What’s UP in DC?

1. 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

4. Provisions strengthening independence Conflict of interest • Organizational • Individual • Why is this important for independence?

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 • 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. IndependenceConflict 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

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

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 Criteria • 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

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

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!

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

32. 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

33. Legal Counsel • AoA not proposing regulations – invites comments

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