1. Robyn Grant, M.S.W. National Consumer Voice for Quality Long-Term Care
What’s UP in DC?
Robyn Grant, M.S.W.
National Consumer Voice for Quality Long-Term Care

3. Older Americans Act Status of reauthorization
Passed out of Senate HELP committee
Includes some changes to LTCOP provisions
Heard in health, education, labor and pensions on oct 30
S 1562On Wednesday, October 30, 2013, the Senate Health, Education, Labor and Pensions (HELP) Committee approved by voice vote legislation to reauthorize the Older Americans Act (OAA) (S 1562). The Committee also debated at length, and ultimately voted down, an amendment offered by Senator Richard Burr (R-NC) to change the funding formula under the OAA. However, Committee Chairman Tom Harkin (D-IA) committed to address funding formula issues in separate conversations prior to floor consideration. The full committee markup is available. The bill now heads to the full Senate for approval, but the timeline on consideration is unclear and unlikely by the end of the year. The House has not proposed its version of a measure to reauthorize OAA.
What are some of those changes – just give you an idea

4. Provisions strengthening independence
Conflict of interest
Organizational
Individual
Why is this important for independence?
Right now, here are some of the key changes in the current reauthorization bill:
One of the major changes is the language pertaining to both organizational and individual conflict of interest.
The issue of conflict of interest is critical for ombudsman program independence. To be independent, the program must be able to fully and vigorously represent the interests of residents – not the interests of state government or of any other agency or organization inside or outside of state govt If the program or individuals ombudsmen are influenced or could be influenced by where the program is housed or current or past relationships or activities of ombudsmen, the program loses its autonomy, and its ability to act freely
Cannot fulfill the program’s mandates if there are impediments.

5. Organizational Conflict of Interest
Provides further clarification on what would constitute a conflict of interest
Reflects changes in long-term care, changes in services provided by State Unit on Aging, Area Agencies on Aging
NEW
Provides long-term care services
Provides long-term care coordination or case management
Sets reimbursement rates for long-term care services
Provides adult protective services
Is responsible for Medicaid eligibility determinations
Conducts preadmission screening for long-term care residential placements
Makes decisions regarding admission or discharge of individuals to or from long-term care facilities

6. Organizational Conflict
If there is a conflict:
State agency must:
Identify the conflict
Disclose the conflict to Assistant Secretary of AoA
Remove the conflict or
Submit a plan for how the conflict will be remedied
Plan must be approved by AoA

7. Individual Conflict of Interest
NEW
Management responsibility for, or operating under the supervision of an individual with management responsibility for, adult protective services
Serving as a guardian or in another fiduciary capacity for residents of long-term care facilities in an official capacity (as opposed to serving as a guardian as a family member in a personal capacity)

8. Provisions strengthening independence
Management of the program
Clarifies that State Ombudsman has responsibility for management of the program
Includes fiscal management

9. Other changes to OAA
Resident access to ombudsman services to be regular, timely, private and unimpeded
Changes the requirement for ombudsman work with resident and family councils from “providing technical support for” to “actively encourage and assist in the development of” councils.
Clarifies that ombudsmen are considered a “health oversight agency” as relates to the release of residents’ individually identifiable health information (under HIPAA).
Requires that the State Ombudsman or a designee attend training provided through the National Ombudsman Resource Center.

10. NEXT STEPS
Must pass the Senate

11. Proposed LTCOP Regulations
First time there are proposed regulations for Title VII
Purpose:
To promote consistency in interpretation and implementation
Status: Comment period for proposed rule closed August 19, 2013; currently being reviewed by AoA/ACL

12. Two areas where clarity is needed
Independence
Disclosure

13. Independence Office of the State Long-Term Care Ombudsman
Defined as a “distinct entity” that is “separately identifiable”
Decisions/positions
SLTCO must be able to “independently make determinations and establish positions of the Office”
Positions “shall be those of the Office and do not necessarily represent the determinations or positions of the State agency, another agency carrying out the Ombudsman program or any other State Agency.”
Systems advocacy
Must be procedures that require the program to carry out its systems advocacy duties

14. Independence Management Interference
SLTCO has the responsibility for the leadership and management of the program, including management of fiscal resources
Interference
State Agency must :
Ensure SLTCO and representatives of the Office have sufficient authority to perform all functions
Failure to do so is considered interference
Preamble: “State agencies on aging and local Ombudsman entities are also subject to the prohibition on interference.”

15. Independence Conflict of Interest – Organizational
Mostly similar to language in OAA bill
Identifies additional conflicts of interest:
Have an ownership or investment interest in or receives grants or donations from a long-term care facility
Has governing board members with ownership, investment, or employment interest in long-term care facilities
Provides guardianship, conservatorship or other fiduciary or surrogate decision making for residents

16. Independence Organizational conflict of interest continued State
Must have a process for identifying and removing/remedying organizational conflicts
Must disclose the steps taken to remove or remedy the conflict in the National Ombudsman Reporting System (NORS)

17. Independence Organizational conflict of interest continued
Local ombudsman entities
State Ombudsman must have a process for reviewing conflict of interest: identifying, disclosing, removing or remedying conflict

18. Independence Conflict of Interest – Individual
Direct involvement in licensing or certification of a long-term care facility or provider
Ownership or investment interest in an long-term care facility or service
Employment by or participation in the management of a long-term care facility or by the owner or operator of any facility in the service area within the previous year
Receipt of or right to receive remuneration from a long-term care facility

19. Independence Conflict of Interest – Individual
Accepting gifts or gratuities from a long-term care facility, resident or resident representative
Accepting money from anyone other than the Office for the performance of duties of the Office without Ombudsman approval  
Serving as guardian or other fiduciary for a resident of a long-term care facility in the service area
Serving residents for a facility in which an immediate family member resides
Participating in activities which negatively impact on the ability of the Office to serve residents or create a perception that the primary interest of the Office is other than as a resident advocate
Serving on a board or a committee of a nursing home

20. Disclosure Ombudsman disclosure requirements are very stringent
Has resulted in issues related to:
Access to records, files, information
Reporting requirements for abuse, neglect, exploitation
Replaces language which permitted the director of the State agency on aging and one other senior manager to review redacted files of Ombudsman Program.
•Digital information and information obtained verbally and by other means are protected in addition to hard copies of “files” as noted in current regulation.
•State agencies need information to oversee Ombudsman program operations and personnel and/or contract management. •

21. Disclosure Access to records, files, information
The State Ombudsman shall manage the files, records and other information - including information kept by local ombudsmen
The records are the property of the Office
AoA notes: State Ombudsman can release aggregate data or data related to performance measures to help the state agency in monitoring the performance of the program.

22. Disclosure Reporting of abuse, neglect, exploitation
Currently: cannot report unless have the consent of the resident or resident’s legal representative
Major change
Ombudsmen can disclose the identify of the resident and report the suspected abuse, neglect, exploitation under 2 sets of circumstances if 3 criteria are met

23. Disclosure- reporting abuse, neglect, exploitation
Circumstance #1
Criteria
1. Resident is unable to communicate informed consent; has no legal guardian or legal representative; and ombudsman has reason to suspect resident is a victim of abuse, neglect, exploitation
2. Ombudsman has reasonable cause to think it is in the best interest of the resident to make a referral
3. Ombudsman gets approval of State Ombudsman
Circumstance #2
Resident is unable to communicate informed consent; has a legal guardian or legal representative whom the ombudsman has reason to believe may be the perpetrator of the abuse, neglect, exploitation
Ombudsman has reasonable cause to believe it is in the best interest of the resident to make a referral
Ombudsman gets approval of State Ombudsman

24. Disclosure- reporting abuse, neglect, exploitation
Home care setting (not in OAA)
Ombudsman programs that serve home care clients:
Have same reporting requirements in facilities and in home care setting.
Do not report abuse/neglect/exploitation in home setting (exception is 1 state where ombudsmen report abuse in facilities)
Approach from proposed regulation would address concern about individual in the community who is allegedly the victim of abuse/neglect but can’t communicate consent
To maintain integrity of the LTCIP and their work, same requirements should apply regardless of setting

25. Disclosure- reporting abuse, neglect, exploitation
Major change
Currently:
Most ombudsmen report abuse if they personally witness it
Proposed rule:
Must get consent from the resident if resident is able to communicate consent

26. Disclosure- reporting abuse, neglect, exploitation
If the resident is unable to communicate informed consent:
Ombudsman must open a case with the ombudsman as complainant
Follow the program’s complaint resolution procedures
Get approval from State Ombudsman to report to facility management and/or appropriate agencies

27. Additional provisions
Defines “Office” as State ombudsman and regional ombudsmen
Requires State Ombudsman to oversee a “unified, statewide program”
Excludes ombudsmen from lobbying prohibitions
Requires standards for response time to complaints about abuse, gross neglect, exploitation and time-sensitive complaints
Sets forth the process for complaint handling
Requires states to develop a minimum number of hours of initial training, annual number of hours for in-service training and specify the content of the initial training.
 Gives residents private access to ombudsmen
– starting with going to the resident and talking to him or her , seeing what the resident wants, getting consent to handle the complaint, working with resident for a plan of action

28. Legal Counsel LEGAL COUNSEL.—The State agency shall ensure that—
(1)(A) adequate legal counsel is available, and is able, without conflict of interest, to—
(i) provide advice and consultation needed to protect the health, safety, welfare, and rights of residents; and
(ii) assist the Ombudsman and representatives of the Office in the performance of the official duties of the Ombudsman and representatives; and
(B) legal representation is provided 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 a representative; and
(2) the Office pursues administrative, legal, and other appropriate remedies on behalf of residents.

29. Legal Counsel Adequate legal counsel Knowledge, expertise in:
Long-term care
Laws and regulations for long-term care facilities at both the state and federal levels
Medicaid and Medicare
Guardianship, health care decision-making laws, advance directives
Responsibilities of other state agencies
Bill and rule review
Administrative, judicial proceedings
And more!
Medicare and more. This is a very specialized area of law and not every lawyer is equipped to handle it.

30. Legal Counsel Available and able
Assistance from the attorney whenever it is needed
Often need quick response – crises
Amount of time attorney spends on ombudsman work is sufficient

31. Legal Counsel Without conflict of interest
Attorney does not have divided interests
Can vigorously pursue actions on behalf of residents
Examples of conflicts of interest
(1) the LTCO and APS are involved with the same client but are at odds. Each asks legal counsel for advice or support for advancing their position;
(2) legislation is introduced on which  APS and the LTCO do not agree - they each request legal counsel to support their work in favor of, or against, the legislation
(3) a client that both the LTCO and APS has worked with is suing the state over inadequate provision of services by APS. The LTCO is called to testify on behalf of the client.  Both the LTCO and APS need legal support.
Need a plan to remedy conflict. Different attys or hiring outside counsel for one of the programs.
Could argue that an atty employed directly by the state won’t ever work – will they pursue actions against the state when the state employs them?

32. Legal Counsel Duties Examples Provide advice and consultation
Assist the Ombudsman and representatives of the Office in the performance of duties
Provide legal representation of ombudsmen against suit or legal action
Pursue administrative, legal, and other appropriate remedies on behalf of residents
Examples
Helping ombudsmen understand laws and regs
Reviewing, analyzing, drafting proposed laws and regs from a resident perspective
Representing a resident in a transfer/discharge hearing
Helping an ombudsman with complaint handling – strategies and arguments to use in a case
Challenging state actions that would negatively impact residents

33. Legal Counsel AoA not proposing regulations – invites comments
the current law and AoA said that it feels that the statutes is specific enough to determine if a state is in compliance and that if necessary it could provide guidance on issues like conflict of interest. CV, along with a nubme rof others , urged Aoa to develop regulations
There continue to be qustios about what a conflict of intereset is and the role of the attorney and a rule would clarify both those issues in a way that would be enforceable.

34. Next Steps Comments reviewed by ACL/AoA
Proposed rules revised as needed
Health and Human Services (HHS) clearance
Office of Management and Budget (OMB) clearance
Final rule (and responses to comments) published in Federal Register
Effective date: NPRM proposes effective date one year after final rule published

36. Robyn Grant rgrant@theconsumervoice.org www.theconsumervoice.org