Sec. 8. VULNERABLE ELDER RIGHTS PROTECTION ACTIVITIES

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## SEC. 8 VULNERABLE ELDER RIGHTS PROTECTION ACTIVITIES ###

(a)Authorization of Appropriations Section 702 of the Older Americans Act of 1965 (42 U.S.C. 3058a) is amended— ####

(1)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.”; ####

(2)by striking subsection

(b)and inserting the following: > > ### “(b) Other Programs > > 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 ####

(3)by striking subsection (c). ###

(b)Ombudsman Definitions Section 711(6) of the Older Americans Act of 1965 (42 U.S.C. 3058f(6)) is amended by striking “older”. ###

(c)Ombudsman Programs Section 712 of the Older Americans Act of 1965 (42 U.S.C. 3058g) is amended— ####

(1)in subsection (a)— #####

(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.”; #####

(B)in paragraph (3)— ######

(i)in subparagraph (A), by striking clause

(i)and inserting the following: > > ###### “(i) > > 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” > ; ######

(ii)in subparagraph (D), by striking “regular and timely” and inserting “regular, timely, private, and unimpeded”; ######

(iii)in subparagraph (H)(iii)— ######

(I)by inserting “, actively encourage, and assist in” after “provide technical support for”; and ######

(II)by striking “and” after the semicolon; ######

(iv)by redesignating subparagraph

(I)as subparagraph (J); and ######

(v)by inserting after subparagraph

(H)the following: > > ##### “(I) > > 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” > ; #####

(C)in paragraph (5)(B)— ######

(i)in clause (vi)— ######

(I)by inserting “, actively encourage, and assist in” after “support”; and ######

(II)by striking “and” after the semicolon; ######

(ii)by redesignating clause

(vii)as clause (viii); and ######

(iii)by inserting after clause

(vi)the following: > > ###### “(vii) > > 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” > ; ####

(2)in subsection (b)— #####

(A)in paragraph (1)— ######

(i)in subparagraph (A), by striking “access” and inserting “private and unimpeded access”; and ######

(ii)in subparagraph (B)— ######

(I)in clause (i)— ######

(aa)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 ######

(bb)in subclause (II), by striking “to consent” and inserting “to communicate consent”; and ######

(II)in clause (ii), in the matter before subclause (I), by striking “the records” and inserting “the files, records, and information”; and #####

(B)by adding at the end the following: > > #### “(3) Health oversight agency > > 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.” > ; ####

(3)in subsection (c)(2)(D), by striking “202(a)(21)” and inserting “202(a)(18)”; ####

(4)in subsection (d)— #####

(A)in paragraph (1), by striking “files” and inserting “files, records, and other information”; and #####

(B)in paragraph (2)— ######

(i)in subparagraph (A)— ######

(I)by striking “files and records” each place such term appears and inserting “files, records, and other information”; and ######

(II)by striking “and” after the semicolon; ######

(ii)in subparagraph (B)— ######

(I)by striking “files or records” and inserting “files, records, or other information”; and ######

(II)in clause (iii), by striking the period at the end and inserting “; and”; and ######

(iii)by adding at the end the following: > > ##### “(C) > > 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 ####

(5)by striking subsection

(f)and inserting the following: > > ### “(f) Conflict of Interest > > > #### “(1) Individual conflict of interest > > The State agency shall— > > > ##### “(A) > > 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; > > > ##### “(B) > > 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 > > > ##### “(C) > > ensure that the Ombudsman— > > > ###### “(i) > > 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; > > > ###### “(ii) > > 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; > > > ###### “(iii) > > 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; > > > ###### “(iv) > > 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; > > > ###### “(v) > > does not have management responsibility for, or operate under the supervision of an individual with management responsibility for, adult protective services; and > > > ###### “(vi) > > 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). > > > #### “(2) Organizational conflict of interest > > > ##### “(A) In General > > 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— > > > ###### “(i) > > is responsible for licensing, certifying, or surveying long-term care services in the State; > > > ###### “(ii) > > is an association (or an affiliate of such an association) of long-term care facilities, or of any other residential facilities for older individuals; > > > ###### “(iii) > > 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); > > > ###### “(iv) > > provides long-term care case management; > > > ###### “(v) > > sets rates for long-term care services; > > > ###### “(vi) > > provides adult protective services; > > > ###### “(vii) > > 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.); > > > ###### “(viii) > > conducts preadmission screening for placements in facilities described in clause (ii); or > > > ###### “(ix) > > makes decisions regarding admission or discharge of individuals to or from such facilities. > > > ##### “(B) Identifying, removing, and remedying organizational conflict > > > ###### “(i) In general > > 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— > > > ###### “(I) > > identified by the State agency; > > > ###### “(II) > > disclosed by the State agency to the Assistant Secretary in writing; and > > > ###### “(III) > > remedied in accordance with this subparagraph. > > > ###### “(ii) Action by assistant secretary > > 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)— > > > ###### “(I) > > remove the conflict; or > > > ###### “(II) > > 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 ####

(6)in subsection (h)— #####

(A)in paragraph (3)(A)(i), by striking “older”; #####

(B)in paragraph (4), by striking all that precedes “ procedures ” and inserting the following: > > #### “(4) > > strengthen and update” > ; #####

(C)by redesignating paragraphs

(4)through

(9)as paragraphs

(5)through (10), respectively; #####

(D)by inserting after paragraph

(3)the following: > > #### “(4) > > ensure that the Ombudsman or a designee participates in training provided by the National Ombudsman Resource Center established in section 202(a)(18);” > ; #####

(E)in paragraph (6)(A), as redesignated by subparagraph

(C)of this paragraph, by striking “paragraph (4)” and inserting “paragraph (5)”; #####

(F)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 #####

(G)in paragraph (10), as redesignated by subparagraph

(C)of this paragraph, by striking “(6), or (7)” and inserting “(7), or (8)”. ###

(d)Ombudsman Regulations Section 713 of the Older Americans Act of 1965 (42 U.S.C. 3058h) is amended— ####

(1)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 ####

(2)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)”. ###

(e)Prevention of Elder Abuse, Neglect, and Exploitation Section 721 of the Older Americans Act of 1965 (42 U.S.C. 3058i) is amended— ####

(1)in subsection (b)— #####

(A)in the matter preceding paragraph (1), by striking “(including financial exploitation)”; #####

(B)by redesignating paragraphs

(5)through

(12)as paragraphs

(6)through (13), respectively; #####

(C)by inserting after paragraph

(4)the following: > > #### “(5) > > 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;” > ; #####

(D)in paragraph (10)(C), as redesignated by subparagraph

(B)of this paragraph— ######

(i)in clause (ii), by inserting “, such as forensic specialists,” after “such personnel”; and ######

(ii)in clause (v), by inserting before the comma the following: “, including programs and arrangements that protect against financial exploitation”; and #####

(E)in paragraph (12), as redesignated by subparagraph

(B)of this paragraph— ######

(i)in subparagraph (D), by striking “and” at the end; and ######

(ii)by adding at the end the following: > > ##### “(F) > > 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 ####

(2)in subsection (e)(2), in the matter preceding subparagraph (A)— #####

(A)by striking “subsection (b)(9)(B)(i)” and inserting “subsection (b)(10)(B)(i)”; and #####

(B)by striking “subsection (b)(9)(B)(ii)” and inserting “subsection (b)(10)(B)(ii)”.

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