42 U.S.C. § 3058g — State Long-Term Care Ombudsman program

(a) Establishment. (1) In general. To qualify for an allotment under section 3058b from funds appropriated under section 3058a for this subpart, a State agency must establish and operate an Office of the State Long-Term Care Ombudsman and carry out a State Long-Term Care Ombudsman program through that Office. (2) Ombudsman. The Office must be led by a State Long-Term Care Ombudsman selected from people with expertise and experience in long-term care and advocacy. The Ombudsman is responsible for managing the Office, including its finances. (3) Functions. The Ombudsman must work full time and, personally or through Office representatives— (A) identify, investigate, and resolve complaints that (i) are made by residents or for residents, including residents who have limited or no ability to make decisions and no known legal representative; and (ii) concern an action, failure to act, or decision by a long-term-care provider or its representative, a public agency, or a health or social-service agency that may harm residents’ health, safety, welfare, or rights. This includes matters involving guardians and representative payees. If a resident cannot communicate consent for work on a complaint directly involving the resident, the Ombudsman must look for evidence of the outcome the resident would have communicated. Unless evidence shows otherwise, the Ombudsman must assume the resident wants protection of the resident’s health, safety, welfare, and rights, and must work toward that outcome; (B) provide services that help residents protect their health, safety, welfare, and rights; (C) tell residents how to obtain services from the providers or agencies in subparagraph (A)(ii), or the services in subparagraph (B); (D) ensure residents have regular, timely, private, and unobstructed access to Office services, and that residents and complainants receive timely responses from Office representatives; (E) represent residents’ interests before government agencies and seek administrative, legal, and other remedies to protect residents; (F) give administrative and technical help to entities designated under paragraph (5) so they can participate in the program; (G) (i) analyze, comment on, and monitor the development and implementation of Federal, State, and local laws, regulations, policies, and government actions concerning residents’ health, safety, welfare, and rights and the adequacy of long-term-care facilities and services in the State; (ii) recommend appropriate changes; and (iii) facilitate public comment; (H) (i) train Office representatives; (ii) encourage citizen organizations to participate; and (iii) technically support, actively encourage, and help develop resident and family councils to protect residents’ well-being and rights; (I) when feasible, continue these functions for residents moving from a long-term-care facility to home care; and (J) perform other activities the Assistant Secretary considers appropriate. (4) Contracts and arrangements. (A) Unless subparagraph (B) applies, the State agency may operate the Office and program itself or through a contract or other arrangement with a public agency or nonprofit private organization. (B) It may not use an agency or organization responsible for licensing or certifying long-term-care services in the State, or an association or affiliate of an association of long-term-care facilities or other residential facilities for older individuals. (5) Designation of local entities and representatives. (A) The Ombudsman may designate an entity as a local Ombudsman entity and designate an employee or volunteer to represent it. (B) Under Office and State-agency policies and procedures, the designee must (i) protect residents’ health, safety, welfare, and rights; (ii) ensure regular, timely access and timely responses in the entity’s service area; (iii) identify, investigate, and resolve complaints about actions, inaction, or decisions that may harm residents; (iv) represent residents before government agencies and seek remedies; (v) review existing and proposed laws, regulations, policies, and actions concerning residents’ rights and well-being and, when needed, comment on them, and facilitate public comment; (vi) support and help develop resident and family councils; (vii) handle such complaints for residents with limited or no decision-making capacity and no known legal representative, using the same evidence-and-protection rule stated in paragraph (3)(A)(i); and (viii) perform other activities the Ombudsman considers appropriate. (C) A qualifying entity or representative must show it can perform the Office’s responsibilities, have no conflict of interest and no financial stake in an action or possible action for a served individual, be a public or nonprofit private entity if it is an entity, and meet additional requirements set by the Ombudsman. (D) The State agency must establish, with the Office, policies and procedures for monitoring local entities. If entities are grantees or representatives are employees of area agencies on aging, the State agency must consult those agencies; the policies must allow their participation and comments and resolve concerns about case activity. The policies and procedures must follow this part’s confidentiality and conflict-of-interest rules. (E) This paragraph does not prevent the program from recognizing a volunteer representative with financial support, or reimbursing or otherwise supporting costs such as transportation costs incurred while volunteering. (b) Procedures for access. (1) The State must ensure Office representatives have (A) private, unobstructed access to long-term-care facilities and residents; (B)(i) suitable access to all files, records, and other information about a resident when the resident or legal representative permits review, or when the resident cannot communicate consent and has no legal representative; (ii) access needed to investigate a complaint when a legal guardian refuses permission, the representative reasonably believes the guardian is not acting in the resident’s best interests, and the Ombudsman approves; (C) access to facility administrative records, policies, and documents available to residents or the public; and (D) access to, and on request copies of, all State licensing and certification records about long-term-care facilities. (2) The State agency must establish procedures ensuring this access. (3) For HIPAA section 264(c) and its regulations, the Ombudsman and a representative are a “health oversight agency,” so release of individually identifiable resident health information to them is not barred when paragraph (1)(B)(i) or (ii), or paragraph (1)(D), is otherwise satisfied. (c) Reporting system. The State agency must establish one statewide reporting system to (1) collect and analyze data about complaints, facility conditions, and residents to identify and resolve significant problems; and (2) regularly submit the data to (A) the State agency responsible for facility licensing or certification; (B) other State or Federal entities the Ombudsman considers appropriate; (C) the Assistant Secretary; and (D) the National Ombudsman Resource Center under section 3012(a)(18). (d) Disclosure. (1) The State agency must establish procedures for the Ombudsman or local entities to disclose program files, records, and other information, including records under subsection (b)(1) or (c). (2) The procedures must (A) make disclosure subject to the Ombudsman’s discretion, except as provided in (B); (B) bar disclosure of a complainant’s or resident’s identity unless (i) that person or legal representative consents in writing, (ii)(I) the person consents orally and (II) an Office representative records the consent at the same time in a writing meeting State requirements, or (iii) a court order requires disclosure; and (C) nevertheless allow the Ombudsman to disclose information needed to best serve a resident who cannot make decisions, has no known legal representative, and cannot communicate consent, so the Ombudsman can perform subsection (a)(3)(A) and (5)(B) duties. (e) Consultation. In planning and operating the program, the State agency must consider the views of area agencies on aging, older individuals, and long-term-care providers. (f) Conflict of interest. (1) The State agency must ensure that no person or immediate family member involved in selecting the Ombudsman or a paragraph (5) entity has a conflict; no Office officer or employee, local representative, or immediate family member has a conflict; and the Ombudsman (i) is not directly involved in licensing or certifying a facility or provider; (ii) has no ownership or investment interest, including equity, debt, or another financial relationship, in a facility or service; (iii) is not employed by or managing a facility or related organization and was not employed by one during the year before the relevant determination; (iv) receives no direct or indirect cash or in-kind pay under an arrangement with a facility owner or operator; (v) does not manage adult protective services or work under someone who manages them; and (vi) does not officially serve as a guardian or other fiduciary for facility residents, although personal service for a family member is allowed. (2)(A) An organizational conflict exists, among other cases, when the Office is placed in an organization that licenses, certifies, or surveys long-term-care services; is a facility association or affiliate; provides long-term-care services or specified Medicaid programs; provides long-term-care case management; sets service rates; provides adult protective services; decides Medicaid eligibility; conducts preadmission screening for the facilities described in clause (ii); or decides facility admissions or discharges. (B)(i) The State agency may not operate the Office or program itself or through a public agency or nonprofit private organization when such a conflict exists unless the State agency identifies it, discloses it in writing to the Assistant Secretary, and remedies it. (ii) If a potential or actual conflict is disclosed or reported, the Assistant Secretary must require the State agency, under its subsection (a)(5)(D)(iii) policies, to remove it or submit and obtain approval for an adequate plan showing how the Ombudsman will be free to perform all subsection (a)(3) functions. (g) Legal counsel. The State agency must ensure that adequate, conflict-free legal counsel is available to advise and consult on protecting residents and to help the Ombudsman and representatives perform official duties; that representatives sued or threatened with legal action over official duties receive legal representation; and that the Office pursues appropriate administrative, legal, and other remedies for residents. (h) Administration. The State agency must require the Office to (1) prepare an annual report describing its activities, analyzing subsection (c) data, evaluating resident problems and complaints, recommending ways to improve care and life and protect residents, analyzing program success including service to board-and-care and similar adult-care residents, identifying barriers, and making policy, regulatory, and legislative recommendations to solve problems, resolve complaints, improve care and life, protect residents, and remove barriers; (2) analyze, comment on, and monitor relevant Federal, State, and local laws, regulations, policies, and actions and recommend changes; (3)(A) give public and private agencies, legislators, and others information the Office considers necessary about facility residents’ problems and concerns and related recommendations, and (B) make each annual report available to the public and submit it to the Assistant Secretary, the State chief executive, the State legislature, the State licensing or certification agency, and other appropriate government entities; (4) ensure the Ombudsman or a designee attends National Ombudsman Resource Center training; (5) strengthen and update representative training, including volunteer training, using model standards established by the Director of the Office of Long-Term Care Ombudsman Programs after consultation with citizen groups, providers, and the Office. The standards must set minimum initial hours, training content on applicable laws and policies, investigation techniques, and other State-selected subjects, and annual in-service hours; (6) bar a representative other than the Ombudsman from performing subsection (a)(3)(A) through (G) activities unless the representative completed the required training and the Ombudsman approved the representative as qualified; (7) coordinate services with disability and mental-illness protection-and-advocacy systems under the cited Federal laws; (8) coordinate, as much as possible, with legal assistance under section 3026(a)(2)(C), including through memoranda of understanding; (9) coordinate with State and local law enforcement and courts; and (10) allow a local entity to perform the responsibilities in paragraphs (1), (2), (3), (7), or (8). (i) Liability. The State must ensure that a representative is not liable under State law for good-faith performance of official duties. (j) Noninterference. The State must make willful interference with representatives performing official duties, as those duties are defined by the Assistant Secretary, unlawful. It must prohibit retaliation or reprisals by a facility or other entity against a resident, employee, or other person for complaining to, giving information to, or cooperating with the Office. It must also provide appropriate sanctions for interference, retaliation, and reprisals.