News

State Long-Term Care Ombudsman Programs Rule Frequently Asked Questions (FAQs)

Release date: November 22, 2016

The new FAQs cover ombudsman authority to resolve complaints about the guardian or other representative of a resident, conflicts of interest of supervisors, intake processes to handle inquiries, appropriateness of people conducting ombudsman program activities, ombudsman program staff with professional licensing requirements, and court orders to disclose ombudsman program information.

The FAQs can be accessed here.

State Long-Term Care Ombudsman Program (LTCOP) Final Rule

Citation: 45 CFR 1321 and 1324

Effective Date: July 1, 2016

Overview:

On February 11, 2015, the Administration on Aging (AoA) of the Administration for Community Living (ACL) within the Department of Health and Human Services (HHS) issued a final rule regarding the State Long-Term Care Ombudsman Program (LTCOP). Although the program was authorized in the 1970s, this rule is the first regulation pertaining specifically to the LTCOP, and aims to address the following:

  • To provide more consistent delivery of services to residents of long-term care facilities;
  • To have less variation in quality, efficiency and consistency in service delivery from state to state;
  • To clarify provisions of the Act that have seemed confusing to States and Ombudsman programs;
  • Operationalizes OAA provisions which are uncharacteristic of ways state units on aging (SUAs) and area agencies on aging (AAAs) operate other OAA programs.  For example:
    • Ombudsman responsibility to designate representatives and local Ombudsman entities;
    • Stringent disclosure limitations;
    • Conflict of interest requirements;
    • Ombudsman responsibility to perform systems advocacy functions.

Implementation:

  • Administered by ACL through OAA grants to State Units on Aging (SUAs)
  • Even if SUA doesn’t provide LTC Ombudsman services directly.
  • LTCOP Rule is part of OAA grant compliance requirements of states.
  • All states will need to review and some will need to revise their laws, regulations, policies and/or practices.
  • ACL Regional offices and Office of LTC Ombudsman Programs available to assist.

Table of Contents:

1324.1 Definitions

1324.11 Establishment of the Office of the State Long-Term Care Ombudsman

1324.13 Functions and responsibilities of the State Long-Term Care Ombudsman

1324.15 State agency responsibilities related to the Ombudsman program

1324.17 Responsibilities of Agencies hosting local Ombudsman entities

1324.19 Duties of the representative of the Office

1324.21 Conflicts of Interest

For additional and more detailed information on the Ombudsman final rule see NASUAD’s PowerPoint on the State Long-Term Care Ombudsman Program Final Rule.

Also, the complete final rule can be accessed here.
 

CMS 2016 Nursing Home Final Rule

Citation: 42 CFR Parts 405, 431, 447, 482, 483, 485, 488, and 489.

Effective Date: November 28, 2016.

On September 28, 2016, the Centers for Medicare & Medicaid Services (CMS) released a final rule—Medicare and Medicaid Programs; Reform Requirements for Long-Term Care Facilities—that updates Federal requirements for long-term care (LTC) facilities. The Rule will affect approximately 15,000 LTC facilities and close to 1.5 million Americans, and is the first major update to LTC regulations since 1991. There are a number of significant provisions in the Rule, including: prohibiting the use of pre-dispute arbitration agreements; improving LTC staff ratios as well as their training on caring for residents with dementia; greater flexibility for dietitians and therapy providers, and; improving person-centered care and care planning. Access the final rule here.

On October 17, 2016, the American Health Care Association (AHCA), the national trade group for nursing facilities, the Mississippi Health Care Association, and three LTC facility providers filed a lawsuit against the Centers for Medicare & Medicaid Services (CMS) over implementation of a recent final rule that revises the requirements LTC facilities must meet in order to participate Medicare and Medicaid. The new rule makes a number of changes, including prohibiting LTC facilities from signing pre-dispute arbitration agreements with residents, which essentially resulted in residents waiving their right to sue the LTC facility. The AHCA maintains that prohibiting these arbitration agreements is illegitimate due to other Federal law, and is requesting that the courts stop enforcement of the provision after the effective date of the rule on November 28, 2016. AHCA’s statement on the lawsuit can be found here, and the lawsuit can be located here as well.

On November 7, 2016, a judge from the U.S. District Court for the Northern District of Mississippi granted AHCA’s request to prevent the new nursing home regulation provision barring pre-dispute arbitration agreement from taking effect on November 28, 2016. Although the judge expressed sympathy for the intentions behind CMS’ regulation, he cast doubt on the federal agency’s statutory authority to implement the provision. Access the judge’s ruling here.