programs contained

in Title VII in consultation with specified individuals, agencies and

interested parties within the State.

1327.15 Funding requirements--this section specifies rules for

State and area agencies (where applicable) regarding utilization of

Title III funding, minimum required ombudsman funding levels, and

allowable uses of funding provided for programs under Title VII. It

also clarifies that the Title III provisions related to funding for

State and area plan administration and intrastate distribution of Title

III funding are not applicable to Title VII funds. That is, States may

not include any Title VII funds in their calculation of Federal funds

available for State plan administration, and Title VII funds allotted

to the States may not be included in the base amount used to calculate

the ten percent limitation on the use of funds for area plan

administration under the provisions of Section 304(d)(1)(A) of the Act.

However, the regulation clarifies that Title VII funds may be used to

support any activity directly related to implementing the chapter for

which they are appropriated.

Section 1327.15(a) (1), (2) and (4)(iv) clarify that ombudsman

funding provided under Title III, Section 304(d)(1)(B), the ombudsman

minimum required funding level comprised of funds from all sources and

States' Title VII ombudsman allotments are to be used only for the

Ombudsman Program as it is defined in the Act. We are aware of a few

ombudsman programs which conduct activities not directly related to the

Ombudsman Program as it is defined in Section 712 of the Act. For

example, some statewide ombudsman programs respond to complaints about

in-home care and hospital services.

However, it should be emphasized that there is no basis in the law,

nor does the legislative history support, States use of the funding

provided to conduct ombudsman services, as defined in Section 712 of

the Act, to fund ombudsman or advocacy services for individuals living

in their own homes (including homes in public housing units) or

receiving acute medical care in facilities not covered under the

definition of long-term care facilities in the Older Americans Act.

AoA recognizes that there are abuses which occur in these other

settings. However, the law is clear about the scope of the Ombudsman

Program and the use of Ombudsman Program funding. Further, AoA is

concerned that when ombudsmen are required to provide coverage in

private homes, hospitals, public housing complexes or other non-long-

term care facility settings without sufficient staff resources,

coverage of long-term care facilities may be lessened and the entire

State ombudsman program may be weakened.

Both institutional long-term care and these other residential or

care settings involve complicated and usually different sets of rules

and regulations and different benefit and oversight systems. It is

unlikely that the State Long-Term Care Ombudsman, and local ombudsman

representatives in areas where there are numerous-long term care

facilities, could be involved in areas other than institutional long-

term care without compromising services to residents of long-term care

facilities and diverting the limited resources available to the program

designed to serve residents of nursing, board and care and similar

adult care facilities. An additional concern is that conflicts of

interest could arise if ombudsman programs investigate complaints about

in-home services which are provided by the same agency which funds the

Ombudsman Program.

If a State wishes to establish advocacy or ombudsman programs for

recipients of home or acute care services, or for older people living

in public housing units, the State should ensure that there are

sufficient, additional resources to provide these services. Additional

staff should be provided to carry out these expanded responsibilities.

The State should also ensure that any regional or local components of

ombudsman programs which investigate home-care complaints are located

outside of the organizational entities which provide the services the

ombudsmen are expected to monitor.

Subpart C--Long-Term Care Ombudsman Program

The sections on the Ombudsman Program are listed in the same order

and with the same headings as the ombudsman sections in Title VII of

the Act. Not all sections in the Act are covered in the regulation, as

the regulation addresses only those areas where the provision in the

Act requires clarification or amplification.

Section 1327.21 Establishment--

1327.21(a) Ombudsman Access to Decision-Making Officials--In order

to increase the ability of the State Ombudsman Program to effectively

represent the interests of residents of long-term care facilities in

policy-making at the State level, the rule requires that the Ombudsman

have direct access to directors of governmental entities with

responsibilities which impact on residents of long-term care

facilities. Without such access, the Ombudsman's ability to ``represent

the interests of the residents before governmental agencies and seek

administrative, legal and other remedies to protect the health, safety,

welfare and rights of the residents'' as required under Section

712(a)(3)(E) of the Act would be diminished. The statutory organization

of the program into an office indicates that Congress intended it to

have a high level of visibility and an effective voice in policy

deliberations affecting residents.

1327.21(b) Local Ombudsman Entities and Ombudsman

Representatives--The rule outlines five areas in which the State agency

must establish criteria and develop policy for participation in the

statewide Ombudsman Program by local ombudsman entities and

representatives. The overall objective of the criteria and policies is

to strengthen, through the designation process, the working

relationship between the State ombudsman and local ombudsman entities

and the effectiveness of the local entities as part of the statewide

Ombudsman Program.

1327.21(c) Representation of Residents' Interests--The Act

requires ombudsmen to represent the interests of residents before

governmental agencies, but administrative law judges in some States

have barred ombudsmen from carrying out this duty because the

ombudsman's involvement was interpreted as representing the client, a

function reserved for attorneys. The rule clarifies that the Ombudsman

and ombudsman representatives have the right and authority to advocate

on behalf of residents in transfer, discharge and other administrative

hearings by serving as a witness and presenting information and

testimony.

1327.21(d) Additional Ombudsman Duties--The rule specifies that,

in addition to the ombudsman functions outlined in the Act, the

Assistant Secretary determines it appropriate for Ombudsmen to work to

ensure that board and care and similar adult care facilities are

licensed and that licensing standards are enforced.

1327.22 Procedures for Access--the rule requires the State agency

to ensure, through administrative policy, regulation or securing

legislation, if needed, that ombudsmen have the right and an

established procedure for access to: Facilities; residents, including

residents with guardians; residents' records; facility records and

death certificates and records, when these are necessary in the

investigation of complaints.

1327.24 Disclosure/Confidentiality--this section replaces the

current rules at 45 CFR 1321.11 and 1321.51 promulgated in the 1988

regulation, which permit the director of the State agency on aging and

one senior manager to have access to ombudsman files, minus the

identity of any complainant or resident of a long-term care facility,

for program monitoring purposes. The new rule stipulates that the

director or a senior manager of the agency or organization in which the

Ombudsman Program is administratively located may have access to

ombudsman files for program monitoring purposes; that the individual

who performs the program monitoring must have no conflict of interest;

and that confidentiality requirements concerning any complainant or

resident must be strictly followed. This rule applies to ombudsman

files at the State and local level. As previously stated at the

beginning of this preamble, this NPRM proposes to delete the current

reference to the Ombudsman Program in 45 CFR 1321.11 and to amend 45

CFR 1321.51 to conform with confidentiality provisions in Sections 705,

712 and 721 of the Act and section 1327.24 of this proposed regulation.

This section also clarifies that Section 705(a)(6)(C) of the Act

pertains to information provided to the agencies and programs specified

in this statutory provision and does not require the Ombudsman Program

to abridge the confidentiality requirements specified in Section 712(d)

of the Act. The rule stipulates that representatives of the Ombudsman

Program may not be required to disclose the identity of a complainant

or resident except under conditions outlined in section 712(d) of the

Act.

Some State abuse reporting laws mandate the reporting of all

incidents of abuse. These State laws may conflict with the Section

712(d) requirement that ombudsmen not reveal the identity of

complainants or residents unless the complainant, resident or the

resident's legal representative consents to the disclosure or the

disclosure is required by court order. The rule clarifies that Federal

law supersedes State law in such instances and that ombudsmen must

follow the disclosure procedure outlined in Section 712(d). Section

1327.27(b)(3) of these regulations requires the State Ombudsman, in

coordination with the State Adult Protective Services agency, to

establish a protocol for reporting complaints involving alleged abuse

and exploitation which ensures prompt response to those in need while

protecting confidentiality, in accordance with statutory and regulatory

requirements.

1327.25 Conflict of Interest--Subparagraph (a), Designation of the

Ombudsman and ombudsman entities and representatives--The

organizational location of State and local ombudsman programs is

crucial to those programs' independence and access to decision-makers.

Most State ombudsman programs are located in State agencies on aging,

and more local programs are located in Area agencies on aging than in

any other organizations. While the Act prohibits contracting the

Ombudsman Program to agencies or organizations which regulate, own or

operate long-term care facilities, in the past AoA has permitted State

agencies on aging which regulate, own or administer long-term care

facilities to also operate the Ombudsman Program. This previous policy,

stated in the preamble to the 1988 regulations, was based on the

construction of the law.

In this rule, we are modifying this policy to comply with Section

712(f)(1) of the Act, which states that no individual, or member of the

individual's immediate family, involved in the designation of the

Ombudsman * * * or the designation of an entity designated under

subsection (a)(5) (local ombudsman entity) may be subject to a conflict

of interest. We believe that officials and employees in any office

which directly licenses or certifies long-term care facilities,

administers facilities or provides long-term care services are subject

to an inherent conflict of interest disqualifying them from designating

the Ombudsman or ombudsman representatives. Accordingly, in order to

comply with Section 712(f)(1), this regulation requires that the

individual who designates, whether by appointment or otherwise, the

Ombudsman and ombudsman representatives may not be an official or

employee of an agency, including a State or area agency on aging, which

directly licenses or certifies long-term care facilities, administers

facilities or provides long-term care services. The rule also requires

that where State and area agencies contract the Ombudsman Program to

another agency or organization, the employees who oversee the contract

must have no conflict of interest.

Since the Ombudsman Program is responsible for investigating

complaints which are sometimes made against the licensing agency and

recommending changes in policies and procedures which frequently

involve the licensing agency, this rule is designed to prevent a

situation in which an individual directly involved in the licensing and

certification of a facility, or one who is involved in administering a

facility or providing long-term care services, is also in a position of

authority or responsibility concerning the designation of the Ombudsman

or ombudsman representatives.

1327.25(b) Requires that where the State or area agency on aging

contracts with another agency to operate the Ombudsman Program, the

State or area agency staff persons who oversee the contract must not be

involved in licensing, certifying or administering long-term care

facilities or services.

1327.25(c) Prohibits the State Ombudsman and ombudsman

representatives from also serving as adult protective services (APS)

workers in APS programs with responsibilities which might conflict with

the Ombudsman's role as advocate for the residents' right to self-

determination and/or which might result in the representatives becoming

case workers for victims of abuse, neglect and exploitation and not

fulfilling the many other roles and responsibilities of the Office of

the Long-Term Care Ombudsman. This section also prohibits the Ombudsman

and ombudsman representatives from serving as a resident's agent,

medical decision-maker or surrogate and from assuming other, related

roles which might place them in conflict with their primary role as

advocate for the rights of residents and/or consume their time to the

exclusion of other important duties.

1327.26 Legal Counsel--This section requires the State agency to

develop and implement written policies and procedures which stipulate

how the State will fulfill its obligation to provide adequate legal

counsel to the Ombudsman and ombudsman representatives to assist them

in protecting the health, safety, welfare, and rights of residents and

in the performance of their official duties and to provide legal

representation to any representative of the Office against whom suit or

other legal action is brought or threatened to be brought in connection

with the performance of official duties. It requires the State to

disseminate the policies and procedures to all representatives of the

Office and regularly include the information in training provided to

ombudsman representatives.

1327.27 Administration--Subparagraph (a) clarifies that the

Ombudsman Program may serve disabled individuals under the age of 60

who are living in long-term care facilities, a majority of whose

residents are older adults, if such service does not weaken or decrease

service to older individuals covered under the Older Americans Act. The

Administration on Aging takes the view that by giving the Ombudsman and

ombudsman representatives discretion to serve those under age 60 and

thus address the needs of all residents in a facility, the Ombudsman

Program will better serve everyone living in the facility.

1327.27(b) Requires State ombudsmen to establish written

agreements with the State Adult Protective Services program and the

State Protection and Advocacy programs for individuals with

developmental disability and mental illnesses. The agreements are to

stipulate how resources shall be utilized to serve vulnerable people

for which the programs are responsible and policies and procedures to

be followed in referrals and investigation of complaints. The policies

and procedures regarding complaint referral and investigation must

include a protocol for reporting complaints involving alleged abuse or

exploitation which ensures prompt response to those in need while

protecting confidentiality, in accordance with statutory and regulatory

requirements.

1327.27(c) Requires State ombudsmen to establish written

agreements with the State agencies responsible for licensing and/or

certifying for participation in Titles XVIII and XIX of the Social

Security Act long-term care facilities covered by the statewide

Ombudsman Program. The agreements must include procedures for complaint

investigation, verification and resolution by both agencies;

transmittal of information about facilities; ombudsman participation in

facility surveys; and shared training of staff.

1327.28 Liability--This section requires the State agency to

arrange for liability protection for representatives of the statewide

Ombudsman Program so that any representative of the program against

whom legal action is brought or threatened to be brought in connection

with that individual's performance of her/his official duties will be

fully indemnified for legal and other costs arising from the dispute.

The State may not transfer this responsibility to provide full

liability protection to the area agency or other local agency or leave

the individual ombudsman representative financially vulnerable or

personally responsible in case of a law suit.

1327.29(a) Noninterference--This section augments the principle

enunciated in section 712(j) of the Act which requires States to ensure

that willful interference with ombudsman representatives in the

performance of official duties shall be unlawful. Subparagraph (a)

states, as a general principle, that in the conduct of all aspects of

the statewide Long-Term Care Ombudsman Program, the integrity of the

work of the Ombudsman and ombudsman representatives must be maintained;

and there must be no inappropriate or improper influence from any

individual or entity, regardless of the source, which will in any way

compromise, decrease or negatively impact on the objectivity of the

investigation or outcome of complaints; the Ombudsman's primary role as

advocate for the rights and interests of the resident; the Ombudsman's

work to resolve issues related to the rights, quality of care and

quality of life of the residents of long-term care facilities; or the

Ombudsman's statutory responsibility to provide such information as the

Office of the Ombudsman determines to be necessary to public and

private agencies, legislators and other persons regarding the problems

and concerns of residents and recommendations related to residents'

problems and concerns.

1327.29(b) Makes it clear that any interference with the work of

the Ombudsman, as outlined in paragraph (a) of this section, by an

individual who is an official or employee of the State agency on aging

or of an organization or agency which operates the Ombudsman Program

under grant or contract with the State agency shall be deemed to be a

failure to comply with Section 705 and with the noninterference

requirements of Section 712 of the Act.

Subpart D--Programs for Prevention of Elder Abuse, Neglect and

Exploitation

Section 1327.31 Elder Abuse, Neglect and Exploitation Section of

Elder Rights Plan--This section specifies that States shall provide, in

the description of the Elder Rights plan, required in Section 1327.11

of these regulations, a detailed description of the involvement of

other agencies, use of funds and evaluation of activities conducted

with funds provided for implementing Chapter 3, Section 721 of the Act.

Subpart E--State Elder Rights and Legal Assistance Development

Program

1327.41 Functions--This section requires States to provide, either

directly or through contract, an individual to be identified as the

State Legal Assistance Developer, in compliance with Sections

307(a)(18) and 731(b)(2) of the Act. It stipulates that the Developer

shall not serve the employing agency as house counsel. The rationale

for this requirement is that serving as house counsel prevents the

Legal Assistance Developer from carrying out the legal and elder rights

development duties specified under Section 731 of the Act.

Subpart F--State Outreach, Counseling, and Assistance Program for

Insurance and Public Benefits

1327.51 Coordination--This section amplifies the requirement in

Section 741(f) of the Act that outreach and counseling activities

authorized under Chapter 5, Section 741 of the Act be coordinated with

activities carried out by the State with funds received under the

Health Insurance Information, Counseling and Assistance Grants

authorized under Section 4360 of the Omnibus Budget Reconciliation Act

of 1990.

Impact Analysis

Executive Order 12866

Executive Order 12866 requires that regulations be reviewed to

ensure that they are consistent with the priorities and principles set

forth in the Executive Order. The Department of Health and Human

Services has determined that this rule is consistent with these

priorities and principles. An assessment of the costs and benefits of

available regulatory alternatives (including not regulating)

demonstrated that the approach taken in the regulation is the most

cost-effective and least burdensome while still achieving the

regulatory objectives.

Regulatory Flexibility Act of 1980

The Regulatory Flexibility Act of 1980, Public Law 96-354, requires

that an agency prepare a regulatory flexibility analysis for a proposed

or final rule if the rule would have significant economic impact on a

substantial number of ``small entities'', i.e. small businesses, small

non-profit organizations, or small governmental jurisdictions.

The responsibility for meeting the requirements of the regulations

proposed in this NPRM is on the State agencies and to a lesser extent

on area agencies. Actual delivery of services will be provided in some

circumstances by public and not-for-profit agencies or organizations

under grants or contracts from State or area agencies. Although area

agencies and most service delivery agencies and organizations are

``small entities'' within the meaning of the Act, this rule will impose

no significant burdens on State agencies, area agencies or other

affected parties and will provide flexibility to State and area

agencies in implementing the provisions of the Act. For these reasons,

the Secretary hereby certifies that these regulations will not have a

significant economic impact on a substantial number of small entities.

Paperwork Reduction Act

Section 1327.11 of this proposed rule contains information

collection requirements which are subject to review by the Office of

Management and Budget (OMB) under the Paperwork Reduction Act of 1980.

The title, description, and respondent description of the information

collection are shown below with an estimate of the time for reviewing

instructions, searching existing data sources, gathering and

maintaining the data needed, and completing and reviewing the

collection of information. Comments on the proposed information

collection requirements in Section 1327.11 should be addressed to the

AoA Desk Officer at the Office of Management and Budget as well as to

Deputy Assistant Secretary for Aging. See ADDRESSES section.

Title: Vulnerable Elder Rights Protection Activities--Elder Rights

Plan.

Description: Section 705(a)(8) of Older Americans Act as amended by

the 1992 amendments to the Act (Public Law 102-375) requires States to

include in their State plan submitted under Section 307 a description

of the manner in which the State will carry out Title VII in accordance

with assurances outlined in Section 705. Based upon this statutory

provision, Sec. 1327.11 of the proposed regulations requires States, by

March 31, 1995, to describe, in an addendum to their State plan and to

all future State plans, the manner in which they will carry out Title

VII and stipulates the content of the description, including: a

conceptual framework for a comprehensive, coordinated statewide system;

the process by which Title VII activities were identified and

prioritized in consultation with parties specified in the Act and in

accordance with these regulations; a description of the roles,

processes and activities for elder abuse, neglect and exploitation

prevention activities specified in Subpart D, Sec. 1327.31; a brief

description of the activities carried out for the other Title VII

programs; outcomes expected and methods by which the State will

periodically assess the status of elder rights in the State. In

accordance with Section 705(a)(4) of the Act, States are also required

to provide assurances and documentation that Title VII funding has not

been used to supplant funds from other sources.

Total reporting burden is 4,104 hours for FY 1995 and fewer than

4,104 for subsequent years.

Basis for Estimate:

By March 31, 1995 each State agency and the five trust territories

will be required to submit to the Administration on Aging an Elder

Rights Plan. Estimate of burden is determined as follows:

------------------------------------------------------------------------

No. No.

staff, hours

Activity per per Total

State/ staff hours

entity member

------------------------------------------------------------------------

Planning..................................... 5 8 40

Writing/ Editing Plan........................ 2 16 32

------------------------------------------------------------------------

72 hours x 57 States/entities = 4,104 hours for FY 1995

Development of the Elder Rights Plan in years subsequent to FY 1995

will likely require fewer planning hours than the development of the

initial plan will require. The statute allows States to submit their

State plans every two, three, or four years. Therefore, the total

burden will be considerably fewer than 4104 hours in years after FY

1995.

Description of Respondents: State and local governments, including

State and Area agencies on aging and ombudsman programs; non-profit

organizations; interested individuals.

List of Subjects

45 CFR Part 1321

Administrative practices and procedure, Aged, Grant programs--

Indians, Grant programs--social programs, Indians, Legal services,

Nutrition, Nursing Homes, Reporting and recordkeeping requirements.

45 CFR Part 1327

Administrative practices and procedure, Aged, Grant programs--

social programs, Health care, Legal services, Privacy, Reporting and

recordkeeping requirements.

Fernando M. Torres-Gil,

Assistant Secretary for Aging.

Dated: October 20, 1994.

Donna E. Shalala,

Secretary of Health and Human Services.

For the reasons set forth in the preamble, 45 CFR Chapter XIII,

subchapter C, is amended as follows:

PART 1321--GRANTS TO STATE AND COMMUNITY PROGRAMS ON AGING

1. The authority for part 1321 continues to read as follows:

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

Americans Act, as amended.

Subpart A--Introduction

2. 1321.3, Definitions, is amended by removing the definition of

``Official duties''.

Subpart B--State Agency Responsibilities

3. Section 1321.9, Organization and Staffing of the State Agency,

is amended by removing paragraphs (c) and (d).

4. Section 1321.11 is revised to read as follows:

Sec. 1321.11 State agency policies.

(a) The State agency on aging shall develop policies governing all

aspects of programs operated under this part, whether operated directly

by the State agency or under contract. These policies shall be

developed in consultation with other appropriate parties in the State.

The State agency is responsible for enforcement of these policies.

(b) The policies developed by the State agency shall address the

manner in which the State agency will monitor the performance of all

programs and activities initiated under this part for quality and

effectiveness.

5. 1321.17 is amended by revising paragraph (f)(7) to read as

follows:

Sec. 1321.17 Content of State plan.

* * * * *

(f) * * *

(7) The State agency on aging shall develop policies governing all

aspects of programs operated under this part.

* * * * *

6. Section 1321.51 is amended by revising paragraph (c) to read as

follows:

1321.51 Confidentiality and disclosure of information.

* * * * *

(c) A State or area agency on aging may not require:

(1) A provider of legal assistance under this part to reveal any

information that is protected by attorney client privilege;

(2) Information related to reports of neglect, abuse and

exploitation of individuals to be divulged except as provided under

Sections 705(a)(6)(C) and 721(e)(2) of the Act; or

(3) An ombudsman or ombudsman representative providing services

under Part 1327, Subpart C, of this chapter to disclose the identity of

a complainant or resident except as provided under Sec. 1327.24.

Subpart D--Service Requirements

7. Section 1321.63 is amended by removing and reserving paragraph

(b).

8. Part 1327 is added to read as follows:

PART 1327--VULNERABLE ELDER RIGHTS PROTECTION ACTIVITIES

Sec.

Subpart A--General Provisions

1327.1 Basis and purpose of this part.

1327.3 Definitions.

1327.5 Applicability of other regulations.

1327.7 Mission of the State agency.

1327.9 Mission of the Area agency.

Subpart B--General Title VII Requirements

1327.11 Title VII State Elder Rights plan requirements.

1327.13 Consultation.

1327.15 Funding requirements.

Subpart C--Long-Term Care Ombudsman Program

1327.21 Establishment.

1327.22 Procedures for access.

1327.24 Disclosure/confidentiality.

1327.25 Conflict of interest.

1327.26 Legal counsel.

1327.27 Administration.

1327.28 Liability.

1327.29 Noninterference.

Subpart D--Programs for Prevention of Elder Abuse, Neglect, and

Exploitation

1327.31 Elder Abuse, Neglect and Exploitation Prevention

Requirements for Elder Rights Plan.

Subpart E--State Elder Rights and Legal Assistance Development Program

1327.41 Functions.

Subpart F--State Outreach, Counseling, and Assistance Program for

Insurance and Public Benefits

1327.51 Coordination.

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

Subpart A--General Provisions

Sec. 1327.1 Basis and purpose of this part.

(a) This part prescribes requirements State agencies shall meet to

receive grants for the establishment and development of Vulnerable

Elder Rights Protection activities under Title VII of the Older

Americans Act, as amended (hereinafter referred to in this part as the

Act). These requirements include the responsibilities of State

agencies, Area agencies, and service providers.

(b) The requirements of this part are based on Title VII and

relevant sections of Titles III and VI of the Act. Title VII provides

for formula grants to State agencies on aging, under approved State

plans, to carry out Vulnerable Elder Rights Protection activities.

(c) Statewide Elder Rights Systems--Title VII provides an important

mandate to State agencies on aging, namely the development of an Elder

Rights system which coordinates and recognizes the inter-relatedness of

a variety of services, programs, and activities on the part of a number

of agencies and organizations to ensure the rights of vulnerable older

people in a State. Such an Elder Rights system will assist vulnerable

older people to understand their rights, know and secure their benefits

and make informed choices. In the development of this system, it is

expected that State agencies on aging will work through and with the

State Long-Term Care Ombudsman Program; State Elder Rights and Legal

Assistance Development Program; State Outreach, Counseling and

Assistance Program for Insurance and Public Benefits; Area agencies on

aging, information and referral programs; consumer protection and

advocacy agencies; guardianship programs; legal providers; adult

protective services; the court system; the attorney general; the State

equal employment opportunity commission; and other appropriate programs

and agencies.

Sec. 1327.3 Definitions.

Full-time basis, as used in Section 712(a)(3) of the Act with

respect to the State Ombudsman position, means the State Long-Term Care

Ombudsman position is full-time, and the individual who serves in the

position has no duties other than those directly related to the Long-

Term Care Ombudsman Program, as defined in Section 712 of the Act.

Immediate family, as used in Sections 201(d)(2)(B) and 712(f)(1) of

the Act pertaining to conflict-of-interest, means spouse, parents,

children and siblings.

Other similar adult long-term care facility, as used in Section

102(34)(D) of the Act with respect to the type of facilities which the

Ombudsman Program is authorized to cover, means any group facility

which provides room, board and personal care services to older

individuals, and which the State includes within the purview of its

statewide Long-Term Care Ombudsman Program.

Regular and timely access, as used in Section 712(a)(3)(D) and

(5)(B)(ii) of the Act with respect to residents' access to ombudsmen,

means that residents of long-term care facilities throughout the State

have access to knowledge of the Ombudsman Program and how to contact it

and that calls or letters to the program from residents or their

representatives are responded to in a timely manner.

State Long-Term Care Ombudsman Program means a program established

under Section 712(a)(1)(B) of the Act which provides statewide

ombudsman coverage for residents of long-term care facilities.

Statewide ombudsman coverage, as used in the definition of ``State

Long-Term Care Ombudsman Program,'' means that: residents of long-term

care facilities and their representatives have access to knowledge of

the Ombudsman Program and how to contact it; and complaints received

from any part of the State are investigated and documented and steps

are taken to resolve problems in a timely manner, in accordance with

Federal and State requirements.

Timely responses, as used in Section 712(a)(3)(D) of the Act with

respect to ombudsman action on complaints, means that life-threatening

complaints are responded to within 24 hours of receipt and non-life

threatening complaints are responded to as promptly as can reasonably

be accomplished.

Willful interference, as used in Section 712(j)(1) of the Act with

respect to the work of representatives of the ombudsman office, means

any action taken, or deliberate omission of action, with the intention

of preventing the Ombudsman from carrying out his/her official duties,

as outlined in Section 712 of the Act and pursuant to State law. Acts

of retaliation, such as dismissal of the Ombudsman or ombudsman

representative or the removal and transfer of such person because of

conscientious performance of official ombudsman duties, are considered

willful interference.

Sec. 1327.5 Applicability of other regulations.

Several other regulations apply to all activities under this part.

These include but are not limited to:

(a) 42 CFR Parts 483 and 488--Medicare and Medicaid Programs;

Omnibus Budget Reconciliation Act of 1987 (OBRA) Nursing Home

Requirements;

(b) 45 CFR Part 16--Procedures of the Departmental Appeals Board;

(c) 45 CFR Part 74--Administration of Grants, except Subpart N;

(d) 45 CFR Part 80--Nondiscrimination under Programs Receiving

Federal Assistance through the Department of Health and Human Services:

Effectuation of Title VI of the Civil Rights Act of 1964;

(e) 45 CFR Part 81--Practice and Procedures for Hearings Under Part

80 of this Title;

(f) 45 CFR Part 84--Nondiscrimination on the Basis of Handicap in

Programs and Activities Receiving or Benefiting from Federal Financial

Participation;

(g) 45 CFR Part 91--Nondiscrimination on the Basis of Age in HHS

Programs or Activities Receiving Federal Financial Assistance;

(h) 45 CFR Part 92--Uniform Administrative Requirements for Grants

and Cooperative Agreements to State and Local Governments;

(i) 45 CFR Part 100--Intergovernmental Review of Department of

Health and Human Services Programs and Activities;

(j) 5 CFR Part 900, Subpart F, Standards for a Merit System of

Personnel Administration;

(k) 45 CFR Part 1386--Administration for Developmental Disabilities

and Developmental Disabilities Programs;

(l) 49 CFR Parts 27, 37 and 38--Transportation for Individuals with

Disabilities;

(m) 28 CFR Parts 35 and 36--Department of Justice;

(n) 29 CFR Part 1630--Equal Employment Opportunity Commission.

Sec. 1327.7 Mission of the State agency.

The State agency on aging is responsible for advocating for the

rights of older individuals throughout the State. This responsibility

is paramount with respect to those who are unable to secure and protect

their own interests. The Act intends that the State agency on aging

shall be the leader relative to Vulnerable Elder Rights Protection

activities in the State. This means that the State agency shall:

(a) Develop and actively carry out throughout the State a system of

programs, services and protections which assist older persons to:

(1) Understand and exercise their rights;

(2) Exercise choice through informed decision-making;

(3) Benefit from support and opportunities promised by law;

(4) Maintain autonomy consistent with capacity;

(5) Resolve grievances and disputes through appropriate

representation and assistance; and

(b) Work to secure the policy, regulatory and legislative changes

which are needed to protect the rights, dignity and benefits of

vulnerable older individuals.

Sec. 1327.9 Mission of the Area agency.

The mission of the Area agency on aging under this part is to

advocate for and work to establish a viable, effective system within

the planning and service area to assist vulnerable older individuals

living in both home and long-term care facility settings to secure and

exercise their human and civil rights, protect their dignity, claim the

benefits to which they are entitled and ensure the fulfillment of their

contracts and covenants for care.

Subpart B--General Title VII Requirements

Sec. 1327.11 Title VII State Elder Rights Plan Requirement.

By March 31, 1995 the State agency on aging shall provide, as an

addendum to its current State plan, an Elder Rights plan. The Elder

Rights plan shall be included in all future State plans and shall

describe the manner in which the State will develop a comprehensive

Elder Rights system to carry out Title VII, in accordance with the

assurances in Section 705(a)(1) through (7) of the Act.

(a) The description shall include:

(1) A conceptual framework, which includes goals and priorities,

for how the State agency, without abrogating the specific mission and

statutory and regulatory requirements for each Title VII program, will

develop a coordinated, comprehensive system described in Sec. 1327.1(c)

which is designed to fulfill the elder rights mission of the State

agency, as described in Sec. 1327.7;

(2) The process through which the State, in consultation with the

parties specified in Sec. 1327.13, identified and prioritized statewide

elder rights activities, including the process by which all interested

parties were notified of public hearings held in accordance with

Section 705(a)(2) of the Act and the conduct and results of such

hearings; as required under Title II of the Americans with Disabilities

Act, all hearings shall be accessible to the disabled;

(3) A description of the roles, processes and activities for elder

abuse, neglect and exploitation prevention activities specified in

Subpart D of this part, Sec. 1327.31;

(4) A brief description of the activities carried out for the other

programs under Title VII;

(5) Outcomes expected during the period covered by the plan; and

(6) Methods by which the State will periodically assess the status

of elder rights in the State, in compliance with Section 731(b)(8) of

the Act.

(b) The Elder Rights Plan shall also contain assurances and

documentation showing that Title VII funding has not been used to

supplant funds from other sources, as required in Section 705(a)(4) of

the Act.

Sec. 1327.13 Consultation.

The State agency on aging shall develop policies governing all

aspects of programs operated under this part, whether operated directly

by the State agency or under contract. These policies shall be

developed in consultation with the State Ombudsman, State Legal

Assistance Developer and other State level agencies or staff with major

responsibilities for programs related to Elder Rights, including State

adult protective services staff; area agencies on aging and local

agencies or staff with major responsibilities for programs related to

Elder Rights; older people; organizations which advocate on behalf of

vulnerable older persons; and service providers, including long-term

care providers.

Sec. 1327.15 Funding requirements.

(a) Requirements of State agencies. (1) The period of availability

of funding for obligation is covered by 45 CFR part 92.

(2) Use of Title III funds for Ombudsman Program. Title III funds

utilized by States under Section 304(d)(1)(B) must be used to support

activities of the Long-Term Care Ombudsman Program, as defined in

Section 712 of the Act, at either the State level or at the local

level. These funds are not subject to the intrastate funding formula.

(3) Maintenance of FY 1991 ombudsman program funding level. In

carrying out the Ombudsman Program under Titles III and VII, States

must, at a minimum, expend not less than the total amount expended by

the State agency on aging from all sources in fiscal year 1991, with

the exception of funds received in a State's allotment of the budget

line item for abuse prevention (under the old Title III, Part G of the

Older Americans Act, as amended November 27, 1987) in the FY 1991

Departments of Labor, Health and Human Services, and Education, and

Related Agencies Appropriation Act which the State elected to expend on

ombudsman activities in FY 1991. In addition, States should expend on

their Ombudsman Program the full amount of the increase in funding

between what they received and expended on ombudsman activities from

the State's allotment of the budget line item for ombudsman services in

the FY 1991 Departments of Labor, Health and Human Services, and

Education, and Related Agencies Appropriation Act and their Title VII

ombudsman allotment for a current fiscal year. This funding received

under Titles III and VII must be used solely for ombudsman services to

residents of long-term care facilities, as defined in Sections 102 (19)

and (34) of the Act and Sec. 1327.3 and pursuant to Sections 307(a)(12)

and 712 of the Act, and may not be used for any other purpose.

(4) Use of Title VII ombudsman and abuse prevention allotments. (i)

States may use any portion of their Title VII abuse prevention

allotment to fund specific, identifiable activities conducted by any

public or private non-profit program or agency, including adult

protective services and ombudsman programs, which directly correspond

to the abuse prevention activities outlined in Section 721(b) of the

Act.

(ii) States may not provide any of their Title VII abuse prevention

allotment to adult protective services agencies to conduct activities

or provide services not authorized in Section 721(b).

(iii) Use of Title VII funding for involuntary services to, or

coerced participation in, Title VII-funded programs by alleged victims,

abusers or their households, is strictly prohibited.

(iv) Use of any of the Title VII ombudsman allotment to fund

activities which are not authorized under Section 712 of the Act and

conducted by the Long Term Care Ombudsman Program or a grantee or

contractor of the Ombudsman Program is prohibited. This includes, but

is not limited to, ombudsman services in settings other than long term

care facilities, as defined in Section 102(19) and (34) of the Act and

Sec. 1327.3, and activities under Title VII, Chapters 3, 4 and 5

conducted by individuals or agencies other than the Ombudsman or

Ombudsman Program, or the Ombudsman's grantee or contractor.

(5) Use of Title VII, Chapter 5 funding (Outreach, Counseling and

Assistance Program). States may use funding under Chapter 5 to conduct

any of the activities outlined under Section 741(c) of the Act. If a

State determines that any area agency on aging is eligible to receive

funding to conduct activities under Chapter 5, the State is required by

Section 705(a)(7) to apply the eligibility and priority criteria set

forth in the statute.

(6) Non-applicability of Title III funding provisions. (i)

Effective October 1, 1994, States may not include any Title VII funds

in their calculation of Federal funds available for State plan

administration. Title VII funds may be used to support any activity

directly related to implementing the chapter for which they are

appropriated.

(ii) Title VII funds allotted to the States may not be included in

the base amount used to calculate the ten percent limitation on the use

of funds for area plan administration under the provisions of Section

304(d)(1)(A) of the Act.

(b) Requirements of area agencies. (1) Area agencies may use funds

allocated under Section 304(d)(1)(D) to support ombudsman program and

other elder rights activities.

(2) Area agencies must expend on local or regional ombudsman

program activities for residents of long term care facilities, as

defined in Sections 102(19) and (34) and 712 of the Act and

Sec. 1327.3, not less than the total amount of Title III funds received

under Section 304(d)(1)(D) of the Act and expended by the area agency

in carrying out the Ombudsman Program under Title III in FY 1991.

Subpart C--Long-Term Care Ombudsman Program

Sec. 1327.21 Establishment.

(a) Ombudsman access to decision-making officials. The State must

ensure that the State Ombudsman has direct access to the directors of

State governmental entities with responsibilities which impact on

residents of long-term care facilities.

(b) Local Ombudsman entities and ombudsman representatives. The

State agency shall establish criteria and a process for participation

in the statewide Ombudsman Program by local ombudsman entities and

ombudsman representatives. The criteria must:

(1) Stipulate that the State Ombudsman has the authority to

designate local ombudsman entities and ombudsman representatives and to

revoke designation, if necessary;

(2) Ensure that local entities designated to participate in the

Ombudsman Program have experience in advocating for the individual and

collective rights of vulnerable people and are not primarily service

providers;

(3) Establish a procedure for hiring, supervising, training,

evaluating and, if necessary, dismissing ombudsman representatives and

for evaluating the performance of the local ombudsman entity;

(4) Ensure that local ombudsman entities and ombudsman

representatives have no conflict of interest, as described in

Sec. 1327.25;

(5) Provide for an appeal procedure for local ombudsman entities or

representatives whose designation is revoked by the State Ombudsman in

order to ensure that ombudsman entities or designated representatives

which faithfully and effectively carry out the duties outlined in

Section 712(a)(5)(B) of the Act are retained as part of the statewide

Ombudsman Program, except when good cause is shown warranting their

removal.

(c) Representation of residents interests. Representatives

specifically designated by the Ombudsman for such purpose shall have

the right and authority to advocate on behalf of residents in transfer,

discharge and other administrative hearings by serving as witnesses and

presenting information and testimony.

(d) Additional Ombudsman duties. In addition to the ombudsman

functions specified in Section 712(a)(3) (A-H) of the Act, the

Assistant Secretary on Aging determines it appropriate that the

Ombudsman and ombudsman representatives work to ensure that board and

care and similar adult care facilities throughout the State are

licensed, as appropriate and in accordance with State and Federal laws

and regulations, and that licensing standards are enforced.

Sec. 1327.22 Procedures for access.

The State agency shall ensure through administrative policy,

regulation or securing the enactment of State legislation, if

necessary, that the Ombudsman and all designated ombudsman

representatives have the right and an established process for access

to:

(a) Facilities covered by the statewide Ombudsman Program;

(b) Residents, including residents with legal representatives or

guardians;

(c) Residents records, including residents with legal

representatives or guardians, with strict adherence to the consent

procedures outlined in Section 712(b)(1) of the Act;

(d) Long-term care facilities' records, policies and documents to

which the residents or the general public have access;

(e) Copies of all licensing and certification records maintained by

the State with respect to long-term care facilities; and

(f) Death certificates and related records, when these are required

in the investigation of complaints.

Sec. 1327.24 Disclosure/confidentiality.

(a) In monitoring the Ombudsman Program, access to files, minus the

identity of any complainant or resident of a long-term care facility,

shall be available only to the director or one senior manager of the

organization in which the Ombudsman Program is administratively

located. The individual who performs this monitoring function must have

no conflict of interest, as defined in section 712(f) of the Act and

Sec. 1327.25. In the conduct of the monitoring of the Ombudsman

Program, the confidentiality of complainants and residents of a long-

term care facility shall be protected, in accordance with Section

712(d) of the Act. This rule applies to ombudsman files at the State

and local levels.

(b) The confidentiality provisions in Section 705(a)(6)(C) of the

Act pertain to information provided to the agencies and programs

specified in this section, including the Ombudsman Program. This

provision does not require the Ombudsman Program to abridge the

confidentiality requirements specified in Section 712(d) of the Act.

Neither a State or Area agency nor any other State agency may require a

representative of the State Long-Term Care Ombudsman Program to

disclose the identity of a complainant or resident except under

conditions outlined in Section 712(d).

Sec. 1327.25 Conflict of interest.

(a) Designation of the Ombudsman and ombudsman entities and

representatives. As stated in Section 712(f)(1) of the Act, any

individual, or member of the immediate family of an individual involved

in the designation, by appointment or otherwise, of the Ombudsman or

ombudsman entities or representatives (and who correspondingly has the

authority to remove the Ombudsman and ombudsman representatives from

office), must be free of any conflict of interest. It would be a

conflict of interest for an official or employee of any agency at

either the State or local level, including State and area agencies on

aging, which directly administers the licensing and certification of

long-term care facilities, owns or operates such facilities, or

provides long-term care services to designate or remove from office the

Ombudsman or ombudsman representatives.

(b) Oversight of Ombudsman contract. Where the State or area agency

on aging contracts with another agency to operate the Ombudsman

Program, the State or area agency staff person or persons who oversee

the contract must not be involved in licensing, certifying or

administering long-term care facilities or services.

(c) Prohibitions on ombudsman assignments. (1) The State Ombudsman

and ombudsman representatives may not work for or otherwise represent

adult protective services programs or program units which develop and

carry out care plans for; provide involuntary services to; are

authorized to take temporary custody of; or serve as guardians,

conservators or legal representatives for any clients.

(2) The State Ombudsman and ombudsman representatives may not serve

as a resident's agent, medical decision-maker or surrogate; the sole

witness for Do Not Resuscitate (DNR) orders or other medical

directives; or as a member of a facility's ethics committee which makes

medical decisions for residents without the capacity to evidence their

preference, although ombudsmen may serve on such committees in an

advisory capacity.

Sec. 1327.26 Legal counsel.

(a) The State agency shall develop and implement written policies

and procedures which stipulate how the State will fulfill its

obligation to:

(1) Provide adequate legal counsel to the Ombudsman and ombudsman

representatives to assist them in protecting the health, safety,

welfare, and rights of residents and in the performance of their

official duties; and

(2) Provide legal representation to any representative of the

Office against whom suit or other legal action is brought or threatened

to be brought in connection with the performance of the official duties

of the Ombudsman or such representative.

(b) The policies and procedures required in paragraph (a) of this

section shall be disseminated to all representatives of the Office and

regularly included in training provided to ombudsman representatives.

Sec. 1327.27 Administration.

(a) The Ombudsman and ombudsman representatives may serve disabled

individuals under the age of 60 who are living in long-term care

facilities, if such service does not weaken or decrease service to

older individuals covered under the Act.

(b) Coordination with State Adult Protective Services programs and

Protection and Advocacy programs. The State Ombudsman shall establish

written agreements with the State Adult Protective Services Program and

the State Protection and Advocacy Program for individuals with

developmental disabilities and mental illnesses. The agreements shall

stipulate:

(1) How the staff and financial resources of the various programs

shall be utilized to meet needs of the vulnerable adults which the

programs are responsible to serve;

(2) The policies and procedures which the statewide Ombudsman

Program and the other programs will follow regarding referral of

requests for assistance and investigation of complaints involving:

(i) Residents of long-term care facilities who have been or may

have been abused or exploited; and

(ii) Developmentally disabled and/or mentally ill individuals

living in long-term care facilities or in need of long-term care

services;

(3) A protocol for reporting complaints involving alleged abuse and

exploitation which ensures prompt response to those in need while

protecting confidentiality, in accordance with statutory and regulatory

requirements.

(c) Coordination with State Licensing and Certification Agencies.

The State Ombudsman shall establish written agreements with the State

agencies responsible for licensing and/or certifying for participation

in Titles XVIII and XIX of the Social Security Act long term care

facilities covered by the statewide Ombudsman Program. The agreements

shall include, but not be limited to, procedures for complaint

investigation, verification and resolution by both agencies;

transmittal of information about facilities; ombudsman participation in

facility surveys and shared training of staff.

Sec. 1327.28 Liability.

The State agency must ensure that no representative of the Office

will be liable under State law for the good faith performance of

official duties and shall indemnify and hold harmless any Ombudsman or

ombudsman representative against whom suit or other legal action is

brought or threatened to be brought in connection with the performance

of the official duties of the Ombudsman or such representative. In no

case may the State agency on aging require any substate agency or

organization to fulfill this State agency responsibility.

Sec. 1327.29 Noninterference.

(a) General principles governing noninterference. In the conduct of

all aspects of the statewide Long Term Care Ombudsman Program, the

integrity of the work of the Ombudsman and ombudsman representatives

must be maintained; and there must be no inappropriate or improper

influence from any individual or entity, regardless of the source,

which will in any way compromise, decrease or negatively impact on:

(1) The objectivity of the investigation or outcome of complaints;

(2) The Ombudsman's primary role as advocate for the rights and

interests of the resident;

(3) The Ombudsman's work to resolve issues related to the rights,

quality of care and quality of life of the residents of long-term care

facilities; or

(4) The Ombudsman's statutory responsibility to provide such

information as the Office of the Ombudsman determines to be necessary

to public and private agencies, legislators and other persons regarding

the problems and concerns of residents and recommendations related to

residents' problems and concerns.

(b) Any interference with the work of the Ombudsman, as outlined in

paragraph (a) of this section, by an individual who is an official or

employee of the State agency on aging or of an organization or agency

which operates the Ombudsman Program under grant or contract with the

State agency shall be deemed to be a failure to comply with the State's

duty under Section 705(a) of the Act to carry out the Ombudsman Program

in accordance with the requirements of Chapters 1 and 2 of the Act.

Subpart D--Programs for Prevention of Elder Abuse, Neglect, and

Exploitation

Sec. 1327.31 Elder Abuse, Neglect and Exploitation Prevention Section

of Elder Rights Plan.

In the Elder Rights plan required in Sec. 1327.11, States shall

describe:

(a) The specific roles of the various agencies in the development

and implementation of the abuse, neglect and exploitation prevention

part of the Title VII plan;

(b) The process used to determine how the elder abuse prevention

funds are to be spent and how this use complements, strengthens, or

otherwise enhances the State's adult protective services activities;

and

(c) How activities conducted with elder abuse prevention funds will

be regularly monitored and evaluated for their effectiveness in

preventing, reducing or remedying elder abuse, neglect and

exploitation.

Subpart E--State Elder Rights and Legal Assistance Development

Program

Sec. 1327.41 Functions.

The State shall provide, either directly or through contract, an

individual who shall be known as the State Legal Assistance Developer

to provide leadership in areas outlined in Section 731(b)(2) of the

Act. This individual may not serve as house counsel to the State agency

on aging or any other agency which employs the individual.

Subpart F--State Outreach, Counseling, and Assistance Program for

Insurance and Public Benefits

Sec. 1327.51 Coordination.

The State unit implementing outreach and counseling activities

authorized under Chapter 5, Section 741 of the Act shall coordinate

their efforts with the State unit which is the recipient of funds for

health insurance information, counseling and assistance authorized

under Section 4360 of the Omnibus Reconciliation Act of 1990 (42 U.S.C.

1395 et seq.).

[FR Doc. 94-28163 Filed 11-14-94; 8:45 am]

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