OMBUDSMAN OFFICE AND PROGRAM.

SEC. 129. OMBUDSMAN OFFICE AND PROGRAM. (a) Technical Assistance.—Section 301 of the Older Americans Act of 1965 (42 U.S.C. 3021) is amended by adding at the end the following: “(c) The Commissioner shall provide technical assistance and training (by contract, grant, or otherwise) to State long-term care ombudsman programs established under section 307(a)(12), and to individuals designated under such section to be representatives of a long-term care ombudsman, in order to enable such ombudsmen and such representatives to carry out the ombudsman program effectively.”. (b) Study of Ombudsman Program.—(1) The Commissioner on Aging shall conduct a study concerning involvement in the ombudsman program established under section 307(a)(12) of the Older Americans Act of 1965 (42 U.S.C. 3027(a)(12)) and its impact upon issues and problems affecting— (A) residents of board and care facilities and other similar adult care homes who are older individuals (as defined in section 302(10) of such Act), including recommendations for101 STAT. 935 expanding and improving ombudsman services in such facilities, and (B) the effectiveness of recruiting, supervising, and retaining volunteer ombudsmen. (2) The Commissioner shall prepare and submit a report to the Congress on the findings and recommendations of the study described in paragraph (1) not later than December 31, 1989. (c) Authorization of Appropriations.—(1) Section 303(a) of the Older Americans Act of 1965 (42 U.S.C. 3023(a)), as amended by section 122(a), is amended— (A) by inserting “(1)” after “(a)”, and (B) by adding at the end the following: “(2) Subject to subsection (h), there are authorized to be appropriated $20,000,000 for fiscal year 1988 and such sums as may be necessary for each of the fiscal years 1989, 1990, and 1991 to carry out section 307(a)(12).”. (2) Section 308(b)(5) of the Older Americans Act of 1965 (42 U.S.C. 3028(b)(5)) is amended— (A) in subparagraph (A) by striking “subsection (a)” and inserting “subsection (a)(1)”, and (B) in subparagraph (B) by inserting “subsections (a)(1) and (b) of” after “under” the first place it appears. (d) State Plans.—Section 307(a)(12) of the Older Americans Act of 1965 (42 U.S.C. 3027(a)(12)) is amended to read as follows: “(12) The plan shall provide the following assurances, with respect to a long-term care ombudsman program: “(A) The State agency will establish and operate, either directly or by contract or other arrangement with any public agency or other appropriate private nonprofit organization. other than an agency or organization which is responsible for licensing or certifying long-term care services in the State or which is an association (or an affiliate of such an association) of long-term care facilities (including any other residential facility for older individuals), an Office of the State Long-Term Care Ombudsman (in this paragraph referred to as the ‘Office’) and shall carry out through the Office a long-term care ombudsman program which provides an individual who will, on a full-time basis— “(i) investigate and resolve complaints made by or on behalf of older individuals who are residents of long-term care facilities relating to action, inaction or decisions of providers, or their representatives, of long-term care services, of public agencies, or of social service agencies, which may adversely affect the health, safety, welfare, or rights of such residents; “(ii) provide for training staff and volunteers and promote the development of citizen organizations to participate in the ombudsman program; and “(iii) carry out such other activities as the Commissioner deems appropriate. “(B) The State agency will establish procedures for appropriate access by the ombudsman to long-term care facilities and patients’ records, including procedures to protect the confidentiality of such records and ensure that the identity of any complainant or resident will not be disclosed without101 STAT. 936 the written consent of such complainant or resident, or upon court order. “(C) The State agency will establish a statewide uniform reporting system to collect and analyze data relating to complaints and conditions in long-term care facilities for the purpose of identifying and resolving significant problems, with provision for submission of such data to the agency of the State responsible for licensing or certifying long-term care facilities in the State and to the Commissioner on a regular basis. “(D) The State agency will establish procedures to assure that any files maintained by the ombudsman program shall be disclosed only at the discretion of the ombudsman having authority over the disposition of such files, except that the identity of any complainant or resident of a long-term care facility shall not be disclosed by such ombudsman unless— “(i) such complainant or resident, or the individual’s legal representative, consents in writing to such disclosure; or “(ii) such disclosure is required by court order. “(E) In planning and operating the ombudsman program, the State agency will consider the views of area agencies on aging, older individuals, and provider agencies. “(F) The State agency will— “(i) ensure that no individual involved in the designation of the long-term care ombudsman (whether by appointment or otherwise) or the designation of the head of any subdivision of the Office is subject to a conflict of interest; “(ii) ensure that no officer, employee, or other representative of the Office is subject to a conflict of interest; and “(iii) ensure that mechanisms are in place to identify and remedy any such or other similar conflicts. “(G) The State agency will— “(i) ensure that adequate legal counsel is available to the Office for advice and consultation and that legal representation is provided to any representative of the Office against whom suit or other legal action is brought in connection with the performance of such representative’s official duties; and “(ii) ensure that the Office has the ability to pursue administrative, legal, and other appropriate remedies on behalf of residents of long-term care facilities. “(H) The State agency will require the Office to— “(i) prepare an annual report containing data and findings regarding the types of problems experienced and complaints received by or on behalf of individuals residing in long-term care facilities, and to provide policy, regulatory, and legislative recommendations to solve such problems, resolve such complaints, and improve the quality of care and life in long-term care facilities; “(ii) analyze and monitor the development and implementation of Federal, State, and local laws, regulations, and policies with respect to long-term care101 STAT. 937 facilities and services in that State, and recommend any changes in such laws, regulations, and policies deemed by the Office to be appropriate; “(iii) provide information to public agencies, legislators, and others, as deemed necessary by the Office, regarding the problems and concerns, including recommendations related to such problems and concerns, of older individuals residing in long-term care facilities; “(iv) provide for the training of the Office staff, including volunteers and other representatives of the Office, in— “(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 deems appropriate; “(v) coordinate ombudsman services with the protection and advocacy systems for individuals with developmental disabilities and mental illness established under part A of the Developmental Disabilities Assistance and Bill of Rights Act (42 U.S.C. 6001 et seq.) and under the Protection and Advocacy for Mentally Ill Individuals Act of 1986 (Public Law 99–319); and “(vi) include any area or local ombudsman entity designated by the State Long-Term Care Ombudsman as a subdivision of the Office. Any representative of an entity designated in accordance with the preceding sentence (whether an employee or an unpaid volunteer) shall be treated as a representative of the Office for purposes of this paragraph. “(I) The State will ensure that no representative of the Office will be liable under State law for the good faith performance of official duties. “(J) The State will— “(i) ensure that willful interference with representatives of the Office in the performance of their official duties (as defined by the Commissioner) shall be unlawful; “(ii) prohibit retaliation and reprisals by a long-term care facility or other entity with respect to any resident or employee for having filed a complaint with, or providing information to, the Office; “(iii) provide for appropriate sanctions with respect to such interference, retaliation, and reprisals; and “(iv) ensure that representatives of the Office shall have— “(I) access to long-term care facilities and their residents; and “(II) with the permission of a resident or resident’s legal guardian, have access to review the resident’s medical and social records or, if a resident is unable to consent to such review and has no legal guardian, appropriate access to the resident’s medical and social records. “(K) The State agency will prohibit any officer, employee, or other representative of the Office to investigate any101 STAT. 938 complaint filed with the Office unless the individual has received such training as may be required under subparagraph (G)(iv) and has been approved by the long-term care ombudsman as qualified to investigate such complaints.”. (e) Minimum Expenditure for Ombudsman Services.—Section 307(a)(21) of the Older Americans Act of 1965 (42 U.S.C. 3027(a)(21)) is amended to read as follows: “(21) The State plan shall provide that the State agency, from funds allotted under section 304(a) for part B and for paragraph (12) (relating to the State long-term care ombudsman) shall expend to carry out paragraph (12), for each fiscal year in which the allotment for part B for the State is not less than the allotment for fiscal year 1987 for part B for such State, an amount which is not less than the amount expended from funds received under this Act by such State in fiscal year 1987 to carry out paragraph (12) as in effect before the effective date of the Older Americans Act Amendments of 1987. This paragraph shall not apply to American Samoa, Guam, the Virgin Islands, the Trust Territory of the Pacific Islands, and the Commonwealth of the Northern Mariana Islands.”.