Sec. 707. State Long-Term Care Ombudsman program
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Section 712 of the Older Americans Act of 1965 ( 42 U.S.C. 3058g ) is amended— in subsection (a)— in paragraph (2), by adding at the end the following: The Ombudsman shall be responsible for the management, including the fiscal management, of the Office. ; in paragraph (3)— in subparagraph (A), by striking clause
(i)and inserting the following: are made by or on behalf of residents, including residents with limited or no decisionmaking capacity and who have no known legal representative, and if such a resident is unable to communicate consent for an Ombudsman to work on a complaint directly involving the resident, the Ombudsman shall seek evidence to indicate what outcome the resident would have desired (and, in the absence of evidence to the contrary, shall assume that the resident wishes to have the resident’s health, safety, welfare, and rights protected) and shall work to accomplish the desired outcome; ; in subparagraph (D), by striking regular and timely and inserting regular, timely, private, and unimpeded ; and in subparagraph (H)(iii), by striking provide technical support for and inserting actively encourage and assist in ; in paragraph (4)— in the paragraph header, by striking and inserting Contracts and arrangements ; and Organizational placement by striking subparagraph
(B)and inserting the following: The State agency may not operate the Office or carry out the program, directly, or by contract or other arrangement with any public agency or nonprofit private organization, in a case in which there is an organizational conflict of interest unless such conflict has been— identified by the State agency; disclosed by the State agency to the Assistant Secretary in writing; and remedied in accordance with this subparagraph. In a case in which a potential or actual organizational conflict of interest involving the Office is disclosed or reported to the Assistant Secretary by any person or entity, the Assistant Secretary shall require that the State agency— remove the conflict; or submit, and obtain the approval of the Assistant Secretary for, an adequate remedial plan that indicates how the Ombudsman will be unencumbered in fulfilling all of the functions specified in paragraph (3). In this paragraph, the term organizational conflict of interest includes a situation in which the Office is placed in an organization that— is responsible for licensing or certifying long-term care services in the State; is an association (or an affiliate of such an association) of long-term care facilities, or of any other residential facilities for older individuals; provides long-term care services, including programs carried out under a Medicaid waiver approved under section 1115 of the Social Security Act ( 42 U.S.C. 1315 ) or under subsection
(c)or
(b)of section 1915 of the Social Security Act (42 U.S.C. 1396n), or under a Medicaid State plan amendment under subsection (i), (j), or
(k)of section 1915 of the Social Security Act (42 U.S.C. 1396n); provides long-term care case management; sets rates for long-term care services; provides adult protective services; is responsible for eligibility determinations for the Medicare program carried out under title XVIII, or the Medicaid program carried out under title XIX, of the Social Security Act ( 42 U.S.C. 1395 et seq. , 1396 et seq.); conducts preadmission screening for placements in facilities described in clause (ii); or makes decisions regarding admission of individuals to such facilities. ; and in paragraph (5)(B)(vi), by striking support and inserting actively encourage and assist in ; in subsection (b)— in paragraph (1)— in subparagraph (A), by striking access and inserting private and unimpeded access ; in subparagraph (B)(i)— in the matter preceding subclause (I), by striking the medical and social records of a and inserting all records concerning a ; and in subclause (II), by striking to consent and inserting to communicate consent ; by redesignating subparagraphs
(C)and
(D)as subparagraphs
(E)and (F), respectively; and by inserting after subparagraph
(B)the following: such access as is necessary to advocate for a resident’s desired outcome to the extent that the resident can express the outcome desired, even if the resident is unable to communicate consent; access to the records of a resident who is unable to communicate consent in a case in which— the access is necessary to investigate and resolve a complaint described in subsection (a)(3); a legal guardian of the resident refuses to give permission for the access; a representative of the Office has reasonable cause to believe that the guardian is not acting in the best interests of the resident by refusing; the resident has no other known legal representative; and the representative of the Office obtains the approval of the Ombudsman; ; and by adding at the end the following: For purposes of section 264(c) of the Health Insurance Portability and Accountability Act of 1996 (including regulations issued under that section) (42 U.S.C. 1320d–2 note), the Ombudsman and a representative of the Office shall be considered a health oversight agency, so that release of residents' individually identifiable health information to the Ombudsman or representative is not precluded in cases in which the requirements of clause
(i)or
(ii)of paragraph (1)(B), or the requirements of paragraph (1)(D) are otherwise met. ; in subsection (c)(2)(D), by striking section 202(a)(21) and inserting section 202(a)(18) ; in subsection (d)— in paragraph (1), by striking files and inserting information ; and in paragraph (2)— in subparagraph (A), by striking files and records each place such term appears and inserting information ; and in subparagraph (B), by striking files or records and inserting information ; in subsection (f)(3)— in subparagraph (C), by striking facility; and and inserting facility or a related organization, and has not been employed by such a facility or organization within 2 years before the date of the determination involved; ; in subparagraph (D), by striking and at the end; and by adding at the end the following: does not have management responsibility for, or operate under the supervision of, an agency with responsibility for adult protective services; and does not serve 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 or fiduciary, for a family member, in a personal capacity); and ; in subsection (h)— in paragraph (4), by striking all that precedes procedures and inserting the following: strengthen and update ; by redesignating paragraphs
(4)through
(9)as paragraphs
(5)through (10), respectively; by inserting after paragraph
(3)the following: ensure that the Ombudsman or a designee attends training provided by the Administration through the National Ombudsman Resource Center established in section 202(a)(18); ; in paragraph (7)(A), as redesignated by subparagraph
(B)of this paragraph, by striking subtitle C of the and inserting subtitle C of title I of the ; and in paragraph (10), as redesignated by subparagraph
(B)of this paragraph, by striking (6), or
(7)and inserting (7), or
(8); and by adding at the end the following: The State agency shall ensure the Office— provides long-term care facility residents with private and unimpeded access to the Office, including access to all records concerning the resident; and allows all long-term care facility residents to receive services from the Office. .
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- 42 USC 1320d–2
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Sec. 707
State Long-Term Care Ombudsman program
Cite42 USC 1320d–2
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