WHAT’S UP IN DC?
Robyn Grant, M.S.W.
National Consumer Voice for Quality Long-Term Care
Older Americans Act
• Status of reauthorization
• Passed out of Senate HELP
committee
• Includes some changes to LTCOP
provisions
Provisions
strengthening independence
Conflict of interest
• Organizational
• Individual
• Why is this important for
independence?
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
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
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)
Provisions
strengthening independence
Management of the program
•Clarifies that State Ombudsman has
responsibility for management of the
program
•Includes fiscal management
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.
NEXT STEPS
• Must pass the Senate
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
Two areas where clarity is needed
• Independence
• Disclosure
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
Independence
Management
• 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.”
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
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)
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
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 longterm care facility
Independence
Conflict of Interest – Individual
• Accepting gifts or gratuities from a long-term care facility,
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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
Disclosure
•Ombudsman disclosure requirements are very
stringent
•Has resulted in issues related to:
•Access to records, files, information
•Reporting requirements for abuse, neglect, exploitation
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.
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
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
Criteria
1.
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
2.
Ombudsman has reasonable cause to believe it is in the best
interest of the resident to make a referral
3.
Ombudsman gets approval of State Ombudsman
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
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
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
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
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.
Legal Counsel
Adequate legal counsel
• Knowledge, expertise in:
• Long-term care
• Laws and regulations for long-term care facilities at
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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!
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
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
Legal Counsel
Duties
• 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
Legal Counsel
• AoA not proposing regulations – invites comments
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
Robyn Grant
rgrant@theconsumervoice.org
www.theconsumervoice.org