Reauthorization of the Older Americans Act

"Older Americans Act Amendments of 2000"
H.R. 782 and S. 1536

Prepared by Hollis Turnham, Esquire
Center Consultant

November 2000

Supported by the U.S. Administration on Aging

After more than six years of federal congressional hearings, markups, debates, and votes, the federal Older Americans Act (OAA) was passed by the 106^th Congress on Thursday, October 26, 2000, and signed by President Bill Clinton on November 13, 2000.^[1] The OAA is reauthorized through fiscal year (FY) 2005. The bill signed by the President was H.R. 782 but the majority of its drafting was done in the United States Senate under S. 1536. ^[2] (Language added by H.R. 782 in bold.)

This document is designed to be a simple first look at the reauthorized OAA for state and local long-term care Ombudsman programs. More detailed information will be provided at a later date.

Important Ombudsman program principles and concepts have not changed and remain within this reauthorized Act. Very few Ombudsman provisions have been deleted. Some provisions have been added. Many Title III provisions have been moved and renumbered within a given part or subsection. Dates, particularly those related to financial provisions, have been updated to FY year 2000. This document focuses on the important changes specific to the Long-Term Care Ombudsman Program (LTCOP) from the 1992 version of the Act. A detailed understanding of the 1992 Act and LTCOP principles by the reader is assumed.

In response to concerns raised, Congress has added language to specify one kind of prohibited conflict of interest...financial conflicts. OAA section 712(a)(5)(C)(ii) now reads:

Entities eligible to be designated as local Ombudsman entities, and individuals eligible to be designated as representatives of such entities, shall "be free of conflicts of interests and not stand to gain financially through an action or potential action brought on behalf of individuals the Ombudsman services."

The new OAA language will require an examination of program procedures related to screening and evaluation of all Ombudsman representatives. The language directs programs to examine the financial loyalties of all its designated representatives to insure that any competing loyalties do not influence or override the program's and representatives duties to the residents. Standards and expectations should be clarified so that non-Ombudsman employment or outside business ventures will be examined to insure that conflicts in loyalty, judgment or objectivity are not present or perceived.

Congress has added language requiring coordination with law enforcement and the courts. Most Ombudsman programs already have such relationships. A new section 712(h)(8) of the OAA will now read:

The State shall require the Office to "coordinate services with State and local law enforcement agencies and courts of competent jurisdiction."

Within the 106^th Congress, many House members have been reluctant to set specific appropriation amounts in any authorizing legislation. Historically in OAA and many other acts, the authorization levels have been substantially higher than amounts actually appropriated. For example, the Ombudsman program was authorized at $40 million. With few exceptions^[3], this OAA reauthorization changes the authorization levels for all programs to "such sums as may be necessary for" each fiscal year of the five (5) year authorization. Knowledgeable folks believe this change will have no affect on executive or congressional appropriations processes or outcomes. .

The new Act updates the current requirements for funding to FY 2000 levels in all places in Titles III and VII for both state and local Ombudsman programs. Other changes are made to insure that increases in federal funds add to and do not replace state or local funding. Absent reductions in state or federally appropriated amounts, the totality of these new provisions mean the LTCOP should continue to see annual funding from the state unit on aging and each AAA at the same levels as FY 2000 and increases in funding when LTCOP appropriations within Title VII increase in FY 2001 through 2005. (Note to readers: This issue is very complex. Most Ombudsman programs have extremely complicated funding schemes involving both state and federal funds from various titles.)

Provisions in Title II requiring the Assistant Secretary "to establish and operate...by grant or contract" the National Ombudsman Resource Center (NORC) remains substantively unchanged and updates the funding requirements to same amounts spent in fiscal year 2000.

Unlike previous provisions of the OAA and its regulations, it is now clear that each LTCOP and every other provider of aging services is to solicit voluntary contributions by offering "an opportunity" to donate. Section 315(b). The method of solicitation must be "noncoercive" and will be determined in consultation with the AAA, other service providers, and older individuals. Services cannot be denied to any elder who does not make a donation. The Act contains a number of other important requirements and protections related to voluntary contributions. These OAA provisions clearly allow Ombudsman entities to solicit voluntary contributions and to retain those donations to expand services.

The Act specifically prohibits cost sharing for Ombudsman and all Title VII services. Cost sharing is a process by which non-low-income elders will be asked to pay for a share of the cost of their federally funded services. Like voluntary contributions, services cannot be denied to any elder who does not make a donation. (Note to reader: These new concepts and provisions are also quite complex. Much more detailed information will be forthcoming.)

The creation of the National Family Caregiver Support Program is the most important addition to the OAA for long-term care consumers. Title III, Part E, Sections 371-376. The Act now formally recognizes and attempts to respond to the millions of family caregivers who provide most of the long-term care services in the United States. With an initial authorization level of $130 million,^[4] states and AAAs are charged with designing "multifaceted systems of support services for family caregivers and grandparents" caring for children or stepchildren. Section 373(a).

"Family caregivers" are defined to include "an adult family member or another individual who is an informal provider of in-home and community care to an older individual." Section 372(2). "In-home services" are defined in section 102(19) to include homemaking, home health aides, chore maintenance, personal care services, other services defined by the state or AAA. Many long term care facility residents have family caregivers who are providing many "in-home services" such as laundry, bathing, feeding and a broad range of other personal care services fitting the OAA definition of "in-home services." Therefore, the Congressional mandated family caregiver support program can and should address the needs of the family caregivers for long- term care facility residents.

To get a copy of H.R. 782 and all other relevant legislative documents, go to the federal Library of Congress (LOC) website, www.loc.gov. Then, click on "Thomas" on the left side of the screen. Thomas is the LOC's online research library for federal legislation. Then, go to the "bill tex" section for the 106^th Congress. Thomas will then offer a section for "bills." Once there, you will see five (5) versions of H. R. 782. Look for the full text of the last "enrolled version" of H.R. 782. You can also view all other relevant legislative documents such as the Senate and House Committee reports, amendments, hearing documents, etc. from the same site. Again, H.R. 782, as introduced and reported by House Committee is a very different bill from the one passed by the House and Senate and signed by the President. When reviewing House of Representative documents be very careful to insure that the document is referring to H. R. 782 as enacted.

^[1]References to the Act in this document are to the Public Law version of the OAA and not the United States Code. The Public Law version is the one most likely to be printed in a separate booklet format for wide distribution within the network.

^[2]H.R. 782 as introduced and reported by Committee is a very different bill from the one passed by the House and Senate and signed by the President. When reviewing House of Representative documents be very careful to insure that the document is referring to H. R. 782 as enacted.

^[3]Only the newly authorized National Family Caregiver Support programs (in both Title III and Title VI) and Title V are given specific dollar authorization levels.

^[4]The $130 million authorization level is a combination of state operated family caregiver programs under Title III ($125 million) and those operated through tribal organizations under Title VI ($5 million). At this time, the FY 2001 Labor and Health and Human Services appropriations has not yet been approved by the 106^th Congress. Hopes are high that the full $130 million will be appropriated in FY 2001.

The Ombudsman Resource Center thanks Hollis Turnham, Esquire for her timely analysis of the newly enacted Older Americans Act in response to requests from state and local ombudsmen who wanted to know how the act impacted their programs. The Center also thanks Sue Wheaton, AoA Ombudsman Program Specialist, for her assistance on this and many other Center tasks.

Hollis Turnham is a nationally known advocate for elderly Americans. While holding the John Heinz Senate Fellowship in Aging, she worked on the successful reauthorization of the Older Americans Act and staffed Senator James M. Jeffords' (R-VT) membership on the Senate Special Committee on Aging. Ms. Turnham served as Michigan's Long-Term Care Ombudsman with Citizens for Better Care for almost 16 years earning commendations for a quality program for AARP and the Office of Inspector General for the Department of Health and Human Services. During her tenure as the state LTC Ombudsman, Ms. Turnham was also a member of the Institute of Medicine's Committee that evaluated the LTC Ombudsman program nationally for the federal Administration on Aging. As an attorney, Ms. Turnham has also chaired the Elder Law and Advocacy section of the State Bar of Michigan and served on numerous state councils and task forces examining the legal rights of elders.

This document was supported, in part, by grant No. 90AM2139 from the Administration on Aging, Department of Health and Human Services. Grantees undertaking projects under government sponsorship are encouraged to express freely their findings and conclusions. Points of view or opinions do not, therefore, necessarily represent official Administration on Aging policy.