§3058f. Definitions — Inbound Citations
42 U.S.C. § 3058f
Cited by 171 provisions in release 119-102.
Citations to §3058f(1)
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(A) establish and operate an Office of the State Long-Term Care Ombudsman; and
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(B) carry out through the Office a State Long-Term Care Ombudsman program.
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(2) 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.
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(3) The Ombudsman shall serve on a full-time basis, and shall, personally or through representatives of the Office—(A) identify, investigate, and resolve complaints that—(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) relate to action, inaction, or decisions, that may adversely affect the health, safety, welfare, or rights of the residents (including the welfare and rights of the residents with respect to the appointment and activities of guardians and representative payees), of—(I) providers, or representatives of providers, of long-term care services;(II) public agencies; or(III) health and social service agencies;(B) provide services to assist the residents in protecting the health, safety, welfare, and rights of the residents;(C) inform the residents about means of obtaining services provided by providers or agencies described in subparagraph (A)(ii) or services described in subparagraph (B);(D) 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;(E) 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;(F) provide administrative and technical assistance to entities designated under paragraph (5) to assist the entities in participating in the program;(i) 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;(ii) recommend any changes in such laws, regulations, policies, and actions as the Office determines to be appropriate; and(iii) facilitate public comment on the laws, regulations, policies, and actions;(i) provide for training representatives of the Office;(ii) promote the development of citizen organizations, to participate in the program; and(iii) 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;(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(J) carry out such other activities as the Assistant Secretary determines to be appropriate.
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(D) 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;
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(ii) recommend any changes in such laws, regulations, policies, and actions as the Office determines to be appropriate; and
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(i) provide for training representatives of the Office;
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(A) 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.
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(A) 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.
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(B) An individual so designated shall, in accordance with the policies and procedures established by the Office and the State agency—(i) provide services to protect the health, safety, welfare1 and rights of residents;(ii) 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;(iii) 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;(iv) 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;(I) 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(II) facilitate the ability of the public to comment on the laws, regulations, policies, and actions;(vi) support, actively encourage, and assist in the development of resident and family councils;(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(viii) carry out other activities that the Ombudsman determines to be appropriate.
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(i) have demonstrated capability to carry out the responsibilities of the Office;
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(i) 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.
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(1) The State shall ensure that representatives of the Office shall have—(A) private and unimpeded access to long-term care facilities and residents;(i) appropriate access to review all files, records, and other information concerning a resident, if—(I) the representative has the permission of the resident, or the legal representative of the resident; or(II) the resident is unable to communicate consent to the review and has no legal representative; or(ii) access to the files, records, and information as is necessary to investigate a complaint if—(I) a legal guardian of the resident refuses to give the permission;(II) a representative of the Office has reasonable cause to believe that the guardian is not acting in the best interests of the resident; and(III) the representative obtains the approval of the Ombudsman;(C) 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(D) access to and, on request, copies of all licensing and certification records maintained by the State with respect to long-term care facilities.
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(II) a representative of the Office has reasonable cause to believe that the guardian is not acting in the best interests of the resident; and
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(3) 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.
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(B) prohibit the disclosure of the identity of any complainant or resident with respect to whom the Office maintains such files, records, or other information unless—(i) the complainant or resident, or the legal representative of the complainant or resident, consents to the disclosure and the consent is given in writing;(I) the complainant or resident gives consent orally; and(II) 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(iii) the disclosure is required by court order; and
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(II) 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
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(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
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(A) 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.
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(i) 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.
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(ii) 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).
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(ii) assist the Ombudsman and representatives of the Office in the performance of the official duties of the Ombudsman and representatives; and
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(B) 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
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(h) The State agency shall require the Office to—(1) prepare an annual report—(A) describing the activities carried out by the Office in the year for which the report is prepared;(B) containing and analyzing the data collected under subsection (c);(C) evaluating the problems experienced by, and the complaints made by or on behalf of, residents;(D) containing recommendations for—(i) improving quality of the care and life of the residents; and(ii) protecting the health, safety, welfare, and rights of the residents;(i) 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(ii) identifying barriers that prevent the optimal operation of the program; and(F) 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;(2) 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;(A) provide such information as the Office determines to be necessary to public and private agencies, legislators, and other persons, regarding—(i) the problems and concerns of individuals residing in long-term care facilities; and(ii) recommendations related to the problems and concerns; and(B) 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);(4) 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;(5) strengthen and update procedures for the training of the representatives of the Office, including unpaid volunteers, based on model standards established by the Director of the Office of Long-Term Care Ombudsman Programs, in consultation with representatives of citizen groups, long-term care providers, and the Office, that—(A) specify a minimum number of hours of initial training;(B) specify the content of the training, including training relating to—(i) Federal, State, and local laws, regulations, and policies, with respect to long-term care facilities in the State;(ii) investigative techniques; and(iii) such other matters as the State determines to be appropriate; and(C) specify an annual number of hours of in-service training for all designated representatives;(6) prohibit any representative of the Office (other than the Ombudsman) from carrying out any activity described in subparagraphs (A) through (G) of subsection (a)(3) unless the representative—(A) has received the training required under paragraph (5); and(B) has been approved by the Ombudsman as qualified to carry out the activity on behalf of the Office;(7) coordinate ombudsman services with the protection and advocacy systems for individuals with developmental disabilities and mental illnesses established under—(A) 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(B) the Protection and Advocacy for Mentally Ill Individuals Act of 19862 (42 U.S.C. 10801 et seq.);(8) 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;
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(A) describing the activities carried out by the Office in the year for which the report is prepared;
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(2) 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;
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(A) provide such information as the Office determines to be necessary to public and private agencies, legislators, and other persons, regarding—(i) the problems and concerns of individuals residing in long-term care facilities; and(ii) recommendations related to the problems and concerns; and
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(5) strengthen and update procedures for the training of the representatives of the Office, including unpaid volunteers, based on model standards established by the Director of the Office of Long-Term Care Ombudsman Programs, in consultation with representatives of citizen groups, long-term care providers, and the Office, that—(A) specify a minimum number of hours of initial training;(B) specify the content of the training, including training relating to—(i) Federal, State, and local laws, regulations, and policies, with respect to long-term care facilities in the State;(ii) investigative techniques; and(iii) such other matters as the State determines to be appropriate; and(C) specify an annual number of hours of in-service training for all designated representatives;
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(6) prohibit any representative of the Office (other than the Ombudsman) from carrying out any activity described in subparagraphs (A) through (G) of subsection (a)(3) unless the representative—(A) has received the training required under paragraph (5); and
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(i) The State shall ensure that no representative of the Office will be liable under State law for the good faith performance of official duties.
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(1) 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;
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(2) 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
Citations to §3058f(2)
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(A) establish and operate an Office of the State Long-Term Care Ombudsman; and
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(B) carry out through the Office a State Long-Term Care Ombudsman program.
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(2) 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.
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(3) The Ombudsman shall serve on a full-time basis, and shall, personally or through representatives of the Office—(A) identify, investigate, and resolve complaints that—(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) relate to action, inaction, or decisions, that may adversely affect the health, safety, welfare, or rights of the residents (including the welfare and rights of the residents with respect to the appointment and activities of guardians and representative payees), of—(I) providers, or representatives of providers, of long-term care services;(II) public agencies; or(III) health and social service agencies;(B) provide services to assist the residents in protecting the health, safety, welfare, and rights of the residents;(C) inform the residents about means of obtaining services provided by providers or agencies described in subparagraph (A)(ii) or services described in subparagraph (B);(D) 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;(E) 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;(F) provide administrative and technical assistance to entities designated under paragraph (5) to assist the entities in participating in the program;(i) 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;(ii) recommend any changes in such laws, regulations, policies, and actions as the Office determines to be appropriate; and(iii) facilitate public comment on the laws, regulations, policies, and actions;(i) provide for training representatives of the Office;(ii) promote the development of citizen organizations, to participate in the program; and(iii) 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;(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(J) carry out such other activities as the Assistant Secretary determines to be appropriate.
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(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
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(A) 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.
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(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
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(viii) carry out other activities that the Ombudsman determines to be appropriate.
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(ii) 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;
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(iv) meet such additional requirements as the Ombudsman may specify.
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(E) 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.
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(III) the representative obtains the approval of the Ombudsman;
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(3) 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.
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(D) the National Ombudsman Resource Center established in section 3012(a)(18) of this title.
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(1) 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).
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(A) 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);
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(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).
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(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;
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(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).
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(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).
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(ii) assist the Ombudsman and representatives of the Office in the performance of the official duties of the Ombudsman and representatives; and
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(B) 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
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(4) 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;
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(5) strengthen and update procedures for the training of the representatives of the Office, including unpaid volunteers, based on model standards established by the Director of the Office of Long-Term Care Ombudsman Programs, in consultation with representatives of citizen groups, long-term care providers, and the Office, that—(A) specify a minimum number of hours of initial training;(B) specify the content of the training, including training relating to—(i) Federal, State, and local laws, regulations, and policies, with respect to long-term care facilities in the State;(ii) investigative techniques; and(iii) such other matters as the State determines to be appropriate; and(C) specify an annual number of hours of in-service training for all designated representatives;
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(6) prohibit any representative of the Office (other than the Ombudsman) from carrying out any activity described in subparagraphs (A) through (G) of subsection (a)(3) unless the representative—(A) has received the training required under paragraph (5); and
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(7) coordinate ombudsman services with the protection and advocacy systems for individuals with developmental disabilities and mental illnesses established under—(A) 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(B) the Protection and Advocacy for Mentally Ill Individuals Act of 19862 (42 U.S.C. 10801 et seq.);
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(8) 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;
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(3) the State Long-Term Care Ombudsman program established in subpart II of this part;
Citations to §3058f(3)
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(A) 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.
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(C) Entities eligible to be designated as local Ombudsman entities, and individuals eligible to be designated as representatives of such entities, shall—(i) have demonstrated capability to carry out the responsibilities of the Office;(ii) 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;(iii) in the case of the entities, be public or nonprofit private entities; and(iv) meet such additional requirements as the Ombudsman may specify.
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(i) 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.
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(1) 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).
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(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
Citations to §3058f(4)
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(B) carry out through the Office a State Long-Term Care Ombudsman program.
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(F) provide administrative and technical assistance to entities designated under paragraph (5) to assist the entities in participating in the program;
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(ii) promote the development of citizen organizations, to participate in the program; and
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(A) 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.
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(ii) 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;
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(E) 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.
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(1) 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).
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(e) 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.
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(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);
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(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.);
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(i) 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.
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(i) 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
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(ii) identifying barriers that prevent the optimal operation of the program; and
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(5) strengthen and update procedures for the training of the representatives of the Office, including unpaid volunteers, based on model standards established by the Director of the Office of Long-Term Care Ombudsman Programs, in consultation with representatives of citizen groups, long-term care providers, and the Office, that—(A) specify a minimum number of hours of initial training;(B) specify the content of the training, including training relating to—(i) Federal, State, and local laws, regulations, and policies, with respect to long-term care facilities in the State;(ii) investigative techniques; and(iii) such other matters as the State determines to be appropriate; and(C) specify an annual number of hours of in-service training for all designated representatives;
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(a) In order to be eligible to receive an allotment under section 3058b of this title from funds appropriated under section 3058a of this title and made available to carry out this subpart, a State agency shall, in accordance with this section, and in consultation with area agencies on aging, develop and enhance programs to address elder abuse, neglect, and exploitation.
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(b) The State agency shall use an allotment made under subsection (a) to carry out, through the programs described in subsection (a), activities to develop, strengthen, and carry out programs for the prevention, detection, assessment, and treatment of, intervention in, investigation of, and response to elder abuse, neglect, and exploitation, including—(1) providing for public education and outreach to identify and prevent elder abuse, neglect, and exploitation;(2) providing for public education and outreach to promote financial literacy and prevent identity theft and financial exploitation of older individuals;(3) ensuring the coordination of services provided by area agencies on aging with services instituted under the State adult protection service program, State and local law enforcement systems, and courts of competent jurisdiction;(4) promoting the development of information and data systems, including elder abuse reporting systems, to quantify the extent of elder abuse, neglect, and exploitation in the State;(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;(6) conducting analyses of State information concerning elder abuse, neglect, and exploitation and identifying unmet service, enforcement, or intervention needs;(7) conducting training for individuals, including caregivers described in part E of subchapter III, professionals, and paraprofessionals, in relevant fields on the identification, prevention, and treatment of elder abuse, neglect, and exploitation, with particular focus on prevention and enhancement of self-determination and autonomy;(8) providing technical assistance to programs that provide or have the potential to provide services for victims of elder abuse, neglect, and exploitation and for family members of the victims;(9) conducting special and on-going training, for individuals involved in serving victims of elder abuse, neglect, and exploitation, on the topics of self-determination, individual rights, State and Federal requirements concerning confidentiality, and other topics determined by a State agency to be appropriate;(10) promoting the development of an elder abuse, neglect, and exploitation system—(A) that includes a State elder abuse, neglect, and exploitation law that includes provisions for immunity, for persons reporting instances of elder abuse, neglect, and exploitation, from prosecution arising out of such reporting, under any State or local law;(B) under which a State agency—(i) on receipt of a report of known or suspected instances of elder abuse, neglect, or exploitation, shall promptly initiate an investigation to substantiate the accuracy of the report; and(ii) on a finding of elder abuse, neglect, or exploitation, shall take steps, including appropriate referral, to protect the health and welfare of the abused, neglected, or exploited older individual;(C) that includes, throughout the State, in connection with the enforcement of elder abuse, neglect, and exploitation laws and with the reporting of suspected instances of elder abuse, neglect, and exploitation—(i) such administrative procedures;(ii) such personnel, such as forensic specialists, trained in the special problems of elder abuse, neglect, and exploitation prevention and treatment;(iii) such training procedures;(iv) such institutional and other facilities (public and private); and(v) such related multidisciplinary programs and services, including programs and arrangements that protect against financial exploitation,as may be necessary or appropriate to ensure that the State will deal effectively with elder abuse, neglect, and exploitation cases in the State;(D) that preserves the confidentiality of records in order to protect the rights of older individuals;(E) that provides for the cooperation of law enforcement officials, courts of competent jurisdiction, and State agencies providing human services with respect to special problems of elder abuse, neglect, and exploitation;(F) that enables an older individual to participate in decisions regarding the welfare of the older individual, and makes the least restrictive alternatives available to an older individual who is abused, neglected, or exploited; and(G) that includes a State clearinghouse for dissemination of information to the general public with respect to—(i) the problems of elder abuse, neglect, and exploitation;(ii) the facilities described in subparagraph (C)(iv); and(iii) prevention and treatment methods available to combat instances of elder abuse, neglect, and exploitation;(11) examining various types of shelters serving older individuals (in this paragraph referred to as “safe havens”), and testing various safe haven models for establishing safe havens (at home or elsewhere), that recognize autonomy and self-determination, and fully protect the due process rights of older individuals;(12) supporting multidisciplinary elder justice activities, such as—(A) supporting and studying team approaches for bringing a coordinated multidisciplinary or interdisciplinary response to elder abuse, neglect, and exploitation, including a response from individuals in social service, health care, public safety, and legal disciplines;(B) establishing a State coordinating council, which shall identify the individual State’s needs and provide the Assistant Secretary with information and recommendations relating to efforts by the State to combat elder abuse, neglect, and exploitation;(C) providing training, technical assistance, community outreach and education, and other methods of support to groups carrying out multidisciplinary efforts at the State (referred to in some States as “State Working Groups”);(D) broadening and studying various models for elder fatality and serious injury review teams, to make recommendations about their composition, protocols, functions, timing, roles, and responsibilities, with a goal of producing models and information that will allow for replication based on the needs of States and communities (other than the ones in which the review teams were used);(E) developing best practices, for use in long-term care facilities, that reduce the risk of elder abuse for residents, including the risk of resident-to-resident abuse; and(F) supporting and implementing innovative practices, programs, and materials in communities to develop partnerships across disciplines for the prevention, investigation, and prosecution of abuse, neglect, and exploitation; and(13) addressing underserved populations of older individuals, such as—(A) older individuals living in rural locations;(B) older individuals in minority populations; or(C) low-income older individuals.
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(8) providing technical assistance to programs that provide or have the potential to provide services for victims of elder abuse, neglect, and exploitation and for family members of the victims;
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(v) such related multidisciplinary programs and services, including programs and arrangements that protect against financial exploitation,
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(F) supporting and implementing innovative practices, programs, and materials in communities to develop partnerships across disciplines for the prevention, investigation, and prosecution of abuse, neglect, and exploitation; and
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(c) In developing and enhancing programs under subsection (a), the State agency shall use a comprehensive approach, in consultation with area agencies on aging, to identify and assist older individuals who are subject to abuse, neglect, and exploitation, including older individuals who live in State licensed facilities, unlicensed facilities, or domestic or community-based settings.
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(d) In developing and enhancing programs under subsection (a), the State agency shall coordinate the programs with other State and local programs and services for the protection of vulnerable adults, particularly vulnerable older individuals, including programs and services such as—(2) adult protective service programs;(3) the State Long-Term Care Ombudsman program established in subpart II of this part;(4) protection and advocacy programs;(5) facility and long-term care provider licensure and certification programs;(6) medicaid fraud and abuse services, including services provided by a State medicaid fraud control unit, as defined in section 1396b(q) of this title;(7) victim assistance programs; and
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(2) adult protective service programs;
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(3) the State Long-Term Care Ombudsman program established in subpart II of this part;
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(4) protection and advocacy programs;
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(5) facility and long-term care provider licensure and certification programs;
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(7) victim assistance programs; and
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(e) In developing and enhancing programs under subsection (a), the State agency shall—(1) not permit involuntary or coerced participation in such programs by alleged victims, abusers, or members of their households;(2) require that all information gathered in the course of receiving a report described in subsection (b)(10)(B)(i), and making a referral described in subsection (b)(10)(B)(ii), shall remain confidential except—(A) if all parties to such complaint or report consent in writing to the release of such information;(B) if the release of such information is to a law enforcement agency, public protective service agency, licensing or certification agency, ombudsman program, or protection or advocacy system; or(C) upon court order; and(3) make all reasonable efforts to resolve any conflicts with other public agencies with respect to confidentiality of the information described in paragraph (2) by entering into memoranda of understanding that narrowly limit disclosure of information, consistent with the requirement described in paragraph (2).
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(1) not permit involuntary or coerced participation in such programs by alleged victims, abusers, or members of their households;
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(f) The State agency may designate a State entity to carry out the programs and activities described in this subpart.
Citations to §3058f(5)
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(3) The Ombudsman shall serve on a full-time basis, and shall, personally or through representatives of the Office—(A) identify, investigate, and resolve complaints that—(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) relate to action, inaction, or decisions, that may adversely affect the health, safety, welfare, or rights of the residents (including the welfare and rights of the residents with respect to the appointment and activities of guardians and representative payees), of—(I) providers, or representatives of providers, of long-term care services;(II) public agencies; or(III) health and social service agencies;(B) provide services to assist the residents in protecting the health, safety, welfare, and rights of the residents;(C) inform the residents about means of obtaining services provided by providers or agencies described in subparagraph (A)(ii) or services described in subparagraph (B);(D) 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;(E) 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;(F) provide administrative and technical assistance to entities designated under paragraph (5) to assist the entities in participating in the program;(i) 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;(ii) recommend any changes in such laws, regulations, policies, and actions as the Office determines to be appropriate; and(iii) facilitate public comment on the laws, regulations, policies, and actions;(i) provide for training representatives of the Office;(ii) promote the development of citizen organizations, to participate in the program; and(iii) 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;(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(J) carry out such other activities as the Assistant Secretary determines to be appropriate.
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(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
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(I) providers, or representatives of providers, of long-term care services;
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(D) 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;
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(i) provide for training representatives of the Office;
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(ii) 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;
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(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
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(C) Entities eligible to be designated as local Ombudsman entities, and individuals eligible to be designated as representatives of such entities, shall—(i) have demonstrated capability to carry out the responsibilities of the Office;(ii) 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;(iii) in the case of the entities, be public or nonprofit private entities; and(iv) meet such additional requirements as the Ombudsman may specify.
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(ii) 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.
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(1) The State shall ensure that representatives of the Office shall have—(A) private and unimpeded access to long-term care facilities and residents;(i) appropriate access to review all files, records, and other information concerning a resident, if—(I) the representative has the permission of the resident, or the legal representative of the resident; or(II) the resident is unable to communicate consent to the review and has no legal representative; or(ii) access to the files, records, and information as is necessary to investigate a complaint if—(I) a legal guardian of the resident refuses to give the permission;(II) a representative of the Office has reasonable cause to believe that the guardian is not acting in the best interests of the resident; and(III) the representative obtains the approval of the Ombudsman;(C) 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(D) access to and, on request, copies of all licensing and certification records maintained by the State with respect to long-term care facilities.
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(I) the representative has the permission of the resident, or the legal representative of the resident; or
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(II) the resident is unable to communicate consent to the review and has no legal representative; or
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(II) a representative of the Office has reasonable cause to believe that the guardian is not acting in the best interests of the resident; and
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(III) the representative obtains the approval of the Ombudsman;
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(3) 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.
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(i) the complainant or resident, or the legal representative of the complainant or resident, consents to the disclosure and the consent is given in writing;
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(II) 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
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(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).
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(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
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(ii) assist the Ombudsman and representatives of the Office in the performance of the official duties of the Ombudsman and representatives; and
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(B) 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
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(5) strengthen and update procedures for the training of the representatives of the Office, including unpaid volunteers, based on model standards established by the Director of the Office of Long-Term Care Ombudsman Programs, in consultation with representatives of citizen groups, long-term care providers, and the Office, that—(A) specify a minimum number of hours of initial training;(B) specify the content of the training, including training relating to—(i) Federal, State, and local laws, regulations, and policies, with respect to long-term care facilities in the State;(ii) investigative techniques; and(iii) such other matters as the State determines to be appropriate; and(C) specify an annual number of hours of in-service training for all designated representatives;
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(C) specify an annual number of hours of in-service training for all designated representatives;
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(6) prohibit any representative of the Office (other than the Ombudsman) from carrying out any activity described in subparagraphs (A) through (G) of subsection (a)(3) unless the representative—(A) has received the training required under paragraph (5); and
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(i) The State shall ensure that no representative of the Office will be liable under State law for the good faith performance of official duties.
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(1) 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;
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(2) 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
Citations to §3058f(6)
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(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
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(ii) relate to action, inaction, or decisions, that may adversely affect the health, safety, welfare, or rights of the residents (including the welfare and rights of the residents with respect to the appointment and activities of guardians and representative payees), of—(I) providers, or representatives of providers, of long-term care services;(II) public agencies; or(III) health and social service agencies;
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(C) inform the residents about means of obtaining services provided by providers or agencies described in subparagraph (A)(ii) or services described in subparagraph (B);
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(D) 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;
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(i) 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;
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(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
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(i) provide services to protect the health, safety, welfare1 and rights of residents;
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(ii) 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;
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(I) 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
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(vi) support, actively encourage, and assist in the development of resident and family councils;
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(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
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(A) private and unimpeded access to long-term care facilities and residents;
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(i) appropriate access to review all files, records, and other information concerning a resident, if—(I) the representative has the permission of the resident, or the legal representative of the resident; or(II) the resident is unable to communicate consent to the review and has no legal representative; or
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(I) the representative has the permission of the resident, or the legal representative of the resident; or
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(II) the resident is unable to communicate consent to the review and has no legal representative; or
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(I) a legal guardian of the resident refuses to give the permission;
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(II) a representative of the Office has reasonable cause to believe that the guardian is not acting in the best interests of the resident; and
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(C) 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
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(3) 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.
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(1) 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
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(B) prohibit the disclosure of the identity of any complainant or resident with respect to whom the Office maintains such files, records, or other information unless—(i) the complainant or resident, or the legal representative of the complainant or resident, consents to the disclosure and the consent is given in writing;(I) the complainant or resident gives consent orally; and(II) 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(iii) the disclosure is required by court order; and
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(i) the complainant or resident, or the legal representative of the complainant or resident, consents to the disclosure and the consent is given in writing;
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(I) the complainant or resident gives consent orally; and
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(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).
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(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).
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(i) provide advice and consultation needed to protect the health, safety, welfare, and rights of residents; and
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(C) evaluating the problems experienced by, and the complaints made by or on behalf of, residents;
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(i) improving quality of the care and life of the residents; and
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(ii) protecting the health, safety, welfare, and rights of the residents;
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(i) 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
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(2) 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;
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(2) 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
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(E) developing best practices, for use in long-term care facilities, that reduce the risk of elder abuse for residents, including the risk of resident-to-resident abuse; and