Sec. 8. Vulnerable elder rights protection activities

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A research copy — for the controlling text, always check the official state or federal source. Not legal advice.

Section 702 of the Older Americans Act of 1965 ( 42 U.S.C. 3058a ) is amended— in subsection (a), by striking such sums and all that follows through the period at the end, and inserting $16,280,630 for fiscal year 2017, $16,621,101 for fiscal year 2018, and $16,961,573 for fiscal year 2019. ; by striking subsection

(b)and inserting the following: There are authorized to be appropriated to carry out chapters 3 and 4, $4,891,876 for fiscal year 2017, $4,994,178 for fiscal year 2018, and $5,096,480 for fiscal year 2019. ; and by striking subsection (c). Section 711(6) of the Older Americans Act of 1965 ( 42 U.S.C. 3058f(6) ) is amended by striking older . 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 communicated (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 that outcome; and ; in subparagraph (D), by striking regular and timely and inserting regular, timely, private, and unimpeded ; in subparagraph (H)(iii)— by inserting , actively encourage, and assist in after provide technical support for ; and by striking and after the semicolon; by redesignating subparagraph

(I)as subparagraph (J); and by inserting after subparagraph

(H)the following: when feasible, continue to carry out the functions described in this section on behalf of residents transitioning from a long-term care facility to a home care setting; and ; in paragraph (5)(B)— in clause (vi)— by inserting , actively encourage, and assist in after support ; and by striking and after the semicolon; by redesignating clause

(vii)as clause (viii); and by inserting after clause

(vi)the following: identify, investigate, and resolve complaints described in clause

(iii)that are made by or on behalf of 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 communicated (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 that outcome; and ; in subsection (b)— in paragraph (1)— in subparagraph (A), by striking access and inserting private and unimpeded access ; and in subparagraph (B)— in clause (i)— in the matter preceding subclause (I), by striking the medical and social records of a and inserting all files, records, and other information concerning a ; and in subclause (II), by striking to consent and inserting to communicate consent ; and in clause (ii), in the matter before subclause (I), by striking the records and inserting the files, records, and information ; 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 202(a)(21) and inserting 202(a)(18) ; in subsection (d)— in paragraph (1), by striking files and inserting files, records, and other information ; and in paragraph (2)— in subparagraph (A)— by striking files and records each place such term appears and inserting files, records, and other information ; and by striking and after the semicolon; in subparagraph (B)— by striking files or records and inserting files, records, or other information ; and in clause (iii), by striking the period at the end and inserting ; and ; and by adding at the end the following: notwithstanding subparagraph (B), ensure that the Ombudsman may disclose information as needed in order to best serve residents with limited or no decisionmaking capacity who have no known legal representative and are unable to communicate consent, in order for the Ombudsman to carry out the functions and duties described in paragraphs (3)(A) and (5)(B) of subsection (a). ; and by striking subsection

(f)and inserting the following: 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, representative of a local Ombudsman entity, or member of the immediate family of the officer, employee, or representative, is subject to a conflict of interest; and ensure that the Ombudsman— does not have a direct involvement in the licensing or certification of a long-term care facility or of a provider of a long-term care service; does not have an ownership or investment interest (represented by equity, debt, or other financial relationship) in a long-term care facility or a long-term care service; is not employed by, or participating in the management of, a long-term care facility or a related organization, and has not been employed by such a facility or organization within 1 year before the date of the determination involved; 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 long-term care facility; does not have management responsibility for, or operate under the supervision of an individual with management 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). The State agency shall comply with subparagraph (B)(i) in a case in which the Office poses an organizational conflict of interest, including a situation in which the Office is placed in an organization that— is responsible for licensing, certifying, or surveying 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

(b)or

(c)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 Medicaid program carried out under title XIX of the Social Security Act ( 42 U.S.C. 1396 et seq. ); conducts preadmission screening for placements in facilities described in clause (ii); or makes decisions regarding admission or discharge of individuals to or from such facilities. 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 (within the meaning of subparagraph (A)) unless such conflict of interest 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 (within the meaning of subparagraph (A)) 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, in accordance with the policies and procedures established by the State agency under subsection (a)(5)(D)(iii)— 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 subsection (a)(3). ; and in subsection (h)— in paragraph (3)(A)(i), by striking older ; 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 participates in training provided by the National Ombudsman Resource Center established in section 202(a)(18); ; in paragraph (6)(A), as redesignated by subparagraph

(C)of this paragraph, by striking paragraph

(4)and inserting paragraph

(5); in paragraph (7)(A), as redesignated by subparagraph

(C)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

(C)of this paragraph, by striking (6), or

(7)and inserting (7), or

(8). Section 713 of the Older Americans Act of 1965 ( 42 U.S.C. 3058h ) is amended— in paragraph (1), by striking paragraphs

(1)and

(2)of section 712(f) and inserting subparagraphs

(A)and

(B)of section 712(f)(1) ; and in paragraph (2), by striking subparagraphs

(A)through

(D)of section 712(f)(3) and inserting clauses

(i)through

(vi)of section 712(f)(1)(C) . Section 721 of the Older Americans Act of 1965 ( 42 U.S.C. 3058i ) is amended— in subsection (b)— in the matter preceding paragraph (1), by striking (including financial exploitation) ; by redesignating paragraphs

(5)through

(12)as paragraphs

(6)through (13), respectively; by inserting after paragraph

(4)the following: promoting the submission of data on elder abuse, neglect, and exploitation for the appropriate database of the Administration or another database specified by the Assistant Secretary; ; in paragraph (10)(C), as redesignated by subparagraph

(B)of this paragraph— in clause (ii), by inserting , such as forensic specialists, after such personnel ; and in clause (v), by inserting before the comma the following: , including programs and arrangements that protect against financial exploitation ; and in paragraph (12), as redesignated by subparagraph

(B)of this paragraph— in subparagraph (D), by striking and at the end; and by adding at the end the following: supporting and studying innovative practices in communities to develop partnerships across disciplines for the prevention, investigation, and prosecution of abuse, neglect, and exploitation; and ; and in subsection (e)(2), in the matter preceding subparagraph (A)— by striking subsection (b)(9)(B)(i) and inserting subsection (b)(10)(B)(i) ; and by striking subsection (b)(9)(B)(ii) and inserting subsection (b)(10)(B)(ii) .

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