Part A—State Provisions
subpart i—general state provisions
§3058. Establishment
The Assistant Secretary, acting through the Administration, shall establish and carry out a program for making allotments to States to pay for the cost of carrying out vulnerable elder rights protection activities.
(
Editorial Notes
Prior Provisions
A prior section 3058,
A prior section 701 of title VII of
Another prior section 701 of
Amendments
1993—
Statutory Notes and Related Subsidiaries
Effective Date
Section inapplicable with respect to fiscal year 1993, see section 4(b) of
Section inapplicable with respect to fiscal year 1992, see section 905(b)(6) of
§3058a. Authorization of appropriations
(a) Ombudsman program
There are authorized to be appropriated to carry out subpart II, $18,066,950 for fiscal year 2020, $19,150,967 for fiscal year 2021, $20,300,025 for fiscal year 2022, $21,518,027 for fiscal year 2023, and $22,809,108 for fiscal year 2024.
(b) Other programs
There are authorized to be appropriated to carry out subparts III and IV, $5,107,110 for fiscal year 2020, $5,413,537 for fiscal year 2021, $5,738,349 for fiscal year 2022, $6,082,650 for fiscal year 2023, and $6,447,609 for fiscal year 2024.
(
Editorial Notes
Prior Provisions
A prior section 3058a,
A prior section 702 of
Amendments
2020—
2016—Subsec. (a).
Subsec. (b).
Subsec. (c).
2006—
2000—
Statutory Notes and Related Subsidiaries
Effective Date
Subchapter inapplicable with respect to fiscal year 1992, see section 905(b)(6) of
§3058b. Allotment
(a) In general
(1) Population
In carrying out the program described in
(2) Minimum allotments
(A) In general
After making the initial allotments described in paragraph (1), the Assistant Secretary shall adjust the allotments on a pro rata basis in accordance with subparagraphs (B) and (C).
(B) General minimum allotments
(i) Minimum allotment for States
No State shall be allotted less than one-half of 1 percent of the funds appropriated under
(ii) Minimum allotment for territories
Guam, the United States Virgin Islands, and the Trust Territory of the Pacific Islands, shall each be allotted not less than one-fourth of 1 percent of the funds appropriated under
(C) Minimum allotments for ombudsman and elder abuse programs
(i) Ombudsman program
No State shall be allotted for a fiscal year, from the funds appropriated under
(ii) Elder abuse programs
No State shall be allotted for a fiscal year, from the funds appropriated under
(D) "State" defined
For the purposes of this paragraph, the term "State" does not include Guam, American Samoa, the United States Virgin Islands, the Trust Territory of the Pacific Islands, and the Commonwealth of the Northern Mariana Islands.
(b) Reallotment
(1) In general
If the Assistant Secretary determines that any amount allotted to a State for a fiscal year under this section will not be used by the State for carrying out the purpose for which the allotment was made, the Assistant Secretary shall make the amount available to a State that the Assistant Secretary determines will be able to use the amount for carrying out the purpose.
(2) Availability
Any amount made available to a State from an appropriation for a fiscal year in accordance with paragraph (1) shall, for purposes of this part, be regarded as part of the allotment of the State (as determined under subsection (a)) for the year, but shall remain available until the end of the succeeding fiscal year.
(c) Withholding
If the Assistant Secretary finds that any State has failed to carry out this subchapter in accordance with the assurances made and description provided under
(
Editorial Notes
Prior Provisions
A prior section 3058b,
A prior section 703 of
Amendments
2000—Subsec. (a)(2)(C)(i).
Subsec. (a)(2)(C)(ii).
1993—
Statutory Notes and Related Subsidiaries
Effective Date
Section inapplicable with respect to fiscal year 1993, see section 4(b) of
Section inapplicable with respect to fiscal year 1992, see section 905(b)(6) of
Executive Documents
Termination of Trust Territory of the Pacific Islands
For termination of Trust Territory of the Pacific Islands, see note set out preceding
§3058c. Organization
In order for a State to be eligible to receive allotments under this part—
(1) the State shall demonstrate eligibility under
(2) the State agency designated by the State shall demonstrate compliance with the applicable requirements of
(3) each area agency on aging designated by the State agency and participating in such a program shall demonstrate compliance with the applicable requirements of
(
Editorial Notes
Prior Provisions
A prior section 3058c,
A prior section 704 of
Statutory Notes and Related Subsidiaries
Effective Date
Section inapplicable with respect to fiscal year 1992, see section 905(b)(6) of
§3058d. Additional State plan requirements
(a) Eligibility
In order to be eligible to receive an allotment under this part, a State shall include in the State plan submitted under
(1) an assurance that the State, in carrying out any subpart of this part for which the State receives funding under this part, will establish programs in accordance with the requirements of the subpart and this subpart;
(2) an assurance that the State will hold public hearings, and use other means, to obtain the views of older individuals, area agencies on aging, recipients of grants under subchapter X, and other interested persons and entities regarding programs carried out under this part;
(3) an assurance that the State, in consultation with area agencies on aging, will identify and prioritize statewide activities aimed at ensuring that older individuals have access to, and assistance in securing and maintaining, benefits and rights;
(4) an assurance that the State will use funds made available under this part for a subpart in addition to, and will not supplant, any funds that are expended under any Federal or State law in existence on the day before September 30, 1992, to carry out each of the vulnerable elder rights protection activities described in the subpart;
(5) an assurance that the State will place no restrictions, other than the requirements referred to in clauses (i) through (iv) of
(6) an assurance that, with respect to programs for the prevention of elder abuse, neglect, and exploitation under subpart III of this part—
(A) in carrying out such programs the State agency will conduct a program of services consistent with relevant State law and coordinated with existing State adult protective service activities for—
(i) public education to identify and prevent elder abuse;
(ii) receipt of reports of elder abuse;
(iii) active participation of older individuals participating in programs under this chapter through outreach, conferences, and referral of such individuals to other social service agencies or sources of assistance if appropriate and if the individuals to be referred consent; and
(iv) referral of complaints to law enforcement or public protective service agencies if appropriate;
(B) the State will not permit involuntary or coerced participation in the program of services described in subparagraph (A) by alleged victims, abusers, or their households; and
(C) all information gathered in the course of receiving reports and making referrals shall remain confidential except—
(i) if all parties to such complaint consent in writing to the release of such information;
(ii) 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
(iii) upon court order; and
(7) a description of the manner in which the State agency will carry out this subchapter in accordance with the assurances described in paragraphs (1) through (6).
(b) Privilege
Neither a State, nor a State agency, may require any provider of legal assistance under this part to reveal any information that is protected by the attorney-client privilege.
(
Editorial Notes
Prior Provisions
A prior section 3058d,
A prior section 705 of
Amendments
2000—Subsec. (a)(4).
Subsec. (a)(6)(C)(iii).
Subsec. (a)(7), (8).
1993—Subsec. (a)(7)(D).
Statutory Notes and Related Subsidiaries
Effective Date
Section inapplicable with respect to fiscal year 1993, see section 4(b) of
Section inapplicable with respect to fiscal year 1992, see section 905(b)(6) of
§3058e. Demonstration projects
(a) Establishment
From amounts made available under
(1) benefits available under title XVI of the Social Security Act (
(2) medical assistance available under title XIX of such Act (
(3) benefits available under the Food and Nutrition Act of 2008 (
(b) Benefits
Each outreach project carried out under subsection (a) shall—
(1) provide to older individuals with greatest economic need information and assistance regarding their eligibility to receive the benefits and assistance described in paragraphs (1) through (3) of subsection (a);
(2) be carried out in a planning and service area that has a high proportion of older individuals with greatest economic need, relative to the aggregate number of older individuals in such area; and
(3) be coordinated with State and local entities that administer benefits under such titles.
(
Editorial Notes
References in Text
The Social Security Act, referred to in subsec. (a)(1), (2), is act Aug. 14, 1935, ch. 531,
The Food and Nutrition Act of 2008, referred to in subsec. (a)(3), is
Codification
Prior Provisions
A prior section 706 of
Amendments
2008—Subsec. (a)(3).
Statutory Notes and Related Subsidiaries
Effective Date of 2008 Amendment
Amendment of this section and repeal of
Amendment by section 4002(b)(1)(B), (2)(BB) of
Effective Date
Section inapplicable with respect to fiscal year 1992, see section 905(b)(6) of
subpart ii—ombudsman programs
§3058f. Definitions
As used in this subpart:
(1) Office
The term "Office" means the office established in
(2) Ombudsman
The term "Ombudsman" means the individual described in
(3) Local Ombudsman entity
The term "local Ombudsman entity" means an entity designated under
(4) Program
The term "program" means the State Long-Term Care Ombudsman program established in
(5) Representative
The term "representative" includes an employee or volunteer who represents an entity designated under
(6) Resident
The term "resident" means an individual of any age who resides in a long-term care facility.
(
Editorial Notes
Amendments
2020—Par. (6).
2016—Par. (6).
Statutory Notes and Related Subsidiaries
Effective Date
Section inapplicable with respect to fiscal year 1992, see section 905(b)(6) of
§3058g. State Long-Term Care Ombudsman program
(a) Establishment
(1) In general
In order to be eligible to receive an allotment under
(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. The Ombudsman shall be responsible for the management, including the fiscal management, of the Office.
(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, 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;
(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, 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.
(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;
(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, 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.
(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 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.
(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.
(E) Rule of construction for volunteer Ombudsman representatives
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.
(b) Procedures for access
(1) In general
The State shall ensure that representatives of the Office shall have—
(A) private and unimpeded access to long-term care facilities and residents;
(B)(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.
(2) Procedures
The State agency shall establish procedures to ensure the access described in paragraph (1).
(3) Health oversight agency
For purposes of section 264(c) of the Health Insurance Portability and Accountability Act of 1996 (including regulations issued under that section) (
(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
(d) Disclosure
(1) In general
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).
(2) Identity of complainant or resident
The procedures described in paragraph (1) shall—
(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);
(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;
(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; and
(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).
(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
(1) Individual conflict of interest
The State agency shall—
(A) ensure that no individual, or member of the immediate family of an individual, involved in the designation of the Ombudsman (whether by appointment or otherwise) or the designation of an entity designated under subsection (a)(5), is subject to a conflict of interest;
(B) ensure that no officer or employee of the Office, representative of a local Ombudsman entity, or member of the immediate family of the officer, employee, or representative, is subject to a conflict of interest; and
(C) ensure that the Ombudsman—
(i) does not have a direct involvement in the licensing or certification of a long-term care facility or of a provider of a long-term care service;
(ii) does not have an ownership or investment interest (represented by equity, debt, or other financial relationship) in a long-term care facility or a long-term care service;
(iii) is not employed by, or participating in the management of, a long-term care facility or a related organization, and has not been employed by such a facility or organization within 1 year before the date of the determination involved;
(iv) does not receive, or have the right to receive, directly or indirectly, remuneration (in cash or in kind) under a compensation arrangement with an owner or operator of a long-term care facility;
(v) does not have management responsibility for, or operate under the supervision of an individual with management responsibility for, adult protective services; and
(vi) does not serve as a guardian or in another fiduciary capacity for residents of long-term care facilities in an official capacity (as opposed to serving as a guardian or fiduciary for a family member, in a personal capacity).
(2) Organizational conflict of interest
(A) In general
The State agency shall comply with subparagraph (B)(i) in a case in which the Office poses an organizational conflict of interest, including a situation in which the Office is placed in an organization that—
(i) is responsible for licensing, certifying, or surveying long-term care services in the State;
(ii) is an association (or an affiliate of such an association) of long-term care facilities, or of any other residential facilities for older individuals;
(iii) provides long-term care services, including programs carried out under a Medicaid waiver approved under section 1115 of the Social Security Act (
(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 (
(viii) conducts preadmission screening for placements in facilities described in clause (ii); or
(ix) makes decisions regarding admission or discharge of individuals to or from such facilities.
(B) Identifying, removing, and remedying organizational conflict
(i) In general
The State agency may not operate the Office or carry out the program, directly, or by contract or other arrangement with any public agency or nonprofit private organization, in a case in which there is an organizational conflict of interest (within the meaning of subparagraph (A)) unless such conflict of interest has been—
(I) identified by the State agency;
(II) disclosed by the State agency to the Assistant Secretary in writing; and
(III) remedied in accordance with this subparagraph.
(ii) Action by Assistant Secretary
In a case in which a potential or actual organizational conflict of interest (within the meaning of subparagraph (A)) involving the Office is disclosed or reported to the Assistant Secretary by any person or entity, the Assistant Secretary shall require that the State agency, in accordance with the policies and procedures established by the State agency under subsection (a)(5)(D)(iii)—
(I) remove the conflict; or
(II) submit, and obtain the approval of the Assistant Secretary for, an adequate remedial plan that indicates how the Ombudsman will be unencumbered in fulfilling all of the functions specified in subsection (a)(3).
(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);
(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 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
(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 [
(B) the Protection and Advocacy for Mentally Ill Individuals Act of 1986 2 (
(8) coordinate, to the greatest extent possible, ombudsman services with legal assistance provided under
(9) coordinate services with State and local law enforcement agencies and courts of competent jurisdiction; and
(10) permit any local Ombudsman entity to carry out the responsibilities described in paragraph (1), (2), (3), (7), or (8).
(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.
(
Editorial Notes
References in Text
Section 264(c) of the Health Insurance Portability and Accountability Act of 1996, referred to in subsec. (b)(3), is section 264(c) of
The Social Security Act, referred to in subsec. (f)(2)(A)(vii), is act Aug. 14, 1935, ch. 531,
The Developmental Disabilities Assistance and Bill of Rights Act of 2000, referred to in subsec. (h)(7)(A), is
The Protection and Advocacy for Mentally Ill Individuals Act of 1986, referred to in subsec. (h)(7)(B), was
Amendments
2020—Subsec. (a)(5)(E).
2016—Subsec. (a)(2).
Subsec. (a)(3)(A)(i).
Subsec. (a)(3)(D).
Subsec. (a)(3)(H)(iii).
Subsec. (a)(3)(I), (J).
Subsec. (a)(5)(B)(vi).
Subsec. (a)(5)(B)(vii), (viii).
Subsec. (b)(1)(A).
Subsec. (b)(1)(B)(i).
Subsec. (b)(1)(B)(i)(II).
Subsec. (b)(1)(B)(ii).
Subsec. (b)(3).
Subsec. (c)(2)(D).
Subsec. (d)(1).
Subsec. (d)(2)(A).
Subsec. (d)(2)(B).
Subsec. (d)(2)(C).
Subsec. (f).
Subsec. (h)(3)(A)(i).
Subsec. (h)(4).
Subsec. (h)(5), (6).
Subsec. (h)(6)(A).
Subsec. (h)(7).
Subsec. (h)(7)(A).
Subsec. (h)(8), (9).
Subsec. (h)(10).
2000—Subsec. (a)(1).
Subsec. (a)(5)(C)(ii).
Subsec. (h)(4).
Subsec. (h)(6)(A).
Subsec. (h)(8), (9).
1993—Subsecs. (a)(3)(I), (c)(2)(C), (h)(3)(B).
Subsec. (h)(4)(A).
Subsec. (j)(1).
Statutory Notes and Related Subsidiaries
Effective Date
Section inapplicable with respect to fiscal year 1993, see section 4(b) of
Section inapplicable with respect to fiscal year 1992, see section 905(b)(6) of
1 So in original. Probably should be followed by a comma.
2 See References in Text note below.
§3058h. Regulations
The Assistant Secretary shall issue and periodically update regulations respecting—
(1) conflicts of interest by persons described in subparagraphs (A) and (B) of
(2) the relationships described in clauses (i) through (vi) of
(
Editorial Notes
Amendments
2016—Par. (1).
Par. (2).
1993—
Statutory Notes and Related Subsidiaries
Effective Date
Section inapplicable with respect to fiscal year 1993, see section 4(b) of
Section inapplicable with respect to fiscal year 1992, see section 905(b)(6) of
subpart iii—programs for prevention of elder abuse, neglect, and exploitation
§3058i. Prevention of elder abuse, neglect, and exploitation
(a) Establishment
In order to be eligible to receive an allotment under
(b) Use of allotments
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.
(c) Approach
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.
(d) Coordination
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—
(1) area agency on aging programs;
(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
(7) victim assistance programs; and
(8) consumer protection and State and local law enforcement programs, as well as other State and local programs that identify and assist vulnerable older individuals, and services provided by agencies and courts of competent jurisdiction.
(e) Requirements
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).
(f) Designation
The State agency may designate a State entity to carry out the programs and activities described in this subpart.
(g) Study and report
(1) Study
The Secretary, in consultation with the Department of the Treasury and the Attorney General of the United States, State attorneys general, and tribal and local prosecutors, shall conduct a study of the nature and extent of financial exploitation of older individuals. The purpose of this study would be to define and describe the scope of the problem of financial exploitation of the elderly and to provide an estimate of the number and type of financial transactions considered to constitute financial exploitation faced by older individuals. The study shall also examine the adequacy of current Federal and State legal protections to prevent such exploitation.
(2) Report
Not later than 18 months after November 13, 2000, the Secretary shall submit to Congress a report, which shall include—
(A) the results of the study conducted under this subsection; and
(B) recommendations for future actions to combat the financial exploitation of older individuals.
(h) Accountability measures
The Assistant Secretary shall develop accountability measures to ensure the effectiveness of the activities carried out under this section.
(i) Evaluating programs
The Assistant Secretary shall evaluate the activities carried out under this section, using funds made available under
(j) Compliance with applicable laws
In order to receive funds made available to carry out this section, an entity shall comply with all applicable laws, regulations, and guidelines.
(
Editorial Notes
Amendments
2020—Subsec. (b)(12)(C).
Subsec. (b)(12)(F).
Subsec. (i).
2016—Subsec. (b).
Subsec. (b)(5) to (10).
Subsec. (b)(10)(C)(ii).
Subsec. (b)(10)(C)(v).
Subsec. (b)(11), (12).
Subsec. (b)(12)(F).
Subsec. (b)(13).
Subsec. (e)(2).
2006—Subsec. (a).
Subsec. (b).
Subsec. (b)(2) to (9).
Subsec. (b)(10) to (12).
Subsec. (e)(2).
Subsecs. (h) to (j).
2000—Subsec. (a).
Subsec. (b).
Subsec. (b)(2).
Subsec. (b)(5).
Subsec. (d)(8).
Subsec. (g).
Statutory Notes and Related Subsidiaries
Effective Date
Section inapplicable with respect to fiscal year 1992, see section 905(b)(6) of
Declaration of Purpose
subpart iv—state legal assistance development program
§3058j. State legal assistance development
A State agency shall provide the services of an individual who shall be known as a State legal assistance developer, and the services of other personnel, sufficient to ensure—
(1) State leadership in securing and maintaining the legal rights of older individuals;
(2) State capacity for coordinating the provision of legal assistance;
(3) State capacity to provide technical assistance, training, and other supportive functions to area agencies on aging, legal assistance providers, ombudsmen, and other persons, as appropriate;
(4) State capacity to promote financial management services to older individuals at risk of conservatorship;
(5) State capacity to assist older individuals in understanding their rights, exercising choices, benefiting from services and opportunities authorized by law, and maintaining the rights of older individuals at risk of guardianship; and
(6) State capacity to improve the quality and quantity of legal services provided to older individuals.
(
Editorial Notes
Prior Provisions
A prior section 3058j,
subpart v—outreach, counseling, and assistance program
§3058k. Repealed. Pub. L. 106–501, title VII, §706, Nov. 13, 2000, 114 Stat. 2291
Section,