The ABCs of the Long-Term Care Ombudsman Program Becky A. Kurtz, JD Director, Office of LTC Ombudsman Programs The Consumer Voice conference November 2, 2016

Objective Understand how the federal government impacts your work with the Long-Term Care Ombudsman Program The past: Why does the US have a Long-Term Care Ombudsman Program? The present: Older Americans Act Reauthorization What is ACL and how does it impact your work? State LTC Ombudsman Program Rule National Ombudsman Reporting System (NORS) Federal (and state) initiatives expanding LTCO work in some states The future: State Implementation of LTCO Rule ACL’s LTCO Evaluation Updating NORS LTCO Training standards

Why does the US have a LTC Ombudsman Program? “Our nation has been conducting investigations, passing new laws and issuing new regulations relative to nursing homes . . . . If the laws and regulations are not being applied to [the individual], they might just as well not have been passed or issued.” U.S. Commissioner on Aging Arthur S. Flemming, 1976

Ombudsman (or, “ombuds”) 1970s--Nursing Home Ombudsman program created by US Commissioner on Aging Arthur Flemming Part of President Nixon’s initiative to improve conditions amid reports of nursing home resident abuse. Created as a Public Health Service demonstration project Congress later incorporated into Older Americans Act (OAA) 1978 – Congress reauthorized OAA; requires each state to have an LTC Ombudsman program Ombudsman (or, “ombuds”) “a person who investigates complaints and tries to deal with problems fairly” (Merriam Webster) a type of informal alternative dispute resolution service (not a legal or regulatory process or protective service) LTC Ombudsman designed as an “advocate ombuds” model Not a generic advocate, but a profession with standards of practice “Advocate ombuds” model – see ABA Ombuds Standards (2004) and Institute of Medicine report “Real People: Real Problems” (1995). Not a generic advocate; one based on ombuds standards of practice requiring: independence, confidentiality and impartiality in conducting investigations/inquiries (ABA)

Older Americans Act First passed in 1965 (companion to Medicare and Medicaid) To be reauthorized every 5 years 2016 Reauthorization Created the “Aging Network” Federal: Administration on Aging (part of ACL) administers OAA programs, primarily through grants to states States/Territories: State Units on Aging ACL/AoA approves State Plans on Aging Local: Area Agencies on Aging Provides infrastructure and authorization for social services and elder rights services for individuals aged 60+

OAA Reauthorizations related to LTC Ombudsman programs: 1980s–LTC Ombudsman program expanded to serve residents of “board and care,” similar adult care facilities. 1990s–LTC Ombudsman program part of new Title VII Elder Rights Title of OAA. 2000s–LTC Ombudsman service to residents of “assisted living” expressly included. Most recent: April 2016--Several LTC Ombudsman-related clarifications (e.g., not limited to residents aged 60+, examples of conflicts of interest)

OAA and the LTC Ombudsman Program Operated through grants to SUAs SUA responsible for program operation, even if Office of State LTC Ombudsman is not within SUA Law provides for: an “Ombudsman” (i.e. State LTC Ombudsman) who heads an “Office of the State LTC Ombudsman” Ombudsman designates “representatives of the Office” (i.e. some states use terms “local ombudsman” or “regional ombudsman”) Ombudsman designates “local Ombudsman entities” (some states use terms “local program” or “regional program”)

What is ACL? Created April, 2012 A new federal agency within Health and Human Services (HHS) initially bringing together: Administration on Aging (AoA), the Office on Disability (OD) and the Administration on Intellectual and Developmental Disabilities (AIDD) Since 2012, other federal aging and disability-related offices/programs have moved to ACL. AIDD – e.g., Protection and Advocacy networks, DD Councils Others – e.g., SHIPs, Independent Living Administration, NIDILRR (National Institute on Disability, Independent Living and Rehabilitation Research)

Administration for Community Living (ACL) Mission Maximize the independence, well-being, and health of older adults, people with disabilities across the lifespan, and their families and caregivers. Vision All people, regardless of age and disability, live with dignity, make their own choices, and participate fully in society.

What is ACL’s Office of Long-Term Care Ombudsman Programs? OLTCOP established by OAA; headed by Director. AoA hired first full-time director in 2010 “an effective and visible advocate” on behalf of residents of LTC facilities (Sec 201(d)) OLTCOP leads ACL/AoA’s LTC Ombudsman Program administration: ACL sends OAA “formula grants” to states (includes funds for LTCO programs) National Ombudsman Reporting System National Ombudsman Resource Center via cooperative agreement, currently with The Consumer Voice LTC Ombudsman process evaluation Coordination re: LTCO programs with national associations, federal agencies, other stakeholders Regional Office support to state grantees (SUAs)

What is ACL’s Office of Long-Term Care Ombudsman Programs? (continued) OLTCOP makes policy recommendations to benefit LTC facility residents Examples: Within ACL Developing guidance to grantees re: Medicaid Managed LTSS “beneficiary support systems” Within Health and Human Services CMS Long-Term Care Facility Revised Requirements With other federal agencies/partners Department of Justice Elder Justice Task Forces With non-federal stakeholders Provider associations re: CMS HCBS Settings Rule impact on Assisted Living

OLTCOP in ACL Context LTCO is one of several ACL-funded programs providing individual and/or systems advocacy. Examples: Elder rights programs (includes OAA legal services) Protection and advocacy networks Developmental disability councils LTCO is not the only ACL ombudsman-related work: ACL is the Technical Assistance Center for Duals Demonstration Ombudsman Programs OLTCOP is not the only entity participating in federal policy advocacy (Center for Policy and Evaluation) ACL often comments on rules, policies of other agencies OLTCOP has expertise on LTC facility resident issues, largely because of information we receive from your work (including through NORS)

OLTCOP in ACL Context (continued) ACL Regional Offices Primary point of contact for OAA grantees (i.e. state units on aging) Led by Regional Administrator RO state liaisons work with SUAs on state plans on aging 2016 state plan reviews include focused review of LTCO Rule compliance Significant coordination with OLTCOP on TA related to states’ LTCO programs

State LTC Ombudsman Rule Published in Feb 2015; effective July 2016 Currently ACL Regional Offices are providing TA to each state to support implementation 45 CFR Part 1324 ACL Goals: Long-term care facility residents in every state receive effective, person-centered problem resolution and systems-level advocacy. Hold states accountable for appropriately carrying out the LTCO program. States maintain flexibility in program structure: Centralized vs. de-centralized Example: AAAs host local Ombudsman entities Within State Unit on Aging, other state agency, or contracted to non-profit Use of staff and/or volunteers to provide ombudsman services Implementing the LTCO Rule -- States and Long-Term Care Ombudsman programs are currently implementing ACL’s Ombudsman program rule, which went into effect last month.  Our Regional Offices are proactively providing technical assistance to each state to support implementation. Through this rule, ACL aims to ensure that long-term care facility residents in every state receive person-centered problem resolution and advocacy.   

Office of State LTC Ombudsman Placement State Unit on Aging (34 states; 2 territories) In (or attached to) stand-alone SUA: Alabama, California, Florida, Idaho, Illinois, Iowa, Louisiana, Maryland, Massachusetts, Minnesota, Ohio, Pennsylvania, Puerto Rico, South Dakota, Tennessee, New Mexico, Virginia, West Virginia In (or attached to) SUA inside umbrella agency: Arizona, Arkansas, Connecticut, Georgia, Guam, Hawaii, Indiana, Mississippi, Missouri, Montana, Nebraska, Nevada, New York, North Carolina, North Dakota, Oklahoma, South Carolina, Texas, Utah, Wyoming Elsewhere in state government (7 states) Alaska, Delaware, Kansas, New Hampshire, New Jersey, Oregon, Wisconsin Non-profit advocacy agency (8 states; DC) District of Columbia, Colorado, Kentucky, Maine, Michigan, Rhode Island, Vermont, Washington, Wyoming

How LTCO Services are Provided Vast majority of services are provided by “representatives of the Office:” 1301 full-time equivalent staff and 7,734 certified volunteers Plus: 3,760 other volunteers

So, What’s Changing for You? It depends! States are currently reviewing current practice, laws, policies in light of Rule Rule providing opportunity to evaluate effectiveness of program structure and operations Some States are determining that little change needed Others are making significant changes in their state laws, regulations, policies & procedures, interagency MOUs, etc. ACL Regional Offices have performed reviews in every state and are providing TA to help states come into compliance.

National Ombudsman Reporting System States submit reports to AoA (OAA Sec 712(c)) ACL uses NORS data for: AoA Annual Report to Congress Federal budget performance measures To HHS, White House, and Congress Example: Decrease the number of LTCO complaints not resolved to the satisfaction of the resident. Program management and accountability Federal policy advocacy Example: CMS nursing home rule’s involuntary discharge provisions Response to requests for information Examples: media, researchers

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Examples of Ombudsman program activities (FY 2015) Completed work on nearly 200,000 complaints 74% resolved* to the satisfaction of the resident Provided at least quarterly visits to: 63% of nursing homes 26% of assisted living/board and care Provided nearly 400,000 consultations to residents, families and others Resident and family council support – providing technical assistance, training and information to: resident councils (>22,000 sessions) and family councils (>2000 sessions); Trained long-term care facility staff (>5000 sessions) * Fully or partially resolved Source: 2015 , ACL National Ombudsman Reporting System Routine visits to ensure that residents have regular access to ombudsman services, visiting residents of 63 percent of nursing facilities and 26 percent of board and care, assisted living, and other residential care communities at least quarterly.   398,057 consultations and information to individuals, including on: finding long-term services and supports options; Medicaid eligibility; discharge and eviction rights; and other federal and state policies impacting residents. 122,213 consultations to long-term care facility staff, including on: residents’ rights, person-centered care practices, and discharge and eviction issues. Resident and family council support, providing technical assistance, training and information to resident councils (22,281 sessions) and family councils (2,073 sessions); Training of long-term care facility staff (5,054 sessions); Community education ( 10,821 sessions); and Coordination with licensing and survey entities, participating in 16,043 facility survey-related activities as resident advocates.

What types of complaints are most frequent? Nursing facilities: improper eviction or inadequate discharge/planning unanswered requests for assistance (e.g., call bells) lack of dignity/respect for residents, poor staff attitudes medications – administration, organization quality of life, resident/roommate conflicts Assisted living/board and care: food -- quality, quantity, variation and/or choice, etc. equipment and/or building – disrepair, hazards, etc. Source: NORS, FFY 2015 The five most frequent nursing facility complaints handled by Ombudsman programs were: Improper eviction or inadequate discharge/planning; Unanswered requests for assistance; Lack of respect for residents, poor staff attitudes; Administration and organization of medications; and Quality of life, specifically resident/roommate conflict.   The five most frequent complaints in board and care, assisted living, and other residential care communities handled by Ombudsman programs were: Administration and organization of medications; Quality, quantity, variation and choice of food; Lack of respect for residents, poor staff attitudes; and Building or equipment in disrepair or hazardous.

What’s on the Horizon? State’s implementation of LTCO Rule ACL’s LTCO Evaluation: Complete process evaluation (2017) Implement outcome evaluation (2017-19) ACL Development of LTCO Training Standards “NORS Next”

“NORS Next” Proposed changes to the National Ombudsman Reporting System Published in Federal Register: August 8. Public comment period ended: October 7. ACL reviewing comments and developing final version now. ACL contractor beginning to work on software development. Likely changes to your reporting in FY 19. ACL Goals: Streamline reporting by states, Increase reliability and accuracy of the data, Implement regulatory requirements, and Increase ACL’s ability to analyze the data that states provide. 

Strengths of the LTC Ombudsman Model Person-centered: focus is on resident’s goal and perspective Flexibility in working towards resolution Resolution at lowest level, often without additional intervention: Can result in quicker outcome for the resident Can avoid need for regulatory or legal involvement Can save public resources Engagement of community: use of volunteers and local Ombudsman entities Use of volunteers and/or local Ombudsman entities varies by state Residents’ individual complaints and interests are translated into systems advocacy and policy-level solutions Examples: CMS LTC Facility Rule; states’ implementation of HCBS Settings Rule

LTC Ombudsman Programs serving expanded populations In-home recipients of LTSS (13 states, plus DC) Adult Day Centers participants (e.g., CA) Money Follows the Person recipients* (e.g., DE, GA) Duals Demonstration Ombudsman Projects* (“Financial Alignment Initiatives”) participants, Includes primary and acute care patients (e.g., OH, VA) Medicaid managed LTSS participants -- part of “beneficiary support system” (e.g., WI, IA) *CMS-funded demonstration projects

“Imitation is the sincerest of flattery.”* OAA and Rule only apply to LTC Ombudsman services to residents of LTC facilities Neither OAA nor ACL’s LTCO Rule expand the LTC Ombudsman service population HOWEVER – policy makers keep wanting to apply what you do for residents to other populations For some states this isn’t new, but don’t be surprised if this trend continues . . . . *Charles Caleb Colton Rule does not prohibit expansion of ombudsman services to other populations. 14 programs are authorized under state/district law to expand ombudsman services to in-home settings: Alaska District of Columbia Idaho Indiana Illinois Maine Minnesota Ohio Pennsylvania Rhode Island Vermont Virginia Wisconsin Wyoming Source: “Home Care Ombudsman Programs,” National Ombudsman Resource Center/NASUA (2007); Administration on Aging updates (2015)

Resource Links State Long-Term Care Ombudsman Programs Federal Rule https://www.federalregister.gov/articles/2015/02/11/2015-01914/state-long-term-care-ombudsman-programs National Ombudsman Resource Center http://www.ltcombudsman.org/ Administration for Community Living LTC Ombudsman Page: http://aoa.gov/AoARoot/AoA_Programs/Elder_Rights/Ombudsman/index.aspx National Ombudsman Reporting System Data/AGID: http://www.agid.acl.gov National Ombudsman Reporting System proposed changes: https://www.federalregister.gov/articles/2016/08/08/2016-18736/agency-information-collection-activities-proposed-collection-comment-request-state-annual-long-term ACL LTC Ombudsman Evaluation Design Report: http://www.aoa.acl.gov/Program_Results/docs/LTCOP%20Evaluation%20Study%20Design_01312013.pdf