Sec. 205. State Home Care Ombudsman Programs
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Subtitle A of title VII of the Older Americans Act of 1965 ( 42 U.S.C. 3058 et seq. ) is amended by adding at the end the following: In this chapter: The term home care consumer means a person who receives services in the person’s home or community to promote independence and reduce the necessity for residence in a long-term care facility, which may include— home care services provided through this Act, the Medicare program under title XVIII of the Social Security Act ( 42 U.S.C. 1395 et seq. ), the Medicaid program under title XIX of the Social Security Act ( 42 U.S.C. 1396 et seq. ), or another public or private funding source; or home care services determined to be appropriate by a State operating a State Home Care Ombudsman Program.
The term home care ombudsman program means a State Home Care Ombudsman Program described in section 737(a)(1). The term home care ombudsman representative includes an employee or volunteer who represents an entity designated under section 737(a)(5)(A) and who is individually designated by the Ombudsman. The term home care services means home and community-based services to promote independence and reduce the necessity for residence in a long-term care facility, including personal care services designed to assist an individual in the activities of daily living such as bathing, exercising, personal grooming, and getting in and out of bed.
The term local home care Ombudsman entity means an entity designated under section 737(a)(5)(A) to carry out the duties described in section 737(a)(5)(B) with respect to a planning and service area or other substate area. The terms Office and Ombudsman , used without further modification, have the meanings given the terms in section 711. In order to be eligible to receive a grant under section 703(d) from funds appropriated under section 702A and made available to carry out this chapter, a State agency shall, in accordance with this section, agree to carry out a State Home Care Ombudsman Program within the Office of the State Long-Term Care Ombudsman.
The home care ombudsman program shall be carried out by the Ombudsman. In carrying out the home care ombudsman program, the Ombudsman, personally or through representatives of the home care ombudsman program— shall identify, investigate, and resolve complaints that— are made by, or on behalf of, home care consumers; relate to action, inaction, or decisions, that may adversely affect the health, safety, welfare, or rights of home care consumers (including the welfare and rights of home care consumers with respect to the appointment and activities of guardians and representative payees), of— entities responsible for determining eligibility for home care services, such as State and local governments; and entities responsible for determining availability of home care services, such as managed care organizations; or relate to action, inaction, or decisions, regarding informing home care consumers about their eligibility for, or the availability of, home care services, of— providers, or representatives of providers, of home care services; public agencies; health and social service agencies; and entities providing consumer-directed services under a consumer-directed program; shall provide services to protect the health, safety, welfare, and rights of home care consumers; shall inform home care consumers about means of obtaining services provided by providers or agencies described in subparagraph (A)(ii) or services described in subparagraph (B); shall, in conjunction with other entities, such as area agencies on aging, conduct public education about the home care ombudsman program and its services, including the rights of home care workers to report concerns to the ombudsman in order to protect the health, safety, welfare, and rights of home care consumers; shall ensure that home care consumers and complainants receive timely responses from representatives of the home care ombudsman program to complaints; shall represent the interests of home care consumers before governmental agencies and seek administrative, legal, and other remedies to protect the health, safety, welfare, and rights of the home care consumers, including issues related to the sufficiency of the home care workforce and its availability to meet the needs of home care consumers; shall provide administrative and technical assistance to entities designated under paragraph
(5)to assist the entities in participating in the home care ombudsman program; shall provide for training representatives of the home care ombudsman program; shall— promote the development of citizen organizations, to participate in the home care ombudsman program; analyze, comment on, and monitor the development and implementation of Federal, State, and local laws, regulations, and other governmental policies and actions, that pertain to the health, safety, welfare, and rights of home care consumers, with respect to the adequacy of home care services in the State, including issues related to the sufficiency of the home care workforce and its availability to meet the needs of home care consumers; recommend any changes in such laws, regulations, policies, and actions as the Ombudsman determines to be appropriate; and facilitate public comment on the laws, regulations, policies, and actions; and shall carry out other activities as the Assistant Secretary determines to be appropriate. Except as provided in subparagraph (B), the State agency shall carry out the home care ombudsman program, directly, or by contract or other arrangement with any public agency or nonprofit private organization. The State agency shall determine whether to enter into contracts or arrangements with area agencies on aging to carry out the home care ombudsman program, based on the structure of the State's existing (as of the date of the determination) long-term care ombudsman program and the potential for conflicts of interest in the home and community-based services system in the State. A State agency may carry out a home care ombudsman program through area agencies on aging in the State, if the area agencies on aging— have existing (as of the date of the determination) consumer protection systems in place to prevent such conflicts of interest; or establish adequate procedures to prevent conflicts of interest under the program. The State agency may not enter into the contract or other arrangement described in subparagraph
(A)with— an agency or organization that is responsible for licensing or certifying home care services in the State; or an association (or an affiliate of such an association) of providers of home care services. In carrying out the duties of the Office, the Ombudsman may designate an entity as a local home care Ombudsman entity (and, in doing so, the Ombudsman shall, if a local Ombudsman entity has already been designated, designate such local Ombudsman entity as the local home care Ombudsman entity), and may designate an employee or volunteer to represent the entity. An individual so designated, in accordance with the policies and procedures established by the Ombudsman and the State agency— shall provide services to protect the health, safety, welfare, and rights of home care consumers; shall ensure that home care consumers in the service area of the entity have timely responses to complaints and requests for assistance; shall identify, investigate, and resolve complaints made by or on behalf of home care consumers that relate to action, inaction, or decisions, that may adversely affect the health, safety, welfare, or rights of home care consumers; shall represent the interests of home care consumers before government agencies and seek administrative, legal, and other remedies to protect the health, safety, welfare, and rights of home care consumers; shall— review, and if necessary, comment on any existing and proposed laws, regulations, and other government policies and actions, that pertain to the rights and well-being of home care consumers; and facilitate the ability of the public to comment on the laws, regulations, policies, and actions; shall make referrals for services to protect and provide for the health, safety, educational needs, welfare, and rights of family or household members (including children) of home care consumers; and shall carry out other activities that the Ombudsman determines to be appropriate. Entities eligible to be designated as local home care Ombudsman entities, and individuals eligible to be designated as home care ombudsman representatives of such entities, shall— have demonstrated capability to carry out the duties established in section 712(a)(5)(B); be free of conflicts of interest and not stand to gain financially through an action or potential action brought on behalf of individuals the Ombudsman serves; and meet such additional requirements as the Ombudsman may specify. The State agency shall establish, in accordance with the Ombudsman, policies and procedures for monitoring local home care Ombudsman entities designated to carry out the duties established in section 712(a)(5)(B). In a case in which the entities are grantees or the home care ombudsman representatives are employees, of area agencies on aging, the State agency shall develop the policies in consultation with the area agencies on aging. The policies shall provide for participation and comment by the agencies and for resolution of concerns with respect to case activity. The State agency shall develop the policies and procedures in accordance with all provisions of this subtitle regarding confidentiality and conflict of interest for providers of home care services. The State shall ensure that representatives of the home care ombudsman program shall have— access to home care consumers and their homes with permission of the home care consumer involved or a legal representative; appropriate access to review all records of a home care consumer, if— the representative of the home care ombudsman program has the permission of the home care consumer, or the legal representative of the home care consumer; or the home care consumer is unable to consent to the review and has no legal representative; or such access to the records as is necessary to investigate a complaint if— a legal guardian of the home care consumer refuses to give the permission; a representative of the home care ombudsman program has reasonable cause to believe that the guardian is not acting in the best interests of the home care consumer; and the representative obtains the approval of the Ombudsman; access to the administrative records, policies, and documents, to which home care consumers have, or the general public has access, of the provider of home care services; and access to and, on request, copies of all licensing and certification records maintained by the State with respect to the provider of home care services. The State agency shall establish procedures to ensure the access described in paragraph (1). The State agency shall ensure that the reporting system established in section 712(c) is equipped to— collect and analyze data relating to complaints and conditions concerning home care services and to home care consumers for the purpose of identifying and resolving significant problems, including complaints concerning— quality of services; quantity of services; availability of services; and denial, reduction, and termination of services; and submit the data, on a regular basis, to— the agency of the State responsible for licensing or certifying providers of home care services in the State; other State and Federal entities that the Ombudsman determines to be appropriate; the Assistant Secretary; and the National Ombudsman Resource Center established in section 202(a)(18)(A). The State agency shall establish procedures for the disclosure by the Ombudsman or local home care Ombudsman entities of files maintained by the home care ombudsman program, including records described in subsection (b)(1) or (c). The procedures described in paragraph
(1)shall— provide that, subject to subparagraph (B), the files and records described in paragraph
(1)may be disclosed only at the discretion of the Ombudsman (or the person designated by the Ombudsman to disclose the files and records); and prohibit the disclosure of the identity of any complainant or home care consumer with respect to whom the Office maintains such files or records unless— the complainant or home care consumer, or the legal representative of the complainant or home care consumer, consents to the disclosure and the consent is given in writing; the complainant or home care consumer gives consent orally; and the consent is documented contemporaneously in a writing made by a representative of the home care ombudsman program in accordance with such requirements as the State agency shall establish; or the disclosure is required by court order. In planning and carrying out the home care ombudsman program, the State agency shall consider the views of area agencies on aging, older individuals, and providers of home care services and demonstrate how the State agency has taken their views into consideration. The State agency shall— ensure that no individual, or member of the immediate family of an individual, involved in the designation of the Ombudsman (whether by appointment or otherwise) or the designation of an entity designated under subsection (a)(5), is subject to a conflict of interest; ensure that no officer or employee of the Office, home care ombudsman representative of a local home care Ombudsman entity, or member of the immediate family of the officer, employee, or home care ombudsman representative, is subject to a conflict of interest; ensure that the Ombudsman— does not have a direct involvement in the licensing or certification of a provider of home care services; does not have an ownership or investment interest (represented by equity, debt, contract, or other financial relationship) in a provider of home care services; is not employed by, or participating in the management of, a provider of home care services; and does not receive, or have the right to receive, directly or indirectly, remuneration (in cash or in-kind) under a compensation arrangement with an owner or operator of a provider of home care services; and establish, and specify in writing, mechanisms to identify and remove conflicts of interest referred to in paragraphs
(1)and (2), and to identify and eliminate the relationships described in subparagraphs
(A)through
(D)of paragraph (3), including such mechanisms as— the methods by which the State agency will examine individuals, and immediate family members, to identify the conflicts; and the actions that the State agency will require the individuals and such family members to take to remove such conflicts. The State agency shall ensure that— adequate legal counsel is available, and is able, without conflict of interest, to— provide advice and consultation needed to protect the health, safety, welfare, and rights of home care consumers; and assist the Ombudsman and representatives of the home care ombudsman program in the performance of the official duties of the Ombudsman and representatives; and legal representation is provided to any representative of the home care ombudsman program 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 the Ombudsman pursues administrative, legal, and other appropriate remedies on behalf of home care consumers. The State agency shall require the Office to— include in its annual report required in section 712(h)(1)— a description of the activities carried out by the Office as they related to the home care ombudsman program in the year for which the report is prepared; the data and an analysis of the data collected under subsection (c); an evaluation of the problems experienced by, and the complaints made by or on behalf of, home care consumers; recommendations for— improving quality of the care and life of the home care consumers; and protecting the health, safety, welfare, and rights of the home care consumers; an analysis of the success of the home care ombudsman program including success in providing services to home care consumers in communities with high percentages of racial or ethnic minorities; and identification of barriers that prevent the optimal operation of the home care ombudsman program; and policy, regulatory, and legislative recommendations to solve identified problems, to resolve the complaints, to improve the quality of care and life of home care consumers, to protect the health, safety, welfare, and rights of home care consumers, and to remove the barriers; not later than 2 years after the date of the enactment of this chapter, establish procedures for the training of the representatives of the home care ombudsman program, including unpaid volunteers, based on best practices outlined by the Assistant Secretary in the most recent report submitted under subsection (m)(1), in consultation with representatives of citizen groups, providers of home care services, and the home care ombudsman program, that— specify a minimum number of hours of initial training; specify the content of the training, including training relating to— Federal, State, and local laws, regulations, and policies, with respect to providers of home care services in the State; investigative techniques; and such other matters as the State determines to be appropriate; and specify an annual number of hours of in-service training for all designated representatives; prohibit any representative of the home care ombudsman program (other than the Ombudsman) from carrying out any activity described in subparagraphs
(A)through
(H)of subsection (a)(3) unless the representative— has received the training required under subparagraph (B); and has been approved by the Ombudsman as qualified to carry out the activity on behalf of the Office; coordinate home care ombudsman services with the protection and advocacy systems for individuals with developmental disabilities and mental illnesses established under— subtitle C of the Developmental Disabilities Assistance and Bill of Rights Act of 2000 (42 U.S.C. 15041 et seq.); and the Protection and Advocacy for Individuals with Mental Illness Act (42 U.S.C. 10801 et seq.); coordinate, to the greatest extent possible, home care ombudsman services with legal assistance provided under section 306(a)(2)(C), through adoption of memoranda of understanding and other means; coordinate services with State and local law enforcement agencies and courts of competent jurisdiction; and permit any local home care Ombudsman entity to carry out the responsibilities described in subparagraph (A), (D), or (E). The State agency shall require the Office to— analyze, comment on, and monitor the development and implementation of Federal, State, and local laws, regulations, and other government policies and actions that pertain to providers of home care services and those services, and to the health, safety, welfare, and rights of home care consumers, in the State, and recommend any changes in such laws, regulations, and policies as the Ombudsman determines to be appropriate; provide such information as the Ombudsman determines to be necessary to public and private agencies, legislators, and other persons, regarding— the problems and concerns of older individuals receiving home care services; and recommendations related to the problems and concerns; and make available to the public, and submit to the Assistant Secretary, the chief executive officer of the State, the State legislature, the State agency responsible for licensing or certifying providers of home care services, and other appropriate governmental entities, each report prepared under paragraph (1)(A); and permit any local home care Ombudsman entity to carry out the responsibilities described in subparagraph
(A)or (B). The State shall ensure that no representative of the home care ombudsman program will be liable under State law for the good faith performance of official duties. The State shall— ensure that willful interference with representatives of the home care ombudsman program in the performance of the official duties of the representatives (as defined by the Assistant Secretary) shall be unlawful; prohibit retaliation and reprisals by a provider of home care services or other entity with respect to any recipient of home and community-based services, employee, exclusive representative of an employee, or other person for filing a complaint with, providing information to, or otherwise cooperating with any representative of, the home care ombudsman program; and provide for appropriate sanctions with respect to the interference, retaliation, and reprisals. The Ombudsman, in carrying out the State Home Care Ombudsman Program, shall coordinate activities with the National Adult Protective Services Resource Center and the head of the State’s adult protective services program in a manner that is consistent with the State’s existing (as of the date of the coordination) protocols for coordination of activities between the Ombudsman, in carrying out the State Long-Term Care Ombudsman Program. If the protocols described in paragraph
(1)do not exist in the State, the Ombudsman, in conjunction with the head of the State’s adult protective services program, shall establish protocols to coordinate activities with the intent of better serving vulnerable adults, which protocols shall— clarify the roles of each program; establish procedures for maintaining a working relationship; outline mutual expectations; and establish procedures for coordinating activities with law enforcement. A State, in using the funds made available for a fiscal year through a grant received under section 703(d), shall maintain the expenditures of the State for home care ombudsman services at a level that is not less than the level of such expenditures maintained by the State for the preceding fiscal year. The Assistant Secretary shall— in conjunction with the Director of the Office of Long-Term Care Ombudsman Programs and the heads of other entities determined to be necessary by the Assistant Secretary, collect and analyze the data required to be submitted under subsection
(c)by the States and within 1 year after receipt of the data, submit a report to Congress outlining best practices for carrying out a home care ombudsman program; and make the report available to States. .
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Sec. 205
State Home Care Ombudsman Programs
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