Request By:
Karen Eades
Long-Term Care Ombudsman
275 East Main Street
Frankfort, Kentucky 40621
Opinion
Opinion By: Steven L. Beshear, Attorney General; Greg Holmes, Assistant Attorney General
This is in response to your letter to the Attorney General in which you seek advice concerning state and federal regulation of nursing homes. Specifically, your question is whether the proposed administrative regulations relating to access to nursing homes are consistent with the federal guidelines relating to long-term care ombudsman.
The proposed amendments are as follows:
900 KAR 2:010 Section 1(3): In the case of the long-term care ombudsman, "designated representative" means an individual, association or corporation authorized in writing to act as agent for certain specified purposes in behalf of the Cabinet for Human Resources.
Since the indicated portions of this proposed regulation appears to require the "designated representative" of the ombudsman to be authorized in writing by the Cabinet for Human Resources rather than the State Ombudsman, the question is whether the proposed regulation violates the purpose and intent of the federal regulatory scheme and Kentucky's law relating to access and visitation.
Federal regulations, specifically 45 CFR 1321.43(c), which define the functions of the ombudsman program, envision a program with relatively broad authority to investigate and resolve complaints by older persons in nursing homes and promote their general welfare through monitoring of laws and regulations and assisting sub-state programs engaged in resolution of the problems of these older persons.
The Federal Administration on Aging, in its memorandum of January 19, 1981 entitled "State Agencies Administering Plans Under Title III The Older Americans Act of 1965, As Amended, provides as follows:
D-4(c) Geographic Coverage: "The Long Term Care Ombudsman may identify and designate such state programs to assist in the functional aspects of the program."
F-Substate Programs: Designated local ombudsman programs as authorized by the state long-term care ombudsman. "
E-1-C Program Structure and Function: "The state agency must delegate sufficient authority to the State Ombudsman to enable him or her to carry out activities necessary and appropriate to meet the requirements of the Act."
E-2 Responsibilities and Duties of the State Long-Term Ombudsman: "The State Long-fTerm Care Ombudsman must develop, expand, and administer a statewide system to investigate and resolve complaints in a timely manner including coordinating with the state agency where appropriate, the designation, appointment or recognition of those persons or organizations on a state or local level who will be active in complaint investigation and resolution."
The manifest intent of the above federal regulations and guidelines is that the State Ombudsman, while established by the state agency and coordinating its activities therewith, is to be granted considerable independence in the designation of local "persons or organizations" to carry out these functions. It is clear that these functions were intended to be independent and parallel to the regulatory authority of the state agency.
Thus, the proposed regulation would contravene the above federal regulations and guidelines if the designated representative of the ombudsman is required to be authorized in writing by the Cabinet rather than the ombudsman.
Further, in 1982 the Kentucky legislature gave unrestricted access to the ombudsman or the ombudsman's designee. KRS 216.540(5). This law gives independent and concurrent access to representatives or employees of the Cabinet and local government entities having regulatory responsibilities. Thus, the ombudsman designee is viewed as part of the ombudsman program with independent and concurrent right of access along with agents of the Cabinet.
It is therefore the view of this office that the proposed regulation 900 KAR 2:010 Section 1(3), to the extent that it shifts appointing authority to select "designated representatives" from the State Ombudsman to the Cabinet for Human Resources, contravenes the plain intent of applicable state law and federal guidelines and is therefore inappropriate.