[USC02] 42 USC CHAPTER 35, SUBCHAPTER XI: ALLOTMENTS FOR VULNERABLE ELDER RIGHTS PROTECTION ACTIVITIES
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42 USC CHAPTER 35, SUBCHAPTER XI: ALLOTMENTS FOR VULNERABLE ELDER RIGHTS PROTECTION ACTIVITIES
From Title 42—THE PUBLIC HEALTH AND WELFARECHAPTER 35—PROGRAMS FOR OLDER AMERICANS

SUBCHAPTER XI—ALLOTMENTS FOR VULNERABLE ELDER RIGHTS PROTECTION ACTIVITIES

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.

(Pub. L. 89–73, title VII, §701, as added Pub. L. 102–375, title VII, §701, Sept. 30, 1992, 106 Stat. 1271; amended Pub. L. 103–171, §3(a)(13), Dec. 2, 1993, 107 Stat. 1990.)

Prior Provisions

A prior section 3058, Pub. L. 89–73, title VII, §702, as added Pub. L. 98–459, title VII, §701, Oct. 9, 1984, 98 Stat. 1788, related to Congressional declaration of findings, prior to repeal by Pub. L. 100–175, title I, §181, title VII, §701(a), (b), Nov. 29, 1987, 101 Stat. 964, 983, effective Oct. 1, 1987, with certain exceptions.

A prior section 701 of title VII of Pub. L. 89–73, as added by Pub. L. 98–459, title VII, §701, Oct. 9, 1984, 98 Stat. 1788, provided that this subchapter be cited as the "Older Americans Personal Health Education and Training Act", prior to repeal by Pub. L. 100–175, title I, §181, title VII, §701(a), (b), Nov. 29, 1987, 101 Stat. 964, 983, effective Oct. 1, 1987, with certain exceptions.

Another prior section 701 of Pub. L. 89–73 was classified to section 3045 of this title prior to repeal by Pub. L. 95–478.

Amendments

1993Pub. L. 103–171 substituted "Assistant Secretary" for "Commissioner".

Effective Date

Section inapplicable with respect to fiscal year 1993, see section 4(b) of Pub. L. 103–171, set out as an Effective Date of 1992 Amendment note under section 3001 of this title.

Section inapplicable with respect to fiscal year 1992, see section 905(b)(6) of Pub. L. 102–375, set out as an Effective Date of 1992 Amendment note under section 3001 of this title.

§3058a. Authorization of appropriations

(a) Ombudsman program

There are authorized to be appropriated to carry out subpart II of this part, $16,280,630 for fiscal year 2017, $16,621,101 for fiscal year 2018, and $16,961,573 for fiscal year 2019.

(b) Other programs

There are authorized to be appropriated to carry out subparts III and IV, $4,891,876 for fiscal year 2017, $4,994,178 for fiscal year 2018, and $5,096,480 for fiscal year 2019.

(Pub. L. 89–73, title VII, §702, as added Pub. L. 102–375, title VII, §701, Sept. 30, 1992, 106 Stat. 1271; amended Pub. L. 106–501, title VII, §701, Nov. 13, 2000, 114 Stat. 2289; Pub. L. 109–365, title VII, §701, Oct. 17, 2006, 120 Stat. 2591; Pub. L. 114–144, §8(a), Apr. 19, 2016, 130 Stat. 346.)

Prior Provisions

A prior section 3058a, Pub. L. 89–73, title VII, §703, as added Pub. L. 98–459, title VII, §701, Oct. 9, 1984, 98 Stat. 1789, related to statement of purposes, prior to repeal by Pub. L. 100–175, title I, §181, title VIII, §701(a), (b), Nov. 29, 1987, 101 Stat. 964, 983, effective Oct. 1, 1987, with certain exceptions.

A prior section 702 of Pub. L. 89–73 was classified to section 3045a of this title prior to repeal by Pub. L. 95–478.

Amendments

2016—Subsec. (a). Pub. L. 114–144, §8(a)(1), which directed substitution of "$16,280,630 for fiscal year 2017, $16,621,101 for fiscal year 2018, and $16,961,573 for fiscal year 2019." for "such sums" and all that followed through the period at the end, was executed by making the substitution for "such sums as may be necessary for fiscal year 2007, and such sums as may be necessary for subsequent fiscal years." to reflect the probable intent of Congress.

Subsec. (b). Pub. L. 114–144, §8(a)(2), added subsec. (b) and struck out former subsec. (b). Prior to amendment, text read as follows: "There are authorized to be appropriated to carry out subpart III of this part, such sums as may be necessary for fiscal year 2007, and such sums as may be necessary for subsequent fiscal years."

Subsec. (c). Pub. L. 114–144, §8(a)(3), struck out subsec. (c). Text read as follows: "There are authorized to be appropriated to carry out subpart IV of this part, such sums as may be necessary for fiscal year 2007, and such sums as may be necessary for subsequent fiscal years."

2006Pub. L. 109–365 substituted "2007" for "2001" in subsecs. (a) to (c).

2000Pub. L. 106–501 amended section catchline and text generally, substituting provisions authorizing appropriations for subparts II, III, and IV of this part for fiscal year 2001 and subsequent fiscal years for provisions authorizing appropriations for subparts II, III, IV, and V of this part for fiscal years 1992 through 1995.

Effective Date

Subchapter inapplicable with respect to fiscal year 1992, see section 905(b)(6) of Pub. L. 102–375, set out as an Effective Date of 1992 Amendment note under section 3001 of this title.

§3058b. Allotment

(a) In general

(1) Population

In carrying out the program described in section 3058 of this title, the Assistant Secretary shall initially allot to each State, from the funds appropriated under section 3058a of this title for each fiscal year, an amount that bears the same ratio to the funds as the population of older individuals in the State bears to the population of older individuals in all States.

(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 section 3058a of this title for the fiscal year for which the determination is made.

(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 section 3058a of this title for the fiscal year for which the determination is made. American Samoa and the Commonwealth of the Northern Mariana Islands shall each be allotted not less than one-sixteenth of 1 percent of the sum appropriated under section 3058a of this title for the fiscal year for which the determination is made.

(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 section 3058a of this title and made available to carry out subpart II of this part, less than the amount allotted to the State under section 3024 of this title in fiscal year 2000 to carry out the State Long-Term Care Ombudsman program under subchapter III.

(ii) Elder abuse programs

No State shall be allotted for a fiscal year, from the funds appropriated under section 3058a of this title and made available to carry out subpart III of this part, less than the amount allotted to the State under section 3024 of this title in fiscal year 2000 to carry out programs with respect to the prevention of elder abuse, neglect, and exploitation under subchapter III.

(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 section 3058d of this title, the Assistant Secretary shall withhold the allotment of funds to the State. The Assistant Secretary shall disburse the funds withheld directly to any public or nonprofit private institution or organization, agency, or political subdivision of the State submitting an approved plan containing the assurances and description.

(Pub. L. 89–73, title VII, §703, as added Pub. L. 102–375, title VII, §701, Sept. 30, 1992, 106 Stat. 1271; amended Pub. L. 103–171, §3(a)(13), Dec. 2, 1993, 107 Stat. 1990; Pub. L. 106–501, title VII, §702, title VIII, §801(e)(1), Nov. 13, 2000, 114 Stat. 2289, 2293.)

Prior Provisions

A prior section 3058b, Pub. L. 89–73, title VII, §704, as added Pub. L. 98–459, title VII, §701, Oct. 9, 1984, 98 Stat. 1789, related to older Americans personal health education and training program, prior to repeal by Pub. L. 100–175, title I, §181, title VII, §701(a), (b), Nov. 29, 1987, 101 Stat. 964, 983, effective Oct. 1, 1987, with certain exceptions.

A prior section 703 of Pub. L. 89–73 was classified to section 3045b of this title prior to repeal by Pub. L. 95–478.

Amendments

2000—Subsec. (a)(2)(C)(i). Pub. L. 106–501, §§702, 801(e)(1)(A), substituted "section 3058a of this title and made available to carry out subpart II of this part" for "section 3058a(a) of this title" and "2000" for "1991".

Subsec. (a)(2)(C)(ii). Pub. L. 106–501, §§702, 801(e)(1)(B), substituted "section 3058a of this title and made available to carry out subpart III of this part" for "section 3058a(b) of this title" and "2000" for "1991".

1993Pub. L. 103–171 substituted "Assistant Secretary" for "Commissioner" wherever appearing.

Effective Date

Section inapplicable with respect to fiscal year 1993, see section 4(b) of Pub. L. 103–171, set out as an Effective Date of 1992 Amendment note under section 3001 of this title.

Section inapplicable with respect to fiscal year 1992, see section 905(b)(6) of Pub. L. 102–375, set out as an Effective Date of 1992 Amendment note under section 3001 of this title.

Termination of Trust Territory of the Pacific Islands

For termination of Trust Territory of the Pacific Islands, see note set out preceding section 1681 of Title 48, Territories and Insular Possessions.

§3058c. Organization

In order for a State to be eligible to receive allotments under this part—

(1) the State shall demonstrate eligibility under section 3025 of this title;

(2) the State agency designated by the State shall demonstrate compliance with the applicable requirements of section 3025 of this title; and

(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 section 3025 of this title.

(Pub. L. 89–73, title VII, §704, as added Pub. L. 102–375, title VII, §701, Sept. 30, 1992, 106 Stat. 1273.)

Prior Provisions

A prior section 3058c, Pub. L. 89–73, title VII, §705, as added Pub. L. 98–459, title VII, §701, Oct. 9, 1984, 98 Stat. 1791, related to administration of program, prior to repeal by Pub. L. 100–175, title I, §181, title VII, §701(a), (b), Nov. 29, 1987, 101 Stat. 964, 983, effective Oct. 1, 1987, with certain exceptions.

A prior section 704 of Pub. L. 89–73 was classified to section 3045c of this title prior to repeal by Pub. L. 95–478.

Effective Date

Section inapplicable with respect to fiscal year 1992, see section 905(b)(6) of Pub. L. 102–375, set out as an Effective Date of 1992 Amendment note under section 3001 of this title.

§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 section 3027 of this title

(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 section 3058g(a)(5)(C) of this title, on the eligibility of entities for designation as local Ombudsman entities under section 3058g(a)(5) of this title;

(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.

(Pub. L. 89–73, title VII, §705, as added Pub. L. 102–375, title VII, §701, Sept. 30, 1992, 106 Stat. 1273; amended Pub. L. 103–171, §3(a)(13), Dec. 2, 1993, 107 Stat. 1990; Pub. L. 106–501, title VII, §703, Nov. 13, 2000, 114 Stat. 2289.)

Prior Provisions

A prior section 3058d, Pub. L. 89–73, title VII, §706, as added Pub. L. 98–459, title VII, §701, Oct. 9, 1984, 98 Stat. 1791, authorized appropriations for fiscal years 1985, 1986, and 1987, prior to repeal by Pub. L. 100–175, title I, §181, title VII, §701(a), (b), Nov. 29, 1987, 101 Stat. 964, 983, effective Oct. 1, 1987, with certain exceptions.

A prior section 705 of Pub. L. 89–73 was classified to section 3045d of this title prior to repeal by Pub. L. 95–478.

Amendments

2000—Subsec. (a)(4). Pub. L. 106–501, §703(1), inserted "each of" after "carry out".

Subsec. (a)(6)(C)(iii). Pub. L. 106–501, §703(2), inserted "and" at end.

Subsec. (a)(7), (8). Pub. L. 106–501, §703(3) to (5), redesignated par. (8) as (7), substituted "paragraphs (1) through (6)" for "paragraphs (1) through (7)", and struck out former par. (7) which required inclusion in the State plan of assurances that the State agency would make funds available to carry out subpart V, giving priority to area agencies on aging based on greatest need for funds, would require certain conditions of eligibility, would distribute eligibility information to area agencies on aging, and would submit certain reports.

1993—Subsec. (a)(7)(D). Pub. L. 103–171 substituted "Assistant Secretary" for "Commissioner".

Effective Date

Section inapplicable with respect to fiscal year 1993, see section 4(b) of Pub. L. 103–171, set out as an Effective Date of 1992 Amendment note under section 3001 of this title.

Section inapplicable with respect to fiscal year 1992, see section 905(b)(6) of Pub. L. 102–375, set out as an Effective Date of 1992 Amendment note under section 3001 of this title.

§3058e. Demonstration projects

(a) Establishment

From amounts made available under section 3024(d)(1)(C) of this title after September 30, 1992, each State may provide for the establishment of at least one demonstration project, to be conducted by one or more area agencies on aging within the State, for outreach to older individuals with greatest economic need with respect to—

(1) benefits available under title XVI of the Social Security Act (42 U.S.C. 1381 et seq.) (or assistance under a State program established in accordance with such title);

(2) medical assistance available under title XIX of such Act (42 U.S.C. 1396 et seq.); and

(3) benefits available under the Food and Nutrition Act of 2008 (7 U.S.C. 2011 et seq.).

(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.

(Pub. L. 89–73, title VII, §706, as added Pub. L. 102–375, title VII, §701, Sept. 30, 1992, 106 Stat. 1275; Pub. L. 110–234, title IV, §4002(b)(1)(B), (2)(BB), May 22, 2008, 122 Stat. 1096, 1097; Pub. L. 110–246, §4(a), title IV, §4002(b)(1)(B), (2)(BB), June 18, 2008, 122 Stat. 1664, 1857, 1859.)

References in Text

The Social Security Act, referred to in subsec. (a)(1), (2), is act Aug. 14, 1935, ch. 531, 49 Stat. 620, as amended. Titles XVI and XIX of the Act are classified generally to subchapters XVI (§1381 et seq.) and XIX (§1396 et seq.), respectively, of chapter 7 of this title. For complete classification of this Act to the Code, see section 1305 of this title and Tables.

The Food and Nutrition Act of 2008, referred to in subsec. (a)(3), is Pub. L. 88–525, Aug. 31, 1964, 78 Stat. 703, which is classified generally to chapter 51 (§2011 et seq.) of Title 7, Agriculture. For complete classification of this Act to the Code, see Short Title note set out under section 2011 of Title 7 and Tables.

Codification

Pub. L. 110–234 and Pub. L. 110–246 made identical amendments to this section. The amendments by Pub. L. 110–234 were repealed by section 4(a) of Pub. L. 110–246.

Prior Provisions

A prior section 706 of Pub. L. 89–73 was classified to section 3045e of this title prior to repeal by Pub. L. 95–478.

Amendments

2008—Subsec. (a)(3). Pub. L. 110–246, §4002(b)(1)(B), (2)(BB), substituted "Food and Nutrition Act of 2008" for "Food Stamp Act of 1977".

Effective Date of 2008 Amendment

Amendment of this section and repeal of Pub. L. 110–234 by Pub. L. 110–246 effective May 22, 2008, the date of enactment of Pub. L. 110–234, except as otherwise provided, see section 4 of Pub. L. 110–246, set out as an Effective Date note under section 8701 of Title 7, Agriculture.

Amendment by section 4002(b)(1)(B), (2)(BB) of Pub. L. 110–246 effective Oct. 1, 2008, see section 4407 of Pub. L. 110–246, set out as a note under section 1161 of Title 2, The Congress.

Effective Date

Section inapplicable with respect to fiscal year 1992, see section 905(b)(6) of Pub. L. 102–375, set out as an Effective Date of 1992 Amendment note under section 3001 of this title.

subpart ii—ombudsman programs

§3058f. Definitions

As used in this subpart:

(1) Office

The term "Office" means the office established in section 3058g(a)(1)(A) of this title.

(2) Ombudsman

The term "Ombudsman" means the individual described in section 3058g(a)(2) of this title.

(3) Local Ombudsman entity

The term "local Ombudsman entity" means an entity designated under section 3058g(a)(5)(A) of this title to carry out the duties described in section 3058g(a)(5)(B) of this title with respect to a planning and service area or other substate area.

(4) Program

The term "program" means the State Long-Term Care Ombudsman program established in section 3058g(a)(1)(B) of this title.

(5) Representative

The term "representative" includes an employee or volunteer who represents an entity designated under section 3058g(a)(5)(A) of this title and who is individually designated by the Ombudsman.

(6) Resident

The term "resident" means an individual who resides in a long-term care facility.

(Pub. L. 89–73, title VII, §711, as added Pub. L. 102–375, title VII, §702, Sept. 30, 1992, 106 Stat. 1275; amended Pub. L. 114–144, §8(b), Apr. 19, 2016, 130 Stat. 347.)

Amendments

2016—Par. (6). Pub. L. 114–144 struck out "older" before "individual".

Effective Date

Section inapplicable with respect to fiscal year 1992, see section 905(b)(6) of Pub. L. 102–375, set out as an Effective Date of 1992 Amendment note under section 3001 of this title.

§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 of this title and made available to carry out this subpart, 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. 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.

(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) (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.

(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)(18) 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, 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 (42 U.S.C. 1315) or under subsection (b) or (c) of section 1915 of the Social Security Act (42 U.S.C. 1396n), or under a Medicaid State plan amendment under subsection (i), (j), or (k) of section 1915 of the Social Security Act (42 U.S.C. 1396n);

(iv) provides long-term care case management;

(v) sets rates for long-term care services;

(vi) provides adult protective services;

(vii) is responsible for eligibility determinations for the Medicaid program carried out under title XIX of the Social Security Act (42 U.S.C. 1396 et seq.);

(viii) conducts preadmission screening for placements in facilities described in clause (ii); or

(ix) makes decisions regarding admission or discharge of individuals to or from such facilities.

(B) Identifying, removing, and remedying organizational conflict

(i) In general

The State agency may not operate the Office or carry out the program, directly, or by contract or other arrangement with any public agency or nonprofit private organization, in a case in which there is an organizational conflict of interest (within the meaning of subparagraph (A)) unless such conflict of interest has been—

(I) identified by the State agency;

(II) disclosed by the State agency to the Assistant Secretary in writing; and

(III) remedied in accordance with this subparagraph.

(ii) Action by Assistant Secretary

In a case in which a potential or actual organizational conflict of interest (within the meaning of subparagraph (A)) involving the Office is disclosed or reported to the Assistant Secretary by any person or entity, the Assistant Secretary shall require that the State agency, in accordance with the policies and procedures established by the State agency under subsection (a)(5)(D)(iii)—

(I) remove the conflict; or

(II) submit, and obtain the approval of the Assistant Secretary for, an adequate remedial plan that indicates how the Ombudsman will be unencumbered in fulfilling all of the functions specified in subsection (a)(3).

(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 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 1986 2 (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;

(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.

(Pub. L. 89–73, title VII, §712, as added Pub. L. 102–375, title VII, §702, Sept. 30, 1992, 106 Stat. 1276; amended Pub. L. 103–171, §3(a)(9), Dec. 2, 1993, 107 Stat. 1990; Pub. L. 106–402, title IV, §401(b)(9)(D), Oct. 30, 2000, 114 Stat. 1739; Pub. L. 106–501, title VII, §704, title VIII, §801(e)(2), Nov. 13, 2000, 114 Stat. 2289, 2293; Pub. L. 114–144, §8(c), Apr. 19, 2016, 130 Stat. 347.)

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 Pub. L. 104–191, which is set out as a note under section 1320d–2 of this title.

The Social Security Act, referred to in subsec. (f)(2)(A)(vii), is act Aug. 14, 1935, ch. 531, 49 Stat. 620. Title XIX of the Act is classified generally to subchapter XIX (§1396 et seq.) of chapter 7 of this title. For complete classification of this Act to the Code, see section 1305 of this title and Tables.

The Developmental Disabilities Assistance and Bill of Rights Act of 2000, referred to in subsec. (h)(7)(A), is Pub. L. 106–402, Oct. 30, 2000, 114 Stat. 1677. Subtitle C of title I of the Act is classified generally to part C (§15041 et seq.) of subchapter I of chapter 144 of this title. For complete classification of this Act to the Code, see Short Title note set out under section 15001 of this title and Tables.

The Protection and Advocacy for Mentally Ill Individuals Act of 1986, referred to in subsec. (h)(7)(B), was Pub. L. 99–319, May 23, 1986, 100 Stat. 478. Pub. L. 99–319 was renamed the Protection and Advocacy for Individuals with Mental Illness Act by Pub. L. 106–310, div. B, title XXXII, §3206(a), Oct. 17, 2000, 114 Stat. 1193, and is classified generally to chapter 114 (§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

2016—Subsec. (a)(2). Pub. L. 114–144, §8(c)(1)(A), inserted at end "The Ombudsman shall be responsible for the management, including the fiscal management, of the Office."

Subsec. (a)(3)(A)(i). Pub. L. 114–144, §8(c)(1)(B)(i), added cl. (i) and struck out former cl. (i) which read as follows: "are made by, or on behalf of, residents; and".

Subsec. (a)(3)(D). Pub. L. 114–144, §8(c)(1)(B)(ii), substituted "regular, timely, private, and unimpeded" for "regular and timely".

Subsec. (a)(3)(H)(iii). Pub. L. 114–144, §8(c)(1)(B)(iii), inserted ", actively encourage, and assist in" after "provide technical support for" and struck out "and" after semicolon at end.

Subsec. (a)(3)(I), (J). Pub. L. 114–144, §8(c)(1)(B)(iv), (v), added subpar. (I) and redesignated former subpar. (I) as (J).

Subsec. (a)(5)(B)(vi). Pub. L. 114–144, §8(c)(1)(C)(i), inserted ", actively encourage, and assist in" after "support" and struck out "and" after semicolon at end.

Subsec. (a)(5)(B)(vii), (viii). Pub. L. 114–144, §8(c)(1)(C)(ii), (iii), added cl. (vii) and redesignated former cl. (vii) as (viii).

Subsec. (b)(1)(A). Pub. L. 114–144, §8(c)(2)(A)(i), substituted "private and unimpeded access" for "access".

Subsec. (b)(1)(B)(i). Pub. L. 114–144, §8(c)(2)(A)(ii)(I)(aa), substituted "all files, records, and other information concerning" for "the medical and social records of" in introductory provisions.

Subsec. (b)(1)(B)(i)(II). Pub. L. 114–144, §8(c)(2)(A)(ii)(I)(bb), substituted "to communicate consent" for "to consent".

Subsec. (b)(1)(B)(ii). Pub. L. 114–144, §8(c)(2)(A)(ii)(II), substituted "the files, records, and information" for "the records" in introductory provisions.

Subsec. (b)(3). Pub. L. 114–144, §8(c)(2)(B), added par. (3).

Subsec. (c)(2)(D). Pub. L. 114–144, §8(c)(3), substituted "3012(a)(18)" for "3012(a)(21)".

Subsec. (d)(1). Pub. L. 114–144, §8(c)(4)(A), substituted "files, records, and other information" for "files".

Subsec. (d)(2)(A). Pub. L. 114–144, §8(c)(4)(B)(i), substituted "files, records, and other information" for "files and records" in two places and struck out "and" after semicolon at end.

Subsec. (d)(2)(B). Pub. L. 114–144, §8(c)(4)(B)(ii)(I), substituted "files, records, or other information" for "files or records" in introductory provisions.

Subsec. (d)(2)(C). Pub. L. 114–144, §8(c)(4)(B)(ii)(II), (iii), added subpar. (C).

Subsec. (f). Pub. L. 114–144, §8(c)(5), added subsec. (f) and struck out former subsec. (f) which related to conflict of interest.

Subsec. (h)(3)(A)(i). Pub. L. 114–144, §8(c)(6)(A), struck out "older" before "individuals".

Subsec. (h)(4). Pub. L. 114–144, §8(c)(6)(D), added par. (4). Former par. (4) redesignated (5).

Pub. L. 114–144, §8(c)(6)(B), substituted "(4) strengthen and update" for text that had been amended by Pub. L. 106–501, §704(2)(A), which was executed to read "(4) strengthen and update". See 2000 Amendment note below.

Subsec. (h)(5), (6). Pub. L. 114–144, §8(c)(6)(C), redesignated pars. (4) and (5) as (5) and (6), respectively. Former par. (6) redesignated (7).

Subsec. (h)(6)(A). Pub. L. 114–144, §8(c)(6)(E), substituted "paragraph (5)" for "paragraph (4)".

Subsec. (h)(7). Pub. L. 114–144, §8(c)(6)(C), redesignated par. (6) as (7). Former par. (7) redesignated (8).

Subsec. (h)(7)(A). Pub. L. 114–144, §8(c)(6)(F), substituted "subtitle C of title I of the" for "subtitle C of the".

Subsec. (h)(8), (9). Pub. L. 114–144, §8(c)(6)(C), redesignated pars. (7) and (8) as (8) and (9), respectively. Former par. (9) redesignated (10).

Subsec. (h)(10). Pub. L. 114–144, §8(c)(6)(G), substituted "(7), or (8)" for "(6), or (7)".

Pub. L. 114–144, §8(c)(6)(C), redesignated par. (9) as (10).

2000—Subsec. (a)(1). Pub. L. 106–501, §801(e)(2), substituted "section 3058a of this title and made available to carry out this subpart" for "section 3058a(a) of this title" in introductory provisions.

Subsec. (a)(5)(C)(ii). Pub. L. 106–501, §704(1), inserted "and not stand to gain financially through an action or potential action brought on behalf of individuals the Ombudsman serves" after "interest".

Subsec. (h)(4). Pub. L. 106–501, §704(2)(A), substituted "strengthen and update" for "(A) not later than 1 year after September 30, 1992, establish" in introductory provisions, redesignated cls. (i) and (ii) of former subpar. (A) as subpars. (A) and (B), respectively, redesignated subcls. (I) to (III) of former subpar. (A)(ii) as cls. (i) to (iii), respectively, of subpar. (B), redesignated cl. (iii) of former subpar. (A) as subpar. (C) and struck out "and" at end, and struck out former subpar. (B) which read as follows: "require implementation of the procedures not later than 21 months after September 30, 1992;". Amendment was executed to reflect the probable intent of Congress notwithstanding error in directory language misquoting original text to be struck out, which had been translated as reference to September 30, 1992.

Subsec. (h)(6)(A). Pub. L. 106–402 substituted "subtitle C of the Developmental Disabilities Assistance and Bill of Rights Act of 2000" for "part A of the Developmental Disabilities Assistance and Bill of Rights Act (42 U.S.C. 6001 et seq.)".

Subsec. (h)(8), (9). Pub. L. 106–501, §704(2)(B)–(D), added par. (8) and redesignated former par. (8) as (9).

1993—Subsecs. (a)(3)(I), (c)(2)(C), (h)(3)(B). Pub. L. 103–171, §3(a)(9)(B), substituted "Assistant Secretary" for "Commissioner".

Subsec. (h)(4)(A). Pub. L. 103–171, §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, §3(a)(9)(B), substituted "Assistant Secretary" for "Commissioner".

Effective Date

Section inapplicable with respect to fiscal year 1993, see section 4(b) of Pub. L. 103–171, set out as an Effective Date of 1992 Amendment note under section 3001 of this title.

Section inapplicable with respect to fiscal year 1992, see section 905(b)(6) of Pub. L. 102–375, set out as an Effective Date of 1992 Amendment note under section 3001 of this title.

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 section 3058g(f)(1) of this title; and

(2) the relationships described in clauses (i) through (vi) of section 3058g(f)(1)(C) of this title.

(Pub. L. 89–73, title VII, §713, as added Pub. L. 102–375, title VII, §702, Sept. 30, 1992, 106 Stat. 1282; amended Pub. L. 103–171, §3(a)(13), Dec. 2, 1993, 107 Stat. 1990; Pub. L. 114–144, §8(d), Apr. 19, 2016, 130 Stat. 351.)

Amendments

2016—Par. (1). Pub. L. 114–144, §8(d)(1), substituted "subparagraphs (A) and (B) of section 3058g(f)(1)" for "paragraphs (1) and (2) of section 3058g(f)".

Par. (2). Pub. L. 114–144, §8(d)(2), substituted "clauses (i) through (vi) of section 3058g(f)(1)(C)" for "subparagraphs (A) through (D) of section 3058g(f)(3)".

1993Pub. L. 103–171 substituted "Assistant Secretary" for "Commissioner".

Effective Date

Section inapplicable with respect to fiscal year 1993, see section 4(b) of Pub. L. 103–171, set out as an Effective Date of 1992 Amendment note under section 3001 of this title.

Section inapplicable with respect to fiscal year 1992, see section 905(b)(6) of Pub. L. 102–375, set out as an Effective Date of 1992 Amendment note under section 3001 of this title.

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 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.

(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, 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 studying innovative practices 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 section 1396b(q) of this title;

(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 section 3017(g) of this title.

(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.

(Pub. L. 89–73, title VII, §721, as added Pub. L. 102–375, title VII, §703(b), Sept. 30, 1992, 106 Stat. 1282; amended Pub. L. 106–501, title VII, §705, title VIII, §801(e)(3), Nov. 13, 2000, 114 Stat. 2290, 2293; Pub. L. 109–365, title VII, §702, Oct. 17, 2006, 120 Stat. 2591; Pub. L. 114–144, §8(e), Apr. 19, 2016, 130 Stat. 351.)

Amendments

2016—Subsec. (b). Pub. L. 114–144, §8(e)(1)(A), struck out "(including financial exploitation)" after "and exploitation" in introductory provisions.

Subsec. (b)(5) to (10). Pub. L. 114–144, §8(e)(1)(B), (C), added par. (5) and redesignated former pars. (5) to (9) as (6) to (10), respectively. Former par. (10) redesignated (11).

Subsec. (b)(10)(C)(ii). Pub. L. 114–144, §8(e)(1)(D)(i), inserted ", such as forensic specialists," after "such personnel".

Subsec. (b)(10)(C)(v). Pub. L. 114–144, §8(e)(1)(D)(ii), inserted before comma at end ", including programs and arrangements that protect against financial exploitation".

Subsec. (b)(11), (12). Pub. L. 114–144, §8(e)(1)(B), redesignated pars. (10) and (11) as (11) and (12), respectively. Former par. (12) redesignated (13).

Subsec. (b)(12)(F). Pub. L. 114–144, §8(e)(1)(E), added subpar. (F).

Subsec. (b)(13). Pub. L. 114–144, §8(e)(1)(B), redesignated par. (12) as (13).

Subsec. (e)(2). Pub. L. 114–144, §8(e)(2), substituted "subsection (b)(10)(B)(i)" for "subsection (b)(9)(B)(i)" and "subsection (b)(10)(B)(ii)" for "subsection (b)(9)(B)(ii)" in introductory provisions.

2006—Subsec. (a). Pub. L. 109–365, §702(1), substituted "programs to address" for "programs for the prevention of".

Subsec. (b). Pub. L. 109–365, §702(2)(A), substituted "programs for the prevention, detection, assessment, and treatment of, intervention in, investigation of, and response to elder abuse, neglect, and exploitation (including financial exploitation), including—" for "programs for the prevention and treatment of elder abuse, neglect, and exploitation (including financial exploitation), including—" in introductory provisions.

Subsec. (b)(2) to (9). Pub. L. 109–365, §702(2)(B), (C), added par. (2) and redesignated former pars. (2) to (8) as (3) to (9), respectively.

Subsec. (b)(10) to (12). Pub. L. 109–365, §702(2)(D)–(F), added pars. (10) to (12).

Subsec. (e)(2). Pub. L. 109–365, §702(3), substituted "subsection (b)(9)(B)(i)" for "subsection (b)(8)(B)(i)" and "subsection (b)(9)(B)(ii)" for "subsection (b)(8)(B)(ii)".

Subsecs. (h) to (j). Pub. L. 109–365, §702(4), added subsecs. (h) to (j).

2000—Subsec. (a). Pub. L. 106–501, §801(e)(3), substituted "section 3058a of this title and made available to carry out this subpart" for "section 3058a(b) of this title".

Subsec. (b). Pub. L. 106–501, §705(1)(A), in introductory provisions, inserted "(including financial exploitation)" after "exploitation".

Subsec. (b)(2). Pub. L. 106–501, §705(1)(B), inserted ", State and local law enforcement systems, and courts of competent jurisdiction" after "service program".

Subsec. (b)(5). Pub. L. 106–501, §705(1)(C), inserted "including caregivers described in part E of subchapter III," after "individuals,".

Subsec. (d)(8). Pub. L. 106–501, §705(2), inserted "State and local" before "law enforcement programs" and ", and services provided by agencies and courts of competent jurisdiction" before period at end.

Subsec. (g). Pub. L. 106–501, §705(3), added subsec. (g).

Effective Date

Section inapplicable with respect to fiscal year 1992, see section 905(b)(6) of Pub. L. 102–375, set out as an Effective Date of 1992 Amendment note under section 3001 of this title.

Declaration of Purpose

Pub. L. 102–375, title VII, §703(a), Sept. 30, 1992, 106 Stat. 1282, provided that: "The purpose of this section [enacting this subpart] is to assist States in the design, development, and coordination of comprehensive services of the State and local levels to prevent, treat, and remedy elder abuse, neglect, and exploitation."

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.

(Pub. L. 89–73, title VII, §731, as added Pub. L. 106–501, title VII, §706, Nov. 13, 2000, 114 Stat. 2291.)

Prior Provisions

A prior section 3058j, Pub. L. 89–73, title VII, §731, as added Pub. L. 102–375, title VII, §704, Sept. 30, 1992, 106 Stat. 1285, related to State elder rights and legal assistance development, prior to repeal by Pub. L. 106–501, title VII, §706, Nov. 13, 2000, 114 Stat. 2291.

subpart v—outreach, counseling, and assistance program

§3058k. Repealed. Pub. L. 106–501, title VII, §706, Nov. 13, 2000, 114 Stat. 2291

Section, Pub. L. 89–73, title VII, §741, as added Pub. L. 102–375, title VII, §705(b), Sept. 30, 1992, 106 Stat. 1287; amended Pub. L. 103–171, §3(a)(13), Dec. 2, 1993, 107 Stat. 1990, related to State outreach, counseling, and assistance program for insurance and public benefits.

Part B—Native American Organization and Elder Justice Provisions

§3058aa. Native American program

(a) Establishment

The Assistant Secretary, acting through the Director of the Office for American Indian, Alaskan Native, and Native Hawaiian Aging, shall establish and carry out a program for—

(1) assisting eligible entities in prioritizing, on a continuing basis, the needs of the service population of the entities relating to elder rights;

(2) making grants to eligible entities to carry out vulnerable elder rights protection activities that the entities determine to be priorities; and

(3) enabling the eligible entities to support multidisciplinary elder justice activities, such as—

(A) establishing a coordinating council, which shall identify the needs of an individual Indian tribe or other Native American group and provide the Assistant Secretary with information and recommendations relating to efforts by the Indian tribe or the governing entity of the Native American group to combat elder abuse, neglect, and exploitation;

(B) providing training, technical assistance, and other methods of support to groups carrying out multidisciplinary efforts for an Indian tribe or other Native American group; and

(C) 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 Indian tribes and other Native American groups (other than the ones in which the review teams were used).

(b) Application

In order to be eligible to receive assistance under this section, an entity shall submit an application to the Assistant Secretary, at such time, in such manner, and containing such information as the Assistant Secretary may require.

(c) Eligible entity

An entity eligible to receive assistance under this section shall be—

(1) an Indian tribe; or

(2) a public agency, or a nonprofit organization, serving older individuals who are Native Americans.

(d) Authorization of appropriations

There are authorized to be appropriated to carry out this part such sums as may be necessary for fiscal year 2007, and such sums as may be necessary for subsequent fiscal years.

(Pub. L. 89–73, title VII, §751, as added Pub. L. 102–375, title VII, §706, Sept. 30, 1992, 106 Stat. 1290; amended Pub. L. 103–171, §3(a)(10), Dec. 2, 1993, 107 Stat. 1990; Pub. L. 106–501, title VII, §707, Nov. 13, 2000, 114 Stat. 2291; Pub. L. 109–365, title VII, §703, Oct. 17, 2006, 120 Stat. 2592.)

Amendments

2006—Subsec. (a)(3). Pub. L. 109–365, §703(1), added par. (3).

Subsec. (b). Pub. L. 109–365, §703(2), substituted "this section" for "this part".

Subsec. (d). Pub. L. 109–365, §703(3), substituted "this part" for "this section" and "2007" for "2001".

2000—Subsec. (d). Pub. L. 106–501 amended heading and text of subsec. (d) generally. Prior to amendment, text read as follows: "There are authorized to be appropriated to carry out this section, $5,000,000 for fiscal year 1992, and such sums as may be necessary for fiscal years 1993, 1994, and 1995."

1993—Subsecs. (a), (b). Pub. L. 103–171 substituted "Assistant Secretary" for "Commissioner" and "Director of the Office for" for "Associate Commissioner on" in subsec. (a) and "Assistant Secretary" for "Commissioner" in two places in subsec. (b).

Effective Date

Section inapplicable with respect to fiscal year 1993, see section 4(b) of Pub. L. 103–171, set out as an Effective Date of 1992 Amendment note under section 3001 of this title.

Section inapplicable with respect to fiscal year 1992, see section 905(b)(6) of Pub. L. 102–375, set out as an Effective Date of 1992 Amendment note under section 3001 of this title.

§3058aa–1. Grants to promote comprehensive State elder justice systems

(a) Purpose and authority

For each fiscal year, the Assistant Secretary may make grants to States, on a competitive basis, in accordance with this section, to promote the development and implementation, within each such State, of a comprehensive elder justice system, as defined in subsection (b).

(b) Comprehensive elder justice system defined

In this section, the term "comprehensive elder justice system" means an integrated, multidisciplinary, and collaborative system for preventing, detecting, and addressing elder abuse, neglect, and exploitation in a manner that—

(1) provides for widespread, convenient public access to the range of available elder justice information, programs, and services;

(2) coordinates the efforts of public health, social service, and law enforcement authorities, as well as other appropriate public and private entities, to identify and diminish duplication and gaps in the system;

(3) provides a uniform method for the standardization, collection, management, analysis, and reporting of data; and

(4) provides such other elements as the Assistant Secretary determines appropriate.

(c) Applications

To be eligible to receive a grant under this section for a fiscal year, a State shall submit an application to the Assistant Secretary, at such time, in such manner, and containing such information and assurances as the Assistant Secretary determines appropriate.

(d) Amount of grants

The amount of a grant to a State with an application approved under this section for a fiscal year shall be such amount as the Assistant Secretary determines appropriate.

(e) Use of funds

(1) In general

A State that receives a grant under this section shall use funds made available through such grant to promote the development and implementation of a comprehensive elder justice system by—

(A) establishing formal working relationships among public and private providers of elder justice programs, service providers, and stakeholders in order to create a unified elder justice network across such State to coordinate programmatic efforts;

(B) facilitating and supporting the development of a management information system and standard data elements;

(C) providing for appropriate education (including educating the public about the range of available elder justice information, programs, and services), training, and technical assistance; and

(D) taking such other steps as the Assistant Secretary determines appropriate.

(2) Maintenance of effort

Funds made available to States pursuant to this section shall be used to supplement and not supplant other Federal, State, and local funds expended to support activities described in paragraph (1).

(Pub. L. 89–73, title VII, §752, as added Pub. L. 109–365, title VII, §704(2), Oct. 17, 2006, 120 Stat. 2593.)

Part C—General Provisions

§3058bb. Definitions

As used in this subchapter:

(1) Elder right

The term "elder right" means a right of an older individual.

(2) Vulnerable elder rights protection activity

The term "vulnerable elder rights protection activity" means an activity funded under part A.

(Pub. L. 89–73, title VII, §761, as added Pub. L. 102–375, title VII, §707, Sept. 30, 1992, 106 Stat. 1291; amended Pub. L. 106–501, title VIII, §801(e)(4), Nov. 13, 2000, 114 Stat. 2293.)

Amendments

2000—Par. (2). Pub. L. 106–501 substituted "part A" for "subpart II, III, IV, or V of this subchapter".

Effective Date

Section inapplicable with respect to fiscal year 1992, see section 905(b)(6) of Pub. L. 102–375, set out as an Effective Date of 1992 Amendment note under section 3001 of this title.

§3058cc. Administration

A State agency may carry out vulnerable elder rights protection activities either directly or through contracts or agreements with public or nonprofit private agencies or organizations, such as—

(1) other State agencies;

(2) area agencies on aging;

(3) county governments;

(4) institutions of higher education;

(5) Indian tribes; or

(6) nonprofit service providers or volunteer organizations.

(Pub. L. 89–73, title VII, §762, as added Pub. L. 102–375, title VII, §707, Sept. 30, 1992, 106 Stat. 1291; amended Pub. L. 106–501, title VIII, §801(e)(5), Nov. 13, 2000, 114 Stat. 2293.)

Amendments

2000Pub. L. 106–501 struck out "or an entity described in section 3058aa(c) of this title" after "A State agency" in introductory provisions.

Effective Date

Section inapplicable with respect to fiscal year 1992, see section 905(b)(6) of Pub. L. 102–375, set out as an Effective Date of 1992 Amendment note under section 3001 of this title.

§3058dd. Technical assistance

(a) Other agencies

In carrying out the provisions of this subchapter, the Assistant Secretary may request the technical assistance and cooperation of such Federal entities as may be appropriate.

(b) Assistant Secretary

The Assistant Secretary shall provide technical assistance and training (by contract, grant, or otherwise) to persons and entities that administer programs established under this subchapter.

(Pub. L. 89–73, title VII, §763, as added Pub. L. 102–375, title VII, §707, Sept. 30, 1992, 106 Stat. 1291; amended Pub. L. 103–171, §3(a)(11), (13), Dec. 2, 1993, 107 Stat. 1990.)

Amendments

1993—Subsec. (a). Pub. L. 103–171, §3(a)(13), substituted "Assistant Secretary" for "Commissioner".

Subsec. (b). Pub. L. 103–171, §13(a)(11), (13), substituted "Assistant Secretary" for "Commissioner" in heading and text.

Effective Date

Section inapplicable with respect to fiscal year 1993, see section 4(b) of Pub. L. 103–171, set out as an Effective Date of 1992 Amendment note under section 3001 of this title.

Section inapplicable with respect to fiscal year 1992, see section 905(b)(6) of Pub. L. 102–375, set out as an Effective Date of 1992 Amendment note under section 3001 of this title.

§3058ee. Audits

(a) Access

The Assistant Secretary, the Comptroller General of the United States, and any duly authorized representative of the Assistant Secretary or the Comptroller shall have access, for the purpose of conducting an audit or examination, to any books, documents, papers, and records that are pertinent to financial assistance received under this subchapter.

(b) Limitation

State agencies and area agencies on aging shall not request information or data from providers that is not pertinent to services furnished under this subchapter or to a payment made for the services.

(Pub. L. 89–73, title VII, §764, as added Pub. L. 102–375, title VII, §707, Sept. 30, 1992, 106 Stat. 1291; amended Pub. L. 103–171, §3(a)(13), Dec. 2, 1993, 107 Stat. 1990; Pub. L. 106–501, title VIII, §801(e)(6), Nov. 13, 2000, 114 Stat. 2293.)

Amendments

2000—Subsec. (b). Pub. L. 106–501 substituted "and area agencies on aging" for ", area agencies on aging, and entities described in section 3058aa(c) of this title".

1993—Subsec. (a). Pub. L. 103–171 substituted "Assistant Secretary" for "Commissioner" in two places.

Effective Date

Section inapplicable with respect to fiscal year 1993, see section 4(b) of Pub. L. 103–171, set out as an Effective Date of 1992 Amendment note under section 3001 of this title.

Section inapplicable with respect to fiscal year 1992, see section 905(b)(6) of Pub. L. 102–375, set out as an Effective Date of 1992 Amendment note under section 3001 of this title.

§3058ff. Rule of construction

Nothing in this subchapter shall be construed to interfere with or abridge the right of an older individual to practice the individual's religion through reliance on prayer alone for healing, in a case in which a decision to so practice the religion—

(1) is contemporaneously expressed by the older individual—

(A) either orally or in writing;

(B) with respect to a specific illness or injury that the older individual has at the time of the decision; and

(C) when the older individual is competent to make the decision;


(2) is set forth prior to the occurrence of the illness or injury in a living will, health care proxy, or other advance directive document that is validly executed and applied under State law; or

(3) may be unambiguously deduced from the older individual's life history.

(Pub. L. 89–73, title VII, §765, as added Pub. L. 109–365, title VII, §705, Oct. 17, 2006, 120 Stat. 2594.)