1. Care Matters: How the New Ombudsman Rule Supports
Person-Centered Advocacy
Becky A. Kurtz, JD
Director, Office of LTC Ombudsman Programs
National Consumer Voice for Quality LTC Conference
November 6, 2015

2. Administration for Community Living
(includes Administration on Aging)
Mission:
Maximize the independence, well-being, and health of older adults, people with disabilities, and their families and caregivers.

3. “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

4. LTC Ombudsman Program History
1970s--Nursing Home Ombudsman program created by US Commissioner on Aging Arthur Flemming as part of President Nixon’s initiative to improve conditions amid reports of nursing home resident abuse.
1980s–LTC Ombudsman program expanded to serve residents of “board and care” and similar adult care facilities.
1992–LTC Ombudsman program part of new Title VII Elder Rights Title of OAA.
2000–LTC Ombudsman service to residents of “assisted living” expressly included.
Since inception:
Envisioned as an autonomous entity able to represent consumer interests.
Challenges to full implementation due to bureaucratic structures and/or political environment of many states.
No regulations to fully implement the program and provide consistent level of consumer protection across states.

5. Need for rulemaking Some OAA provisions needed additional clarity
Difficult for ACL to determine state compliance with basic program requirements
Congressional inquiries
Media attention to LTC Ombudsman program deficits in some States
Institute of Medicine: Real People, Real Problems: An Evaluation of the Long-Term Care Ombudsman Programs of the Older Americans Act (1995):
“Identified considerable barriers to effective performance that the ombudsman programs encounter, including :
Structural conflicts of interest that limit the ability to act; and
Uneven implementation within and across states.”
OAA requires AoA to issue regulations, specifically related to conflict of interest provisions

6. Process
Stakeholders identified topics where guidance most needed
hosted by National Ombudsman Resource Center
ACL published Notice of Proposed Rulemaking (NPRM)
85 unduplicated comments received during public comment period (June – August 2013)
No commenter objected to publication of the rule or indicated no need for rule
Many indicated the need for and appreciation for clarity and interpretation of OAA provisions
February ACL published Final Rule: 45 CFR 1327
July 1, Rule becomes effective

7. Putting it all together:
Guidance; examples =
Regulation =
Law =
Older Americans Act
Public Law
42 U.S. Code Chapter 35
Program Instructions
Letters to states
45 CFR Part 1321
OAA Title III
45 CFR Parts 1326 and 1328
OAA Title VI
45 CFR Part 1327
OAA Titles VII

8. Implementation by States
Administered by ACL through OAA grants to State Units on Aging (SUAs)
Even if SUA doesn’t provide LTC Ombudsman services directly
LTCOP Rule is part of OAA grant compliance requirements of states.
ACL Regional Offices and Office of LTC Ombudsman Programs available to assist States.
ACL is providing a delay in implementation until July 1, 2016 in order to give States opportunity to make any needed changes.

9. State (Grantee) Implementation
Rule limited to areas of greatest inconsistency/need for regulatory guidance to States -- Very few new requirements beyond OAA.
Some States are already in compliance with Rule
For others, the Rule will require changes in:
Organizational structure and/or
State practices, policies, regulations or laws

10. LTC Ombudsman Programs Rule: Table of Contents
(b) State agency policies (revises existing rule).
New Rule
Definitions.
Establishment of the Office of the State Long-Term Care Ombudsman.
Functions and responsibilities of the State Long-Term Care Ombudsman.
State agency responsibilities related to the Ombudsman program.
Responsibilities of agencies hosting local Ombudsman entities.
Duties of the representatives of the Office.
Conflicts of interest.

11. Terms Used in OAA and Rule
For consistency with OAA, Rule uses the terms:
Ombudsman -- specifically refers to one individual: the State LTC Ombudsman.
Representatives of the Office -- staff and/or volunteers designated by the Ombudsman to perform LTC Ombudsman program duties.
Local Ombudsman entity – Entity designated by the Ombudsman to carry out LTC Ombudsman program duties.
NOTE: The Rule does not require States to change their use of those terms.
“Office of the State Long-Term Care Ombudsman, as used in sections 711 and 712 of the Act, means the organizational unit in a State or territory which is headed by a State Long-Term Care Ombudsman.”
“Representatives of the Office of the State Long-Term Care Ombudsman, as used in sections 711 and 712 of the Act, means the employees or volunteers designated by the Ombudsman to fulfill the duties set forth in § (a), whether personnel supervision is provided by the Ombudsman or his or her designees or by an agency hosting a local Ombudsman entity designated by the Ombudsman pursuant to section 712(a)(5) of the Act.”
“State Long-Term Care Ombudsman, or Ombudsman, as used in sections 711 and 712 of the Act, means the individual who heads the Office and is responsible to personally, or through representatives of the Office, fulfill the functions, responsibilities and duties set forth in §§ and of this rule.”
“State Long-Term Care Ombudsman program, Ombudsman program, or program, as used in sections 711 and 712 of the Act, means the program through which the functions and duties of the Office are carried out, consisting of the Ombudsman, the Office headed by the Ombudsman, and the representatives of the Office.”

12. Today’s Areas of Focus
How ACL’s Federal Rule Supports Person-Centered Complaint Resolution in the Ombudsman Program
Disclosure of Ombudsman Program
Information
Complaint Processing Provisions
3. Conflict of interest

13. 1. Disclosure of Ombudsman Program Information
OAA law requires:
Ombudsman determines disclosure of Ombudsman program information
But Ombudsman prohibited from disclosing complainant- or resident-identifying information unless:
Consent, or
Court order

14. Disclosure (cont’d) Rule clarifications:
State must develop disclosure policies and procedures consistent with OAA
State laws mandating abuse reporting by Ombudsman programs are not consistent with OAA
Consistent with long-standing AoA interpretation
This policy supports a person-centered approach
Residents – not Ombudsman program or State representatives -- determine what of their information can be shared with whom
But This does not mean Ombudsman program work to support resident should end if resident doesn’t consent to disclosure of information to other entities
45 CFR (e)(3)

15. 2. Complaint processing OAA law requires:
The Ombudsman and/or representatives
of the Office:
Identify, investigate, and resolve complaints that –
Are made by, or on behalf of, residents; and
Relate to action, inaction, or decisions, that may adversely affect the health, safety, welfare, or rights of the residents, of
Providers of LTC services,
Public agencies, or
Health and social service agencies.

16. Complaint processing Rule clarifications:
Purpose of complaint resolution: person-centered problem- solving
Ombudsman program role related to abuse, neglect or exploitation complaints
Complaints where residents are unable to communicate informed consent
Personally witnessing abuse
Relevant rule sections: provisions related to representatives of the Office (45 CFR )

17. Complaint processing: person-centered approach
Person-centered complaint processing approach--the Ombudsman or representative of the Office shall:
Support and maximize resident participation;
Offer privacy;
Discuss the complaint with the resident (and/or resident’s representative) in order to:
Determine the perspective of the resident;
Request informed consent in order to investigate the complaint;
Determine the wishes of the resident with respect to resolution of the complaint, including:
whether the allegations are to be reported
disclosure of information to the facility and/or appropriate agencies.
Advise the resident of his/her rights;
Work with the resident to develop a plan of action for resolution of the complaint;
Investigate to determine whether the complaint can be verified; and
Determine whether the complaint is resolved to the resident’s satisfaction.
45 CFR (b)

18. Complaint processing: abuse complaints
Rule clarifies Ombudsman program responsibility with respect to abuse complaints:
As advocate and problem-solver for abuse survivor, not to substantiate (or, prove whether suspected abuse occurred)
Current variation among states in handling LTC facility abuse complaints:
Most common:
APS and/or licensing/survey agency are state’s official investigator;
LTC Ombudsman program serves as resident-centered advocate and problem-resolver
A few states: LTC Ombudsman program is the official investigator of abuse complaints
A few states: LTC Ombudsman program refers all abuse allegations to APS and/or licensing survey 18
Give example of resident with taped mouth/

19. Complaint processing: serving residents who can’t consent
Ombudsman program can work with appropriate resident representative if resident unable to communicate consent
Must ascertain the extent of resident representative’s authority (e.g., guardian, power of attorney)
Ombudsman program’s authority to work to resolve complaint (and disclose relevant information) where the resident is unable to communicate informed consent, and has no resident representative available to do so. The representative of the Office:
works to resolve the complaint in order to protect the resident’s health, safety, welfare and rights
determines whether the complaint was resolved to the satisfaction of the complainant.
45 CFR (b)(2)

20. Complaint Processing: disclosure/sharing information with other agencies
Ombudsman program may provide information to other agency if adhere to disclosure requirements.
If resident (or resident representative) communicates goal:
for regulatory, protective services, or law enforcement action – then the Ombudsman program shall assist the resident in contacting the appropriate agency and/or disclosing information.
that can be served by disclosing information to a facility representative or referral to other entity, then the Ombudsman program may assist the resident with contact, provide information regarding contact and/or disclose information.
Ombudsman program shall not report suspected abuse when a resident (or resident representative) has not communicated informed consent (exceptions in (b)(5)-(7))
45 CFR (b)(3)

21. Complaint Processing: disclosure/sharing information with other agencies
The exceptions to no disclosure:
Ombudsman program MAY disclose resident-identifying information under some circumstances:
No one available to communicate consent
or resident representative has taken action to harm resident;
Reasonable cause to believe that an action may adversely affect the resident’s health, safety, welfare, or rights;
No evidence that resident would not wish a referral;
Reasonable cause to believe a referral is in residents’ best interest; AND
Ombudsman approval (or otherwise follows Office policies)
45 CFR (b)(6), (7)

22. Complaint processing: personally witnessing abuse
Ombudsman program representatives shall report abuse under some circumstances:
Ombudsman or representative of the Office “personally witnesses” suspected abuse;
No one available to communicate consent
or resident representative has taken action to harm resident;
No evidence that resident would not wish disclosure;
Reasonable cause to believe disclosure is in residents’ best interest; AND
Ombudsman approval (or otherwise follows Office policies).
45 CFR (b)(8)

23. 3. Conflict of interest OAA law requires:
Ombudsman and representatives of the Office are free of conflict of interest (i.e. “individual conflicts of interest”), and
Limits organizational locations of the Office to avoid conflicts of interest (i.e. “organizational conflicts of interest”)

24. Conflict of interest: process
Rule requires:
Ombudsman programs must have policies and procedures regarding conflicts of interest
State and Ombudsman to follow 3-step process:
Identify conflicts
both individual and organizational
Remedy or remove any identified conflicts
3. For organizational conflicts, report steps taken to remove/remedy to ACL via National Ombudsman Reporting System (NORS)

25. Conflict of Interest
Why this matters for person-centered complaint resolution:
Ombudsman program represents resident interests and resolves complaints to resident’s satisfaction
Residents, families/representatives, facilities, other agencies, etc., should have no question about Ombudsman program loyalties:
Individually
Ombudsman or representatives of the Office, or
Organizationally
Ombudsman program’s host agency, governing body, or organizational placement

26. Resident/complainant:
“If I have a complaint about ____ agency/service, do I trust the Ombudsman program to investigate and resolve my complaint?”

27. LTC Ombudsman Rule can be found at: https://www. federalregister
ACL has created a dedicated for Rule-related questions to help us develop FAQs and other TA :