S. 1750 (112th): Home Care Consumer Bill of Rights Act

112th Congress, 2011–2013. Text as of Oct 20, 2011 (Introduced).

Status & Summary | PDF | Source: GPO

II

112th CONGRESS

1st Session

S. 1750

IN THE SENATE OF THE UNITED STATES

October 20, 2011

(for himself, Mr. Casey, and Mr. Whitehouse) introduced the following bill; which was read twice and referred to the Committee on Health, Education, Labor, and Pensions

A BILL

To amend the Older Americans Act of 1965 to establish a Home Care Consumer Bill of Rights, to establish State Home Care Ombudsman Programs, and for other purposes.

1.

Short title

This Act may be cited as the Home Care Consumer Bill of Rights Act.

I

Home care bill of rights

101.

Administration on aging

Section 201(e)(2) of the Older Americans Act of 1965 (42 U.S.C. 3011(e)(2)) is amended—

(1)

in subparagraph (A), by striking and at the end;

(2)

in subparagraph (B), by striking the period and inserting ; and; and

(3)

by adding at the end the following:

(C)

to establish best practices for State-based enforcement of a Home Care Consumer Bill of Rights through a Plan for Enforcement, as such Bill and Plan are outlined in section 705, not later than 6 months after the date of enactment of the Home Care Consumer Bill of Rights Act, and to make those best practices available to States, and to the public through the National Center on Elder Abuse;

(D)

to assist States with the development of Home Care Consumer Bills of Rights and Plans for Enforcement, to support the shift from institutional care to home and community-based long-term services and supports and ensure that home care consumers, as defined in section 736, have basic protections as outlined in subsections (b) and (c) of section 705;

(E)

to develop a process for review and approval of States’ Home Care Consumer Bills of Rights and Plans for Enforcement, not later than 6 months after the date of enactment of the Home Care Consumer Bill of Rights Act; and

(F)

to review and approve States’ Home Care Consumer Bills of Rights and Plans for Enforcement through that process.

.

102.

Additional State plan requirements

(a)

In general

Section 705 of the Older Americans Act of 1965 (42 U.S.C. 3058d) is amended—

(1)

in subsection (a)—

(A)

in paragraph (6), by striking and at the end;

(B)

in paragraph (7), by striking the period and inserting ; and; and

(C)

by adding at the end the following:

(8)

subject to section 102(b) of the Home Care Consumer Bill of Rights Act, an assurance—

(A)

that the State has a Home Care Consumer Bill of Rights and a Plan for Enforcement of such a Bill, developed in accordance with the procedures described under paragraph (2) and as approved by the Assistant Secretary, and include a copy of the Bill and Plan; or

(B)

at the discretion of the Assistant Secretary, in the event the State does not have an approved Home Care Consumer Bill of Rights and Plan for Enforcement, that the State has an alternative such as a proposal for developing and submitting for approval a Home Care Consumer Bill of Rights and Plan for Enforcement.

;

(2)

by redesignating subsection (b) as subsection (d);

(3)

by inserting after subsection (a) the following:

(b)

Home Care Consumer Bill of Rights

The Home Care Consumer Bill of Rights referred to in subsection (a)(8) shall, at a minimum—

(1)

address a home care consumer’s right to basic safety by—

(A)

affirming that home care consumers are protected from physical, sexual, mental, and verbal abuse, neglect, and exploitation, including financial exploitation;

(B)

affirming that home care consumers are served by providers who are properly trained and are providing home care services within their scope of practice and the scope of their certification or licensure (if such a certification or licensure is required by the applicable State);

(C)

affirming that such providers maintain the confidentiality of all personal, financial, and medical information of home care consumers; and

(D)

affirming that providers respect the personal property of home care consumers, and in the event of consumer reports of theft or loss, investigate and report back to the consumer the results of the investigation;

(2)

address a home care consumer’s right to access information by—

(A)

affirming that home care consumers are informed of their rights under this subsection and subsection (c) within 2 weeks after the start of home care services, and about the entities the consumers may contact if their rights are violated, including the name and contact information for State and local agencies responsible for enforcing the Home Care Consumer Bill of Rights;

(B)

affirming that home care consumers—

(i)

are informed of the cost of home care services prior to receiving those services, whether the cost of those services are covered under health insurance, long-term care insurance, or other private and public programs, and any charges the consumer will be expected to pay; and

(ii)

are given advance notice of any changes to those costs or services; and

(C)

affirming that home care consumers have access to information about the availability of the home care services provided in the community involved and have the ability to choose among home care services and providers of home care services available in the community;

(3)

address a home care consumer’s right to choice, participation, and self-determination by—

(A)

affirming that home care consumers can participate in the planning of their home care services, including making choices about aspects of their care and services that are important to them, choosing providers and schedules to the extent practicable, receiving reasonable accommodation of their needs and preferences, and involving anyone they chose to participate with them in that planning;

(B)

affirming that home care consumers are provided with sufficient information to make informed decisions, are fully informed in advance about any proposed changes in care and services, and are involved in the decisionmaking process regarding those changes; and

(C)

affirming that home care consumers can refuse services and receive an explanation of the consequences of doing so;

(4)

address a home care consumer’s right to receive care and services provided in a way that promotes each consumer’s dignity and individuality;

(5)

address a home care consumer’s right to redress grievances by—

(A)

affirming that home care consumers are able to voice grievances about the quality of their home care services, the number of hours of service, and violations of their rights, receive prompt responses to those concerns, and are informed about the entities the consumers may contact to state those grievances in order to have the grievances addressed in an appropriate and timely manner, and without retaliation; and

(B)

affirming that home care consumers are able to assert their rights under this subsection and subsection (c) without retaliation;

(6)

address the role and responsibilities that fiduciaries may have in securing the rights of home care consumers affirmed under the Home Care Consumer Bill of Rights; and

(7)

meet any other guidelines determined to be appropriate by the Assistant Secretary.

(c)

Plan for enforcement

In developing the Plan for Enforcement referred to in subsection (a)(8), the State shall take into account the best practices established under section 201(e)(2)(C). The Plan shall include a description of how State entities with a role in protecting older individuals, such as home care services licensing agencies, adult protective services agencies, the Office of the State Long-Term Care Ombudsman (if the office has jurisdiction over home and community-based long-term care), local law enforcement agencies, and other entities determined to be appropriate by the Assistant Secretary, will coordinate activities to enforce the Home Care Consumer Bill of Rights.

; and

(4)

by adding at the end the following:

(e)

Definition

In this section, the term home care consumer and home care services have the meanings given the terms in section 736.

.

(b)

Application of requirement To submit State home care consumer bill of rights and plan for enforcement

(1)

In general

The requirement for a State to provide an assurance, and either a Home Care Consumer Bill of Rights and a Plan for Enforcement of such Bill or an alternative, under paragraph (8) of section 705(a) of the Older Americans Act of 1965 (as added by subsection (a)) shall apply to States beginning on the date (referred to in this subsection as the application date) that is 1 year after the date of the establishment of best practices under section 201(e)(2)(C) of such Act (as added by section 101).

(2)

First submission after application date

A State shall comply with paragraph (8) of section 705(a) of the Older Americans Act of 1965 (as added by subsection (a)) in whichever of the following 2 submissions occurs first with respect to such State after the application date described under paragraph (1):

(A)

The submission of a new State plan under section 307 of the Older Americans Act of 1965 (42 U.S.C. 3027).

(B)

The submission of an annual revision to a State plan submitted under such section 307.

(3)

Ongoing submissions

After complying with paragraph (8) of section 705(a) of the Older Americans Act of 1965 (as added by subsection (a)) in a submission in accordance with paragraph (2) of this subsection, a State shall comply with such paragraph (8) in each new State plan submitted under section 307 of the Older Americans Act of 1965 (42 U.S.C. 3027).

103.

Prevention of elder abuse, neglect, and exploitation

Section 721(b) of the Older Americans Act of 1965 (42 U.S.C. 3058i(b)) is amended—

(1)

in paragraph (11), by striking and at the end;

(2)

in paragraph (12), by striking the period and inserting ; and; and

(3)

by adding at the end the following:

(13)

developing a State Home Care Consumer Bill of Rights and Plan for Enforcement (as described in section 705) to protect home care consumers (as defined in section 736) from abuse, neglect, and exploitation.

.

104.

National adult protective services resource center

Section 201 of the Older Americans Act of 1965 (42 U.S.C. 3011) is amended by adding at the end the following:

(g)
(1)

The Assistant Secretary shall, by grant or contract with a national nonprofit entity, establish a National Adult Protective Services Resource Center (referred to in this subsection as the Center). The purposes of the Center are to improve the capacity of State and local adult protective services programs to respond effectively to abuse, neglect, and exploitation of vulnerable adults, including home care consumers and residents of long-term care facilities, and to coordinate with the Home Care Ombudsman Program and Long-Term Care Ombudsman Program to protect home care consumers and residents most effectively.

(2)

The nonprofit entity awarded a grant or contract under this subsection shall have expertise in, and representation by, State and local adult protective services programs.

(3)

The Center shall—

(A)

collect and disseminate information regarding, and increase public awareness of, the role of adult protective services programs in investigating the abuse, neglect (including self-neglect), and exploitation of vulnerable adults, including home care consumers and residents of long-term care facilities, and in intervening to protect the consumers and residents from abuse;

(B)

develop, distribute, and provide training and technical assistance for adult protective services program investigators and supervisors investigating the abuse, neglect (including self-neglect), and exploitation of vulnerable adults, including home care consumers and residents of long-term care facilities, and intervening to protect the consumers and residents from further abuse;

(C)

develop, distribute, and provide training to home care and long-term care professionals and others on recognizing, reporting (including regarding mandatory reporting requirements), and responding to the abuse, neglect (including self-neglect), and financial exploitation of vulnerable adults, including home care consumers and residents of long-term care facilities;

(D)

compile and disseminate reports on research and best practices for adult protective services programs and other programs on effective responses to the abuse, neglect (including self-neglect), and exploitation of vulnerable adults, including home care consumers and residents of long-term care facilities;

(E)

work with the National Ombudsman Resource Center and State and local home care ombudsman programs and long-term care ombudsman programs to develop and disseminate training, practice standards, and policies regarding—

(i)

the roles and responsibilities of adult protective services and ombudsman programs;

(ii)

confidentiality and abuse reporting issues and protocols; and

(iii)

effective ways to maximize the resources of adult protective services programs for the benefit of home care consumers and residents of long-term care facilities; and

(F)

establish a data system to collect information on the abuse, neglect (including self-neglect), and exploitation of home care consumers and residents of long-term care facilities and to measure the effectiveness of the activities carried out by the Center.

(4)

In this subsection, the terms home care consumer and home care ombudsman program have the meanings given the terms in section 736.

.

II

State home care ombudsman programs

201.

Program

Section 701 of the Older Americans Act of 1965 (42 U.S.C. 3058) is amended by inserting and grants after allotments.

202.

Authorization of appropriations

Chapter 1 of subtitle A of title VII of the Older Americans Act of 1965 is amended by inserting after section 702 (42 U.S.C. 3058a) the following:

702A.

Authorization of appropriations for State home care ombudsman program

There are authorized to be appropriated to carry out chapter 5 such sums as may be necessary for fiscal year 2012 and each subsequent fiscal year.

.

203.

Grants

Section 703 of the Older Americans Act of 1965 (42 U.S.C. 3058b) is amended by adding at the end the following:

(d)

Grants for State home care ombudsman programs

(1)

In general

The Assistant Secretary shall use funds made available under section 702A to award grants, on a competitive basis, to States for State Home Care Ombudsman Programs.

(2)

Considerations

In selecting States to receive the grants, the Assistant Secretary shall consider—

(A)

a State’s current financial support (as of the date of consideration) for home care ombudsman services;

(B)

a State’s commitment to preventing conflict of interest between providers of home care services and providers of home care ombudsman services; and

(C)

other criteria determined by the Assistant Secretary.

(3)

Priorities

In selecting States to receive the grants, the Assistant Secretary may give first priority to States that are providing home care ombudsman services to home care consumers on the date of enactment of section 737, and seek to enhance the home care ombudsman programs through which the States provide the services.

.

204.

Eligibility

(a)

Organization

Section 704 of the Older Americans Act of 1965 (42 U.S.C. 3058c) is amended, in the matter preceding paragraph (1), by inserting or grants after allotments.

(b)

Additional requirements

Section 705(a) of the Older Americans Act of 1965 (42 U.S.C. 3058d(a)) is amended—

(1)

in the matter preceding paragraph (1), by inserting or grant after allotment; and

(2)

in paragraph (4), by striking enactment of this subtitle and inserting enactment of the chapter.

205.

State Home Care Ombudsman Programs

Subtitle A of title VII of the Older Americans Act of 1965 (42 U.S.C. 3058 et seq.) is amended by adding at the end the following:

5

State Home Care Ombudsman Programs

736.

Definitions

In this chapter:

(1)

Home care consumer

The term home care consumer means a person who receives services in the person’s home or community to promote independence and reduce the necessity for residence in a long-term care facility, which may include—

(A)

home care services provided through this Act, the Medicare program under title XVIII of the Social Security Act (42 U.S.C. 1395 et seq.), the Medicaid program under title XIX of the Social Security Act (42 U.S.C. 1396 et seq.), or another public or private funding source; or

(B)

home care services determined to be appropriate by a State operating a State Home Care Ombudsman Program.

(2)

Home care ombudsman program

The term home care ombudsman program means a State Home Care Ombudsman Program described in section 737(a)(1).

(3)

Home care ombudsman representative

The term home care ombudsman representative includes an employee or volunteer who represents an entity designated under section 737(a)(5)(A) and who is individually designated by the Ombudsman.

(4)

Home care services

The term home care services means home and community-based services to promote independence and reduce the necessity for residence in a long-term care facility, including personal care services designed to assist an individual in the activities of daily living such as bathing, exercising, personal grooming, and getting in and out of bed.

(5)

Local home care Ombudsman entity

The term local home care Ombudsman entity means an entity designated under section 737(a)(5)(A) to carry out the duties described in section 737(a)(5)(B) with respect to a planning and service area or other substate area.

(6)

Office; Ombudsman

The terms Office and Ombudsman, used without further modification, have the meanings given the terms in section 711.

737.

Program

(a)

Establishment

(1)

In general

In order to be eligible to receive a grant under section 703(d) from funds appropriated under section 702A and made available to carry out this chapter, a State agency shall, in accordance with this section, agree to carry out a State Home Care Ombudsman Program within the Office of the State Long-Term Care Ombudsman.

(2)

Home care ombudsman program

The home care ombudsman program shall be carried out by the Ombudsman.

(3)

Functions

In carrying out the home care ombudsman program, the Ombudsman, personally or through representatives of the home care ombudsman program—

(A)

shall identify, investigate, and resolve complaints that—

(i)

are made by, or on behalf of, home care consumers;

(ii)

relate to action, inaction, or decisions, that may adversely affect the health, safety, welfare, or rights of home care consumers (including the welfare and rights of home care consumers with respect to the appointment and activities of guardians and representative payees), of—

(I)

entities responsible for determining eligibility for home care services, such as State and local governments; and

(II)

entities responsible for determining availability of home care services, such as managed care organizations; or

(iii)

relate to action, inaction, or decisions, regarding informing home care consumers about their eligibility for, or the availability of, home care services, of—

(I)

providers, or representatives of providers, of home care services;

(II)

public agencies;

(III)

health and social service agencies; and

(IV)

entities providing consumer-directed services under a consumer-directed program;

(B)

shall provide services to protect the health, safety, welfare, and rights of home care consumers;

(C)

shall inform home care consumers about means of obtaining services provided by providers or agencies described in subparagraph (A)(ii) or services described in subparagraph (B);

(D)

shall, in conjunction with other entities, such as area agencies on aging, conduct public education about the home care ombudsman program and its services, including the rights of home care workers to report concerns to the ombudsman in order to protect the health, safety, welfare, and rights of home care consumers;

(E)

shall ensure that home care consumers and complainants receive timely responses from representatives of the home care ombudsman program to complaints;

(F)

shall represent the interests of home care consumers before governmental agencies and seek administrative, legal, and other remedies to protect the health, safety, welfare, and rights of the home care consumers, including issues related to the sufficiency of the home care workforce and its availability to meet the needs of home care consumers;

(G)

shall provide administrative and technical assistance to entities designated under paragraph (5) to assist the entities in participating in the home care ombudsman program;

(H)

shall provide for training representatives of the home care ombudsman program;

(I)

shall—

(i)

promote the development of citizen organizations, to participate in the home care ombudsman program;

(ii)

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 home care consumers, with respect to the adequacy of home care services in the State, including issues related to the sufficiency of the home care workforce and its availability to meet the needs of home care consumers;

(iii)

recommend any changes in such laws, regulations, policies, and actions as the Ombudsman determines to be appropriate; and

(iv)

facilitate public comment on the laws, regulations, policies, and actions; and

(J)

shall carry out other activities as the Assistant Secretary determines to be appropriate.

(4)

Contracts and arrangements

(A)

In general

(i)

Agencies and organizations

Except as provided in subparagraph (B), the State agency shall carry out the home care ombudsman program, directly, or by contract or other arrangement with any public agency or nonprofit private organization.

(ii)

Area agencies on aging

The State agency shall determine whether to enter into contracts or arrangements with area agencies on aging to carry out the home care ombudsman program, based on the structure of the State's existing (as of the date of the determination) long-term care ombudsman program and the potential for conflicts of interest in the home and community-based services system in the State. A State agency may carry out a home care ombudsman program through area agencies on aging in the State, if the area agencies on aging—

(I)

have existing (as of the date of the determination) consumer protection systems in place to prevent such conflicts of interest; or

(II)

establish adequate procedures to prevent conflicts of interest under the program.

(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 home care services in the State; or

(ii)

an association (or an affiliate of such an association) of providers of home care services.

(5)

Designation of local home care ombudsman entities and home care ombudsman representatives

(A)

Designation

In carrying out the duties of the Office, the Ombudsman may designate an entity as a local home care Ombudsman entity (and, in doing so, the Ombudsman shall, if a local Ombudsman entity has already been designated, designate such local Ombudsman entity as the local home care Ombudsman entity), and may designate an employee or volunteer to represent the entity.

(B)

Duties

An individual so designated, in accordance with the policies and procedures established by the Ombudsman and the State agency—

(i)

shall provide services to protect the health, safety, welfare, and rights of home care consumers;

(ii)

shall ensure that home care consumers in the service area of the entity have timely responses to complaints and requests for assistance;

(iii)

shall identify, investigate, and resolve complaints made by or on behalf of home care consumers that relate to action, inaction, or decisions, that may adversely affect the health, safety, welfare, or rights of home care consumers;

(iv)

shall represent the interests of home care consumers before government agencies and seek administrative, legal, and other remedies to protect the health, safety, welfare, and rights of home care consumers;

(v)

shall—

(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 home care consumers; and

(II)

facilitate the ability of the public to comment on the laws, regulations, policies, and actions; and

(vi)

shall make referrals for services to protect and provide for the health, safety, educational needs, welfare, and rights of family or household members (including children) of home care consumers; and

(vii)

shall carry out other activities that the Ombudsman determines to be appropriate.

(C)

Eligibility for designation

Entities eligible to be designated as local home care Ombudsman entities, and individuals eligible to be designated as home care ombudsman representatives of such entities, shall—

(i)

have demonstrated capability to carry out the duties established in section 712(a)(5)(B);

(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; and

(iii)

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 Ombudsman, policies and procedures for monitoring local home care Ombudsman entities designated to carry out the duties established in section 712(a)(5)(B).

(ii)

Policies

In a case in which the entities are grantees or the home care ombudsman 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 subtitle regarding confidentiality and conflict of interest for providers of home care services.

(b)

Procedures for access

(1)

In general

The State shall ensure that representatives of the home care ombudsman program shall have—

(A)

access to home care consumers and their homes with permission of the home care consumer involved or a legal representative;

(B)
(i)

appropriate access to review all records of a home care consumer, if—

(I)

the representative of the home care ombudsman program has the permission of the home care consumer, or the legal representative of the home care consumer; or

(II)

the home care consumer is unable to consent to the review and has no legal representative; or

(ii)

such access to the records as is necessary to investigate a complaint if—

(I)

a legal guardian of the home care consumer refuses to give the permission;

(II)

a representative of the home care ombudsman program has reasonable cause to believe that the guardian is not acting in the best interests of the home care consumer; and

(III)

the representative obtains the approval of the Ombudsman;

(C)

access to the administrative records, policies, and documents, to which home care consumers have, or the general public has access, of the provider of home care services; and

(D)

access to and, on request, copies of all licensing and certification records maintained by the State with respect to the provider of home care services.

(2)

Procedures

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

(c)

Reporting system

The State agency shall ensure that the reporting system established in section 712(c) is equipped to—

(1)

collect and analyze data relating to complaints and conditions concerning home care services and to home care consumers for the purpose of identifying and resolving significant problems, including complaints concerning—

(A)

quality of services;

(B)

quantity of services;

(C)

availability of services; and

(D)

denial, reduction, and termination of services; and

(2)

submit the data, on a regular basis, to—

(A)

the agency of the State responsible for licensing or certifying providers of home care services 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 202(a)(18)(A).

(d)

Disclosure

(1)

In general

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

(2)

Identity of complainant or home care consumer

The procedures described in paragraph (1) shall—

(A)

provide that, subject to subparagraph (B), the files and records described in paragraph (1) may be disclosed only at the discretion of the Ombudsman (or the person designated by the Ombudsman to disclose the files and records); and

(B)

prohibit the disclosure of the identity of any complainant or home care consumer with respect to whom the Office maintains such files or records unless—

(i)

the complainant or home care consumer, or the legal representative of the complainant or home care consumer, consents to the disclosure and the consent is given in writing;

(ii)
(I)

the complainant or home care consumer gives consent orally; and

(II)

the consent is documented contemporaneously in a writing made by a representative of the home care ombudsman program in accordance with such requirements as the State agency shall establish; or

(iii)

the disclosure is required by court order.

(e)

Consultation

In planning and carrying out the home care ombudsman program, the State agency shall consider the views of area agencies on aging, older individuals, and providers of home care services and demonstrate how the State agency has taken their views into consideration.

(f)

Conflict of interest

The State agency shall—

(1)

ensure that no individual, or member of the immediate family of an individual, involved in the designation of the Ombudsman (whether by appointment or otherwise) or the designation of an entity designated under subsection (a)(5), is subject to a conflict of interest;

(2)

ensure that no officer or employee of the Office, home care ombudsman representative of a local home care Ombudsman entity, or member of the immediate family of the officer, employee, or home care ombudsman representative, is subject to a conflict of interest;

(3)

ensure that the Ombudsman—

(A)

does not have a direct involvement in the licensing or certification of a provider of home care services;

(B)

does not have an ownership or investment interest (represented by equity, debt, contract, or other financial relationship) in a provider of home care services;

(C)

is not employed by, or participating in the management of, a provider of home care services; and

(D)

does not receive, or have the right to receive, directly or indirectly, remuneration (in cash or in-kind) under a compensation arrangement with an owner or operator of a provider of home care services; and

(4)

establish, and specify in writing, mechanisms to identify and remove conflicts of interest referred to in paragraphs (1) and (2), and to identify and eliminate the relationships described in subparagraphs (A) through (D) of paragraph (3), including such mechanisms as—

(A)

the methods by which the State agency will examine individuals, and immediate family members, to identify the conflicts; and

(B)

the actions that the State agency will require the individuals and such family members to take to remove such conflicts.

(g)

Legal counsel

The State agency shall ensure that—

(1)
(A)

adequate legal counsel is available, and is able, without conflict of interest, to—

(i)

provide advice and consultation needed to protect the health, safety, welfare, and rights of home care consumers; and

(ii)

assist the Ombudsman and representatives of the home care ombudsman program in the performance of the official duties of the Ombudsman and representatives; and

(B)

legal representation is provided to any representative of the home care ombudsman program 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 Ombudsman pursues administrative, legal, and other appropriate remedies on behalf of home care consumers.

(h)

Administration

(1)

Requirements

The State agency shall require the Office to—

(A)

include in its annual report required in section 712(h)(1)—

(i)

a description of the activities carried out by the Office as they related to the home care ombudsman program in the year for which the report is prepared;

(ii)

the data and an analysis of the data collected under subsection (c);

(iii)

an evaluation of the problems experienced by, and the complaints made by or on behalf of, home care consumers;

(iv)

recommendations for—

(I)

improving quality of the care and life of the home care consumers; and

(II)

protecting the health, safety, welfare, and rights of the home care consumers;

(v)
(I)

an analysis of the success of the home care ombudsman program including success in providing services to home care consumers in communities with high percentages of racial or ethnic minorities; and

(II)

identification of barriers that prevent the optimal operation of the home care ombudsman program; and

(vi)

policy, regulatory, and legislative recommendations to solve identified problems, to resolve the complaints, to improve the quality of care and life of home care consumers, to protect the health, safety, welfare, and rights of home care consumers, and to remove the barriers;

(B)

not later than 2 years after the date of the enactment of this chapter, establish procedures for the training of the representatives of the home care ombudsman program, including unpaid volunteers, based on best practices outlined by the Assistant Secretary in the most recent report submitted under subsection (m)(1), in consultation with representatives of citizen groups, providers of home care services, and the home care ombudsman program, that—

(i)

specify a minimum number of hours of initial training;

(ii)

specify the content of the training, including training relating to—

(I)

Federal, State, and local laws, regulations, and policies, with respect to providers of home care services in the State;

(II)

investigative techniques; and

(III)

such other matters as the State determines to be appropriate; and

(iii)

specify an annual number of hours of in-service training for all designated representatives;

(C)

prohibit any representative of the home care ombudsman program (other than the Ombudsman) from carrying out any activity described in subparagraphs (A) through (H) of subsection (a)(3) unless the representative—

(i)

has received the training required under subparagraph (B); and

(ii)

has been approved by the Ombudsman as qualified to carry out the activity on behalf of the Office;

(D)

coordinate home care ombudsman services with the protection and advocacy systems for individuals with developmental disabilities and mental illnesses established under—

(i)

subtitle C of the Developmental Disabilities Assistance and Bill of Rights Act of 2000 (42 U.S.C. 15041 et seq.); and

(ii)

the Protection and Advocacy for Individuals with Mental Illness Act (42 U.S.C. 10801 et seq.);

(E)

coordinate, to the greatest extent possible, home care ombudsman services with legal assistance provided under section 306(a)(2)(C), through adoption of memoranda of understanding and other means;

(F)

coordinate services with State and local law enforcement agencies and courts of competent jurisdiction; and

(G)

permit any local home care Ombudsman entity to carry out the responsibilities described in subparagraph (A), (D), or (E).

(2)

Authorities

The State agency shall require the Office to—

(A)

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 providers of home care services and those services, and to the health, safety, welfare, and rights of home care consumers, in the State, and recommend any changes in such laws, regulations, and policies as the Ombudsman determines to be appropriate;

(B)
(i)

provide such information as the Ombudsman determines to be necessary to public and private agencies, legislators, and other persons, regarding—

(I)

the problems and concerns of older individuals receiving home care services; and

(II)

recommendations related to the problems and concerns; and

(ii)

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 providers of home care services, and other appropriate governmental entities, each report prepared under paragraph (1)(A); and

(C)

permit any local home care Ombudsman entity to carry out the responsibilities described in subparagraph (A) or (B).

(i)

Liability

The State shall ensure that no representative of the home care ombudsman program 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 home care ombudsman program 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 provider of home care services or other entity with respect to any recipient of home and community-based services, employee, exclusive representative of an employee, or other person for filing a complaint with, providing information to, or otherwise cooperating with any representative of, the home care ombudsman program; and

(3)

provide for appropriate sanctions with respect to the interference, retaliation, and reprisals.

(k)

Coordination with Adult Protective Services

(1)

In general

The Ombudsman, in carrying out the State Home Care Ombudsman Program, shall coordinate activities with the National Adult Protective Services Resource Center and the head of the State’s adult protective services program in a manner that is consistent with the State’s existing (as of the date of the coordination) protocols for coordination of activities between the Ombudsman, in carrying out the State Long-Term Care Ombudsman Program.

(2)

Establishment of protocols

If the protocols described in paragraph (1) do not exist in the State, the Ombudsman, in conjunction with the head of the State’s adult protective services program, shall establish protocols to coordinate activities with the intent of better serving vulnerable adults, which protocols shall—

(A)

clarify the roles of each program;

(B)

establish procedures for maintaining a working relationship;

(C)

outline mutual expectations; and

(D)

establish procedures for coordinating activities with law enforcement.

(l)

Maintenance of effort

A State, in using the funds made available for a fiscal year through a grant received under section 703(d), shall maintain the expenditures of the State for home care ombudsman services at a level that is not less than the level of such expenditures maintained by the State for the preceding fiscal year.

(m)

Evaluation

The Assistant Secretary shall—

(1)

in conjunction with the Director of the Office of Long-Term Care Ombudsman Programs and the heads of other entities determined to be necessary by the Assistant Secretary, collect and analyze the data required to be submitted under subsection (c) by the States and within 1 year after receipt of the data, submit a report to Congress outlining best practices for carrying out a home care ombudsman program; and

(2)

make the report available to States.

.

III

Quality assurance for home and community-based services

301.

Functions of Assistant Secretary

Section 202(b) of the Older Americans Act of 1965 (42 U.S.C. 3012(b)) is amended—

(1)

in paragraph (8)—

(A)

in subparagraph (D), by striking and at the end;

(B)

in subparagraph (E) by adding and at the end; and

(C)

by adding at the end the following:

(F)

to provide quality assurance information, relating to the standards identified under paragraph (11)(A), using the methods described in paragraph (11)(B), about home and community-based long-term care programs, service providers, and resources, when referring consumers to those programs, providers, or resources;

;

(2)

in paragraph (9)—

(A)

in the matter preceding subparagraph (A), by striking and community-based service providers and inserting community-based service providers, and, for purposes of subparagraph (C), Aging and Disability Resource Centers,;

(B)

in subparagraph (A), by striking and at the end;

(C)

subparagraph (B), by adding and at the end; and

(D)

by adding at the end the following:

(C)

methods, consistent with the methods described in paragraph (11)(B), to communicate to consumers quality assurance information, relating to the standards identified under paragraph (11)(A), about home and community-based long-term care programs, service providers, and resources;

;

(3)

in paragraph (10), by striking and at the end;

(4)

by redesignating paragraph (11) as paragraph (12); and

(5)

by inserting after paragraph (10) the following:

(11)
(A)

identify, in consultation with States (either directly or by entering into a contract under this subparagraph and considering the recommendation of the contract recipient) quality assurance standards for home and community-based long-term care programs, service providers, and resources that—

(i)

shall be designed to ensure the health, safety, and welfare of consumers who are referred to such programs, service providers, and resources by area agencies on aging, Aging and Disability Resource Centers, and such other entities as the Assistant Secretary determines to be appropriate; and

(ii)

shall be identified after the Assistant Secretary takes into account, at a minimum, standards for—

(I)

background checks of service providers;

(II)

licensure of agencies and certification and training of service providers;

(III)

consumer satisfaction regarding programs, service providers, and resources, in cases in which consumer satisfaction information is available; and

(IV)

such additional matters as the Assistant Secretary determines to be appropriate; and

(B)

taking into account the variation in communication infrastructure development among Aging and Disability Resource Centers, establish consumer-friendly methods for communicating to consumers, consistently throughout a State—

(i)

quality assurance information relating to the standards identified under subparagraph (A) about home and community-based long-term care programs, service providers, and resources to which such consumers are referred to by area agencies on aging, Aging and Disability Resource Centers, and such other entities as the Assistant Secretary determines to be appropriate; and

(ii)
(I)

the content of the State certification or licensure requirements applicable to such home and community-based long-term care programs, service providers, or resources; or

(II)

an explanation that the State does not have certification or licensure requirements applicable to such home and community-based long-term care programs, service providers, or resources; and

.

302.

Organization

Section 305(a)(3)(E) of the Older Americans Act of 1965 (42 U.S.C. 3025(a)(3)(E)) is amended—

(1)

in the matter before clause (i), by striking information relating to;

(2)

in clause (i)—

(A)

by inserting information relating to after (i); and

(B)

by striking and at the end;

(3)

in clause (ii)—

(A)

by inserting information relating to after (ii); and

(B)

by striking the period and inserting ; and; and

(4)

by adding at the end the following:

(iii)

quality assurance information, relating to the standards identified under section 202(b)(11)(A), about home and community-based long-term care programs, service providers, and resources, provided through methods described in section 202(b)(11)(B), when the Aging and Disability Resource Centers, area agencies on aging, and such other entities as the Assistant Secretary determines to be appropriate, refer consumers to those programs, providers, and resources in the State.

.