42 U.S.C. § 3058g: State Long-Term Care Ombudsman program

establish and operate an Office of the State Long-Term Care Ombudsman; and carry out through the Office a State Long-Term Care Ombudsman program. The Office shall be headed by an individual, to be known as the State Long-Term Care Ombudsman, who shall be selected from among individuals with expertise and experience in the fields of long-term care and advocacy. The Ombudsman shall be responsible for the management, including the fiscal management, of the Office. 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 providers, or representatives of providers, of long-term care services; public agencies; or health and social service agencies; provide services to assist the residents in protecting the health, safety, welfare, and rights of the residents; inform the residents about means of obtaining services provided by providers or agencies described in subparagraph (A)(ii) or services described in subparagraph (B); ensure that the residents have regular, timely, private, and unimpeded access to the services provided through the Office and that the residents and complainants receive timely responses from representatives of the Office to complaints; represent the interests of the residents before governmental agencies and seek administrative, legal, and other remedies to protect the health, safety, welfare, and rights of the residents; provide administrative and technical assistance to entities designated under paragraph (5) to assist the entities in participating in the 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 the residents, with respect to the adequacy of long-term care facilities and services in the State; recommend any changes in such laws, regulations, policies, and actions as the Office determines to be appropriate; and facilitate public comment on the laws, regulations, policies, and actions; provide for training representatives of the Office; promote the development of citizen organizations, to participate in the program; and provide technical support for, actively encourage, and assist in the development of resident and family councils to protect the well-being and rights of residents; 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 carry out such other activities as the Assistant Secretary determines to be appropriate. Except as provided in subparagraph (B), the State agency may establish and operate the Office, and carry out the program, directly, or by contract or other arrangement with any public agency or nonprofit private organization. an agency or organization that is responsible for licensing or certifying long-term care services in the State; or an association (or an affiliate of such an association) of long-term care facilities, or of any other residential facilities for older individuals. In carrying out the duties of the Office, the Ombudsman may designate an entity as a local Ombudsman entity, and may designate an employee or volunteer to represent the entity. provide services to protect the health, safety, welfare 1 and rights of residents; 1 So in original. Probably should be followed by a comma. ensure that residents in the service area of the entity have regular, timely access to representatives of the program and timely responses to complaints and requests for assistance; identify, investigate, and resolve complaints made by or on behalf of residents that relate to action, inaction, or decisions, that may adversely affect the health, safety, welfare, or rights of the residents; represent the interests of residents before government agencies and seek administrative, legal, and other remedies to protect the health, safety, welfare, and rights of the residents; 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 residents; and facilitate the ability of the public to comment on the laws, regulations, policies, and actions; support, actively encourage, and assist in the development of resident and family councils; 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 carry out other activities that the Ombudsman determines to be appropriate. have demonstrated capability to carry out the responsibilities of the Office; 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; in the case of the entities, be public or nonprofit private entities; and meet such additional requirements as the Ombudsman may specify. The State agency shall establish, in accordance with the Office, policies and procedures for monitoring local Ombudsman entities designated to carry out the duties of the Office. In a case in which the entities are grantees, or the 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 part regarding confidentiality and conflict of interest. Nothing in this paragraph shall be construed as prohibiting the program from providing and financially supporting recognition for an individual designated under subparagraph (A) as a volunteer to represent the Ombudsman program, or from reimbursing or otherwise providing financial support to such an individual for any costs, such as transportation costs, incurred by the individual in serving as such volunteer. private and unimpeded access to long-term care facilities and residents; the representative has the permission of the resident, or the legal representative of the resident; or the resident is unable to communicate consent to the review and has no legal representative; or a legal guardian of the resident refuses to give the permission; a representative of the Office has reasonable cause to believe that the guardian is not acting in the best interests of the resident; and the representative obtains the approval of the Ombudsman; access to the administrative records, policies, and documents, to which the residents have, or the general public has access, of long-term care facilities; and access to and, on request, copies of all licensing and certification records maintained by the State with respect to long-term care facilities. The State agency shall establish procedures to ensure the access described in paragraph (1). 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. collect and analyze data relating to complaints and conditions in long-term care facilities and to residents for the purpose of identifying and resolving significant problems; and the agency of the State responsible for licensing or certifying long-term care facilities 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 3012(a)(18) of this title . The State agency shall establish procedures for the disclosure by the Ombudsman or local Ombudsman entities of files, records, and other information maintained by the program, including records described in subsection (b)(1) or (c). provide that, subject to subparagraph (B), the files, records, and other information 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, records, and other information); the complainant or resident, or the legal representative of the complainant or resident, consents to the disclosure and the consent is given in writing; the complainant or resident gives consent orally; and the consent is documented contemporaneously in a writing made by a representative of the Office in accordance with such requirements as the State agency shall establish; or the disclosure is required by court order; and 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). In planning and operating the program, the State agency shall consider the views of area agencies on aging, older individuals, and providers of long-term care. 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 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). 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. identified by the State agency; disclosed by the State agency to the Assistant Secretary in writing; and remedied in accordance with this subparagraph. 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). provide advice and consultation needed to protect the health, safety, welfare, and rights of residents; and assist the Ombudsman and representatives of the Office in the performance of the official duties of the Ombudsman and representatives; and 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 the Office pursues administrative, legal, and other appropriate remedies on behalf of residents. describing the activities carried out by the Office in the year for which the report is prepared; containing and analyzing the data collected under subsection (c); evaluating the problems experienced by, and the complaints made by or on behalf of, residents; improving quality of the care and life of the residents; and protecting the health, safety, welfare, and rights of the residents; analyzing the success of the program including success in providing services to residents of board and care facilities and other similar adult care facilities; and identifying barriers that prevent the optimal operation of the program; and providing policy, regulatory, and legislative recommendations to solve identified problems, to resolve the complaints, to improve the quality of care and life of residents, to protect the health, safety, welfare, and rights of residents, and to remove the barriers; 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 long-term care facilities and services, and to the health, safety, welfare, and rights of residents, in the State, and recommend any changes in such laws, regulations, and policies as the Office determines to be appropriate; the problems and concerns of individuals residing in long-term care facilities; 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 long-term care facilities, and other appropriate governmental entities, each report prepared under paragraph (1); ensure that the Ombudsman or a designee participates in training provided by the National Ombudsman Resource Center established in section 3012(a)(18) of this title ; specify a minimum number of hours of initial training; Federal, State, and local laws, regulations, and policies, with respect to long-term care facilities 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; has received the training required under paragraph (5); and has been approved by the Ombudsman as qualified to carry out the activity on behalf of the Office; subtitle C of title I 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 Mentally Ill Individuals Act of 1986 2 ( 2 See References in Text note below. 42 U.S.C. 10801 et seq.); coordinate, to the greatest extent possible, ombudsman services with legal assistance provided under section 3026(a)(2)(C) of this title , 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 Ombudsman entity to carry out the responsibilities described in paragraph (1), (2), (3), (7), or (8). The State shall ensure that no representative of the Office will be liable under State law for the good faith performance of official duties. ensure that willful interference with representatives of the Office 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 long-term care facility or other entity with respect to any resident, employee, or other person for filing a complaint with, providing information to, or otherwise cooperating with any representative of, the Office; and provide for appropriate sanctions with respect to the interference, retaliation, and reprisals.