Below is a list of frequently asked questions (FAQs) to assist State Agencies on Aging, States’ Long-Term Care Ombudsman Programs, and other entities that work with Ombudsman programs with implementation of the State Long-Term Care Ombudsman Programs Rule.
Please note: Questions and comments that are specific to an individual participant, provider, Area Agency on Aging, State Agency on Aging, or another organization will be referred to the appropriate agency for action.
Please note: Effective July 1, 2016, 45 CFR 1327 was renumbered in the Code of Federal Regulations as 45 CFR 1324.
- 1) Does the Long-Term Care Ombudsman program have the authority to work to resolve complaints about the guardian or other resident representative of a resident?
There are several ways that the LTC Ombudsman program can serve residents who have guardians or other resident representatives:
1. Complaint processing
The Older Americans Act (OAA) provides the Long-Term Care (LTC) Ombudsman program with the authority to identify, investigate and resolve complaints made by, or on behalf of, residents. This authority is not limited to residents without guardians or other representatives. The complaint investigation and resolution authority applies to residents with guardians or other resident representatives, as well as residents without such representatives.
The Ombudsman has the authority personally, or through representatives of the Office, to identify, investigate and resolve complaints relating to “the action, inaction and decisions … (including the welfare and rights of residents with respect to the appointment and activities of resident representatives) of: (A) providers, or representatives of providers, of long-term care; (B) public agencies; or (C) health and social service agencies.” 45 CFR 1324.13(a)(1).
So long as doing so is not contrary to the resident’s interests, coordination of efforts with the resident’s representative is encouraged and can be an important and beneficial strategy in successfully resolving resident complaints.
Examples of ways that LTC Ombudsman programs may work to resolve complaints related to guardians or other resident representatives include:
- If the resident representative is in his/her role as part of a public, health or social service agency, the Ombudsman program has the authority to work to resolve a complaint about the action, inaction or decisions of the resident representative.
- If the complaint is related to an action, inaction, or decision that the resident’s representative made with a service provider or agency (that adversely affects the health, safety, welfare or rights of the resident), then the Ombudsman program has authority to investigate and resolve the complaint.
2. Referrals as Complaint Resolution Strategy
- Where a resident (including a resident who has a resident representative) indicates a desire for regulatory, protective services and/or law enforcement action and has communicated informed consent, the Ombudsman program must assist the resident in contacting the appropriate agency and/or disclose information for which the resident has provided consent. See 45 CFR 1324.19(b)(3)(i).
- Where a resident’s goals can be served by disclosing information to a facility representative or by making a referral to another entity, the Ombudsman program may assist the resident (including a resident who has a resident representative) in contacting the appropriate facility representative or the entity, provide contact information for the entity to the resident, and/or disclose information for which the resident has provided consent. See 45 CFR 1324.19(b)(3)(ii).
3. Other activities
Additionally, LTC Ombudsman programs may perform other ombudsman activities to assist residents regarding their guardians or other resident representatives. For example, the LTC Ombudsman program can assure access to administrative, legal and other remedies:
- Where a resident wishes to have a power of attorney revoked to remedy financial exploitation by agent, the Ombudsman program could (with resident consent) refer the resident to a non-profit legal services program to provide legal advice to the resident and to execute the revocation of the power of attorney.
- Where a resident wishes to have a guardianship removed or a guardian changed, the Ombudsman program could (with resident consent) assist with referral to legal services and/or provide such information to the court overseeing the guardianship.
We note that guardianship, powers of attorney, and a number of other fiduciary relationships fall within the purview of state laws. So, in addition to the above examples which are authorized under the OAA and 45 CFR 1324, state laws may provide additional options for residents and/or additional authorities for LTC Ombudsman programs.
- 2) The Rule requires that the representative of the Office obtain the approval of the Ombudsman in order to make referrals and disclose resident-identifying information in a situation where a resident has a resident representative who is not acting in the resident’s best interest and the resident is unable to communicate informed consent. May the Ombudsman delegate this authority or develop policies and procedures that provide authority for others in the Ombudsman program to disclose such information?
No. Disclosure of resident-identifying information by a representative of the Office where a resident representative is not acting in the resident’s best interest and the resident is unable to communicate informed consent requires Ombudsman approval. 45 CFR 1324.19(b)(7)(iv),(9)(iii).
These situations have the potential to be complex and controversial, since they may involve release of resident-identifying information over the objection of an authorized resident representative. We believe this is the reason why Congress required Ombudsman approval for a representative of the Office to access resident information necessary to investigation a complaint where a guardian is not acting in the best interests of the resident. OAA Section 712(b)(1)(B)(ii). We believe that same rationale applies regarding disclosure of this information. Therefore, in the Rule, we require Ombudsman approval for release of resident-identifying information in these circumstances. The Ombudsman (or, if the Ombudsman is unavailable, the Acting Ombudsman or the individual temporarily authorized to carry out the functions and responsibilities of the Ombudsman when the Ombudsman is unavailable) is the only one authorized to approve the request to access information or disclose information in these situations.
- 3) Is it a prohibited conflict of interest for the Ombudsman to report to a supervisor who supervises other agency staff with conflicting responsibilities?
Regardless of the supervisory structure, we strongly encourage states to consider the importance of establishing reporting structures that support the Ombudsman’s ability to fulfill his/her functions fully and to avoid situations in which a supervisor’s oversight of conflicting (or potentially conflicting) programs or services makes such support difficult.
However, neither the law nor the Rule requires states to prohibit supervision of multiple programs with conflicting (or potentially conflicting) duties. Such conflicts are governed by the provisions related to organizational conflicts of interest. These provisions do not prohibit the director of the agency housing the Office of the State LTC Ombudsman (for example, the director of the State Unit on Aging or the director of the non-profit entity housing the Office) to supervise the Ombudsman. However, these provisions do require that states have policies and procedures in place to ensure that organizational conflicts of interest are identified, removed or remedied, and reported to ACL through the National Ombudsman Reporting System. 45 CFR 1324.21(a),(b).
- 4) What steps must states take if the supervisor of the Ombudsman has an individual conflict of interest?
Regardless of the supervisory structure, states must enable the Ombudsman to fulfill his/her functions. We strongly encourage states to consider the importance of establishing reporting structures that support the Ombudsman’s ability to fulfill his/her functions fully and to avoid situations in which a supervisor’s conflicting (or potentially conflicting) interests makes such support difficult.
If an individual who is responsible for designating, appointing, selecting or terminating the Ombudsman has an individual conflict of interest, the agency hosting the Office must take steps to remedy these conflicts, including arranging for designation, appointment, selection or termination actions to be taken by other individual(s) without individual conflicts of interest. OAA Section 712(f)(1); 45 CFR 1324.11(e)(4)(i); .21(b)(2)(iv).
- 5) May states or their aging or disability network partners (e.g., AAAs, ADRCs) use centralized intake processes to handle inquiries to the Ombudsman program?
The OAA requires the Ombudsman to “ensure that the residents have regular, timely, private and unimpeded access to the services provided through the Office.” Therefore, any intake process—regardless of whether it is part of the Office of the State LTC Ombudsman, part of a local Ombudsman entity, or external to these entities—should enhance the ability of residents (their representatives and others seeking the services of the Office) to have “regular, timely, private and unimpeded access” to the LTC Ombudsman program. OAA Section 712(a)(3)(D); see also 45 CFR 1324.13(a)(4).
All Intake Processes
Regardless of the intake process used, we recommend the following to states, LTC Ombudsman programs, area agencies on aging, and other host agencies, in order to meet the requirement to provide regular, timely, private and unimpeded access to the LTC Ombudsman program:
- Utilize translation services, technology, alternative formats, and other supports and services to provide barrier-free access, including for individuals with disabilities and limited English proficiency, as feasible.
- Implement procedures to prohibit inappropriate disclosure of resident-identifying or complainant-identifying information outside of the LTC Ombudsman program.
Centralized Intake Processes
ACL recognizes that a centralized intake process can be useful for providing individuals with access to the most appropriate resources and service providers, including the services of the LTC Ombudsman program. ACL strongly supports robust “No Wrong Door” services (including through Aging and Disabilities Resource Centers) and other information and referral services.
For those states, area agencies on aging, and other host agencies utilizing a centralized intake process for multiple programs and services, we suggest the following additional considerations in order to meet the requirement to provide regular, timely, private and unimpeded access to the LTC Ombudsman program:
- Provide training so that staff can appropriately respond to requests for information and assistance, to make referrals to the LTC Ombudsman program when appropriate, and to provide individuals with a clear understanding of what assistance is (and is not) available through the intake process. Intake staff external to the LTC Ombudsman program should take every precaution to avoid disclosure of resident or complainant-identifying information when individuals served are seeking access to the LTC Ombudsman program.
- Provide a process to refer individuals to the LTC Ombudsman program without collection of information when they identify they want help from an ombudsman, or request an ombudsman by name. Intake processes should allow for an easy referral to the LTC Ombudsman program, ensuring confidentiality of information provided by the individual and including an option for individuals to directly reach (or leave a confidential message with) the LTC Ombudsman program.
- Consider implementing the standards developed by the Alliance of Information and Referral Systems.
LTC Ombudsman Program Intake Processes
A designated intake process for the LTC Ombudsman program may lessen confusion for callers about the service that they are reaching and clarifies when LTC Ombudsman program disclosure of information requirements apply. See 45 CFR 1324.11(e)(3); .19(a)(3); (b)(2)(i). For LTC Ombudsman programs utilizing an Ombudsman program-specific intake process, we suggest the following additional considerations:
Provide access to training so that LTC Ombudsman personnel are able to:
- Appropriately accept LTC Ombudsman program complaints;
- Respond to requests for information and assistance within the purview of the LTC Ombudsman program;
- Make referrals; and
- Explain what assistance is (and is not) available through the LTC Ombudsman program.
- 6) When an Ombudsman or representative of the Office holds a professional license which compels reporting of certain information (e.g., mandatory abuse reporting), how should the Ombudsman program handle the conflicting mandates regarding disclosure of resident-identifying information?
The OAA and implementing regulations include strict disclosure provisions. The regulations specifically prohibit the Ombudsman or representatives of the Office from reporting suspected abuse, neglect or exploitation of a resident without informed consent, notwithstanding State laws to the contrary. 45 CFR 1324.19(b)(3)(iii). The Preamble to the Final Rule addresses the Congressional intent “for the Ombudsman program to be a safe place for the concerns of residents to be brought, knowing that their information will not be disclosed without their consent …” 80 Fed. Reg. 7732.
In addition, the OAA provides that the Ombudsman must consider individual conflicts of interest that may impact the effectiveness of the office. 45 CFR 1324.21. If a professional licensing organization has mandatory reporting requirements that do not comport with the disclosure provisions under the OAA, this may create a conflict of interest.
ACL understands that State agencies and Ombudsmen are working to implement the LTC Ombudsman program in accordance with the Act and the Rule and to address any potential conflicts of interest. ACL encourages State agencies and Ombudsmen who identify licensing organization requirements that are in conflict to determine whether the professional licensing entity is able to provide a waiver or other type of remedy.
If individual concerns remain after such State agency or Ombudsman implementation activities, ACL encourages individuals who hold professional licenses and also serve as Ombudsmen or representatives of the Office to notify their respective licensing organization of this requirement in order to determine whether the professional licensing entity is able to provide a waiver or other type of remedy in order to avoid these conflicts.
- 7) If the Ombudsman decides not to disclose Ombudsman program information but there is a court order to release the information, which takes priority?
The OAA allows the Ombudsman discretion to determine when files or records maintained by the program may be disclosed; however, neither the OAA nor the Rule authorize the Ombudsman to prohibit disclosure where the disclosure is required by a court order. In order to limit disclosure of resident-identifying information and where appropriate, states have successfully used legal strategies, including motions to quash subpoenas, motions for documents to be sealed, and motions to limit disclosure to the judge (and not the parties to a legal action). See OAA Section 712(d).
- 8) ACL has received a number of questions related to the appropriateness of individuals (both staff and volunteer, designated and not designated) performing Ombudsman program activities. For example: Whether the Rule prohibits non-designated individuals to provide specific program support activities (e.g., answering the phone, entering data, providing IT services)? Whether the Rule requires that volunteers be designated in order to handle complaints or provide other program services?
ACL is in the process of developing training standards for designated representatives of the Office, as required by OAA Sections 201(d)(3)(L), 712(h)(5). In developing these standards, ACL plans to address the authority of designated individuals (both staff and volunteers) as well as limitations on activities and access to LTC Ombudsman program information of non-designated individuals. ACL plans to provide opportunity for stakeholder input into the development of these standards.
- 9) How will ACL know whether an Office of the State Long-Term Care Ombudsman is a “distinct entity, separately identifiable” as required by 45 CFR 1327.11(b)? Does the Office need to stand alone in an organizational box, or can it be located within another unit?
In its establishment of the Ombudsman program, ACL requires that the Office of the State Long-Term Care Ombudsman be a “distinct entity, separately identifiable” in order to provide ease of access for residents and complainants and to effectively meet other statutory requirements of the Office. In determining the organizational placement of the Office, it is also important to consider other relevant requirements, including: “… the Ombudsman must provide leadership and management of the Office and the organizational placement must avoid unremedied conflicts of interest.” (45 CFR 1327.11(c); 1327.21 (a)-(b)).
In determining whether these requirements are met, ACL may ask the State Agency on Aging and the Ombudsman for evidence that people living in long-term care facilities, their representatives, and other stakeholders are able to:
- Conveniently access the Office of the State Long-Term Care Ombudsman and
- Distinguish the Office from other programs and services.
In addition, ACL may ask the State Agency on Aging and the Ombudsman for evidence that recommendations of the Office are clearly identified as being issued by the Office, rather than by the host agency. While none of the following are specifically required by the Rule, possible examples of evidence of a “distinct entity, separately identifiable” could include, but not be limited to:
- Posters, brochures and other communications that clearly describe a distinct program
- A distinct web presence
- Office is organized as a separate unit that is separately identifiable on an organizational chart within an organizational structure
- Telephone access that goes directly to the Office
- Distinct letterhead for the Office
- A physical office or other work space that is separate from other programs/services
- Publicly-released reports, testimony, position papers, media releases, etc. that express the positions or recommendations of the Office
ACL will also evaluate whether the Ombudsman provides leadership and management of the Office, and that the organizational placement does not create conflicts of interest which cannot be adequately remedied.
- 10) What responsibilities are inconsistent with an Ombudsman serving “on a full-time basis” as required by 45 CFR 1327.11(c)?
The Ombudsman must serve as the head of the Office on a full-time basis. (Older Americans Act Section 712(a)(2); 45 CFR 1327.11(c)). However, the Rule does not prohibit the performance of non-ombudsman related work on a time-limited, intermittent basis. It also does not prohibit the Ombudsman program from providing ombudsman services to populations other than residents of long-term care facilities as long as the appropriations under the Act are utilized to serve residents of long-term care facilities. Examples of such populations include, but are not limited to, recipients of long-term supports and services in their own homes or in adult day centers.
In determining whether this full-time basis requirement is met, ACL may ask the State Agency on Aging and the Ombudsman for evidence that additional responsibilities undertaken by the Ombudsman do not interfere with or detract from Ombudsman program services. ACL may also request evidence of how an additional responsibility is expected to benefit residents even though residents are not the sole focus of the additional responsibility, such as work that addresses long-term services and supports system improvements.
For example, a State Agency on Aging or Ombudsman might convincingly argue that an Ombudsman serving on an agency leadership team could strengthen the Ombudsman program and offers an opportunity to represent resident concerns at an executive level; it could provide the Ombudsman with better understanding and opportunities for input into the decisions and plans of the agency, which could benefit residents and/or the Ombudsman program.
On the other hand, a State Agency on Aging or an Ombudsman may be unable to show how the Ombudsman’s supervision of non-Ombudsman program employees and/or work on other program budgets and policies supports the work of the Ombudsman program or otherwise benefits the program’s service population. In these cases, the intent of the Rule to have an Ombudsman focused full-time on the Ombudsman program and the interests of its service population will not have been met.
- 11) Does the Rule describe responsibilities of the Ombudsman that are different from the duties of representatives of the Office regarding commenting on or recommending changes to laws, regulations, and policies?
Yes. The Rule provides latitude for Ombudsman program policy to clarify how these activities can be operationalized within a particular State’s program at state and local levels.
There are a number of differences between the responsibilities of the Ombudsman and the duties of the representatives of the Office which are described in both the Act and the Rule and which relate to systems advocacy activities (including commenting on or recommending changes to laws, regulations, and policies).
Relevant systems advocacy provisions that relate specifically to the Ombudsman (or to the Office, which the Ombudsman heads), but not to representatives of the Office, include:
- A State’s policies and procedures must assure that the Office of the State Long-Term Care Ombudsman (the Office) has sufficient authority to carry out its responsibility to, among other things, recommend changes to laws, regulations, and policies as the Office determines to be appropriate. (Older Americans Act Section 712(h)(2); 45 CFR 1327.11(e)(5); emphasis added)
- Recommending changes in laws, regulations, policies, and actions as the Office determines to be appropriate is specifically a function and responsibility of the Ombudsman. (OAA Section 712(a)(3)(G); 45 CFR 1327.13(a)(7)(ii))
- The Ombudsman must fulfill other functions related to systems advocacy, including “leadership to statewide systems advocacy efforts of the Office … including coordination of systems advocacy efforts carried out by representatives of the Office.” (45 CFR 1327.13(a)(7)(iv)).
We note that the Rule does not prohibit the Ombudsman from delegating some systems advocacy activities to representatives of the Office. In fact, among the duties of the representatives of the Office are to “review, and if necessary, comment on … government policies and actions.” (OAA Section 712(a)(5)(B)(v)(I); 45 CFR 1327.19(a)(5)(i); emphasis added). This means that the Ombudsman (consistent with Ombudsman program policy and procedures) can specify under what circumstances it may be necessary for a representative of the Office to comment on government policies and actions.
We further note that the Rule requires procedures to ensure that both the Ombudsman and representatives of the Office are not prohibited by State lobbying provisions from performing duties, including systems advocacy, required in section 712 of the Act. (45 CFR 1327.11(e)(5)(i)).
- 12) What types of matters must be addressed by the grievance process, as required in 45 CFR 1327.11(e)(7)?
The grievance process is to be available “for the receipt and review of grievances regarding the determinations or actions of the Ombudsman and representatives of the Office.” Examples include, but are not limited to:
- An Ombudsman determination not to designate an individual as a representative of the Office;
- An Ombudsman determination to de-designate a local Ombudsman entity;
- A complaint by a facility about the manner in which a representative of the Office carries out ombudsman services (such as a visit to residents, complaint handling, or a facility staff training) while in the facility;
-An action by a representative of the Office on complaint resolution with which a resident or complainant disagrees. An example could be that a representative of the Office closes a case but the complainant or resident does not believe that work is complete.
- 13) What should be considered by the Ombudsman when monitoring designated local Ombudsman entities, required in 45 CFR 1327.13(c)(1)(iii)?
Ombudsman monitoring of local Ombudsman entities may include, but is not limited to:
- Review of complaint processing and other Ombudsman program activity data;
- Visits to local Ombudsman entities to meet with volunteers, agency staff, and/or review records;
- Observation of representatives of the Office on visits to facility residents
- Review of all or samples of individual case files for complaint processing review,
- Fiscal monitoring, including review of budget, expenditure, and audit reports;
- Conflict of interest assessments and review of steps taken to remedy or remove conflicts;
- Review of accuracy of Ombudsman program activities and fiscal reporting;
- Review of local Ombudsman entity coordination with other relevant agencies;
- For programs with volunteer representatives of the Office, review of volunteer management policies, procedures and practices (including but not limited to recruitment, screening, training, and supervision);
- Meetings with host agency and/or Area Agency on Aging leadership
- Discussions with State Agency on Aging liaisons to Area Agencies on Aging.
- 14) Does the rule require the Ombudsman to develop memoranda of understanding with all of the entities listed in 45 CFR 1327.13(h)?
No, with one exception noted below.
The Rule requires Ombudsman program coordination with these entities, but the nature of that coordination may vary. While memoranda of understanding are a common approach to clarify and formalize a working relationship between entities, they may not be the best mechanism to promote successful coordination in every instance.
The intent of the Rule is to promote effective coordination for the benefit of residents, over and above mere paper compliance. However, the State and Ombudsman should be prepared to show ACL evidence of coordination with each of these entities, and a memorandum of understanding is an example of such evidence. Other examples include, but are not limited to: coordinated activities requirements in policies and procedures, joint or cross-training opportunities, joint participation in advisory groups or issue-focused workgroups, referral protocols, and/or standing meetings of the Ombudsman with leadership of the entity.
The exception: the Act specifically requires adoption of memoranda of understanding with respect to coordination with one entity: Title IIIB legal assistance. (Older Americans Act Section 712(h)(7)).
- 15) How does a State or Ombudsman determine whether legal counsel is sufficient to comply with the requirements of 45 CFR 1327.15(j)?
ACL recommends that the Ombudsman, in coordination with the State Agency on Aging, assess their programmatic needs for legal assistance and determine unmet needs for access to adequate, available, competent, and conflict-free legal counsel. It is possible that legal assistance can best be served by one law firm or attorney; it is also possible that legal services may more appropriately be accessed from a variety of sources. (45 CFR 1327.15(j)(2)). However, merely having an Ombudsman or representative of the Office who is a licensed attorney is not sufficient by itself to meet the requirements of the Rule. (45 CFR 1327.15(j)(3)).
Specific requirements related to legal counsel include:
- Representation of “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.”. (Older Americans Act Section 712(g)(1)(B); 45 CFR 1327.15(j)(1)(iii)).
- Legal counsel for “advice and consultation needed to protect the health, safety, welfare, and rights of residents.” In addition, legal counsel is required to be available to “assist the Ombudsman and representatives of the Office in the performance of the official duties of the Ombudsman and representatives.” (OAA Section 712(g)(1)(A); 45 CFR 1327.15(j)(1)(i)).
Depending on identified programmatic needs, examples could include, but are not limited to:
- Representation of the Ombudsman program in response to court orders regarding disclosure of Ombudsman program information.
- Representation of the Ombudsman in his/her role as the Patient Care Ombudsman in federal bankruptcy proceedings.
- Legal advice related to developing programmatic policies or legal documents (e.g., program regulations, contracts, policy and procedure manual reviews).
- Legal advice related to systems advocacy on behalf of resident interests (e.g., review of legislation, drafting of recommended legislative or regulatory language).
- Legal advice regarding complaint resolution for complex cases, including those that involving legal issues.
- Advice regarding, and/or drafting responses on behalf of the Ombudsman program in response to, formal requests for disclosure of program information (e.g., depositions, subpoenas, interrogatories, public records requests).
- 16) What constitutes a conflict of interest for purposes of legal counsel?
In determining conflicts of interest related to legal counsel, the State ethical standards governing the legal profession must be utilized. (45 CFR 1327.15(j)(1)(i)). In situations where legal services come from a variety of sources, a conflict of interest regarding representation of some clients would not always constitute a prohibited conflict for the Ombudsman program.
In States in which the attorney general represents the Ombudsman and/or representatives of the Office, representation by the Attorney General may be appropriate in some situations but conflicted in others. At times, an attorney general’s representation of state-operated long-term care facilities, the state survey and certification agency, state adult protective services, the state Medicaid agency, or other state agencies could pose a conflict of interest, disqualifying the attorney general from representing the Ombudsman program, for certain—but not all—legal matters. For example, the fact that the attorney general represents state-operated long-term care facilities would not necessarily pose a disqualifying conflict of interest in a matter that did not involve such facilities, such as representing the Ombudsman in his/her role as a Patient Care Ombudsman in a bankruptcy proceeding regarding privately-owned long-term care facilities.
- 17) Does an Ombudsman program need to hire separate in-house legal counsel to comply with the requirements of 45 CFR 1327.15(j)?
No. While a number of states have found advantage to having in-house legal counsel, it is not required. Further, having in-house legal counsel does not necessarily mean that all of the legal needs of the program are met if needs arise for which the in-house counsel lacks competency. As indicated in the response above, legal counsel may need to be obtained from more than one source, depending on the legal needs of the program.
- 18) Does the Rule require that Ombudsman programs provide legal services to residents?
No. Neither the Act nor the Rule requires the Ombudsman program to provide legal services to residents. In fact, an ombudsman service is a type of alternative dispute resolution service, designed to avoid the need for more formal legal or regulatory processes to resolve complaints.
Both the Act and Rule require that the Ombudsman and representatives of the Office:
- Assist residents in seeking, pursuing or accessing “administrative, legal and other appropriate remedies,” and
- “Represent the interests of residents before governmental agencies.”
(Older Americans Act Section 712(a)(3)(E), (a)(5)(B)(iv); 45 CFR 1327.13(a)(5), 1327.19(a)(4)).
The Rule clarifies that the responsibility to “assist residents in seeking administrative, legal and other appropriate remedies” must be carried out in coordination with “the legal services developer, legal services providers, and victim assistance service to promote the availability of legal counsel to residents.” (45 CFR 13271.15(j)(1)(ii)).
Ombudsman programs can fulfill these requirements in numerous ways which are consistent with alternative dispute resolution. For example, when a resident receives an involuntary discharge notice that provides a notice of right to an administrative hearing, a representative of the Office could:
- Ensure that the resident understands the notice and how to request an administrative hearing,
- Inform the resident of available supports to make sure his/her interests are represented in the process,
- Refer the resident to a non-profit legal services program to file the hearing request,
- Represent the resident’s interests by providing testimony at the hearing,
- Accompany the resident to the hearing for emotional support, and/or Serve as a spokesperson for a resident for administrative hearings pursuant to 42 CFR 431.206(b)(3).
- 19) What is meant by the requirement that a host agency of a local Ombudsman entity is responsible for “personnel management, but not programmatic oversight” of “representatives of the Office,” as required in 45 CFR 1327.17(a)?
The Older Americans Act creates a circumstance for the Ombudsman program that is unique among programs funded by the Act in that it requires that the employees and volunteers of a local Ombudsman entity “represent” the Office.
States with local Ombudsman entities may divide some responsibilities between the host agency and the Ombudsman. For example, the host agency may retain the authority over the personnel functions of the agency, such as hiring and firing. However, the Ombudsman must have responsibility for the programmatic functions of the Ombudsman program, including designation and de-designation of representatives of the Office.
Representatives of the Office, including those hired by (or volunteers managed by) a local Ombudsman entity, are to be accountable to the head of the Office (i.e. the Ombudsman) for purposes of Ombudsman program operations. For example, they must follow the policies, procedures and guidance of the Ombudsman regarding complaint processing and other Ombudsman program activities. In addition, the Ombudsman must provide technical assistance to representatives of the Office. (OAA Section 712(a)(3)(F); 45 CFR 1327.13(a)(6)).
At the same time, representatives of the Office who work within a local Ombudsman entity also represent (as an employee or volunteer) the host agency. The local Ombudsman entity and/or its host agency is responsible for day-to-day personnel management.
There are situations where personnel and programmatic policies overlap. In these situations, programmatic policies and procedures take precedence. (45 CFR 1327.17(b)). For example, the Ombudsman could advise a representative of the Office who is investigating a complaint about inadequate weekend facility staffing to visit the facility during weekend hours. The agency, in order to be consistent with the Rule, must have a personnel policy that permits work outside normal business hours. As an employer, the host agency is also responsible for complying with other employment laws (including the Fair Labor Standards Act) and any applicable collective bargaining agreements.
Some states clarify these distinct responsibilities through grants or contract language, statements of work, or memoranda of understanding. Examples of provisions include the Ombudsman sharing with the host agency information related to program monitoring/program management to assist in the host agency’s personnel performance reviews, and coordinating hiring/firing and designation/de-designation processes. While hiring/firing decisions are the responsibility of the host agency and designation/de-designation decisions are the responsibility of the Ombudsman, close coordination through these processes can benefit both the Ombudsman and the host agency.
- 20) Is it acceptable for individuals who lead host agencies or supervise representatives of the Office, but who do not perform the duties of representatives of the Office, to be designated as representatives of the Office?
Both the Older Americans Act and the Rule indicate that it is the duty of the Ombudsman to make determinations regarding the designation of representatives of the Office. (OAA Section 712(a)(5); 45 CFR 1327.11(e)(6), .13(c)).
The Rule defines “representatives of the Office” as the “employees or volunteers designated by the Ombudsman to fulfill the duties set forth in §1327.19(a).” (45 CFR 1327.1; emphasis added). Fulfillment of Ombudsman program duties is the purpose for the Ombudsman’s designation of a representative of the Office. Therefore, it would be inconsistent with this definition for an individual who does not work to resolve complaints and perform the other Ombudsman program functions to be designated by the Ombudsman as a representative of the Office.
It also would be inappropriate for an Ombudsman to designate host agency directors in order to circumvent disclosure requirements of the Act and Rule. Host agency directors should not have access to Ombudsman program information (including resident- or complainant-identifying information) that would be inappropriate for the Ombudsman program to disclose without resident consent or court order. (See 45 CFR 1327.11(e)(3)).
Additionally, if an Ombudsman coordinator of the local Ombudsman entity is responsible for coordinating Ombudsman program activities at the local/regional level, the designation of the director of the host agency would put the Ombudsman coordinator in the inappropriate position of overseeing the practices of his or her supervisor.
We note that host agency directors may well be interested in better understanding Ombudsman program duties and may wish to participate in part or all of certification training. This is not prohibited. On the contrary, a more full understanding of the Ombudsman program’s duties and person-centered philosophy may be beneficial to host agency directors or other interested individuals. However, mere participation in training would not make the individual appropriate for designation as a representative of the Office if he or she is not expected to perform Ombudsman program duties and meet other designation requirements.
- 21) Is the content in the Ombudsman program’s annual report, as required in 45 CFR 1327.13(g), subject to review and approval of the State Agency on Aging, other host agency or governor’s office?
The Rule does not prohibit (and, indeed, ACL strongly encourages) coordination with the State Agency on Aging with respect to the Ombudsman annual report. It also clearly indicates that the annual report shall be independently developed and approved by the Ombudsman. (45 CFR 1327.13(g)). While a state could appropriately implement a process in which the State Agency on Aging or other entity reviews the report and offers input for consideration before the report is final, final approval of the report’s content is to be determined by the Ombudsman.
This practice is consistent with the requirement of the Older Americans Act and the Rule that the Ombudsman make recommendations to changes in federal, state and local laws, regulations, policies and actions pertaining to the health, safety, welfare, and rights of residents as the Office determines to be appropriate. (OAA Section 712(h)(2); 45 CFR 1327.11(e)(5),(8)). It is also consistent with the long-standing requirement that the Ombudsman annually report into the National Ombudsman Reporting System “priority long-term care issues [including] a) the problem and barriers to resolution, and b) recommendations for system-wide changes needed to resolve the issue.” (OMB 0985-0005).
- 22) Does the Rule prohibit an Ombudsman or representatives of the Office from being mandated reporters under state abuse reporting laws?
Yes. Both the Older Americans Act and the Rule prohibit reporting of resident-identifying information without the resident’s consent. By logical extension, this precludes mandated reporting of suspected abuse which discloses such information.
Through the strict disclosure limitations within the Act, Congress has indicated its intent for the Ombudsman program to be a safe, person-centered place for residents to bring their concerns. Residents can be assured that their information will not be disclosed without their consent, the consent of the resident representative, or court order. (OAA Section 712(d)(2)(B)). Despite numerous Congressional reauthorizations of the Act, Congress has never provided an exception for abuse reporting in the Act.
Therefore, Ombudsman program policies and procedures must exclude the Ombudsman and representatives of the Office from abuse reporting requirements when such reporting would disclose identifying information of a complainant or resident without appropriate consent or court order. (45 CFR 1327.11(e)(3)).
The Rule does, however, clarify the following limited circumstances when an Ombudsman program has authority to report resident-identifying information without obtaining resident or resident representative consent:
- When a resident is unable to communicate informed consent and has no resident representative (45 CFR 1327.19(b)(6)); and
- When a resident is unable to communicate informed consent and the representative of the Office has reasonable cause to believe that the resident representative has taken an action, inaction or decision that may adversely affect the health, safety, welfare, or rights of the resident. (45 CFR 1327.19(b)(7)).
In addition, when the Ombudsman or representative of the Office personally witnesses suspected abuse, gross neglect, or exploitation of a resident, resident-identifying information shall be reported to appropriate agencies with resident or resident representative consent, or when the resident is unable to consent and there is no available resident representative to provide consent. (45 CFR 1327.19(b)(8)).
In each of these circumstances, the Rule has additional requirements in order for the Ombudsman program to appropriately disclose resident-identifying information. (45 CFR 1327.19(b)(6)-(9)).
While the Rule provides these limited exceptions for reporting resident-identifying information, we do not believe that the Act provides ACL with the authority to promulgate a rule that would permit Ombudsman program reporting of resident-identifying information if a resident or his/her resident representative, who is able to communicate informed consent, has not provided consent. Nor does ACL support such reporting over the resident’s objection, as a matter of policy.
The Ombudsman program is designed to represent the interest of the resident (and not necessarily the interest of the state) in order to support the resident to make informed decisions about the disclosure of his or her own information. Residents may be concerned about retaliation if their concern is known or have other reasons why they do not want the Ombudsman program to disclose their information.
While Congress intends for the Ombudsman program to resolve complaints related to the health, safety, welfare and rights of residents, and while that intent logically includes response to and protection from abuse, Congress provided the resident—and not the Ombudsman program—with the authority to make the decision about when and where their information can be disclosed by the Ombudsman program. That is as it should be.
- 23) Does the Rule prohibit Ombudsman programs from investigating abuse complaints?
No. Both the Older Americans Act and the Rule require the Ombudsman program to “identify, investigate, and resolve complaints that … relate to action, inaction or decisions that may adversely affect the health, safety, welfare, or rights of the residents.” (OAA Section 712(a)(3)(A), (a)(5)(B)(iii); 45 CFR 1327.13(a)(1), 1327.19(a)(1),(b)). Abuse, neglect and exploitation of residents are among the complaints that fall within this purview.
However, Ombudsman programs are not appropriately the official substantiator (or, finder of fact) for abuse complaints on behalf of the state or other governmental entity. Ombudsman programs represent the interests of residents, rather than the interests of the state or other governmental entity. (See OAA Section 712(a)(3)(E), (a)(5)(B)(iv); 45 CFR 1327.13(a)(5), 1327.19(a)(4)).
While the complaint resolution function of the Ombudsman program requires “investigation,” an Ombudsman investigation is not for the same purposes as an investigation by protective services, licensing and regulatory agencies, law enforcement or other entities that represent the state or other government entity in determining whether abuse occurred. In most states, substantiation determinations are made by adult protective services and/or the state’s licensing and regulatory agency, not by the Ombudsman program.
In contrast, when an Ombudsman program receives any complaint (including, but not limited to, an abuse-related complaint), it investigates solely for the purpose of gathering necessary information to resolve the complaint to the resident’s satisfaction. It does not investigate in order to officially determine whether any law or regulation has been violated or for purposes of taking official protective, regulatory, or enforcement action. The goal of the investigation is to resolve the complaint to the resident’s satisfaction, but not to substantiate whether the abuse or other allegation occurred.
The Ombudsman program does not have a duty to collect sufficient evidence to meet the higher legal standards of proof that protective services, licensing or regulatory agencies, or law enforcement may need to meet in order to fulfill their respective purposes. With appropriate consent, the Ombudsman program makes a referral to the appropriate protective service, regulatory, or law enforcement entity to investigate for its respective purpose.
With the Ombudsman program fulfilling its dispute resolution and advocacy duties, the priorities and interests of the individual resident can be supported in informal ways that often prevent the need for more formal regulatory or legal action. If the government entities charged with taking protective, regulatory, or enforcement actions are not providing the outcomes that serve the health, safety, welfare or rights of residents, the Ombudsman program is available to address these larger systemic problems. Therefore, it is critically important that each of these entities is able to distinctly fulfill their duties.