3Older Americans Act Status of reauthorization Passed out of Senate HELP committeeIncludes some changes to LTCOP provisionsHeard in health, education, labor and pensions on oct 30S 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
4Provisions strengthening independence Conflict of interestOrganizationalIndividualWhy 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 freelyCannot fulfill the program’s mandates if there are impediments.
5Organizational Conflict of Interest Provides further clarification on what would constitute a conflict of interestReflects changes in long-term care, changes in services provided by State Unit on Aging, Area Agencies on AgingNEWProvides long-term care servicesProvides long-term care coordination or case managementSets reimbursement rates for long-term care servicesProvides adult protective servicesIs responsible for Medicaid eligibility determinationsConducts preadmission screening for long-term care residential placementsMakes decisions regarding admission or discharge of individuals to or from long-term care facilities
6Organizational Conflict If there is a conflict:State agency must:Identify the conflictDisclose the conflict to Assistant Secretary of AoARemove the conflict orSubmit a plan for how the conflict will be remediedPlan must be approved by AoA
7Individual Conflict of Interest NEWManagement responsibility for, or operating under the supervision of an individual with management responsibility for, adult protective servicesServing 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)
8Provisions strengthening independence Management of the programClarifies that State Ombudsman has responsibility for management of the programIncludes fiscal management
9Other changes to OAAResident access to ombudsman services to be regular, timely, private and unimpededChanges 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.
11Proposed LTCOP Regulations First time there are proposed regulations for Title VIIPurpose:To promote consistency in interpretation and implementationStatus: Comment period for proposed rule closed August 19, 2013; currently being reviewed by AoA/ACL
12Two areas where clarity is needed IndependenceDisclosure
13Independence Office of the State Long-Term Care Ombudsman Defined as a “distinct entity” that is “separately identifiable”Decisions/positionsSLTCO 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 advocacyMust be procedures that require the program to carry out its systems advocacy duties
14Independence Management Interference SLTCO has the responsibility for the leadership and management of the program, including management of fiscal resourcesInterferenceState Agency must :Ensure SLTCO and representatives of the Office have sufficient authority to perform all functionsFailure to do so is considered interferencePreamble: “State agencies on aging and local Ombudsman entities are also subject to the prohibition on interference.”
15Independence Conflict of Interest – Organizational Mostly similar to language in OAA billIdentifies additional conflicts of interest:Have an ownership or investment interest in or receives grants or donations from a long-term care facilityHas governing board members with ownership, investment, or employment interest in long-term care facilitiesProvides guardianship, conservatorship or other fiduciary or surrogate decision making for residents
16Independence Organizational conflict of interest continued State Must have a process for identifying and removing/remedying organizational conflictsMust disclose the steps taken to remove or remedy the conflict in the National Ombudsman Reporting System (NORS)
17Independence Organizational conflict of interest continued Local ombudsman entitiesState Ombudsman must have a process for reviewing conflict of interest: identifying, disclosing, removing or remedying conflict
18Independence Conflict of Interest – Individual Direct involvement in licensing or certification of a long-term care facility or providerOwnership or investment interest in an long-term care facility or serviceEmployment 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 yearReceipt of or right to receive remuneration from a long-term care facility
19Independence Conflict of Interest – Individual Accepting gifts or gratuities from a long-term care facility, resident or resident representativeAccepting 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 areaServing residents for a facility in which an immediate family member residesParticipating 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 advocateServing on a board or a committee of a nursing home
20Disclosure Ombudsman disclosure requirements are very stringent Has resulted in issues related to:Access to records, files, informationReporting requirements for abuse, neglect, exploitationReplaces 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.•
21Disclosure Access to records, files, information The State Ombudsman shall manage the files, records and other information - including information kept by local ombudsmenThe records are the property of the OfficeAoA 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.
22Disclosure Reporting of abuse, neglect, exploitation Currently: cannot report unless have the consent of the resident or resident’s legal representativeMajor changeOmbudsmen can disclose the identify of the resident and report the suspected abuse, neglect, exploitation under 2 sets of circumstances if 3 criteria are met
23Disclosure- reporting abuse, neglect, exploitation Circumstance #1Criteria1. 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, exploitation2. Ombudsman has reasonable cause to think it is in the best interest of the resident to make a referral3. Ombudsman gets approval of State OmbudsmanCircumstance #2Resident 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, exploitationOmbudsman has reasonable cause to believe it is in the best interest of the resident to make a referralOmbudsman gets approval of State Ombudsman
24Disclosure- 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 consentTo maintain integrity of the LTCIP and their work, same requirements should apply regardless of setting
25Disclosure- reporting abuse, neglect, exploitation Major changeCurrently:Most ombudsmen report abuse if they personally witness itProposed rule:Must get consent from the resident if resident is able to communicate consent
26Disclosure- reporting abuse, neglect, exploitation If the resident is unable to communicate informed consent:Ombudsman must open a case with the ombudsman as complainantFollow the program’s complaint resolution proceduresGet approval from State Ombudsman to report to facility management and/or appropriate agencies
27Additional provisions Defines “Office” as State ombudsman and regional ombudsmenRequires State Ombudsman to oversee a “unified, statewide program”Excludes ombudsmen from lobbying prohibitionsRequires standards for response time to complaints about abuse, gross neglect, exploitation and time-sensitive complaintsSets forth the process for complaint handlingRequires 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
28Legal 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.
29Legal Counsel Adequate legal counsel Knowledge, expertise in: Long-term careLaws and regulations for long-term care facilities at both the state and federal levelsMedicaid and MedicareGuardianship, health care decision-making laws, advance directivesResponsibilities of other state agenciesBill and rule reviewAdministrative, judicial proceedingsAnd more!Medicare and more. This is a very specialized area of law and not every lawyer is equipped to handle it.
30Legal Counsel Available and able Assistance from the attorney whenever it is neededOften need quick response – crisesAmount of time attorney spends on ombudsman work is sufficient
31Legal Counsel Without conflict of interest Attorney does not have divided interestsCan vigorously pursue actions on behalf of residentsExamples 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?
32Legal Counsel Duties Examples Provide advice and consultation Assist the Ombudsman and representatives of the Office in the performance of dutiesProvide legal representation of ombudsmen against suit or legal actionPursue administrative, legal, and other appropriate remedies on behalf of residentsExamplesHelping ombudsmen understand laws and regsReviewing, analyzing, drafting proposed laws and regs from a resident perspectiveRepresenting a resident in a transfer/discharge hearingHelping an ombudsman with complaint handling – strategies and arguments to use in a caseChallenging state actions that would negatively impact residents
33Legal 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 regulationsThere 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.
34Next Steps Comments reviewed by ACL/AoA Proposed rules revised as neededHealth and Human Services (HHS) clearanceOffice of Management and Budget (OMB) clearanceFinal rule (and responses to comments) published in Federal RegisterEffective date: NPRM proposes effective date one year after final rule published