
From the U.S. Code Online via GPO Access
[wais.access.gpo.gov]
[Laws in effect as of January 23, 2000]
[Document affected by Public Law 106-402 Section 401(b)(9)(D)]
[Document affected by Public Law 106-501 Section 704]
[Document affected by Public Law 106-501 Section 801(e)(2)]
[CITE: 42USC3058g]

 
                 TITLE 42--THE PUBLIC HEALTH AND WELFARE
 
                CHAPTER 35--PROGRAMS FOR OLDER AMERICANS
 
    SUBCHAPTER XI--ALLOTMENTS FOR VULNERABLE ELDER RIGHTS PROTECTION 
                               ACTIVITIES
 
                        Part A--State Provisions
 
                     subpart ii--ombudsman programs
 
Sec. 3058g. State Long-Term Care Ombudsman program


(a) Establishment

                           (1) In general

        In order to be eligible to receive an allotment under section 
    3058b of this title from funds appropriated under section 3058a(a) 
    of this title, a State agency shall, in accordance with this 
    section--
            (A) establish and operate an Office of the State Long-Term 
        Care Ombudsman; and
            (B) carry out through the Office a State Long-Term Care 
        Ombudsman program.

                            (2) Ombudsman

        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.

                            (3) Functions

        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; 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 and timely 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;
            (G)(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;
            (H)(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 the development of 
        resident and family councils to protect the well-being and 
        rights of residents; and
            (I) carry out such other activities as the Assistant 
        Secretary determines to be appropriate.

                   (4) Contracts and arrangements

        (A) In general

            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.

        (B) Licensing and certification organizations; associations

            The State agency may not enter into the contract or other 
        arrangement described in subparagraph (A) with--
                (i) an agency or organization that is responsible for 
            licensing or certifying long-term care services in the 
            State; or
                (ii) an association (or an affiliate of such an 
            association) of long-term care facilities, or of any other 
            residential facilities for older individuals.

          (5) Designation of local Ombudsman entities and 
                               representatives

        (A) Designation

            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.

        (B) Duties

            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, 
            welfare \1\ and rights of residents;
---------------------------------------------------------------------------
    \1\ So in original. Probably should be followed by a comma.
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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;
                (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;
                (v)(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 the development of resident and family 
            councils; and
                (vii) carry out other activities that the Ombudsman 
            determines to be appropriate.

        (C) Eligibility for designation

            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;
                (iii) in the case of the entities, be public or 
            nonprofit private entities; and
                (iv) meet such additional requirements as the Ombudsman 
            may specify.

        (D) Policies and procedures

            (i) In general

                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.
            (ii) Policies

                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.
            (iii) Confidentiality and disclosure

                The State agency shall develop the policies and 
            procedures in accordance with all provisions of this part 
            regarding confidentiality and conflict of interest.

(b) Procedures for access

                           (1) In general

        The State shall ensure that representatives of the Office shall 
    have--
            (A) access to long-term care facilities and residents;
            (B)(i) appropriate access to review the medical and social 
        records of 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 consent to the review and 
            has no legal representative; or

            (ii) access to the records 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.

                           (2) Procedures

        The State agency shall establish procedures to ensure the access 
    described in paragraph (1).

(c) Reporting system

    The State agency shall establish a statewide uniform reporting 
system to--
        (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
        (2) submit the data, on a regular basis, to--
            (A) the agency of the State responsible for licensing or 
        certifying long-term care facilities in the State;
            (B) other State and Federal entities that the Ombudsman 
        determines to be appropriate;
            (C) the Assistant Secretary; and
            (D) the National Ombudsman Resource Center established in 
        section 3012(a)(21) of this title.

(d) Disclosure

                           (1) In general

        The State agency shall establish procedures for the disclosure 
    by the Ombudsman or local Ombudsman entities of files maintained by 
    the program, including records described in subsection (b)(1) or (c) 
    of this section.

               (2) Identity of complainant or resident

        The procedures described in paragraph (1) shall--
            (A) provide that, subject to subparagraph (B), the files and 
        records described in paragraph (1) may be disclosed only at the 
        discretion of the Ombudsman (or the person designated by the 
        Ombudsman to disclose the files and records); and
            (B) prohibit the disclosure of the identity of any 
        complainant or resident with respect to whom the Office 
        maintains such files or records 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;
                (ii)(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.

(e) Consultation

    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.

(f) Conflict of interest

    The State agency shall--
        (1) 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) of this section, is 
    subject to a conflict of interest;
        (2) 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;
        (3) ensure that the Ombudsman--
            (A) 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;
            (B) 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;
            (C) is not employed by, or participating in the management 
        of, a long-term care facility; and
            (D) 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; and

        (4) establish, and specify in writing, mechanisms to identify 
    and remove conflicts of interest referred to in paragraphs (1) and 
    (2), and to identify and eliminate the relationships described in 
    subparagraphs (A) through (D) of paragraph (3), including such 
    mechanisms as--
            (A) the methods by which the State agency will examine 
        individuals, and immediate family members, to identify the 
        conflicts; and
            (B) the actions that the State agency will require the 
        individuals and such family members to take to remove such 
        conflicts.

(g) Legal counsel

    The State agency shall ensure that--
        (1)(A) adequate legal counsel is available, and is able, without 
    conflict of interest, to--
            (i) provide advice and consultation needed to protect the 
        health, safety, welfare, and rights of residents; and
            (ii) assist the Ombudsman and representatives of the Office 
        in the performance of the official duties of the Ombudsman and 
        representatives; and

        (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
        (2) the Office pursues administrative, legal, and other 
    appropriate remedies on behalf of residents.

(h) Administration

    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) of this section;
            (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;

            (E)(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;
        (3)(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 older 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)(A) not later than 1 year after September 30, 1992, establish 
    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--
            (i) specify a minimum number of hours of initial training;
            (ii) 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

            (iii) specify an annual number of hours of in-service 
        training for all designated representatives; and

        (B) require implementation of the procedures not later than 21 
    months after September 30, 1992;
        (5) 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) of this section unless the 
    representative--
            (A) has received the training required under paragraph (4); 
        and
            (B) has been approved by the Ombudsman as qualified to carry 
        out the activity on behalf of the Office;

        (6) coordinate ombudsman services with the protection and 
    advocacy systems for individuals with developmental disabilities and 
    mental illnesses established under--
            (A) part A of the Developmental Disabilities Assistance and 
        Bill of Rights Act [42 U.S.C. 6000 et seq.]; and
            (B) the Protection and Advocacy for Mentally Ill Individuals 
        Act of 1986 (42 U.S.C. 10801 et seq.);

        (7) 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; and
        (8) permit any local Ombudsman entity to carry out the 
    responsibilities described in paragraph (1), (2), (3), (6), or (7).

(i) Liability

    The State shall ensure that no representative of the Office will be 
liable under State law for the good faith performance of official 
duties.

(j) Noninterference

    The State shall--
        (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;
        (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
        (3) provide for appropriate sanctions with respect to the 
    interference, retaliation, and reprisals.

(Pub. L. 89-73, title VII, Sec. 712, as added Pub. L. 102-375, title 
VII, Sec. 702, Sept. 30, 1992, 106 Stat. 1276; amended Pub. L. 103-171, 
Sec. 3(a)(9), Dec. 2, 1993, 107 Stat. 1990.)

                       References in Text

    The Developmental Disabilities Assistance and Bill of Rights Act, 
referred to in subsec. (h)(6)(A), is title I of Pub. L. 88-164, as added 
by Pub. L. 98-527, Sec. 2, Oct. 19, 1984, 98 Stat. 2662, and amended. 
Part A of the Act is classified generally to subchapter I (Sec. 6000 et 
seq.) of chapter 75 of this title. For complete classification of this 
Act to the Code, see Short Title note set out under section 6000 of this 
title and Tables.
    The Protection and Advocacy for Mentally Ill Individuals Act of 
1986, referred to in subsec. (h)(6)(B), is Pub. L. 99-319, May 23, 1986, 
100 Stat. 478, as amended, which is classified generally to chapter 114 
(Sec. 10801 et seq.) of this title. For complete classification of this 
Act to the Code, see Short Title note set out under section 10801 of 
this title and Tables.


                               Amendments

    1993--Subsecs. (a)(3)(I), (c)(2)(C), (h)(3)(B). Pub. L. 103-171, 
Sec. 3(a)(9)(B), substituted ``Assistant Secretary'' for 
``Commissioner''.
    Subsec. (h)(4)(A). Pub. L. 103-171, Sec. 3(a)(9)(A), substituted 
``Director of the Office of Long-Term Care Ombudsman Programs'' for 
``Associate Commissioner for Ombudsman Programs''.
    Subsec. (j)(1). Pub. L. 103-171, Sec. 3(a)(9)(B), substituted 
``Assistant Secretary'' for ``Commissioner''.

                  Section Referred to in Other Sections

    This section is referred to in sections 1395i-3, 1396r, 3002, 3011, 
3018, 3021, 3027, 3030l, 3035o, 3058d, 3058f, 3058h of this title.
