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Administration on Aging (AoA)

Frequently Asked Questions (FAQs)

Below is a list of frequently asked questions (FAQs) to assist the Aging Network with implementation of the 2006 Amendments to the Older Americans Act (OAA). Periodically, AoA will add new FAQs that are of general interest to the Network. We invite users to submit questions and comments regarding the Amendments that may be used in the development of future FAQs for this page.

Please note: Questions/comments that are specific to an individual participant, provider, Area Agency on Aging (AAA) or State Agency on Aging will be referred to the appropriate agency for action.


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Aging and Disability Resource Centers (ADRCs)

The 2006 Reauthorization provides the Assistant Secretary for Aging the authority to “implement in all States Aging and Disability Resource Centers.” In what ways can States begin planning and directing resources for this implementation?

The Administration on Aging continues to seek and direct resources to assist States in the development and expansion of ADRCs. In addition, many States have creatively used other Federal resources to advance ADRCs. For example, some States have utilized CMS Real Choice System Change grants, including the Systems Transformation Grants, to support their efforts to create single points of entry. Many ADRC grantee States are seeking increased Federal Financial Participation (FFP) through Medicaid to support their ADRC efforts.

ADRC grantees are also utilizing State and other funding support, for example:

  • Six States have passed ADRC/single point of entry legislation
  • Seventeen States have received State funding to support ADRC pilot sites
  • Twenty-four ADRC grantee States report pursuing, or have already received, private grants to support their efforts at the State or local level.

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Civic Engagement

Programs administered by the Corporation for National Community Service (CNCS), e.g., Legacy Corps, now permit applicants to use other sources of Federal funding as match. Does this mean that OAA funds can be used as match?

To maximize flexibility of funding and to enhance services to older adults, Older Americans Act grantees have the option to use III E funds to meet the match requirements for certain programs administered by the National Community Service (CNCS). With this option, the Aging Network is afforded additional opportunities to better meet local home and community service and caregiver needs, and to further the goals of providing volunteer (Civic Engagement) opportunities to older adults and their caregivers.

It is imperative to note that 45 CFR Parts 74.23(a) and 92.24(b) do not allow OAA grantees to use any Federal funds (including CNCS funds) to meet the OAA non-Federal share (match) of project expenditures. It is also important to note that any proposed use of OAA funds (including funds that would be used as match for CNCS programs) must be consistent with the terms and conditions of the grant/contract award, including all applicable Older Americans Act provisions and uniform grant administration rules (45 CFR Parts 74 and 92).

A local provider may only use such funds for allowable services under Title III E, and such services must be part of the overall comprehensive system of services in the planning and service area. (Sec. 303(c)(2)). State and area agencies on aging remain fully responsible for administration and oversight of OAA funds, notwithstanding CNCS’s acceptance of any OAA funds under a grant/contract as cost sharing or matching.

For clarity, the following conditions must be met if OAA funds are to be used to match CNCS funds:

  • All specific terms and conditions of the OAA grant;
  • The intent of the OAA;
  • All applicable Federal, State and local legislation; and

The Federal agency (CNCS) has the statutory provisions necessary to allow its grantees to count other federal funds as matching contributions for their CNCS project costs.

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Elder Justice

What new opportunities exist for States and Tribal organizations in the new Elder Justice provisions and how can elder justice provisions integrate with the AoA’s other long-term care reforms?

New language in Title II and Title VII emphasize multi-disciplinary and collaborative approaches to addressing elder maltreatment when developing programs and long-term strategic plans for elder justice activities. AoA has funded the National Center on Elder Abuse (NCEA) to examine issues, current practices, and future directions for the enhanced coordination between elder rights and ADRC systems. In FY 2008, the NCEA will study successful collaboration between home and community-based service providers, Adult Protective Services, and Long-Term Care Ombudsman to ensure the safety and well-being of vulnerable seniors as they are diverted or transitioned from institutional settings to community based care.

States and Tribes will have the opportunity to work with AoA in developing a long-term plan to facilitate the development, implementation, and continuous improvement of a coordinated, multi-disciplinary elder justice system in the United States. New language in Title VII expands the options for States and tribal organizations to use some portion of the Title VII allotments for detection, assessment, intervention in, investigation of and response to elder abuse, neglect, and exploitation.

AoA’s elder abuse prevention program is exploring best practice examples of ADRCs incorporating crisis management and risk identification and successful collaborations between elder rights providers and ADRCs. Similarly, the National Long-Term Care Ombudsman Resource Center is providing training and technical assistance to long-term care ombudsmen in diversion and transition activities including coordination with ADRC’s. Additional coordination efforts include the statewide SMP Programs (formerly Senior Medicare Patrol), the National Resource and Education Center on Women and Retirement Planning, and the National Legal Resource Centers Model Approaches to Statewide Legal Assistance, and Pension Counseling.

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Evidence-Based Health Promotion Disease Prevention Programs

What new opportunities does the 2006 Reauthorization offer the Aging Services Network for developing or enhancing evidence-based health promotion/disease prevention strategies?

Evidence-based disease prevention is the utilization of clinically tested and proven tools and behavioral changes to manage an individual’s health and disease. Evidence-based prevention programs take place at the community level to help participants avoid hospitalizations and unnecessary physician visits.

Evidence Based Programming, regardless of funding source, is central to empowering older adults to take responsibility for their health by making informed health choices and adopting healthful behaviors. It is important to modernize programs by using the best available science and evidence and leveraging funding and expertise through community resources.

The 2006 Amendments reaffirm AoA’s commitment to ensuring that all older Americans have access to programs and services that help reduce the impact of disease and chronic disabilities and encourage the promotion of preventive measures to eliminate or reduce the occurrence of new diseases and disabilities. Under Titles III and IV, States continue to have the option to design programs to advance chronic disease self-care practices, increase physical activity, prevent falls, promote proper nutrition and diet, and address depression and/or substance abuse in older persons.

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Long-Term Care Ombudsman Programs

Below is a list of frequently asked questions (FAQs) to assist State Agencies on Aging, States’ Long-Term Care Ombudsman Programs, and other entities that work with Ombudsman programs with implementation of the State Long-Term Care Ombudsman Programs Rule, which will take effect July 1, 2016. If you do not find what you are looking for here, please send your questions and comments to LTCOmbudsman.Rule@acl.gov. We will get back to you promptly, and we may include your questions in the next update of the FAQ.

Please note: Questions and comments that are specific to an individual participant, provider, Area Agency on Aging, State Agency on Aging, or another organization will be referred to the appropriate agency for action.

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How will ACL know whether an Office of the State Long-Term Care Ombudsman is a “distinct entity, separately identifiable” as required by 45 CFR 1327.11(b)? Does the Office need to stand alone in an organizational box, or can it be located within another unit?

In its establishment of the Ombudsman program, ACL requires that the Office of the State Long-Term Care Ombudsman be a “distinct entity, separately identifiable” in order to provide ease of access for residents and complainants and to effectively meet other statutory requirements of the Office. In determining the organizational placement of the Office, it is also important to consider other relevant requirements, including: ”… the Ombudsman must provide leadership and management of the Office and the organizational placement must avoid unremedied conflicts of interest.” (45 CFR 1327.11(c); 1327.21 (a)-(b)).

In determining whether these requirements are met, ACL may ask the State Agency on Aging and the Ombudsman for evidence that people living in long-term care facilities, their representatives, and other stakeholders are able to:

  • Conveniently access the Office of the State Long-Term Care Ombudsman and
  • Distinguish the Office from other programs and services.

In addition, ACL may ask the State Agency on Aging and the Ombudsman for evidence that recommendations of the Office are clearly identified as being issued by the Office, rather than by the host agency. While none of the following are specifically required by the Rule, possible examples of evidence of a “distinct entity, separately identifiable” could include, but not be limited to:

  • posters, brochures and other communications that clearly describe a distinct program,
  • a distinct web presence,
  • Office is organized as a separate unit that is separately identifiable on an organizational chart within an organizational structure,
  • telephone access that goes directly to the Office,
  • distinct letterhead for the Office,
  • a physical office or other work space that is separate from other programs/services,
  • publicly-released reports, testimony, position papers, media releases, etc. that express the positions or recommendations of the Office.

ACL will also evaluate whether the Ombudsman provides leadership and management of the Office, and that the organizational placement does not create conflicts of interest which cannot be adequately remedied.

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What responsibilities are inconsistent with an Ombudsman serving “on a full-time basis” as required by 45 CFR 1327.11(c)?

The Ombudsman must serve as the head of the Office on a full-time basis. (Older Americans Act Section 712(a)(2); 45 CFR 1327.11(c)). However, the Rule does not prohibit the performance of non-ombudsman related work on a time-limited, intermittent basis. It also does not prohibit the Ombudsman program from providing ombudsman services to populations other than residents of long-term care facilities as long as the appropriations under the Act are utilized to serve residents of long-term care facilities. Examples of such populations include, but are not limited to, recipients of long-term supports and services in their own homes or in adult day centers.

In determining whether this full-time basis requirement is met, ACL may ask the State Agency on Aging and the Ombudsman for evidence that additional responsibilities undertaken by the Ombudsman do not interfere with or detract from Ombudsman program services. ACL may also request evidence of how an additional responsibility is expected to benefit residents even though residents are not the sole focus of the additional responsibility, such as work that addresses long-term services and supports system improvements.

For example, a State Agency on Aging or Ombudsman might convincingly argue that an Ombudsman serving on an agency leadership team could strengthen the Ombudsman program and offers an opportunity to represent resident concerns at an executive level; it could provide the Ombudsman with better understanding and opportunities for input into the decisions and plans of the agency, which could benefit residents and/or the Ombudsman program.

On the other hand, a State Agency on Aging or an Ombudsman may be unable to show how the Ombudsman’s supervision of non-Ombudsman program employees and/or work on other program budgets and policies supports the work of the Ombudsman program or otherwise benefits the program’s service population. In these cases, the intent of the Rule to have an Ombudsman focused full-time on the Ombudsman program and the interests of its service population will not have been met.

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Does the Rule describe responsibilities of the Ombudsman that are different from the duties of representatives of the Office regarding commenting on or recommending changes to laws, regulations, and policies?

Yes. The Rule provides latitude for Ombudsman program policy to clarify how these activities can be operationalized within a particular State’s program at state and local levels.
There are a number of differences between the responsibilities of the Ombudsman and the duties of the representatives of the Office which are described in both the Act and the Rule and which relate to systems advocacy activities (including commenting on or recommending changes to laws, regulations, and policies).
Relevant systems advocacy provisions that relate specifically to the Ombudsman (or to the Office, which the Ombudsman heads), but not to representatives of the Office, include:

  • A State’s policies and procedures must assure that the Office of the State Long-Term Care Ombudsman (the Office) has sufficient authority to carry out its responsibility to, among other things, recommend changes to laws, regulations, and policies as the Office determines to be appropriate. (Older Americans Act Section 712(h)(2); 45 CFR 1327.11(e)(5); emphasis added).
  • Recommending changes in laws, regulations, policies, and actions as the Office determines to be appropriate is specifically a function and responsibility of the Ombudsman. (OAA Section 712(a)(3)(G); 45 CFR 1327.13(a)(7)(ii)).
  • The Ombudsman must fulfill other functions related to systems advocacy, including “leadership to statewide systems advocacy efforts of the Office … including coordination of systems advocacy efforts carried out by representatives of the Office.” (45 CFR 1327.13(a)(7)(iv)).

We note that the Rule does not prohibit the Ombudsman from delegating some systems advocacy activities to representatives of the Office. In fact, among the duties of the representatives of the Office are to “review, and if necessary, comment on … government policies and actions.” (OAA Section 712(a)(5)(B)(v)(I); 45 CFR 1327.19(a)(5)(i); emphasis added). This means that the Ombudsman (consistent with Ombudsman program policy and procedures) can specify under what circumstances it may be necessary for a representative of the Office to comment on government policies and actions.

We further note that the Rule requires procedures to ensure that both the Ombudsman and representatives of the Office are not prohibited by State lobbying provisions from performing duties, including systems advocacy, required in section 712 of the Act. (45 CFR 1327.11(e)(5)(i)).

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What types of matters must be addressed by the grievance process, as required in 45 CFR 1327.11(e)(7)?

The grievance process is to be available “for the receipt and review of grievances regarding the determinations or actions of the Ombudsman and representatives of the Office.” Examples include, but are not limited to:

  • An Ombudsman determination not to designate an individual as a representative of the Office;
  • An Ombudsman determination to de-designate a local Ombudsman entity;
  • A complaint by a facility about the manner in which a representative of the Office carries out ombudsman services (such as a visit to residents, complaint handling, or a facility staff training) while in the facility;
  • An action by a representative of the Office on complaint resolution with which a resident or complainant disagrees. An example could be that a representative of the Office closes a case but the complainant or resident does not believe that work is complete.

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What should be considered by the Ombudsman when monitoring designated local Ombudsman entities, required in 45 CFR 1327.13(c)(1)(iii)?

Ombudsman monitoring of local Ombudsman entities may include, but is not limited to:

  • Review of complaint processing and other Ombudsman program activity data;
  • Visits to local Ombudsman entities to meet with volunteers, agency staff, and/or review records;
  • Observation of representatives of the Office on visits to facility residents,
  • Review of all or samples of individual case files for complaint processing review,
  • Fiscal monitoring, including review of budget, expenditure, and audit reports;
  • Conflict of interest assessments and review of steps taken to remedy or remove conflicts;
  • Review of accuracy of Ombudsman program activities and fiscal reporting;
  • Review of local Ombudsman entity coordination with other relevant agencies;
  • For programs with volunteer representatives of the Office, review of volunteer management policies, procedures and practices (including but not limited to recruitment, screening, training, and supervision);
  • Meetings with host agency and/or Area Agency on Aging leadership;
  • Discussions with State Agency on Aging liaisons to Area Agencies on Aging.

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Does the rule require the Ombudsman to develop memoranda of understanding with all of the entities listed in 45 CFR 1327.13(h)?

No, with one exception noted below.

The Rule requires Ombudsman program coordination with these entities, but the nature of that coordination may vary. While memoranda of understanding are a common approach to clarify and formalize a working relationship between entities, they may not be the best mechanism to promote successful coordination in every instance.

The intent of the Rule is to promote effective coordination for the benefit of residents, over and above mere paper compliance. However, the State and Ombudsman should be prepared to show ACL evidence of coordination with each of these entities, and a memorandum of understanding is an example of such evidence. Other examples include, but are not limited to: coordinated activities requirements in policies and procedures, joint or cross-training opportunities, joint participation in advisory groups or issue-focused workgroups, referral protocols, and/or standing meetings of the Ombudsman with leadership of the entity.

The exception: the Act specifically requires adoption of memoranda of understanding with respect to coordination with one entity: Title IIIB legal assistance. (Older Americans Act Section 712(h)(7)).

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How does a State or Ombudsman determine whether legal counsel is sufficient to comply with the requirements of 45 CFR 1327.15(j)?

ACL recommends that the Ombudsman, in coordination with the State Agency on Aging, assess their programmatic needs for legal assistance and determine unmet needs for access to adequate, available, competent, and conflict-free legal counsel. It is possible that legal assistance can best be served by one law firm or attorney; it is also possible that legal services may more appropriately be accessed from a variety of sources. (45 CFR 1327.15(j)(2)). However, merely having an Ombudsman or representative of the Office who is a licensed attorney is not sufficient by itself to meet the requirements of the Rule. (45 CFR 1327.15(j)(3)).

Specific requirements related to legal counsel include:

  • Representation of “any representative of the Office against whom suit or other legal action is brought or threatened to be brought in connection with the performance of the official duties.”. (Older Americans Act Section 712(g)(1)(B); 45 CFR 1327.15(j)(1)(iii)).
  • Legal counsel for “advice and consultation needed to protect the health, safety, welfare, and rights of residents.” In addition, legal counsel is required to be available to “assist the Ombudsman and representatives of the Office in the performance of the official duties of the Ombudsman and representatives.” (OAA Section 712(g)(1)(A); 45 CFR 1327.15(j)(1)(i)).

Depending on identified programmatic needs, examples could include, but are not limited to:

  • Representation of the Ombudsman program in response to court orders regarding disclosure of Ombudsman program information.
  • Representation of the Ombudsman in his/her role as the Patient Care Ombudsman in federal bankruptcy proceedings.
  • Legal advice related to developing programmatic policies or legal documents (e.g., program regulations, contracts, policy and procedure manual reviews).
  • Legal advice related to systems advocacy on behalf of resident interests (e.g., review of legislation, drafting of recommended legislative or regulatory language).
  • Legal advice regarding complaint resolution for complex cases, including those that involving legal issues.
  • Advice regarding, and/or drafting responses on behalf of the Ombudsman program in response to, formal requests for disclosure of program information (e.g., depositions, subpoenas, interrogatories, public records requests).

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What constitutes a conflict of interest for purposes of legal counsel?

In determining conflicts of interest related to legal counsel, the State ethical standards governing the legal profession must be utilized. (45 CFR 1327.15(j)(1)(i)). In situations where legal services come from a variety of sources, a conflict of interest regarding representation of some clients would not always constitute a prohibited conflict for the Ombudsman program.

In States in which the attorney general represents the Ombudsman and/or representatives of the Office, representation by the Attorney General may be appropriate in some situations but conflicted in others. At times, an attorney general’s representation of state-operated long-term care facilities, the state survey and certification agency, state adult protective services, the state Medicaid agency, or other state agencies could pose a conflict of interest, disqualifying the attorney general from representing the Ombudsman program, for certain—but not all—legal matters. For example, the fact that the attorney general represents state-operated long-term care facilities would not necessarily pose a disqualifying conflict of interest in a matter that did not involve such facilities, such as representing the Ombudsman in his/her role as a Patient Care Ombudsman in a bankruptcy proceeding regarding privately-owned long-term care facilities.

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Does an Ombudsman program need to hire separate in-house legal counsel to comply with the requirements of 45 CFR 1327.15(j)?

No. While a number of states have found advantage to having in-house legal counsel, it is not required. Further, having in-house legal counsel does not necessarily mean that all of the legal needs of the program are met if needs arise for which the in-house counsel lacks competency. As indicated in the response above, legal counsel may need to be obtained from more than one source, depending on the legal needs of the program.

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Does the Rule require that Ombudsman programs provide legal services to residents?

No. Neither the Act nor the Rule requires the Ombudsman program to provide legal services to residents. In fact, an ombudsman service is a type of alternative dispute resolution service, designed to avoid the need for more formal legal or regulatory processes to resolve complaints.

Both the Act and Rule require that the Ombudsman and representatives of the Office:

  • Assist residents in seeking, pursuing or accessing “administrative, legal and other appropriate remedies,” and
  • “Represent the interests of residents before governmental agencies.”

(Older Americans Act Section 712(a)(3)(E), (a)(5)(B)(iv); 45 CFR 1327.13(a)(5), 1327.19(a)(4)).

The Rule clarifies that the responsibility to “assist residents in seeking administrative, legal and other appropriate remedies” must be carried out in coordination with “the legal services developer, legal services providers, and victim assistance service to promote the availability of legal counsel to residents.” (45 CFR 13271.15(j)(1)(ii)).
Ombudsman programs can fulfill these requirements in numerous ways which are consistent with alternative dispute resolution. For example, when a resident receives an involuntary discharge notice that provides a notice of right to an administrative hearing, a representative of the Office could:

  • Ensure that the resident understands the notice and how to request an administrative hearing,
  • Inform the resident of available supports to make sure his/her interests are represented in the process,
  • Refer the resident to a non-profit legal services program to file the hearing request,
  • Represent the resident’s interests by providing testimony at the hearing,
  • Accompany the resident to the hearing for emotional support, and/or
  • Serve as a spokesperson for a resident for administrative hearings pursuant to 42 CFR 431.206(b)(3).

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What is meant by the requirement that a host agency of a local Ombudsman entity is responsible for “personnel management, but not programmatic oversight” of “representatives of the Office,” as required in 45 CFR 1327.17(a)?

The Older Americans Act creates a circumstance for the Ombudsman program that is unique among programs funded by the Act in that it requires that the employees and volunteers of a local Ombudsman entity “represent” the Office.

States with local Ombudsman entities may divide some responsibilities between the host agency and the Ombudsman. For example, the host agency may retain the authority over the personnel functions of the agency, such as hiring and firing. However, the Ombudsman must have responsibility for the programmatic functions of the Ombudsman program, including designation and de-designation of representatives of the Office.

Representatives of the Office, including those hired by (or volunteers managed by) a local Ombudsman entity, are to be accountable to the head of the Office (i.e. the Ombudsman) for purposes of Ombudsman program operations. For example, they must follow the policies, procedures and guidance of the Ombudsman regarding complaint processing and other Ombudsman program activities. In addition, the Ombudsman must provide technical assistance to representatives of the Office. (OAA Section 712(a)(3)(F); 45 CFR 1327.13(a)(6)).

At the same time, representatives of the Office who work within a local Ombudsman entity also represent (as an employee or volunteer) the host agency. The local Ombudsman entity and/or its host agency is responsible for day-to-day personnel management.

There are situations where personnel and programmatic policies overlap. In these situations, programmatic policies and procedures take precedence. (45 CFR 1327.17(b)). For example, the Ombudsman could advise a representative of the Office who is investigating a complaint about inadequate weekend facility staffing to visit the facility during weekend hours. The agency, in order to be consistent with the Rule, must have a personnel policy that permits work outside normal business hours. As an employer, the host agency is also responsible for complying with other employment laws (including the Fair Labor Standards Act) and any applicable collective bargaining agreements.

Some states clarify these distinct responsibilities through grants or contract language, statements of work, or memoranda of understanding. Examples of provisions include the Ombudsman sharing with the host agency information related to program monitoring/program management to assist in the host agency’s personnel performance reviews, and coordinating hiring/firing and designation/de-designation processes. While hiring/firing decisions are the responsibility of the host agency and designation/de-designation decisions are the responsibility of the Ombudsman, close coordination through these processes can benefit both the Ombudsman and the host agency.

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Is it acceptable for individuals who lead host agencies or supervise representatives of the Office, but who do not perform the duties of representatives of the Office, to be designated as representatives of the Office?

Both the Older Americans Act and the Rule indicate that it is the duty of the Ombudsman to make determinations regarding the designation of representatives of the Office. (OAA Section 712(a)(5); 45 CFR 1327.11(e)(6), .13(c)).

The Rule defines “representatives of the Office” as the “employees or volunteers designated by the Ombudsman to fulfill the duties set forth in §1327.19(a).” (45 CFR 1327.1; emphasis added). Fulfillment of Ombudsman program duties is the purpose for the Ombudsman’s designation of a representative of the Office. Therefore, it would be inconsistent with this definition for an individual who does not work to resolve complaints and perform the other Ombudsman program functions to be designated by the Ombudsman as a representative of the Office.

It also would be inappropriate for an Ombudsman to designate host agency directors in order to circumvent disclosure requirements of the Act and Rule. Host agency directors should not have access to Ombudsman program information (including resident- or complainant-identifying information) that would be inappropriate for the Ombudsman program to disclose without resident consent or court order. (See 45 CFR 1327.11(e)(3)).

Additionally, if an Ombudsman coordinator of the local Ombudsman entity is responsible for coordinating Ombudsman program activities at the local/regional level, the designation of the director of the host agency would put the Ombudsman coordinator in the inappropriate position of overseeing the practices of his or her supervisor.

We note that host agency directors may well be interested in better understanding Ombudsman program duties and may wish to participate in part or all of certification training. This is not prohibited. On the contrary, a more full understanding of the Ombudsman program’s duties and person-centered philosophy may be beneficial to host agency directors or other interested individuals. However, mere participation in training would not make the individual appropriate for designation as a representative of the Office if he or she is not expected to perform Ombudsman program duties and meet other designation requirements.

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Is the content in the Ombudsman program’s annual report, as required in 45 CFR 1327.13(g), subject to review and approval of the State Agency on Aging, other host agency or governor’s office?

The Rule does not prohibit (and, indeed, ACL strongly encourages) coordination with the State Agency on Aging with respect to the Ombudsman annual report. It also clearly indicates that the annual report shall be independently developed and approved by the Ombudsman. (45 CFR 1327.13(g)). While a state could appropriately implement a process in which the State Agency on Aging or other entity reviews the report and offers input for consideration before the report is final, final approval of the report’s content is to be determined by the Ombudsman.

This practice is consistent with the requirement of the Older Americans Act and the Rule that the Ombudsman make recommendations to changes in federal, state and local laws, regulations, policies and actions pertaining to the health, safety, welfare, and rights of residents as the Office determines to be appropriate. (OAA Section 712(h)(2); 45 CFR 1327.11(e)(5),(8)). It is also consistent with the long-standing requirement that the Ombudsman annually report into the National Ombudsman Reporting System “priority long-term care issues [including] a) the problem and barriers to resolution, and b) recommendations for system-wide changes needed to resolve the issue.” (OMB 0985-0005).

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Does the Rule prohibit an Ombudsman or representatives of the Office from being mandated reporters under state abuse reporting laws?

Yes. Both the Older Americans Act and the Rule prohibit reporting of resident-identifying information without the resident’s consent. By logical extension, this precludes mandated reporting of suspected abuse which discloses such information.

Through the strict disclosure limitations within the Act, Congress has indicated its intent for the Ombudsman program to be a safe, person-centered place for residents to bring their concerns. Residents can be assured that their information will not be disclosed without their consent, the consent of the resident representative, or court order. (OAA Section 712(d)(2)(B)). Despite numerous Congressional reauthorizations of the Act, Congress has never provided an exception for abuse reporting in the Act.

Therefore, Ombudsman program policies and procedures must exclude the Ombudsman and representatives of the Office from abuse reporting requirements when such reporting would disclose identifying information of a complainant or resident without appropriate consent or court order. (45 CFR 1327.11(e)(3)).

The Rule does, however, clarify the following limited circumstances when an Ombudsman program has authority to report resident-identifying information without obtaining resident or resident representative consent:

  • When a resident is unable to communicate informed consent and has no resident representative (45 CFR 1327.19(b)(6)); and
  • When a resident is unable to communicate informed consent and the representative of the Office has reasonable cause to believe that the resident representative has taken an action, inaction or decision that may adversely affect the health, safety, welfare, or rights of the resident. (45 CFR 1327.19(b)(7)).

In addition, when the Ombudsman or representative of the Office personally witnesses suspected abuse, gross neglect, or exploitation of a resident, resident-identifying information shall be reported to appropriate agencies with resident or resident representative consent, or when the resident is unable to consent and there is no available resident representative to provide consent. (45 CFR 1327.19(b)(8)).

In each of these circumstances, the Rule has additional requirements in order for the Ombudsman program to appropriately disclose resident-identifying information. (45 CFR 1327.19(b)(6)-(9)).

While the Rule provides these limited exceptions for reporting resident-identifying information, we do not believe that the Act provides ACL with the authority to promulgate a rule that would permit Ombudsman program reporting of resident-identifying information if a resident or his/her resident representative, who is able to communicate informed consent, has not provided consent. Nor does ACL support such reporting over the resident’s objection, as a matter of policy.

The Ombudsman program is designed to represent the interest of the resident (and not necessarily the interest of the state) in order to support the resident to make informed decisions about the disclosure of his or her own information. Residents may be concerned about retaliation if their concern is known or have other reasons why they do not want the Ombudsman program to disclose their information.

While Congress intends for the Ombudsman program to resolve complaints related to the health, safety, welfare and rights of residents, and while that intent logically includes response to and protection from abuse, Congress provided the resident—and not the Ombudsman program—with the authority to make the decision about when and where their information can be disclosed by the Ombudsman program. That is as it should be.

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Does the Rule prohibit Ombudsman programs from investigating abuse complaints?

No. Both the Older Americans Act and the Rule require the Ombudsman program to “identify, investigate, and resolve complaints that … relate to action, inaction or decisions that may adversely affect the health, safety, welfare, or rights of the residents.” (OAA Section 712(a)(3)(A), (a)(5)(B)(iii); 45 CFR 1327.13(a)(1), 1327.19(a)(1),(b)). Abuse, neglect and exploitation of residents are among the complaints that fall within this purview.

However, Ombudsman programs are not appropriately the official substantiator (or, finder of fact) for abuse complaints on behalf of the state or other governmental entity. Ombudsman programs represent the interests of residents, rather than the interests of the state or other governmental entity. (See OAA Section 712(a)(3)(E), (a)(5)(B)(iv); 45 CFR 1327.13(a)(5), 1327.19(a)(4)).

While the complaint resolution function of the Ombudsman program requires “investigation,” an Ombudsman investigation is not for the same purposes as an investigation by protective services, licensing and regulatory agencies, law enforcement or other entities that represent the state or other government entity in determining whether abuse occurred. In most states, substantiation determinations are made by adult protective services and/or the state’s licensing and regulatory agency, not by the Ombudsman program.

In contrast, when an Ombudsman program receives any complaint (including, but not limited to, an abuse-related complaint), it investigates solely for the purpose of gathering necessary information to resolve the complaint to the resident’s satisfaction. It does not investigate in order to officially determine whether any law or regulation has been violated or for purposes of taking official protective, regulatory, or enforcement action. The goal of the investigation is to resolve the complaint to the resident’s satisfaction, but not to substantiate whether the abuse or other allegation occurred.

The Ombudsman program does not have a duty to collect sufficient evidence to meet the higher legal standards of proof that protective services, licensing or regulatory agencies, or law enforcement may need to meet in order to fulfill their respective purposes. With appropriate consent, the Ombudsman program makes a referral to the appropriate protective service, regulatory, or law enforcement entity to investigate for its respective purpose.

With the Ombudsman program fulfilling its dispute resolution and advocacy duties, the priorities and interests of the individual resident can be supported in informal ways that often prevent the need for more formal regulatory or legal action. If the government entities charged with taking protective, regulatory, or enforcement actions are not providing the outcomes that serve the health, safety, welfare or rights of residents, the Ombudsman program is available to address these larger systemic problems. Therefore, it is critically important that each of these entities is able to distinctly fulfill their duties.

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Mental Health

Mental health is referenced numerous times throughout the 2006 amendments to the Older Americans Act. What are these new provisions and how will they enable the Aging Services Network to more fully meet the needs of older Americans?

For the first time, the Administration on Aging and the Aging Services Network are directed to apply a greater focus on the prevention and treatment of mental disorders. To effectively carry out the new mental health references in the Act, AoA will develop objectives, priorities and a long-term plan for supporting State and local efforts pertaining to education, prevention, detection and treatment of mental disorders, including age-related dementia, depression, and Alzheimer’s disease and related neurological disorders with neurological and organic brain dysfunction.

Although the 2006 Amendments include no specific requirements for States regarding the new Title II mental health provisions, there are significant opportunities for States to:

  • Ensure that mental health programs and services are aware of the role ADRCs play in connecting consumers with resources to meet their needs.
  • Explore the availability of evidence-based mental health programs and incorporating them where practicable.
  • Strengthen partnerships between mental health programs and services and the Aging Services Network at the State and AAA/community levels.

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National Family Caregiver Support Program (NFCSP)

How does the Modernization of the Older Americans Act benefit family caregivers?

AoA, in partnership with CMS, designed the Aging and Disability Resource Centers (ADRCs), now operational in 43 States and territories, to provide consumers and caregivers information on home and community-based long-term care services. ADRCs provide consumers information, options counseling, referral, assessment, educational and assistance in planning for future needs. AoA is emphasizing the importance of integration of proven evidence-based health promotion interventions, which can lessen disability related to chronic illnesses, prevent falls, and reduce the burden experienced by family caregivers of individuals who are older and/or disabled.

For individuals with a high-risk for nursing home placement, funds can be used by States to target these low and moderate income individuals and their caregivers who may be better served through home and community-based services. Through a variety of consumer-directed options, such consumers may select their own providers and direct how their services will be delivered.

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What eligibility changes were made to the National Family Caregiver Support rogram as a result of the Reauthorization of the Older Americans Act in 2006?

The eligibility changes in the NFCSP are:
  • Family caregivers of a person with Alzheimer’s disease or a related dementia may be served regardless of the age of the person with dementia.
  • Grandparents and other relative caregivers providing care to children (under age 18 years) may receive services at 55 years of age and older;
  • Grandparent or relative caregivers, providing care for adult children with a disability, who are between 19 and 59 years of age, can now be served under the NFCSP as follows:
    • Caregivers must be age 55 years and older;
    • Priority is given to caregivers providing care for an adult child with severe disabilities; and
    • Services provided to these caregivers are not counted against the 10% ceiling for grandparents and other caregivers providing care to children under the age of 18 years.

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Can older caregivers providing care to their own adult children with disabilities be served in the NFCSP?

Older caregivers providing care to their adult children with disabilities can be served in the NFCSP if the adult children are 60 years of age and older.

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How should the term “related disorders with neurological or organic brain dysfunction” be defined in the “family caregiver” definition?

Absent a comprehensive definition of “related disorders with neurological or organic brain dysfunction” States may identify such disorders based on their local experience, expertise and need.

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Are funds under the National Family Caregiver Support Program “earmarked” or targeted for specific services, e.g. respite?

Funds under the National Family Caregiver Support Program (NFCSP) are not earmarked or targeted for any specific service. States have the flexibility to determine the funding allocated to provide the five categories of services authorized: 1) information about services; 2) assistance with access to services; 3) individual counseling, organization of support groups, and caregiver training; 4) respite care; and 5) supplemental services, on a limited basis.

The OAA calls for States to implement a comprehensive caregiver program which includes the five services outlined, however; a State may address one or more of the service categories with other sources of funding.

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Are direct payments to family caregivers to purchase services allowed in the National Family Caregiver Support Program?

Direct payments to family caregivers are neither specifically included in, nor precluded by, the Older Americans Act. As such, direct payments to family caregivers may be possible to purchase services if so defined by the state.

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Are grandchildren cared for by grandparents, required to have a disability or chronic illness (including those with mental retardation and developmental disabilities) in order to receive services?

There is no requirement that the grandchildren have a disability. Under the NFCSP, states may design services for grandparents or older individuals who are relative caregivers. In these instances, the grandparent or relative caregiver must be an older individual (55+), who lives with the child, is the primary caregiver of the child, and has a legal relationship to the child or is raising the child informally. The child must be no more than 18 years old.

Note: The 2006 amendments to the Older Americans Act included an eligibility change which allows services to be provided to grandparents and other relative caregivers (55+) who are primary caregivers of an adult between the ages of 18 to 59 years with a disability. Biological or adoptive parents were not included in this change.

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Can respite and supplemental services be provided to grandparents and relative caregivers?

States have the option of using some portion of NFCSP funds (within the 10% statutory cap) to provide respite and supplemental services to grandparents and relative caregivers.

To allow grandparents a break from their daily caregiving responsibilities, funds under respite could be provided to pay expenses such as after school programs, summer/day camps, weekend programs and individual in-home respite. Supplemental funds could be provided to pay for expenses such as school supplies, legal issues associated with custody/adoption and other needs determined at the local level.

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Nutrition

What nutrition quality standards have changed under the Older Americans Act?

Section 339 of the OAA indicates that a State which establishes and operates a nutrition project shall ensure that meals:
  • Meet the most recent Dietary Guidelines for Americans, published by the Secretaries of Health and Human Services and Agriculture;
  • Provide to each participating individual a minimum of one-third of the Dietary Reference Intakes, established by the Food and Nutrition Board of the Institute of Medicine of the National Academy of Sciences, if one meal is served, two-thirds if two meals are served, and 100 percent if 3 meals are served; and
  • Comply with applicable provisions of State and local food service laws.

The OAA nutrition quality standards provide the scientific basis for State agencies on Aging (SUAs), Indian Tribal Organizations (ITOs), area agencies on aging (AAAs), and local nutrition service providers to serve meals and provide nutrition services to keep older adults healthy, reduce their risk of chronic disease and disability and help them manage chronic diseases and conditions.

The OAA places responsibility for implementing the Dietary Guidelines for Americans and the Dietary Reference Intakes on the SUAs and ITOs with input from AAAs and/or local nutrition service providers. AoA fosters flexibility and innovation to meal program operators in meeting these requirements and discourages strictly regulatory compliance approaches.

The changes in the reauthorization provide the foundation to allow programs to modernize by using the most current available science and evidence to help keep older adults healthy and in the community through access to healthy meals, provision of healthy choices, opportunities to maintain healthy lifestyle behaviors, and referrals to other appropriate programs and resources.

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What does “Sense of Congress” regarding vitamin and mineral supplements mean?

Congress recognizes a role for vitamin and mineral supplements to fill a gap in nutrient intake that may not be met by food. The "Sense of Congress" provision encourages additional local flexibility by allowing the appropriate and safe distribution of vitamin-mineral supplements to individuals in need of such supplements.

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Does each meal provided through the nutrition program have to offer every older adult the nutrition requirements contained in the Older Americans Act (Sec. 331, 336 and 339)?

The OAA requires that meals meet the nutrient and food requirements found in the Dietary Reference Intakes and the Dietary Guidelines for Americans. An older adult may be offered a particular food, but that individual may refuse the food and it does not need to be served.

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Does the OAA provide options for self-directed nutrition choices?

The OAA definition of “self-directed care” (Sec. 102(46) indicates that SUAs, AAAs and ITOs have the opportunity to expand decision-making roles of consumers in the type, amount, management, and budgeting of home and community based services they receive. For an individual able to actively participate in informed decision making and able to make appropriate choices, these services may include congregate and home delivered meals.

Individuals choosing self-directed nutrition services may benefit from nutrition education and nutrition counseling. This counseling may include an appropriate nutrition care plan, instruction on appropriate food choices based on needs, and other mechanisms such as vouchers.

One example of enhanced nutrition choice is offering a soup and salad bar or soup and sandwich bar as an alternative to a hot meal. The Older Americans Act (OAA) does not prescribe and therefore offers considerable flexibility in menu format, meal pattern and method of service.

Each State will determine whether to include self-directed care options in the nutrition service, as well as how the service is to be implemented and requirements of the OAA are met.

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A number of factors are increasing the cost of meals. Are there ways to work within the Dietary Reference Intakes (DRIs) and the Dietary Guidelines for Americans (DGAs) and meet these challenges?

The DGAs can be implemented by following two different meal patterns (the United State Department of Agricultures Food Guide or My Pyramid, and the Dietary Approaches to Stop Hypertension or DASH diet) and suggested caloric levels which determine portion sizes to best meet the needs of older adults being served.

Implementation of the DRIs and DGAs do not require the production of high cost meals, however; the translation of these requirements into low-cost meals is a technical skill that may require the expertise of a registered dietitian or individual with comparable education and training.

Recommendations for implementation including flexibility recommendations are found in the Dietary Guidelines for Americans2005 Nutrition Service Providers Guide found at nutritionandaging.fiu.edu/DRI_and_DGs/dg_resources.asp.

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Payer of Last Resort

If services are being provided to an older adult under the Older Americans Act, should the OAA continue providing payment for services if the person is later determined eligible for the same services under a Medicaid waiver?

Title III of the Older Americans Act (OAA) does not create a legal requirement to finance services for any individual. Individuals age 60 and over may receive benefits under the OAA but no individual is entitled to them. An individual who is eligible for Medicaid benefits programs may also receive services under the OAA; however, the State may not require that OAA programs fund benefits that can be funded by Medicaid. Although individuals may not be entitled to specific services under the OAA, Medicaid-eligible individuals may receive such services.

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Private Pay

Can the Aging Network implement private pay services?

Private pay services can create opportunities to reach a segment of the population not traditionally served by the network, however; such activities are optional for States, Area Agencies and service providers. In general, private payment for services occurs when individuals pay the full cost of the services they receive. Because there is no public funding involved, private pay services are not subject to the ‘cost sharing’ provisions under the Older Americans Act (OAA, Sec. 315(a)).

Note: Private pay services to individuals and caregivers are also distinct from establishing “Private Pay Relationships” with profit-making organizations and are therefore not subject to Sec. 212(a) of the OAA.

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Religious Activities

Is prayer allowed at Title III funded congregate meal sites?

The Older Americans Act does not forbid older adults from praying before a meal at a senior center or some other location that provides a meal with funding from the OAA. The AoA recommends that each nutrition program adopt a policy that ensures that each individual participant has a free choice whether to pray either silently or audibly, and that the prayer is not officially sponsored, led or organized by persons administering the Nutrition Program or the meal site.

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Are bible studies and other religious activities allowed at Title III funded program sites?

Title III funded programs may not use OAA funds (or local matching funds) to support inherently religious activities, such as worship, religious instruction, or proselytization. If the organization engages in such activities, it must offer them separately, in time or location, from the programs or services funded with OAA funds, and participation must be voluntary.

This restriction does not mean that an organization that sponsors the Title III program (i.e., the contractor or grantee) may not engage in inherently religious activities, but only that the organization may not use OAA funds for such purposes.

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Self Directed Care

To what extent does the OAA now encourage the Aging Services Network to implement self-directed care options in all service categories?

State agencies on aging, area agencies on aging, and Tribes have the opportunity to expand the decision-making roles of consumers in the type, amount, management and budgeting of the home and community-based services they receive. Through effective and efficient models, including cash and counseling vouchers, expanded service choices, etc., AoA encourages the implementation of self-directed care provisions through OAA services whenever possible, however; each State will determine which services include such provisions and how they will be implemented .

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Can Title III service funds be used to provide fiscal management services (FMS) related to nursing home diversion and other home and community based programs designed to maintain older adults in the community?

Financial Management Services (FMS) are an essential element of self directed care programs. FMS supports self directed programs by assisting individuals with enrollment, payroll and employment tax issues, and by performing fiscal accounting and expenditure reporting to the individual and to the sponsoring program.

Title III-B and III-E funds may be used to provide FMS so long as the services supported by FMS are allowable under these two program parts, e.g., transportation, information, support groups, respite, etc., and are provided to adults age 60 years and over (III-B) and/or to caregivers (III-E). It is incumbent upon States and area agencies on aging (AAA) to assure Title III expenditures for FMS meet all Older Americans Act requirements.

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State Plans

The AoA Program Instruction (AoA-PI-08-01) points out that a national aging services Planning Model is available to assist States. Is this Model required to complete the State Plan? The Plan Model states that the Plan Narrative is to be 20 pages. Is this an absolute limit?

The national aging services Planning Model was developed by the National Association of State Units on Aging (AoA Grant 90AM3032). It is available to assist States in the development of the State Plans. While strongly encouraged, its use is not required in law or regulation. This web based tool will provide the resources necessary to develop a comprehensive, yet concise, State Plan on Aging. It is a recommendation that the State Plan be 20 - 30 pages in length with the opportunity to attach data and other reports in appendices. Some states may need more narrative, but clarity and conciseness are the intended result.

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Targeting

What implications do the new targeting provisions create for service delivery and long-term care modernization?

Targeting references are made throughout the Older Americans Act (OAA), as amended in 2006. The Amendments maintain all of the previous targeting groups but revise the group “limited English speaking” to “limited English proficiency,” and add a new group, “older individuals at risk for institutional placement.” A reference to older individuals with limited English proficiency is added to all sections of the OAA where previously the phrase ‘with particular attention to low-income minority older individuals and older individuals residing in rural areas” was used.

The revision and addition of these two groups assures that the Aging Network will prioritize the provision of services to those individuals in greatest need of long-term care services, and address the specific needs of such individuals in all aspects of planning, advocacy and resource development.

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Does “greatest social need” as defined in the Older Americans allow communities to target funds to populations they identify as experiencing cultural, social or geographic isolation other than isolation caused by racial or ethnic status?

While the definition of “greatest social need” in the Older Americans Act includes isolation caused by racial or ethnic status, the definition is not intended to exclude the targeting of other populations that experience cultural social or geographic isolation due to other factors. In some communities, such isolation may be caused by minority religious affiliation. In others, isolation due to sexual orientation or gender identity may restrict a person’s ability to perform normal daily tasks or live independently. Each planning and service area must assess their particular environment to determine those populations best targeted based on “greatest social need”.

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Transportation

Does the 2006 Reauthorization include specific opportunities to more fully coordinate transportation services?

In recognition of the importance of the role of the Aging Services Network, AoA entered into a memorandum of understanding with the Federal Transit Administration in January 2003. As a result of this collaboration, AoA has become a key partner at the federal level in promoting the coordination of transportation across programs and agencies.

The 2006 Reauthorization contains specific requirements for States and area agencies to develop and implement comprehensive and coordinated systems for home and community-based services, including transportation. These requirements afford the Aging Services Network with significant opportunities to strengthen coordination of transportation services and/or ensure its inclusion in the planning and delivery of transportation services. States and communities are encouraged to use the resources available on National Center on Senior Transportation, to assist in developing and enhancing coordinated transportation services.

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Programs administered by the Federal Transit Administration (e.g., 5310, 5311, & 5317) now permit applicants to use other sources of Federal funding as match. Does this mean that OAA funds can be used as match?

To maximize flexibility of funding and to enhance services to older adults, Older Americans Act grantees have the option to use Title III B funds to meet the match requirements for programs administered by the Federal Transit Administration (FTA). With this option, the Aging Network is afforded additional opportunities to better meet local transportation needs and further the goals of United We Ride, including providing more rides for the same or fewer assets, facilitating access to services and increasing customer satisfaction.

It is imperative to note that 45 CFR Parts 74.23(a) and 92.24(b) do not allow OAA grantees to use any Federal funds (including FTA funds) to meet the OAA non-Federal share (match) of project expenditures. It is also important to note that any proposed use of OAA funds (including funds that would be used as match for FTA programs) must be consistent with the terms and conditions of the grant/contract award, including all applicable Older Americans Act provisions and uniform grant administration rules (45 CFR Parts 74 and 92).

A local transportation provider receiving Title III funds for transportation services may only use such funds for the transport of seniors (and caregivers who are escorting seniors). Such services must be part of the overall comprehensive system of services in the planning and service area. (Sec. 303(c)(2)). State and area agencies on aging remain fully responsible for administration and oversight of OAA funds, notwithstanding FTA’s acceptance of any OAA funds under a grant/contract as cost sharing or matching.

For clarity, the following conditions must be met if OAA funds are to be used to match FTA funds:

  • All specific terms and conditions of the OAA grant;
  • The intent of the OAA;
  • All applicable Federal, State and local legislation; and
  • The Federal agency (FTA) has the statutory provisions necessary to allow its grantees to count non-FTA federal funds as matching contributions for their project costs.

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Last Modified: 10/7/2014