LTCOP Rule Issue Brief

Size: px

Start display at page:

Download "LTCOP Rule Issue Brief"

Emma Newman
5 years ago
Views:

1 LTCOP Rule Issue Brief LOCAL OMBUDSMAN ENTITY ORGANIZATIONAL LEVEL CONFLICT OF INTEREST The purpse f this dcument is t assist the State Ombudsman t identify and remedy r remve cnflicts f interest (COI) within an agency hsting a lcal Ombudsman entity (LOE) as required by the State Lng-Term Care Ombudsman Prgrams, Final Rule. 1 Organizatinal COI are cnflicts that may impact the effectiveness and credibility f the wrk f the Office f the State Lng-Term Care Ombudsman (the Office). 2 The Rule requires five steps regarding rganizatinal COI when using LOEs: 1. Avid COI prir t designating r renewing designatin, 2. Establish a prcess fr peridic review/identificatin f COI, 3. Require disclsure f COI and steps taken t remve/remedy, 4. Establish criteria and prcess fr review/apprval f steps taken t remedy/remve COI. 5. Reprt thrugh the Natinal Ombudsman Reprting System (NORS). This brief cnsists f the fllwing sectins pertinent t the tpic: Implementatin, Key Pints t Cnsider and a List f Authrities. Implementatin, Key Pints t Cnsider Review yur state s prcess and prvisins fr identifying, remving, r remedying COIs in agencies hsting a LOE t determine whether they clearly cver the specified areas in the Rule. If yur state des nt have such a prcess, establish ne. See page 5 fr mre infrmatin. *Nte: Effective July 1, 2016 the Administratin fr Cmmunity Living (ACL) cnslidated their regulatins int ne subchapter resulting in the LTCOP rule number changing frm 45 CFR 1327 t 45 CFR We are in the prcess f revising ur resurces t reflect that change. Infrmatin abut the cnslidatin is available here. Avid the Cnflict f Interest Prir t Designatin r Renewing Designatin Review yur state law, rule, and plicies regarding lcal mbudsman entity COI. What prcesses are currently in place t avid a COI? What remedies are currently in place? In light f current prcesses and the Rule, what needs t be changed? Establish a prcess fr peridic review f COI. Fr example, include a review during the mnitring visit, set up an annual tickler, and/r include a disclsure frm in grant r cntract language. Require that such agencies disclse identified COI with the LOE and steps taken t remve r remedy cnflicts within such agency t the Ombudsman. Identificatin f Existing Cnflicts f Interest 1 Published in the Federal Register, 02/11/2015, Vl. 80, N. 28. LTCOP Final Rule 2 LTCOP Final Rule,

2 Assess the current rganizatinal lcatin f each agency hsting a LOE. Review the ther prgrams, departments r divisins lcated within the same agency where the LOE resides. Review annual reprts, agency websites, and cnsider additinal such as respnsibilities r management f departments and f the gverning Bard members. If any cnflicts r ptential cnflicts are identified, review this sectin f the Brief fr suggestins. Review yur state s prcess fr decisin-making regarding the designatin, revcatin f designatin, r refusal t designate LOEs. D any f the fllwing descriptins apply t the hst agency f any LOE? If any are present, there is a COI. The Rule requires that the COIs be remedied r remved and reprted t the Assistant Secretary thrugh the Natinal Ombudsman Reprting System. 1. The LOE is administratively lcated in the same unit, divisin, ffice, agency, r department as any f the prgrams r functins listed belw. Licensing r Regulatry Services fr LTC Facilities Lng-Term Care Pre-Admissin Screening r Decisins regarding Eligibility, Discharge, r Admissin fr Residents Care Crdinatin r Case Management fr Residents in LTC Facilities Adult Prtective Services Guardianship r Other Fiduciary r Surrgate Decisin-Making Services fr LTC Residents An Assciatin r Affiliate f LTC Facilities r Other Residential Facilities fr Older Individuals r Individuals with Disabilities Prvides Lng-Term Care t Residents Including Staffing r Operating Prgrams that Cntrl Access t r Services fr LTC Facilities Receives Funds frm LTC Facilities 2. The LOE is administratively lcated in a unit, divisin, ffice, agency r department which has a gverning bard with members wh have COIs. 3. A representative f the Office f the Ombudsman, e.g. lcal mbudsman, in the LOE has respnsibilities fr any f the functins r prgrams listed in #1. 4. The Ombudsman (State Lng-Term Care Ombudsman (SLTCO)) cnducts a peridic review and identificatin f COIs with the LOE. 5. Agencies hsting a LOE disclse identified COIs with the LOE and steps taken t remve r remedy COIs t the Ombudsman. Remving/Remedying COIs Bth the State Agency (SUA) and the Ombudsman have a duty t remve/remedy the COI. 2

3 Befre designating r renewing designatin f a LOE, reasnable steps are taken t avid COIs in an agency that may hst a LOE. There is an established prcess fr review and criteria fr apprval f plans t remve r remedy cnflicts with the LOE in agencies where a COI has been identified. If an agency hsting the LOE fails t disclse a COI r is unable t adequately remve r remedy the COI, the Ombudsman may refuse t designate, suspend r remve designatin f the LOE. Check the NORC website fr resurces and examples f state strategies fr addressing COI, including SLTCOP plicies and prcedures, cntract prvisins, assurances, memrandum f understanding, state laws and regulatins. The NORC website will cntinue t be updated as states develp their prcesses fr cmplying with the rule. LTCOP Rule Resurces and Infrmatin Reprting COIs thrugh NORS The Ombudsman must reprt identified cnflicts and steps taken t remve r remedy identified cnflicts in NORS as directed by NORS Instructins. The Administratin fr Cmmunity Living, Administratin n Aging will review the reprt and prvide a respnse regarding the adequacy f steps taken. 3

4 CONFLICT OF INTEREST Flwchart Review yur state s prcess fr determining r aviding COI prir t designating r renewing the designatin f a lcal mbudsman entity. Is it clear? Des it include the elements f decisin-making cntained in the flw chart? Is further actin needed t cmply with the LTCOP Rule? Prir t designating r renewing designatin fr a LOE, the SLTCO seeks t avid COI in the hst agency fr the LOE. The SLTCO fllws established prcedures t avid COI prir t designatin r renewal. N Yes The hst agency has n COI with the LOE. COI issues were identified and anther hst agency withut COI was designated as the LOE entity. COI issues were identified and remedied r remved prir t designatin. The remedy met the criteria fr apprval established by the SLTCO. The SLTCO & State Agency develp prcedures t avid COI prir t designatin r renewal. The SLTCO fllws the established prcedures t avid COI prir t designatin r renewal. If necessary, pursue a change in State law, regulatins, r cntract prcedures. An entity is designated as a LOE. The Ombudsman reprts all identified COIs and steps taken t remedy/remve n the Natinal Ombudsman Reprting System. ACL/AA reviews the reprt and prvides a respnse t the Ombudsman regarding the adequacy f the steps taken. 4

5 Key Pints t Cnsider Review yur state s prcess and prvisins fr identifying, remving r remedying COIs in agencies hsting a LOE t determine whether it clearly cvers the specified areas in the Rule. If yur state des nt have such a prcess, establish ne. Des the prcess: Include a peridic review and identificatin f COIs with the LOE in the agency/rganizatin hsting the lcal entity? Are the definitins and criteria fr determining COI cnsistent with the LTCOP Rule and the OAA? Are they clearly articulated? Is there a stipulated time fr the review? Is the review prcess defined and cnsistently fllwed? Is there an assurance frm r any evidence/dcumentatin that a review has been cnducted? Require lcal entities hsting the LTCOP t disclse identified COIs t the Ombudsman and steps taken t remve r remedy cnflicts? Is the prcess fr disclsure and remedying r remving a COI clearly articulated in plicies r cntracts? Are the respnsibilities f the hst agency fr identifying, reviewing, and remving/remedying COIs specified? Is there a time frame fr ntificatin and fr a respnse? Wh receives and reviews the infrmatin within the Office f the Ombudsman? Cntain criteria fr apprval f steps taken t remedy r remve cnflicts? Are the criteria clear? Wh prvides input int the apprval prcess? Are there time frames fr the prcess? Wh receives ntificatin f the decisin regarding the adequacy f a remedy r remval? Is there an ability t fllw-up r revisit the slutin t determine if the bjective has been achieved by the remedy r remval? Include prvisins fr the SLTCO t refuse, suspend r remve designatin f a LOE entity if a COI is nt disclsed r is nt adequately remved r remedied? Are the prvisins clear and disclsed t lcal entities hsting, r seeking t hst, a LOE? Are the prvisins included in a cntract r an agreement? D the prvisins cntain time frames fr actin? Is the grievance prcess referenced r included in the prvisins? 5

6 List f Authrities Older Americans Act (the Act) f 1965 as amended 2006 Sectin 712 (5) Designatin f Lcal Ombudsman Entities and Representatives. (C) ELIGIBILITY FOR DESIGNATION. Entities eligible t be designated as lcal Ombudsman entities, and individuals eligible t be designated as representatives f such entities, shall (i) have demnstrated capability t carry ut the respnsibilities f the Office; (ii) be free f cnflicts f interest and nt stand t gain financially thrugh an actin r ptential actin brught n behalf f individuals the Ombudsman serves; (iii) in the case f the entities, be public r nnprfit private entities; and (iv) meet such additinal requirements as the Ombudsman may specify. (D) POLICIES AND PROCEDURES. (i) IN GENERAL. The State agency shall establish, in accrdance with the Office, plicies and prcedures fr mnitring lcal Ombudsman entities designated t carry ut the duties f the Office. (ii) POLICIES. In a case in which the entities are grantees, r the representatives are emplyees, f area agencies n aging, the State agency shall develp the plicies in cnsultatin with the area agencies n aging. The plicies shall prvide fr participatin and cmment by the agencies and fr reslutin f cncerns with respect t case activity. State Lng-Term Care Ombudsman Prgrams, Final Rule Cnflicts f Interest The State agency and the Ombudsman shall cnsider bth the rganizatinal and individual cnflicts f interest that may impact the effectiveness and credibility f the wrk f the Office. In s ding, bth the State agency and the Ombudsman shall be respnsible t identify actual and ptential cnflicts and, where a cnflict has been identified, t remve r remedy such cnflict as set frth in paragraphs (b) and (d) f this sectin. (a) Identificatin f rganizatinal cnflicts. In identifying cnflicts f interest pursuant t sectin 712(f) f the Act, the State agency and the Ombudsman shall cnsider the rganizatinal cnflicts that may impact the effectiveness and credibility f the wrk f the Office. Organizatinal cnflicts f interest include, but are nt limited t, placement f the Office, r requiring that an Ombudsman r representative f the Office perfrm cnflicting activities, in an rganizatin that: (1) Is respnsible fr licensing, surveying, r certifying lng-term care facilities; (2) Is an assciatin (r an affiliate f such an assciatin) f lng-term care facilities, r f any ther residential facilities fr lder individuals r individuals with disabilities; (3) Has any wnership r investment interest (represented by equity, debt, r ther financial relatinship) in, r receives grants r dnatins frm, a lng-term care facility; (4) Has gverning bard members with any wnership, investment r emplyment interest in lng-term care facilities; 3 The regulatins and sectins f the Preamble included in this paper are an excerpt frm the Rule, highlighting the mst relevant prvisins. Fr cmplete infrmatin refer t the full text in the Rule. LTCOP Final Rule 6

7 (5) Prvides lng-term care t residents f lng-term care facilities, including the prvisin f persnnel fr lng-term care facilities r the peratin f prgrams which cntrl access t r services fr lng-term care facilities; (6) Prvides lng-term care crdinatin r case management fr residents f lng-term care facilities; (7) Sets reimbursement rates fr lng-term care facilities; (8) Prvides adult prtective services; (9) Is respnsible fr eligibility determinatins regarding Medicaid r ther public benefits fr residents f lng-term care facilities; (10) Cnducts preadmissin screening fr lng-term care facility placements; (11) Makes decisins regarding admissin r discharge f individuals t r frm lng-term care facilities; r (12) Prvides guardianship, cnservatrship r ther fiduciary r surrgate decisin-making services fr residents f lng-term care facilities. (b) Remving r remedying rganizatinal cnflicts. The State agency and the Ombudsman shall identify and take steps t remve r remedy cnflicts f interest between the Office and the State agency r ther agency carrying ut the Ombudsman prgram. (1) The Ombudsman shall identify rganizatinal cnflicts f interest in the Ombudsman prgram and describe steps taken t remve r remedy cnflicts within the annual reprt submitted t the Assistant Secretary thrugh the Natinal Ombudsman Reprting System. (6) Where lcal Ombudsman entities prvide Ombudsman services, the Ombudsman shall: (i) Prir t designating r renewing designatin, take reasnable steps t avid cnflicts f interest in any agency which may hst a lcal Ombudsman entity. (ii) Establish a prcess fr peridic review and identificatin f cnflicts f interest with the lcal Ombudsman entity in any agencies hsting a lcal Ombudsman entity, (iii) Require that such agencies disclse identified cnflicts f interest with the lcal Ombudsman entity and steps taken t remve r remedy cnflicts within such agency t the Ombudsman, (iv) Establish criteria fr apprval f steps taken t remedy r remve cnflicts in such agencies, and (v) Establish a prcess fr review f and criteria fr apprval f plans t remve r remedy cnflicts with the lcal Ombudsman entity in such agencies. (7) Failure f an agency hsting a lcal Ombudsman entity t disclse a cnflict t the Office r inability t adequately remve r remedy a cnflict shall cnstitute grunds fr refusal, suspensin r remval f designatin f the lcal Ombudsman entity by the Ombudsman. 7

8 Select Public Cmments and Respnses frm the Preamble t the LTCOP Rule Cmment: One cmmenter indicated that c-lcating care crdinatin services, prtective services, guardianship services, and a lcal Ombudsman entity within an AAA has been psitive and has strengthened wrking relatinships. Anther cmmenter indicated that c-lcatin f prtective services and a lcal Ombudsman entity has allwed fr greater advcacy and efficiency. (p. 7750) Respnse: We believe that psitive relatinships between the individuals wh wrk fr varius prgrams and agencies even thse which prvide ptentially cnflicting services can be extremely beneficial fr recipients. In fact, Ombudsman prgram crdinatin with many f these entities is required in the final rule at (h). Cmment: One cmmenter indicated that sme AAAs which rganizatinally huse lcal Ombudsman prgrams receive dnatins frm lng-term care facilities. Anther cmmenter indicated that sme AAAs are cunty agencies in cunties that wn, perate and/r manage lng-term care facilities and where the facility and the AAA reprt t the same leadership. (p. 7750) Respnse: We acknwledge that cnflicts f interest exist currently in sme State agencies and agencies hsting lcal Ombudsman entities. It is ur intent that the final rule will clarify the prcess by which State agencies and Ombudsmen can apprpriately carry ut their respnsibilities t identify, remedy and/r remve such cnflicts. Cmment: Several cmmenters interpreted the prpsed rule t prhibit the peratin f the Ombudsman prgram in a hst agency with ne r mre f the cnflicts enumerated in (a). (p. 7750) Respnse: We recgnize that sme States have rganizatinally lcated the Office and/r lcal Ombudsman entities inside agencies with duties which are identified as examples f cnflicting duties under the final rule. The final rule des nt prhibit the Office r lcal Ombudsman entities frm being hsted in the entities enumerated in (a), except fr thse cnflicts enumerated in (b)(3 4 ). Hwever, the final rule des require the State agency and Ombudsman t identify these cnflicts and take steps t remve r remedy the cnflicts. Further, the Ombudsman must reprt n these steps t AA. See (b)(1). Cmment: Several cmmenters recmmended appraches t remedying identified rganizatinal cnflicts Anther indicated that separating ut AAA staff functins culd help remedy cnflicts with a lcal Ombudsman entity. One cmmenter recmmended that all lcal Ombudsman entities have their wn brand identity (e.g., signage, statinary, business cards, utreach materials) separate frm the AAA t reduce perceived cnflicts f interest and cnfusin (including questins frm residents abut why representatives f the Office wear name tags with the AAA name n them). One cmment recmmended that the final rule include criteria fr steps that shuld be taken by the State agency as evidence f a prcess t remedy r remve cnflicts. The cmmenter nted that sme f these are included in the preamble t the prpsed rule and prpsed additinal criteria. (p. 7751) Respnse: We acknwledge that administrative structures, such as firewalls, may be apprpriate remedies in sme circumstances. AA plans t prvide additinal technical assistance t States as they develp plans t remve and remedy existing cnflicts f interest (b)(3): (i)is respnsible fr licensing, surveying r certifying lng-term care facilities; (ii)is an assciatin (r an affiliate f such an assciatin) f lng-term care facilities, r f any ther residential facilities fr lder individuals r individuals with disabilities; r (iii) has any wnership, peratinal r investment interest (represented by equity, debt, r ther financial relatinship) in a lng-term care facility. 8

9 Cmment: One cmmenter recmmended clarity n enfrcement actins that might be taken where cnflicts exist. (p. 7751) Respnse: Determinatins regarding rganizatinal placement f the Office and/r lcal Ombudsman entities may remve cnflicts f interest. Further, the final rule at (b)(7) prvides that failure t disclse a cnflict by an agency hsting a lcal Ombudsman entity is adequate grunds fr the Ombudsman t refuse, suspend, r remve the entity s designatin. In additin, the relatinship between AA and the State agency is ne f a grant awarding agency t a grantee. Federal regulatin prvides ptins fr HHS grant awarding agencies such as AA t respnd when a grantee fails t cmply with any term f an award. 45 CFR ACL/AA Prgram Instructins, Crrespndence, Reprts with Applicable Sectins/Cmments AA PI-81-8, p. 16: Criteria t be used in identifying, sliciting and selecting rganizatins r agencies t carry ut mbudsman functins n the lcal level include; (a) The prpsed unit r principal members f its staff r membership have n cnflicts f interest which wuld impair its ability t vigrusly and impartially investigate cmplaints in the interest f elderly lng-term care residents. Kurtz, B. & Otte, K, AA Letter t C. Crssdale, New Yrk, 02/23/15: A state unit n aging is prhibited frm entering int an arrangement which places a lcal Ombudsman entity within an rganizatin that wns r perates a lng-term care facility. Jsefina Carbnell, AA Letter t M.A. Haverland, Iwa, 03/12/05: These statutry prvisins make it clear that it wuld be a cnflict f interest fr an agency which licenses, certifies r enfrces requirements pertaining t institutinal lng-term care services t directly perate the Ombudsman Prgram. Bensn, B, AA Letter t F. Miller, Califrnia, 09/25/97:.. The nly special cnsideratins when cntracting directly with [lcal] mbudsman prgrams are t ensure that the hst agency has n cnflict f interest (i.e., des nt license facilities, wn r perate facilities, r administer lng-term care services fr residents f lng-term care facilities (such as Medicaid) McCarthy, J, AA Letter t N. Pser, Flrida, 03/22/93: The imprtance f aviding r reslving cnflict-f-interest issues fr individuals and the LTCOP is discussed. There must be n inapprpriate r imprper influence frm any individual r entity, regardless f the surce, which will impact n the bjectivity f the investigatin r utcme f cmplaints r the mbudsman s wrk t reslve majr issues This prject was supprted, in part, by grant number 90OM002, frm the U.S. Administratin fr Cmmunity Living, Department f Health and Human Services, Washingtn, D.C Grantees undertaking prjects under gvernment spnsrship are encuraged t express freely their findings and cnclusins. Pints f view r pinins d nt, therefre, necessarily represent fficial Administratin fr Cmmunity Living plicy. 9

PRIMERICA, INC. COMPENSATION COMMITTEE CHARTER Adopted on March 31, 2010 and revised as of August 15, 2018

PRIMERICA, INC. COMPENSATION COMMITTEE CHARTER Adpted n March 31, 2010 and revised as f August 15, 2018 Missin The Cmpensatin Cmmittee (the Cmmittee ) f Primerica, Inc. (the Cmpany ) is respnsible fr determining