Proposed Rule2023-12829
Older Americans Act: Grants to State and Community Programs on Aging; Grants to Indian Tribes for Support and Nutrition Services; Grants for Supportive and Nutritional Services to Older Hawaiian Natives; and Allotments for Vulnerable Elder Rights Protection Activities
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
June 16, 2023
Issuing agencies
Health and Human Services DepartmentCommunity Living Administration
Abstract
The Administration for Community Living (ACL) within The Department of Health and Human Services ("the Department" or HHS) is issuing this notice of proposed rulemaking (NPRM) to modernize the implementing regulations of the Older Americans Act of 1965 ("the Act" or OAA), which have not been substantially altered since their promulgation in 1988. These changes advance the policy goals of the Older Americans Act as articulated by Congress, including equity in service delivery, accountability for funds expended, and clarity of administration for the Administration for Community Living and its grantees. Our proposals will ultimately facilitate improved service delivery and enhanced benefits for OAA participants, particularly those in greatest economic need and greatest social need consistent with the statute.
Full Text
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<title>Federal Register, Volume 88 Issue 116 (Friday, June 16, 2023)</title>
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[Federal Register Volume 88, Number 116 (Friday, June 16, 2023)]
[Proposed Rules]
[Pages 39568-39650]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-12829]
[[Page 39567]]
Vol. 88
Friday,
No. 116
June 16, 2023
Part III
Department of Health and Human Services
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Administration for Community Living
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45 CFR Parts 1321, 1322, 1323, et al.
Older Americans Act: Grants to State and Community Programs on Aging;
Grants to Indian Tribes for Support and Nutrition Services; Grants for
Supportive and Nutritional Services to Older Hawaiian Natives; and
Allotments for Vulnerable Elder Rights Protection Activities; Proposed
Rule
Federal Register / Vol. 88 , No. 116 / Friday, June 16, 2023 /
Proposed Rules
[[Page 39568]]
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DEPARTMENT OF HEALTH AND HUMAN SERVICES
Administration for Community Living
45 CFR Parts 1321, 1322, 1323, and 1324
RIN 0985-AA17
Older Americans Act: Grants to State and Community Programs on
Aging; Grants to Indian Tribes for Support and Nutrition Services;
Grants for Supportive and Nutritional Services to Older Hawaiian
Natives; and Allotments for Vulnerable Elder Rights Protection
Activities
AGENCY: Administration for Community Living (ACL), Department of Health
and Human Services (HHS).
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Administration for Community Living (ACL) within The
Department of Health and Human Services (``the Department'' or HHS) is
issuing this notice of proposed rulemaking (NPRM) to modernize the
implementing regulations of the Older Americans Act of 1965 (``the
Act'' or OAA), which have not been substantially altered since their
promulgation in 1988. These changes advance the policy goals of the
Older Americans Act as articulated by Congress, including equity in
service delivery, accountability for funds expended, and clarity of
administration for the Administration for Community Living and its
grantees. Our proposals will ultimately facilitate improved service
delivery and enhanced benefits for OAA participants, particularly those
in greatest economic need and greatest social need consistent with the
statute.
DATES: To be assured consideration, comments must be received at the
address provided below, no later than August 15, 2023.
ADDRESSES: You may submit comments, including mass comment submissions,
to this proposed rule, identified by RIN Number 0985-AA17, by any of
the following methods:
1. Electronically. You may submit electronic comments on this
regulation to <a href="http://www.regulations.gov">http://www.regulations.gov</a>. Follow the ``Submit a
comment'' instructions.
2. Regular, Express, or Overnight Mail: You may mail written
comments to the following address ONLY:
Administration on Aging, Administration for Community Living,
Department of Health and Human Services, Attention: ACL-AA17-P, 330 C
Street SW, Washington, DC 20201.
Do not include any personally identifiable information (such as
name, address, or other contact information) or confidential business
information that you do not want publicly disclosed. All comments may
be posted without change to content to <a href="https://www.regulations.gov">https://www.regulations.gov</a> and
can be retrieved by most internet search engines. No deletions,
modifications, or redactions will be made to comments received.
We will consider all comments received or officially postmarked by
the methods and due date specified above, but because of the large
number of public comments we normally receive on Federal Register
documents, we are not able to provide individual acknowledgements of
receipt. Please allow sufficient time for mailed comments to be timely
received in the event of delivery or security delays. Electronic
comments with attachments should be in Microsoft Word or Portable
Document Format (PDF).
Please note that comments submitted by fax or email, and those
submitted or postmarked after the comment period, will not be accepted.
Inspection of Public Comments: All comments received before the
close of the comment period will be available for viewing by the
public, including personally identifiable or confidential business
information that is included in a comment. You may wish to consider
limiting the amount of personal information that you provide in any
voluntary public comment submission you make. HHS may withhold
information provided in comments from public viewing that it determines
may impact the privacy of an individual or is offensive. For additional
information, please read the Privacy Act notice that is available via
the link in the footer of <a href="https://www.regulations.gov">https://www.regulations.gov</a>. Follow the
search instructions on that website to view the public comments.
FOR FURTHER INFORMATION CONTACT: Amy Wiatr-Rodriguez, Director of
Regional Operations, Administration for Community Living, Department of
Health and Human Services, 330 C Street SW, Washington, DC 20201.
Email: <a href="/cdn-cgi/l/email-protection#86e7ebffa8f1efe7f2f4abf4e9e2f4efe1f3e3fcc6e7e5eaa8eeeef5a8e1e9f0"><span class="__cf_email__" data-cfemail="fd9c9084d38a949c898fd08f92998f949a889887bd9c9e91d395958ed39a928b">[email protected]</span></a>, Telephone: (312) 938-9858.
Assistance to Individuals with Disabilities in Reviewing the Rulemaking
Record: Upon request, the Department will provide an accommodation or
auxiliary aid to an individual with a disability who needs assistance
to review the comments or other documents in the public rulemaking
record for the proposed regulations. To schedule an appointment for
this type of accommodation or auxiliary aid, please call (312) 938-9858
or email <a href="/cdn-cgi/l/email-protection#4524283c6b322c24313768372a21372c2230203f052426296b2d2d366b222a33"><span class="__cf_email__" data-cfemail="e2838f9bcc958b839690cf908d86908b85978798a283818ecc8a8a91cc858d94">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Background
II. Statutory and Regulatory History
III. Reasons for the Proposed Rulemaking
VI. Grants to State and Community Programs on Aging
A. Provisions Revised To Reflect Statutory Changes and/or for
Clarity
Subpart A--Introduction
1. Sec. 1321.1 Basis and Purpose of This Part
2. Sec. 1321.3 Definitions
Subpart B--State Agency Responsibilities
1. Sec. 1321.5 Mission of the State Agency
2. Sec. 1321.7 Organization and Staffing of the State Agency
3. Sec. 1321.9 State Agency Policies and Procedures
4. Sec. 1321.11 Advocacy Responsibilities
5. Sec. 1321.13 Designation of and Designation Changes to
Planning and Service Areas
6. Sec. 1321.15 Interstate Planning and Service Area
7. Sec. 1321.17 Appeal to Departmental Appeals Board on
Planning and Service Area Designation
8. Sec. 1321.19 Designation of and Designation Changes to Area
Agencies
9. Sec. 1321.21 Withdrawal of Area Agency Designation
10. Sec. 1321.25 Duration, Format, and Effective Date of the
State Plan
11. Sec. 1321.27 Content of State Plan
12. Sec. 1321.29 Public Participation
13. Sec. 1321.31 Amendments to the State Plan
14. Sec. 1321.33 Submission of the State Plan or Plan Amendment
to the Assistant Secretary for Aging for Approval
15. Sec. 1321.35 Notification of State Plan or State Plan
Amendment Approval or Disapproval for Changes Requiring Assistant
Secretary for Aging Approval
16. Sec. 1321.39 Appeals to the Departmental Appeals Board
Regarding State Plan on Aging
17. Sec. 1321.41 When a Disapproval Decision Is Effective
18. Sec. 1321.43 How the State May Appeal the Departmental
Appeals Board's Decision
19. Sec. 1321.45 How the Assistant Secretary for Aging May
Reallot the State's Withheld Payments
20. Sec. 1321.49 Intrastate Funding Formula
21. Sec. 1321.51 Single Planning and Service Area States
Subpart C--Area Agency Responsibilities
1. Sec. 1321.55 Mission of the Area Agency
2. Sec. 1321.57 Organization and Staffing of the Area Agency
3. Sec. 1321.61 Advocacy Responsibilities of the Area Agency
4. Sec. 1321.63 Area Agency Advisory Council
5. Sec. 1321.65 Submission of an Area Plan and Plan Amendments
to the State for Approval
Subpart D--Service Requirements
1. Sec. 1321.71 Purpose of Services Allotments Under Title III
[[Page 39569]]
2. Sec. 1321.73 Policies and Procedures
3. Sec. 1321.75 Confidentiality and Disclosure of Information
4. Sec. 1321.79 Responsibilities of Service Providers Under
State and Area Plans
5. Sec. 1321.83 Client and Service Priority
6. Sec. 1321.93 Legal Assistance
B. New Provisions Added To Clarify Responsibilities and
Requirements Under Grants to State and Community Programs on Aging
Subpart B--State Agency Responsibilities
1. Sec. 1321.23 Appeal to Departmental Appeals Board on Area
Agency on Aging Withdrawal of Designation
2. Sec. 1321.37 Notification of State Plan or State Plan
Amendment Receipt for Changes Not Requiring Assistant Secretary for
Aging Approval
3. Sec. 1321.47 Conflicts of Interest Policies and Procedures
for State Agencies
4. Sec. 1321.53 State Agency Title III and Title VI
Coordination Responsibilities
Subpart C--Area Agency Responsibilities
1. Sec. 1321.59 Area Agency Policies and Procedures
2. Sec. 1321.67 Conflicts of Interest Policies and Procedures
for Area Agencies on Aging
3. Sec. 1321.69 Area Agency on Aging Title III and Title VI
Coordination Responsibilities
Subpart D--Service Requirements
1. Sec. 1321.77 Purpose of Services--Person- and Family-
Centered, Trauma Informed
2. Sec. 1321.81 Client Eligibility for Participation
3. Sec. 1321.85 Supportive Services
4. Sec. 1321.87 Nutrition Services
5. Sec. 1321.89 Evidence-Based Disease Prevention and Health
Promotion Services
6. Sec. 1321.91 Family Caregiver Support Services
7. Sec. 1321.95 Service Provider Title III and Title VI
Coordination Responsibilities
Subpart E--Emergency & Disaster Requirements
1. Sec. 1321.97 Coordination With State, Tribal, and Local
Emergency Management
2. Sec. 1321.99 Setting Aside Funds To Address Disasters
3. Sec. 1321.101 Flexibilities Under a Major Disaster
Declaration
4. Sec. 1321.103 Title III and Title VI Coordination for
Emergency and Disaster Preparedness
5. Sec. 1321.105 Modification During Major Disaster Declaration
or Public Health Emergency
C. Deleted Provisions
Subpart A--Introduction
1. Sec. 1321.5 Applicability of Other Regulations
Subpart D--Service Requirements
1. Sec. 1321.75 Licenses and Safety
V. Grants to Indian Tribes for Support and Nutrition Services
A. Provisions Revised To Reflect Statutory Changes and/or for
Clarity
Subpart A--Introduction
1. Sec. 1322.1 Basis and Purpose of This Part
2. Sec. 1322.3 Definitions
Subpart B--Application
1. Sec. 1322.5 Application Requirements
2. Sec. 1322.7 Application Approval
3. Sec. 1322.9 Hearing Procedures
Subpart C--Service Requirements
1. Sec. 1322.13 Policies and Procedures
2. Sec. 1322.15 Confidentiality and Disclosure of Information
3. Sec. 1322.25 Supportive Services
4. Sec. 1322.27 Nutrition Services
B. New Provisions Added To Clarify Responsibilities and
Requirements Under Grants to Indian Tribes and Native Hawaiian
Grantees for Supportive, Nutrition, and Caregiver Services
Subpart C--Service Requirements
1. Sec. 1322.11 Purpose of Services Allotments Under Title VI
2. Sec. 1322.17 Purpose of Services--Person- and Family-
Centered, Trauma Informed
3. Sec. 1322.19 Responsibilities of Service Providers
4. Sec. 1322.21 Client Eligibility for Participation
5. Sec. 1322.23 Client and Service Priority
6. Sec. 1322.29 Family Caregiver Support Services
7. Sec. 1322.31 Title VI and Title III Coordination
Subpart D--Emergency & Disaster Requirements
1. Sec. 1322.33 Coordination With Tribal, State, and Local
Emergency Management
2. Sec. 1322.35 Flexibilities Under a Major Disaster
Declaration
3. Sec. 1322.37 Title VI and Title III Coordination for
Emergency Preparedness
4. Sec. 1322.39 Modification During Major Disaster Declaration
or Public Health Emergency
C. Deleted Provisions
1. Sec. 1322.5 Applicability of Other Regulations
VI. Grants for Supportive and Nutritional Services to Older Hawaiian
Natives
A. Deleted Provisions
1. Sec. 1323 Grants for Supportive and Nutritional Services to
Older Hawaiian Natives
VII. Allotments for Vulnerable Elder Rights Protection Activities
A. Provisions Revised To Reflect Statutory Changes and/or for
Clarity
Subpart A--State Long-Term Care Ombudsman Program
1. Sec. 1324.1 Definitions
2. Sec. 1324.11 Establishment of the Office of the State Long-
Term Care Ombudsman
3. Sec. 1324.13 Functions and Responsibilities of the State
Long-Term Care Ombudsman
4. Sec. 1324.15 State Agency Responsibilities Related to the
Ombudsman Program
5. Sec. 1324.17 Responsibilities of Agencies Hosting Local
Ombudsman Entities
6. Sec. 1324.19 Duties of the Representatives of the Office
7. Sec. 1324.21 Conflicts of Interest
B. New Provisions Added To Clarify Responsibilities and
Requirements Under Allotments for Vulnerable Elder Rights Protection
Activities
Subpart B--Programs for Prevention of Elder Abuse, Neglect, and
Exploitation
1. Sec. 1324.201 Purpose of Services Allotments Under Title
VII--Chapter 3
Subpart C--State Legal Assistance Development Program
1. Sec. 1324.301 Definitions
2. Sec. 1324.303 Legal Assistance Developer
VIII. Required Regulatory Analyses
A. Regulatory Impact Analysis (Executive Orders 12866 and 13563)
B. Regulatory Flexibility Act
C. Executive Order 13132 (Federalism)
D. Executive Order 13175 (Consultation and Coordination With
Indian Tribal Governments)
E. Unfunded Mandates Reform Act of 1995
F. Plain Language in Government Writing
G. Paperwork Reduction Act (PRA)
I. Background
Congress passed the Older Americans Act (``the Act'' or OAA) in
1965 to expand and enhance community social services for older
persons.\1\ The original legislation established authority for grants
to States for community planning and social services, research and
development projects, and personnel training in the field of aging.
Subsequent reauthorizations expanded and enhanced the reach of the Act,
including through the authorization of the Long-Term Care Ombudsman
Program (Ombudsman program). The Act created the Administration on
Aging (AoA) within the Department of Health, Education and Welfare, now
the Department of Health and Human Services (HHS), as the principal
agency designated to carry out the provisions of the OAA and serve as
Federal focal point on matters concerning older persons.\2\ It
designated a Commissioner on Aging, now Assistant Secretary for Aging,
to lead the activities of AoA and administer the OAA.\3\ Since 2012,
AoA has been housed in the Administration for Community Living (ACL)
within HHS.\4\
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\1\ Public Law 89-73, 42 U.S.C. 3001 et. seq.
\2\ Title II. of the OAA.
\3\ Sec. 201 of the OAA; Title V of the Act added in the 1978
reauthorization of the OAA is administered by the Dep't of Labor.
\4\ 80 FR. 31389 (June 2, 2015).
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Title III of the OAA authorizes grants to State agencies on aging
(State agencies), who in turn provide funding to area agencies on aging
(AAAs) to serve as advocates on behalf of older persons and create
comprehensive and coordinated community-based continuums of services
and supports.\5\ In 2022, the national aging network was comprised of
56 State agencies (including the District of Columbia and five
territories), over 600 AAAs, and over 20,000 local service providers,
in addition to one Native Hawaiian organization and 281 Tribal
[[Page 39570]]
organizations, representing 400 Indian Tribes.\6\
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\5\ Title II and Title III of the OAA.
\6\ The Congressional Research Service, Older Americans Act:
Overview and Funding (June 23, 2022) R43414 (<a href="http://congress.gov">congress.gov</a>) (last
visited Jan. 18, 2023).
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Title III authorizes the largest OAA programs by population served
and Federal funds expended as administered by ACL. These include
supportive, nutrition, evidence-based disease prevention and health
promotion, caregiver, legal, and other services.\7\ Title III programs
served 10.9 million older persons in 2019 (the most recent year for
which data is available).\8\ Title III spending accounted for nearly
three quarters of the $2.177 billion OAA FY 2022 budget \9\ and funding
for these programs is based on a statutory formula that determines
yearly allocations to individual territories and States.\10\
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\7\ Title III of the OAA.
\8\ Supra at 6.
\9\ Supra at 6.
\10\ ACL, FY 2022 OAA Title III Annual Grant Awards (without
transfers) (last visited Jan. 18, 2023).
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Title III services are available to persons aged 60 and older;
however, they are prioritized to those with the greatest economic need
and greatest social need, particularly low-income and minority
individuals, older persons with limited English proficiency (LEP),
older persons residing in rural areas, and older persons with
disabilities.\11\
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\11\ Title III of the OAA.
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First included as a part of the 1978 reauthorization of the Act,
Title VI authorizes funds for nutrition, supportive, and caregiver
services to older Native Americans. The purpose of Title VI programs is
to support the independence and well-being of tribal elders and
caregivers living in their communities consistent with locally
determined needs. ACL awards funding directly to Tribal organizations,
including Native Alaskan organizations, and a not-for-profit group
representing Native Hawaiians. To be eligible for funding, a Tribal
organization must represent at least 50 Native Americans aged 60 and
older. In FY2021, grants were awarded to 282 Tribal organizations
representing over 400 Indian Tribes and villages, and one organization
serving Native Hawaiian elders.\12\
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\12\ Fiscal Year 2023 Justification of Estimates for
Appropriations Committees.
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Title VII authorizes the Ombudsman program, programs for Elder
Abuse, Neglect, and Exploitation Prevention, and a requirement for
States to provide a State Legal Assistance Developer.\13\ States'
Ombudsman programs investigate and resolve complaints related to the
health, safety, welfare, and rights of individuals who live in long-
term care facilities. Begun in 1972 as a demonstration program,
Ombudsman programs today exist in all States, the District of Columbia,
Puerto Rico, and Guam, under the authorization of the Act. These States
and territories have an Office of the State Long-Term Care Ombudsman
(the Office), headed by a full-time State Long-Term Care Ombudsman (the
Ombudsman). In FY 2022, the program had a budget of $19.9 million. In
FY 2021, the program handled more than 164,000 complaints and provided
more than 624,000 instances of information and assistance to
individuals and long-term care facilities.\14\ Title VII also
authorizes grants to State agencies for program activities aimed at
preventing and remedying elder abuse, neglect, and exploitation.
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\13\ Title VII of the OAA.
\14\ Supra at 6; ACL, AGing Integrated Database (AGID), National
Ombudsman Reporting System (NORS), Data at a Glance, (last visited
Jan. 18, 2023); ACL, Fiscal Year 2023 Justification of Estimates for
Appropriations Committees, p. 132.
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II. Statutory and Regulatory History
This proposed regulation is published under the authority granted
to the Assistant Secretary for Aging by the Older Americans Act of
1965, Public Law 89-73, 79 Stat. 218 (1965), as amended through
Supporting Older Americans Act of 2020, Public Law 116-131, 134 Stat.
240 (2020), sections 201(e)(3), 305(a)(1), 306(d)(1), 307(a),
307(d)(3), 331(a), 614(a), 624(a) and 712-713 (42 U.S.C. 3011(e), 42
U.S.C. 3025, 42 U.S.C. 3026(d), 42 U.S.C. 3027(a), 42 U.S.C. 3027(a),
3027(d), 42 U.S.C. 3057e, 42 U.S.C. 3057j, and 3058g-3058h,
respectively). These provisions authorize the Assistant Secretary for
Aging to prescribe regulations regarding designation of State agency
activities; development and approval of State plans on aging; and
funding for supportive, nutrition, evidence-based disease prevention
and health promotion, family caregiver support, and legal services
under Title III of the Act; funding for Indian Tribes, Tribal
organizations, and a Hawaiian Native grantee to serve Hawaiian Native
and tribal elders and family caregivers under Title VI of the Act; and
allotments for Vulnerable Elder Rights Protection Activities, including
the Long-Term Care Ombudsman Program under Title VII of the Act.
The OAA was passed in 1965 and vested authority for carrying out
the purposes of the Act, including through the issuance of regulation,
in the Assistant Secretary for Aging (then the Commissioner for Aging).
Since its initial passage, the OAA has been amended a total of eighteen
times. Current regulations for programs authorized under the Act date
from 1988.\15\ Title III, except regarding the Ombudsman program, and
Title VI implementing regulations have not been revised since that
time, while Title VII regulations 45 CFR part 1324 Allotments for
Vulnerable Elder Rights Protection Activities, Subpart A and portions
of 45 CFR part 1321--Grants to State and Community Programs on Aging
regarding the Ombudsman program were published in 2015.\16\
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\15\ 53 FR 33758 (Aug. 31, 1988).
\16\ 80 FR 7704 (Feb. 11, 2015).
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There have been substantial statutory changes since 1988, as
detailed by the Congressional Research Service in several summary
publications.\17\ Title VII: State Long-Term Care Ombudsman and
Vulnerable Elder Rights Protection was added to the Act by the 1992
Amendments (Pub. L. 102-375, 42 U.S.C. 3058g-3058i).\18\ It
consolidated and expanded existing programs focused on protecting the
rights of older persons. Title VII incorporated separate authorizations
of appropriations for the Ombudsman program; the program for the
prevention of elder abuse, neglect, and exploitation; elder rights and
legal assistance development program; and outreach, counseling, and
assistance for insurance and public benefit programs. The 1992
amendments also strengthened requirements related to focusing Title III
funding and services on populations in greatest need with particular
attention to older low-income minority individuals. Other elements of
the 1992 amendments authorized programs for assistance to caregivers of
the frail elderly, clarified the role of Title III agencies in working
with the private sector, and required improvements in AoA data
collection.
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\17\ Congressional Research Service, Older Americans Act: A 2020
Reauthorization (July 1, 2020) (last visited Jan. 18, 2023); Supra
at Note 6.
\18\ 42 U.S.C. 3058g.
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The National Family Caregiver Support Program under Title III and
Native American Caregiver Support Program under Title VI were
authorized by the 2000 amendments (Pub. L.106-501), which also
permitted States to impose cost-sharing, subject to limitations, for
some Title III services certain older persons receive while retaining
authority for voluntary contributions towards the costs of
services.\19\ The 2006 amendments (Pub. L. 109-365) authorized the
Assistant Secretary for Aging to designate an individual within AoA to
be responsible
[[Page 39571]]
for prevention of elder abuse, neglect, and exploitation and to
coordinate Federal elder justice activities.\20\ In addition, the 2006
amendments expanded the reach of Aging and Disability Resource Centers
(ADRCs), brought increased attention to services and supports related
to mental health and mental disorders, required States to conduct
increased planning efforts related to the growing number of older
people in coming decades, and focused attention on the needs of older
people with LEP and those at risk of institutional placement.\21\
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\19\ OAA Sec. 316, 42 U.S.C. 3030p, 3030q, 3030r; OAA Sec. 631,
42 U.S.C. 3057k-11.
\20\ OAA Sec. 201, 42 U.S.C. 3012.
\21\ 42 U.S.C. 3002, 3012, 3025, 3032k.
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The 2016 amendments (Pub. L. 114-144) provided additional
flexibility to States, AAAs, and social services providers in
addressing the modernization of senior centers,\22\ falls
prevention,\23\ and behavioral health screening,\24\ and codified
existing practices, such as requiring ``evidence-based'' \25\ disease
prevention and health promotion services. For the Ombudsman program,
they clarified conflicts of interest provisions,\26\ strengthened
confidentiality and Ombudsman training requirements,\27\ and improved
resident access to representatives of the Office.\28\ They addressed
coordination among ADRCs \29\ and other home and community-based
service (HCBS) \30\ organizations providing information and referrals.
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\22\ 42 U.S.C. 3012
\23\ 42 U.S.C. 3030d.
\24\ Ibid.
\25\ 42 U.S.C. 3030m; 3030s.
\26\ 42 U.S.C. 3058g.
\27\ 42 U.S.C. 3012.
\28\ 42 U.S.C. 3058g.
\29\ 42 U.S.C. 3012.
\30\ 42 U.S.C. 3012, 3025, 3026.
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The Supporting Older Americans Act of 2020 (Pub. L. 116-131) added
new definitions, including person-centered and trauma-informed.\31\ The
legislation amended the Act to address a range of disease prevention
and health promotion activities, such as chronic disease self-
management and falls prevention,\32\ as well as addressing the negative
effects of social isolation among older individuals.\33\ Congress
focused on other reauthorization issues as well, including changes to
nutrition services programs and to programs that provide support to
family caregivers.
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\31\ Sec. 102, 42 U.S.C. 3002.
\32\ Sec. 303, 42 U.S.C. 3032.
\33\ Sec 110, 42 U.S.C. 3002; Sec. 115 42 U.S.C. 3012(a); Sec.
126; Sec. 213, 42 U.S.C. 3030d; Sec. 304, 42 U.S.C. 3032(a).
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III. Reasons for the Proposed Rulemaking
The OAA has been amended seven times since 1988 and twice since
2015. Other than Title VII regulations 45 CFR part 1324 Allotments for
Vulnerable Elder Rights Protection Activities, Subpart A and portions
of 45 CFR part 1321--Grants to State and Community Programs on Aging
regarding the Ombudsman program which were promulgated in 2015, these
OAA regulations have not been amended since 1988. As a result, the OAA
statute and regulations are no longer in alignment. The entire National
Family Caregiver Support Program has been created by OAA reauthorizing
legislation for which there is no conforming rule. Similarly, portions
of the Act have been significantly altered since 1988, with no
analogous updates to regulation. This discordance creates confusion for
grantees, sub-grantees, and service providers, inhibiting their ability
to most effectively serve OAA participants. In addition to areas where
we propose to better align statute with regulation, we are proposing
modifications to regulatory text that will modernize our rules to
reflect ongoing stakeholder feedback and responses to our Request for
Information in areas where our current regulations do not address the
evolving needs of Title III, VI, and VII grantees and the older adults
and family caregivers they serve.
The National Caregiver Support Act, passed as a part of the 2000
Amendments, created Title III part E and Title VI part C of the
OAA.\34\ The programs had a combined budget of nearly $200 million in
FY 2022; in FY 2021, the most recent year for which data is available,
nearly 800,000 caregivers received services.\35\ However, there are
currently no regulations implementing this far-reaching program.
Consequently, we have proposed regulatory text at Subpart D Sec.
1321.91 (Title III part E) and Subpart CSec. 1322.29 (Title VI part C)
to implement statutory mandates and clarify areas related to required
family caregiver support services, allowable use of funds, and the
method of funds distribution. These additions provide necessary
direction to grantees in meeting their fiscal and programmatic
responsibilities under the Act, and alleviating inefficiencies and
uncertainties caused by reliance on sub-regulatory guidance rather than
on regulations.
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\34\ 42 U.S.C. 3030s (Title III part E); 42 U.S.C. 3057k-11
(Title VI part C).
\35\ The Dept. of Health and Human Serv. Fiscal Year 2024 Admin.
for Community Living Justification of Estimates for Appropriations
Committee.
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Additionally, newly proposed section 1321, subpart E, and section
1322, subpart D provide direction on emergency and disaster
requirements under the Act. There is very limited guidance in Sec.
1321.65 of the current regulations, which only address weather-related
emergencies, and no mention of emergency or disaster requirements in
current section 1322 or 1323. Our proposals take into account lessons
from the COVID-19 public health emergency (PHE), which demonstrated
that emergencies beyond those discussed in the current regulations
could have a devastating effect on older adults, Native American
elders, and family caregivers. In developing the proposed rule, we
considered the evolution of what may constitute an ``emergency'' or
``disaster;'' how emergencies and disasters may uniquely affect older
adults, Native American elders, and family caregivers; and how best to
meet the needs of OAA grantees and participants. The proposed
provisions allow Title VI grantees, States, AAAs, and service providers
to have the flexibility in funding requirements to adequately plan for
emergency situations, as contemplated by the Act.
We are likewise proposing to modernize our nutrition rules to
better support grantees' efforts to meet the needs of older adults. Our
previous sub-regulatory guidance required that meals must either be
consumed on-site at a congregate meal setting or delivered to a
participant's residence. This guidance does not take into account those
who may leave their homes to pick up a meal but are not able to consume
the meal in the congregate setting for various reasons, including
safety concerns such as those experienced during the COVID-19 pandemic.
Again, the COVID-19 pandemic brought to light limitations in our
current nutrition regulations, which we have sought to address in
proposed Sec. 1321.87 to allow for ``grab and go'' meals as part of a
congregate site where participants can collect their meal and return to
the community off-site to enjoy it. Our proposal is a direct response
to stakeholder feedback, including as gathered from the RFI, and
appropriately reflects the evolving needs of both grantees and OAA
participants.
Finally, in response to robust comment, we also propose to include
greater detail on the programmatic fiscal policies and procedures State
agencies must develop and implement under the Act, including in areas
of sub-awardee monitoring, data collection and
[[Page 39572]]
reporting, direct service provision, matching, contribution
requirements, transfer allowances between and among Title III part B,
C-1 and/or C-2 funds, allowable administration funding, voluntary
contributions/cost sharing, and required annual certification, among
others. The lack of detailed instruction in this area to date has
created administrative confusion and programmatic inefficiencies for
both States and ACL.
Specific to services for Native American elders and caregivers, we
propose a number of changes to improve coordination and clarify
requirements. Title VI of the Act is titled ``Grants for Native
Americans,'' and states a purpose of providing supportive services,
including nutrition services, to American Indians, Alaskan Natives, and
Native Hawaiians that are comparable to the services provided under
Title III. Current section 1323 applies to one Native Hawaiian grantee
who receives funds under Title VI part B of the Act. To more clearly
and consistently specify requirements, we propose to combine sections
1322 and 1323 and incorporate requirements specific to Title VI, part B
in the proposed Sec. 1322. By so doing we anticipate reducing
confusion and improving appropriate consistency in service provision to
both older Indians and Native Hawaiians and family caregivers.
The Act sets forth expectations that States, area agencies on
aging, Tribal organizations, and a Native Hawaiian grantee will
coordinate regarding provision of services. We propose to include
requirements for coordination between Title III and Title VI in each
applicable Subpart of sections 1321 and 1322.
To further improve service provision to Native American elders and
family caregivers, we propose to specify service requirements, where
appropriate, similar to those for services funded under Title III of
the Act. Our approach is to identify issues relating to service
provision about which the grantee under Title VI of the Act must have
policies and procedures, while affirming tribal sovereignty regarding
the responsibility for decision-making, development, and implementation
of such policies and procedures.
We propose updates to regulatory guidance for Ombudsman programs
that receive funding under Title VII of the Act. There has been
significant variation in the interpretation and implementation of the
provisions of the Act and our 2015 implementing regulations. For
example, some State agencies have incorrectly interpreted the 2015
regulations to mean they may still access the files and records of the
Ombudsman program that are subject to strict disclosure requirements
for monitoring purposes. This has resulted in inconsistent protection
of resident identities and Ombudsman records based on residents' State
of residence.
We issued a Request for Information \36\ on May 6, 2022 seeking
input from the aging network, Indian Tribes, States, and Territories on
challenges they face administering services, as well as feedback from
individuals and other interested parties on experiences with services,
providers, and programs under the Act.\37\ We received over 900
individual comments, most of which focused on a few topic areas
including: equitably serving older adults and family caregivers from
underserved and marginalized communities, the Ombudsman program, area
plans on aging, and flexibilities within the nutrition and other
programs. We have sought to address these areas of focus in our
proposed rulemaking.
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\36\ 87 FR 27160 (May 6, 2022).
\37\ Sec. 2013A of the OAA, 42 U.S.C. 3013a.
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IV. Grants to State and Community Programs on Aging
A. Provisions Revised To Reflect Statutory Changes or Provide Clarity
For the following provisions, we propose revisions that reflect
statutory changes (e.g., changing ``Commissioner'' to ``Assistant
Secretary'' throughout) and provide direction in response to grantee
and other stakeholder requests for technical assistance, RFI responses,
listening sessions, and Tribal consultation. We also propose
redesignating provisions, reorganizing the placement of provisions,
updating statutory references, and other technical revisions. We
welcome comment on these proposed changes.
Subpart A--Introduction
Sec. 1321.1 Basis and Purpose of This Part
Proposed section 1321.1 sets forth the requirements of Title III of
the Act to provide grants to State and community programs on aging. We
propose revisions to ensure consistency with statutory terminology and
requirements, such as references to evidence-based disease prevention
and health promotion and caregiver services, specifying family
caregivers as a service population, and listing the key roles of the
State agency identified to implement Title III and Title VII of the
Act.
Sec. 1321.3 Definitions
We propose to update the definitions of significant terms in Sec.
1321.3 by adding several new definitions, revising several existing
definitions, and deleting definitions of terms that are obsolete or no
longer necessary. The additions, revisions, and deletions are intended
to reflect changes to the statute, important practices in the
administration of programs under the Act, and feedback we have received
from a range of stakeholders.
We propose to add definitions of the following terms: ``Access to
services,'' ``Acquiring,'' ``Area agency on aging,'' ``Area plan
administration,'' ``Best available data,'' ``Conflicts of interest,''
``Cost sharing,'' ``Domestically-produced foods,'' ``Family
caregiver,'' ``Governor,'' ``Greatest economic need,'' ``Greatest
social need,'' ``Immediate family,'' ``Local sources,'' ``Major
disaster declaration,'' ``Multipurpose senior center,'' ``Native
American,'' ``Nutrition Services Incentive Program,'' ``Older relative
caregiver,'' ``Planning and service area,'' ``Private pay programs,''
``Program development and coordination activities,'' ``Program
income,'' ``Single planning and service area state,'' ``State,''
``State agency,'' ``State plan administration,'' ``Supplemental
foods,'' and ``Voluntary contributions.''
We propose to retain and make minor revisions to the terms:
``Altering or renovating,'' ``Constructing,'' ``Department,'' ``Direct
services,'' ``In-home supportive services,'' ``Means test,'' ``Official
duties,'' ``Periodic,'' ``Reservation,'' and ``Service provider.'' We
propose to retain with no revisions the terms: ``Act'' and ``Fiscal
year,'' and we propose to delete the terms: ``Frail,'' ``Human
services,'' and ``Severe disability.''
New definitions of note are discussed below.
``Conflicts of Interest''
Recognizing the importance of ensuring the integrity of, and trust
in, activities carried out under the Act, section 307(a)(7) \38\ of the
Act requires State agencies to have mechanisms in place to identify and
remove conflicts of interest. We propose several provisions related to
conflicts of interest (COI) to provide clarity for State agencies,
AAAs, and service providers: Sec. Sec. 1321.3, 1321.47, and 1321.67.
These provisions include a general definition of COI and specific
requirements for State agencies and AAAs (respectively) which are
discussed in more detail below. These
[[Page 39573]]
provisions reflect the expanded potential for conflicts of interest due
to changes in the scope of activities undertaken by these entities
since the Act was first passed and these regulations were first issued.
The intent of the COI provisions is to ensure that State agencies,
AAAs, and service providers carry out the objectives of the Act
consistent with the best interests of the older people they serve.
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\38\ 42 U.S.C. 3027(a)(7).
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``Cost Sharing''
We propose to clarify the definition of cost sharing to implement
the intent of Sec. 315 of the Act.\39\ The term ``cost sharing''
generally refers to the portion of the cost of an item or service for
which an individual is responsible in order to receive that item or
service. However, as set forth in the OAA, this term is used
differently than how it is used in other settings. There are many
restrictions on how cost sharing may be implemented, including that an
eligible individual may not be denied service for failure to make a
cost sharing payment. The OAA allows for cost sharing from certain
individuals for some services,\40\ but many other requirements apply to
State agencies who wish to allow the practice of cost sharing that are
later described in proposed Sec. 1321.9(c)(2)(x)(I).
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\39\ 42 U.S.C. 3030c-2.
\40\ 42 U.S.C. 3030c-2(a)(2) prohibits a State from implementing
cost sharing for the following services: information and assistance,
outreach, benefits counseling, or case management; ombudsman, elder
abuse prevention, legal assistance, or other consumer protection
services; congregate and home delivered meals; and any services
delivered through Tribal organizations. 42 U.S.C. 3030c-2(a)(3)
prohibits cost-sharing for any services delivered through a Tribal
organization or to an individual whose income is at or below the
Federal poverty level. States are prohibited from considering assets
and other resources when considering whether a low-income individual
is exempt from cost-sharing, when creating a sliding scale for cost
sharing, or when seeking a contribution from a low-income
individual.
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``Family Caregiver''
We propose to define ``family caregiver'' to include the following
subsets: adults who are caring for older individual, adults who are
caring for an individual of any age with Alzheimer's disease or a
related disorder with neurological and organic brain dysfunction, and
older relative caregivers. We later propose to define ``older relative
caregiver.'' With this inclusive approach to defining ``family
caregiver,'' we include those populations specified in the National
Family Caregiver Support Program, as set forth in Title III-E of the
Act. For example, this includes unmarried partners, friends, or
neighbors caring for an older adult.
``Greatest Economic Need''
Focusing OAA services towards individuals who have the greatest
economic need is one of the basic tenets of the Act. The definition of
``greatest economic need'' in the Act incorporates income and poverty
status. The Act also permits State agencies to set policies, consistent
with our regulations, that incorporate other considerations into the
definition of ``greatest economic need.'' \41\ Through its policies,
the State agency may permit AAAs to even further refine specific target
populations of greatest economic need within their planning and service
area. A variety of local conditions and individual situations, other
than income, could factor into an individual's level of economic need.
State agencies and AAAs are in the best position to understand the
conditions and factors in their State and local areas that contribute
to individuals falling within this category. Accordingly, this
definition allows State agencies and AAAs to further refine target
populations of greatest economic need.
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\41\ See, 42 U.S.C. 3026(a)(4)(A)(i)(I)(aa); 42. U.S.C.
3025(a)(1).
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``Greatest Social Need''
Focusing OAA services towards individuals who have the greatest
social need is one of the basic tenets of the Act. ``Greatest social
need'' is defined as ``need caused by noneconomic factors,'' including
physical and mental disabilities, language barriers, and cultural,
social, or geographic isolation, including isolation caused by racial
or ethnic status that restricts the ability of an individual to perform
normal daily tasks or threatens the capacity of the individual to live
independently.\42\ This definition allows for consideration of other
noneconomic factors that contribute to cultural, social, or geographic
isolation.
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\42\ 42 U.S.C. 3002(24).
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For example, in multiple places the Act requires special attention
to the needs of older individuals residing in rural locations. In some
communities, such isolation may be caused by minority religious
affiliation. Isolation may also be related to sexual orientation,
gender identity, or sex characteristics. For example, research
indicates that LGBTQI+ older adults are at risk for poorer health
outcomes and have lived through discrimination, social stigma, and the
effects of prejudice, impacting their connections with families of
origin, lifetime earnings, opportunities for retirement savings, and
ability to trust health care professional and aging services
providers.\43\ Demographics indicate that the population of HIV-
positive older adults are likely to grow significantly for the next two
decades, and such older adults may experience isolation due to stigma
or lack of knowledge on aging issues for people who are HIV-positive.
Other chronic conditions may also result in isolation or stigma, as may
housing instability, food insecurity, lack of transportation, utility
assistance needs, or interpersonal safety concerns, including abuse,
neglect, and exploitation.
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\43\ National Resource Center on LGBT Aging, Inclusive Services
for LGBT Older Adults: A Practical Guide To Creating Welcoming
Agencies (2020), <a href="https://www.lgbtagingcenter.org/resources/pdfs/Sage_GuidebookFINAL1.pdf">https://www.lgbtagingcenter.org/resources/pdfs/Sage_GuidebookFINAL1.pdf</a>.
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We received many comments through the RFI urging ACL to set clear
and consistent expectations regarding such populations to be included,
and our intent is to do so in this proposed definition. As with
``greatest economic need,'' the Act permits State agencies to set
policies, consistent with our regulations, that further define the
noneconomic considerations that contribute to populations designated as
having the ``greatest social need.'' \44\ Through its policies, the
State agency may permit AAAs to even further refine specific target
populations of greatest social need within their planning and service
area. State agencies and AAAs are in the best position to understand
additional conditions and factors in their State and local areas that
contribute to individuals falling within this category. Accordingly,
this definition allows State agencies and AAAs to further refine target
populations of greatest social need.
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\44\ See, 42 U.S.C. 3026(a)(4)(A)(i)(I)(aa); 42. U.S.C.
3025(a)(1).
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``Program Development and Coordination Activities''
We propose to add the term ``program development and coordination
activities'' to the definitions to explain certain activities of State
agencies and AAAs to achieve the goals of the Act. This work includes
the development of innovative ways to address the evolving social
service, health, and economic climates in which they operate. Separate
from administering programs to provide direct services, State agencies
and AAAs plan, develop, provide training regarding, and coordinate at a
systemic level, programs and activities aimed at the Act's target
populations. In addition to the new definition, we propose to
[[Page 39574]]
include language in Sec. 1321.27 to clarify requirements for these
activities.
Subpart B--State Agency Responsibilities
Sec. 1321.5 Mission of the State Agency
Section 1321.7 of the existing regulation (Mission of the State
agency) is redesignated here as Sec. 1321.5. for clarity with respect
to other relevant provisions. Proposed Sec. 1321.5 sets forth the
State agency's mission, role, and functions as the lead on all aging
issues in the State under the Act, and it specifies that the State
agency will designate AAAs in States with multiple planning and service
areas to assist in carrying out the mission. We propose minor revisions
to align with reauthorizations of the statute, such as adding family
caregivers as a service population per the 2000 reauthorization. We
also propose to update regulatory references and revise language for
clarity.
Sec. 1321.7 Organization and Staffing of the State Agency
Section 1321.9 of the existing regulation (Organization and
staffing of the State agency) is redesignated here as Sec. 1321.7. We
propose several changes to the provision on organization and staffing
for consistency and for clarification. Proposed minor changes at Sec.
1321.7(a), (c), and (d) reflect consistent wording with the State
agency's obligations under 45 CFR 1324 with respect to the
administration of the Ombudsman program. The Ombudsman program is
authorized under Title VII of the Act, and the implementing regulations
for the program were promulgated in 2015 at 45 CFR 1324. Proposed Sec.
1321.7(d) includes minor language changes to clarify the State agency's
existing obligations to carry out the Ombudsman program in accordance
with the Act's requirements, regardless of any applicable State law
requirements.
Section 307(a)(13) \45\ and Sec. 731 \46\ of the Act require the
State agency to ensure that there are a Legal Assistance Developer and
other personnel, as needed, to provide State leadership in developing
legal assistance programs for older individuals throughout the State.
These staffing requirements are absent from the existing regulation
regarding staffing; we propose to add a new paragraph (e) to this
provision that sets forth these requirements to assist States to better
understand their obligations under the Act related to staffing. The
role of the Legal Assistance Developer is discussed more fully in the
preamble, below.
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\45\ 42 U.S.C. 3027(a)(13).
\46\ 42 U.S.C. 3058j.
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Sec. 1321.9 State Agency Policies and Procedures. [Updated Title and
Revised]
We propose to retitle the provision contained in Sec. 1321.11 of
the existing regulation (State agency policies) to better reflect the
intent of the provision and to redesignate it here as Sec. 1321.9. We
also propose to incorporate provisions contained in Sec. 1321.45
(Transfer between congregate and home-delivered nutrition service
allotments), Sec. 1321.47 (Statewide non-Federal share requirements),
Sec. 1321.49 (State agency maintenance of effort), Sec. 1321.67
(Service contributions), and Sec. 1321.73 (Grant related income under
Title III-C) within this provision to consolidate and streamline
applicable requirements.
Section 305 of the Act requires designated State agencies to be
``primarily responsible for the planning, policy development,
administration, coordination, priority setting, and evaluation of all
State activities related to the objectives of this Act.'' \47\
Consistent with that obligation, we propose to require State agencies
to promulgate policies and procedures related to a range of topics that
fall within the State agency's authority to oversee under the State
plan in Sec. 1321.9(c)(1) (policies and procedures related to direct
service provision) and Sec. 1321.9(c)(2) (policies and procedures
related to fiscal requirements).\48\ The policy development process
includes the establishment of procedures, which set forth the steps to
follow to implement policies. Accordingly, we propose minor revisions
to clarify that the policy development and implementation process
includes the establishment of procedures, as well as policies.
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\47\ 42 U.S.C. 3025(a).
\48\ Ibid.
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Changes have been proposed to the language at Sec. 1321.9(a) in
order to (1) reflect statutory updates (i.e., the LTCOP regulation (45
CFR 1324) which was promulgated in 2015); (2) clarify that the State
agency's obligations to develop policies and procedures extend to elder
abuse prevention and legal assistance development programs; (3) confirm
the ability of the State agency to allow procedures to be developed at
the AAA level, except where specifically prohibited; and (4) clarify
the State agency's responsibility for monitoring the compliance of
activities initiated under Title III with all applicable requirements
to ensure that grant awards are used for the authorized purposes and in
compliance with Federal law.
The Act contains many programmatic and fiscal requirements of which
State agencies must be aware and for which State agencies must have
established policies and procedures. For clarity and ease of reference,
we propose to combine the areas for which State agencies must have
established policies and procedures in this provision. We invite
comment as to whether this approach to streamlining State policies and
procedures is appropriate. The first area relates to data collection
and reporting. Section 307 \49\ of the Act requires the collection of
data and periodic submission of reports to ACL regarding State agency
and AAA activities. ACL has implemented a national reporting system and
reporting requirements that must be used by all State agencies to
ensure timely and consistent reporting. Proposed Sec. 1321.9(b) sets
forth the State agency's responsibility to have policies and procedures
to ensure that its data collection and reporting align with ACL's
requirements.
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\49\ 42 U.S.C. 3027.
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Proposed Sec. 1321.9(c)(1) describes policies and procedures that
State agencies must establish to ensure that services provided under
the Act meet the requirements of the Act and are provided equitably and
in a consistent manner throughout the State, as appropriate.\50\ In
response to the RFI, this proposed section addresses comments that
requested State agencies provide transparency and clarity on the
policies and procedures that AAAs and service providers must follow,
including setting requirements for client eligibility, assessment, and
person-centered planning; specifying a listing and definitions of
services that may be provided; detailing any limitations on the
frequency, amount, or type of service provided; defining greatest
economic need and greatest social need, and specific actions the State
agency will use or require to provide services to those identified
populations; how AAAs can provide services directly; how voluntary
contributions are to be collected; and the grievance process for older
adults and family caregivers who are dissatisfied with or denied
services under the Act. As proposed in Sec. 1321.9(a), except for the
Ombudsman program and where otherwise indicated, the State agency
policies may allow for procedures to implement specific policies to be
developed at the AAA level.
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\50\ 42 U.S.C. 3025(a)(2); 42 U.S.C. 3012(a)(9).
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[[Page 39575]]
To provide context for our proposals, as set forth in section
306(a)(4)(A)(i)(I)(aa),\51\ AAAs are responsible for setting specific
objectives, consistent with State policy, for provision of services to
older individuals with greatest economic need and greatest social need.
Identifying such populations at the State level facilitates consistent
messaging and outreach, collaboration with other State level
organizations and stakeholders, and development of specific plans for
the State agency, AAAs, and service providers to implement, as intended
by the Act. Definitions of these populations at the State level are
intended to provide Statewide direction, while maintaining the
opportunity for additional definition of populations at greatest
economic need and greatest social need specific to local circumstances
as part of an area plan on aging as further proposed in Sec. 1321.65.
For example, a State might choose to define those at greatest economic
need to include individuals or households with an income within a
specific range (e.g., up to 125 percent of the Federal poverty level),
and another State may include older adults experiencing housing
instability in their definition of greatest economic need. A State
might also choose to define those at greatest social need to include
people with low literacy, while another State may include grandparents
raising grandchildren due to substance use disorder or loss of parents
to COVID in their definition of greatest social need. There are
multiple circumstances where State level identification of needs may be
further complemented at the AAA level, such as older adults
experiencing economic need due to catastrophic flooding in a rural
portion of a State, or a AAA including older refugees in the community
in their definition of greatest social need.
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\51\ 42 U.S.C. 3026(a)(4)(A)(i)(I)(aa).
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The Act sets forth at section 307(a)(8)(A) \52\ that services will
not be directly provided by a State or area agency without the approval
of the State agency, subject to certain conditions; we propose here
that the State agency communicate how the area agencies may request
approval to directly provide services. This proposed section also
incorporates the requirement under section 307(a)(5)(B) \53\ of the Act
that State agencies are required to issue guidelines applicable to
grievance processes for any older adult or family caregiver who has a
complaint about a service or has been denied a service.
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\52\ 42 U.S.C. 3027(a)(8).
\53\ Ibid. at (a)(5)(B).
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Proposed Sec. 1321.9(c)(2) requires states to establish policies
and procedures related to the fiscal requirements associated with being
awarded funding for the Nutrition Services Incentive Program,\54\ Title
III,\55\ and Title VII \56\ under the Act. Over the years, we have
found that some State agencies may be unaware of certain requirements
or may not understand their obligations under these requirements.
Section 1321.9(c)(2) will provide guidance on the following fiscal
requirements: distribution of Title III \57\ and Nutrition Services
Incentive Program \58\ funds; non-Federal share (match) requirements;
\59\ permitted transfers of service allotments; \60\ maximum allocation
amounts for State, territory, and area plan administration; \61\
minimum funding expenditures for access to services, in-home supportive
services, and legal assistance; \62\ State agency maintenance of effort
obligations; \63\ requirements related to Ombudsman program
expenditures and fiscal management; \64\ minimum expenditures for
services for older adults who live in rural areas; \65\ reallotment of
funds; \66\ voluntary contributions, including cost-sharing at the
election of the State agency; \67\ use of program income; \68\ private
pay programs; \69\ commercial relationships; \70\ buildings,
alterations or renovations, maintenance, and equipment; \71\
prohibition against supplantation; \72\ monitoring of State and area
plan assurances; \73\ and advance funding.\74\ We provide further
context for these fiscal requirements proposals in the following
paragraphs.
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\54\ 42 U.S.C. 3030a(e).
\55\ 42 U.S.C. 3023.
\56\ 42 U.S.C. 3058a.
\57\ 42 U.S.C. 3025(a)(2)(C).
\58\ 42 U.S.C. 3030a(d).
\59\ 42 U.S.C. 3024(d), 3028(a)(1), 3029(b), 3030s-1(h)(2).
\60\ 42 U.S.C. 3028(a)(4), (5).
\61\ 42 U.S.C. 3024(d)(1), 3028(a), (b)(1)-(2).
\62\ 42 U.S.C. 3026(a)(2).
\63\ 42 U.S.C. 3029(c).
\64\ 42 U.S.C. 3027(a)(9)(A).
\65\ 42 U.S.C. 3027(a)(3)(B)(i).
\66\ 42 U.S.C. 3024(b), 3058b(b).
\67\ 42 U.S.C. 3030c-2.
\68\ 42 U.S.C. 3030c-2(a)(5)(c).
\69\ 42 U.S.C. 3020c, 3026(g).
\70\ 42 U.S.C. 3026(a)(13)-(14).
\71\ 45 CFR 75; 42 U.S.C. 3030b, 3030d(b).
\72\ 42 U.S.C. 3026(a)(9)(B), 3030c-2(b)(4)(E), 3030d(d), 3030s-
2, 3058d(a)(4).
\73\ 42 U.S.C. 3025(a)(1)(A)-(C).
\74\ 45 CFR 75.305.
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Sec. 1321.9(c)(2)(i). Intrastate Funding Formula (IFF)
The Act sets forth requirements for distribution of Title III funds
within the State in section 305(a)(2)(C-D).\75\ The Act requires
distribution to occur via an intrastate funding formula (IFF) (further
defined in proposed Sec. 1321.49) or funds distribution plan (further
defined in proposed Sec. 1321.51). The IFF is required for States with
multiple planning and service areas, and a funds distribution plan is
required for single planning and service area states. Through this
provision, we also propose to require that funds be promptly disbursed
using the IFF or funds distribution plan and to provide prior approval
for fixed amount subawards up to the simplified acquisition threshold,
as set forth in 2 CFR 200.353.
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\75\ 42 U.S.C. 3025(a)(2)(C-D).
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Sec. 1321.9(c)(2)(ii). Non-Federal Share (Match)
The provision contained in Sec. 1321.47 (Statewide non-Federal
share requirements) of the existing regulation is redesignated here as
Sec. 1321.9(c)(2)(ii) and revised. The Act includes requirements for
non-Federal share matching funds from State or local sources, as set
forth in sections 301(d)(1), 304(c), 304(d)(1)(A), 304(d)(1)(D),
304(d)(2), 309(b), 316(b)(5), and 373(h)(2). We propose to consolidate
and streamline the requirements by listing the requirements and
considerations that apply to such funds. We have received frequent
technical assistance requests concerning the allowability of using
funding for services that are means tested for the non-Federal share
(match). We propose to clarify that State or local public resources
used to fund a program which uses a means test shall not be used to
meet the non-Federal share matching requirements. We also propose to
clarify that a State agency or AAA may determine a non-Federal share in
excess of required amounts, and we clarify the non-Federal share
matching requirements that apply to service and administration costs
for each type of grant award under Title III of the Act. We also
propose to provide prior written approval for unrecovered indirect
costs to be used as match and invite comment regarding this approach.
Sec. 1321.9(c)(2)(iii). Transfers
The provision contained in Sec. 1321.45 of the existing regulation
(Transfer between congregate and home-delivered nutrition service
allotments) is redesignated here as Sec. 1321.9(c)(2)(iii) and
revised. The Act allows for transfer of service allotments to provide
some flexibility to meet State and local needs. ACL allocates Title III
funding to States by part of the Act (for example, the
[[Page 39576]]
supportive services allocation is designated as part B and the
nutrition services allocation is designated as part C, and further by
subpart (for example, part C-1 funding is for congregate meals and part
C-2 funding is for home-delivered meals)). We propose to list the
requirements and considerations that apply if a State elects to make
transfers between allotments, including the parts and subparts of Title
III which are subject to transfer of allocations, the maximum
percentage of an allocation which may be transferred between parts and
subparts, and a confirmation that such limitations apply in aggregate
to the State. For example, a State may find that older individuals have
a need for transportation to congregate meal sites. A State is able to
transfer, within allowed limits, allotments from the congregate meal
nutrition grant award (part C-1) to the supportive services grant award
(part B) to provide transportation to meet State and local service
needs.
Sec. 1321.9(c)(2)(iv). State, Territory, and Area Plan Administration
Section 308 of the Act sets forth limits on the amount of Title III
funds which may be used for State, Territory, and area plan
administration. We propose to specify the requirements and
considerations that apply, including flexibilities that some State
agencies of single planning and service States may exercise and how the
State agency may calculate the maximum amounts available for AAAs to
use. We receive regular requests for technical assistance about use of
funds; the proposed specification of requirements is intended to
provide clarity to States. For example, States may either receive five
percent of their funding allocation or $750,000 ($100,000 for certain
Territories) of their total Title III allocation as set forth in the
Act to complete the State plan administration activities required by
the Act, including planning, coordination, and oversight of direct
services provided with the remainder of the Title III allocation. The
State, Territory, and Area plan administration allocation amounts may
be taken from any same fiscal year Title III award allocation at any
time during the grant period and may be allocated to any Part of the
same fiscal year Title III grant allocation, with the statutory
exception of allocation of area plan administration to Part D (which
provides funding for evidence-based disease prevention and health
promotion programs). In States with multiple planning and service
areas, we propose to clarify section 304(d)(1)(A) of the Act and better
streamline implementation of maximum allocation amounts. We propose to
specify that the State agency will determine the maximum amount
available for area plan administration by deducting the amount of
funding to be applied to State plan administration and calculating ten
percent of this amount. The ten percent of funding remaining must be
made available to AAAs in accordance with the IFF for the purpose of
area plan administration, which we further address in proposed Sec.
1321.57(b).
Sec. 1321.9(c)(2)(v). Minimum Adequate Proportion
The Act sets forth requirements that the State plan must identify a
minimum proportion of funds that will be spent on access services, in-
home supportive services, and legal assistance. We propose to require
the State agency to have policies and procedures to implement these
requirements.
Sec. 1321.9(c)(2)(vi). Maintenance of Effort
The provision contained in Sec. 1321.49 (State agency maintenance
of effort) of the existing regulation is redesignated here as Sec.
1321.9(c)(2)(vi) and revised. We propose to require State agencies to
develop fiscal policies and procedures related to requirements under
the Act, corresponding to sections 309(c) \76\ and 374.\77\ These
requirements include expending specific minimum maintenance of effort
amounts, which are calculated in a specific manner as required in the
Act. In response to technical assistance requests received, we also
propose to clarify that excess amounts reported in other reports, such
as the Federal financial report (submitted via SF-425), do not become
part of the amounts used in calculating the minimum required
maintenance of effort expenditures, unless the State agency
specifically certifies the excess amounts for such purpose.
---------------------------------------------------------------------------
\76\ 42 U.S.C. 3029.
\77\ 42 U.S.C. 3030s-2.
---------------------------------------------------------------------------
Sec. 1321.9(c)(2)(vii). State Long Term Care Ombudsman Program
We propose to require State agencies to develop fiscal policies and
procedures related to requirements under the Act, corresponding to
section 307(a)(9).\78\ These requirements include that the State agency
will expend not less than the amount expended by the State agency under
Title III and Title VII of the Act for the Ombudsman program in fiscal
year 2019, in accordance with the level set in the Act as amended in
2020. We also propose to clarify that the State agency must provide the
Ombudsman with information to complete Ombudsman program requirements
and that the fiscal activities relating to the operation of the Office
are in compliance with the requirements set forth in Sec. 1324.13(f).
---------------------------------------------------------------------------
\78\ 42 U.S.C. 3027(a)(9).
---------------------------------------------------------------------------
Sec. 1321.9(c)(2)(viii). Rural Minimum Expenditures
We propose to require State agencies to develop fiscal policies and
procedures related to requirements under the Act, corresponding to
section 307(a)(3)(B).\79\ These requirements include that the State
agency must expend not less than the amount expended in fiscal year
2000, in accordance with the level set in the Act, for services for
older individuals residing in rural areas, project the cost of
providing such services, and specify a plan for meeting the needs for
such services. To implement these requirements, we propose that the
State agency establish a process and control for determining how rural
areas within the State shall be defined.
---------------------------------------------------------------------------
\79\ Ibid. at (a)(3)(B).
---------------------------------------------------------------------------
Sec. 1321.9(c)(2)(ix). Reallotment
We propose to require State agencies to develop fiscal policies and
procedures related to a State's voluntary release of funds
(reallotment), corresponding with sections 304(b) \80\ and 703(b) \81\
of the Act. These policies and procedures include that the State agency
must communicate if the State agency has funding that will not be
expended in the grant period to be reallotted to the Assistant
Secretary for Aging that will then be redistributed to other State
agencies who identify as being able to utilize funds within the grant
period. Additionally, the State agency should include whether they are
able to receive and expend within the grant period any reallotted funds
that may become available from the Assistant Secretary for Aging. We
also propose to clarify that the State agency must distribute any such
reallotted funds it receives in accordance with the IFF or funds
distribution plan, as set forth in Sec. Sec. 1321.49 or 1321.51.
---------------------------------------------------------------------------
\80\ 42 U.S.C. 3024(b).
\81\ 42 U.S.C. 3058b(b).
---------------------------------------------------------------------------
Sec. 1321.9(c)(2)(x) and Sec. 1321.9(c)(2)(xi), Voluntary
Contributions and Cost Sharing
The provision contained in Sec. 1321.67 of the existing regulation
(Service contributions) is redesignated here as Sec. 1321.9(c)(2)(x)
(voluntary contributions) and revised, and we propose to add Sec.
1321.9(c)(2)(xi) (cost sharing) to delineate between the two
[[Page 39577]]
types of consumer contributions. Section 315 of the Act allows for
consumer contributions which may take the form of (1) an individual
voluntarily contributing towards the cost of a service (a voluntary
contribution) \82\ and (2) the State establishing a cost sharing
policy, creating a structured system for collecting sliding scale
payments from some service participants for some services (cost
sharing).\83\ For many decades, State and area agencies and service
providers have collected voluntary contributions from participants
receiving services under the Act. Such voluntary contributions allow
service participants to demonstrate their support of these services and
for expansion of services to others in the community. For example, in
FY 2021 State agencies reported nearly $166 million in program income
for Title III-funded services to ACL, the majority of which we estimate
was in the form of voluntary contributions.
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\82\ 42 U.S.C. 3030c-2(b).
\83\ 42 U.S.C. 3030c-2(a).
---------------------------------------------------------------------------
Cost sharing provisions were added in the 2000 amendments to the
OAA. Because the Act includes many restrictions regarding cost sharing,
in practice ACL has seen cost sharing implemented for a few limited
services such as transportation and respite. For example, a State may
wish to pursue cost sharing under the Act as a way of more consistently
soliciting contributions or for administrative simplicity to align with
services provided under other funding sources that use a cost sharing
model. Many States choose not to pursue cost sharing as they find no
benefit in comparison to the traditional model of collecting voluntary
contributions.
We discuss these two provisions together because ACL has received
many questions about how voluntary contributions and cost sharing
compare. We discuss voluntary contributions first because, as explained
above, States have a long history of requesting voluntary contributions
and are less likely to pursue cost sharing arrangements.
We propose to specify in Sec. 1321.9(c)(2)(x) that the Act states
that voluntary contributions are allowed and may be solicited for all
services, as long as the method of solicitation is non-coercive. In
contrast, we also propose to list the services for which the Act
prohibits cost sharing, which include information and assistance,
outreach, benefits counseling, and case management services; long-term
care ombudsman, elder abuse prevention, legal assistance, and other
consumer protection services; congregate or home delivered meals; and
any services delivered through Tribal organizations.
In Sec. 1321.9(c)(2)(xi) we propose to list applicable
requirements to include how suggested contribution levels for cost
sharing are established, which individuals are encouraged to
contribute, the manner of solicitation of contributions, a prohibition
on means testing, provisions that apply to all service recipients, a
prohibition on denial of services, procedures that are to be
established, that amounts collected are considered to be program
income, and further provisions that apply to cost sharing. Both
proposed Sec. 1321.9(c)(2)(x) and Sec. 1321.9(c)(2)(xi) are intended
to clarify that services may not be denied, even when a State has a
cost sharing policy and or a voluntary contribution policy, if someone
cannot or chooses not to contribute or to pay a suggested cost sharing
amount. In other words, any State cost sharing and consumer
contribution policies must be voluntary for OAA program participants,
and States must ensure that program participants are aware that they
are not required to contribute. We also propose to clarify that State
agencies, AAAs, and service providers are prohibited from using means
testing to determine eligibility for or to deny services to older
people and family caregivers, as set forth in section 315(a)(5)(E) \84\
and (b)(3) \85\ and to confirm that both voluntary contribution and
cost sharing solicitation amounts are to be based on the actual cost of
services.
---------------------------------------------------------------------------
\84\ 42 U.S.C. 3030c-2(a)(5)(E).
\85\ Ibid. at (b)(3).
---------------------------------------------------------------------------
In specifying differences between voluntary contributions and cost
sharing, voluntary contributions are encouraged for individuals whose
self-declared income is at or above 185 percent of the Federal poverty
line, while the Act further restricts the implementation of cost
sharing and does not allow it to be imposed on service participants who
are at or below the Federal poverty line or are otherwise low-income as
specified by the State agency. Cost sharing is also prohibited for
services delivered through Tribal organizations.
Additionally, if a State agency chooses to establish a cost sharing
policy, it must be implemented statewide at all AAAs in the State, with
limited exceptions, where a State agency approves a waiver request from
a AAA where the AAA demonstrates that a significant proportion of
persons receiving services under the Act have incomes below a certain
threshold or that applying the cost sharing policy would place an
unreasonable burden upon the AAA, as set forth in section
315(a)(6).\86\
---------------------------------------------------------------------------
\86\ Id. at (a)(6).
---------------------------------------------------------------------------
State agencies, AAAs, and others have expressed confusion about the
differences between cost sharing and voluntary contributions. We seek
comment on whether the proposed rule sufficiently clarifies the
statutory requirements for and differences between cost sharing and
voluntary contributions.
Sec. 1321.9(c)(2)(xii). Use of Program Income
The provision contained in Sec. 1321.73 of the existing regulation
(Grant related income under Title III-C) is redesignated here as Sec.
1321.9(c)(2)(xi) and revised. We propose to clarify the fiscal
requirements that apply to program income, which includes voluntary
contributions and cost sharing payments. For example, we propose to
clarify that States are required to report contributions as program
income, and that contributions must be used to expand the service
category by part of Title III of the Act for which the income was
originally collected. Thus, a contribution for the supportive service
of transportation must be reported as income to the supportive services
program and used to expand supportive services, such as transportation,
multipurpose senior centers and/or transportation. Similarly, if
someone pays a portion of the cost of a transportation service under a
cost-sharing arrangement, that portion must be reported as income to
the supportive services program. A contribution for the nutrition
service of home-delivered meals must be reported as income to the
nutrition program and used to expand nutrition services, such as home-
delivered meals, congregate meals, and/or nutrition education.
Sec. 1321.9(c)(2)(xiii). Private Pay Programs
We propose to clarify that AAAs and service providers may, in
addition to programs supported by funding received under the Act, offer
separate private pay programs for which individual consumers agree to
pay to receive services. These private pay programs may offer similar
or the same services as those funded under Title III. However, funds
provided under the Act for direct services may not be used to support
private pay programs (or any other services) where a fee is required.
We propose to add Paragraph 1321.9(c)(2)(xiii) to this provision to
provide guidance as to policies and procedures that should be in place
to ensure that private pay programs offered
[[Page 39578]]
by AAAs and service providers do not compromise core responsibilities
under the Act. One such core responsibility, for example, is to ensure
that individuals who receive information about private pay programs and
who are eligible for services provided with Title III funds also are
made aware of Title III-funded services. We seek comments on whether
the proposed rule clarifies the allowability of private pay programs.
Sec. 1321.9(c)(2)(xiv). Contracts and Commercial Relationships
AAAs and service providers may receive and administer funding from
multiple sources as they seek to provide comprehensive services to
older adults. In doing so, they may enter into relationships with
various commercial entities to accomplish the delivery of comprehensive
services, as authorized in section 212 and 306(a)(13) and (14) of the
Act.\87\ In response to numerous questions about the appropriate roles,
responsibilities, and oversight of such activities, feedback received
in response to the RFI, and based on our observations of program
activities, we propose to clarify the policies and procedures that
State agencies must establish related to all contracts and commercial
relationships in subsection 1321.9(c)(2)(xiv). As a component of these
policies and procedures, and consistent with their authority under
sections 305(a)(1)(C), 306(a), 306(b), and 212(b)(1), State agencies
must establish processes for AAAs to receive approval for contracts and
commercial relationships. We expect such processes to be flexible and
streamlined, reflecting the needs of the older individuals served and
the abilities of AAAs and service providers to engage in contracts and
commercial relationships. This provision will help ensure the
activities in which recipients and subrecipients of funding under the
Act engage further the intended benefits of the Act and do not
compromise core responsibilities or the statutory mission of State
agencies, AAAs, and service providers. We propose to set forth these
provisions to promote and expand the ability of the aging network to
engage in business activities.
---------------------------------------------------------------------------
\87\ 42 U.S.C. 3020c; 42 U.S.C. 3026
---------------------------------------------------------------------------
For example, a State agency could establish policies and procedures
that outline a tiered approach for approving contracts and commercial
relationships, whereby some specific activities with certain entities
receive prior approval (for example, as required under section 212),
other activities and general categories of activities require a simple
notice of intent to receive approval from the State agency, and,
because of significant risk or conflict of interest complexities, still
other specific activities or types of activities require a more
thorough review process by the State agency in determining whether to
provide approval. A State agency may include various factors in their
decision-making process, such as whether the AAA/service provider is
under a corrective action plan or demonstrates concerns in current OAA
program operations, the role of the AAA/service provider in the State's
long-term services and supports system, and the level of risk the AAA/
service provider may assume in the contract or commercial relationship,
in setting the tiers of its prior approval process.
Another State agency could have policies and procedures that
require the AAA to request approval via the area plan process for the
types of contracts or commercial relationships the AAA intends to
undertake and/or allow the AAA's service providers to undertake. The
State agency could then provide approval to the AAA or request further
detail in determining whether to provide approval.
We expect that States might distinguish between contracts and
commercial relationships where the AAA, for example, is paying for
services or goods; and contracts and commercials relationships where
the AAA is receiving payment to provide services or goods. For example,
a state might establish de facto approval policies for contracts and
commercial relationships related to AAAs paying for Title III services,
but establish a more rigorous review process if the AAA is entertaining
a contract or commercial relationship to receive payment to provide
services to individuals or entities not otherwise receiving services
under the Act.
Our proposal responds to numerous concerns from AAAs regarding
inconsistent approaches taken by States, as well as concerns from State
agencies about the level of oversight and approval that should be
exercised. We are trying to take a balanced approach that is consistent
with statutory requirements found in section 212 and throughout Title
III--one that is not onerous, can be implemented easily, and does not
cause undue delays. This approach outlined in the regulation will be
supplemented by the provision of technical assistance to States and
AAAs. We request comment on whether our proposed approach appropriately
balances the need for clear policies and procedures with the need to
have a workable approval process.
We propose to specify in the definition of Area plan administration
at section 1321.3 that use of area plan administration funds for
development of contracts or commercial relationships is allowable. We
request comments on best practices and examples of existing processes.
The Act has always contemplated an aging network that plans,
coordinates, and facilitates comprehensive and coordinated systems for
supportive, nutrition, and other services, leveraging resources beyond
what the OAA alone can support. The aging network has growing
opportunities to braid different sources of government and private
funding to serve older adults in need, which has been accomplished
through contracts and commercial relationships with organizations such
as Medicaid managed care plans and health systems, among others.
Congress further strengthened this flexibility in the most recent
reauthorization of the OAA. ACL is committed to promoting this
flexibility while providing good stewardship of and accountability for
public funds. Therefore, we propose in Sec. 1321.9(c)(2)(xiv) to
delineate that State agencies, AAAs, and service providers may enter
into a variety of contracts and commercial relationships. We further
propose that entities establishing contracts and commercial
relationships must develop policies and procedures to promote fairness,
inclusion, and adherence to the requirements of the Act, including
meeting conflict of interest requirements, continuing their role as
advocates for older people in accordance with the Act, and meeting
financial accountability requirements, as set forth in sections
306(a)(6)(B), (13), (14), and (15) and 307(a)(7).\88\ They must also
align with any guidance issued by the Assistant Secretary.
---------------------------------------------------------------------------
\88\ 42 U.S.C. 3026; 42 U.S.C. 3027.
---------------------------------------------------------------------------
For example, AAAs and service providers may use funds for direct
services under Title III to support provision of service via contracts
and commercial relationships in two ways. The first is by maintaining
all requirements for direct service provision using Title III funds.
This would mean that Title III direct services funds would not be used
for contracts or commercial relationships that required an older
individual to make a payment or copayment (see Sec. 1321.9(c)(x).
Voluntary contributions), used means testing (see 1321.61(c). Advocacy
responsibilities of the area agency), or served those ineligible for
services under the Act (see 1321.81. Client eligibility for
participation). Second, funds could be used to provide
[[Page 39579]]
direct services consistent with the requirements under section 212 of
the Act, which among other requirements requires reimbursement of funds
initially used to pay part or all of the cost of developing and
carrying out the contract or commercial relationship.
We request comments regarding best practices in promoting
contracting and commercial relationship activities of the aging network
while maintaining fairness and adherence to the requirements of the
Act. Many states, whether through formal policies and procedures or
otherwise, have been facilitating a range of contracting and commercial
relationship activities for years. For example, the area planning
process is one example of a policy and procedure that all states use to
approve certain contracts and commercial relationships. We do not
intend to disrupt the normal course of business where it is currently
functioning consistent with the requirements of the Act. We believe
that standardizing policies and procedures will streamline these
activities nationwide and ensure consistency with the requirements of
the Act.
Sec. 1321.9(c)(2)(xv). Buildings, Alterations or Renovations,
Maintenance, and Equipment
ACL has received technical assistance and clarification requests
from State agencies and AAAs seeking to apply funding awarded under
Title III to costs related to buildings and equipment (such as
maintenance and repair). However, the Act provides limited standards
regarding this proposed use of funding. We propose to add paragraph
1321.9(c)(2)(xv) to provide clarification to ensure that funding will
be used for costs that support allowable activities. In addition,
section 312 of the Act provides that funds used for construction or
acquisition of multipurpose senior centers are to be repaid to the
Federal Government in certain circumstances. To ensure that third
parties will be on notice of this requirement, we propose to include in
this paragraph a requirement that a Notice of Federal Interest be filed
at the time of acquisition of a property or prior to construction, as
applicable. We welcome comment on this proposed section, including on
the sufficiency of guidance provided to date and potential alternative
approaches to achieve the goal of providing services to older adults.
Sec. 1321.9(c)(2)(xvi). Supplement, Not Supplant
The Act sets forth requirements in sections 306(a)(9)(B),\89\
315(b)(4)(E),\90\ 321(d),\91\ 374,\92\ and 705(a)(4) \93\ that OAA
funds must supplement, and not supplant existing funds. We have
received numerous questions about what these requirements mean and how
State agencies can ensure that Federal funding is not used
inappropriately to supplant other funds. For example, a State or local
government might inappropriately decide to reduce State funding to
support services for family caregivers due to an increase in Federal
Title III-E funding. The result is that the increased Federal funds
supplant, not supplement, the reduced State or local funding, with no
increase in revenue available to the entity to provide additional
services and in contradiction of section 374. This proposed provision
will require a State agency policy and procedure on supplementing, not
supplanting existing funds for the programs where specified in the Act.
---------------------------------------------------------------------------
\89\ 42 U.S.C. 3026(a)(9)(B).
\90\ 42 U.S.C. 3030c-2(b)(4)(E).
\91\ 42 U.S.C. 3030d(d).
\92\ 42 U.S.C. 3030s-2.
\93\ 42 U.S.C. 3058d(a)(4).
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Sec. 1321.9(c)(2)(xvii). Monitoring of State and Area Plan Assurances
The Act sets forth many assurances to which States must attest as a
part of their State plans and to which AAAs must attest as a part of
their area plans. We propose to specify that the State agency must have
policies and procedures to monitor compliance regarding the assurances
to which the State and area agencies attest.
Sec. 1321.9(c)(2)(xviii). Advance Funding
In response to comments received at listening sessions and
increased requests for technical assistance from State agencies, AAAs,
and service providers, ACL proposes to specify that State agencies may
advance funding to meet immediate cash needs of AAAs and service
providers, and if a State chooses to do so, the State agency must have
policies and procedures that comply with Federal requirements and
guidance as set forth by the Assistant Secretary for Aging.
Sec. 1321.9(c)(3). State Plan Process; Sec. 1321.9(c)(4). Area Plan
Process
We propose to add paragraphs 1321.9(c)(3) and (4) to ensure the
integrity and transparency of the State plan process and, in States
with multiple planning and service areas, of the area plan process. We
propose to require the State agency to have policies and procedures
that align with State and area plan requirements, including
establishing and complying with a minimum time period for public review
and comment for State and area plans, that are proposed at Sec. Sec.
1321.29 and 1321.65.
Sec. 1321.11 Advocacy Responsibilities
Section 1321.13 of the existing regulation (Advocacy
responsibilities) is redesignated here as Sec. 1321.11. Section
1321.11 sets forth the advocacy responsibilities of State agencies. As
proposed, these include advocacy, technical assistance, and training
activities. We propose additional minor revisions to these provisions
to include activities related to the National Family Caregiver Support
Program (NFCSP), which was added to the Act in 2000. Section 305(a)
\94\ of the Act provides that the State agency should serve as ``an
effective and visible advocate'' for older individuals and family
caregivers. Accordingly, we propose to revise Sec. 1321.11(a)(3) to
clarify that the State agency's obligations to comment on applications
to Federal and State agencies for assistance related to the provision
of needed services for older adults and family caregivers are not
limited to instances in which the State agency receives a request to do
so.
---------------------------------------------------------------------------
\94\ 42 U.S.C. 3025(a).
---------------------------------------------------------------------------
Sec. 1321.13 Designation of and Designation Changes to Planning and
Service Areas. [Updated Title and Revised]
Section 1321.29 of the existing regulation (Designation of planning
and service areas) is redesignated here as Sec. 1321.13 and is
retitled to better reflect the content of the proposed provision.
Section 305 \95\ of the Act requires the State agency to divide the
State into distinct planning and service areas and subsequently
designate an AAA to serve each planning and service area. The Act
allows for exceptions for some States to designate the entire State as
a single planning and service area. Single planning and service area
states may be geographically small, such as Rhode Island, or may be
sparsely populated relative to their geography, such as Alaska.
Dividing States into distinct planning and service areas allows for a
local approach to the planning, coordination, advocacy, and
administration responsibilities as required under the Act. We propose
to revise this section to affirm the State agencies' obligations to
have policies and procedures in place to ensure that
[[Page 39580]]
the State agency process of designating and changing planning and
service areas will be transparent, will hold the State agency
accountable for its decisions, and will afford due process to affected
parties. We also propose factors that a State agency should take into
account when it considers changing a planning and service area
designation, consistent with the aims of the Act. These factors include
the geographical distribution of older individuals in the State, the
incidence of the need for services under the Act, the distribution of
older individuals with greatest economic need or greatest social need,
the distribution of older individuals who are Native Americans, the
distribution of resources under the Act, the boundaries of existing
areas within the State, and the location of units of general purpose
local government. Since all States now have designated planning and
service areas, we propose to provide greater detail on the requirements
for changing planning and service areas, as specified in the Act, based
on questions we have received and areas of confusion that have been
expressed. For example, we anticipate that our proposal to require
State agencies to consider listed factors will resolve confusion over
how State agencies should make decisions about whether and how to
change planning and service area designations. We also solicit feedback
regarding any other relevant factors that should be specified in making
decisions on planning and service area designation.
---------------------------------------------------------------------------
\95\ 42 U.S.C. 3025.
---------------------------------------------------------------------------
Sec. 1321.15 Interstate Planning and Service Area
Section 1321.43 of the existing regulation (Interstate planning and
service area) is redesignated here as Sec. 1321.15. Revisions are
proposed to this provision to clarify the nature of an interstate
planning and service area (per section 305(b) \96\ of the Act), as well
as the process for requesting the Assistant Secretary to designate an
interstate planning and service area. Minor revisions have also been
made to reflect statutory updates, including language reflecting the
distribution of family caregiver support services funds under the Act,
and updates to cross references to other provisions within the
regulation.
---------------------------------------------------------------------------
\96\ 42 U.S.C. 3025(b).
---------------------------------------------------------------------------
Sec. 1321.17 Appeal to the Departmental Appeals Board on Planning and
Service Area Designation. [Updated Title and Revised]
Section 1321.31 (Appeal to Commissioner) is redesignated and
modified here as Sec. 1321.17 (Appeal to the Departmental Appeals
Board on planning and service area designation). Section 305(a)(1)(E)
\97\ of the Act provides State agencies authority to divide the State
into distinct planning and service areas to administer the Act's
services and benefits. A local government, region, metropolitan area or
Indian reservation may appeal a State agency's denial of designation
under the provisions of section 305(a)(1)(E) \98\ to the Assistant
Secretary for Aging who must then afford the entity an opportunity for
a hearing pursuant to section 305(b)(4) \99\ of the Act. There have
historically been very few appeals under section 305(a)(1)(E).\100\
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\97\ 42 U.S.C. 3025(a)(1)(E).
\98\ 42 U.S.C. 3025(a)(1)(E).
\99\ 42 U.S.C. 3025(b)(4).
\100\ 42 U.S.C. 3025(a)(1)(E).
---------------------------------------------------------------------------
We are proposing appeals of State agency decisions for designation
of planning and service areas be delegated to the HHS Departmental
Appeals Board (DAB) in accordance with the procedures set forth in 45
CFR part 16. The DAB may refer an appeal to its Alternative Dispute
Resolution Division for mediation prior to issuing a decision. This
proposed change aligns with our proposals in Sec. Sec. 1321.23 and
1321.39. We believe it continues to fulfill the Act's mandate to
provide opportunity for a hearing while streamlining administrative
functions and providing robust due process protections to appellants.
The HHS DAB provides impartial, independent review of disputed
decisions under more than 60 statutory provisions. We believe this
change will provide clarity and consistency to State agencies, AAAs and
is aligned with the intent of the Act.
Sec. 1321.19 Designation of and Designation Changes to Area Agencies.
[Updated Title and Revised]
Section 1321.33 of the existing regulation (Designation of area
agencies) is redesignated here as Sec. 1321.19 and is retitled to
better reflect the content of the proposed provision. section 305(b)
\101\ of the Act requires State agencies not located in single planning
and service area states to designate an AAA to serve each planning and
service area. We propose to specify that only one AAA shall be
designated to serve each planning and service area and that an
organization may be designated as an AAA for more than one planning and
service area. The Act intends that the AAA will proactively carry out,
under the leadership and direction of the State agency, a wide range of
functions designed to lead to the development or enhancement of
comprehensive and coordinated community-based systems in, or serving,
each community in the planning and service area. It is essential that
each AAA has the capacity to carry out such responsibilities and that
each AAA meets the Act's qualification requirements. The existing
regulation, however, contains only a few basic procedural requirements
under the Act related to the designation of AAAs and provides no
direction to State agencies with respect to this important function.
---------------------------------------------------------------------------
\101\ 42 U.S.C. 3025(a).
---------------------------------------------------------------------------
We propose to revise this provision to clarify the State agencies'
obligations to have policies and procedures in place to ensure that the
process of designating AAAs, as well as the voluntary or involuntary
de-designation of an AAA (withdrawal of AAA designation), will be
transparent, will hold the State agency accountable for its decisions,
and will afford due process to affected parties. We propose to provide
greater clarity to assist States in understanding the designation
process pursuant to section 305 \102\ of the Act and the types of
agencies permitted by the Act to serve as AAAs. Consistent with the
Act's requirements, we retain the existing restriction against a
regional or local State office serving as an AAA, and the provision
continues to reference the State agency's obligations under section 305
\103\ of the Act to provide a right of first refusal to a unit of
general purpose local government for AAA designation and to give
preference in such designation to an established office on aging if the
unit of general purpose local government elects not to exercise its
first refusal right. We request comment on the specifications proposed,
especially from State agencies and AAAs who have recent experience with
AAA designation processes.
---------------------------------------------------------------------------
\102\ 42 U.S.C. 3025.
\103\ 42 U.S.C. 3025.
---------------------------------------------------------------------------
Sec. 1321.21 Withdrawal of Area Agency Designation
Section 1321.35 of the existing regulation (Withdrawal of area
agency designation) is redesignated here as Sec. 1321.21 We propose
changes to paragraph (a) to clarify the circumstances under which a
State agency may withdraw designation to include failure to comply with
regulations and guidance as set forth by the Assistant Secretary for
Aging, if the State agency changes one or more planning and service
area designations, and if the AAA voluntarily requests withdrawal of
their designation. In paragraph (b) we propose a clarification that
changes to the designation of an
[[Page 39581]]
AAA must be included in the State plan on aging, with appropriate
cross-references. In paragraph (d) we propose that a State agency may
request an extension of time to perform the responsibilities of an AAA
after such designation has been withdrawn if the State agency has made
reasonable but unsuccessful attempts to procure another entity to be
designated as the AAA.
Sec. 1321.25 Duration, Format, and Effective Date of the State Plan
Section 1321.15 of the existing regulation (Duration, format, and
effective date of the State plan) is redesignated here as Sec.
1321.25. Minor changes have been made to update cross-references to
other provisions, to reflect updates to statutory language, and to
clarify the authority of the Assistant Secretary for Aging to provide
instructions to States regarding the formulation, duration, and
formatting of State plans.
Sec. 1321.27 Content of State Plan
Section 1321.17 of the existing regulation (Content of the State
plan) is redesignated here as Sec. 1321.27. As part of their
responsibilities, State agencies must develop and administer a multi-
year State plan on aging. The State plan delineates goals and
objectives related to assisting older individuals, their families, and
caregivers, and serves as a blueprint for achieving the goals and
objectives during the plan period. Section 307 \104\ of the Act sets
forth requirements that State plans must meet and content that must be
included. As Stated above, section 307 \105\ of the Act authorizes the
Assistant Secretary to prescribe criteria for State plan development
and content.
---------------------------------------------------------------------------
\104\ 42 U.S.C. 3027.
\105\ 42 U.S.C. 3027.
---------------------------------------------------------------------------
In response to the RFI and other requests for clarification, we
propose additional required core elements for the State plan, including
that the State plan: must provide evidence that it is informed by, and
based on, area plans; explain how individuals with greatest economic
need and greatest social need are determined and served; include the
State agency's intrastate funding formula or funds distribution plan;
demonstrate outreach to older Native Americans and coordination with
Title VI programs under the Act; certify that program development and
coordination activities will meet requirements; specify the minimum
proportion of funds that will be expended on certain categories of
services; provide information if the State agency allows for Title III-
C-1 funds to be used as set forth in proposed Sec. 1321.87(a)(1)(A);
describe how the State agency will meet its responsibilities for the
Legal Assistance Developer; explain how the State agency will use its
elder abuse prevention funding awarded pursuant to Title VII of the
Act; and describe how the State agency will conduct monitoring of the
assurances to which they attest. The proposed provision also clarifies
the Assistant Secretary's authority to establish objectives for State
plans, including objectives related to Title VII of the Act.
In response to significant feedback from stakeholders over the
years and numerous responses to the RFI, ACL proposes to specify that
the State plan must define greatest economic need and greatest social
need, including for the following populations: Native American persons;
persons who experience cultural, social, or geographical isolation
caused by racial or ethnic status; members of religious minorities;
lesbian, gay, bisexual, transgender, queer, and intersex (LGBTQI+)
persons; persons living with HIV or AIDS; persons with disabilities;
persons who live in rural areas; and persons otherwise adversely
affected by persistent poverty or inequality as the State defines it.
The Act directs State agencies and AAAs to focus attention, advocacy,
and service provision toward those in greatest economic need and
greatest social need. The listed populations include those identified
in Executive Order 13985 Advancing Racial Equity and Support for
Underserved Communities Through the Federal Government. We propose to
establish standard expectations for whom States must include in their
definitions of greatest economic need and greatest social need, while
still allowing for States to flexibly include other populations that
are specific to their circumstances. For example, one State may
identify a population within their State that has specific dietary
requirements that will be included in their definition of greatest
social need. When determining the definition of greatest economic need,
another State may include persons experiencing housing instability.
Another State may not specify any additional populations to be included
in their definitions of greatest economic need or greatest social need
at the State plan level, but encourage such additions at the area plan
level (for which we further propose requirements in Sec. 1321.65). We
welcome comment as to whether this approach sufficiently identifies
populations that all States must include as part of their definition of
greatest economic need and greatest social need and offers flexibility
to States to include additional populations.
We also propose to specify that upon identifying the populations of
greatest economic need and greatest social need, the State plan must
include how the State will target services to these populations,
including how funds under the Act may be distributed in accordance with
proposed intrastate funding formula or funds distribution plan
requirements at Sec. Sec. 1321.49 or 1321.51, respectively. For
example, a State may specify that it will use one factor based on the
low-income and rural population of individuals age 60 and older in its
intrastate funding formula to meet populations identified as in
greatest economic need and greatest social need. Another State may use
two separate factors, one for low-income individuals age 60 and older
and another for rural individuals age 60 and older.
As a part of their responsibilities under the State plan, State
agencies engage in program development and coordination activities to
meet the needs of older adults. State agencies also are encouraged to
translate activities, data, and outcomes into proven best practices,
which can be used to leverage additional funding and to build capacity
for long-term care efforts in the State, beyond what the Act alone can
support. State agencies also work in conjunction with and support of
AAAs who lead such efforts, including integrating health and social
services delivery systems. We propose for States to certify as a part
of their State plans that they will meet certain requirements,
including what funding sources can be used for program development and
coordination activities and what conditions apply to use of these
funds. We propose to specify that funds for program development and
coordination activities may only be expended as a cost of State plan
administration, area plan administration, or Title III-B supportive
services, under limited circumstances.
We propose to require States to specify the minimum proportion of
funds that will be expended on certain categories of services as
required by the Act in section 307(a)(2)(C),\106\ and include cross
reference to the legal assistance section at Sec. 1321.93.
---------------------------------------------------------------------------
\106\ 42 U.S.C. 3027.
---------------------------------------------------------------------------
The provision also includes a new requirement for States to provide
certain information regarding any permitted use of Title III C-1 funds
(funds for meals served in a congregate setting) for shelf-
[[Page 39582]]
stable, pick-up, carry-out, drive-through, or similar meals, as
permitted by new proposed Sec. 1321.87(a)(1)(A). The congregate meal
program is a core Title III program; in addition to a healthy meal, the
program provides opportunities for social interaction and health
promotion and wellness activities. In response to the COVID-19
pandemic, ACL provided guidance on innovative, permissible service
delivery options that grantees could provide meals to older individuals
and other eligible recipients of home-delivered meals with Title III C-
2 funds. In response to grantee and stakeholder comments on the RFI,
ACL proposes in new Sec. 1321.87 to allow these meal delivery methods
with respect to Title III C-1 congregate meal funds, subject to certain
terms and conditions. As this represents a proposed expansion of the
permitted use of congregate meals funds, State agencies must provide
information about this use of Title III C-1 funds in their State plans
to ensure that the State agencies are aware of, and will comply with,
the applicable terms and conditions and so that ACL will be aware of
the extent to which State agencies plan to implement this new allowable
use of Title III C-1 funds.
We propose to remove redundant provisions in Sec. 1321.27 that are
addressed in other more appropriate sections of the proposed revised
regulation (such as requirements related to State agency policies,
voluntary contributions, and means testing, which are addressed in
Sec. 1321.9). Also, minor revisions have been made to the provision to
delete references to statutory provisions that have been removed from
the Act or to delete language that does not align with current ACL
policy (such as the requirement in the existing provision that AAAs
compile available information on post-secondary education available to
older adults with little or no tuition).
With the increased expectations for information, assistance and
referral (I&A/R) systems to offer direct consumer support to a growing
population and the need to be responsive to emerging technology
solutions that streamline access to services and supports, ACL solicits
input on ways ACL and State agencies can support improvements in I&A/R
systems, including training of professionals and modernization of
information technology systems that are interoperable and streamline
access to services through electronic, closed loop referrals.
Sec. 1321.29 Public Participation
Section 1321.27 of the existing regulation (Public participation)
is redesignated here as Sec. 1321.29. The Act requires State agencies
to periodically solicit the views of older individuals, family
caregivers, service providers, and the public regarding the development
and administration of the State plan and the implementation of programs
and services under the Act. Sections 1321.29(a) and (b) set forth
obligations for public input, including that opportunities for public
participation should occur periodically and should include the views of
family caregivers and service providers, with particular attention to
those of greatest economic need and greatest social need. In response
to comments to the RFI, we propose that the public be given a
reasonable period of time within which to review proposed State plans
and that State plan documents be readily available to the public for
review. Pursuant to Federal civil rights laws, the State plan document
should be available in alternative formats and other languages if
requested.
Sec. 1321.31 Amendments to the State Plan
Section 1321.19 of the existing regulation (Amendments to the State
plan) is redesignated here as Sec. 1321.31. We propose substantial
revisions to this provision to clarify the circumstances under which
amendments to the State plan are necessary. The revised provision also
clarifies which amendments require prior approval by the Assistant
Secretary and which only need to be submitted for purposes of
notification. Amendments requiring prior approval are those necessary
to reflect new or revised statues or regulations as determined by the
Assistant Secretary for Aging; an addition, deletion, or change to a
State's goal, assurance, or information requirement Statement; a change
in the State's intrastate funding formula or funds distribution plan
for Title III funds; a request to waive State plan requirements; or
other changes as required by guidance as set forth by the Assistant
Secretary for Aging. Amendments for purposes of notification only are
those necessary to reflect a change in a State law, organization,
policy, or State agency operation; a change in the name or
organizational placement of the State agency; a request to distribute
State plan administration funds for demonstration projects; a change in
a planning and service area designation; a change in AAA designation; a
request to use funds set aside to address disasters as we propose to
further set forth in Sec. 1321.99; or a request to exercise major
disaster declaration flexibilities, as we propose to further set forth
in Sec. 1321.101. We also propose minor revisions to reflect statutory
updates.
Sec. 1321.33 Submission of the State Plan or Plan Amendment to the
Assistant Secretary for Aging for Approval. [Updated Title and Revised]
Section 1321.21 of the existing regulation (Submission of the State
plan or plan amendment to the Commissioner for approval) is
redesignated here as Sec. 1321.33 and has been retitled to reflect
statutory terminology updates. ACL's Regional Offices play a critical
role in ACL's administration and oversight of State plans on aging.
They provide technical assistance to State agencies regarding the
preparation of State plans and amendments and are responsible for
reviewing those that are submitted for compliance with the Act.
Currently, the regulations require States to submit for approval a plan
or amendment, signed by the Governor or the Governor's designee, 45
days prior to its proposed effective date. This 45-day period does not
provide adequate time for proper Regional Office review and provision
to the State by the Regional Office of appropriate technical
assistance, for the State then to make any changes that are required,
and for the State to re-submit the plan or amendment for further review
and approval. The failure to have a State plan or amendment approved in
a timely manner could result in significant ramifications to a State,
such as a lapse in funding under the Act. In addition, if a State only
submits a final, signed plan or amendment for review, and if changes
are needed in order to bring the plan or amendment into compliance with
the Act or the Assistant Secretary's guidance, the State agency could
find itself in the difficult position of having to arrange for the
Governor (or the Governor's designee) to re-execute the document. We
propose to improve the State plan and amendment submission and review
process by adding to this provision a requirement that the State agency
submit a draft of the plan or amendment to its assigned ACL Regional
Office at least 120 days prior to the proposed effective date and a
requirement that the State agency cooperate with the Regional Office in
the review of the plan or amendment for compliance with applicable
requirements. We welcome comments suggesting ways to improve the State
plan and amendment approval process.
[[Page 39583]]
Sec. 1321.35 Notification of State Plan or State Plan Amendment
Approval or Disapproval for Changes Requiring Assistant Secretary for
Aging Approval. [Updated Title and Revised]
The provision contained in Sec. 1321.23 of the existing regulation
(Notification of State plan or State plan amendment approval) is
redesignated here as Sec. 1321.35. We also propose changes to Sec.
1321.35(b) for consistency with other related provisions that address
appeals to the Assistant Secretary regarding disapproval of State plans
or amendments.
Sec. 1321.39 Appeals to the Departmental Appeals Board Regarding State
Plan on Aging. [Updated Title and Revised]
Section 1321.77 of the existing regulation (Scope) is redesignated
here at Sec. 1321.39, retitled, and modified. Section 305 \107\ and
307 \108\ of the Act, respectively, require a State to designate a
State agency to carry out Title III programs and develop a State plan
on aging to be submitted to the Assistant Secretary for Aging for
approval. Per section 307(c)(1) \109\ the Assistant Secretary shall not
make a final determination disapproving any State plan, or any
modification thereof, or make a final determination that a State is
ineligible under section 305,\110\ without first affording the State
reasonable notice and opportunity for a hearing.
---------------------------------------------------------------------------
\107\ 42 U.S.C. 3025.
\108\ 42 U.S.C. 3027.
\109\ Id. at (c)(1).
\110\ 42 U.S.C. 3025.
---------------------------------------------------------------------------
In the past the Assistant Secretary for Aging would have
facilitated the appeals process. We propose, in line with our proposals
at revised Sec. 1321.17 and new Sec. 1321.23, that appeals be
delegated to the Departmental Appeals Board (DAB) in accordance with
the procedures set forth in 45 CFR part 16. The Board will hear the
appeal and may refer an appeal to the DAB's Alternative Dispute
Resolution Division for mediation prior to issuing a decision.
Delegation of appeals to the DAB will continue to fulfill the
statutory mandate to afford a State reasonable notice and opportunity
for a hearing, while streamlining administrative functions and
providing robust due process protections. The HHS DAB provides
impartial, independent review of disputed decisions under more than 60
statutory provisions. We believe this change will provide clarity and
consistency to State agencies and is aligned with the intent of the
Act.
Sec. 1321.41 When a Disapproval Decision Is Effective. [Updated Title
and Revised]
In this section, redesignated from existing Sec. 1321.79,
retitled, and modified, we propose to delete reference to the
``Assistant Secretary for Aging'' and replace it with ``the
Departmental Appeals Board'' to align with changes proposed at Sec.
1321.39.
Sec. 1321.43 How the State May Appeal the Departmental Appeals Board's
Decision. [Updated Title and Revised]
In this section, redesignated from Sec. 1321.81 and retitled, we
propose to delete reference to the ``Assistant Secretary for Aging''
and replace it with ``the Departmental Appeals Board'' to align with
changes proposed at Sec. 1321.39.
Sec. 1321.45 How the Assistant Secretary for Aging May Reallot the
State's Withheld Payments. [Updated Title and Revised]
The provision contained in Sec. 1321.83 of the existing regulation
(How the Commissioner may reallot the State's withheld payments) is
redesignated here as Sec. 1321.45. The provision has been retitled,
and minor, non-substantive changes are proposed to the provision to
reflect statutory terminology updates.
Sec. 1321.49 Intrastate Funding Formula
The provision contained in Sec. 1321.37 of the existing regulation
(Intrastate funding formula) is redesignated here as Sec. 1321.49.
States with multiple planning and service areas provide funding to AAAs
through the IFF. Section 305 \111\ of the Act sets forth requirements
for the IFF while, at the same time, affording States some
flexibilities in its development and implementation. The proposed
changes to this provision are designed to assist State agencies develop
IFFs in compliance with the Act's requirements; to clarify the options
available to State agencies; and to aid them in implementation of their
IFFs. In paragraph (a), we propose to specify that the State agency
must include the IFF in the State plan, in accordance with guidelines
issued by the Assistant Secretary and using the best available data;
that the formula applies to supportive, nutrition, evidence-based
disease prevention and health promotion, and family caregiver services
provided under Title III of the Act; and that a separate formula for
evidence-based disease prevention and health promotion may be used, as
provided in section 362 \112\ of the Act.
---------------------------------------------------------------------------
\111\ 42 U.S.C. 3025.
\112\ 42 U.S.C. 3030n.
---------------------------------------------------------------------------
In paragraph (b) we propose to clarify the elements of the IFF. The
elements include a descriptive Statement and application of the State's
definitions of greatest economic need and greatest social need; a
Statement that discloses any funds deducted for allowable purposes of
State plan administration, Ombudsman program, or disaster set aside
funds, as proposed in Sec. 1321.99; whether a separate formula for
evidence-based disease prevention and health promotion is used; how the
Nutrition Services Incentive Program funds will be distributed; a
numerical mathematical Statement that describes each factor for
determining how funds will be allotted and the weight used for each
factor; a listing for the data to be used for each planning and service
area in the State; a Statement of the allocation of funds to each
planning and service area in the State; and the source of the best
available data used to allocate the funding.
In paragraph (c) we propose to identify prohibitions related to the
IFF. Prohibitions include that the State may not: withhold funds from
distribution through the formula, except where expressly allowed for
State plan administration, disaster set aside funds as proposed at
Sec. 1321.99, or the Ombudsman program; exceed State and area plan
administration caps as proposed at Sec. 1321.9(c)(2)(iv); use Title
III-D funds for area plan administration; distribute funds to any
entity other than a designated AAA, except where expressly allowed for
State plan administration funds, Title III-B Ombudsman funds, and
disaster set-aside funds as proposed in Sec. 1321.99; and use funds in
a manner that is in conflict with the Act.
In paragraph (d) we propose to specify other requirements that
apply to distribution of Nutrition Services Incentive Program funds,
including that cash must be promptly and equitably disbursed to
nutrition projects under the Act and provisions relating to election of
agricultural commodities. In paragraph (e) we propose that Title VII
funds or Title III-B Ombudsman program funds under the Act may be
distributed outside the IFF. This subsection also allows the State
agency to determine the amount of funding available for area plan
administration before deducting funds for Title III-B Ombudsman program
and disaster set-aside funds. We propose that a State agency may
reallocate funding within the State when the AAA voluntarily or
otherwise returns funds, subject to the State agency's policies and
procedures.
Proposed revisions to paragraph (f) reflect statutory updates and
to cross
[[Page 39584]]
reference to other provisions within the regulation.
Sec. 1321.51 Single Planning and Service Area States. [Updated Title
and Revised]
The provision contained in Sec. 1321.41 of the existing regulation
(Single state planning and service area) is redesignated here as Sec.
1321.51 and retitled. Most of the language of the existing provision
relates to confirming the approval of an application of a state which,
on or before October 1, 1980, was a single planning and service area,
to continue as a single planning and service area if the State agency
met certain requirements. Only State agencies currently designated as a
single planning and service area state may have such status;
accordingly, we propose to delete this language and clarify the
specific requirements that apply to operating as a single planning and
service area state. Single planning and service area states are
addressed elsewhere in our proposed regulations including proposed
definitions in Sec. 1321.3 and regarding designation of and changes to
planning and service areas in Sec. 1321.13.
Based on questions we have received from such states, we propose
clarifications that single planning and service area states must meet
requirements for AAAs, unless otherwise specified. In paragraph (b), we
propose to clarify that single planning and service area states, as
part of their State plan, must include a funds distribution plan that
mirrors many of the requirements of the intrastate funding formula for
states with multiple planning and service areas, minus distribution to
AAAs. The State must also provide justification if it wishes to provide
services directly and believes it meets applicable requirements to do
so, as set forth in section 307(a)(8)(A). We propose this change to
promote transparency and good stewardship of public funds. In paragraph
(c) we propose that single planning and service area states may revise
their funds distribution plans, subject to their policies and
procedures and prior approval of the Assistant Secretary. Revisions
also have been made to reflect statutory updates.
Subpart C--Area Agency Responsibilities
Sec. 1321.55 Mission of the Area Agency
The provision contained in Sec. 1321.53 of the existing regulation
(Mission of the area agency) is redesignated here as Sec. 1321.55.
This provision specifies the AAA's mission, role, and functions as the
lead on aging issues in its planning and service area under the Act.
The social services systems in which AAAs and their community
partners operate today differs greatly from that which existed in 1988
when the existing regulation was promulgated. For example, in 1988 much
of the work of AAAs involved the establishment and maintenance of focal
points, which at that time were identified as ``a facility established
to encourage the maximum collocation and coordination of services for
older individuals.'' The existing language set forth in Sec.
1321.53(c) regarding an AAA's obligations with respect to focal points
goes well beyond the requirements with respect to focal points that are
set forth in section 306(a) \113\ of the Act. Focal points in current
Sec. 1321.53(c) are focused on the need for bricks-and-mortar
facilities such as multipurpose senior centers. In light of the social
service systems climate in which AAAs operate today, the existing
language confining these focal points to facilities may impede an AAA's
ability to develop and enhance a comprehensive and coordinated
community-based systems in, or serving, its planning and service area,
as contemplated by the Act. Accordingly, we propose to delete the
language from this paragraph related to an AAA's obligations with
respect to focal points.
---------------------------------------------------------------------------
\113\ 42 U.S.C. 3026(a).
---------------------------------------------------------------------------
We also propose minor revisions to this provision to align with
updates to statutory terminology and requirements resulting from
reauthorizations (e.g., adding family caregivers as a service
population per the 2000 reauthorization) and to emphasize the Act's aim
that priority be given to serving older adults with greatest economic
need and greatest social need.
Sec. 1321.57 Organization and Staffing of the Area Agency
The provision contained in Sec. 1321.55 of the existing regulation
(Organization and staffing of the area agency) is redesignated here as
Sec. 1321.57.
The existing language in paragraph (a)(2) of this provision
prohibits a separate organizational unit within a multi-purpose agency
which functions as the AAA from having any purpose other than serving
as an AAA. The Act promotes AAAs as innovative, collaborative
organizations which adapt to ever-evolving social service, health and
economic climates. We propose to eliminate this prohibition to provide
more flexibility to AAAs to conduct their operations, subject to State
agency policies and procedures. Adequate safeguards exist in the Act
and in the regulations (such as requirements with respect of conflicts
of interest) to render this restriction unnecessary.
We also propose a minor revision to paragraph (a)(1) to take into
account the addition of family caregivers as a service population
pursuant to the 2000 reauthorization of the Act. We also propose minor
revisions to this provision to update cross-references to other
sections of the regulation.
Sec. 1321.61 Advocacy Responsibilities of the Area Agency
We propose minor revisions to this provision for clarity and to
take into account the addition of family caregivers as a service
population pursuant to the 2000 reauthorization of the Act.
Sec. 1321.63 Area Agency Advisory Council
The provision contained in Sec. 1321.57 of the existing regulation
(Area agency advisory council) is redesignated here as Sec. 1321.63.
Section 306 \114\ of the Act requires AAAs to seek public input with
respect to the area plan; accordingly, we propose new language in this
section clarifying the AAA's advisory council duties with regards to
soliciting and incorporating public input. Minor changes are proposed
to the language describing the required composition of the advisory
council, in order to clarify (1) that council members should include
individuals and representatives of community organizations from or
serving the AAA's planning and service area, including those identified
as in greatest economic need or greatest social need; (2) that a main
focus of the council should be to assist the AAA in targeting
individuals of greatest social need and greatest economic need; and (3)
that providers of the services provided pursuant to Title III of the
Act, as well as Indian Tribes and older relative caregivers, should be
represented in the council.
---------------------------------------------------------------------------
\114\ 42 U.S.C. 3026.
---------------------------------------------------------------------------
We also propose minor revisions to this provision to take into
account the addition of family caregivers as a service population
pursuant to the 2000 reauthorization of the Act.
Sec. 1321.65 Submission of an Area Plan and Plan Amendments to the
State for Approval
The provision contained in Sec. 1321.52 (Evaluation of unmet need)
and Sec. 1321.59 (Submission of an area plan and plan amendments to
the State for approval) of the existing regulation are combined and
redesignated here as Sec. 1321.65. The State agency is
[[Page 39585]]
responsible for ensuring that area plans comply with the requirements
of section 306 \115\ of the Act. We propose revisions to this provision
to clarify for State agencies the area plan requirements that should be
addressed by State policies and procedures. These include
identification of populations in the planning and service area of
greatest economic need and greatest social need; evaluation of unmet
needs; public participation in the area plan development process; plans
for which services will be provided, how services will be provided, and
how funding will be distributed; a process for determining if a AAA
meets requirements to provide certain direct services pursuant to
section 307(a)(8) \116\ of the Act; minimum adequate proportion
requirements per section 306(a)(2) \117\ of the Act; and requirements
for program development and coordination activities as proposed to be
set forth in Sec. 1321.27(h). States may include other requirements
that meet State-specific needs.
---------------------------------------------------------------------------
\115\ Ibid.
\116\ 42 U.S.C. 3027(a)(8).
\117\ 42 U.S.C. 3026(a)(2).
---------------------------------------------------------------------------
We also propose to make an addition to area plan requirements to
reflect changes in the nutrition program. The congregate meal program
is a core Title III nutrition program, with designated funding and
requirements as set forth under Title III C-1 of the Act. In addition
to a healthy meal, the program provides opportunities for social
interaction and health promotion and wellness activities. In response
to the COVID-19 pandemic, ACL provided guidance on innovative service
delivery options that grantees could take advantage of to provide meals
to older individuals and other eligible recipients of home-delivered
meals with Title III C-2 funds.\118\ These options included shelf-
stable, pick-up, carry-out, drive-through, or similar meals. In
response to input received from grantees and stakeholders pursuant to
the RFI, ACL proposes in new Sec. 1321.87 to also allow these meal
delivery methods with respect to Title III C-1 congregate meal funds,
subject to certain terms and conditions. This proposal marks an
expansion of the permitted use of congregate meals funds. Therefore, if
State agency policies and procedures allow for this service option,
AAAs will be required to provide this information in their area plans
to ensure AAAs are aware of, and in compliance with, the applicable
terms and conditions for use of such funds. It will also provide State
agencies and ACL necessary information to determine the extent to which
AAAs plan to implement this allowable use of Title III C-1 funds for
new service delivery methods.
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\118\ ACL, Frequently Asked Questions--Nutrition Services and
Emergency Management (March 12, 2020) <a href="https://acl.gov/sites/default/files/COVID19/C19FAQ-NutritionEM_2020-03-12.pdf">https://acl.gov/sites/default/files/COVID19/C19FAQ-NutritionEM_2020-03-12.pdf</a> (last visited Jan.
18, 2023).
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In paragraphs (c) and (d) we propose additions to reflect statutory
updates with respect to inclusion of hunger, food insecurity,
malnutrition, social isolation, and physical and mental health
conditions and furnishing of services consistent with self-directed
care in area plans.
In response to questions received, we propose to clarify in
paragraph (e) that area plans must be coordinated with and reflect
State plan goals. This provision parallels proposed Sec. 1321.27(c),
which requires the State plan to provide evidence the plan is informed
by and based on area plans. State and area plans may have cycles that
align or vary, based on multiple considerations. With this provision,
we wish to clarify that State and area plans processes should be
iterative, where each informs the other. We welcome comments regarding
this proposed clarification.
Subpart D--Service Requirements
Sec. 1321.71 Purpose of Services Allotments Under Title III
The provision contained in Sec. 1321.63 of the existing regulation
(Purpose of services allotments under Title III) is redesignated here
as Sec. 1321.71. We propose minor revisions to this provision to
reflect statutory updates with respect to services provided under Title
III, as well as to provide consistency with other proposed updates to
the regulation. For example, we propose minor revisions to this
provision to take into account the addition of the National Family
Caregiver Support Program and family caregivers as a service population
pursuant to the 2000 reauthorization of the Act. Additional minor
revisions are proposed for clarity, such as distinctions in the manner
in which Title III funds are awarded between single planning and
service area states and states with AAAs, with cross references to
proposed language on intrastate funding formulas, funds distribution
plans, and provision of direct services by State agencies and AAAs.
Sec. 1321.73 Policies and Procedures. [Updated Title and Revised]
The provisions contained in Sec. 1321.65 of the existing
regulation (Responsibilities of service providers under area plans) are
redesignated and proposed to be revised in part here as Sec. 1321.73
and Sec. 1321.79. Proposed Sec. 1321.73 sets forth requirements to
ensure AAAs and local service providers develop and implement policies
and procedures to meet requirements as set forth by State agency
policies and procedures, in accordance with proposed Sec. 1321.9.
Accordingly, we propose to move the requirements currently set forth in
(b)-(g) to other sections. We also propose to specify that the State
agency and AAAs must develop monitoring processes, which are encouraged
to be made available to the public to ensure accountability and
stewardship of public funds, as required by the Act.
Sec. 1321.75 Confidentiality and Disclosure of Information
Proposed Sec. 1321.75 reorganizes and redesignates existing Sec.
1321.51. The revised section proposes updated requirements for State
agencies' and AAAs' confidentiality procedures. State agencies and AAAs
collect sensitive, legally protected information from older adults and
family caregivers during their work. Our proposed revisions will
enhance the protections afforded OAA participants. Revised Sec.
1321.75 also adds ``family caregivers''' as a service population under
the Act to reflect the 2000 reauthorization of the Act.
We propose to clarify the obligation of State agencies, AAAs, or
other contracting, granting, or auditing agencies to protect
confidentiality. For example, the provision prohibits providers of
Ombudsman program services to reveal any information protected under
the provisions in Sec. 1324 Subpart A, State Long-Term Care Ombudsman
Program. Similarly, State agencies, AAAs, and others subject to this
provision may not require a provider of legal assistance under the Act
to reveal any information that is protected by attorney client
privilege, including information related to the representation of the
client.\119\
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\119\ The American Bar Assn., Model Rules of Professional
Conduct: Rule 1.6 Confidentiality of Information (last visited Jan.
18, 2023).
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The policies and procedures required under this section must ensure
that service providers promote the rights of each older individual who
receives such services, including the right to confidentiality of their
records. We further propose that the policies and procedures must
comply with all applicable Federal laws, codes, rules and regulations,
including the Health Insurance and Portability and Accountability Act
(HIPAA). The State
[[Page 39586]]
agency may also require the application of other laws and guidance for
the collection, use, and exchange of both Personal Identifiable
Information (PII) and Personal Health Information (PHI).
Proposed Sec. 1321.75 includes exceptions to the requirement for
confidentiality of information. PII may be disclosed with the informed
consent of the person or of their legal representative, or as required
by court order. We also propose to allow disclosure for program
monitoring and evaluation by authorized Federal, State, or local
monitoring agencies. Under the proposed provision, State agencies'
policies and procedures may explain that individual information and
records may be shared with other State and local agencies, community-
based organizations, and health care providers and payers to provide
services, and we encourage agencies to develop memoranda of
understanding regarding access to records for such purposes. We further
seek comment to ensure we sufficiently set forth this exception to the
confidentiality requirement.
Sec. 1321.79 Responsibilities of Service Providers Under State and
Area Plans. [Updated Title and Revised]
The provision contained in Sec. 1321.65 of the existing regulation
(Responsibilities of service providers under area plans) is
redesignated in part here as Sec. 1321.79 and at Sec. 1321.73 and is
retitled for clarity. Minor revisions are proposed to this provision to
reflect statutory updates with respect to family caregiver services
provided under Title III, as well as to emphasize that providers should
seek to meet the needs of individuals in greatest economic need and
greatest social need. We propose to encourage providers to offer self-
directed services to the extent feasible and acknowledge service
provider responsibility to comply with local adult protective services
requirements, as appropriate. We propose that this provision apply to
both State plans, as well as to area plans, as there are circumstances
in which a service provider may provide services under a State plan
(such as in a single planning and service area state). The language in
paragraph (a) of the existing provision (reporting requirements) has
been moved to Sec. 1321.73, which addresses accountability
requirements applicable to service providers.
Sec. 1321.83 Client and Service Priority. [Updated Title and Revised]
The provision contained in Sec. 1321.69 of the existing regulation
(Service priority for frail, homebound or isolated elderly) is
redesignated here as Sec. 1321.83 and is retitled for clarity. We
received numerous inquiries about how State agencies and AAAs should
prioritize providing services to various groups. Questions included
whether there was an obligation to serve everyone who sought services
and whether services were to be provided on a first-come, first-served
basis. Questions about prioritization were particularly prevalent in
response to demand for services created by the COVID-19 public health
emergency. Entities sought clarification on whether they are permitted
to set priorities, who is permitted to set priorities, and the degree
to which entities have discretion to set their own priority parameters.
Proposed Sec. 1321.101 clarifies that entities may prioritize
services and that they have flexibility to set their own policies in
this regard. It also clarifies that States are permitted to set service
priorities, but they may delegate that responsibility to the AAA, and
the AAA may, in turn, delegate the responsibility to local service
providers. We also propose revisions to this provision to take into
account the addition of the National Family Caregiver Support Program,
family caregivers as a service population, and priorities for serving
family caregivers pursuant to the 2000 reauthorization of the Act.
Sec. 1321.93 Legal Assistance
The provision contained in Sec. 1321.71 of the existing regulation
(Legal assistance) is redesignated here as Sec. 1321.93. We are
proposing modifications to Sec. 1321.93 Legal Assistance, to better
reflect the purpose of the Act, and especially the application of
section 101 \120\ to elder rights and legal assistance and to clarify
and simplify implementation of the statutory requirements of State
agencies, AAAs and the legal assistance providers with which the AAAs
or State agencies, where appropriate, must contract to procure legal
assistance for qualifying older adults. Section 101(10),\121\ in
particular, finds that older people are entitled to ``Freedom,
independence, and the free exercise of individual initiative in
planning and managing their own lives, full participation in the
planning and operation of community-based services and programs
provided for their benefit, and protection against abuse, neglect, and
exploitation.'' Legal assistance programs funded under Title III-B of
the Act play a pivotal role in ensuring that this objective is met.
Additionally, legal assistance programs further the mission of the Act
as set forth in section 102(23) and (24) \122\ by serving the needs of
those with greatest economic need or greatest social need, including,
historically underrepresented, and underserved populations, such as
people of color, LGBTQI+ older adults, those who have LEP, and those
who are isolated by virtue of where they live, such as rural elders,
those who are homebound and those residing in congregate residential
settings.
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\120\ 42 U.S.C. 3001.
\121\ Ibid. at (10).
\122\ 42 U.S.C. 3002(23) and (24).
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ACL intends to offer technical assistance, pursuant to section
202(a)(6) \123\ of the Act, to States, AAAs, and legal assistance
service providers, to enable all parties to understand and most
effectively coordinate with each other to carry out the provisions of
this section.
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\123\ 42 U.S.C. 3012(a)(6).
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We propose to combine all regulatory provisions relevant to legal
assistance into one section. The purpose of this revision is to
mitigate historic and existing confusion and misconceptions about legal
assistance, achieve clarity and consistency, and create greater
understanding about legal assistance and elder rights. We further
propose a technical correction to change the reference to statutory
language in section (a) of the regulation from Sec. 307(a)(15) \124\
to Sec. 307(a)(11),\125\ which sets forth State plan requirements to
legal assistance. Section 307(a)(15) sets forth requirements for
serving older people with LEP.
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\124\ 42 U.S.C. 3027(a)(15).
\125\ Ibid. at (a)(11).
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Proposed Sec. 1321.93(a) provides a general definition of legal
assistance based on the definition in section 102(33) \126\ of the Act.
Proposed Sec. 1321.93(b) sets forth the requirements for the State
Agency on Aging to add clarity about its responsibilities. The State
Agency on Aging is required to address legal assistance in the State
plan and to allocate a minimum percentage of funding for legal
assistance. The State plan must assure that the State will make
reasonable efforts to maintain funding for legal assistance. Funding
for legal assistance must supplement and not supplant funding for legal
assistance from other sources, such as the grants from the Legal
Services Corporation. The State is also obligated to provide advice,
training, and technical assistance support for the provision of legal
assistance as provided in proposed Sec. 1321.93 and section 420(a)(1)
\127\ of the Act. As part of its oversight role, the State Agency on
Aging must ensure that
[[Page 39587]]
the statutorily required contractual awards by AAAs to legal assistance
providers meet the requirements of Sec. 1321.93(c).
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\126\ 42 U.S.C. 3002(33).
\127\ 42 U.S.C. 3032i(a)(1).
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Proposed Sec. 1321.93(c) sets forth the requirements for the AAA
with regard to legal assistance. Similar to the State agency
requirement to designate a minimum percentage of Title III-B funds to
be directed towards legal assistance, the AAAs must take that minimum
percentage from the State agency and expend at least that sum, if not
more, in an adequate proportion of funding on legal assistance and
enter into a contract to procure legal assistance. The proposed rule
reflects the statute and existing regulation in stating requirements
for the AAAs to follow when selecting the best qualified provider for
legal assistance, including that the selected provider demonstrate
expertise in specific areas of law that are given priority in the Act,
which are income, health care, long-term care, nutrition, housing,
utilities, protective services, abuse, neglect, age discrimination, and
defense against guardianship. Section 1321.93(c) also sets forth
standards for contracting between AAAs and legal assistance providers,
including requiring the selected provider to assist individuals with
LEP, including in oral and written communication. The selected provider
must also ensure effective communication for individuals with
disabilities, including by providing appropriate auxiliary aids and
services. where necessary. We also clarify that the AAA is precluded
from requiring a pre-screening of older individuals seeking legal
assistance or from acting as the sole and exclusive referral pathway to
legal assistance.
We call particular attention to two proposed areas of law given
priority in the Act, section 307(a)(11)(E).\128\ The first is long-term
care, which we interpret to include rights of individuals residing in
congregate residential settings and rights to alternatives to
institutionalization. Legal assistance staff with the required
expertise in alternatives to institutionalization would be
knowledgeable about Medicaid programs such as the Money Follows the
Person demonstration, which helps individuals transition from an
institutional setting to a community setting, as well as Medicaid home
and community-based services (HCBS) authorities and implementing
regulations, including HCBS settings requirements, that allow
individuals to receive Medicaid-funded services in their homes and
community. To demonstrate this expertise, staff would exhibit the
ability to represent individuals applying for such programs; to appeal
denials or reductions in the amount, duration, and scope of such
services; and to assist individuals who want to transition to the
community. With regard to expertise around institutionalization, ACL
expects legal assistance staff to work very closely with the Ombudsman
program to protect resident rights, including the right to seek
alternatives to institutionalization and the right to remain in their
chosen home in a facility by manifesting the knowledge and skills to
represent residents and mount an effective defense to involuntary
discharge or evictions.
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\128\ 42 U.S.C. 3027(a)(11)(E).
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The other proposed area of focus is guardianship and alternatives
to guardianship. Section 307(a)(11)(E) \129\ of the Act also States:
``area agencies on aging will give priority to legal assistance related
to . . . defense of guardianship.'' We interpret this provision to
include advice to and representation of proposed protected persons to
oppose appointment of a guardian and representation to seek revocation
of or limitations of a guardianship. It also includes assistance that
diverts individuals from guardianship to less restrictive, more person-
directed forms of decision support such as health care and financial
powers of attorney, advance directives and supported decision-making,
whichever tools the client prefers, whenever possible.
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\129\ Ibid.
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Despite the clear prioritization of legal assistance to defend
against imposition of guardianship of an older person, the Act in
section 321(a)(6)(B)(ii) \130\ also states Title III-B legal services
may be used for legal representation ``in guardianship proceedings of
older individuals who seek to become guardians, if other adequate
representation is unavailable in the proceedings.'' The language in
section 321(a)(6)(B)(ii) \131\ and the language in section
307(a)(11)(E) \132\ have been interpreted by some AAAs and some
contracted legal providers as meaning funding under the Act can be used
to petition for guardianship of an older adult, rather than defending
older adults against guardianship.
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\130\ 42 U.S.C. 3030d(a)(6)(B)(ii).
\131\ Id.
\132\ 42 U.S.C. 3027(a)(11)(E).
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Guardianship is a legal determination that infringes upon the
rights and self-determination of individuals who are purported to lack
capacity for decision-making. Guardianship disproportionately impacts
older adults and adults with disabilities. We seek comments on how to
reconcile the language in Sec. 321(a)(6)(B)(ii) \133\ with the general
intent of the Act, as set forth in Sec. 101(10),\134\ to provide older
people with freedom, independence, and the free exercise of individual
initiative in planning and managing their own lives.
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\133\ 42 U.S.C. 3030d(a)(6)(B)(ii).
\134\ 42 U.S.C. 3001(10).
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Specifically, our goal is to clarify the role of legal assistance
providers to promote self-determination and person-directedness and
support older individuals to make their own decisions in the event of
future diminished decisional capacity. We also want to preclude
conflicts of interest or the appearance of conflicts of interest that
may arise if a legal assistance program represents petitioners to take
away decisional rights of older persons and proposed protected persons
or protected persons seeking to oppose or revoke appointment of a
guardian. Additionally, public guardianship programs in some States,
and private practitioners in all States, are generally more available
and willing to represent petitioners to establish guardianship over
another adult than they are to represent older adults over whom
guardianship is sought. The primary role of legal assistance providers
is to represent older adults who are or may be subjected to
guardianship to advance their values and wishes in decision-making.
Legal assistance resources are scarce and accordingly should be
preserved to represent older adults at grave risk of being deprived of
the basic human right to make their own decisions. ACL believes that
legal assistance should not be used to represent a petitioner for
guardianship of an older person except in the rarest of circumstances
and seeks comment, as described above.
If we were to include the statutory exception in the regulations,
we expect that it would apply in the very limited situation of (1)
someone who is eligible for Older Americans Act services, (2) who seeks
to become a guardian of another individual when no other alternatives
to guardianship are appropriate, and (3) where no other adequate
representation is available. The legal assistance provider undertaking
such representation would have to establish that the petitioner is over
60, and that no alternatives to guardianship, as discussed above, are
available. The provider would also have to establish that no other
adequate representation is available through public guardianship
programs that
[[Page 39588]]
many States have established, through bar associations and other pro
bono services, or through hospitals, nursing homes, adult protective
services, or other entities and practitioners that represent
petitioners for guardianship. A legal assistance program that would
bring guardianship proceedings as part of its normal course of
business, that represents a relative of an older person as petitioner
at the request of a hospital or nursing facility to seek the
appointment of a guardian to make health care decisions, or that
undertakes representation at the behest of adult protective services
would not satisfy our interpretation of the limited applicability of
the exception. These parties have access to counsel for representation
in petitioning for guardianship.
We request comments on whether the proposed regulatory language is
consistent with ACL's goal of promoting self-determination and the
rights of older people. We also are interested in comments that
describe the extent to which legal assistance programs represent an
older person who seeks to become a guardian, the circumstances that
precipitate the guardianship proceeding, whether alternatives to
guardianship have been considered, and the availability of bar
association and other pro bono options for representation of the
petitioner.
Proposed Sec. 1321.93(d) sets forth the requirements for legal
assistance providers. Providers must provide legal assistance to meet
complex and evolving legal needs that may arise involving a range of
private, public, and governmental entities, programs, and activities
that may impact an older adult's independence, choice, or financial
security, and the standards AAAs must use to select the legal
assistance provider or providers with which to contract. The provider
selected as the ``best qualified'' by a AAA must have demonstrated
capacity to represent older individuals in both administrative and
judicial proceedings. Representation is broader than providing advice
and consultation or drafting simple documents; it encompasses the
entire range of legal assistance, including administrative and judicial
representation, including in appellate forums.
Legal assistance providers must maintain the expertise required to
capably handle matters related to all the priority case type areas
under the Act, including income, health care, long-term care,
nutrition, housing, utilities, protective services, abuse, neglect, age
discrimination and defense against guardianship. Under our proposed
rule, a legal assistance provider that focuses only on one area,
especially an area not specified by the Act as a priority case type,
such as drafting testamentary wills, and that does not provide a
broader range of services designated by the Act as priorities or
represent individuals in administrative and judicial proceedings, would
not meet the requirements of this section and the Act. An AAA that
contracted with such a provider would also not meet their obligations
under proposed Sec. 1321.93(b) and under the Act.
We propose that, as required by the Act and existing regulation,
legal assistance providers must maintain the capacity to collaborate
and support the Ombudsman program in their service area. Legal
assistance providers must cooperate with the Ombudsman in entering into
the Memorandum of Understanding proffered by the Ombudsman as required
pursuant to section 712(h)(8) of the Act. Legal assistance programs are
required to collaborate with other programs that address and protect
elder rights. We encourage coordination and collaboration with Adult
Protective Services programs, State Health Insurance Assistance
Programs, Protection and Advocacy systems, AAA and Aging and
Disabilities Resource Center options counselors and I&A/R specialists,
nutrition programs, and similar partners where such coordination and
collaboration promote the rights of older adults with the greatest
economic need or greatest social need. Similarly, existing statutory
and regulatory provisions urge legal assistance providers that are not
housed within Legal Services Corporation grantee entities to coordinate
their services with existing Legal Services Corporation projects. Such
coordination will help ensure that services under the Act are provided
to older adults with the greatest economic need or greatest social need
and are targeted to the specific legal problems such older adults
encounter. We will provide technical assistance on all of these
required practices.
As indicated in proposed Sec. 1321.9(c)(2)(xi), cost sharing for
legal assistance services is prohibited. This means that a client may
not be asked or required to provide a fee to the provider, as is
sometimes the practice with some Bar Association referral services.
Likewise, the Act prohibits requiring contributions from legal
assistance clients before or during the course of representation. Only
after the conclusion of representation may a request for a contribution
be made. If a client chooses to voluntarily make a contribution, the
proceeds must be applied to expanding the service category.
The proposed rule precludes a legal assistance program from asking
an individual about their personal or family financial information as a
condition of establishing eligibility to receive legal assistance. Such
information may be sought when it is relevant to the legal service
being provided. Requesting financial information would be appropriate,
for example, when an older person is seeking assistance with an appeal
of denial of benefits, such as Medicaid and Supplemental Nutrition
Assistance Program (SNAP), that have financial eligibility
requirements.
The proposed rule requires legal assistance provider attorney staff
and non-attorney personnel under the supervision of legal assistance
attorneys to adhere to the applicable Rules of Professional Conduct for
attorneys. Such non-attorney staff may include law students,
paralegals, nurses, social workers, case managers, and peer counselors.
Even if such non-attorney staff have their own rules of professional
conduct, they must still adhere to the applicable Rules of Professional
conduct in their work in a legal assistance program office because
their services are under the supervision of attorney staff. Non-
disclosure of confidential client information is a critical component
of adhering to Rules of Professional Conduct for both attorney and non-
attorney staff, even if, for example, the non-lawyer staff may
otherwise be subject to mandatory reporting of suspected elder
maltreatment.
The proposed rule maintains the prohibition against a legal
assistance provider representing an older person in a fee-generating
case and includes the limited exceptions to that prohibition. The
proposed rule also addresses prohibited activities by legal assistance
providers, including prohibiting the use of Older American Act funds
for political contributions, activities, and lobbying. The prohibition
against lobbying using Title III funds clarifies that lobbying does not
include contacting a government agency for information relevant to
understanding policies or rules, informing a client about proposed laws
or rules relevant to the client's case, engaging with the AAA, or
testifying before an agency or legislative body at the request of the
agency or legislative body.
[[Page 39589]]
B. New Provisions Added To Clarify Responsibilities and Requirements
Under Grants to State and Community Programs on Aging
We propose the following new provisions to provide direction in
response to inquiries and feedback received from grantees and other
stakeholders and changes in the provision of services, and to clarify
requirements under the Act. We welcome comment on these proposed
changes.
Subpart B--State Agency Responsibilities
Sec. 1321.23 Appeal to the Departmental Appeals Board on Area Agency
on Aging Withdrawal of Designation
Section 305(a)(2)(A) \135\ of the Act empowers State agencies to
designate eligible entities as AAAs. Sec. 305(b)(5)(C)(i) \136\ of the
Act affords an AAA the right to appeal a State's decision to revoke its
designation including up to the Assistant Secretary. Per section
305(b)(5)(C)(iv) \137\ the Assistant Secretary may affirm or set aside
the State agency's decision. Historically, appeals of AAA designation
to the Assistant Secretary have been extremely rare.
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\135\ 42 U.S.C. 3025(a)(2)(A).
\136\ Ibid. at (b)(5)(C)(i).
\137\ Ibid. at (b)(5)(C)(iv).
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Under proposed Sec. 1321.23, the HHS Departmental Appeals Board
(DAB) will preside over appeals under the OAA. The DAB may refer an
appeal to its Alternative Dispute Resolution Division for mediation
prior to issuing a decision. We believe this will streamline
administrative functions and provide robust due process protections to
AAAs. This aligns with our proposed Sec. 1321.17 and Sec. 1321.39.
The HHS DAB provides impartial, independent review of disputed
decisions under more than 60 statutory provisions. We believe this
proposal will provide clarity and consistency to State agencies and
AAAs.
Sec. 1321.37 Notification of State Plan Amendment Receipt for Changes
Not Requiring Assistant Secretary for Aging Approval
Sections 1321.19 and 1321.23 of the existing regulation, proposed
to be redesignated as Sec. 1321.31 and Sec. 1321.35, address
submission of amendments to the State plan and notification of State
plan or amendment approval; however, they lack a process of
notification of receipt for those State plan amendments that are
required to be submitted, but not approved by the Assistant Secretary
for Aging. We propose this new section to provide for notification of
receipt of State plan amendments that do not require Assistant
Secretary approval.
Sec. 1321.47 Conflicts of Interest Policies and Procedures for State
Agencies
Section 307(a)(7)(B) \138\ of the Act directs State agencies to
include assurances against COI in their State plans. The general
definition of COI, included in the proposed definition section at 45
CFR 1321.3, describes two broad categories of conflict: one or more
conflicts between the private interests and the official
responsibilities of a person in a position of trust; and/or one or more
conflicts between competing duties of an individual, or between the
competing duties, services, or programs of an organization, and/or
portion of an organization.
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\138\ 42 U.S.C. 3027(a)(7)(B).
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State agencies may wish to identify other COI based on State law or
other requirements. For example, a State agency may have specific COI
requirements for providing case management or information and
assistance/referral services under the Act. In other instances, a State
agency which also oversees Medicaid managed care programs may choose to
extend their COI policies in response to relevant Medicaid COI
regulations in a similar way for all roles and services within the
State, regardless of funding source. Additionally, State agencies may
look to other ACL guidance concerning COI. For example, ACL has issued
regulations related to the Ombudsman program (including proposed
regulation updates at Sec. 1324 Subpart A) and guidance related to
Senior Health Insurance Program (SHIP) grantees, many of whom are
housed in the State agency and/or in a AAA.\139\ In 45 CFR 1321.47 we
propose State agencies develop specific policies and procedures on COI
given the complexity of the aging network and its various roles and
responsibilities. We also propose similar requirements for AAAs,
including the service providers to whom they provide funds under the
Act in Sec. 1321.67.
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\139\ See, e.g., ACL guidance to SHIP grantees, many of which
housed in the State agency and/or area agency. Admin. for Cmty.
Living, Conflict of Interest: Identification, Remedy, and Removal
(2020).
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These policies and procedures at Sec. 1321.47 must establish
mechanisms to avoid both actual and perceived COI and to identify,
remove, and remedy any existing COI at organizational and individual
levels, including: (1) ensuring that State employees and agents
administering Title III programs do not have a financial interest in a
Title III program; (2) removing and remedying actual, perceived, or
potential conflicts that arise; (3) establishing robust monitoring and
oversight, to identify COI; (4) ensuring that no individual or member
of the immediate family of an individual involved in administration or
provision of a Title III program has or is perceived to have a COI; (5)
requiring that other agencies in which a Title III program are operated
have policies in place to prohibit the employment or appointment of
those with a conflict that cannot be adequately removed or remedied;
(6) requiring that a Title III program takes reasonable steps to
suspend or remove Title III program responsibilities of an individual
who has a COI or who has an immediate family member with a COI that
cannot be adequately removed or remedied; (7) ensuring that no
organization that provides a Title III service has or is perceived to
have a COI; and (8) establishing the actions the State agency will
require a Title III program to take in order to remedy or remove such
conflicts.
The policies and procedures are intended to provide a mechanism for
informing relevant parties of COI responsibilities and identifying and
addressing conflicts when they arise. Examples of individual COIs
involving a State employee administering Title III programs include a
State agency dietitian responsible for Title III programs who owns a
catering company that provides meals to Title III-funded programs and a
State employee responsible for monitoring AAA programs who recently
sold a plot of land to an AAA.
COI policies must also address organizational conflicts. These may
arise as conflicts between competing duties, programs, and services or
as other conflicts identified by the Assistant Secretary. Examples of
organizational COI involving State agencies include operating Title
III-funded programs and a public guardianship program or the Ombudsman
program and an adult protective services program within the same
organization.
If an actual, perceived, or potential COI is identified, State
agencies should promptly follow the established procedures they have in
place to mitigate the problem. Procedures to mitigate COI could include
establishing firewalls between or among individuals, programs or
organizations involved in the conflict, removing an individual or
organization from a position, or termination of a contract. Whether the
potential COI is actual or perceived, it is essential that the State
agency pursue
[[Page 39590]]
solutions that preserve the integrity of the mission of the Act. We
welcome feedback on comprehensive, successful COI policies and
procedures at State agency, AAA, and service provider levels, as well
as if there are recommended tools used to identify conflicts and
strategies used to mitigate or remedy identified conflicts. We also
seek feedback concerning any COI under Title III (excluding the
Ombudsman program, which has detailed conflicts of interest
expectations, as set forth in Sec. 1324 Subpart A) that should be
prohibited.
Sec. 1321.53 State Agency Title III and Title VI Coordination
Responsibilities
Proposed Sec. 1321.53 sets forth expectations for coordinating
activities and delivery of services under Title III and Title VI, as
articulated in sections 306(a)(11)(B),\140\ 307(a)(21)(A),\141\
614(a)(11),\142\ and 624(a)(3) \143\ of the Act. We received inquiries
and feedback from grantees and other stakeholders asking for
clarification on their obligation to coordinate activities under Title
III and Title VI. Questions included whether coordination is required
or discretionary, what coordination activities entities must undertake,
and which entities are responsible for coordination. We propose to
clarify that coordination is required under the Act and that all
entities are responsible for coordination, including State agencies,
AAAs, and service providers, and that State agencies must have specific
policies and procedures to guide coordination efforts within the State.
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\140\ 42 U.S.C. 3026(a)(11)(B).
\141\ 42 U.S.C. 3027(a)(21)(A).
\142\ 42 U.S.C. 3057e(a)(11).
\143\ 42 U.S.C. 3057j(a)(3).
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Subpart C--Area Agency Responsibilities
Sec. 1321.59 Area Agency Policies and Procedures
Section 306 \144\ of the Act sets forth the responsibilities of
AAAs regarding programs operated under the Act. Section 306,\145\ in
conjunction with other language throughout the Title III of the Act,
establishes the AAA's role with relation to the State and service
providers. However, we have received inquiries and feedback from AAAs
and others that indicates a lack of clarity as to, for example, the
scope of State versus AAA responsibility.
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\144\ 42 U.S.C. 3026.
\145\ Ibid.
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Proposed Sec. 1321.59 States that AAAs shall develop policies and
procedures governing all aspects of programs operated under the Act, in
compliance with State policies and procedures. It also clarifies that
the scope of AAA responsibility includes consulting with other
appropriate parties regarding policy and procedure development,
monitoring, and enforcing their own policies and procedures. We also
propose to incorporate the provision currently set forth at Sec.
1321.25 (Restriction of delegation of authority to other agencies)
within this new provision.
Sec. 1321.67 Conflicts of Interest Policies and Procedures for Area
Agencies on Aging
Section 307(a)(7)(B) \146\ of the Act sets forth prohibitions
against COI in AAAs. Our proposals at Sec. 1321.67, specific to the
responsibilities of AAAs, are one of several provisions related to COI
in this proposed rule, including a general definition at 45 CFR 1321.3
and requirements for State agencies at 45 CFR 1321.47. The landscape of
activities undertaken by AAAs since the Act was first passed and our
regulations issued has broadened significantly beyond traditional OAA
services. With our proposed regulations, we seek to provide AAAs and
service providers clarity and specificity such that they can
confidently engage in business activities that may generate conflicts
while remaining in compliance with the law, carrying out the objectives
of the Act in the interest of the older people they serve.
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\146\ 42 U.S.C. 3027(a)(7)(B).
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45 CFR 1321.3 describes organizational and individual conflicts of
interest. For example, an individual conflict may arise if an AAA
director is involved in an award of a new subcontract to a service
provider that employs the director's spouse. In this case, his private
interest would be in direct conflict with his official
responsibilities. Similar examples are an AAA board member who is also
the executive director of a service provider to whom the AAA grants
funds under the Act or a case manager funded under the Act who also
works part-time as an intake coordinator at a local skilled nursing
facility.
Examples of an organizational COI may be if a AAA has a contract
with an integrated health care system and the AAA provides direct
services to the clients that receive services in that health care
system. Here, the AAA's financial interest in its contract with the
health system is in conflict with its responsibility to serve OAA
clients equitably and without preferential treatment. Other examples of
organizational COI include a AAA who is asked to join an advocacy
effort regarding poor services by a particular organization with whom
the AAA is under negotiation to enter into a contract or commercial
relationship or a service provider of options counseling under the Act
who expects its options counselors to divide their time to take on case
management responsibilities supporting a contract or commercial
relationship with a specific managed care organization. The proposed
language in this section requires COI policies and procedures for AAAs
and complements the language proposed at Sec. 1321.47 for State
agencies. These policies and procedures must establish mechanisms to
avoid both actual and perceived COI and to identify, remove, and remedy
any existing COI at organizational and individual levels.
In other words, we propose that AAAs have policies and procedures
to identify and prevent COI. The policies must establish the actions
and procedures the AAA will require employees, contractors, grantees,
volunteers, and others in a position of trust or authority to take to
remedy or remove such conflicts.
COI policies address individual conflicts on the part of the AAA,
employees, and agents of the AAA who have responsibilities relating to
Title III programs, including governing boards, advisory councils, and
staff. The conflicts can be actual, perceived, or potential. The
policies and procedures provide a mechanism for informing relevant
parties of COI responsibilities and identifying and addressing
conflicts when they arise. For example, an AAA may institute a policy
that staff disclose relevant financial interests prior to assuming a
position of oversight or authority over specific programs, functions,
or commercial relationships.
COI policies must also address organizational conflicts. These may
arise as conflicts between competing duties, programs, and services or
as other conflicts identified by the Assistant Secretary. For example,
a AAA should maintain a policy that it will not enter into an agreement
to provide legal assistance services under Title III of the Act with an
entity that serves as the public guardian because the legal assistance
provider is required under the Act to represent older people ``in
defense of guardianship,'' including revocation of existing
guardianships. Defense of guardianship involves representing the person
over whom guardianship is sought in the proceeding against them. We
welcome feedback regarding if operating a guardianship program or
accepting a
[[Page 39591]]
guardianship appointment of an older person should be a prohibited
conflict for AAAs, since the Act requires AAAs to advocate for the
rights of older people, including in guardianship arrangements. Our
proposed rules require policies and procedures addressing both these
scenarios, which may represent actual potential or perceived conflicts.
If an actual, perceived, or potential COI is identified, AAAs
should promptly follow the procedures they and State agencies have in
place to mitigate the problem. Whether the potential COI is actual or
perceived, it is essential that the AAA pursue solutions that preserve
the integrity of the mission of the Act.
Sec. 1321.69 Area Agency on Aging Title III and Title VI Coordination
Responsibilities
Consistent with proposed Sec. 1321.53 (State agency Title III and
Title VI coordination responsibilities), proposed Sec. 1321.69 sets
forth expectations for coordinating activities and delivery of services
under Title III and Title VI, as articulated in sections
306(a)(11)(B),\147\ 307(a)(21)(A),\148\ 614(a)(11),\149\ and 624(a)(3)
\150\ of the Act. We propose to clarify that coordination is required
under the Act and that all entities are responsible for coordination,
including State agencies, AAAs, and service providers. The proposed
section complements the language proposed at Sec. 1321.53 for State
agencies, and includes specific considerations for AAAs, such as
opportunities to serve on AAA advisory councils, workgroups, and boards
and opportunities to receive notice of Title III and other funding
opportunities.
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\147\ 42 U.S.C. 3026(a)(11)(B).
\148\ 42 U.S.C. 3027(a)(21)(A).
\149\ 42 U.S.C. 3057e(a)(11).
\150\ 42 U.S.C. 3057j(a)(3).
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Subpart D--Service Requirements
Sec. 1321.77 Purpose of Services--Person- and Family-Centered, Trauma
Informed
New proposed Sec. 1321.77 clarifies that services under the Act
should be provided in a manner that is person-centered and trauma
informed. Consistent with the direction of amendments to section 101
\151\ of the Act as reauthorized in 2020, recipients are entitled to an
equal opportunity to the full and free enjoyment of the best possible
physical and mental health, which includes access to person-centered
and trauma-informed services.
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\151\ 42 U.S.C. 3001.
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Sec. 1321.81 Client Eligibility for Participation
To be eligible for services under the Act, recipients must be age
60 or older at the time of service, except in the case of limited
services, such as nutrition and family caregiver support services. We
received inquiries, requests for technical assistance, and comments
demonstrating misunderstandings among State agencies, AAAs, service
providers, and others in the aging network about eligibility
requirements. For example, we received feedback expressing confusion as
to whether any caregivers of adults of any age are eligible to receive
Title III program services, which is not allowable under the Act.
Proposed Sec. 1321.81 clarifies eligibility requirements under the
Act and explains that States, AAAs, and service providers may adopt
additional eligibility requirements, if they do not conflict with the
Act, the implementing regulation, or guidance issued by the Assistant
Secretary for Aging.
Sec. 1321.85 Supportive Services
Proposed Sec. 1321.85 clarifies the supportive services set forth
in Title III, Part B, section 321 of the Act, which includes in-home
supportive services, access services, and legal services. It also
clarifies allowable use of funds, including for acquiring, altering or
renovating, and constructing multipurpose senior centers and that those
funds must be distributed through an approved intrastate funding
formula or funds distribution plan, as articulated in the State plan.
Sec. 1321.87 Nutrition Services
Proposed Sec. 1321.87 clarifies the nutrition services set forth
in Title III, Part C of the Act--which includes congregate meals, home-
delivered meals, nutrition education, nutrition counseling, and other
nutrition services. Based on experiences during the COVID pandemic and
numerous requests for flexibility in provision of meals, we propose
that meals provided under Title III C-1 of the Act may be used for
shelf-stable, pick-up, carry-out, drive-through or similar meals, if
they are done to complement the congregate meal program and comply with
certain requirements as set forth.
We also propose to clarify that home-delivered meals may be
provided via home delivery, pick-up, carry-out, or drive-through and
that eligibility for home-delivered meals is not limited to those who
may be identified as ``homebound,'' that eligibility criteria may
consider multiple factors, and that meal participants may also be
encouraged to attend congregate meals and other activities, as
feasible, based on a person-centered approach and local service
availability.
We propose to specify that nutrition education, nutrition
counseling, and other nutrition services may be provided with funds
under Title III C-1 or -2 of the Act. As required by section
331(1),\152\ we propose to set forth requirements that State and/or AAA
policies shall determine the frequency of meals in areas where five
days or more days a week of service is not feasible. This proposed
provision clarifies that funds must be distributed through an approved
intrastate funding formula or funds distribution plan, as articulated
in the State plan.
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\152\ 42 U.S.C. 3030e(1).
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Finally, this proposed provision sets forth requirements for
Nutrition Services Incentive Program allocations. Nutrition Services
Incentive Program allocations are based on the number of meals reported
by the State agency which meet certain requirements, as specified.
States may choose to receive their allocation grants as cash,
commodities, or a combination thereof. Nutrition Services Incentive
Program funds may only be used to purchase domestically-produced foods
(definition included as proposed in Sec. 1321.3) used in a meal, as
set forth under the Act. We intend for this provision to answer many
questions we have received regarding the proper use of funds under the
Nutrition Services Incentive Program.
Sec. 1321.89 Evidence-Based Disease Prevention and Health Promotion
Services
Proposed Sec. 1321.89 clarifies evidence-based disease prevention
and health promotion services set forth in Title III, Part D of the
Act, and States that programs funded under this provision must be
evidence-based, as required in the Act as amended in 2016. It also
clarifies allowable use of funds and that those funds must be
distributed through an approved intrastate funding formula or funds
distribution plan, as articulated in the State plan.
Sec. 1321.91 Family Caregiver Support Services
During the 2000 reauthorization of the Act, Congress added Title
III, Part E to set forth allowable expenses for family caregiver
support services. Proposed Sec. 1321.91 clarifies the family caregiver
support services available under the Act and eligibility requirements
for respite care and supplemental services, as set
[[Page 39592]]
forth in section 373(c)(1)(B).\153\ It also clarifies allowable use of
funds and that those funds must be distributed through an approved
intrastate funding formula or funds distribution plan, as articulated
in the State plan.
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\153\ 42 U.S.C. 3030s-1(c)(1)(B).
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Sec. 1321.95 Service Provider Title III and Title VI Coordination
Responsibilities
Consistent with proposed Sec. 1321.53 (State agency Title III and
Title VI coordination responsibilities) and proposed Sec. 1321.69 (AAA
Title III and Title VI coordination responsibilities), proposed Sec.
1321.95 sets forth expectations for coordinating activities and
delivery of services under Title III and Title VI, as articulated in
sections 306(a)(11)(B),\154\ 307(a)(21)(A),\155\ 614(a)(11),\156\ and
624(a)(3) \157\ of the Act. We propose to clarify that coordination is
required under the Act and that all entities are responsible for
coordination, including State agencies, AAAs, and service providers.
The proposed section complements the language proposed at Sec. 1321.53
for State agencies and Sec. 1321.69 for AAAs, and includes those
requirements specific to service providers.
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\154\ 42 U.S.C. 3026(a)(11)(B).
\155\ 42 U.S.C. 3027(a)(21)(A).
\156\ 42 U.S.C. 3057e(a)(11).
\157\ 42 U.S.C. 3057j(a)(3).
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Subpart E--Emergency and Disaster Requirements
Based on stakeholder input and our experience, particularly during
the COVID-19 pandemic, we propose adding Subpart E--Emergency and
Disaster Requirements (Sec. Sec. 1321.97-1321.105) to explicitly set
forth expectations and clarify flexibilities that are available in a
disaster situation. The current Subpart E (Hearing Procedures for State
Agencies) is no longer necessary since we propose that the provisions
in Subpart E be redesignated and covered in proposed Subpart B (State
Agency Responsibilities).
Although the current regulation mentions the responsibilities of
service providers in weather-related emergencies (Sec. 1321.65(e)),
existing guidance on emergency and disaster requirements under the Act
is limited and does not contemplate the evolution of what may
constitute an ``emergency'' or ``disaster'' or how they may uniquely
affect older adults.
If a State or Territory receives a major disaster declaration (MDD)
by the President under the Robert T. Stafford Disaster Relief and
Emergency Assistance Act, 42 U.S.C. 5121-5207, this MDD triggers
certain disaster relief authority under section 310 \158\ of the Act.
The COVID-19 pandemic for example, demonstrated the devastating impact
of an emergency or disaster on the target population who receive
services under the Act. During the COVID-19 pandemic, all States and
Territories received a MDD, and we provided guidance on flexibilities
available under the Act while a MDD is in effect to meet the needs of
older adults, such as those related to meal delivery systems, methods
for conducting well-being checks, delivery of pharmacy, grocery, and
other supplies, and other vital services.
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\158\ 42 U.S.C. 3030.
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Throughout the COVID-19 pandemic, we received inquiries and
feedback that demonstrated a need for clarity on available
flexibilities in an emergency. RFI respondents also provided
substantial feedback regarding current limitations and the need for
additional guidance and options for serving older adults during
emergencies and disasters. Multiple RFI respondents noted that older
adults and their service providers may be impacted by a wide range of
emergencies and disasters--including natural, human-caused, climate-
related, and viral disasters--and that current regulatory guidance does
not provide State agencies, area agencies, and service providers the
flexibility necessary to adequately plan for emergency situations, as
contemplated by the Act. Accordingly, they sought an expansion of the
definition of ``emergency'' that better reflected their realities
regarding service delivery. RFI respondents also sought guidance on
numerous aspects of program and service delivery during an emergency,
such as maintaining flexibilities in meal and other service delivery
introduced in response to COVID-19 pandemic, increased flexibility in
transferring funds, allowable spending on disaster mitigation supplies,
and providing mental health services to older adults who experience
disaster-related trauma. RFI respondents also asked for regulatory
language describing what is expected of State agencies, area agencies,
and service providers in an emergency to allow for the development of
better emergency preparedness plans at State and local levels.
We considered various approaches in developing this new section.
Certain flexibilities, such as allowing the use of Title III C-2 funds
which are allocated to home-delivered meals for carry-out or drive
through meals, constitute innovative ways to deliver services that
could be allowable on a regular basis within the parameters of Title
III C-2 and without any special authorization by ACL during an
emergency. Those flexibilities have been incorporated where applicable
in the proposed revised regulation for clarification purposes, for
example in Sec. 1321.87(a)(2), which addresses carry-out and other
alternatives to traditional home-delivered meals. We are limited by the
Act in the extent to which other flexibilities may be allowed. For
example, a MDD is required for a State agency to be permitted, pursuant
to section 310(c) \159\ of the Act, to use Title III funds to provide
disaster relief services, which must consist of allowable services
under the Act, for areas of the State where the specific MDD is
authorized and where older adults and family caregivers are affected.
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\159\ 42 U.S.C. 3030(c).
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We also recognize that during an event which results in a MDD, such
as the COVID-19 pandemic, Statewide procurement or other direct
expenditures by the State agency may be critical to meeting the mission
of the Act. Based on our experience in responding to the COVID-19
pandemic, we propose certain options to be available to State agencies
to expedite expenditures of Title III funds while a MDD is in effect,
such as allowing a State agency to procure items on a Statewide level,
subject to certain terms and conditions.
We have administrative oversight responsibility with respect to the
expenditures of Federal funds pursuant to the Act. Accordingly, in
addition to the flexibilities we propose to allow in this section, we
are compelled to propose requirements with respect to these
flexibilities, such as the submission of State plan amendments by State
agencies when they intend to exercise any of these flexibilities, as
well as reporting requirements. We welcome comment on this new proposed
section, including on the sufficiency of guidance provided and
potential alternative approaches to achieve the goal of providing
services to older adults during emergencies and disasters.
Sec. 1321.97 Coordination With State, Tribal and Local Emergency
Management
Proposed Sec. 1321.97 states that State agencies and AAAs must
establish emergency plans, per sections 307(a)(28) \160\ and
[…truncated; see source link]Indexed from Federal Register on June 16, 2023.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.