Older Americans Act: Grants to State and Community Programs on Aging; Grants to Indian Tribes and Native Hawaiian Grantees for Supportive, Nutrition, and Caregiver Services; Grants for Supportive and Nutritional Services to Older Hawaiian Natives; and Allotments for Vulnerable Elder Rights Protection Activities, 11566-11699 [2024-01913]

Download as PDF 11566 Federal Register / Vol. 89, No. 31 / Wednesday, February 14, 2024 / Rules and Regulations Administration for Community Living To schedule an appointment for this type of accommodation or auxiliary aid, please call (312) 938–9858 or email amy.wiatr-rodriguez@acl.hhs.gov. 45 CFR Parts 1321, 1322, 1323, and 1324 Table of Contents DEPARTMENT OF HEALTH AND HUMAN SERVICES SUPPLEMENTARY INFORMATION: RIN 0985–AA17 Older Americans Act: Grants to State and Community Programs on Aging; Grants to Indian Tribes and Native Hawaiian Grantees for Supportive, Nutrition, and Caregiver Services; Grants for Supportive and Nutritional Services to Older Hawaiian Natives; and Allotments for Vulnerable Elder Rights Protection Activities Administration for Community Living (ACL), Department of Health and Human Services (HHS or ‘‘the Department’’). ACTION: Final rule. AGENCY: ACL is issuing this final rule to modernize the implementing regulations of the Older Americans Act of 1965 (‘‘the Act’’ or OAA). These changes advance the policy goals of the Act as articulated by Congress, including equity in service delivery, accountability for funds expended, and clarity of administration for ACL and its grantees. This final rule ultimately facilitates improved service delivery and enhanced benefits for OAA participants, particularly those in greatest economic need and greatest social need consistent with the statute. DATES: Effective date: This final rule is effective on March 15, 2024. Compliance date: October 1, 2025. 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: amy.wiatr-rodriguez@ acl.hhs.gov, Telephone: (312) 938–9858. Alice Kelsey, Deputy Director for the Administration on Aging, Administration for Community Living, Department of Health and Human Services, 330 C Street SW, Washington, DC 20201. Email: alice.kelsey@ acl.hhs.gov, Telephone: (202) 795–7342. 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 regulations. ddrumheller on DSK120RN23PROD with RULES4 SUMMARY: VerDate Sep<11>2014 20:33 Feb 13, 2024 Jkt 262001 I. Background A. Statutory and Regulatory History B. Overview of the Final Rule C. Severability II. Provisions of the Final Rule and Analysis and Responses to Public Comments Part 1321: Grants to State and Community Programs on Aging A. Provisions Revised To Reflect Statutory Changes and/or for Clarity Subpart A—Introduction 1. § 1321.1 Basis and Purpose of This Part 2. § 1321.3 Definitions Subpart B—State Agency Responsibilities 1. § 1321.5 Mission of the State Agency 2. § 1321.7 Organization and Staffing of the State Agency 3. § 1321.9 State Agency Policies and Procedures 4. § 1321.11 Advocacy Responsibilities 5. § 1321.13 Designation of and Designation Changes to Planning and Service Areas 6. § 1321.15 Interstate Planning and Service Area 7. § 1321.17 Appeal to the Departmental Appeals Board on Planning and Service Area Designation 8. § 1321.19 Designation of and Designation Changes to Area Agencies 9. § 1321.21 Withdrawal of Area Agency Designation 10. § 1321.25 Duration, Format, and Effective Date of the State Plan 11. § 1321.27 Content of State Plan 12. § 1321.29 Public Participation 13. § 1321.31 Amendments to the State Plan 14. § 1321.33 Submission of the State Plan or Plan Amendment to the Assistant Secretary for Aging for Approval 15. § 1321.35 Notification of State Plan or State Plan Amendment Approval or Disapproval for Changes Requiring Assistant Secretary for Aging Approval 16. § 1321.39 Appeals to the Departmental Appeals Board Regarding State Plan on Aging 17. § 1321.41 When a Disapproval Decision Is Effective 18. § 1321.43 How the State Agency May Appeal the Departmental Appeals Board’s Decision 19. § 1321.45 How the Assistant Secretary for Aging May Reallot the State Agency’s Withheld Payments 20. § 1321.49 Intrastate Funding Formula 21. § 1321.51 Single Planning and Service Area States Subpart C—Area Agency Responsibilities 1. § 1321.55 Mission of the Area Agency 2. § 1321.57 Organization and Staffing of the Area Agency 3. § 1321.61 Advocacy Responsibilities of the Area Agency 4. § 1321.63 Area Agency Advisory Council PO 00000 Frm 00002 Fmt 4701 Sfmt 4700 5. § 1321.65 Submission of an Area Plan and Plan Amendments to the State Agency for Approval Subpart D—Service Requirements 1. § 1321.71 Purpose of Services Allotments Under Title III 2. § 1321.73 Policies and Procedures 3. § 1321.75 Confidentiality and Disclosure of Information 4. § 1321.79 Responsibilities of Service Providers Under State and Area Plans 5. § 1321.83 Client and Service Priority 6. § 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. § 1321.23 Appeal to the Departmental Appeals Board on Area Agency on Aging Withdrawal of Designation 2. § 1321.37 Notification of State Plan Amendment Receipt for Changes Not Requiring Assistant Secretary for Aging Approval 3. § 1321.47 Conflicts of Interest Policies and Procedures for State Agencies 4. § 1321.53 State Agency Title III and Title VI Coordination Responsibilities Subpart C—Area Agency Responsibilities 1. § 1321.59 Area Agency Policies and Procedures 2. § 1321.67 Conflicts of Interest Policies and Procedures for Area Agencies on Aging 3. § 1321.69 Area Agency on Aging Title III and Title VI Coordination Responsibilities Subpart D—Service Requirements 1. § 1321.77 Purpose of Services—Personand Family-Centered, Trauma-Informed 2. § 1321.81 Client Eligibility for Participation 3. § 1321.85 Supportive Services 4. § 1321.87 Nutrition Services 5. § 1321.89 Evidence-Based Disease Prevention and Health Promotion Services 6. § 1321.91 Family Caregiver Support Services 7. § 1321.95 Service Provider Title III and Title VI Coordination Responsibilities Subpart E—Emergency and Disaster Requirements 1. § 1321.97 Coordination With State, Tribal, and Local Emergency Management 2. § 1321.99 Setting Aside Funds To Address Disasters 3. § 1321.101 Flexibilities Under a Major Disaster Declaration 4. § 1321.103 Title III and Title VI Coordination for Emergency and Disaster Preparedness 5. § 1321.105 Modification During Major Disaster Declaration or Public Health Emergency C. Deleted Provisions Subpart A—Introduction 1. § 1321.5 Applicability of Other Regulations Subpart D—Service Requirements 1. § 1321.75 Licenses and Safety Part 1322: Grants to Indian Tribes and Native Hawaiian Grantees for Supportive, Nutrition, and Caregiver Services E:\FR\FM\14FER4.SGM 14FER4 ddrumheller on DSK120RN23PROD with RULES4 Federal Register / Vol. 89, No. 31 / Wednesday, February 14, 2024 / Rules and Regulations A. Provisions Revised To Reflect Statutory Changes and/or for Clarity Subpart A—Introduction 1. § 1322.1 Basis and Purpose of This Part 2. § 1322.3 Definitions Subpart B—Application 1. § 1322.5 Application Requirements 2. § 1322.7 Application Approval 3. § 1322.9 Hearing Procedures Subpart C—Service Requirements 1. § 1322.13 Policies and Procedures 2. § 1322.15 Confidentiality and Disclosure of Information 3. § 1322.25 Supportive Services 4. § 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. § 1322.11 Purpose of Services Allotments Under Title VI 2. § 1322.17 Purpose of Services—Personand Family-Centered, Trauma-Informed 3. § 1322.19 Responsibilities of Service Providers 4. § 1322.21 Client Eligibility for Participation 5. § 1322.23 Client and Service Priority 6. § 1322.29 Family Caregiver Support Services 7. § 1322.31 Title VI and Title III Coordination Subpart D—Emergency and Disaster Requirements 1. § 1322.33 Coordination With Tribal, State, and Local Emergency Management 2. § 1322.35 Flexibilities Under a Major Disaster Declaration 3. § 1322.37 Title VI and Title III Coordination for Emergency and Disaster Preparedness 4. § 1322.39 Modification During Major Disaster Declaration or Public Health Emergency C. Deleted Provisions 1. § 1322.5 Applicability of Other Regulations Part 1323: Grants for Supportive and Nutritional Services to Older Hawaiian Natives A. Deleted Provisions 1. Part 1323: Grants for Supportive and Nutritional Services to Older Hawaiian Natives. Part 1324: 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. § 1324.1 Definitions 2. § 1324.11 Establishment of the Office of the State Long-Term Care Ombudsman 3. § 1324.13 Functions and Responsibilities of the State Long-Term Care Ombudsman 4. § 1324.15 State Agency Responsibilities Related to the Ombudsman Program 5. § 1324.17 Responsibilities of Agencies Hosting Local Ombudsman Entities 6. § 1324.19 Duties of the Representatives of the Office VerDate Sep<11>2014 20:33 Feb 13, 2024 Jkt 262001 7. § 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. § 1324.201 State Agency Responsibilities for the Prevention of Elder Abuse, Neglect, and Exploitation Subpart C—State Legal Assistance Development 1. § 1324.301 Definitions 2. § 1324.303 Legal Assistance Developer III. Required Regulatory Analyses A. Regulatory Impact Analysis 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 OAA in 1965 to expand and enhance community social services for older persons.1 The original legislation established authority for grants to State agencies 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 (LTCOP or 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), to serve as the principal agency designated to carry out the provisions of the OAA and as the 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 ACL.4 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 or area agencies) 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 included 56 1 Public Law 89–73, 79 Stat. 218 (1965). 42 U.S.C. 3001 et seq. 2 Section 201 of the OAA; 42 U.S.C. 3011. 3 Section 202 of the OAA; 42 U.S.C. 3012. Title V of the OAA added in the 1978 reauthorization is administered by the Dep’t of Labor. 4 80 FR 31389, 31391 (June 2, 2015). 5 Title III of the OAA; 42 U.S.C. 3021 et seq. PO 00000 Frm 00003 Fmt 4701 Sfmt 4700 11567 State agencies (including the District of Columbia and five Territories), over 600 AAAs, and over 20,000 local service providers.6 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 10.1 million older persons in 2020 (the most recent year for which data is available).8 Title III accounted for nearly three quarters of the of the $2.378 billion OAA 2023 budget and funding for these programs is based on a statutory formula that determines yearly allocations to individual Territories and States.9 Title III services are available to persons aged 60 and older and family caregivers; however, they are prioritized to serve those with the greatest economic need and greatest social need, particularly low-income minority older individuals, older persons with limited English proficiency (LEP), older persons residing in rural areas, and older persons with disabilities.10 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 Federally recognized Tribal organizations, including Native Alaskan organizations, and a designated not-forprofit group representing Native Hawaiians. To be eligible for funding, a Tribal organization or Hawaiian Native grantee must represent at least 50 Native Americans aged 60 and older who reside in the service area. In FY2023, grants were awarded to 290 Tribal organizations representing approximately 400 Indian Tribes and Alaskan Native entities and one 6 Cong. Research Serv., R43414, Older Americans Act: Overview and Funding (May 17, 2023), https:// crsreports.congress.gov/product/pdf/R/R43414. 7 Title III of the OAA; 42 U.S.C. 3021 et seq. 8 Admin. for Cmty. Living, Overview of Older Americans Act Title III, VI, and VII Programs: 2020 Summary of Highlights and Accomplishments, p. III–2 (2022), https://acl.gov/sites/default/files/ news%202022-09/2020%20OAA%20Report_ Complete%20Product%209-1-22_508.pdf. 9 Admin. For Cmty. Living, FY 2022 OAA Title III Annual Grant Awards (without transfers) (Apr. 27, 2022), https://acl.gov/sites/default/files/aboutacl/2022-05/Title%20III-2022.pdf. 10 Title III of the OAA; 42 U.S.C. 3021 et seq. E:\FR\FM\14FER4.SGM 14FER4 11568 Federal Register / Vol. 89, No. 31 / Wednesday, February 14, 2024 / Rules and Regulations organization serving Native Hawaiian elders.11 Title VII authorizes the Ombudsman program, programs for elder abuse, neglect, and exploitation prevention, and a requirement for State agencies to provide a State Legal Assistance Developer.12 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.13 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.14 That same year, Ombudsman fielded 182,000 complaints and provided more than 569,000 instances of information and assistance to individuals and long-term care facilities.15 Title VII also authorizes grants to State agencies for program activities aimed at preventing and remedying elder abuse, neglect, and exploitation. ddrumheller on DSK120RN23PROD with RULES4 A. Statutory and Regulatory History This final rule 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 the 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, 11 U.S. Dep’t of Health & Human Servs., Tracking Accountability in Government Grants System (TAGGS), https://taggs.hhs.gov (last visited Oct. 13, 2023). 12 Title VII of the OAA; 42 U.S.C. 3058 et seq. 13 Cong. Research Serv., R43414, Older Americans Act: Overview and Funding (May 17, 2023), https://crsreports.congress.gov/product/pdf/ R/R43414. 14 Admin. For Cmty. Living, Fiscal Year 2023 Justification of Estimates for Appropriations Committees, 132, https://acl.gov/about-acl/budget. 15 National Ombudsman Reporting System (NORS), Data at a Glance, Admin. for Cmty. Living (last visited Jan. 18, 2023). VerDate Sep<11>2014 20:33 Feb 13, 2024 Jkt 262001 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 regulations, 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. Regulations for programs authorized under the Act date from 1988.16 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 2015.17 There have been substantial statutory changes since 1988, as detailed by the Congressional Research Service in several summary publications.18 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), which 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; 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 16 53 FR 33758 (Aug. 31, 1988). FR 7704 (Feb. 11, 2015). 18 Cong. Research Serv., R46439, Older Americans Act: A 2020 Reauthorization (July 1, 2020), https://crsreports.congress.gov/product/pdf/ R/R46439; Cong. Research Serv., R43414, Older Americans Act: Overview and Funding (May 17, 2023), https://crsreports.congress.gov/product/pdf/ R/R43414. 17 80 PO 00000 Frm 00004 Fmt 4701 Sfmt 4700 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. 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 State agencies to impose cost-sharing, subject to limitations, for some Title III services certain older persons receive while retaining authority for voluntary contributions toward the costs of services. The 2006 amendments (Pub. L. 109–365) authorized the Assistant Secretary for Aging to designate an individual within AoA to be responsible for prevention of elder abuse, neglect, and exploitation and to coordinate Federal elder justice activities. 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 State agencies 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. The 2016 amendments (Pub. L. 114– 144) provided additional flexibility to State agencies, AAAs, and social services providers in addressing the modernization of senior centers, falls prevention, and behavioral health screening, and codified existing practices, such as requiring ‘‘evidencebased’’ disease prevention and health promotion services. For the Ombudsman program, they clarified conflicts of interest (COI) provisions, strengthened confidentiality and Ombudsman training requirements, and improved resident access to representatives of the Office. They addressed coordination among ADRCs and other home and community-based service (HCBS) organizations providing information and referrals. The Supporting Older Americans Act of 2020 (Pub. L. 116–131) added new definitions, including person-centered and trauma-informed. 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, as well as address the negative effects of social isolation among older individuals. Congress focused on other reauthorization issues as well, including changes to nutrition E:\FR\FM\14FER4.SGM 14FER4 ddrumheller on DSK120RN23PROD with RULES4 Federal Register / Vol. 89, No. 31 / Wednesday, February 14, 2024 / Rules and Regulations services programs and to programs that provide support to family caregivers. We issued a Request for Information (RFI) 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.19 Most of the comments we received focused on: 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. On June 16, 2023, the Federal Register published a notice of proposed rulemaking (NPRM) regarding OAA Titles III, VI, and VII (88 FR 39568). Through this NPRM, ACL sought feedback regarding ACL’s proposal to modernize the implementing regulations of the OAA, which have not been substantially altered since their promulgation in 1988. The NPRM addressed supportive, nutrition, evidence-based disease prevention and health promotion, caregiver, legal, longterm care ombudsman, and other services provided by State agencies, Tribal organizations and a Hawaiian Native grantee, AAAs, and service providers under the OAA. The 60-day comment period for the NPRM closed on August 15, 2023. direct response to feedback from interested parties and reflects the evolving needs of both grantees and OAA program participants. In response to robust comment, we have clarified the flexibilities available during a major disaster, increased the amount of funds under Title III, part C–1 of the Act that may be used for shelf-stable, pick-up, carry-out, drive-through, or similar meals, and provided more information about implementing the definition of ‘‘greatest social need’’ in State and area plans, among other clarifications. B. Overview of the Final Rule This final rule adopts the same structure and framework as the proposed rule. Part 1321 addresses programs authorized under Title III of the Act and includes subpart A (basis, purpose, and definitions), subpart B (State agency responsibilities), subpart C (area agency responsibilities), subpart D (service requirements), and subpart E (emergency and disaster requirements). Part 1322 addresses programs authorized under Title VI of the Act and includes subpart A (basis, purpose, and definitions), subpart B (application), subpart C (service requirements), and subpart D (emergency and disaster requirements). Part 1324 includes programs authorized under Title VII of the Act and includes subpart A (State Long-Term Care Ombudsman Program), subpart B (programs for prevention of elder abuse, neglect, and exploitation), and subpart C (State legal assistance development). ACL has made changes to several of the proposed rule’s provisions based on public comments. Our final rule is a We received 780 public comments from individuals and organizations, including State agencies, Tribes and Tribal organizations, AAAs, service providers, Ombudsman programs, advocacy groups, and private citizens. We thank commenters for their consideration of the proposed rule and appreciate all comments received. We particularly are grateful for the OAA program participants who wrote to share their experience of OAA services and their thoughts on what they enjoy and would like to see in the future regarding OAA programming. In the subsequent sections, we summarize the rule’s provisions and the public comments received, and we provide our response. 19 87 FR 27160 (May 6, 2022); section 2013A of the OAA, 42 U.S.C. 3013a. VerDate Sep<11>2014 20:33 Feb 13, 2024 Jkt 262001 C. Severability To the extent that any portion of the requirements arising from the final rule is declared invalid by a court, ACL intends for all other parts of the final rule that are capable of operating in the absence of the specific portion that has been invalidated to remain in effect. While our expectation is that all parts of the final rule that are operable in such an environment would remain in effect, ACL will assess at that time whether further rulemaking is necessary to amend any provisions subsequent to any holding that ACL exceeded its discretion, or the provisions are inconsistent with the OAA, or are vacated or enjoined on any other basis. II. Provisions of the Final Rule and Analysis and Responses to Public Comments General Comments on the NPRM General Support Comment: Commenters overwhelmingly supported most provisions in the proposed rule. Many commenters expressed general support for our updates to modernize the regulations. Other commenters appreciated the flexibilities in the rule and noted that they would like to work with their State and local leaders to identify other creative approaches to PO 00000 Frm 00005 Fmt 4701 Sfmt 4700 11569 expanding services to older adults. A significant number of commenters requested additional funds to provide services under the Act. Response: ACL appreciates these comments. We encourage collaboration at the State and local levels to identify solutions that are responsive to the needs and resources in local communities. Requests for funding are outside the scope of this rule. Technical Corrections; Recommendations for Sub-Regulatory Guidance Comment: A number of commenters identified technical corrections, including citation errors and a misnumbered preamble provision. Commenters also provided suggestions and raised questions that could be addressed in future sub-regulatory guidance on a variety of topics. Response: We appreciate these comments and have made the recommended technical corrections. We have also clarified the regulation text to remove references to sub-regulatory guidance that has not yet been issued, and we have revised the regulation title to accurately reflect program titles. We look forward to providing technical assistance and guidance on a number of topics subsequent to promulgation of the final rule. LGBTQI+ Older Adults and Older Adults Living With HIV Comment: A significant number of comments focused on the importance of serving those in greatest economic need and greatest social need, including older adults and family caregivers who are lesbian, gay, bisexual, transgender, queer, intersex and/or have other sexual orientations, gender identities and expressions, and sex characteristics (LGBTQI+). Many commenters expressed support overall, and for specific provisions, concerning LGBTQI+ older adults and older adults with HIV. Specifically, commenters voiced support for full legal protections, protection of rights and privacy, and protection from discrimination when accessing services or meeting with providers. Commenters also supported quality, inclusive, and equitable legislation, regulations, aging policies, programs, services, and initiatives. Many commenters also suggested that staff and professionals working with older adults be trained in sensitivity, cultural competency, and needs specific to LGBTQI+ older adults and older adults with HIV. Specifically, commenters expressed the importance of ensuring that providers foster a welcoming, safe, and respectful E:\FR\FM\14FER4.SGM 14FER4 ddrumheller on DSK120RN23PROD with RULES4 11570 Federal Register / Vol. 89, No. 31 / Wednesday, February 14, 2024 / Rules and Regulations environment. Several commenters noted the importance of considering other noneconomic factors, such as geographic location (e.g., rural), disabilities, ethnicity, and the intersectional challenges of multiply marginalized populations. Several commenters noted the specific concerns of this community related to services funded under Title VII of the Act, such as the Ombudsman program and prevention of elder abuse, neglect, and exploitation. A few commenters specifically recommended engaging State agencies, AAAs, and service providers in providing funding, outreach, and services specific to older adults with HIV. Additionally, a few commenters noted the importance of hiring LGBTQI+ service provider employees and professionals. Several commenters referenced support for and access to high quality and culturally competent medical and mental health care. Some commenters noted the importance of recognition of and respect for partners, friends, and families. One commenter suggested requiring inclusive language and graphics in marketing materials as a matter of compliance. One commenter observed that LGBTQI+ individuals and people with HIV have a greater need to overcome isolation. Several commenters expressed concerns about finding affordable senior supported living options. Response: ACL appreciates these comments expressing concern for older adults and family caregivers who are LGBTQI+, as well as older adults and family caregivers with HIV. A majority of these comments are beyond the scope of this regulation because they do not relate to the substance of the rule, and in some cases address areas that are outside of ACL’s statutory authority. However, we appreciate the numerous comments in support of these communities and believe the provisions at § 1321.3 (defining ‘‘Greatest social need’’), § 1321.11 (Advocacy responsibilities), § 1321.27 (Content of State plan), § 1321.61 (Advocacy responsibilities of the area agency), § 1321.65 (Submission of an area plan and plan amendments to the State agency for approval), § 1321.75 (Confidentiality and disclosure of information), and § 1321.93 (Legal assistance) will improve services to these populations. ACL funds the National Resource Center on LGBTQ+ Aging (https:// www.lgbtagingcenter.org), which provides training and technical assistance to aging services providers, including those funded under the OAA, in their work to support and include VerDate Sep<11>2014 20:33 Feb 13, 2024 Jkt 262001 LGBTQI+ older adults and family caregivers. In a partnership with the Office of the Assistant Secretary for Health, ACL has worked to support the development of innovative efforts that improve health outcomes and quality of life for people aging with HIV and longterm survivors in both rural and urban areas, particularly among underserved communities, including on the basis of race, ethnicity, and LGBTQI+ status.20 We expect to build on these efforts and anticipate providing training and technical assistance following promulgation of the final rule to support effective implementation of these provisions. Collaboration Between State Agencies and Area Agencies Comment: ACL received many comments expressing concern that the rule allows State agencies to exert too much control in a variety of areas (e.g., which programs AAAs implement under the Act, how AAAs implement programs, minimum expenditures for certain services, prioritization of services, voluntary contributions). Commenters also expressed concern that the extent of control afforded to State agencies by the rule will stifle AAAs’ abilities to tailor programs to the needs of their respective planning and service areas (PSAs). Response: 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[.]’’ 21 As the grantees under the Act, State agencies are responsible to ACL for monitoring the compliance of activities initiated under Title III with all applicable requirements to ensure grant awards are used for authorized purposes and are in compliance with Federal law. In light of these responsibilities, we believe the rule affords State agencies appropriate authority over the administration and implementation of the Act within their states. Notwithstanding these State agency obligations, AAAs have a critical role in the development of State agency policies and procedures. Section 1321.9(a) requires that the policies and procedures be developed by State agencies in consultation with AAAs, program participants, and other 20 HHS Selects Phase 2 Winners of National HIV and Aging Challenges, HIV.gov, https:// www.hiv.gov/blog/hhs-selects-phase-2-winners-ofnational-hiv-and-aging-challenges/ (last updated Sept. 21, 2023). 21 42 U.S.C. 3025(a)(1)(C). PO 00000 Frm 00006 Fmt 4701 Sfmt 4700 appropriate parties in the State. As set forth in § 1321.61 (Advocacy responsibilities of the area agency), AAAs also have an obligation to monitor, evaluate, and comment on policies, programs, hearings, levies, and community actions which affect older persons and family caregivers; this includes regarding the policies and procedures developed and implemented by State agencies. Further, except for the Ombudsman program as set forth in 45 CFR part 1324, subpart A and where otherwise indicated, the State agency policies may allow for such policies and procedures to be developed at the AAA level. Accordingly, the final rule provides tools for State and area agencies to work in tandem with one another and to address the concerns raised by these comments. The OAA is clear that State agencies and AAAs should work together to achieve the mission set forth in the Act. AAAs and State agencies have distinct but related roles that are all vitally important in providing services to older adults and family caregivers. ACL is available to provide technical assistance and support to State agencies and AAAs in maintaining positive working relationships, fulfilling their roles, and meeting the expectations of the OAA. Housing, Housing Instability, and Homelessness Comment: Many commenters expressed support for addressing housing, housing instability, and homelessness, including information and assistance/referral (I&A/R), partnerships with the U.S. Department of Housing and Urban Development (HUD), assistance with paying for housing costs and shared living options, advocacy regarding rising housing costs and development which displaces older residents, and legal assistance to assist with housing problems, including evictions. Response: ACL appreciates these comments expressing concern for older adults and family caregivers who experience challenges with housing, housing instability, and homelessness. ACL notes the OAA’s long-standing role in support of this topic, including State agency and AAA development of a comprehensive and coordinated network of services and supports; instances of co-location of congregate meal programs under Title III, part C– 1 of the Act in affordable housing facilities; and the provision of legal assistance under the Act to respond to various housing and housing-related concerns. While regulating the provision of housing, including paying for housing costs, is beyond the scope E:\FR\FM\14FER4.SGM 14FER4 Federal Register / Vol. 89, No. 31 / Wednesday, February 14, 2024 / Rules and Regulations ddrumheller on DSK120RN23PROD with RULES4 of the Act, we believe the provisions at § 1321.3 (defining ‘‘Access to services or access services,’’ ‘‘In-home supportive services,’’ and ‘‘Greatest social need’’), § 1321.27 (Content of State plan), § 1321.61 (Advocacy responsibilities of the area agency), § 1321.65 (Submission of an area plan and plan amendments to the State agency for approval), § 1321.75 (Confidentiality and disclosure of information), § 1321.85 (Supportive services), and § 1321.93 (Legal assistance) will support the aging network in responding to issues relating to housing, housing instability, and homelessness. This includes local partnerships between AAAs and housing authorities or providers and enabling access to services and supports for older adults residing in HUDassisted housing as well as the braiding of funding to support housing stability with service coordination and delivery. ACL leads the Housing and Services Resource Center (https://acl.gov/ HousingAndServices), a partnership between HHS and HUD. We expect to build on these efforts and anticipate providing training and technical assistance following promulgation of the final rule to support effective implementation of these provisions. Accessibility and Civil Rights Obligations Comment: Numerous commenters expressed concern with the elimination of the definition of ‘‘severe disability,’’ as well as the lack of a specific definition of disability, and the absence of specific incorporation of major sensory disabilities and accessibility in the definition of ‘‘greatest social need.’’ Many of these commenters reported instances in which OAA grantees and subrecipients had not respected the civil rights of people with sensory or mobility disabilities. Some shared specific accounts of AAAs and legal service providers failing to provide culturally competent, accessible services to older adult consumers who are blind, low-vision, deaf, hard-ofhearing, deafblind, or who have limited mobility. Many requested that we expand the definition of greatest social need to encompass these disability populations, codify the terms ‘‘accessibility’’ and ‘‘vision rehabilitation services,’’ require training in disability competency, and more clearly and forcefully require grantees to meet their civil rights obligations to older adults with disabilities. Commenters also recommended that ACL direct resources specifically to research on aging and vision loss, treatment for diseases that result in vision loss, and supportive services for VerDate Sep<11>2014 20:33 Feb 13, 2024 Jkt 262001 people with vision loss so that they may age in place—such as transportation and home care assistance. Response: All recipients of Federal funding, including OAA grantees and subrecipients, must comply with the Americans with Disabilities Act,22 Section 504 of the Rehabilitation Act,23 Section 1557 of the Affordable Care Act,24 and all other applicable laws that protect against discrimination, including against people with disabilities. These civil rights laws require OAA grantees and subrecipients to provide auxiliary aids and services to ensure effective communication and to ensure that no eligible person with a disability is denied access to OAA programs and services due to disability. Older adults with disabilities and advocates may file complaints with the HHS Office for Civil Rights if anyone is denied equitable access to OAA programs or services, including due to lack of effective communication.25 While we strongly recommend that OAA grantees and subrecipients train staff on cultural competency and disability accommodations as a best practice, training requirements in disability accommodation and cultural competency are beyond the scope of this rulemaking. We decline to adopt definitions of accessibility, vision rehabilitation services, and related terms, preferring to defer to existing definitions in relevant civil rights laws. However, we have reincorporated the definition of ‘‘severe disability’’ in this final rule. In addition, the definition of ‘‘greatest social need’’ already includes ‘‘physical and mental disabilities,’’ and this includes all severe disabilities and sensory and communication disabilities. Directing resources for research on aging and vision loss is also outside the scope of this rule. However, we believe the provisions at § 1321.3 (defining ‘‘Access to services or access services’’ and ‘‘Greatest social need’’), § 1321.27 (Content of State plan), § 1321.61 (Advocacy responsibilities of the area agency), § 1321.65 (Submission of an area plan and plan amendments to the State agency for approval), and § 1321.85 (Supportive services) will support the aging network in responding to issues relating to vision and hearing loss. 22 42 U.S.C. 12101 et seq. U.S.C. 794. 24 42 U.S.C. 18116. 25 How to File a Civil Rights Complaint, U.S. Dept. of Health and Human Serv., Office for Civil Rights, https://www.hhs.gov/civil-rights/filing-a-complaint/ complaint-process/ (last visited Oct. 11, 2023). 23 29 PO 00000 Frm 00007 Fmt 4701 Sfmt 4700 11571 Age Discrimination in the Workplace Comment: Several commenters expressed concern about age discrimination in the workplace. Response: While addressing age discrimination in the workplace broadly is outside of the scope of these regulations, ACL notes that supportive services provided under Title III of the Act may be helpful to those experiencing work-related concerns. For example, age discrimination is one of the priority areas that may be addressed by legal assistance provided under the Act (§ 1321.93 Legal assistance). While Title V, the Senior Community Service Employment Program, is outside the scope of these regulations because it is implemented by the Department of Labor, programs funded under Title III, VI, and VII of the Act are encouraged to have referral mechanisms among programs funded under all Titles of the Act. Administrative Burden, Implementation Costs, Implementation Timeframe Comment: We received a significant number of comments related to concerns about the burden, cost, and amount of time regulated entities would need to implement the final rule (e.g., costs and time needed to review and update existing policies and procedures, to create new policies and procedures, create or update state regulations, and to train staff), as well as concerns about the ongoing costs of monitoring compliance with the final rule. Some State agencies commented that they anticipate that consultants and/or additional staff will need to be hired and/or that changes will need to be made to information technology systems. Some State agencies asserted that ACL has greatly underestimated both the cost, and the amount of time, needed to come into compliance with the rule. Response: A limited number of substantive changes were made by the 2020 reauthorization to the implementation of programs under the Act, and much of this final rule codifies the policies and procedures that Title VI grantees, State agencies, AAAs, and service providers already have or should have in place to administer programs and deliver services under the Act. Similarly, State and area agencies should already be engaging in monitoring activities for compliance with the Act and implementing regulations. State and area agencies will have to review and revise their existing practices, policies, and procedures to ensure they comply with the final rule. For example, State agencies and AAAs will need to update definitions of E:\FR\FM\14FER4.SGM 14FER4 ddrumheller on DSK120RN23PROD with RULES4 11572 Federal Register / Vol. 89, No. 31 / Wednesday, February 14, 2024 / Rules and Regulations greatest social need and greatest economic need. However, this final rule does not require States to have regulations, and many of the new potentially burdensome aspects of the final rule are at the State agency’s option to implement (for example, allowing shelf-stable, pick-up, carry-out, drive-through, or similar meals to complement the congregate meals program). We also note that public comments that provided State-specific cost estimates to implement and administer the final rule did not clearly differentiate between costs attributable to the statute and the incremental costs of implementing the final rule; accordingly, it is not feasible to incorporate this information into our analysis of the impact of the final rule. As more particularly discussed in the Regulatory Impact Analysis below, we anticipate that any costs to regulated entities associated with the final rule will not be onerous. In consideration of comments related to the time required for implementation of the rule, we have decided to delay the compliance date of this rule until October 1, 2025. This should give all regulated entities sufficient time to come into compliance with these regulations. It will also allow time for State and area plans on aging that will be effective as of October 1, 2025, to incorporate the requirements of this final rule into new or amended plans. Consistent with current practice, if State agencies encounter challenges implementing specific provisions of the rule, they should engage with ACL for technical assistance and support. In addition, State agencies that need additional time to comply with one or more provisions of the rule may submit a request to proceed under a corrective action plan. A request should include the reason the State needs additional time, the steps the State will take to reach full compliance, and how much additional time the State anticipates needing. The corrective action plan process is intended to be highly collaborative and flexible. Under a corrective action plan, States agencies and ACL will jointly identify progress milestones and a feasible timeline for the State agency to come into compliance with the provision(s) of the rule incorporated into the corrective action plan. State agencies must make a good faith effort at compliance to continue operating under a corrective action plan. Requests for corrective action plans will be reviewed after April 1, 2024, and ACL will provide guidance on this process after this rule takes effect. VerDate Sep<11>2014 20:33 Feb 13, 2024 Jkt 262001 Part 1321: Grants to State and Community Programs on Aging A. Provisions Revised To Reflect Statutory Changes or Provide Clarity The following provisions of this final rule reflect statutory changes (e.g., changing ‘‘Commissioner for Aging’’ to ‘‘Assistant Secretary for Aging’’ throughout), revisions for clarity, and direction in response to requests for technical assistance from grantees and other interested parties, RFI responses, listening sessions, Tribal consultation, and public comment received on the NPRM. Subpart A—Introduction § 1321.1 Basis and Purpose of This Part Section 1321.1 sets forth the requirements of Title III of the Act to provide grants to State and community programs on aging. This final rule ensures consistency with statutory terminology and requirements, such as referring 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. Comment: Commenters expressed support for the priority given to services for those with the greatest economic and social need. One commenter requested § 1321.1(c)(4) also recognize the need for advocacy on behalf of family caregivers. Response: We appreciate these comments and have revised § 1321.1(c)(4) to read, ‘‘Serve as an advocate for older individuals and family caregivers[.]’’ Comment: One commenter stated that given the authority for the State agency to allocate funds to the Ombudsman program, they strongly recommend language be added at § 1321.1(c)(7) to reflect allocation of funds for the Ombudsman program. Response: ACL appreciates this comment and has revised § 1321.1(c)(7) to remove ‘‘or’’ in (i), add ‘‘or’’ to the end of (ii), and add (iii) to read, ‘‘The Ombudsman program, as set forth in part 1324.’’ § 1321.3 Definitions The final rule updates the definitions of significant terms in § 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 PO 00000 Frm 00008 Fmt 4701 Sfmt 4700 programs under the Act, and feedback we have received from a range of interested parties. We 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 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,’’ ‘‘Service provider,’’ and ‘‘Severe disability.’’ We retain with no revisions the terms: ‘‘Act’’ and ‘‘Fiscal year’’ and we remove the terms: ‘‘Frail’’ and ‘‘Human services.’’ Comment: We received many comments in support of these updated definitions. Response: We appreciate these comments. ACL’s responses to comments of particular note follow. ‘‘Access to Services’’ or ‘‘Access Services’’ Comment: We received one comment requesting additional examples of access services. Response: ACL appreciates this comment and acknowledges that service provision and technologies continue to evolve. In response to this comment, we have added ‘‘options counseling’’ to the list of examples. ‘‘Acquiring,’’ ‘‘Altering or Renovating,’’ and ‘‘Constructing’’ Comment: We received comments supporting the removal of the term ‘‘multipurpose senior center’’ from the definitions of ‘‘altering or renovating’’ and ‘‘constructing.’’ Other commenters expressed confusion related to these terms, because the rule only allows grantees to use OAA funding for ‘‘acquiring’’ and ‘‘constructing’’ multipurpose senior centers. Other commenters sought clarity as to whether these terms apply to minor home repairs E:\FR\FM\14FER4.SGM 14FER4 Federal Register / Vol. 89, No. 31 / Wednesday, February 14, 2024 / Rules and Regulations or modifications provided to individual service participants under the Act. Response: We only use these terms to clarify how grantees may use OAA funds on facilities where OAA services are provided or facilities that are otherwise necessary to satisfy the administrative requirements of the Act. These terms do not apply to ‘‘in-home supportive services’’ provided to individuals, such as minor modification of homes or individual residences. ‘‘Conflicts of Interest’’ Recognizing the importance of ensuring the integrity of, and trust in, activities carried out under the Act, section 307(a)(7) of the Act requires State agencies to have mechanisms in place to identify and remove COI.26 We include several provisions related to COI to provide clarity for State agencies, AAAs, and service providers: §§ 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 provisions reflect the expanded potential for COI 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. ‘‘Cost Sharing’’ We clarify the definition of cost sharing to implement the intent of section 315 of the Act.27 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, this term is used differently in the Act than it is commonly used in other settings. There are many restrictions on how cost sharing may be implemented under the Act, 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,28 but State agencies that 26 42 U.S.C. 3027(a)(7). U.S.C. 3030c–2. 28 42 U.S.C. 3030c–2(a)(2) prohibits a State agency 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 ddrumheller on DSK120RN23PROD with RULES4 27 42 VerDate Sep<11>2014 20:33 Feb 13, 2024 Jkt 262001 wish to allow the practice of cost sharing must comply with a number of requirements, which are described in § 1321.9(c)(2)(xi). ‘‘Cost Sharing’’ and ‘‘Voluntary Contributions’’ Comment: We received a mix of comments on these definitions; some commenters felt the definitions were clear as drafted, while others disagreed or asked for further clarification. Response: We have revised the definition of ‘‘voluntary contributions’’ to read, ‘‘[. . .] means donations of money or other personal resources given freely, without pressure or coercion, by individuals receiving services under the Act.’’ For consistency, we have also revised this definition in part 1322. We intend to address other suggestions and requests for clarification through technical assistance. ‘‘Family Caregiver’’ We define ‘‘family caregiver’’ to include the following subsets: adult family members or other individuals who are caring for an older individual, adult family members or other individuals 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’’ (defined below). 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, part E of the Act. For example, this includes unmarried partners, friends, or neighbors caring for an older adult. Comment: We received one comment suggesting that individuals of working age who are not adults should be included in the definition of family caregiver. Response: ACL appreciates this comment. Entities implementing services for family caregivers have the discretion to define an ‘‘adult’’ in this context or to consider such individuals as ‘‘other individuals’’ as used in the definition, so long as they comply with State agency policies and procedures, these regulations, and any other applicable Federal requirements. Comment: We received many comments supporting an inclusive definition of family caregiver, as well as to an individual whose income is at or below the FPL. State agencies 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 lowincome individual. PO 00000 Frm 00009 Fmt 4701 Sfmt 4700 11573 suggestions for expanded wording of the definition. One commenter recommended ACL consider alternatives to the term ‘‘informal’’ within the family caregiver definition to avoid minimizing their invaluable role and avoid inaccuracy due to some receiving financial compensation. Response: ACL appreciates these comments and concurs that the definition includes non-traditional families and families of choice. We believe that the definition of ‘‘an adult family member, or another individual’’ and the subsequent preamble explanation that this ‘‘includes unmarried partners, friends, or neighbors’’ is sufficiently broad. To address family caregivers who may receive limited financial compensation, we have revised the definition to add, ‘‘For purposes of this part, family caregiver does not include individuals whose primary relationship with the older adult is based on a financial or professional agreement.’’ We have also revised this definition in part 1322. ‘‘Greatest Economic Need’’ One of the basic tenets of the Act is focusing OAA services on individuals who have the greatest economic need. 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.’’ 29 Through its policies, the State agency may permit AAAs to further refine specific target populations of greatest economic need within their PSA.30 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. Comment: We received multiple comments expressing support for focusing services on those in greatest economic need. One commenter stated that it would be beneficial to create a process of enabling local AAAs to set standards and definitions to reflect local needs. Response: ACL appreciates these comments and notes that the preamble discussion supports local targeting. Furthermore, § 1321.27(d) and 29 42 30 42 E:\FR\FM\14FER4.SGM U.S.C. 3026(a)(4)(A)(i)(I)(aa). U.S.C. 3025(a)(1). 14FER4 11574 Federal Register / Vol. 89, No. 31 / Wednesday, February 14, 2024 / Rules and Regulations § 1321.65(b)(2) permit the State agency and AAAs to further refine specific target populations of greatest economic need based on local and individual factors. Comment: Some commenters noted that the definition in § 1321.3 of ‘‘greatest social need’’ does not entirely align with the text at § 1321.27 and § 1321.65. Response: We appreciate commenters raising this issue; we have revised these provisions for consistency. Comment: Some commenters expressed concern that the expanded definition of greatest social need could diminish the focus on those in greatest economic need if the revised definition results in changing an intrastate funding formula (IFF). Response: Changes to IFFs are one, but not an exclusive, method of targeting and prioritizing services to those in greatest social need. We provide additional discussion on methods to target and prioritize services to those in greatest economic and greatest social need in the preamble discussion under § 1321.27. ddrumheller on DSK120RN23PROD with RULES4 ‘‘Greatest Social Need’’ Focusing OAA services on individuals who have the greatest social need is one of the basic tenets of the Act. ‘‘Greatest social need’’ is defined in the Act 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.31 This definition allows for consideration of other noneconomic factors that contribute to cultural, social, or geographic isolation. 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 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 professionals and aging 31 42 U.S.C. 3002(24). VerDate Sep<11>2014 20:33 Feb 13, 2024 Jkt 262001 services providers.32 People aging with HIV are a growing population with distinct needs. The experience of HIV stigma may contribute to isolation and feelings of loneliness and be complicated by other stigmatized or marginalized components of an individual’s identity, including age, race, sexual orientation, and gender identity. Older people with HIV report poor mental and physical health at higher rates than their HIV negative counterparts, as well as difficulty accessing necessary supports and services like transportation, nutrition, and housing.33 Other chronic conditions may also result in isolation or stigma, as may housing instability, food insecurity, lack of access to reliable and clean water supply, lack of transportation, utility assistance needs, or interpersonal safety concerns, including abuse, neglect, and exploitation. We received many comments through the RFI and the NPRM comment period urging ACL to set clear and consistent expectations regarding the populations to be included, and our intent is to do so in this 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.’’ 34 Through its policies, the State agency may permit AAAs to further refine specific target populations of greatest social need within their PSAs.35 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. Comment: We received multiple comments expressing support for focusing services on those in greatest social need. One commenter stated it would be beneficial to create a process 32 Nat’l Resource Ctr. on LGBT Aging, Inclusive Services for LGBT Older Adults: A Practical Guide to Creating Welcoming Agencies (2020), https:// www.lgbtagingcenter.org/resources/pdfs/Sage_ GuidebookFINAL1.pdf. 33 State of Aging with HIV: Third National Survey, HealthHIV (2023) https://healthhiv.org/ stateof/agingwithhiv/?eType=EmailBlastContent &eId=883056c6-e9af-47dc-a653-022e1f4fb9fc; Mark Brennan-Ing, Emerging Issues in HIV and Aging, prepared for the HIV and Aging Policy and Action Collation (May 11, 2020), https://www.sageusa.org/ wp-content/uploads/2020/07/emerging-issues-inhiv-and-aging-may-2020.pdf. 34 42 U.S.C. 3026(a)(4)(A)(i)(I)(aa). 35 42. U.S.C. 3025(a)(1). PO 00000 Frm 00010 Fmt 4701 Sfmt 4700 of enabling local AAAs to set standards and definitions to reflect local needs. Response: ACL appreciates these comments and notes that the preamble discussion supports local targeting. Furthermore, § 1321.27(d) and § 1321.65(b)(2) permit the State agency and AAAs to further refine specific target populations of greatest social need based on local and individual factors. Comment: Commenters suggested various additions to the list of noneconomic factors, such as ‘‘solo older adults,’’ people living alone with cognitive impairments, older individuals who are experiencing abuse, neglect, self-neglect, and/or exploitation, and formerly incarcerated individuals. One commenter requested a modification from ‘‘normal’’ to ‘‘routine’’ in proposed (9)(i). Other commenters disagreed with the proposed definition and/or provided other suggestions. For example, some commenters raised the concern that the definition is inadequate regarding racial or ethnic status because it only mentions it in the context of isolation when impacts are far more extensive, including experiences of incarceration, higher rates of poverty and homelessness, health inequities such as being served in underperforming facilities, and lack of trust in external services and service providers. Commenters also requested clarification as to whether sensory loss or sensory impairment, including deafness, being hard of hearing, blindness, and having low vision, may be considered under ‘‘physical and mental disabilities’’ or ‘‘chronic conditions.’’ Response: ACL appreciates these comments and recognizes that there are various additional factors that a State agency or a AAA may wish to include within the category of ‘‘[o]ther needs as further defined by State and area plans based on local and individual factors[.]’’ Such factors may be included in the target populations that a State agency or a AAA may define pursuant to § 1321.27(d)(1) and § 1321.65(b)(2)(i), respectively. Additionally, we acknowledge that the concepts included in our definition may be expressed using different words. For example, ‘‘solo older adults’’ or ‘‘older adults living alone’’ may be included as examples of experiences of cultural, social, or geographical isolation due to ‘‘any other status’’ under (3)(x) of this revised definition. We have added ‘‘routine’’ to (3)(x)(a) in addition to the statutory term, ‘‘normal.’’ ACL recognizes the extensive impacts to older adults who may face cumulative effects of a lifetime of E:\FR\FM\14FER4.SGM 14FER4 Federal Register / Vol. 89, No. 31 / Wednesday, February 14, 2024 / Rules and Regulations ddrumheller on DSK120RN23PROD with RULES4 isolation caused by racial or ethnic status which restrict the ability of an individual to perform routine daily tasks or threaten the capacity of an individual to live independently, such as experiences of incarceration, higher rates of poverty and homelessness, health inequities due to being served in underperforming facilities, and lack of trust in external services and service providers. Considerations relating to racial or ethnic status may be further defined under ‘‘(x) Other needs as further defined by State and area plans based on local and individual factors[.]’’ ACL confirms that sensory loss or sensory impairment, including deafness, being hard of hearing, blindness, and having low vision, may be considered under ‘‘Physical and mental disabilities,’’ ‘‘Chronic conditions,’’ or separately defined as provided at ‘‘Other needs as further defined by State and area plans based on local and individual factors[.]’’ Older individuals who are experiencing abuse, neglect, selfneglect, and/or exploitation may be considered under ‘‘Interpersonal safety concerns,’’ as well as under several of the other population categories listed here, depending on the individual’s personal situation. Comment: A commenter recommended including the concept of ‘‘lifesaving/preservation’’ (relating to the availability of necessities such as water, access to food supplies, and electricity) in the definition of greatest social need. This comment was raised in the context of Indian reservations where, for example, water may need to be manually hauled and electricity may be unavailable. Response: ACL appreciates these comments. We acknowledge that access to these types of necessities is important, and we have revised the definition to include lack of access to reliable and clean water supply. We have also amended the regulatory definition to better align with the structure of the statutory provision. ACL has determined that the definition as proposed, with the revisions noted here, provides an appropriate balance in meeting the intent of the Act and allowing for State and local agency customization. ‘‘Immediate Family’’ Comment: We received one comment stating that the term ‘‘immediate family’’ should include non-relatives that are socially connected, especially including clan relationships in Tribal communities. Response: This term is used specifically in the context of COI policies at § 1321.47 and § 1321.67 VerDate Sep<11>2014 20:33 Feb 13, 2024 Jkt 262001 requiring State agencies and AAAs, respectively, to have policies and procedures ‘‘[e]nsuring that no individual, or member of the immediate family of an individual, involved in administration or provision of a Title III program has a conflict of interest[.]’’ ACL declines to expand the definition of immediate family to avoid creating an overly broad application of COI provisions in Tribal communities. ACL notes that the definition of ‘‘family caregiver’’ set forth in § 1321.3 and used in § 1321.91 for provision of family caregiver support services includes ‘‘[. . .] an adult family member, or another individual [. . .]’’ which includes non-relatives that are socially connected and clan relationships in Tribal communities. ‘‘In-Home Supportive Services’’ Comment: We received supportive comments regarding this provision, as well as comments requesting expansion of the in-home supportive services identified. We received comment asking for the definition to be altered or to otherwise remove the phrase ‘‘[. . .] and that is not available under another program’’ regarding the example of minor modification of homes for parity with the definition under part 1322, to allow for collaboration with other programs, and to avoid excessive burden in proving no other program is available. Response: ACL appreciates these comments. We have revised (1) under this definition to read, ‘‘Homemaker, personal care, home care, home health, and other aides[.]’’ Recognizing that respite care of all types assists older adults in avoiding institutionalization, we have revised (4) under this definition to begin, ‘‘Respite care for families[.]’’ To facilitate consistency of definitions and avoid excessive burden, we have amended the phrase regarding minor modification of homes to state, ‘‘[. . .] and that is not readily available under another program.’’ We have similarly amended this definition in part 1322 for consistency. ‘‘Means Test’’ Comment: We received several comments questioning how to prioritize participants without means testing. Response: The definition of ‘‘means test’’ in the final rule is very similar to the previous regulatory definition. We updated the definition to be consistent with the statute by adding family caregivers and made other edits for clarity. Under the Act, service providers may not determine an older adult or family caregiver to be ineligible for services due to the participant’s income, PO 00000 Frm 00011 Fmt 4701 Sfmt 4700 11575 assets, or other resources.36 However, service providers may determine that due to limited resources and requirements to focus providing services to those in greatest economic need and greatest social need, they are unable to provide immediate service to some individuals. In such situations, service providers may include prospective participants on a waiting list; make referrals to other service providers or services; offer to provide services under a private pay program, as set forth in § 1321.9(c)(2)(xiii); and/or advocate for additional resources. Service providers may ask for financial information from prospective participants to assess for needs, screen for other benefits or services that may be available, establish priority for receipt of services, and collect data for needs assessment, reporting, evaluation, and other appropriate purposes. For example, a family caregiver seeking respite assistance may be assessed by a AAA and found to have some financial resources, several other family members providing care as backup to the primary caregiver, and a care recipient who has fewer care needs. A second family caregiver seeking respite assistance from the AAA is caring for a care recipient with very high care needs and is from an underserved community, as identified in the State and area plan. This second family caregiver may be prioritized for respite services by the AAA, as they have very limited financial resources and no nearby sources of back-up caregiving. The first family caregiver would not be ineligible for services, but due to the respite program’s limited resources might be placed on a waiting list and referred to other services, including those under private pay arrangements. While not receiving respite services, the first family caregiver could also participate in caregiver support group and education services provided by the AAA under the Act. The AAA could use the data collected regarding waiting lists and unmet needs in its advocacy efforts. With successful advocacy efforts resulting in an increase in funding for family caregiver programs, the first family caregiver could then receive respite services when those additional resources become available. ‘‘Multipurpose Senior Center’’ Comment: We received comments requesting a change from ‘‘shall’’ to ‘‘may’’ in the definition as proposed. We received comments questioning the use 36 Section 315 of the OAA; 42 U.S.C. 3030c–2 (b)(3). E:\FR\FM\14FER4.SGM 14FER4 11576 Federal Register / Vol. 89, No. 31 / Wednesday, February 14, 2024 / Rules and Regulations of the term ‘‘multipurpose senior center’’ to reference a service. We also received comment disagreeing with the definition, including with the inclusion of ‘‘virtual facilities’’ to the definition. Other commenters expressed appreciation for the inclusion of ‘‘virtual facilities’’ to reflect a growing number of programs and services offered online after the pandemic, noting this may make programs more accessible and equitable. Response: We appreciate these comments and have revised § 1321.3 (Definitions) to indicate ‘‘[. . .] as used in § 1321.85, facilitation of services in such a facility.’’ We have determined that the inclusion of virtual facilities allows for the option of various service modalities and that the use of the term ‘‘as practicable’’ allows for appropriate variation in local circumstances, while remaining true to the definition of ‘‘multipurpose senior center’’ as set forth in the Act and the intent for facilitation of such services. We have made a corresponding revision to this definition in part 1322. ‘‘Official Duties’’ Comment: We received recommendations to clarify that representatives of the Office may be carrying out the duties ‘‘[. . .] by direct delegation from, the State Long-Term Care Ombudsman’’ in addition to the proposed ‘‘[. . .] under the auspices and general direction of [. . .] the State Long-Term Care Ombudsman.’’ Response: We appreciate the comments. We recognize that Ombudsman programs operate in a variety of organizational structures and that direct delegation is one way that programs are managed. We have modified the definition as recommended and made a corresponding revision to part 1324. ddrumheller on DSK120RN23PROD with RULES4 ‘‘Private Pay’’ Comment: We received a comment requesting private pay and commercial relationship be defined separately. Response: We define private pay as a type of commercial relationship. As discussed in our response to comments on § 1321.9(c)(2)(xiv), we have declined to define ‘‘commercial relationship.’’ ‘‘Program Development and Coordination Activities’’ This term explains 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 VerDate Sep<11>2014 20:33 Feb 13, 2024 Jkt 262001 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 this definition, we include language in § 1321.27 to clarify requirements for these activities. ‘‘Severe Disability’’ Comment: A number of commenters objected to our proposal to eliminate the definition of ‘‘severe disability’’ from the regulation. Commenters expressed concern that people with disabilities would no longer sufficiently be considered within the definition of greatest social need. Response: We have reincorporated the statutory definition of ‘‘severe disability’’ into the regulation. We reiterate that people with disabilities also meet the definition of the general term ‘‘physical and mental disabilities.’’ However, there are several statutory references that require specifically prioritizing people with ‘‘severe disabilities,’’ and so we have incorporated the statutory definition in this final rule. Comment: We received other suggestions, program management recommendations, and implementation questions regarding the definitions in this provision. Response: We decline to make further changes to this provision and intend to address other suggestions and requests for clarification through technical assistance. Subpart B—State Agency Responsibilities § 1321.5 Mission of the State Agency Section 1321.7 of the existing regulation (Mission of the State agency) is redesignated here as § 1321.5 for clarity with respect to other relevant provisions. Section 1321.5 sets forth the State agency’s mission, role, and functions as a leader on all aging issues in the State, and it specifies that the State agency will designate AAAs in States with multiple PSAs to assist in carrying out the mission. We include minor revisions to align with reauthorizations of the statute, such as adding family caregivers as a service population per the 2000 amendments (Pub. L. 106–501). We also update regulatory references and revise language for clarity. Comment: We received comments expressing support for the wording used in this section, including the additional detailed grant requirements for State agencies to develop comprehensive and coordinated systems of service delivery. PO 00000 Frm 00012 Fmt 4701 Sfmt 4700 We received several suggestions for other text to add to this section. Several commenters also recommended cultural humility and cultural competency training for the aging network, including regarding Tribal and disability issues. Response: We appreciate these comments. We believe the text is sufficient as drafted and that further examples, explanation, and training opportunities may be addressed through technical assistance, as appropriate. Comment: One commenter questioned the proposed change to ‘‘[. . .] shall be the lead on all aging issues’’ recommending instead ‘‘be the leader,’’ recognizing that some aging issues may be led by other entities within the State. Response: ACL appreciates this comment and has revised this statement to ‘‘[. . .] shall be a leader on all aging issues[.]’’ § 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 § 1321.7. We make several changes to the provision on organization and staffing for consistency and for clarification. Minor changes at § 1321.7(a), (c), and (d) reflect consistent wording with the State agency’s obligations under 45 CFR part 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 part 1324. Section 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) 37 and section 731 38 of the Act require the State agency to ensure that there is 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 add a new paragraph (e) to this provision that sets forth these requirements to assist State agencies to better understand their obligations under the Act related to staffing. The role of the Legal Assistance Developer is 37 42 38 42 E:\FR\FM\14FER4.SGM U.S.C. 3027(a)(13). U.S.C. 3058j. 14FER4 Federal Register / Vol. 89, No. 31 / Wednesday, February 14, 2024 / Rules and Regulations ddrumheller on DSK120RN23PROD with RULES4 discussed more fully in the preamble, below. Comment: We received comments of support for language recognizing the Ombudsman as the head of the Office of the State Long-Term Care Ombudsman and for including expectations for the Legal Assistance Developer. Other commenters expressed concern that provisions regarding State agency oversight of the Ombudsman program would create complexities within their State agency’s current organizational structure. Response: We appreciate these comments. Regarding concerns with oversight of the Ombudsman program, the updates included in the proposed rule did not differ significantly from current regulatory expectations. We have made a minor revision to proposed § 1321.7(c) for clarity. ACL will provide technical assistance to help State agencies understand and satisfy these requirements. Comment: We also received a recommendation that State agencies be allowed to enter into a contract or other arrangement to designate an individual as Legal Assistance Developer. Response: State agencies have the discretion to make human resources decisions about how to staff their agencies in order to fulfill their obligations under the Act. § 1321.9 State Agency Policies and Procedures We retitle the provision contained in § 1321.11 of the existing regulation (State agency policies) to better reflect the intent of the provision and to redesignate it here as § 1321.9. We also incorporate provisions contained in § 1321.45 (Transfer between congregate and home-delivered nutrition service allotments), § 1321.47 (Statewide nonFederal share requirements), § 1321.49 (State agency maintenance of effort), § 1321.67 (Service contributions), and § 1321.73 (Grant related income under Title III–C) within this provision to consolidate and streamline applicable requirements. Section 305 of the Act requires the 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[.]’’ 39 Consistent with that obligation, this final rule requires State agencies to promulgate policies and procedures related to a range of topics that fall within the State agency’s authority to oversee compliance with the State plan in § 1321.9(c)(1) (policies and procedures related to direct service provision) and § 1321.9(c)(2) (policies and procedures related to fiscal requirements). The policy development process includes the establishment of procedures, which set forth the steps to follow to implement policies. Accordingly, we have included minor revisions to clarify that the policy development and implementation process includes the establishment of procedures, as well as policies. The language at § 1321.9(a) is intended to (1) reflect statutory updates (i.e., the LTCOP regulation (45 CFR part 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 combine the areas for which State agencies must have established policies and procedures in this provision. The first area relates to data collection and reporting. Section 307 of the Act requires the collection of data and periodic (at a minimum, once each fiscal year) submission of reports to ACL regarding State agency and AAA activities.40 ACL has implemented a national reporting system and reporting requirements that must be used by all State agencies to ensure timely and consistent reporting. Section 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. Section 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.41 In response to the RFI and the NPRM comment period, this 40 42 39 42 U.S.C. 3025(a). VerDate Sep<11>2014 20:33 Feb 13, 2024 41 42 Jkt 262001 PO 00000 U.S.C. 3027. U.S.C. 3025(a)(2); 42 U.S.C. 3012(a)(9). Frm 00013 Fmt 4701 Sfmt 4700 11577 section addresses comments from AAAs and service providers that requested State agencies provide transparency and clarity to AAAs and service providers about the policies and procedures that they 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 indicated in § 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. ACL strongly encourages State agencies to make their OAA policies and procedures available to the public, either by posting them online or by providing a point of contact at the State agency to respond to requests for this information. Doing so may help ensure accountability to the public regarding the implementation of OAA programs and services. Under section 306(a)(4)(A)(i)(I)(aa), AAAs are responsible for setting specific objectives, consistent with State agency policy, for provision of services to older individuals with greatest economic need and greatest social need.42 Identifying such populations at the State level facilitates consistent messaging and outreach, collaboration with other State level organizations and interested parties, 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 set forth in § 1321.65. For example, a State agency 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 (FPL)), and another State agency may include older 42 42 E:\FR\FM\14FER4.SGM U.S.C. 3026(a)(4)(A)(i)(I)(aa). 14FER4 11578 Federal Register / Vol. 89, No. 31 / Wednesday, February 14, 2024 / Rules and Regulations adults experiencing housing instability in their definition of greatest economic need. A State agency might also choose to define those at greatest social need to include people with low literacy, while another State agency may include grandparents raising grandchildren due to substance use disorder or loss of parents to COVID–19 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. The Act sets forth at section 307(a)(8)(A) that services will not be directly provided by a State agency or by a AAA, subject to certain conditions. AAAs must receive State agency approval to provide direct services. We clarify in this rule that the State agency must communicate how the area agencies may request approval to directly provide services.43 This section also incorporates the requirement under section 307(a)(5)(B) 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.44 Section 1321.9(c)(2) requires State agencies to establish policies and procedures related to the fiscal requirements associated with being awarded funding for the Nutrition Services Incentive Program (NSIP),45 Title III,46 and Title VII 47 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) provides guidance on the following fiscal requirements: distribution of Title III 48 and NSIP 49 funds; non-Federal share (match) requirements; 50 permitted transfers of service allotments; 51 maximum allocation amounts for State, Territory, and area plan administration; 52 minimum funding expenditures for access to services, inhome supportive services, and legal 43 42 U.S.C. 3027(a)(8)(A). section 3027(a)(5)(B). 45 42 U.S.C. 3030a(e). 46 42 U.S.C. 3023. 47 42 U.S.C. 3058a. 48 42 U.S.C. 3025(a)(2)(C). 49 42 U.S.C. 3030a(d). 50 42 U.S.C. 3024(d), 3028(a)(1), 3029(b), 3030s– 1(h)(2). 51 42 U.S.C. 3028(a)(4), (5). 52 42 U.S.C. 3024(d)(1), 3028(a), (b)(1)–(2). ddrumheller on DSK120RN23PROD with RULES4 44 Id. VerDate Sep<11>2014 20:33 Feb 13, 2024 Jkt 262001 assistance; 53 State agency maintenance of effort obligations; 54 requirements related to Ombudsman program expenditures and fiscal management; 55 minimum expenditures for services for older adults who live in rural areas; 56 reallotment of funds; 57 voluntary contributions, including cost-sharing at the election of the State agency; 58 use of program income; 59 private pay programs; 60 commercial relationships; 61 buildings, alterations or renovations, maintenance, and equipment; 62 prohibition against supplantation; 63 monitoring of State plan assurances; 64 advance funding; 65 and fixed amount subawards.66 We provide further context for these fiscal requirements in the following paragraphs. Comment: Many commenters, including but not limited to State and area agencies, expressed support for this section generally. One commenter expressed support for the proposed rule, specifically § 1321.9(a) and (b). Other commenters expressed support for specific portions of § 1321.9, including one commenter noted that the prohibition against means testing is a strength of the Act, and another expressed support for the requirement in § 1321.9(c)(2)(i) that State agency policies and procedures must provide for the prompt disbursement of Title III funds and NSIP funds. Commenters also supported the clarification in § 1321.9(c)(2)(vi) that excess State match reported on the Federal financial report does not become part of the maintenance of effort unless the State agency certifies the excess. Commenters additionally supported the requirement to have policies clarifying that funds awarded under certain sections of the Act cannot supplant existing Federal, State, and local funds (§ 1321.9(c)(2)(xvi)) and the requirement to have policies which address monitoring for compliance with assurances (§ 1321.9(c)(2)(xvii)). Response: ACL appreciates the support for this provision, the purpose of which is to consolidate, and to make 53 42 U.S.C. 3026(a)(2). U.S.C. 3029(c). 55 42 U.S.C. 3027(a)(9)(A). 56 Id. section 3027(a)(3)(B)(i). 57 42 U.S.C. 3024(b), 3058b(b). 58 42 U.S.C. 3030c 2. 59 Id. section 3030c–2(a)(5)(c). 60 42 U.S.C. 3020c; 42 U.S.C. 3026(g). 61 42 U.S.C. 3026(a)(13)–(14). 62 45 CFR 75; 42 U.S.C. 3030b, 3030d(b). 63 42 U.S.C. 3026(a)(9)(B), 3030c–2(b)(4)(E), 3030d(d), 3030s–2, 3058d(a)(4). 64 42 U.S.C. 3025(a)(1)(A)–(C). 65 45 CFR 75.305. 66 Id. section 75.353. 54 42 PO 00000 Frm 00014 Fmt 4701 Sfmt 4700 easier to locate, applicable requirements of the Act for which State agencies should have established policies and procedures. Comment: A commenter sought guidance as to whether § 1321.9 requires State agencies to monitor the performance of Ombudsman programs. Response: Regarding concerns with oversight of the Ombudsman program, the requirements in the final rule do not differ significantly from current regulatory expectations. ACL will provide technical assistance to help State agencies understand and sufficiently meet these requirements. § 1321.9(b) Comment: ACL received several comments requesting additional guidance and direction with respect to the collection of data (such as data on sexual orientation and gender identity, data regarding populations experiencing greatest economic need and greatest social need, and data stratification). Some commenters expressed concern as to additional data collection that may be required in connection with the expansion of the definitions of greatest economic need and greatest social need. Other commenters were concerned about potential costs associated with changes to data collection expectations. We also received various comments asking for improvements in ACL’s data collection efforts, including specific data collection on sexual orientation and gender identity. Response: Section 307(a)(4) of the Act requires the collection of data and periodic submission of reports to ACL regarding State agency and AAA activities.67 ACL has developed a system for these purposes and has implemented reporting requirements that must be used by all State agencies to ensure timely and consistent reporting, as well as the quality and accuracy of the data reported. These reporting requirements include, among other things, data that must be collected by all State agencies (at a minimum, once each fiscal year). Specific details on the reporting system and its related requirements are outside the scope of the final rule. ACL is available to provide technical assistance to State agencies regarding data collection and reporting. Comment: Some commenters suggested that certain requirements be added to the proposed rule related to abuse and neglect of older adults. One commenter noted that the Ombudsman program is required to serve all residents and does not prioritize clients 67 42 E:\FR\FM\14FER4.SGM U.S.C. 3027(a)(4). 14FER4 ddrumheller on DSK120RN23PROD with RULES4 Federal Register / Vol. 89, No. 31 / Wednesday, February 14, 2024 / Rules and Regulations based on greatest social need or greatest economic need and requested the proposed rule be clarified to acknowledge this distinction. Response: ACL declines to add any requirements to part 1321 of the rule related to abuse and neglect of older adults. The Ombudsman program and programs for the prevention of elder abuse, neglect, and exploitation are established pursuant to Title VII of the Act.68 ACL believes that Title VII of the Act and its accompanying regulation (45 CFR part 1324) adequately address requirements for these programs and that no additional clarification is needed in the final rule. Comment: Some State agencies and AAAs expressed concern that the requirements in § 1321.9 regarding the promulgation of policies and procedures are too burdensome. Response: The Act contains many programmatic and fiscal requirements of which State agencies should be aware, and section 305 of the Act requires State agencies to develop policies for ‘‘[. . .] all State activities related to the objectives of this Act[.]’’ 69 Substantially all requirements included in this section are set forth in the Act; accordingly, State agencies should be aware of them and already should have policies and procedures in place. For clarity and ease of reference, we combined the areas for which State agencies should have established policies and procedures in this provision to assist State agencies in understanding their obligations under, and ensuring their compliance with, the Act. ACL understands that some State agencies’ existing policies and procedures may not address all areas included in this section. To give State agencies ample time to establish or update their policies and procedures, ACL has deferred the compliance date of the rule to October 1, 2025. Comment: One commenter recommends that the term ‘‘policies and procedures’’ be defined to also include State administrative rules or contractual obligations. Response: ACL declines to define ‘‘policies and procedures’’ in order to provide flexibility to the State agencies and to allow them to take into account applicable State requirements and standard practices with respect to the development of policies and procedures, which can vary from one State to another. § 1321.9(c)(1) Direct Service Provision Comment: A commenter requested that the list in § 1321.9(c)(1) of topics 68 42 U.S.C. 3058 et seq. 69 42 U.S.C. 3025(a)(1)(C). VerDate Sep<11>2014 20:33 Feb 13, 2024 Jkt 262001 related to direct services for State agencies be a suggested list, rather than a required list of topics to be covered. Response: ACL declines to revise the regulatory language as requested. The topics covered are the minimum, essential areas for which State agencies should have policies and procedures to administer direct services as contemplated by the Act. State agencies may elect to adopt additional policies and procedures with respect to the provision of direct services under the Act. Comment: With respect to § 1321.9(c)(1)(i), which requires State agencies to develop policies and procedures regarding requirements for client eligibility, periodic (at a minimum, once each fiscal year) assessment, and person-centered planning, one commenter suggested that ACL require AAAs to consider the full array of available long-term service and support options, inclusive of community-based long-term services and supports, such as Programs of AllInclusive Care for the Elderly (PACE programs). Response: ACL appreciates the comment, but ACL declines to direct State agencies as to the specific requirements that State agencies must include in these policies and procedures. State agencies are in the best position to make such decisions based on conditions and need in their States, and ACL leaves these determinations to the State agencies. Comment: Section 1321.9(c)(1), requires State agencies to have policies and procedures regarding the definition of those with greatest economic need and those with greatest social need within their States. One commenter recommended that ACL provide more detailed guidance on strategies for reaching populations with the ‘‘greatest economic need.’’ The commenter also recommended that ACL provide guidance regarding methods for measuring their success in reaching such populations and requested additional guidance regarding the definition of ‘‘greatest economic need’’ to prevent ‘‘unintended consequences’’ and to ensure that vulnerable older adults receive essential services. Commenters also recommended that we impose additional limitations on State agency determinations related to the definitions of greatest social need and greatest economic need, including recommendations of other populations to include and how such determinations should be made and disclosed. Response: ACL retains the regulatory text in § 1321.9(c)(1) as proposed. ACL believes the definitions in § 1321.3 of PO 00000 Frm 00015 Fmt 4701 Sfmt 4700 11579 greatest economic need and greatest social need, as well as the requirements in § 1321.27 regarding information required to be included in the State plan, adequately address these concerns. Regarding the comments raised with respect to the definition of ‘‘greatest economic need,’’ the definition in the Act incorporates income and poverty status. The Act also permits State agencies to set policies, consistent with ACL’s regulations, that incorporate other considerations into the definition of ‘‘greatest economic need,’’ and the discussion in § 1321.3 above includes additional guidance for State agencies regarding how to define ‘‘greatest economic need.’’ 70 Through its policies, the State agency may permit AAAs to further refine specific target populations of greatest economic need within their PSAs. 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. To maximize the flexibility afforded to State agencies in making these determinations, ACL declines to provide more specific direction in the final rule. Any additional guidance that may be appropriate will be offered by ACL via technical assistance. § 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).71 The Act requires distribution to occur via an IFF (further defined in § 1321.49) or funds distribution plan (further defined in § 1321.51). The IFF is required for States with multiple PSAs, and a funds distribution plan is required for single PSA States. Through this provision, we also require that funds be promptly disbursed using the IFF or funds distribution plan and to allow fixed amount subawards up to the simplified acquisition threshold, as set forth in 45 CFR 75.353. Comment: Some commenters requested definitions of the terms ‘‘promptly disbursed’’ ‘‘fixed amount subawards,’’ and ‘‘subaward’’ as used in this section. One commenter asked how 70 42 U.S.C. 3026(a)(4)(A)(i)(I)(aa); 42. U.S.C. 3025(a)(1). 71 42 U.S.C. 3025(a)(2)(C)–(D). E:\FR\FM\14FER4.SGM 14FER4 11580 Federal Register / Vol. 89, No. 31 / Wednesday, February 14, 2024 / Rules and Regulations State agencies will be monitored for compliance. Response: The requirement that funds be promptly disbursed can be found in section 311(d)(4) of the Act, and ACL declines to provide a definition for this term.72 State agencies should define this term in their policies and procedures. Such definitions should include a reasonable time frame and should take into account State fiscal policy (which can vary from one State to another). For a definition of ‘‘subaward’’ see 2 CFR 200.1 and 45 CFR 75.2, and for an explanation of ‘‘fixed amount subaward’’ see 2 CFR 200.333 and 45 CFR 75.353. State agencies should have systems in place to monitor their compliance with the requirements of the Act, which ACL will regularly review as part of State plan review, in addition to ACL’s other fiscal and program monitoring activities. In the course of reviewing § 1321.9(c)(2)(i) in response to comments received, ACL has determined that the language in this section should be clarified. Accordingly, ACL has revised the regulatory text of § 1321.9(c)(2)(i). In addition, ACL has moved the language regarding fixed amount subawards from this section to a new § 1321.9(c)(2)(xix) and has simplified the language used in this provision. For a definition of ‘‘simplified acquisition threshold’’ see 2 CFR 200.1 and 45 CFR 75.2. ACL will provide technical assistance, as needed, regarding § 1321.9(c)(2)(xix). Comment: ACL received several other suggestions, recommendations, and implementation questions regarding the IFF. Response: We intend to address any additional issues related to the IFF through technical assistance. ddrumheller on DSK120RN23PROD with RULES4 § 1321.9(c)(2)(ii) Non-Federal Share (Match) The provision contained in § 1321.47 (Statewide non-Federal share requirements) of the existing regulation is redesignated here as § 1321.9(c)(2)(ii) and revised. The Act includes requirements for non-Federal share (match) funds from State or local sources, as set forth in sections 301(d)(1),73 304(c),74 304(d)(1)(A),75 304(d)(1)(D),76 304(d)(2),77 309(b),78 316(b)(5),79 and 373(h)(2).80 We 72 42 U.S.C. 3030a. U.S.C. 3021(d)(1). 74 42 U.S.C. 3023(c). 75 Id. section 3023(d)(1)(A). 76 Id. section 3023(d)(1)(D). 77 Id. section 3023(d)(2). 78 42 U.S.C. 3029(b). 79 42 U.S.C. 3030c–3(b)(5). 80 42 U.S.C. 3030s–1(h)(2). 73 42 VerDate Sep<11>2014 20:33 Feb 13, 2024 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 match. We clarify that State or local public resources used to fund a program which uses a means test shall not be used to meet match requirements. We also clarify that a State agency or AAA may determine match in excess of required amounts, and we clarify match requirements that apply to service and administration costs for each type of grant award under Title III of the Act. We also provide prior written approval for unrecovered indirect costs to be used as match. Comment: One commenter suggested that ACL encourage State agencies to allow the use of unrecovered facilities and administrative or indirect costs as match for administration. Response: ACL appreciates this comment and notes that the rule authorizes unrecovered indirect costs to be used as match (see § 1321.9(c)(2)(ii)(J)(1)). ACL encourages State agencies to consider this approach, subject to State agency policies and procedures. ACL will provide technical assistance, as requested. Comment: We received multiple comments supporting the use of means tested funds to count toward the required match. In addition, many commenters requested clarification on, or objected to, § 1321.9(c)(2)(ii)(C), which provides that ‘‘State or local public resources used to fund a program which uses a means test shall not be used to meet the match.’’ Response: The prohibition against using State or local public resources which use a means test to count toward match is due to the prohibition against means testing in the OAA under section 315(b)(3).81 Match for the federal grant is the non-federal share of the total project costs that a grantee is required to contribute to achieve the purposes of the award and allowability of costs must conform to any limitations or exclusions set forth in the Federal award, 2 CFR 200.403(b) and 45 CFR 75.403(b). Therefore, match must meet the same requirements that apply to allowed costs under the Act, and the Act prohibits means testing. Accordingly, we maintain the regulatory language of § 1321.9(c)(2)(ii)(C) as proposed. ACL will further address this requirement through technical assistance, as needed. Comment: A commenter asked for clarification regarding the difference 81 42 Jkt 262001 PO 00000 U.S.C. 3030c–2(b)(3). Frm 00016 Fmt 4701 Sfmt 4700 between means testing and prioritizing services for individuals of ‘‘greatest economic need.’’ Response: Means testing is a criterion used to determine an individual’s financial eligibility for a program. If an individual’s resources exceed the determined limit for a program, the individual is ineligible for a program— that individual cannot participate in the program even if the program has sufficient resources to be able to serve them. On the other hand, the use of ‘‘greatest economic need’’ is a way to prioritize services for those who are most in need of the service; it does not deem those of lesser economic need to be ineligible for the program. Comment: Some commenters expressed concern that a State agency or AAA may determine a match in excess of amounts required under the Act. Response: The Act does not prohibit a State agency or AAA from requiring a match in excess of amounts required under the Act, and ACL leaves these decisions to State agencies and AAAs to determine in accordance with State agency and AAA policies and procedures. ACL encourages State agencies to make requirements clear in terms and conditions of subaward agreements. Comment: Some commenters requested that the match requirements be reduced. Response: The match requirements are set by the Act, and ACL has no authority to reduce them. Comment: Some commenters requested clarification regarding § 1321.9(c)(2)(ii)(I), which provides that other Federal funds may not be used as match for programs funded under Title III of the Act unless there is specific statutory authority. Response: The Act does not provide statutory authority for other Federal programs to meet match requirements. ACL will provide additional guidance through technical assistance, as needed. § 1321.9(c)(2)(iii) Transfers The provision contained in § 1321.45 of the existing regulation (Transfer between congregate and home-delivered nutrition service allotments) is redesignated here as § 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 State agencies by parts of the Act (for example, the 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 E:\FR\FM\14FER4.SGM 14FER4 Federal Register / Vol. 89, No. 31 / Wednesday, February 14, 2024 / Rules and Regulations ddrumheller on DSK120RN23PROD with RULES4 funding is for home-delivered meals)). We list the requirements and considerations that apply if a State agency 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 agency. For example, a State may find that older individuals have a need for transportation to congregate meal sites. A State agency 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. Comment: ACL received several comments on this section, which addresses transfers between Title III, parts C–1 and C–2 and between Title III, parts B and C. The comments on this section were mixed. Some expressed support for the provision, while other commenters expressed that the transfer limitations are unnecessarily burdensome, and that AAAs should be able to make transfers as they see fit and without State agency approval. Response: ACL does not have the authority to modify this requirement. Section 308(b) of the Act does not allow the State agency to delegate authority to make a transfer to a AAA or any other entity.82 However, section 308 of the Act requires the State agency, in consultation with AAAs, to ensure that the process used by the State agency in transferring funds between Title III, parts C–1 and C–2 and between Title III, parts B and C is simplified and clarified to reduce administrative barriers. We have also clarified that for transfers between parts C–1 and C–2, State agencies must direct limited resources to the greatest nutrition service needs at the community level. We have added these requirements to § 1321.9(c)(2)(iii). Given the volume of comments on this issue, ACL will further address these requirements through technical assistance, as needed. § 1321.9(c)(2)(iv) State, Territory, and Area Plan Administration Section 308 of the Act sets limits on the amount of Title III funds which may be used for State, Territory, and area plan administration.83 In this provision, we specify the requirements and considerations that apply, including flexibilities that some State agencies of 82 42 83 Id. U.S.C. 3028(b). section 3028. VerDate Sep<11>2014 20:33 Feb 13, 2024 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 the use of funds for plan administration. This provision is intended to provide clarity to State agencies. For example, State agencies 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. Plan administration activities include 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 PSAs, we clarify section 304(d)(1)(A) of the Act and better streamline implementation of maximum allocation amounts.84 We specify that the maximum amount the State agency may make available for area plan administration is ten percent of the total amount of funding allocated to AAAs. This funding may be made available to AAAs in accordance with the IFF for the purpose of area plan administration, which we further address in § 1321.57(b). Comment: We received comment asking ACL to limit the amount of area plan administration funds that may be spent on the development of private pay or other contracts and commercial relationships. Response: Funds for area plan administration are limited to ten percent of the total funding allocated to AAAs. AAAs must complete the area plan activities required under the Act and as set forth by State agency policies and procedures; development of private pay programs or other contracts and commercial relationships is allowable, but not required. Given the levels of funding for Title III programs under the Act and the responsibility for State agencies to set policies and procedures, ACL does not believe further limitation is needed. Comment: One commenter expressed that too much OAA funding is allocable 84 42 Jkt 262001 PO 00000 U.S.C. 3024(d)(1)(A). Frm 00017 Fmt 4701 Sfmt 4700 11581 to State and area plan administration and requested that the administration of OAA programs be streamlined, while another expressed that amounts available for area plan administration should be increased, noting that area plan administration costs exceed the maximum that can be made available under the Act. Response: The maximum amounts for State and area plan administration are specified in the Act, and ACL does not have the authority to modify such amounts. Accordingly, ACL maintains the regulatory language for this provision as proposed. § 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. Our final rule requires the State agency to have policies and procedures to implement these requirements. Comment: A commenter expressed concern about the impact of § 1321.9(c)(2)(v) in States that may lack continuity of leadership in their State agencies. The commenter also expressed concern that minimum expenditure requirements set by State agencies could impact the area agency and service provider network, given limited availability of OAA funds. Another commenter expressed concern that decisions on minimum adequate proportion amounts that will be expended on access services, in-home supportive services, and legal assistance will take away from current service levels in other areas without more funding being made available. Response: ACL appreciates these concerns but declines to make any modifications to this section. Section 307(a)(2)(C) of the Act requires each State plan to specify a minimum proportion of Title III, part B funds that will be used by area agencies to provide access services, in-home supportive services, and legal assistance.85 Accordingly, ACL does not have the authority to modify this requirement. Finally, the minimum expenditure requirements in this section are not new requirements; State and area agencies are already subject to these requirements. Comment: A commenter suggested that ACL modify § 1321.9(c)(2)(v) to require each State plan to specify a minimum proportion of funds that will be used by area agencies to provide caregiver support services, in addition 85 42 E:\FR\FM\14FER4.SGM U.S.C. 3027(a)(2)(C). 14FER4 11582 Federal Register / Vol. 89, No. 31 / Wednesday, February 14, 2024 / Rules and Regulations ddrumheller on DSK120RN23PROD with RULES4 to access services, in-home supportive services, and legal assistance. Response: ACL declines to make the requested change. The Act does not require that Title III, part B funds be used to provide caregiver support services, and ACL declines to impose such a requirement on State agencies. Title III, part E funds are specified to provide family caregiver support services. ACL leaves the decision to the State agencies as to whether to use Title III, part B funds for caregiver services in accordance with the Act, in order to afford flexibility to the State agencies as to how to allocate Title III, part B funding. § 1321.9(c)(2)(vi) Maintenance of Effort The provision contained in § 1321.49 (State agency maintenance of effort) of the existing regulation is redesignated here as § 1321.9(c)(2)(vi) and revised. The final rule requires State agencies to develop fiscal policies and procedures related to requirements under the Act, corresponding to sections 309(c) 86 and 374.87 These requirements include expending specific minimum maintenance of effort amounts, which are calculated as required by the Act. In response to technical assistance requests, we also clarify that excess amounts reported in other reports, such as the Federal financial report (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. Comment: Two commenters recommended that § 1321.9(c)(2)(vi) be amended to allow for one-time appropriations of State funding to be excluded from the Act’s maintenance of effort requirement for Title III. Response: ACL understands these concerns. ACL is unable to accommodate this suggestion, however, as this requirement is based on the language in section 309(c) of the Act, which provides that ‘‘[a] State’s allotment under section 304 [of the Act] for a fiscal year shall be reduced by the percentage (if any) by which its expenditures for such year from State sources under its State plan approved under section 307 [of the Act] are less than its average annual expenditures from such sources for the period of 3 fiscal years preceding such year.’’ 88 Comment: A commenter recommended that § 1321.9(c)(2)(vi)(C) be removed. This paragraph provides U.S.C. 3029. U.S.C. 3030s–2. 88 42 U.S.C. 3029. that any amount of State resources included in the Title III maintenance of effort certification that exceeds the minimum amount required becomes part of the permanent maintenance of effort. The commenter expressed that this requirement may disincentivize States from providing more than the minimum amount of funds. Response: ACL appreciates the comment but declines to remove this paragraph, in order to provide maximum flexibility to the State agencies. Contrary to the commenter’s note, a State agency may have reason to employ this provision to increase the required maintenance of effort. In addition, as set forth in § 1321.9(c)(2)(vi)(D), excess State match reported on the Federal financial report does not become part of the maintenance of effort unless the State agency certifies the excess. § 1321.9(c)(2)(vii) State Long-Term Care Ombudsman Program This final rule requires State agencies to develop fiscal policies and procedures related to requirements under the Act, corresponding to section 307(a)(9).89 These requirements include that the State agency will expend no less than the minimum amounts that are required to be expended by section 307(a)(9) of the Act. We also 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 comply with the requirements set forth in § 1324.13(f). Comment: Two commenters expressed support for this provision. Currently, the Act sets the required minimum expenditure amount at the amount expended by the State agency during fiscal year 2019 for the Ombudsman program under Titles III and VII of the Act,90 and subsection (A) of § 1321.9(c)(2)(vii), which addresses the minimum expenditure amount, likewise refers specifically to fiscal year 2019. Several commenters recommended not including a specific fiscal year in § 1321.9(c)(2)(vii)(A), as such fiscal year may be modified as a result of future reauthorizations of the Act and recommends instead using language in § 1321.9(c)(2)(vii)(A) that avoids mentioning a specific fiscal year. Response: ACL appreciates the support expressed for § 1321.9(c)(2)(vii). We agree with the suggestion to remove the reference to fiscal year 2019 and have revised subsection (A) accordingly. Comment: A commenter expressed concern that the language in § 1321.9(c)(2)(vii)(A), which sets forth the minimum amount State agencies must expend for the Ombudsman program, is unclear. Response: ACL will address any questions regarding minimum expenditures for the Ombudsman program through technical assistance, as needed. § 1321.9(c)(2)(viii)—Rural Minimum Expenditures The final rule requires State agencies to develop fiscal policies and procedures related to requirements under the Act, corresponding to section 307(a)(3)(B).91 These requirements include that the State agency must: expend not less than the amount expended 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 set forth that the State agency establish a process and control for determining how rural areas within the State shall be defined. Comment: A few commenters expressed support for § 1321.9(c)(2)(viii). Many commenters sought more clarity about the requirements in § 1321.9(c)(viii). One commenter shared the concern that State agencies will lack the necessary information to project the cost of providing services to rural areas. Response: ACL appreciates the support of this provision. ACL appreciates these comments but declines to provide further direction in this final rule to State agencies as to how to comply with these requirements (which can be found in section 307(a)(3)(B) of the Act).92 State agencies are best positioned to make these determinations. The term ‘‘rural’’ appears many times in the Act with respect to the delivery and prioritization of services. In addition, State agencies may use the IFF to direct Title III funding to rural areas. There is no one universally accepted or mandated definition of what constitutes a ‘‘rural area.’’ Over the years, State agencies have determined what areas in their States are rural, and the factors that State agencies have used to make this determination can vary. In recognition of this variation in how State agencies determine what areas in their State are rural, the Act does not 86 42 87 42 VerDate Sep<11>2014 20:33 Feb 13, 2024 89 42 U.S.C. 3027(a)(9). 91 42 90 Id. Jkt 262001 PO 00000 Frm 00018 U.S.C. 3027(a)(3)(B). 92 Id. Fmt 4701 Sfmt 4700 E:\FR\FM\14FER4.SGM 14FER4 Federal Register / Vol. 89, No. 31 / Wednesday, February 14, 2024 / Rules and Regulations ddrumheller on DSK120RN23PROD with RULES4 mandate a definition of rural areas, and ACL declines to limit the flexibility afforded to the State agencies by the Act. Likewise, State agencies are better positioned than ACL to project the cost of providing services and to develop a plan for meeting the needs for services in the rural areas of their respective States. We note that State agencies provide these projections in their current State plans on aging, as this is an existing requirement. For clarity, we have revised the final rule to specify that the minimum amount as set forth in the Act must be maintained. ACL will provide technical assistance with respect to this requirement, as needed. Comment: Two commenters raised questions about the relationship between the requirement in § 1321.9(c)(2)(viii) that State agencies develop a process for determining how ‘‘rural areas’’ are defined and the Older Americans Act Performance System (OAAPS) definition of ‘‘rural’’ for reporting purposes. Another commenter raised a concern that this requirement conflicts with the OAAPS definition of ‘‘rural.’’ Response: ACL appreciates these questions and concerns and acknowledges the potential for confusion due to the requirement of § 1321.9(c)(2)(viii) related to defining ‘‘rural areas’’ and the separate requirement to submit annual performance report data on ‘‘rural’’ program participants. OAAPS is the reporting tool that State agencies and, in some cases area agencies, use to submit their annual performance report data on program participants, services, and expenditures related to the Act. OAAPS uses rural-urban commuting area (RUCA) codes defined at the ZIP code level to determine whether an individual program participant resides in a rural or non-rural area.93 With respect to those clients for whom demographic data must be reported into OAAPS, all State agencies must use this definition and tool to report on ‘‘rural’’ program participants. State agencies are not required to use this definition of ‘‘rural’’ for any other purpose. Section 1321.9(c)(2)(viii) of the final rule, by contrast, relates to the State 93 Specifically, OAAPS uses Categorization C of the Rural-Urban Commuting Area (RUCA) codes to determine geographic distribution between rural and non-rural. See The Rural Health Research Ctr., https://depts.washington.edu/uwruca/ruca-uses.php (last visited Oct. 25, 2023). For additional information and background on the zip code-based RUCA, see also Rural-Urban Commuting Area, The U.S. Dep’t. of Agric., Econ. Research Serv., https:// www.ers.usda.gov/data-products/rural-urbancommuting-area-codes/documentation/ (last visited Oct. 25, 2023). VerDate Sep<11>2014 20:33 Feb 13, 2024 Jkt 262001 agency’s projections, plans, and expenditures pertaining to its implementation and administration of programs and services under the Act. The definition of ‘‘rural areas’’ referred to in this section may be separate and distinct from the definition of ‘‘rural areas’’ that is required to be used for annual program reporting on individual program participants. Comment: A commenter expressed concern that the language of § 1321.9(c)(2)(viii)(B), which requires State agencies to expend annually on services for older individuals residing in rural areas no less than the amount expended for such services as set forth in the Act, may cause State agencies to believe they are not allowed to spend on such services more than the required minimum expenditure. Response: ACL appreciates this comment but disagrees with this interpretation of the section (the language of which is the same as that found in section 307(a)(3)(B) of the Act).94 The language provides the minimum amount that State agencies must spend; it does not impose a maximum amount that State agencies may spend on services for older adults residing in rural areas. Comment: With respect to the requirement in § 1321.9(c)(2)(viii)(B) that State agencies expend annually on services for older individuals residing in rural areas no less than the amount expended for such services as set forth in the Act, a commenter proposed that State agencies be required to demonstrate how their IFFs meet the needs of older adults with greatest social need and with greatest economic need, in lieu of a policy of requiring minimum expenditure levels for one category of older adults (i.e., older adults residing in rural areas). Response: There is a requirement that State agencies expend annually on services for older individuals residing in rural areas no less than the amount as set forth in section 307(a)(3)(B) of the Act.95 This provision is included to further implementation of this statutory requirement. ACL requires State agencies to include in the IFF a descriptive statement and application of the State agency’s definitions of greatest economic need and greatest social need (see § 1321.49); we believe this requirement addresses the concern. Comment: A few commenters expressed concern as to how State agencies will be able to comply with the rural minimum expenditure amount requirement set forth in 94 42 U.S.C. 3027(a)(3)(B). 95 Id. PO 00000 Frm 00019 § 1321.9(c)(2)(viii)(B) when the rule allows for various definitions among the State agencies. Another commenter recommends that ACL add clarifying language requiring State agencies to address their application of the rural minimum expenditure requirement, including how this requirement relates to each State agency’s IFF. Response: ACL appreciates the above comments related to rural minimum expenditure requirements set forth § 1321.9(c)(2)(viii)(B) but maintains the regulatory language as proposed. Regarding potential varying definitions of what constitutes rural areas, each State agency only compares what it will spend for each fiscal year against what was spent in that State as set forth in the Act. The definitions applied in other States will be irrelevant to this calculation. In addition, § 1321.9 (c)(2)(viii)(A) requires the State agency to establish a process and control for determining the definition of rural areas within their State in part so that the State agency will be able to comply with the rural minimum expenditure requirement. Regarding the recommendation that State agencies be required to address their application of the rural minimum expenditure requirement, section 307(a)(3) of the Act requires State agencies to provide assurances in their State plans with respect to their compliance with the rural minimum expenditure.96 ACL declines to impose additional requirements. Comment: Two commenters noted that without additional funding, the requirements of § 1321.9(c)(2)(viii) may result in decreased services to metropolitan areas with a higher proportion of older adults. Response: The commenters’ concerns relate to the distribution of Title III funds throughout the State, which is addressed elsewhere in the rule. Section 305(a)(2)(C) through (D) of the Act 97 requires distribution of Title III funds to occur via an IFF (further defined in § 1321.49) or funds distribution plan (further defined in § 1321.51). The IFF is required for States with multiple PSAs, and a funds distribution plan is required for single PSA States. Sections 1321.49 and 1321.51 require State agencies to develop the IFF or funds distribution plan, through a process that allows for input from area agencies, interested parties, and the public; the concerns raised by the commenters can be addressed during this public input process. 96 Id. 97 42 Fmt 4701 Sfmt 4700 11583 E:\FR\FM\14FER4.SGM section 3027(a)(3). U.S.C. 3025(a)(2)(C–D). 14FER4 11584 Federal Register / Vol. 89, No. 31 / Wednesday, February 14, 2024 / Rules and Regulations Comment: A commenter expressed concern that the OAAPS definition of rural is an inaccurate reflection of rural areas and could negatively impact area agencies. Another commenter expressed concerns as to U.S. Census data used in the OAAPS definition of rural.98 Response: States are not required to use the OAAPS definition of rural in their IFFs; accordingly, the commenter’s concern that the OAAPS definition could negatively impact area agencies is misplaced. The comments regarding the inaccuracy of, and the data used in, the OAAPS definition of rural are outside of the scope of the rule, which does not address the OAAPS reporting system. ACL is available to provide technical assistance regarding defining and serving rural areas. § 1321.9(c)(2)(ix) Reallotment Our final rule requires State agencies to develop fiscal policies and procedures related to a State agency’s voluntary release of funds (reallotment), corresponding with sections 304(b) 99 and 703(b) 100 of the Act. These policies and procedures include that the State agency must communicate annually to ACL if the State agency has funding that will not be expended in the grant period to be voluntarily 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 communicate annually to ACL 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 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 § 1321.49 or § 1321.51. ddrumheller on DSK120RN23PROD with RULES4 § 1321.9(c)(2)(x) Voluntary Contributions; § 1321.9(c)(2)(xi) Cost Sharing The provision contained in § 1321.67 of the existing regulation (Service contributions) is redesignated here as § 1321.9(c)(2)(x) (Voluntary contributions) and revised, and we add § 1321.9(c)(2)(xi) (Cost sharing) to delineate between the two types of consumer contributions. Section 315 of the Act allows for consumer contributions which may take the form of (1) an individual voluntarily contributing toward the cost of a service (a voluntary contribution) 101 and (2) the State agency establishing a cost sharing policy, creating a structured system for collecting sliding scale payments from some service participants for some services (cost sharing).102 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 IIIfunded services to ACL, a significant amount we estimate was in the form of voluntary contributions. Cost sharing provisions were added in the 2000 amendments to the OAA (Pub. L. 106–501). 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 agency 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 State agencies 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, State agencies have a long history of requesting voluntary contributions and are less likely to pursue cost sharing arrangements. We specify in § 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 noncoercive.103 In contrast, we also 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.104 101 42 U.S.C. 3030c–2(b). section 3030c–2(a). 103 42 U.S.C. 3030c–2. 104 Id. section 3030c–2(a)(2). 98 Supra note 93. 99 42 U.S.C. 3024(b). 100 42 U.S.C. 3058b(b). VerDate Sep<11>2014 20:33 Feb 13, 2024 In § 1321.9(c)(2)(xi) we 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 § 1321.9(c)(2)(x) and § 1321.9(c)(2)(xi) are intended to clarify that services may not be denied, even when a State agency 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 agency cost sharing and consumer contribution policies must not be required for OAA program participants, and State agencies must ensure that program participants are aware that they are not required to contribute, and services will not be impacted if they choose not to contribute. We also 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) 105 and (b)(3),106 and we confirm that both voluntary contribution and cost sharing solicitation amounts are to be based on the actual cost of services. In specifying differences between voluntary contributions and cost sharing, voluntary contributions are encouraged for individuals whose selfdeclared income is at or above 185 percent of the FPL, 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 FPL 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 102 Id. Jkt 262001 PO 00000 Frm 00020 Fmt 4701 Sfmt 4700 105 Id. 106 Id. E:\FR\FM\14FER4.SGM section 3030c–2(a)(5)(E). section 3030c–2(b)(3). 14FER4 Federal Register / Vol. 89, No. 31 / Wednesday, February 14, 2024 / Rules and Regulations § 1321.9(c)(2)(xi) Cost Sharing upon the AAA, as set forth in section 315(a)(6).107 ddrumheller on DSK120RN23PROD with RULES4 § 1321.9(c)(2)(x) Voluntary Contributions Comment: A few commenters expressed support for § 1321.9(c)(2)(x) and § 1321.9(c)(2)(xi), which detail requirements related to voluntary contributions and cost sharing, respectively, and expressed appreciation for the distinctions made between the two concepts. Response: ACL appreciates the support for these provisions. Comment: A few commenters recommended removal of the requirement in § 1329.9(c)(2)(x)(B) that voluntary contributions be encouraged for individuals whose self-declared income is at or above 185 percent of the FPL. One commenter requested clarity as to whether this requirement applies to both registered and non-registered services, as defined in OAAPS.108 The commenter also suggested that an exception be added to this provision for non-registered services under OAAPS where self-reported income is not collected as part of service delivery. Another commenter recommended that the voluntary donation policy be eliminated for Title III, part C meal programs and replaced with an incomebased charge for meals. Response: ACL appreciates these comments but does not have the authority to modify this requirement because it is mandated by section 315 of the Older Americans Act.109 However, § 1329.9(c)(2)(x)(B) does not require an agency to obtain the income levels of all clients to determine whether the clients should be encouraged to voluntarily donate; rather, the provision merely requires that voluntary contributions be encouraged for individuals whose selfdeclared income is at or above 185 percent of the FPL. Comment: ACL received a few comments objecting to allowing Ombudsman programs to seek voluntary contributions, noting a concern that it could be a barrier to residents accessing ombudsman services. Response: The language of the rule is permissive, and we defer to Ombudsman programs to make determinations about voluntary contributions. We decline to make further revisions to this provision. 107 Id. section 3030c–2(a)(6). services are certain services for which demographic and other information are collected from each client and reported into OAAPS (such as home-delivered meals), while nonregistered services are those for which no client demographic information is required to be reported in OAAPS (such as public information sessions). 109 42 U.S.C. 3030c–2. 108 Registered VerDate Sep<11>2014 20:33 Feb 13, 2024 Jkt 262001 Comment: ACL received many comments regarding this section. There was disagreement among the commenters about this section. Some commenters expressed that the section helped to clarify the requirements of the Act. Most commenters, however, had issues with the concept of cost sharing as set forth in the provision (some felt the concept should be eliminated) or had issues with the process as set forth in the provision (many felt decisions as to cost sharing should be made at the area agency level). Response: ACL appreciates these comments but declines to make the commenters’ requested changes to this section. The requirements in § 1329.9(c)(2)(xi) is mandated by section 315 of the Act.110 Comment: Some commenters expressed confusion regarding the distinctions between voluntary contributions and cost sharing, and one commenter’s understanding was that cost sharing is not voluntary. Response: For many decades, State and area agencies and service providers have collected voluntary contributions from participants receiving services under the Act. Cost-sharing provisions were added in the 2000 amendments to the Act (Pub. L. 106–501). Because the Act includes many restrictions and requirements regarding cost sharing, in practice ACL has only seen cost sharing implemented for a few limited services, such as transportation and respite. Many State agencies choose not to pursue cost sharing as they find limited or no benefit in comparison to the traditional model of collecting voluntary contributions. We clarify in § 1321.9(c)(2)(x) that voluntary contributions are allowed and may be solicited for all services, as long as the method of solicitation is noncoercive. In contrast, we also list the services for which the Act prohibits cost sharing. In § 1321.9(c)(2)(xi) we 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 § 1321.9(c)(2)(x) and (xi) are intended to clarify that services may not be denied, even when a State agency has a cost-sharing policy and a voluntary contribution policy, if someone cannot or chooses not to contribute or to pay a suggested cost-sharing amount. In other words, all State agency cost sharing and consumer contribution policies must be voluntary for OAA program participants, and State agencies must ensure that program participants are aware that they are not required to contribute. ACL will offer technical assistance to any State agencies that request assistance in implementing voluntary contributions and cost sharing. Comment: One commenter expressed concern regarding the applicability of cost sharing to Tribal organizations and requested that Tribal organizations be allowed to request a waiver from such requirements. Response: ACL appreciates the comment but believes the commenter’s concerns are adequately addressed in the rule. Section 315(a) of the Act 111 and § 1321.9(c)(2)(xi)(D)(3)(iv) expressly prohibit cost sharing for any services delivered through Tribal organizations. Comment: One commenter requested that AAAs be allowed to implement cost sharing for Title III, part C nutrition programs (congregate and homedelivered meals). The commenter also expressed concern that some clients with the financial means to voluntarily contribute to the cost of the meals do not do so, which can impact a AAA’s ability to provide services to those at greatest social need and greatest economic need. Response: Section 315(a) of the Act 112 expressly prohibits cost sharing for congregate and home-delivered meals. Even if cost sharing were permitted for these services, an area agency would not be permitted to deny the service to any client who is unwilling to contribute, as discussed above. Section 1321.9(c)(2)(x) requires that voluntary contributions be encouraged for clients whose selfreported income is at or above 185 percent of the FPL. In addition, serving clients with the ‘‘greatest social need’’ could include clients of considerable financial means. § 1321.9(c)(2)(xii) Use of Program Income The provision contained in § 1321.73 of the existing regulation (Grant related income under Title III–C) is redesignated here as § 1321.9(c)(2)(xii) and revised. We clarify the fiscal requirements that apply to program income, which include voluntary contributions and cost-sharing 111 Id. 110 Id. PO 00000 section 3030c–2. Frm 00021 Fmt 4701 section 3030c–2(a). 112 Id. Sfmt 4700 11585 E:\FR\FM\14FER4.SGM 14FER4 ddrumheller on DSK120RN23PROD with RULES4 11586 Federal Register / Vol. 89, No. 31 / Wednesday, February 14, 2024 / Rules and Regulations payments. For example, we clarify that State agencies are required to report contributions as program income and set forth restrictions on the use of program income. Comment: ACL received comments requesting clarification of the requirement in § 1321.9(c)(2)(xii)(B) that ‘‘[p]rogram income collected must be used to expand the service category by part of Title III of the Act, as defined in § 1321.71, for which the income was originally collected;’’ as well as requesting that § 1321.9(c)(2)(xii) be modified to permit area agencies the flexibility to allow program income to be used to expand any Title III service. Response: Section 315 of the Act 113 does not authorize ACL to permit area agencies to use program income collected under one part of Title III to expand a service provided under another part of Title III. In addition, in the course of reviewing these comments, ACL has determined that contributions must be used to expand a service funded under the Title III grant award pursuant to which the income originally was collected, and that the language of this section was in need of revision. Accordingly, § 1321.9(c)(2)(xii)(B) has been revised to state that program income collected must be used to expand a service funded under the Title III grant award pursuant to which the income was originally collected. Thus, a contribution for transportation (a supportive service under Title III, part B) can only be reported as income and used to expand Title III, part B supportive services such as transportation or multipurpose senior centers. Similarly, if someone pays a portion of the cost of a Title III, part B transportation service under a costsharing arrangement, that portion must be reported as income to the Title III, part B supportive services program. In addition, because Title III, part C–1 funding for congregate meals and Title III, part C–2 funding for home-delivered meals are issued under separate grant awards, contributions for services under these two awards cannot be commingled. A contribution for the nutrition service of home-delivered meals must be reported as income to the home-delivered nutrition program and used to expand home-delivered nutrition services, such as homedelivered meals, or nutrition education for home-delivered meals clients; it cannot be used to expand congregate meals services. 113 Id. section 3030c–2. VerDate Sep<11>2014 20:33 Feb 13, 2024 Jkt 262001 § 1321.9(c)(2)(xiii) Private Pay Programs 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. We add paragraph (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 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 and waitlist opportunities for those services. § 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 contracts and commercial relationships with various entities to accomplish the delivery of comprehensive services, as authorized in sections 212 114 and 306(a)(13) and (14) of the Act.115 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 with 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 2020 reauthorization of the OAA.116 In response to numerous questions about the appropriate roles, responsibilities, and oversight of such activities, feedback received in response to the RFI and the NPRM, and based on our observations of program activities, this final rule clarifies the policies and procedures that State agencies must establish related to all contracts and commercial relationships in subsection 114 42 U.S.C. 3020c. U.S.C. 3026(a)(13)–(14). 116 42 U.S.C. 3027(a)(26) (2018) as amended by Public Law 116–131 (2020). 115 42 PO 00000 Frm 00022 Fmt 4701 Sfmt 4700 § 1321.9(c)(2)(xiv). We intend this rule to respond to numerous concerns from AAAs regarding inconsistent State agency approaches to contracts and commercial relationships, as well as concerns from State agencies about the level of risk and associated oversight required. We encourage a review and approval process that complies with the statutory requirements found in section 212 117 and throughout Title III but is not onerous, can be implemented easily, and does not cause undue delay. We anticipate providing technical assistance in this area to State agencies and AAAs. As a component of these policies and procedures, and consistent with their authority under sections 305(a)(1)(C),118 306(a),119 306(b),120 and 212(b)(1),121 State agencies must establish processes for AAAs to receive prior approval for contracts and commercial relationships permitted under section 212 of the Act.122 We expect such processes to be flexible and streamlined. This provision will help ensure that the activities of recipients and subrecipients of funding further the intended benefits of the Act and do not compromise core responsibilities or the statutory mission of State agencies, AAAs, and service providers. Through these requirements, we intend to promote and expand the ability of the aging network to engage in business activities. Comment: Several commenters recommended that we define ‘‘commercial relationships.’’ Commenters also sought clarity as to whether this provision applies to contracts or commercial relationships to provide services to non-profit entities in addition to ‘‘profitmaking’’ entities (under section 212 of the Act).123 We have received several questions through public comments and requests for technical assistance seeking to understand when a business arrangement is or is not a ‘‘commercial relationship.’’ Response: Typically, an organization seeking clarity on this issue either wants to or is already engaged in a business arrangement and is trying to understand whether certain OAA requirements apply to that arrangement. Our intent is to broadly define ‘‘commercial relationships.’’ Whether they are contracts, ‘‘business arrangements,’’ ‘‘agreements,’’ ‘‘business transactions,’’ 117 42 U.S.C. 3020c. U.S.C. 3025(a)(1)(C). 119 42 U.S.C. 3026(a). 120 Id. section 3026(b). 121 42 U.S.C. 3020c(b)(1). 122 Id. section 3020c. 123 Id. 118 42 E:\FR\FM\14FER4.SGM 14FER4 ddrumheller on DSK120RN23PROD with RULES4 Federal Register / Vol. 89, No. 31 / Wednesday, February 14, 2024 / Rules and Regulations or any other term that an organization might use to describe the activity, it is broadly encompassed within the statutory term ‘‘contracts or commercial relationships.’’ The Act only uses the phrase ‘‘commercial relationship’’ in tandem with ‘‘contracts’’ or ‘‘contractual.’’ 124 We have sought to consistently adopt the phrase ‘‘contracts and commercial relationships’’ throughout the NPRM and in this final rule. When we are not referring to all ‘‘contracts and commercial relationships,’’ we explain which subset is relevant. For example, the phrase ‘‘contracts and commercial relationships that fall under section 212 of the Act’’ would refer to the agreements described in section 212 of the Act.125 It is not relevant to distinguish between a ‘‘contract’’ and a ‘‘commercial relationship’’ under section 212; the same requirements apply, regardless of how an organization defines the agreement. We appreciate comments seeking a clearer definition of ‘‘private pay’’ in the final rule. We have revised the definitions of ‘‘area plan administration,’’ ‘‘private pay programs’’ and ‘‘program development and coordination activities’’ to use ‘‘contracts and commercial relationships,’’ consistent with our use throughout the rest of the rule. We also decline to provide a regulatory definition of ‘‘profitmaking’’ as used in section 212 of the Act, which lays out the circumstances under which a recipient may enter ‘‘[. . .] an agreement with a profitmaking organization for the recipient to provide services to individuals or entities not otherwise receiving services under this Act[.]’’ 126 We interpret ‘‘profitmaking’’ as referring to entities that are not nonprofits. However, because section 212 establishes a framework for understanding how and when these arrangements are consistent with the intent of the Act, we think it is reasonable for a State agency to apply the same opportunities and obligations in the context of agreements with nonprofit entities. In other words, if an agreement would be permitted under section 212 with a for-profit entity, a State agency could determine that a similar agreement with a non-profit entity is permissible so long as the other requirements of section 212 are met. We encourage State agencies to take this approach or otherwise explain why they 124 42 U.S.C. 3026; 42 U.S.C. 3027; 42 U.S.C. 3012. 125 42 U.S.C. 3020c. 126 42 U.S.C. 3020c(a). VerDate Sep<11>2014 20:33 Feb 13, 2024 Jkt 262001 decline to do so in their policies and procedures. Comment: We received a significant number of comments related to contracts and commercial relationships, generally focusing on approval requirements for agreements that fall under section 212 of the Act.127 Many commenters raised concerns about the appropriate degree of State oversight and the role of the State agency. Commenters had concerns about how time-consuming State agency approval processes can be, both out of concern for the burden and potential cost to State agencies and because of the potential delay in executing contracts and commercial relationships and subsequent impact on potential partnerships. Several commenters were concerned that this provision could deter OAA grantees from innovating and forming relationships with health and social sector commercial entities. All commenters that raised this issue agreed that oversight of contracts and commercial relationships should be streamlined and not overly burdensome. Several commenters described the proposed policies and procedures as an expansion of State agency control and were concerned that ‘‘excessive approval requirements’’ would usurp local decision-making. Other commenters suggested that ACL limit the State agency approval process to a generic review of AAA activity, and that State agencies should not be authorized to review and approve of specific contracts or contract details. Commenters recommended relying solely on assurances in AAA contracts that reflect adherence to all key principles within the OAA as a maximum degree of State oversight. One commenter suggested that State agency approval should be limited to approval of standard language for AAAs to incorporate into agreements with thirdparty entities, as appropriate. Many comments related to the State approval process under section 212 of the Act,128 including requests for more clarity about how comprehensive the process should be. One commenter recommended incorporating more specific information about the nature of State agency ‘‘approval’’ into the regulation and establishing a right of appeal if a State agency opts not to approve of a contract or commercial relationship. Several commenters noted that State agencies are not a party to the contract they are responsible for approving, and thus should not have approval authority; other commenters 127 Id. 128 42 PO 00000 section 3020c. U.S.C. 3020c. Frm 00023 Fmt 4701 asked whether the State agency became a party to the contract by virtue of its review and approval role. Several comments included requests for information that we believe would be better incorporated into subregulatory guidance to assist in implementing this provision. For example, how should State agencies deal with contract amendments; can ACL provide examples of streamlined State agency review processes; what degree of oversight does a State agency have over a separate non-profit entity established by a AAA; what is the scope of State liability in the event of an issue that arises due to a contract or commercial relationship approved by the State agency; and what the remedy is if the State agency identifies an issue related to the proposed contract or commercial relationship. Response: We appreciate these comments. We agree that State agency oversight policies and procedures should be streamlined, transparent, not overly burdensome to either the State or the subrecipients of Federal funds, and commensurate to the degree of risk associated with a specific contract or commercial relationship. Like most commenters who raised this issue, we do not believe it should usually be necessary for State agencies to review contract documents in order to approve the establishment of a contract or commercial relationship. As we stated in the proposed rule, we expect State agency approval processes to be flexible, reflecting the needs of the older individuals served and the abilities of AAAs and service providers to engage in contracts and commercial relationships.129 We believe that requiring State agencies to establish clear policies and procedures for approval processes, developed in consultation with AAAs, will expedite the establishment of important partnerships. States agencies could use a number of different approaches to streamline the approval processes. For example, a State agency could adopt standard assurances related to COI (and other concerns) to be adopted into all AAA agreements to provide services and decide not to review case-by-case information related to COI. A State agency could preapprove a AAA to engage in a general category of contracts and commercial relationships with a certain type of organization, subject to certain conditions and a commitment to provide information about the agreement annually, as required under 129 88 Sfmt 4700 11587 E:\FR\FM\14FER4.SGM FR 39578 (June 16, 2023). 14FER4 ddrumheller on DSK120RN23PROD with RULES4 11588 Federal Register / Vol. 89, No. 31 / Wednesday, February 14, 2024 / Rules and Regulations section 306(a).130 The State agency could decide as a matter of policy that all contracts and commercial relationships to expand the reach of services will be approved unless certain concerning conditions exist (for example, if a AAA is under a corrective action plan). Under such a policy, AAAs would provide assurances that proposed agreements do not meet any exclusionary criteria. State agencies might decide that certain kinds of arrangements pose more risk than others. For example, contracts that involve a AAA on a corrective action plan or contracts that are disproportionately large compared to a AAA’s overall budget may be considered to pose more risk. As we discussed in the proposed rule, State agencies could consider the potential risks of different kinds of contracts and commercial relationships as they develop and implement the most efficient and least burdensome approval processes possible.131 State agencies have the discretion to decide whether it is appropriate to incorporate template language into agreements, standard assurances, or to use other methods of standardization. We hope that having clear statewide policies and procedures will help to establish best practices nationwide. We strongly encourage State agencies to seek input on proposed approval processes from AAAs to help achieve a balanced and feasible approach that will achieve the goal of minimizing risks while enabling the expansion of services to reach older adults with unmet needs. Commenters raised questions related to compliance and State agency liability for unsuccessful contracts or commercial relationships approved under State agency policy. We appreciate these concerns and reiterate here that the activities described in section 212 (both successful and unsuccessful) are allowable costs under the grant.132 The State agency must establish and follow policies and procedures that are compliant with this final rule and comply with any other applicable requirements for recipients of Federal grants. The structure of the Act is such that State agencies (as Federal grantees) are ultimately responsible for ensuring the appropriate use of funds, while AAA subrecipients are predominantly responsible for using those funds to develop the aging services network. This framework may lead State agencies to err on the side of caution (which is 130 42 U.S.C. 3026(a)(13). FR 39578 (June 16, 2023). 132 42 U.S.C. 3020c. 131 88 VerDate Sep<11>2014 20:33 Feb 13, 2024 Jkt 262001 appropriate in overseeing the use of Federal funds) so as not to be held responsible for risky subrecipient activities. However, too much caution in this area may inhibit the provision of vital services and the sustainable growth of the network at a time when there is a growing population of older adults and greater demand for services. Section 212 133 and section 306(g) 134 highlight the importance of leveraging existing knowledge, expertise, and relationships to expand the reach of the aging services network.135 All new business endeavors represent some degree of risk; we intend the policies and procedures under this provision to help mitigate, not eliminate, that risk. The intent of sections 212 and 306(g) can only be realized if the full weight of the potential failure of new contracts and commercial relationships does not fall on State agencies. We can alleviate that concern by clarifying that activities under section 212 are allowable costs so long as they comply with State agency policies and procedures. We agree with commenters who noted that State agencies are not parties to these contracts and commercial relationships; however, that has no bearing on their authority to review and approve them. State agencies are responsible for reviewing and approving certain contracts and commercial relationships, consistent with sections 305(a)(1)(C),136 306(a),137 306(b),138 and 212(b)(1) of the Act.139 Engaging in these responsibilities does not make the State agency a party to the contract or commercial relationship under review. Commenters encouraged ACL to develop regulatory text that sets an appropriate Federal regulatory floor for State agencies to meet but that remains flexible enough for State agencies with capacity or need to establish processes or standards that meet their Statespecific priorities. We intend the regulatory text that we have set forward to be just that: a standard regulatory floor that defers to State agency discretion to develop policies and procedures to appropriately review contracts and commercial relationships that require State agency approval. We prefer to leave State agencies the discretion to decide the details of their policies and procedures related to review and approval of contracts and commercial relationships (including 133 Id. section 3020c. 134 42 U.S.C. 3026(g). 135 42 U.S.C. 3020c; 42 U.S.C. 3026(g). 136 42 U.S.C. 3025(a)(1)(C). 137 42 U.S.C. 3026(a). 138 Id. section 3026(b). 139 42 U.S.C. 3020c(b)(1). PO 00000 Frm 00024 Fmt 4701 Sfmt 4700 pre-approval of agreements described in section 212 of the Act) 140 because circumstances vary across States and the State agency is ultimately responsible for ensuring the appropriate use of Federal funds granted to the State. However, in developing their policies and procedures, State agencies should consider the government interests in reviewing the potential contract or commercial relationship (including, among other concerns, any potential COI and whether appropriate firewalls exist to mitigate them; whether the AAA is meeting existing obligations under the Act; and potential risks to the AAA, the aging services network, or to the individuals served by the AAA associated with the proposed contract or commercial relationship). Section 306(a) of the Act sets forth many of these interests in the form of assurances that AAAs must offer for area plan approval.141 State agencies have the discretion to request to review contract documents if they deem it necessary to determine whether the contract or commercial relationship may be approved, consistent with their policies and procedures. However, subrecipients should generally be able to provide sufficient information to address these concerns without having to share contract documents for review. This should include, at a minimum, information related to the proposed partnering entity,142 the proposed services to be provided, and specific assurances related to other requirements under section 212(b).143 We intend to provide tools and examples that State agencies may, at their discretion, adapt and use. We intend the delayed compliance date for this provision to provide adequate time for State agencies and subrecipients to adopt compliant policies and to engage in technical assistance as needed. Comment: We received several comments recommending against incorporating any prior approval process for contracts and commercial relationships into the area plan approval process. Commenters also recommended that State agencies be required to provide timely approval. Response: We agree that State agencies should establish a prior approval process that is distinct from the area plan approval process, as opportunities may arise outside of 140 42 U.S.C. 3020c(b)(1). U.S.C. 3026(a)(13). 142 In deference to non-disclosure agreements, this may include the type of organization and not the identity of the specific entity. However, the State agency may require the AAA to attest that the proposed agreement is not with a specific entity. 143 42 U.S.C. 3020c(b). 141 42 E:\FR\FM\14FER4.SGM 14FER4 ddrumheller on DSK120RN23PROD with RULES4 Federal Register / Vol. 89, No. 31 / Wednesday, February 14, 2024 / Rules and Regulations standard area plan timeframes and requests for prior approval may not need to meet the same expectations for public input, advisory council review, and other requirements. Subrecipients can only successfully establish contracts and commercial relationships that require prior approval if approval can be granted in a timely fashion. However, we encourage State agencies to use the area plan approval process as an additional opportunity to discuss any new business under development. Comment: A number of commenters were particularly interested in minimizing the State’s oversight role with respect to contracts and commercial relationships described in section 212 of the Act 144 that are executed by AAAs without expending OAA funding. Several commenters argued that the Act does not apply to such agreements, and thus oversight is not appropriate. Some commenters raised concerns that the State preapproval required under section 212 of the Act conflicts with section 306(g) of the Act, which states that, ‘‘Nothing in this Act shall restrict an area agency on aging from providing services not provided or authorized by this Act[.]’’ 145 On the other hand, one AAA commenter strongly supported the approval role of the State agency and suggested that statewide standardization of the process to engage in contracts and commercial relationships under section 212 of the Act would help improve the AAA network’s ability to equitably engage in such business. Response: We disagree with commenters who described State oversight in this area as an overreach. Our interpretation of the statute is that the Act applies to agreements ‘‘[. . .] to provide services to individuals or entities not otherwise receiving services under this Act [. . .]’’ 146 regardless of whether OAA funds are directly expended as part of the agreement. We seek to clarify here our interpretation of the statutory language and the Federal interests (as articulated in the Act) in responsible oversight of any contract or commercial relationship that falls within the category of ‘‘agreements’’ described in section 212. Section 212(a) of the Act states that, subject to the conditions set forth in 212(b), ‘‘[. . .] this Act shall not be construed to prevent a recipient of a grant or a contract under this Act (other than title V) from entering into an agreement with a profitmaking organization for the recipient to provide 144 42 U.S.C. 3020c. U.S.C. 3026(g). 146 42 U.S.C. 3020c(a). 145 42 VerDate Sep<11>2014 20:33 Feb 13, 2024 Jkt 262001 services to individuals or entities not otherwise receiving services under this Act[.]’’ 147 We interpret this paragraph as defining ‘‘an agreement’’ for the purposes of section 212 as any arrangement with a profitmaking organization to provide services to individuals or entities not otherwise receiving services under this Act. Consistent with section 306(g),148 such agreements must be permitted, provided they meet the conditions laid out in section 212, and that a subrecipient seeking pre-approval has followed the State agency policy and procedures established under this provision. A State agency should not arbitrarily deny approval of an agreement that satisfies the requirements of section 212 and of the State’s own policies and procedures. Subsection (a) continues in paragraphs (a)(1) through (3) by providing three limiting conditions that are only relevant to certain agreements: • Paragraph (a)(1) states that if funds provided under this Act to such recipient are initially used by the recipient to pay part or all of a cost incurred by the recipient in developing and carrying out such agreement, such agreement guarantees that the cost is reimbursed to the recipient.149 We interpret this paragraph to mean that if agreements are developed and carried out using OAA funds, those funds must be reimbursed. Importantly, agreements may also be entered into without using OAA funds, in which case this condition does not apply, and reimbursement of OAA funds is not relevant. • Paragraph (a)(2) states that if such agreement provides for the provision of one or more services, of the type provided under this Act by or on behalf of such recipient, to an individual or entity seeking to receive such services 150 certain additional conditions apply. Individuals and entities may only purchase services at a fair market rate; all costs incurred (and not otherwise reimbursed under (a)(1)) must be reimbursed; and recipients must report rates and rates must be consistent with the prevailing market rate in the relevant geographic area. We interpret this paragraph to mean that if the agreement is for the recipient to 147 Id. section 3020c(a). U.S.C. 3026(g) Nothing in this Act shall restrict an area agency on aging from providing services not provided or authorized by this Act, including through—(1) contracts with health care payers; (2) consumer private pay programs; or (3) other arrangements with entities or individuals that increase the availability of home- and communitybased services and supports. 149 42 U.S.C. 3020c(a)(1). 150 Id. section 3020c(a)(2). 148 42 PO 00000 Frm 00025 Fmt 4701 Sfmt 4700 11589 provide one or more OAA-authorized services to OAA service participants or clients, these additional conditions apply. As in (a)(1), we also interpret this paragraph to mean that an agreement might be entered into under section 212 that does not provide for the provision of one or more OAA services. • Paragraph (a)(3) describes any amount of payment to the recipient under the agreement that exceeds reimbursement under this subsection of the recipient’s costs is used to provide, or support the provision of, services under this Act.151 We interpret this paragraph to mean that if an agreement is profitable beyond the required reimbursement of any OAA funds if used (under (a)(1)) and the reimbursement of any other costs incurred by the recipient (under (a)(2)(B)), any profits must be used to support the provision of OAA services to OAA clients. Section 212(b) lists the limitations that apply to all agreements under section 212. An agreement described in paragraph (a) may not: • be made without the prior approval of the State agency (or, in the case of a grantee under title VI, without the prior recommendation of the Director of the Office for American Indian, Alaska Native, and Native Hawaiian Aging and the prior approval of the Assistant Secretary), after timely submission of all relevant documents related to the agreement including information on all costs incurred.152 We interpret this paragraph to require State agency preapproval for all agreements under section 212. We have discussed at length the requirement in this final rule for State agencies to develop policies and procedures to implement this provision; • have the effect of ‘‘[. . .] paying, reimbursing, subsidizing, or otherwise compensating an individual or entity in an amount that exceeds the fair market value of the services subject to such an agreement[.]’’ 153 This paragraph applies the limitation in section 212(a)(2)(A) to all agreements under section 212; • result in the displacement of services otherwise available to an older individual with greatest social need, an older individual with greatest economic need, or an older individual who is at risk of institutional placement; or • in any other way compromise, undermine, or be inconsistent with the objective of serving the needs of older individuals, as determined by the 151 42 U.S.C. 3020c(a)(3). section 3020c(b)(1). 153 Id. section 3020c(b)(2). 152 Id. E:\FR\FM\14FER4.SGM 14FER4 ddrumheller on DSK120RN23PROD with RULES4 11590 Federal Register / Vol. 89, No. 31 / Wednesday, February 14, 2024 / Rules and Regulations Assistant Secretary.154 Agreements under section 212 may not compromise OAA services to OAA program participants or clients and may not be inconsistent with the objective of serving older individuals. The Assistant Secretary for Aging has the discretion to determine whether an agreement violates this provision. Section 212(c), (d), and (e) relate to monitoring and reporting requirements, timely reimbursement, and defining ‘‘cost’’ in this section, respectively.155 We did not receive significant comments related to interpreting these provisions. Section 212 156 cannot be read without the context provided by section 306(a),157 which sets forth the requirements for the development of area plans, which lay out in detail the work that a AAA must do to fulfill their obligations under the Act, inclusive of compliance with section 212. Both sections 306(a) and 212 require subrecipients to provide information for State agency review and approval about the contracts and commercial relationships in which they are engaged, or in which they intend to engage. Section 306(a) incorporates the requirements of section 212 and enumerates the assurances the AAAs must offer as part of developing an area plan. Among other attestations, AAAs are required to provide assurances that they will: • maintain the integrity and public purpose of services provided, and service providers, under this title in all contractual and commercial relationships; • disclose the identity of each nongovernmental entity with which they have a contract or commercial relationship relating to providing any service to older individuals and the nature of such contract or such relationship; • demonstrate that a loss or diminution in the quantity or quality of the services provided, or to be provided, under this title by such agency has not resulted and will not result from such contract or such relationship; • demonstrate that the quantity or quality of the services to be provided under this title by such agency will be enhanced as a result of such contract or such relationship; • if requested, disclose all sources and expenditures of funds such agency receives or expends to provide services to older individuals; • avoid giving preference in receiving services under this title to particular older individuals as a result of a contract or commercial relationship that is not carried out to implement this title; and use funds provided under this title to provide benefits and services to older individuals, giving priority to older individuals identified in section 306(a)(4)(A)(i),158 and in compliance with these assurances and the limitations specified in section 212.159 [.]’’ The OAA established the AAA designation, and AAAs have since grown into a nationally recognized network of entities working on behalf of older adults. The assurances laid out in section 306(a) 160 are a clear statement of the Federal interests in ensuring that the integrity of the network is not compromised by any contracts and commercial relationships in which recipients and subrecipients engage; and that services to OAA clients will be enhanced (and not diminished) as the result of such agreements. Even commenters who felt that certain activities described in section 212 of the Act 161 were ‘‘not related to the OAA’’ shared comments that nevertheless indicated an understanding that these interests apply to those activities. For example, a commenter noted that AAAs should be able to demonstrate that the work aligns with their mission and should keep their State agency informed about their work, albeit without ‘‘seeking permission.’’ One commenter who wrote in favor of relying solely on assurances for preapproval noted that AAAs could be required to attest that contracting work to provide services outside the OAA would not in any way harm the goals of the Act or compromise the agency’s responsibilities within the Act. Another comment noted further that any potential ‘‘profits’’ made from these kinds of contracts or commercial relationships are put back into services or the development of new programs for older adults, a reinvestment that is required under section 212—though the commenter claims that such agreements do not fall under the purview of section 212. Both section 212 162 and section 306(a) 163 establish an important oversight role for State agencies. As we noted in the proposed rule, we intend this provision to help ensure that the 158 42 U.S.C. 3026(a)(4)(A)(i). U.S.C. 3020c. 160 42 U.S.C. 3026(a). 161 42 U.S.C. 3020c. 162 Id. 163 42 U.S.C. 3026(a) 159 42 154 Id. section 3020c(b)(3),(4). section 3020c(c),(d),(e). 156 42 U.S.C. 3020c. 157 42. U.S.C. 3026(a). 155 Id. VerDate Sep<11>2014 20:33 Feb 13, 2024 Jkt 262001 PO 00000 Frm 00026 Fmt 4701 Sfmt 4700 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. Comment: A few commenters raised concerns related to sharing proprietary information or violating non-disclosure agreements as part of the review process. One commenter specifically asked about the relationship between State public records laws and State agency oversight of contracts between AAAs and health care entities with nondisclosure agreements. Response: Generally, the application of State public records laws is beyond the scope of our regulation. However, we are not aware of any State that does not include certain exceptions for trade secrets or other proprietary information. In addition, we encourage State agencies to request and review the minimum information appropriate to the circumstances in order to approve of a contract or commercial relationship. § 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 use of funding. We 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.164 To ensure that third parties will be on notice of this requirement, we 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. Comment: One commenter requested definitions for: ‘‘alterations,’’ ‘‘renovations,’’ and ‘‘construction.’’ Two commenters suggested including ‘‘retrofitting’’ in the definition of ‘‘alterations’’ for clarity. Another commenter requested that ACL maximize flexibility for State agencies to make infrastructure investments. Response: ACL appreciates these comments but declines to add the 164 42 E:\FR\FM\14FER4.SGM U.S.C. 3030b. 14FER4 Federal Register / Vol. 89, No. 31 / Wednesday, February 14, 2024 / Rules and Regulations ddrumheller on DSK120RN23PROD with RULES4 requested changes, as ‘‘altering or renovating’’ and ‘‘constructing’’ are defined in § 1321.3 of the rule. ‘‘Infrastructure’’ is a broad term, and ACL lacks authority under the Act to allow for such a broad use of OAA funds. Section 321 of the Act only allows construction activities for multipurpose senior centers.165 Comment: A commenter noted that the term ‘‘constructing,’’ as defined in the current regulation, specifically refers only to ‘‘multipurpose senior centers,’’ while the definition of the term ‘‘constructing’’ in § 1321.3 of the proposed rule makes no reference to senior centers. The commenter sought clarity as to whether constructing activities only are permitted for multipurpose senior centers. Response: ACL appreciates this comment. Section 1321.9(c)(2)(xv)(C) of the rule expressly states that construction activities only are allowable for multipurpose senior centers. Comment: One commenter expressed the concern that § 1321.9(c)(2)(xv) does not adequately address equipment. Response: In response to this comment, we have revised the introductory statement of this section as follows: ‘‘Buildings and equipment, where costs incurred for [. . .] repair, and upkeep [. . .] to keep buildings and equipment in an efficient operating condition, including acquisition and replacement of equipment, may be an allowable use of funds and the following apply[.]’’ We also have made a technical correction to the crossreferences in § 1321.9(c)(2)(xv)(D) to specify the applicability of this provision. Finally, we have added a provision at § 1321.9(c)(2)(xv)(F) to specify that prior approval by the Assistant Secretary for Aging does not apply. Comment: In connection with the acquisition or construction of a multipurpose senior center, ACL received a comment requesting guidance and training related to the requirement to file a Notice of Federal Interest in the appropriate official records of the jurisdiction where the property is located. Response: ACL will address this comment through technical assistance, as needed. § 1321.9(c)(2)(xvi) Supplement, Not Supplant The Act sets forth requirements in sections 306(a)(9)(B),166 315(b)(4)(E),167 321(d),168 374,169 and 705(a)(4) 170 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, part E funding. In this example, the result would be 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 374.171 This provision requires a State agency policy and procedure on supplementing, not supplanting existing funds for the programs where specified in the Act. Comment: ACL received a comment requesting guidance as to § 1321.9(c)(2)(xvi), which provides that funds awarded under certain sections of the Act must not supplant existing Federal, State, and local funds. Response: ACL will address requests for guidance regarding this requirement through technical assistance, as needed. § 1321.9(c)(2)(xvii) Monitoring of State Plan Assurances The Act sets forth many assurances to which State agencies must attest as a part of their State plans and to which AAAs must attest as a part of their area plans. The final rule specifies that the State agency must have policies and procedures to monitor compliance with these assurances. We made a technical edit to remove ‘‘and area’’ from the proposed language in this provision, as monitoring of area plan assurances is addressed in § 1321.9(c)(4). § 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 specifies that State agencies may advance funding to meet immediate cash needs of AAAs and service providers, and if a State agency chooses to do so, the State agency must have policies and procedures that comply with all applicable Federal requirements. Comment: One commenter expressed support for § 1321.9(c)(2)(xviii). Other 168 42 U.S.C. 3030d(d). U.S.C. 3030s–2. 170 42 U.S.C. 3058d(a)(4). 171 42 U.S.C. 3030s–2. 165 42 U.S.C. 3030d. 166 42 U.S.C. 3026(a)(9)(B). 167 42 U.S.C. 3030c–2(b)(4)(E). VerDate Sep<11>2014 20:33 Feb 13, 2024 169 42 Jkt 262001 PO 00000 Frm 00027 Fmt 4701 Sfmt 4700 11591 commenters expressed concern that this section includes requirements that may be difficult to comply with, given the diverse needs of area agencies. Response: ACL appreciates these comments, but we decline to revise this provision. We do not have the authority to modify or waive Federal requirements that apply to advance payments. § 1321.9(c)(2)(xix) Fixed Amount Subawards The rule allows fixed amount subawards up to the simplified acquisition threshold, as set forth in 2 CFR 200.333 and 45 CFR 75.353. The NPRM included this point in § 1321.9(c)(2)(i). In the course of reviewing § 1321.9(c)(2)(i) in response to comments received, ACL has determined that the language from that section regarding fixed amount subawards should be in a separate provision. Accordingly, ACL has added a new § 1321.9(c)(2)(xix) which states that fixed amount subawards up to the simplified acquisition threshold are allowed. For a definition of ‘‘simplified acquisition threshold’’ see 2 CFR 200.1 and 45 CFR 75.2. ACL will provide technical assistance, as needed, regarding § 1321.9(c)(2)(xix). § 1321.9(c)(4) Area Plan Process We add paragraphs § 1321.9(c)(3) and (4) to ensure the integrity and transparency of the State plan process and, in States with multiple PSAs, of the area plan process. The final rule requires the State agency to have policies and procedures that align with the requirements for State and area plans in §§ 1321.27, 1321.29, and 1321.65. In this final rule we have revised these requirements to clarify that State and area agencies must establish and comply with a reasonable minimum time period (at least 30 calendar days, unless a waiver has been granted) for public review of and comment on State and area plans. § 1321.11 Advocacy Responsibilities Section 1321.13 of the existing regulation (Advocacy responsibilities) is redesignated here as § 1321.11. Section 1321.11 sets forth the advocacy responsibilities of State agencies. As indicated, these include advocacy, technical assistance, and training activities. We make additional minor revisions to these provisions to include activities related to the National Family Caregiver Support Program. Section 305(a) of the Act provides that the State agency should serve as ‘‘an effective and visible advocate’’ for older individuals E:\FR\FM\14FER4.SGM 14FER4 ddrumheller on DSK120RN23PROD with RULES4 11592 Federal Register / Vol. 89, No. 31 / Wednesday, February 14, 2024 / Rules and Regulations and family caregivers.172 Accordingly, we revise § 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. Comment: We received comment supporting inclusion of advocacy responsibilities, such as including family caregivers, and offering suggestions for strengthening these expectations. One commenter requested we require State agencies to incorporate diversity, inclusion, and cultural competency training, while another commenter requested removing local plans from the items the State agency is expected to review, monitor, evaluate, and provide comment on. Response: We appreciate these comments. We have revised § 1321.11(a)(1) from ‘‘[. . .] recommend any changes in these which the State agency considers to be appropriate’’ to ‘‘[. . .] recommend any changes in these which the State agency considers to be aligned with the interests identified in the Act[.]’’ At § 1321.61(b)(1), we also have revised the regulations to remove the phrase ‘‘where appropriate’’ and add ‘‘which the area agency considers to be aligned with the interests identified in the Act[.]’’ We agree with the commenter that diversity, inclusion, and cultural competency are essential, and we encourage State agencies to incorporate these concepts throughout their trainings. However, we decline to expressly require such training. State agencies must provide training related to all of the topics listed in this regulation, including on how to provide services to those in the greatest economic and greatest social need. ACL encourages State agencies to work with Tribes and Tribal organizations, organizations representing those identified as in the greatest economic need and greatest social need, and others with lived experience in providing such trainings. Additionally, State agencies are encouraged to provide review and comment on local plans and activities as part of their statewide oversight responsibilities. The State agency may benefit from learning about local innovations and developments, and the local agency may benefit from feedback on and connections to State agency initiatives and activities. § 1321.13 Designation of and Designation Changes To Planning and Service Areas Section 1321.29 of the existing regulation (Designation of planning and service areas) is redesignated here as § 1321.13 and is retitled to better reflect the content of the revised provision. Section 305 of the Act requires the State agency to divide the State into distinct PSAs and subsequently designate a AAA to serve each PSA.173 The Act allowed for exceptions for some State agencies to designate the entire State as a single PSA; however, this option only remains for States that did so on or before October 1, 1980. Single PSA 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 PSAs allows for a local approach to the planning, coordination, advocacy, and administration responsibilities as required under the Act. We revise this section to affirm the State agencies’ obligations to have policies and procedures in place to ensure that the State agency process of designating and changing PSAs will be transparent, will hold the State agency accountable for its decisions, and will afford due process to affected parties. We also describe factors that a State agency should take into account when it considers changing a PSA 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 and 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 PSAs, we provide greater detail on the requirements for changing PSAs, 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 requirement that State agencies must consider the listed factors will resolve confusion over how State agencies should make decisions about whether and how to change PSA designations. Comment: One commenter pointed out a technical correction: the reference in § 1321.13(e) to § 1321.15(d) should instead reference § 1321.13(d). Response: We are grateful to the commenter and have made this revision. Comment: We received comments expressing support for the clarity of these provisions. One commenter also noted Tribes may request changes to better serve Native American elders. Response: We appreciate these comments and encourage consideration of PSA changes that may better serve older adults and family caregivers, including Native American elders and family caregivers. § 1321.15 Interstate Planning and Service Area Section 1321.43 of the existing regulation (Interstate planning and service area) is redesignated here as § 1321.15. Revisions are made to this provision to clarify the nature of an interstate PSA (per section 305(b) of the Act),174 as well as the process for requesting the Assistant Secretary for Aging to designate an interstate PSA. 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 crossreferences to other provisions within the regulation. Comment: We received comment emphasizing the need for coordination especially when Tribal reservations cross State lines. Response: We appreciate this comment. ACL is available to provide technical assistance in coordinating among State agencies, AAAs, and Tribal aging programs regarding interstate PSAs. § 1321.17 Appeal to the Departmental Appeals Board on Planning and Service Area Designation Section 1321.31 (Appeal to Commissioner) is redesignated and modified here as § 1321.17 (Appeal to the Departmental Appeals Board on planning and service area designation). Section 305(a)(1)(E) 175 of the Act provides State agencies authority to divide the State into distinct PSAs 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) 176 to the Assistant Secretary for Aging who must then afford the entity an opportunity for a hearing pursuant to section 305(b)(4) 177 of the Act. There have historically been 174 Id. 175 Id. section 3025(b). section 3025(a)(1)(E). 176 Id. 172 42 U.S.C. 3025(a). VerDate Sep<11>2014 20:33 Feb 13, 2024 173 Id. Jkt 262001 PO 00000 section 3025. Frm 00028 Fmt 4701 177 Id. Sfmt 4700 E:\FR\FM\14FER4.SGM section 3025(b)(4). 14FER4 Federal Register / Vol. 89, No. 31 / Wednesday, February 14, 2024 / Rules and Regulations ddrumheller on DSK120RN23PROD with RULES4 very few appeals under section 305(a)(1)(E).178 Through this provision, appeals of State agency decisions for designation of PSAs are 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 change aligns with §§ 1321.23 and 1321.39. We believe it continues to fulfill the Act’s mandate to provide an 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 and AAAs and is aligned with the intent of the Act. Comment: We received comments supporting PSA designation appeals to the DAB. We also received comments requesting additional clarification. Response: ACL intends for appeals regarding any PSAs, including those in which an interstate Indian reservation is located, as set forth in § 1321.15 (Interstate planning and service area) to be considered by the DAB. We have revised § 1321.17 to clarify that PSA designation changes may be appealed. As stated in § 1321.17(b), ‘‘Any applicant for designation as a planning and service area whose application is denied, and who has been provided a hearing and a written decision by the State agency, may appeal the denial to the Departmental Appeals Board (DAB)[.]’’ Any applicant includes Tribes who apply. § 1321.19 Designation of and Designation Changes to Area Agencies Section 1321.33 of the existing regulation (Designation of area agencies) is redesignated here as § 1321.19 and is retitled to better reflect the content of the revised provision. Section 305(b) of the Act requires State agencies not located in single PSA States to designate a AAA to serve each PSA.179 We specify that only one AAA shall be designated to serve each PSA and that an organization may be designated as a AAA for more than one PSA. 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 178 Id. 179 Id. section 3025(a)(1)(E). section 3025(a). VerDate Sep<11>2014 20:33 Feb 13, 2024 coordinated community-based systems in, or serving, each community in the PSA. 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. We 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 a AAA (i.e., 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 provide greater clarity to assist State agencies in understanding the designation process pursuant to section 305 of the Act and the types of agencies permitted by the Act to serve as AAAs.180 Consistent with the Act’s requirements, we retain the existing restriction against a regional or local State office serving as a AAA, and the provision continues to reference the State agency’s obligations under section 305 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.181 Comment: We received comments in support of these clarifying provisions. We received suggestions for additional language and a recommendation that further regulation and oversight be added when an area agency on aging serves more than one PSA. Response: ACL appreciates these comments. We expect that State agencies will exercise appropriate oversight of each PSA. We have revised this provision to clarify that an area agency that serves more than one PSA must maintain separate funding, planning, and advocacy responsibilities for each PSA. For consistency, we similarly revised § 1321.49 (Intrastate funding formula), § 1321.61 (Advocacy responsibilities of the area agency), § 1321.63 (Area agency advisory council), and § 1321.65 (Submission of an area plan and plan amendments to the State agency for approval). 180 Id. section 3025. 181 Id. Jkt 262001 PO 00000 Frm 00029 Fmt 4701 Sfmt 4700 11593 § 1321.21 Withdrawal of Area Agency Designation Section 1321.35 of the existing regulation (Withdrawal of area agency designation) is redesignated here as § 1321.21. We include changes to paragraph (a) to clarify the circumstances under which a State agency may withdraw a AAA designation. These include failure to comply with all applicable Federal requirements or policies and procedures established and published by the State agency; a State agency decision to change one or more PSA designations; and a AAA voluntary request for withdrawal of their designation. In paragraph (b) we include a clarification that changes to the designation of a AAA must be included in the State plan on aging or an amendment to the State plan, with appropriate cross-references. In paragraph (d) we detail that a State agency may request an extension of time to perform the responsibilities of a 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. Comment: We received comments expressing appreciation for the clarifications made in this section. We also received a concern that an attempt to procure a new AAA no less than once per State plan on aging period was too long. Response: We appreciate these comments. We have modified the final rule to remove the following sentence from § 1321.21(d)(3), ‘‘Reasonable attempts include conducting a procurement for an applicant to serve as an area agency no less than once per State plan on aging period.’’ The requirement for the Assistant Secretary for Aging to approve any extensions will allow for the Assistant Secretary for Aging to determine if an extension is appropriate. We decline to make any other changes to this provision and will provide technical assistance, as appropriate. § 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 § 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 State agencies regarding the formulation, duration, and formatting of State plans. E:\FR\FM\14FER4.SGM 14FER4 11594 Federal Register / Vol. 89, No. 31 / Wednesday, February 14, 2024 / Rules and Regulations Comment: ACL received comments in support of this provision, as well as recommendations regarding implementation of this provision. One commenter also recommended additional coordination opportunities relating to State plans on aging. Response: ACL appreciates these comments. We intend to provide technical assistance regarding implementation of this provision and additional coordination opportunities that may be available as State agencies develop their State plans on aging. ddrumheller on DSK120RN23PROD with RULES4 § 1321.27 Content of State Plan Section 1321.17 of the existing regulation (Content of the State plan) is redesignated here as § 1321.27. As part of their responsibilities, State agencies must develop and administer a multiyear State plan on aging. The State plan delineates goals and objectives related to assisting older individuals and family caregivers and serves as a blueprint for achieving the goals and objectives during the plan period. Section 307 of the Act sets forth requirements that State plans must meet and content that must be included in the State plan and authorizes the Assistant Secretary for Aging to prescribe criteria for State plan development and content.182 We also include 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 in States with multiple PSAs; explain how individuals with greatest economic need and greatest social need are determined and served; include the State agency’s IFF 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, part C– 1 funds to be used as set forth in § 1321.87(a)(1)(i); 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 provision also clarifies the Assistant Secretary for Aging’s authority to establish objectives for State plans, including objectives related to Title VII of the Act. 182 42 U.S.C. 3027. VerDate Sep<11>2014 20:33 Feb 13, 2024 Jkt 262001 The State plan must define greatest economic need and greatest social need, including for the following populations: people with disabilities; people who experience language barriers; people who experience cultural, social, or geographical isolation, including due to racial or ethnic status, Native American identity, religious affiliation, sexual orientation, gender identity, or sex characteristics, HIV status, chronic conditions, housing instability, food insecurity, lack of access to reliable and clean water supply, lack of transportation, or utility assistance needs, interpersonal safety concerns, rural location; and people otherwise adversely affected by persistent poverty or inequality as the State agency defines it in the State plan. 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. The final rule establishes standard expectations for whom State agencies must include in their definitions of greatest economic need and greatest social need, while still allowing for State agencies to flexibly include other populations that are specific to their circumstances. For example, one State agency may also 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 agency may also include persons experiencing housing instability. Another State agency may not specify any additional populations to be included in their definitions of greatest economic need and greatest social need at the State plan level but encourage such additions at the area plan level (for which we further discuss requirements in § 1321.65). We also specify that upon identifying the populations of greatest economic need and greatest social need, the State plan must include how the State agency will target services to these populations, including how funds under the Act may be distributed in accordance with listed IFF or funds distribution plan requirements at § 1321.49 or § 1321.51, respectively. For example, a State agency may specify that it will use one factor based on the low-income and rural population of individuals age 60 and older in its IFF to meet populations identified as in greatest economic need and greatest social need. Another State PO 00000 Frm 00030 Fmt 4701 Sfmt 4700 agency may use two separate factors, one for low-income individuals age 60 and older and another for rural individuals age 60 and older. These State agencies may use methods other than IFFs or funds distribution plans for targeting services to those with certain dietary requirements, experiencing housing instability, and as determined at the area plan level. 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 are also 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 systems and services 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. The final rule requires State agencies 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 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, part B supportive services, under limited circumstances. The final rule requires State agencies 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), consistent with the legal assistance section at § 1321.93.183 The provision also includes a new requirement for State agencies to provide certain information regarding any permitted use of Title III, part C–1 funds (funds for meals served in a congregate setting) for shelf-stable, pickup, carry-out, drive-through, or similar meals, as permitted by new § 1321.87(a)(1)(i). 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 Public Health Emergency (PHE), ACL provided guidance on innovative, permissible service delivery options that grantees could use to provide meals to older individuals and other eligible recipients of homedelivered meals with Title III, part C–2 183 Id. E:\FR\FM\14FER4.SGM section 3027(a)(2)(C). 14FER4 Federal Register / Vol. 89, No. 31 / Wednesday, February 14, 2024 / Rules and Regulations ddrumheller on DSK120RN23PROD with RULES4 funds.184 In response to comments from grantees and interested parties on the RFI, we included a new provision at § 1321.87 to allow these meal delivery methods through the use of Title III, part C–1 congregate meal funds, subject to certain terms and conditions. As this represents an expansion of the permitted use of congregate meals funds, State agencies must provide information about this use of Title III, part 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 so that ACL will be aware of the extent to which State agencies plan to implement this new allowable use of Title III, part C–1 funds. We remove redundant provisions in § 1321.27 that are addressed in other more appropriate sections of the revised regulation (such as requirements related to State agency policies, voluntary contributions, and means testing, which are addressed in § 1321.9). We also make minor revisions to the provision to remove outdated references. Comment: We received comments expressing support for this provision and for service to persons in greatest economic need and greatest social need. Commenters also shared concerns about how State agencies and AAAs can serve all the populations listed and how they will measure whether the targeted populations are being served, given lack of funding, incomplete data sources, and data privacy concerns. Response: ACL appreciates these comments and concerns related to how to provide targeted services given limited funds and how to use data appropriately and sensitively. We expect State agencies to: (1) identify and consider populations in greatest economic need and greatest social need; (2) describe how they target the identified populations for service provision; (3) establish priorities to serve one or more of the identified target populations, given limited availability of funds and other resources; (4) establish methods for serving the prioritized populations; and (5) use data to evaluate whether and how the prioritized populations are being served. For the first step, the State agency must assess and identify populations in greatest economic need and greatest 184 For example, Reopening Considerations for Senior Nutrition Programs (April 2021), available at https://acl.gov/sites/default/files/programs/Senior_ Nutrition/SNP_ReopeningConsiderations.Final.pdf; and, Congregate or Home-Delivered Meal Decision Tree (June 2022), available at https://acl.gov/sites/ default/files/nutrition/ Title%20III%20C1%20and%20C2 %20Service%20Delivery%20Decision %20Tree%206.15.22%20508.pdf. VerDate Sep<11>2014 20:33 Feb 13, 2024 Jkt 262001 social need within the State. For example, a State agency may review demographic and service data; engage in Tribal consultation; conduct needs assessments with older adults, family caregivers, and other community members; hold public hearings; and accept other feedback in determining how the State agency will define populations in greatest economic need and greatest social need. A State agency must establish a definition to include those populations identified pursuant to § 1321.27(d)(1) and also could include formerly incarcerated individuals as a population in greatest social need. Next, the State agency must describe how it will target each of the populations included in the definitions of greatest social need and greatest economic need for service delivery. This description may be combined with the determination of priority populations outlined in the next paragraph. For example, the State agency might explain that it will market the availability of OAA services to statewide advocacy groups serving each of the populations identified pursuant to § 1321.27(d). The State agency could describe its plans to issue a monthly newsletter, highlighting a different targeted population each month. For the third step, the State agency could determine that of the populations included in its definition, it will prioritize people living at or below 100 percent of the FPL; communities that experience isolation due to racial or ethnic status, Native American identity, sexual orientation, gender identity, or sex characteristics, and rural location; as well as formerly incarcerated individuals. The State agency might decide to prioritize these communities because of the State’s demographics, resources, and needs; information that should be collected consistent with the practices established through the State agency’s policies and procedures (§ 1321.9(c)(3)); review of area plans (§ 1321.27(c)); and public participation process (§ 1321.29). For the fourth step (establishing methods to serve the prioritized populations), we note that distributing funds under an IFF or funds distribution plan is an important strategy, but not a required or exclusive one. To clarify this, ACL has modified the provision at § 1321.27(d)(2) to state, ‘‘The methods the State agency will use to target services to the populations identified in § 1321.27(d)(1), including how funds under the Act may be distributed to serve prioritized populations in accordance with requirements as set forth in § 1321.49 or § 1321.51, as appropriate.’’ PO 00000 Frm 00031 Fmt 4701 Sfmt 4700 11595 For example, the State agency might use multiple methods to serve the priority populations in the example above. To serve minority individuals and people living at or below 100 percent of the FPL, the State agency might use an IFF factor based on Census data, along with a base amount of funding to ensure service to people living in rural areas. In addition, the State agency might target services to formerly incarcerated individuals by partnering with organizations providing re-entry services, developing referral protocols, and amending a statewide intake form to include optional disclosure of membership in this population. Finally, the State might focus services to LGBTQI+ older adults and family caregivers, by conducting trainings for service providers, offering outreach events in each PSA in the State, and updating their web page, social media accounts, and other materials. For the final step, the State agency would collect data to evaluate its success in its targeting and prioritization efforts. Data collection and analysis efforts may encompass a number of quantitative and qualitative methods to determine the success of efforts, such as counting leading indicators like the number of new partnerships implemented; analyzing output data, such as the number of activities taking place in certain settings and/or focused toward prioritized populations; reviewing demographic data of individual program participants collected (which may or may not be reported in the State Program Report or other data collection that the State agency may require); conducting focus groups of service recipients and/or service providers; and completing outcome surveys with service recipients or community leaders. In any such data collection efforts, provisions of § 1321.75 (Confidentiality and disclosure of information) apply. Comment: One commenter would like to see language added directing State agencies to include solo older adults as a target audience in their State plan, including how such individuals will be identified and served. Additionally, the commenter would like State agencies to identify amounts of funds to be directed toward meeting the needs of solo older adults. Response: ACL appreciates this comment and recognizes that older adults living alone are a frequently prioritized population for provision of OAA services. In fact, a number of State agencies use the number of individuals within a PSA who are ‘‘Living Alone’’ as a single or combined factor in E:\FR\FM\14FER4.SGM 14FER4 ddrumheller on DSK120RN23PROD with RULES4 11596 Federal Register / Vol. 89, No. 31 / Wednesday, February 14, 2024 / Rules and Regulations distributing funds under their IFF, consistent with § 1321.49. We recognize that persons living alone may be included in the target populations that State agencies or AAAs may define under § 1321.27(d)(1) and § 1321.65(b)(2)(i), respectively. Given that State agencies may consider and use various factors in distributing funds via an IFF or funds distribution plan (per § 1321.49 or § 1321.51(b)), and service providers may receive funds to serve various priority populations, we do not believe it would be feasible to identify specific amounts of funds to be directed toward meeting the needs of such individuals. However, we note that if ‘‘solo older adults,’’ individuals living alone, or some other priority population is defined by a State agency or a AAA, the State agency or a AAA should explain how such individuals will be served, which may include how funds are distributed. Comment: In response to ACL’s solicitation of input on ways ACL and State agencies can support improvements in I&A/R systems, one commenter highlighted the potential value of having one I&A/R database system for all AAAs and/or the entire aging network in a State, as well as potential added enhancements such as an internal referral system from one service area to another along with community resources. The commenter recommended one-time contract investments to secure such a system. Another commenter noted that improvements in I&A/R systems are not limited to State agencies and recommended that the contributions of AAAs and others be recognized and encouraged. Response: ACL appreciates this feedback and notes that such investments may be considered match, subject to § 1321.9(c)(2)(ii). Additionally, a State agency may establish policies and procedures requiring use of a standardized database system as set forth in § 1321.73. ACL enthusiastically recognizes and encourages the innovations of AAAs, service providers, and others in modernization and innovation efforts in provision of services under the Act. Comment: We received a comment recommending that the State agency communicate with Tribes, Tribal organizations, and native communities regarding how greatest economic need and greatest social need are determined and addressed, including regarding the provision at § 1321.27(d). Response: We appreciate this comment and have revised the provision at (g) to add that the determination of greatest economic need VerDate Sep<11>2014 20:33 Feb 13, 2024 Jkt 262001 and greatest social need specific to Native American persons is identified pursuant to communication among the State agency and Tribes, Tribal organizations, and Native communities. Comment: A commenter was concerned that § 1321.27 is overly prescriptive. Response: 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 of the Act sets forth requirements that State plans must meet and content that must be included and authorizes the Assistant Secretary for Aging to establish criteria for State plan development and content.185 State agencies have considerable discretion in developing goals, objectives, and strategies for the State plan, in establishing the IFF or resource allocation plan (as applicable), and in prioritizing and reaching targeted populations for service delivery. Comment: A commenter recommended we require State agencies to demonstrate outreach to older Native Americans who do not live on Tribal lands in addition to coordination with Title VI programs. Response: ACL appreciates this comment. We note that § 1321.27(d)(1) requires the inclusion of those who experience isolation due to their Native Americans identity in the State agency’s definition of populations in the greatest economic need and greatest social need that must be addressed in the State plan. Native Americans, as defined in the rule, are not limited to Native Americans who live on Tribal lands. We have revised this provision to read, ‘‘[. . .] where there are older Native Americans in any planning and service area, including those living outside of reservations and other Tribal lands.’’ Comment: ACL received comments with recommendations of topics that should be required to be included in State plans, such as aligning State plans with master plans for aging, age-friendly initiatives, and No Wrong Door systems; 186 and encouraging intergenerational programming. section 3027. No Wrong Door (NWD) System initiative is a collaborative effort of ACL, the Centers for Medicare & Medicaid Services (CMS), and the Veterans Health Administration (VHA). The NWD System initiative builds upon the Aging and Disability Resource Center (ADRC) program and CMS’ Balancing Incentive Program No Wrong Door requirements that support state efforts to streamline Response: 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 of the Act sets forth requirements that State plans must meet and content that must be included and authorizes the Assistant Secretary for Aging to establish criteria for State plan development and content.187 In response to the RFI and other requests for clarification, we establish additional required core elements for the State plan in § 1321.27, including that the State plan: must provide evidence that it is informed by, and based on, area plans in States with multiple PSAs; explain how individuals with greatest economic need and greatest social need are identified and served; include the State agency’s IFF 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, part C– 1 funds to be used as described in § 1321.87(a)(1)(i); 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. This provision also clarifies the Assistant Secretary for Aging’s authority to establish objectives for State plans, including objectives related to Title VII of the Act. Significant issues that should be addressed through State plans will change over time, and conditions will vary from one State to another. For these reasons, we decline to establish additional specific content requirements for State plans through regulation. Comment: Regarding § 1321.27(j), which addresses the permitted use, subject to certain terms and conditions, of Title III, part C–1 funds (funds for 185 Id. 186 The PO 00000 Frm 00032 Fmt 4701 Sfmt 4700 access to long-term services and support (LTSS) options for older adults and individuals with disabilities. NWD Systems simplify access to LTSS, and are a key component of LTSS systems reform. For more information, see: https://acl.gov/ programs/connecting-people-services/aging-anddisability-resource-centers-programno-wrong-door. 187 42 U.S.C. 3027. E:\FR\FM\14FER4.SGM 14FER4 Federal Register / Vol. 89, No. 31 / Wednesday, February 14, 2024 / Rules and Regulations ddrumheller on DSK120RN23PROD with RULES4 meals served in a congregate setting) for shelf-stable, pick-up, carry-out, drivethrough, or similar meals, a commenter requested clarification as to how to project that the provision of such meals will enhance, rather than diminish the congregate meal program. Response: ACL will address this comment through technical assistance, as needed. Comment: A commenter noted that § 1321.27(c) requires that all State plans are to be informed by and based on area plans, while single PSA States have no area plans. Response: We appreciate this comment and have revised the provision to clarify. Comment: ACL received suggestions, recommendations, and implementation questions regarding § 1321.27(h), which addresses requirements related to program development and coordination activities. Some comments requested that use of funds in this manner not be subject to public review and comment requirements. Response: This provision does not substantively change the requirements for use of Title III–B funds for program development and coordination activities in the existing regulation. Because this provision allows for use of funds that would otherwise be required to be used for direct services to older adults to be used for program development and coordination purposes, we believe it is appropriate to retain the public review and comment requirement. ACL will address other questions regarding this provision through technical assistance, as needed. § 1321.29 Public Participation Section 1321.27 of the existing regulation (Public participation) is redesignated here as § 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.188 Subsections 1321.29(a) and (b) set forth obligations for public input, including that opportunities for public participation should occur periodically (at a minimum, once each fiscal year) 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 and the NPRM, we have revised this provision to clarify that the public must be given a reasonable minimum period 188 Id. VerDate Sep<11>2014 of time (at least 30 calendar days, unless a waiver has been granted by the Assistant Secretary for Aging) 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. Comment: We received comments from individual older adults expressing they feel unheard and that there are not sufficient opportunities to provide input. Response: We appreciate the feedback from individual older adults, especially those who wish to be engaged in planning efforts for services under the Act. Sections 1321.29 (Public participation) and 1321.65(b)(4) (Submission of an area plan and plan amendments to the State agency for approval) are intended to make clear the importance of soliciting and using feedback from individual older adults and family caregivers. Comment: ACL received several comments requesting more specificity and direction regarding the requirement that State agencies obtain input on a periodic basis. Response: Section 307(a)(4) of the Act requires that State agencies procure public input on a ‘‘periodic’’ basis.189 The final rule defines ‘‘periodic’’ (at a minimum, once each fiscal year) and sets forth minimum requirements related to data collection and client assessments, as well as State and area plans and activities thereunder. The final rule otherwise affords State agencies flexibility in determining how to meet this requirement; ACL declines to impose additional conditions for State agencies to meet this requirement, as circumstances may vary from one State to another. Comment: ACL received comments requesting additional direction to State agencies in § 1321.29 to ensure that individuals from underserved communities, as well as Tribal governments, have an opportunity to participate. Response: ACL appreciates the comments and confirms § 1321.29 requires State agencies to focus on those in greatest economic need and in greatest social need in seeking public input, and the definition of greatest social need includes Native Americans. Comment: One commenter requested that the public participation requirements of § 1321.29 also apply to area agencies. Another commenter recommended that ACL require each 189 Id. 20:33 Feb 13, 2024 Jkt 262001 PO 00000 section 3027(a)(4). Frm 00033 Fmt 4701 Sfmt 4700 11597 State agency to implement standard area plan needs assessment and data tools for use by all area agencies in the State. Response: Section 1321.65 requires State agencies to have in place requirements for public input with respect to area plans. ACL declines to impose additional requirements as to how State agencies must cause area agencies to seek public input, as conditions may vary from one State to another and from one region of a State to another. Accordingly, ACL maintains the regulatory text in § 1321.29. § 1321.31 Amendments to the State Plan Section 1321.19 of the existing regulation (Amendments to the State plan) is redesignated here as § 1321.31. We make 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 for Aging and which only need to be submitted for purposes of notification. Amendments requiring prior approval are those necessary to reflect new or revised statutes or regulations as determined by the Assistant Secretary for Aging; an addition, deletion, or change to a State agency’s goal, assurance, or information requirement statement; a change in the State agency’s IFF or funds distribution plan for Title III funds; a request to waive State plan requirements; or other required changes. 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; distribution of State plan administration funds for demonstration projects; a change in a PSA designation; a change in AAA designation; or exercising of major disaster declaration flexibilities, as set forth in § 1321.101. We also make minor revisions to reflect statutory updates. Comment: Several commenters expressed concern regarding delayed response times due to State plan amendment requirements for funding set aside to address disasters. We also received comments requesting that we clarify the timeframes for State plan amendment submissions in § 1321.31(b). Response: As set forth in this provision and in § 1321.101, the State plan amendment required when using funds set aside to address disasters does not require prior approval by the Assistant Secretary for Aging. ACL intends this requirement to facilitate E:\FR\FM\14FER4.SGM 14FER4 11598 Federal Register / Vol. 89, No. 31 / Wednesday, February 14, 2024 / Rules and Regulations ddrumheller on DSK120RN23PROD with RULES4 transparency and communication in times of emergency and disaster and does not intend to delay response times. Through this requirement we intend to ensure that a State agency’s plan on aging accurately reflects current circumstances, facilitates communication, and promotes transparency. We have revised § 1321.31(b) to read ‘‘[. . .] whenever necessary and within 30 days of the action(s) listed in (1) through (6) of this paragraph[.]’’ For clarity, we have removed the redundant provision at § 1321.31(b)(6) and renumbered accordingly. We have also amended the other provisions of § 1321.31(b) for consistency. Comment: ACL received a comment requesting guidance regarding the timing for State plan amendments that may be required as a result of the implementation of this final rule. One commenter requested clarification as to what would constitute ‘‘[a] significant change in a State law, organization, policy, or State agency operation’’ as set forth in § 1321.31(b)(1). ACL also received a comment inquiring as to the status of the guidelines prescribed by the Assistant Secretary for Aging, referred to in § 1321.31(c), regarding the submission of information required by § 1321.31. Response: This final rule is effective 30 days after publication in the Federal Register. In consideration of comments related to the time required for implementation of the rule, we have decided to delay the compliance date of this rule until October 1, 2025. This will allow time for State agencies to incorporate the requirements of this final rule into State plan amendments, as needed, by October 1, 2025. ACL will address these comments further through technical assistance, as needed. § 1321.33 Submission of the State Plan or Plan Amendment to the Assistant Secretary for Aging for Approval Section 1321.21 of the existing regulation (Submission of the State plan or plan amendment to the Commissioner for approval) is redesignated here as § 1321.33 and has been retitled to reflect statutory 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. Previously, the regulations required State agencies to submit a plan or amendment for approval, signed by the VerDate Sep<11>2014 20:33 Feb 13, 2024 Jkt 262001 Governor or the Governor’s designee, 45 calendar days prior to its proposed effective date. This 45-day period does not provide adequate time for proper Regional Office review and provision of appropriate technical assistance, for the State agency then to make any changes that are required, and for the State agency 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 agency, such as a lapse in funding under the Act. In addition, if a State agency 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 for Aging’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 aim 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 calendar 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. Comment: ACL received several comments expressing concern that the requirement under § 1321.33(b) to submit a draft for review at least 120 calendar days prior to the proposed effective date is too burdensome. Response: We appreciate these concerns but retain the requirement that drafts be submitted at least 120 calendar days prior to the proposed effective date of the plan or amendment. We have added clarification that the plan be submitted at least 90 calendar days before the proposed effective date of the plan or plan amendment. Submission of a draft is necessary to provide sufficient time for review and revision before the 90-day deadline to submit the plan or plan amendment to the Assistant Secretary for Aging. We understand from comments that there may be exceptional circumstances that could prevent a State agency from being able to meet the 120- and 90-day time frames. In response to these concerns, § 1321.33(b) permits State agencies to request a waiver from the Assistant Secretary for Aging in the event of exceptional circumstances. We have added similar language to allow for a PO 00000 Frm 00034 Fmt 4701 Sfmt 4700 similar waiver with respect to the 90day time frame. § 1321.35 Notification of State Plan or State Plan Amendment Approval or Disapproval for Changes Requiring Assistant Secretary for Aging Approval The provision contained in § 1321.23 of the existing regulation (Notification of State plan or State plan amendment approval) is retitled and redesignated here as § 1321.35. We also make changes to § 1321.35(b) for consistency with other related provisions that address appeals to the Assistant Secretary for Aging regarding disapproval of State plans or amendments. Comment: Several commenters requested that ACL commit to either an estimated or a specific response time frame for State plan and State plan amendment submissions that require prior approval. Response: ACL will use reasonable efforts to respond to State plan and State plan amendment submissions that require prior approval within 90 calendar days of receipt. This general timeframe may not be suitable in every case, as there may be conditions that warrant additional time for review. Examples of factors that may cause delays beyond these 90 days include incomplete or incorrect State plan or State plan amendment submissions and need for consultation or coordination with parties outside of ACL. § 1321.39 Appeals to the Departmental Appeals Board Regarding State Plan on Aging Section 1321.77 of the existing regulation (Scope) is redesignated here at § 1321.39, retitled, and modified. Sections 305 190 and 307 191 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) 192 the Assistant Secretary for Aging shall not make a final determination disapproving any State plan, or any modification thereof, or make a final determination that a State agency is ineligible under section 305,193 without first affording the State agency reasonable notice and opportunity for a hearing. In the past, the Assistant Secretary for Aging would have facilitated the appeals process. Consistent with § 1321.17 and new § 1321.23, appeals have been delegated to DAB in 190 42 U.S.C. 3025. U.S.C. 3027. 192 Id. section 3027(c)(1). 193 42 U.S.C. 3025. 191 42 E:\FR\FM\14FER4.SGM 14FER4 Federal Register / Vol. 89, No. 31 / Wednesday, February 14, 2024 / Rules and Regulations 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 agency 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. § 1321.41 When a Disapproval Decision Is Effective In this section, redesignated from existing § 1321.79, retitled, and modified, we remove reference to the ‘‘Commissioner for Aging’’ and replace it with ‘‘the Departmental Appeals Board’’ to align with changes made to § 1321.39. § 1321.43 How the State Agency May Appeal the Departmental Appeals Board’s Decision In this section, redesignated from § 1321.81 and retitled, we remove reference to the ‘‘Commissioner for Aging’’ and replace it with ‘‘the Departmental Appeals Board’’ to align with changes made to § 1321.39. ddrumheller on DSK120RN23PROD with RULES4 § 1321.45 How the Assistant Secretary for Aging May Reallot the State Agency’s Withheld Payments The provision contained in § 1321.83 of the existing regulation (How the Commissioner may reallot the State’s withheld payments) is redesignated here as § 1321.45. The provision has been retitled, and minor, non-substantive changes have been made to the provision to reflect statutory updates. § 1321.49 Intrastate Funding Formula The provision contained in § 1321.37 of the existing regulation (Intrastate funding formula) is redesignated here as § 1321.49. In states with multiple PSAs, State agencies provide funding to AAAs through the IFF. Section 305 of the Act sets forth requirements for the IFF while, at the same time, affording State agencies some flexibilities in its development and implementation.194 The changes to this provision are designed to assist State agencies in developing IFFs in compliance with the Act’s requirements; to clarify the 194 Id. VerDate Sep<11>2014 options available to State agencies; and to aid them in implementation of their IFFs. In paragraph (a), we specify that the State agency must include the IFF in the State plan, in accordance with guidelines issued by the Assistant Secretary for Aging 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 per section 362 of the Act.195 In paragraph (b) we clarify the elements of the IFF. The elements include a descriptive statement and application of the State agency’s definitions of greatest economic need and greatest social need; a statement that discloses any funds deducted for allowable purposes of State plan administration, the Ombudsman program, or disaster set aside funds, as set forth in § 1321.99; whether a separate formula for evidence-based disease prevention and health promotion is used; how the NSIP 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 of the data to be used for each PSA in the State; a statement of the allocation of funds to each PSA in the State; and the source of the best available data used to allocate the funding. In paragraph (c) we identify prohibitions related to the IFF. Prohibitions include that the State agency may not: withhold funds from distribution through the formula, except where expressly allowed for State plan administration, disaster set aside funds as set forth at § 1321.99, or the Ombudsman program; exceed State plan and area plan administration caps as detailed at § 1321.9(c)(2)(iv); use Title III, part 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, part B Ombudsman program funds, and disaster set-aside funds as set forth in § 1321.99; and use funds in a manner that is in conflict with the Act. In paragraph (d) we specify other requirements that apply to distribution of NSIP 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 195 42 20:33 Feb 13, 2024 Jkt 262001 PO 00000 U.S.C. 3030n. Frm 00035 Fmt 4701 Sfmt 4700 11599 (e) we state that Title VII funds or Title III, part 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, part B Ombudsman program and disaster set-aside funds. We include 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. Revisions to paragraph (f) reflect statutory updates and cross-reference to other provisions within the regulation. Comment: A commenter observed that § 1321.49(a) states, ‘‘The formula shall reflect the proportion among the planning and service areas of persons age 60 and over in greatest economic need or greatest social need[.]’’ The commenter noted that the phrase should read instead ‘‘greatest economic need and greatest social need.’’ Response: ACL appreciates this comment and has made the revision. Comment: Some commenters expressed that ACL should consider allowing other examples of ‘‘best available data’’ that capture experiences of LGBTQI+ populations. Response: ACL appreciates the comment but does not believe any changes to the rule are necessary. Section 1321.49(b)(5) allows for ‘‘[o]ther high quality data available to the State agency’’ to be used in the IFF. Comment: Some commenters expressed a need for a transparent process for the development of the IFF in a State, and more transparency in the content of the IFF. Other commenters requested clarification when a AAA serves more than one PSA. Response: ACL appreciates these comments. The provision at § 1321.49 requires the IFF to be developed in consultation with the State’s area agencies, requires the proposed IFF to be published for public review and comment, and includes a list of specific information that must be included in an IFF. In response to comments, we have clarified that the public must be given a reasonable minimum period of time (at least 30 calendar days, unless a waiver has been granted by the Assistant Secretary for Aging) for review and comment. ACL declines to further dictate a specific process for the procurement of public input in a proposed IFF, as conditions may vary from one State to another. Instead, ACL leaves it to the discretion of each State agency to determine an appropriate public input process. ACL further believes the information required by E:\FR\FM\14FER4.SGM 14FER4 11600 Federal Register / Vol. 89, No. 31 / Wednesday, February 14, 2024 / Rules and Regulations ddrumheller on DSK120RN23PROD with RULES4 § 1321.49 to be included in the IFF provides for adequate transparency. Aside from clarifying the minimum reasonable period of time for public comment, ACL maintains the regulatory language as proposed. We expect that State agencies will exercise appropriate oversight of each PSA, and we agree that additional clarification of expectations for area agencies on aging that serve more than one PSA could be helpful. Therefore, we have clarified that the requirements under § 1321.49 should be, ‘‘specific to each planning and service area.’’ For consistency, we have similarly revised § 1321.19 (Designation of and designation changes to area agencies), § 1321.61 (Advocacy responsibilities of the area agency), § 1321.63 (Area agency advisory council), and § 1321.65 (Submission of an area plan and plan amendments to the State agency for approval) regarding specificity to each PSA. Comment: Some commenters expressed concerns as to particular populations that they felt should be considered in an IFF. One commenter suggested prohibiting State agencies from considering OAA Title VI awards in their States in considering how to allocate Title III funding via the IFF. Response: ACL appreciates these comments but declines to revise § 1321.49, because it already contains a mechanism to address these concerns via the IFF development process and the requirement for public input. However, ACL confirms that Title III funds must supplement, not supplant, Title VI funds and that Title VI funds should not be considered to be ‘‘in place of’’ or a substitute for Title III funding to serve those prioritized as being in the greatest economic need and greatest social need. Comment: ACL received comments and questions related to the process involved in revising an IFF, how often IFF demographic data should be updated, and the disbursement of NSIP funds. Response: ACL will address these comments and questions through technical assistance, as needed. § 1321.51 Single Planning and Service Area States The provision contained in § 1321.41 of the existing regulation (Single state planning and service area) is redesignated here as § 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 PSA, to continue as a single PSA if the State agency met certain requirements. Only State agencies VerDate Sep<11>2014 20:33 Feb 13, 2024 Jkt 262001 currently designated as a single PSA State may have such status; accordingly, we remove this language and clarify the specific requirements that apply to operating as a single PSA State. Single PSA States are addressed elsewhere in our final regulations, including definitions in § 1321.3 and regarding designation of and changes to PSAs in § 1321.13. Based on questions we have received from such State agencies, we detail clarifications that single PSA State agencies must meet requirements for AAAs, unless otherwise specified. In paragraph (b), we clarify that single PSA State agencies, as part of their State plan, must include a funds distribution plan that mirrors many of the requirements of the IFF for States with multiple PSAs, minus distribution to AAAs. The State agency 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).196 In paragraph (c) we set forth that single PSA State agencies may revise their funds distribution plans, subject to their policies and procedures and prior approval of the Assistant Secretary for Aging. In response to comments, we have specified that the public be given a reasonable minimum period of time (at least 30 calendar days, unless a waiver has been granted by the Assistant Secretary for Aging) for review and comment of any proposed changes to the funds distribution plan. We include these changes to promote transparency and good stewardship of public funds. Revisions also are made to reflect statutory updates. Subpart C—Area Agency Responsibilities § 1321.55 Mission of the Area Agency The provision contained in § 1321.53 of the existing regulation (Mission of the area agency) is redesignated here as § 1321.55. This provision specifies the AAA’s mission, role, and functions as the lead on aging issues in its PSA 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 196 42 PO 00000 U.S.C. 3027(a)(8)(A). Frm 00036 Fmt 4701 Sfmt 4700 language set forth in § 1321.53(c) regarding a 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) of the Act.197 Focal points in previous § 1321.53(c) focused on the need for brick-and-mortar facilities such as multipurpose senior centers. In light of the social service systems climate in which AAAs operate today, the existing language limiting these focal points to facilities could impede a AAA’s ability to develop and enhance comprehensive and coordinated community-based systems in, or serving, its PSA, as contemplated by the Act. Accordingly, we remove the language from this paragraph related to a AAA’s obligations with respect to focal points. We also make 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 amendments) and to emphasize the Act’s aim that priority be given to serving older adults with greatest economic need and greatest social need. Comment: ACL received several comments about the redesignation of § 1321.53 to § 1321.55 and the removal of focal points, which in prior regulations were identified as facilities ‘‘[. . .] established to encourage the maximum collocation and coordination of services for older individuals[.]’’ Many of these commenters voiced support for the removal of focal points to encourage maximum flexibility for area agencies to engage a broad range of community-based partners to provide OAA services. Additional commenters expressed concern about the removal of the language because of concerns about the impact on current brick-and-mortar multipurpose senior centers. One commenter specifically requested retaining ‘‘special consideration’’ of multipurpose senior centers and updating to provide flexibility to designate an entity rather than a facility, which can include virtual focal points. Response: As commenters noted, the removal of focal points recognizes the shifting social services environment and promotes flexibility surrounding the development of community-based systems that reflect the needs of a AAA’s PSA. The rule removes an obligation for all AAAs to establish and maintain brick-and-mortar facilities, though it does not preclude any AAA from operating multipurpose senior centers based upon a determination of the needs of their individual PSAs. 197 42 E:\FR\FM\14FER4.SGM U.S.C. 3026(a). 14FER4 ddrumheller on DSK120RN23PROD with RULES4 Federal Register / Vol. 89, No. 31 / Wednesday, February 14, 2024 / Rules and Regulations Thus, we maintain the regulatory language for § 1321.55 to provide AAAs the flexibility to develop and enhance a comprehensive and coordinated community-based system, which may include multipurpose senior centers, that meets the needs of their PSA. Comment: Some commenters requested a definition of ‘‘communitybased system’’ in § 1321.55(a). Other commenters recommended adding ‘‘implementation’’ to the mission of the area agency on aging and voiced concern that consumers will not be impacted unless implementation also occurs. Response: We appreciate these comments, but retain the text as proposed. Section 1321.55(b) details general requirements for comprehensive and coordinated community-based systems and give an area agency the discretion to decide additional details of their comprehensive and coordinated community-based system as it pertains to the needs of their PSA. Comment: Some commenters sought more clarity in § 1321.55(b)(3) and asked what it means to assure that the range of available public and private long-term care services and support options are readily accessible to all older persons and their family caregivers, no matter their income. Others shared concerns about assuring resources given that the accessibility of publicly funded services and programs is dependent upon available funding. One commenter specifically requested that ACL shift the language from ‘‘[a]ssure that these options are readily accessible [. . .]’’ to ‘‘prioritize making these options readily accessible.’’ Response: ACL appreciates comments regarding assurances that the range of available public and private long-term care services and support options are readily accessible to all older persons and their family caregivers, no matter their income. We are maintaining the regulatory language and emphasize that the language applies to available public and private long-term care services and support options. Comment: Some commenters asked ACL to clarify what it means to ‘‘offer special help or targeted resources’’ for the most vulnerable older persons, family caregivers, and those in danger of losing their independence under § 1321.55(b)(6). Response: ACL appreciates these comments and reiterates that an area agency must prioritize services and supports for eligible populations with the greatest economic and greatest social need. ACL will provide technical assistance related to offering special help or targeted resources to people VerDate Sep<11>2014 20:33 Feb 13, 2024 Jkt 262001 with the greatest economic and greatest social need, including those who are most vulnerable and in danger of losing their independence. Comment: Many commenters shared concerns about § 1321.55(b)(10) related to an area agency board of directors. Several commenters recommended that ACL amend the provision to eliminate the phrase ‘‘board of directors’’ and to instead require area agencies to have an advisory council or to ‘‘engage with’’ leaders in the community, including leaders from groups identified as in the greatest economic need and greatest social need. Some commenters noted that many area agencies are part of local governments and may not have the authority to establish a board of directors. Other commenters recommended that ACL remove the requirement for a board of directors to include leaders from groups identified as in greatest economic and greatest social need. Response: ACL appreciates the comments related to the regulatory text in § 1321.55(b)(10) and notes that both governmental and not-for-profit area agencies need an entity to be responsible for governance, including legal and fiduciary responsibilities. The OAA requires area agencies to establish advisory councils which have distinct responsibilities related to the responsibilities of an area agency that are separate and apart from the governance responsibilities of a board of directors.198 We note that this provision contains only minor changes from the existing rule which stated, ‘‘(10) Be directed by leaders in the community who have the respect, capacity and authority necessary to convene all interested persons, assess needs, design solutions, track overall success, stimulate change and plan community responses for the present and for the future.’’ Thus, we decline to eliminate the regulatory text which states, ‘‘(10) Have a board of directors comprised of leaders in the community, including leaders from groups identified as in greatest economic need and greatest social need, who have the respect, capacity and authority necessary to convene all interested persons, assess needs, design solutions, track overall success, stimulate change, and plan community responses for the present and for the future.’’ We acknowledge that governance responsibilities for government-based area agencies often reside with an elected Board of Commissioners or other elected officials. In this specific 198 Id. PO 00000 section 3026(a)(6)(D). Frm 00037 Fmt 4701 Sfmt 4700 11601 governance structure, an area agency may not have authority to establish a separate board of directors for the area agency or to broaden the composition of an elected board to include leaders from groups identified as in the greatest economic and greatest social need. For this reason, ACL will provide technical assistance regarding government-based area agencies who do not have the authority to establish a separate board of directors that includes leaders of groups identified as in greatest economic need and greatest social need to ensure the needs of these populations are reflected in the composition of the board of directors for the AAA. Comment: Some commenters shared concerns related to the feasibility of monitoring an area agency under § 1321.55(d) to ensure that it is not engaging in activities that are inconsistent with the mission of the Act or State agency policies. Response: ACL appreciates comments related to ensuring that area agencies activities are in alignment with the provisions detailed in §§ 1321.55 and 1321.9. We decline to amend the regulatory language because subpart C is specific to the responsibilities of an area agency. The State agency’s responsibilities include monitoring the programs and activities initiated under part 1321, including AAA activities under this part. § 1321.57 Organization and Staffing of the Area Agency The provision contained in § 1321.55 of the existing regulation (Organization and staffing of the area agency) is redesignated here as § 1321.57. The existing language in paragraph (a)(2) of this provision prohibits a separate organizational unit within a multipurpose agency which functions as the AAA from having any purpose other than serving as a AAA. The Act promotes AAAs as innovative, collaborative organizations which adapt to ever-evolving social service, health, and economic climates. We 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 regulation (such as requirements with respect to COI) to render this restriction unnecessary. We also make a minor revision to paragraph (a)(1) to take into account the addition of family caregivers as a service population pursuant to the 2000 amendments to the Act (Pub. L. 106– 501). We also include minor revisions to this provision to update cross-references to other sections of the regulation. E:\FR\FM\14FER4.SGM 14FER4 ddrumheller on DSK120RN23PROD with RULES4 11602 Federal Register / Vol. 89, No. 31 / Wednesday, February 14, 2024 / Rules and Regulations Comment: ACL received many comments about the proposed elimination of the requirement in the prior regulation (§ 1321.55(a)(2)), which prohibited a separate organizational unit within a multipurpose agency which functions as the AAA from having any purpose other than serving as an area agency. Most of these commenters expressed support for the proposed elimination of this requirement and observed that this change reflects the range of area agency governance structures and provides an area agency the flexibility to expand service offerings and funding sources. Other commenters shared concerns about the potential for the proposed language to restrict State agency approval authority and the importance of policies and procedures for area agencies within larger multipurpose agencies. Response: As commenters noted, the elimination of the requirement referred to in the paragraph above in the prior regulation at § 1321.55(a)(2) and renumbered in this final rule as § 1321.57(a)(2) reflects the current range of area agency governance structures. It also promotes AAAs as innovative, collaborative organizations which adapt to ever-evolving social service, health, and economic climates. The elimination of this requirement provides more flexibility to AAAs to conduct their operations. ACL maintains that adequate safeguards exist in the Act and the regulations, such as requirements with respect to COI and adherence to State agency policies and procedures, to ensure that area agency activities align with the provisions detailed in § 1321.55. Comment: Some commenters requested that § 1321.57(a)(1) be amended to provide flexibility to an area agency to provide programs to other populations, beyond older adults and family caregivers, including adults with disabilities. Response: The Act provides area agencies with the statutory authority to serve adults aged 60 years and older, including those with disabilities, and their family caregivers. ACL made a minor revision to § 1321.57(a)(1) to account for the addition of family caregivers as a service population pursuant to the 2000 amendments to the Act (Pub. L. 106–501) and declines to add additional service populations because we do not have the statutory authority to do so. Comment: One commenter recommended the elimination of § 1321.57(b) due to concerns regarding the costs associated with administrative functions for area agencies. VerDate Sep<11>2014 20:33 Feb 13, 2024 Jkt 262001 Response: ACL appreciates comments regarding the financial costs associated with administrative functions of area agencies. However, in light of the area agency responsibilities detailed throughout subpart C, area agencies need adequate and qualified staff to implement the provisions throughout this subpart. For this reason, we maintain this provision as proposed. § 1321.61 Advocacy Responsibilities of the Area Agency We make 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 amendments to the Act (Pub. L. 106–501). Comment: We received one comment asserting that the AAA’s role is to investigate abuses in government and asking for AAAs to have the right to administrative hearings with ACL. Response: ACL disagrees with the commenter that the advocacy role of AAAs is to investigate abuses in government. As stated in the Act, the role of the State agency is to, ‘‘serve as an effective and visible advocate for older individuals by reviewing and commenting upon all State plans, budgets, and policies which affect older individuals and providing technical assistance to any agency, organization, association, or individual representing the needs of older individuals[.]’’ 199 Subsequently, the Act states that the AAA will, ‘‘serve as the advocate and focal point for older individuals within the community by (in cooperation with agencies, organizations, and individuals participating in activities under the plan) monitoring, evaluating, and commenting upon all policies, programs, hearings, levies, and community actions which will affect older individuals[.]’’ 200 Under Title III of the Act, the State agency is the grantee of ACL.201 Title III of the Act provides for appeals by the grantee (the State agency), for which provisions are set forth at § 1321.39 and § 1321.43. Title III of the Act also provides for appeal by applicants seeking designation as a PSA, as set forth at § 1321.17, and if a State agency initiates an action or proceeding to withdraw designation of an area agency on aging, as set forth at § 1321.23. Under § 1321.9, the State agency is responsible for developing, implementing, monitoring, and enforcing policies and procedures governing all aspects of part 1321 and 199 42 U.S.C. 3025(a)(1)(D). U.S.C. 3026(a)(6)(B). 201 42 U.S.C. 3025. 200 42 PO 00000 Frm 00038 Fmt 4701 Sfmt 4700 part 1324. Such policies and procedures may include appeals processes at the State level. The intent of the Act is to foster a cooperative approach between State and community-based entities. When conflicts occur, we expect that application of State agency policies and procedures, in addition to technical assistance and robust discussion, will assist all parties in finding resolution that maximizes the intent of the Act. Comment: Several commenters expressed support for the additional clarity surrounding the advocacy responsibilities of an area agency in § 1321.61, including the addition of family caregivers as a service population. One commenter asked for the definition of family caregiver to be expanded to include older relative caregivers. Several commenters noted barriers to successfully implementing the advocacy responsibilities of the area agency, including representing the interests of older persons and family caregivers to local level and executive branch officials, public and private agencies, or organizations, as required by the Act and this regulation. Other commenters requested clarification about the application of this provision when a AAA serves more than one PSA. Response: ACL appreciates the comments related to the advocacy responsibilities of an area agency and notes that the definition of family caregiver in § 1321.3 includes older relative caregivers to ensure the consideration of older relative caregivers as advisory council members. ACL will also continue to provide technical assistance surrounding best practices related to serving as a public advocate for the development or enhancement of comprehensive and coordinated community-based systems of services, including consistently conducting outreach to the public related to the needs of older persons and family caregivers in PSAs. We expect that State agencies will exercise appropriate oversight of each PSA, and we agree that additional clarification of expectations for area agencies on aging that serve more than one PSA could be helpful. Therefore, we have added clarification at § 1321.61 (Advocacy responsibilities of the area agency) to state, ‘‘and specific to each’’ in reference to the PSA. For consistency, we have similarly revised § 1321.19 (Designation of and designation changes to area agencies), § 1321.49 (Intrastate funding formula), § 1321.63 (Area agency advisory council), and § 1321.65 (Submission of an area plan and plan amendments to the State agency for approval) regarding specificity to each PSA. E:\FR\FM\14FER4.SGM 14FER4 Federal Register / Vol. 89, No. 31 / Wednesday, February 14, 2024 / Rules and Regulations ddrumheller on DSK120RN23PROD with RULES4 § 1321.63 Council Area Agency Advisory The provision contained in § 1321.57 of the existing regulation (Area agency advisory council) is redesignated here as § 1321.63. Section 306 of the Act 202 requires AAAs to seek public input with respect to the area plan; accordingly, we include new language in this section clarifying the AAA’s advisory council duties with regard to soliciting and incorporating public input. Minor changes are made 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 PSA, including individuals identified as in greatest economic need and individuals identified as in 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 representatives from Indian Tribes and older relative caregivers, should be represented in the council. We also make minor revisions to this provision to take into account the addition of family caregivers as a service population pursuant to the 2000 amendments to the Act (Pub. L. 106– 501). Comment: Commenters shared concerns that service providers on a council may inappropriately influence decisions related to awarding OAA funds, even if they abstain from voting on funding decisions. ACL received many comments on § 1321.63(b), § 1321.63(b)(4), and § 1321.63(b)(5) regarding the inclusion of Title III service delivery representatives and representatives of health care provider organizations as members of an area agency advisory council. Most commenters expressed concern about the participation of service providers or representatives of health care provider organizations on an area agency advisory council due to the potential for COI and the perception that participation may benefit one service provider over a different potential service provider. Some commenters expressed support for the inclusion of Title III service delivery representatives, including volunteer service delivery providers, on an area agency advisory council. Response: ACL appreciates the comments regarding the inclusion of 202 42 U.S.C. 3026. VerDate Sep<11>2014 20:33 Feb 13, 2024 Title III service delivery representatives and health care representatives as members of an area agency advisory council. We decline to revise the regulatory text at § 1321.63(b) introductory text and (b)(4) and (5) because the primary focus of the council should be to assist the area agency in developing and coordinating community-based systems of services, including targeting individuals of the greatest economic and greatest social need. Service providers and health care provider representatives are fundamental to developing communitybased systems of services that reach these populations. To clarify, the advisory council is required to function as a separate body from the AAA’s governing body. The governing body is responsible for making funding decisions and other matters related AAA leadership. In contrast, the advisory council is responsible for providing local feedback from the community to assist the governing body’s leadership in developing, administering, and operating the area plan on aging. The OAA requires that service providers be among the members of the AAA’s advisory council.203 ACL recognizes the concerns regarding COI and has established COI requirements at § 1321.47 (Conflicts of interest policies and procedures for State agencies) and § 1321.67 (Conflicts of interest policies and procedures for area agencies on aging). These provisions specifically list advisory council members among the individuals to whom these provisions apply. Further, § 1321.67 of this rule requires area agencies to develop and maintain COI policies, including related to governing boards and advisory councils, to avoid actual, perceived, or potential COI. We believe the COI policy requirement serves as an adequate guardrail against the concern raised by commenters related to service providers and health care provider organizations serving on area agency advisory councils. Comment: Several commenters requested revisions to clarify the role of an area agency advisory council and the distinction between an advisory council and a board of directors. Specifically, commenters recommended adding language restricting an advisory council from also operating as a board of directors and prohibiting members from serving on both the area agency advisory council and the board of directors. Some commenters requested guidance on the decision-making authority of advisory councils, especially regarding the 203 Id. Jkt 262001 PO 00000 section 3026. Frm 00039 Fmt 4701 Sfmt 4700 11603 development and submission of the area plan. Other commenters questioned whether an AAA that is designated to serve multiple PSAs as allowed by § 1321.19(a) is required to have an advisory council for each PSA or may have an advisory council subcommittee for each PSA. Response: ACL appreciates the requests for clarity related to the role of an area agency advisory council. The primary focus of the area agency advisory council should be to assist the area agency in developing communitybased systems of services targeting individuals with the greatest social need and greatest economic need. Section 1321.63(a)(1) through (5) details how the advisory council can assist an area agency in ensuring that individuals with the greatest social need and greatest economic need are prioritized in an advisory capacity. Except for the change noted below, we are maintaining the language as is in § 1321.63(a)(1) through (5) because it details the primary functions of an advisory council as advisors to an area agency. Regarding AAAs which serve multiple PSAs, we have revised § 1321.63(a) to specify, ‘‘The council shall carry out advisory functions which further the area agency’s mission of developing and coordinating community-based systems of services for all older persons and family and older relative caregivers specific to each planning and service area.’’ We decline to provide further detail in the rule regarding how each PSA will be addressed and leave this to State and area agency policies and procedures to accomplish. In light of the comments received regarding both the role of an advisory council and the role of a board of directors, ACL will provide technical assistance regarding the functions of an advisory council, the functions of a board of directors or governing body, corresponding best practices regarding AAAs serving multiple PSAs, and COI policies and procedures for advisory and governing bodies. In response to comments, we have added new § 1321.63(d), clarifying that an advisory council may not operate as a board of directors, and prohibiting members from serving on both the advisory council and the board of directors. Comment: A couple of commenters requested revisions to clarify the requirements for public hearings related to the area plan and the role of the advisory council. Other commenters requested expansion of the language in § 1321.63(a)(3) to include ‘‘or otherwise ensuring community engagement and obtaining community input.’’ Some E:\FR\FM\14FER4.SGM 14FER4 ddrumheller on DSK120RN23PROD with RULES4 11604 Federal Register / Vol. 89, No. 31 / Wednesday, February 14, 2024 / Rules and Regulations noted support for the additional clarity surrounding the advisory council’s role in soliciting and incorporating public input into the area plan. Response: ACL appreciates comments related to public hearings related to the area plan, and the role of the advisory council in soliciting and incorporating public input into the area plan. Section 306 of the Act requires area agencies to seek public input with respect to the area plan.204 The rule at § 1321.63 clarifies that the council must advise the area agency in conducting public hearings, among other activities. For example, the advisory council may advise the area agency on how to ensure that individuals of the greatest social and greatest economic need are included in the hearings. We maintain the language in § 1321.63(a)(3) and reference in § 1321.63(c) which clarifies that the advisory council shall review and provide comments related to the area plan to the area agency prior to the area agency’s submission of the plan to the State agency for approval. In light of the comments received, ACL will provide technical assistance related to the parameters for public hearings, the role of the advisory council in soliciting and incorporating public input, and best practices soliciting and incorporating public input, especially from individuals with the greatest social and greatest economic need, into the area plan. Comment: A couple of commenters asked us to clarify the meaning of ‘‘[r]epresentatives from Indian Tribes, Pueblos, or Tribal aging programs’’ as proposed in § 1321.63(b)(9)(i) and one specifically recommended that the proposed provision be revised to include both unofficial and official representatives. Response: In § 1321.63(b) ACL lists the individuals and representatives of community organizations who shall comprise the AAA’s advisory council. These may include both official and unofficial representatives. For example, a AAA serving a large metropolitan area may serve Native Americans from multiple Indian Tribes, including those a far distance from the AAA’s service area. The provision at § 1321.63(b)(9)(i) encourages individuals who represent Indian Tribes, Pueblos, or Tribal aging programs, whether formally or informally, to be considered as members of the AAA’s advisory council. We encourage official representation by Indian Tribes, Pueblos, or Tribal aging programs to be provided in AAA advisory council composition. 204 Id. VerDate Sep<11>2014 20:33 Feb 13, 2024 Jkt 262001 Comment: ACL received many comments regarding proposed § 1321.63(b)(1) which requires that the majority, or more than 50 percent, of area agency advisory council members be older persons, including minority individuals who are participants or who are eligible to participate in the programs. Most of these commenters expressed support for this requirement and noted the importance of ensuring that the service populations’ perspectives are included in area agency plans and policies. Some commenters specifically supported the inclusion of older adults with the greatest economic or greatest social need, including LGBTQI+ older adults and people with HIV. Other commenters requested flexibility surrounding advisory council composition because of concerns related to recruiting volunteer advisory council members, including those in rural communities, and with the greatest economic or greatest social need. One commenter specifically requested that we define the term ‘‘efforts’’ in relation to including those identified as in the greatest economic need and greatest social need. Response: ACL appreciates comments regarding the proposed requirements that the majority of advisory council members be older persons who are eligible to participate in area agency programming and that area agencies must intentionally seek to include those in the greatest economic and greatest social need. The primary focus of the advisory council is to assist the area agency in coordinating communitybased systems of services for all older persons and family and older relative caregivers in the PSA. The inclusion of older adult members who have the greatest economic or greatest social need will help to ensure that the perspectives of these communities are represented in the area plan. For this reason, we are maintaining § 1321.63(b)(1) as proposed and emphasize that the language encourages but does not require area agencies to appoint advisory council members representing those identified as in the greatest economic or greatest social need. This provides area agencies the flexibility sought by several commenters regarding council composition due to concerns about volunteer recruitment. ACL will continue to provide technical assistance regarding recruiting older adult advisory council member volunteers in diverse geographical settings, including those identified as in the greatest economic or greatest social need, including how an area agency can demonstrate ‘‘effort’’ to recruit older adult advisory council PO 00000 Frm 00040 Fmt 4701 Sfmt 4700 members with the greatest economic or greatest social need. Comment: Several commenters voiced support for the inclusion of family caregivers in area agency advisory council membership, as proposed in § 1321.63(b)(3) and § 1321.63(b)(9)(ii). Some commenters specifically requested that ACL add ‘‘kinship caregivers’’ to § 1321.63(b)(3) to ensure that older relative caregivers raising grandchildren are included in an area agency’s advisory council. Response: ACL appreciates comments related to the inclusion of family caregivers and older relative caregivers as members of area agency advisory councils. The 2000 amendments to the Act (Pub. L. 106–501) added family caregivers as a service population and the revision at § 1321.63(b)(3) reflects this addition. As commenters noted, many older adults are kin or grandparent caregivers, and § 1321.3 includes older relative caregivers in the definition of family caregiver. We further specify ‘‘Older relative caregivers, including kin and grandparent caregivers of children or adults age 18 to 59 with a disability’’ in § 1321.63(b)(9)(ii). Therefore, we are maintaining the language for § 1321.63(b)(3). § 1321.65 Submission of an Area Plan and Plan Amendments to the State Agency for Approval The provision contained in § 1321.52 (Evaluation of unmet need) and § 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 § 1321.65. The State agency is responsible for ensuring that area plans comply with the requirements of section 306 of the Act.205 The final rule includes revisions to this provision to clarify for State agencies the area plan requirements that should be addressed by State agency policies and procedures. These include identification of populations in the PSA 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) 206 of the Act; minimum adequate proportion requirements per section 306(a)(2) 207 of 205 Id. 206 42 207 42 E:\FR\FM\14FER4.SGM U.S.C. 3027(a)(8). U.S.C. 3026(a)(2). 14FER4 ddrumheller on DSK120RN23PROD with RULES4 Federal Register / Vol. 89, No. 31 / Wednesday, February 14, 2024 / Rules and Regulations the Act; and requirements for program development and coordination activities as set forth in § 1321.27(h). State agencies may include other requirements that meet State-specific needs. We make an addition to area plan requirements to reflect changes in the nutrition program, as discussed above. Consistent with § 1321.87, if State agency policies and procedures allow for the service option to provide shelfstable, pick-up, carry-out, drive-through, or similar meals under Title III, part C– 1, 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, part C–1 funds for new service delivery methods. In paragraphs (c) and (d) we include 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 clarify in paragraph (e) that area plans must be coordinated with and reflect State plan goals. This provision parallels § 1321.27(c), which requires the State plan to provide evidence the plan is informed by and based on area plans. State plans and area plans may have cycles that align or vary, based on multiple considerations. With this provision, we clarify that State plans and area plans processes should be iterative, where each informs the other. Comment: One commenter expressed support for the clarified requirements for area plans and associated activities. Other commenters requested that we clarify application of this provision to AAAs that serve more than one PSA. Response: We appreciate these comments. We expect that State agencies will exercise appropriate oversight of each PSA, and we agree that additional clarification of expectations for area agencies that serve more than one PSA would be helpful. Therefore, we have revised § 1321.65 (Submission of an area plan and plan amendments to the State agency for approval) to state, ‘‘specific to each planning and service area.’’ For consistency, we have made similar revisions to § 1321.19 (Designation of and designation changes to area agencies), § 1321.49 (Intrastate funding formula), § 1321.61 (Advocacy responsibilities of the area agency), and VerDate Sep<11>2014 20:33 Feb 13, 2024 Jkt 262001 § 1321.63 (Area agency advisory council) regarding specificity to each PSA. Comment: ACL received many comments about the proposed regulatory language for § 1321.65(b)(2) which requires an area agency to identify populations at the greatest economic need and greatest social need within the PSA. Most of the commenters expressed support for area agencies identifying populations at the greatest economic need and greatest social need in their PSAs as part of the area plan process. Some commenters observed that it may be difficult for area agencies to identify and collect data related to populations at the greatest economic need and greatest social need. Other commenters argued for broader language to encourage local flexibility in determining those with the greatest economic and greatest social need. A few commenters recommended that ACL require area agencies to work in partnership with organizations that serve populations with the greatest economic need and greatest social need to determine prioritization of programs and services for these populations. Specifically, a couple of commenters recommended that ACL require State agencies to grant area agencies and Centers for Independent Living (CILs) equal responsibility for determining and prioritizing populations with the greatest economic need and greatest social need for an area plan. Response: ACL appreciates the comments regarding identifying older adults with the greatest economic need and greatest social need as part of the area plan. As commenters noted, the rule at § 1321.65(b) provides area agencies with the flexibility to identify populations within their individual PSAs and ensures that area plans prioritize serving older individuals with the greatest economic need and greatest social need. We require the area agency to identify select populations and encourage area agencies to select additional populations as needed based upon the unique characteristics of their PSAs for the area plan. We have revised the regulatory text at § 1321.65(b)(2)(i) to clarify our expectations for area plans. In accordance with policies and procedures established by the State agency, we expect AAAs to: (1) identify and consider populations in greatest economic need and greatest social need; (2) describe how they target the identified populations for service provision; (3) establish priorities to serve one or more of the identified target populations, given limited availability of funds and other resources; (4) establish methods for serving the PO 00000 Frm 00041 Fmt 4701 Sfmt 4700 11605 prioritized populations; and (5) use data to evaluate whether and how the prioritized populations are being served. ACL also appreciates comments related to ensuring that representatives from groups with the greatest economic need and greatest social need are involved in the identification of these groups and in the related prioritization of programs and services. The Act requires area agencies to form advisory councils and § 1321.63 clarifies the role of the council, including in assisting area agencies in targeting individuals of greatest economic need and greatest social need, and requires the majority of members be older adults, including older adults with disabilities. The advisory council should seek to ensure that the area plan accurately identifies communities of greatest economic need and greatest social need and that public input from these individuals be incorporated into the area plan. As the responsibility for the area plan is statutorily required to be with the State agency and the area agency, we cannot assign such responsibilities to other entities. However, we encourage area agencies to work collaboratively with other entities in the community in development and administration of the area plan on aging. Comment: ACL received many comments related to proposed § 1321.65(b)(3) which requires area plans to provide an assessment and evaluation of unmet need for supportive services, nutrition services, evidencebased disease prevention and health promotion, family caregiver support, and multipurpose senior centers. Most commenters specifically expressed appreciation for the inclusion of an assessment and evaluation of unmet needs in area plans and noted that the requirement may enable area agencies to address local need more intentionally. Some commenters recommended that area agencies support culturally responsive outreach and data collection programming to ensure that the needs of populations with the greatest economic need and greatest social need, including LGBTQI+ persons and people with HIV, be included in the assessment and evaluation. Other commenters recommended that ACL expand the proposed assessment and evaluation to include other programs and service areas that impact older adults, including supportive services that disseminate information and provide access to assistive technology devices through a State assistive technology entity. A variety of commenters shared concerns about the capacity and training needed to develop specific data collection strategies to implement E:\FR\FM\14FER4.SGM 14FER4 ddrumheller on DSK120RN23PROD with RULES4 11606 Federal Register / Vol. 89, No. 31 / Wednesday, February 14, 2024 / Rules and Regulations proposed § 1321.65(b)(3). These commenters generally recommended that ACL provide area agencies flexibility surrounding strategies for conducting assessment and evaluation. Response: ACL appreciates the comments related to assessment and evaluation of unmet need. As commenters noted, § 1321.65(b)(3) equips area agencies with the data needed to prioritize resources and to address need more intentionally within the PSA. In recognition of the challenges of collecting statistically valid data, we modify the language to read, ‘‘[. . .] objectively collected, and where possible, statistically valid, data with evaluative conclusions[.]’’ The language also broadly includes ‘‘supportive services’’ which provides area agencies the flexibility to conduct assessments and evaluation of unmet need based upon considerations within the PSA. Additionally, § 1321.65(c) requires area plans to incorporate services which address the incidence of hunger, food insecurity and malnutrition, social isolation, and physical and mental health conditions. Further, the language does not limit the evaluation to programs exclusively funded by the Act. Therefore, we are making no further changes to § 1321.65(b)(3). However, in light of the comments received regarding the training and capacity needed to develop specific data collection strategies and to implement this section, ACL will provide technical assistance regarding best practices and tools for assessing and evaluating unmet need within a PSA. Comment: Several commenters voiced support for proposed regulatory language at § 1321.65(b)(4) which requires public participation, specifically from older adults with the greatest economic need and the greatest social need, in area plan development. Comments generally supported public participation in area plan development though also expressed concern about the proposed ‘‘minimum time period’’ and effective date of the new area plan requirements. Some comments noted concern about the proposed requirements’ impact on administrative capacity. Response: ACL appreciates comments related to public participation in area plan development and has revised the regulatory language at § 1321.65(b)(4) to specify that the public must be given a reasonable minimum period of time (at least 30 calendar days, unless a waiver has been granted by the State agency). Area agency advisory councils should provide area agencies with additional capacity to support the solicitation of VerDate Sep<11>2014 20:33 Feb 13, 2024 Jkt 262001 public participation in area plan development through public hearings and related opportunities for feedback, especially for older adults with the greatest economic need and greatest social need. In light of the feedback received, we will offer technical assistance regarding best practices for timely solicitation and reporting related to public participation for area agencies and their advisory councils. Subpart D—Service Requirements § 1321.71 Purpose of Services Allotments Under Title III The provision contained in § 1321.63 of the existing regulation (Purpose of services allotments under Title III) is redesignated here as § 1321.71. We make 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 updates to the regulation. For example, we make 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 amendments to the Act (Pub. L. 106–501). Additional minor revisions are included for clarity, such as distinctions in the manner in which Title III funds are awarded between single PSA States and States with AAAs, with cross-references to language on IFFs, funds distribution plans, and provision of direct services by State agencies and AAAs. Comment: We received comments of support for including family caregivers as a service population. Response: We appreciate these comments. Comment: We received comment asking us to clarify whether information technology systems that support direct service provision may be funded with direct services funding under Title III of the Act. Response: ACL appreciates this concern and confirms that Title III direct services funds may be used for reasonable, allowable, and allocable expenses necessary for the provision of direct services, subject to appropriate procurement and other policies and procedures. This may include information technology systems; devices, such as laptop or tablet computers and smartphones; and training of staff and volunteers. Comment: We received comment expressing concern that the Ombudsman program was not listed as an allowable supportive service. Response: As proposed, § 1321.85(a) references the twenty-six items listed at PO 00000 Frm 00042 Fmt 4701 Sfmt 4700 section 321 of the Act, of which ombudsman services are included.208 ACL confirms that ombudsman services are an acceptable use of funds appropriated under Title III, part B. Comment: We received a suggestion to clarify that the IFF referenced in § 1321.71(c) is the one set forth at § 1321.49. Response: We are grateful to commenters for noting this and correct the provision to read ‘‘[. . .] as set forth in § 1321.49.’’ § 1321.73 Policies and Procedures The provisions contained in § 1321.65 of the existing regulation (Responsibilities of service providers under area plans) are redesignated and revised in part here as § 1321.73 and § 1321.79. Revised § 1321.73 sets forth requirements to ensure AAAs and local service providers develop and implement policies and procedures to meet requirements set by State agency policies and procedures, in accordance with § 1321.9. Accordingly, we move the requirements previously set forth in (b)–(g) to other sections. We also specify that the State agency and AAAs must develop monitoring processes, the results of which are strongly encouraged to be made available to the public. Doing so may be one way to ensure accountability and stewardship of public funds, as required by the Act. Comment: We received comments supporting this provision, as well as requesting clarity on the expectations for an ‘‘independent qualitative and quantitative monitoring process.’’ We received other comments requesting clarification on whether assessments and assessment policies must be made available to the public. Other comments requested development of a core set of services to be provided by all AAAs with standardized quality measures. Response: ACL expects that the State agency and AAAs will conduct qualitative and quantitative monitoring of the programs and services funded under the Act. Use of funds provided for State and area plan administration for such monitoring is appropriate. ACL acknowledges the wide range of circumstances and resources for conducting monitoring and determining independence of those conducting monitoring. We believe this provision strikes the appropriate balance between providing sufficient guidance to State agencies and AAAs for implementation while maintaining flexibility to respond to local needs and circumstances. This includes determinations regarding whether to make quality monitoring and 208 42 E:\FR\FM\14FER4.SGM U.S.C. 3030d. 14FER4 Federal Register / Vol. 89, No. 31 / Wednesday, February 14, 2024 / Rules and Regulations ddrumheller on DSK120RN23PROD with RULES4 measurement results available to the public. ACL is available to provide technical assistance on these topics. Title III of the Act contains certain core required services and standards (such as the provision of meals that meet mandated dietary guidelines in accordance with requirements of Title III–C of the Act and the provision of evidence-based health promotion programs with Title III–D funds; reporting standards and requirements; establishment by the State agency of a minimum proportion of funds that will be spent on access services, in-home supportive services, and legal assistance; prohibition against means testing; and voluntary contribution requirements, etc.). At the same time, the Act provides latitude to State agencies to determine how best to implement the Act in order to respond to local needs and circumstances. The State agency may also, in turn, offer such flexibility to AAAs. Conditions can vary from one State to another and from one region of a State to another, and State agencies also are required, and are in the best position, to monitor the quality and effectiveness of services provided under the Act. ACL believes that the Act and this final rule strike an appropriate balance between required services and standards and flexibilities offered to State agencies in implementation of the Act. ACL declines to impose requirements beyond what is contemplated by the Act regarding required services and standards. Comment: We received various comments requesting improvements in services, such as meal presentation. Response: ACL recognizes the importance of meals and other services provided under the Act being appealing to participants. Services must be personcentered, as set forth in § 1321.77. Additionally, we expect that feedback from service participants will be solicited and used to the greatest extent possible in the ongoing provision of services as set forth in § 1321.73(c). To further clarify the importance of the participant experience, we have added ‘‘[. . .] and preferences,’’ to this provision under the expectations for monitoring participant needs. § 1321.75 Confidentiality and Disclosure of Information Section 1321.75 reorganizes and redesignates existing § 1321.51. The revised section sets forth 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 VerDate Sep<11>2014 20:33 Feb 13, 2024 Jkt 262001 their work. Our revisions will enhance the protections afforded to OAA participants. Revised § 1321.75 also adds ‘‘family caregivers’’ as a service population under the Act to reflect the 2000 amendments to the Act (Pub. L. 106–501). We 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 services to reveal any information protected under the provisions in 45 CFR part 1324, subpart A. Similarly, State agencies, AAAs, and others subject to this provision shall 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.209 The policies and procedures required under this section must ensure that service providers promote the rights of each older individual who receives services, including the right to confidentiality of their records. We require that the policies and procedures comply with all applicable Federal requirements. The State 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. Section 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. The final rule also allows disclosure for program monitoring and evaluation by authorized Federal, State, or local monitoring agencies. State and area agencies that are covered entities under the Health Insurance Portability and Accountability Act of 1996 (HIPAA) 210 are also required to disclose records to the Secretary for the purpose of assessing compliance with the HIPAA Rules.211 Under the revised provision, State agencies’ policies and procedures may explain that individual information and records may be shared with other State and local agencies, communitybased organizations, and health care providers and payers to provide services, and we encourage agencies to develop memoranda of understanding 209 Model Rules of Professional Conduct: Rule 1.6 Confidentiality of Information, The Am. Bar Assn. (1983), https://www.americanbar.org/groups/ professional_responsibility/publications/model_ rules_of_professional_conduct. 210 Public Law 104–191; 110 Stat. 1936. 211 45 CFR 160.310. PO 00000 Frm 00043 Fmt 4701 Sfmt 4700 11607 regarding access to records for such purposes. Comment: We received a comment encouraging organizations to abide by Tribal data sovereignty policies. Response: ACL appreciates this comment and encourages organizations to coordinate and to abide by Tribal data sovereignty policies where appropriate. In response to this comment, we have added a statement at § 1321.75(f) that State agencies are encouraged to consult with Tribes regarding any Tribal data sovereignty expectations that may apply. Comment: We received comments expressing support for inclusionfocused language and highlighting the importance of protecting PII and personal health information. Another commenter requested more guidance regarding criteria for the definitions, including reporting requirements. Other commenters responded to ACL’s request for comment on whether ACL sufficiently set forth exceptions to OAA confidentiality requirements, offering strong support of the new language in (b), including that the language helps clarify the Ombudsman’s obligation to protect program records and not disclose them to any State agency, area agency, or auditing agency. Response: ACL is committed to the protection of confidential information collected in the provision of services under the Act and believes this provision will reduce confusion, including regarding the Ombudsman program. In recognition of these comments, ACL notes that § 1321.9(b) states that, ‘‘[P]olicies and procedures are aligned with periodic data collection and reporting requirements, including ensuring service and unit definitions are consistent with definitions set forth in these regulations, policy guidance, and other information developed by the Assistant Secretary for Aging.’’ ACL anticipates providing training and technical assistance upon promulgation of the final rule to support effective implementation of these provisions. We believe that State agencies should be allowed to place restrictions on information sharing when necessary and appropriate, and this final rule provides that discretion. Comment: One commenter noted that expressly including HIPAA in this provision may cause confusion and might imply that all OAA-funded activities are implicated under that law. Response: ACL appreciates this comment. To avoid confusion, we have removed the reference to HIPAA and have clarified that State agencies’ policies and procedures must comply with all applicable Federal E:\FR\FM\14FER4.SGM 14FER4 11608 Federal Register / Vol. 89, No. 31 / Wednesday, February 14, 2024 / Rules and Regulations requirements. However, we note that it is increasingly common for OAA recipients to be engaged in activities that make them HIPAA-covered entities and we encourage grantees and subrecipients to be aware of any associated legal obligations. ddrumheller on DSK120RN23PROD with RULES4 § 1321.79 Responsibilities of Service Providers Under State and Area Plans The provision contained in § 1321.65 of the existing regulation (Responsibilities of service providers under area plans) is redesignated in part here as § 1321.79 and at § 1321.73 and is retitled for clarity. Minor revisions are made 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 encourage providers to offer self-directed services to the extent feasible and acknowledge service provider responsibility to comply with local adult protective services (APS) requirements, as appropriate. The final rule sets forth that this provision applies 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 PSA State). The language in paragraph (a) of the existing provision (reporting requirements) has been moved to § 1321.73, which addresses accountability requirements applicable to service providers. Comment: We received comment questioning the provisions at § 1321.79(d) allowing for sharing of information with local APS without the consent of the older person or their legal representative, especially for legal assistance and ombudsman services. Response: We appreciate this comment and have clarified § 1321.79(d) to state, ‘‘[. . .] in accordance with local adult protective services requirements, except as set forth at § 1321.93, part 1324, subpart A, and where appropriate, bring to the attention of[.]’’ Comment: We received other comments discussing importance of sharing information for purposes of program analysis, research, and other worthwhile endeavors. Other commenters provided program management and implementation recommendations regarding this provision. Response: We appreciate these comments and decline to make further changes to this provision. We intend to address other suggestions and requests VerDate Sep<11>2014 20:33 Feb 13, 2024 Jkt 262001 for clarification through technical assistance. § 1321.83 Client and Service Priority The provision contained in § 1321.69 of the existing regulation (Service priority for frail, homebound or isolated elderly) is redesignated here as § 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 PHE. 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. Section 1321.83 clarifies that entities may prioritize services and that they have flexibility to set their own policies in this regard. It also clarifies that State agencies are responsible for setting services priorities, but may establish policies and procedures to grant AAAs and/or service providers the discretion to set service priorities at the local level. We also include revisions to this provision to account for 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 amendments to the Act (Pub. L. 106– 501). Comment: Some commenters expressed support of this provision. Others stated confusion regarding the priorities proposed in (c) of this provision. Response: We appreciate these comments. To reflect that service to older relative caregivers is at the option of the State agency and/or a AAA, we have replaced the word ‘‘When’’ in § 1321.83(c)(3) with ‘‘If’’ for clarity. Given limited availability of resources, service to older relative caregivers is not required by the Act. However, in this provision we clarify that if older relative caregivers are to be served, older relative caregivers of those with severe disabilities are to be given priority. Comment: Some commenters questioned whether funds for the Ombudsman program provided under Title III, part B are subject to the requirements at § 1321.83(b). Response: We appreciate this comment and have revised § 1321.83(b) to read, ‘‘[. . .] services under Title III, PO 00000 Frm 00044 Fmt 4701 Sfmt 4700 parts B (except for Ombudsman program services which are subject to provisions at part 1324), C, and D[.]’’ Comment: We received other suggestions, program management recommendations, and implementation questions regarding this provision. Response: We decline to make further changes to this provision and intend to address other suggestions and requests for clarification through sub-regulatory guidance and technical assistance. § 1321.93 Legal Assistance The provision contained in § 1321.71 of the existing regulation (Legal assistance) is redesignated here as § 1321.93. We are modifying § 1321.93 to better reflect the purpose of the Act, including the application of section 101 212 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), 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 communitybased services and programs provided for their benefit, and protection against abuse, neglect, and exploitation.’’ 213 Legal assistance programs funded under Title III, part 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) by serving the needs of those with greatest economic need or greatest social need, including, historically underrepresented, and underserved populations, such as minority older individuals, 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.214 ACL intends to offer technical assistance, pursuant to section 202(a)(6) of the Act,215 to State agencies, 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. 212 42 U.S.C. 3001. section 3001(10). 214 42 U.S.C. 3002(23) and (24). 215 42 U.S.C. 3012(a)(6). 213 Id. E:\FR\FM\14FER4.SGM 14FER4 ddrumheller on DSK120RN23PROD with RULES4 Federal Register / Vol. 89, No. 31 / Wednesday, February 14, 2024 / Rules and Regulations The final rule combines 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 include a technical correction to change the reference to statutory language in section (a) of the prior regulation from section 307(a)(15) 216 to 307(a)(11),217 which sets forth State plan requirements for legal assistance. Section 307(a)(15) sets forth requirements for serving older people with LEP.218 Section 1321.93(a) provides a general definition of legal assistance based on the definition in section 102(33) of the Act.219 Section 1321.93(b) sets forth the requirements for the State agency to add clarity about its responsibilities. The State agency 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 agency 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 (LSC). The State agency is also obligated to provide advice, training, and technical assistance support for the provision of legal assistance as provided in revised § 1321.93 and section 420(a)(1) of the Act.220 As part of its oversight role, the State agency must ensure that the statutorily required contractual awards by AAAs to legal assistance providers meet the requirements of § 1321.93(c). Section 1321.93(c) sets forth the requirements for the AAA regarding legal assistance. Similar to the State agency requirement to designate a minimum percentage of Title III, part B funds to be directed toward 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 final 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 216 42 U.S.C. 3027(a)(15). section 3027(a)(11). 218 Id. section 3027(a)(15). 219 42 U.S.C. 3002(33). 220 42 U.S.C. 3032i(a)(1). 217 Id. VerDate Sep<11>2014 20:33 Feb 13, 2024 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(e) 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 areas of law given priority in section 307(a)(11)(E) of the Act.221 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 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. Regarding expertise around alternatives to 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. The other area of focus is guardianship and alternatives to guardianship. Section 307(a)(11)(E) of the Act also states: ‘‘[. . .] area agencies on aging will give priority to legal assistance related to [. . .] defense of guardianship[.]’’ 222 We interpret this provision to include advice to and representation of older individuals at risk of guardianship to oppose appointment of a guardian and representation to seek revocation of or limitations on 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. 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) also states Title III, part 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[.]’’ 223 The language in section 321(a)(6)(B)(ii) 224 and the language in section 307(a)(11)(E) 225 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. Specifically, our goal is to clarify the role of legal assistance providers to promote self-determination and persondirectedness and support older individuals to make their own decisions in the event of future diminished decisional capacity. 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 decisionmaking. Legal assistance resources are scarce and accordingly should be preserved to represent older adults’ basic rights 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. 222 Id. 223 42 U.S.C. 3030d(a)(6)(B)(ii). 224 Id. 221 42 Jkt 262001 PO 00000 U.S.C. 3027(a)(11)(E). Frm 00045 Fmt 4701 Sfmt 4700 11609 225 42 E:\FR\FM\14FER4.SGM U.S.C. 3027(a)(11)(E). 14FER4 ddrumheller on DSK120RN23PROD with RULES4 11610 Federal Register / Vol. 89, No. 31 / Wednesday, February 14, 2024 / Rules and Regulations The final rule includes the statutory exception in the regulations, and it will 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 many States have established, through bar associations and other pro bono services, or through hospitals, nursing homes, APS, 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 APS would not satisfy our interpretation of the limited applicability of the exception. These parties have access to counsel for representation in petitioning for guardianship. Section 1321.93(d) sets forth the requirements for selecting 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, longterm care, nutrition, housing, utilities, protective services, abuse, neglect, age VerDate Sep<11>2014 20:33 Feb 13, 2024 Jkt 262001 discrimination and defense against guardianship. Under our final 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. A AAA that contracted with such a provider would also not meet their obligations under revised § 1321.93(c) and under the Act. We describe 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.226 Legal assistance programs are required to collaborate with other programs that address and protect elder rights. We encourage coordination and collaboration with APS programs, State Health Insurance Assistance Programs, Protection and Advocacy systems, AAAs and ADRC 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 LSC grantee entities to coordinate their services with existing LSC 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 these required practices. As indicated in § 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 requesting contributions from legal assistance clients before or during representation. Only after the conclusion of representation may a request for a contribution be made. If a client chooses to voluntarily contribute, 226 42 PO 00000 U.S.C. 3058g(h)(8). Frm 00046 Fmt 4701 Sfmt 4700 the proceeds must be applied to expanding the service category. The final 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 final 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 nonattorney 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 final 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 final 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. Comment: Proposed § 1321.93(a) provides the general definition for the provision of legal assistance under the Act. We received several comments asking us to amend proposed § 1321.93(a)(2), where we define legal E:\FR\FM\14FER4.SGM 14FER4 ddrumheller on DSK120RN23PROD with RULES4 Federal Register / Vol. 89, No. 31 / Wednesday, February 14, 2024 / Rules and Regulations assistance as ‘‘[. . .] legal advice and/or representation provided by an attorney[.]’’ 227 The commenters pointed out that non-lawyers, including paralegals and law students, may engage in legal advice and/or even legal representation in certain circumstances, and that State law may permit such representation. Response: ACL appreciates these comments and notes that § 1321.93(a)(2) currently states that ‘‘[l]egal assistance may include, to the extent feasible, counseling, or other appropriate assistance by a paralegal or law student under the direct supervision of an attorney, and counseling or representation by a non-lawyer as permitted by law.’’ Additionally, we acknowledge such representation in § 1321.93(b)(1)(vi), (e)(2)(v) where we require non-lawyer personnel under the supervision of attorneys to adhere to the same Rules of Professional Conduct as an attorney. We understand the important role that paralegals and law students and other non-legal professionals play in providing legal representation to older people. Our goal is to assure high quality legal representation by requiring such professionals to be supervised by attorneys and to be bound by the same rules of conduct, as provided in the Older Americans Act. One commenter requested that we provide more detail about the Rules of Professional Conduct established by State judicial systems and bar associations. We decline to do so as this is beyond the scope of these regulations. AAA information and referral services, State Health Insurance Assistance Programs, ADRCs, LongTerm Care Ombudsman Programs, and Centers for Independent Living (CIL) may work with legal assistance programs to provide information, education, and referral services. One commenter suggested that where a particular service of a legal nature might be able to be facilitated through a nonlegal provider, a AAA should be allowed to do so, provided its actions are documented, accountable, and demonstrate that the AAA has made the best effort to provide the most comprehensive legal services. We believe our regulations encourage collaboration, especially in areas of education, cross-training of professionals and referrals to appropriate services and allowing older individuals to decide where and how to receive the services they want or need. AAAs may want to consider maintaining documentation of such collaboration as a best practice. However, as we note below, the Act requires that every AAA make an assessment that the selected legal assistance program is the entity best able to provide legal assistance services. Many legal interventions related to the OAA-designated priority case types require the full representational services of attorneys and non-lawyers under the supervision of attorneys to appropriately redress the legal problems experienced by older adults, and may not be provided by community partners, in accordance with applicable Rules of Professional Conduct. An example is representation opposing guardianship in judicial proceedings of an older adult who has been proposed for guardianship. Comment: Another commenter raised concerns about the ability to continue to use pro bono attorneys. Response: Section 307(a)(11) of the Act specifically requires contracts for legal assistance services to encourage coordination with the private bar for pro bono or reduced fee services for older Americans.228 Section 1321.93(e)(2)(iv) requires, as a standard for contracting, that the selected legal assistance provider undertake reasonable efforts to engage the private bar to furnish services on a pro bono or reduced fee basis. While pro bono attorneys are an important resource to increase the amount of representation for OAA clients, we remind State agencies and AAAs that section 307(a)(2)(C) of the Act also requires State agencies to designate a minimum proportion of Title III, part B funds for direct legal services.229 See also § 1321.93(b)(2), (c)(1) of these regulations. AAAs that receive these allotments must dedicate this amount, the ‘‘adequate proportion’’ per section 306(a)(2)(C) of the Act, to contracting for the provision of legal assistance.230 A AAA that relies only on pro bono attorneys to provide legal assistance would not meet the requirement to fund legal assistance programs. Additionally, § 1321.93(d)(1), standards for legal assistance provider selection, requires the providers to exhibit the capacity to retain staff with requisite expertise. A program that utilizes only pro bono attorneys does not meet this requirement. Comment: As stated above, proposed § 1321.93(b)(2) and (c)(1) require AAAs or State agencies in a State with a single planning area to establish and spend a minimum proportion of Title III, part B funds for legal assistance. We received 228 42 U.S.C. 3027(a)(11). section 3027(a)(2)(C). 230 Id. section 3026(a)(2)(C). comments concerning the variation in the amount of funding set aside by each State agency, making it difficult for legal assistance providers to represent those with the greatest economic and greatest social needs across the range of priority areas set forth in the OAA and in the regulations. Several commenters discussed the need for adequate funding, not minimum funding. Commenters suggested that the regulations provide clear guidance on how States should establish an adequate minimum proportion of funding for legal assistance to ensure a reasonable number of full-time attorneys are supported across the State. Response: In this final rule, we require adequate minimum funding to maintain a robust legal assistance program as required by the OAA. We decline to provide detailed processes for State agencies in this regulation, given the variations and size of the older population in each State, and because we do not provide similar requirements in the rule for the proportion of funding to go to other services. However, we will provide technical assistance to State agencies on how to achieve the goal of adequate minimum funding for legal assistance. We also received comments about the lack of sufficient funding for legal assistance programs. We thank the commenters for these observations; however, such comments are beyond the scope of this regulation. Comment: Commenters supported the requirements for formalized agreements for coordination and collaboration among other aging providers, citing work with long-term care ombudsmen, APS programs, Senior Health Insurance Programs (SHIPs), law enforcement, States Attorneys, CILs, and others. They particularly agreed with § 1321.93(b)(1), which lays out requirements for legal services. One commenter, however, asked that we require OAA funds to be used as a last resort to provide services to older people so that OAA funds could not be used if the provider had LSC funding available. Response: We decline to make the change. Section 307(a)(11)(D) of the OAA provides that ‘‘to the extent practicable’’ OAA-supported legal assistance will be provided ‘‘in addition to any legal assistance for older individuals being furnished with funds from sources other than this Act[.]’’ 231 This provision recognizes the flexibilities needed to assure adequate and high-quality legal assistance is available to all older Americans with economic or social need. It does not set up a standard of OAA legal assistance 229 Id. 227 88 FR 39628 (June 16, 2023). VerDate Sep<11>2014 20:33 Feb 13, 2024 Jkt 262001 PO 00000 Frm 00047 Fmt 4701 Sfmt 4700 11611 231 Id. E:\FR\FM\14FER4.SGM section 3027(a)(11)(D). 14FER4 ddrumheller on DSK120RN23PROD with RULES4 11612 Federal Register / Vol. 89, No. 31 / Wednesday, February 14, 2024 / Rules and Regulations as ‘‘a last resort.’’ Moreover, the same provision of the Act goes on to require, ‘‘that reasonable efforts will be made to maintain existing levels of legal assistance for older individuals;’’ which is consistent with many comments we received. Finally, LSC funding has more restrictive eligibility criteria, and different priorities along with additional restrictions. We agree, instead, with a legal services provider who described the importance of OAA Title III, part B funding for legal aid and noted how such funding enabled them to double the number of older clients served. The commenter appreciated deference to the legal assistance program in how to use funds for each case and in coordination with other funding. We thank commenters for these comments. Comment: ACL sets forth in § 1321.93(d) that the selected legal assistance provider must retain staff with expertise in specific areas of law affecting older persons with economic or social need, including public benefits, resident rights, and alternatives to institutionalization. ACL also requires the providers to demonstrate expertise in specific areas of law given priority in the OAA, including income and public entitlement benefits, health care, long-term care, nutrition, housing, utilities, protectives services, abuse, neglect, age discrimination, and defense of guardianship. Many commenters agreed with the list of statutorily mandated substantive areas in which legal assistance providers should be knowledgeable. One commenter suggested we amend § 1321.93(d)(1) to include all the legal priority areas in section 307(a)(11)(E) of the Act, rather than the three priority areas listed.232 Other commenters raised questions about the list of statutorily mandated substantive areas. These commenters suggest that AAAs should consider the greatest needs of those in their community, or that it may be hard to find attorneys with requisite knowledge in rural areas. One commenter asked that we add consumer law as a priority to the specific areas of law, consistent with the goal of helping older adults who desire to age in their own home. Another commenter suggested we add pensions as a priority area. Other commenters raised concerns that, by further defining defense of guardianship in § 1321.93(d)(2)(i), ACL intended that priority be given to those cases over other priority areas. Response: We appreciate the comment regarding § 1321.93(d)(1) and have amended the subsection as requested. 232 Id. section 3027(a)(11)(E). VerDate Sep<11>2014 20:33 Feb 13, 2024 The list of substantive focus areas in § 1391.93(d)(2) sets forth the priority legal areas in section 307(a)(11)(E) of the OAA; the proposed rule did not expand upon these areas as one commenter stated.233 However, within each community the AAA-contracted legal assistance provider may determine, in communication with the State agency, AAA, and others within their community, how to focus on implementing the required case priorities to meet the needs of older individuals with economic or social need within their community. Moreover, the balancing of priorities could change over time as circumstances evolve. For example, a legal assistance provider in a community where many older people are losing their Medicaid because of the Medicaid renewal process may focus on Medicaid fair hearings. In another community where many older people are sued for medical debt, the provider may decide to prioritize representation in those cases. Still another community may focus on a growing trend of evictions and homelessness among older adults, representing individuals facing eviction and fighting homelessness, while another community could be on an Indian reservation in a very isolated area with legal issues related to other federal laws. Our objective is that, as the Act requires, the legal assistance providers contracted by AAAs have expertise in specified areas of importance to older people with greatest economic or greatest social need who receive services under the OAA. Most private practitioners of law for example, generally do not have such expertise. We note, also, that ACL provides technical assistance to legal assistance programs, as well as to AAAs and ADRCs, the Ombudsman program, general legal services programs, and disability programs, on legal problems included in the priority areas, including assistance in representation of individuals in administrative and court hearings. The technical assistance can provide support to help ensure high quality representation in the areas of focus under the OAA. Finally, particularly in rural areas, for services that cannot be provided by non-legal providers, the AAA may be able to facilitate delivery of the required legal assistance through arrangements with legal assistance programs in other parts of the State, using available technological solutions to fulfill the requirements of the Act. Technical assistance has been and will continue to be available from ACL to assist legal 233 Id. Jkt 262001 PO 00000 Frm 00048 assistance providers, AAAs, and collaborating partners in rural areas. Legal assistance programs are encouraged to develop and strategically disseminate self-help materials, in areas where appropriate, developed by knowledgeable and respected expert consumer-facing organizations. Additionally, as noted in several comments and discussed above, State law may permit a nonlawyer to engage in counseling or representation in certain circumstances. In response to these comments, we have modified § 1321.93(d)(2) as follows. We have added ‘‘consumer law’’ to the list of legal areas in which legal assistance providers demonstrate expertise. Consumer law issues can fall within the statutory case priority categories related to income, housing, health care, long-term care, and abuse, for example. We have not added ‘‘pensions,’’ as requested by a commenter, since pensions are income, which is already included. We note that ACL funds pension counseling services in accordance with section 215 of the Act.234 We have also corrected the numbering of provisions of § 1321.93(d)(3) though (5). We have also revised § 1321.93(e)(2)(i), which requires the selected legal assistance provider to maintain expertise in the specific areas described in § 1321.93(d)(2). We have also clarified, as noted above, that legal assistance providers may prioritize their work from among the focus areas identified in the regulations based on the needs of the community they serve. Comment: In § 1321.93(d)(2)(i) we define what is meant by the term ‘‘defense of guardianship.’’ Several commenters were confused by the term ‘‘defense of guardianship,’’ and interpreted it as being inconsistent with the intent of the proposed rule to promote self-determination and alternatives to guardianship. One commenter suggested changing the language to defense against guardianship, while another suggested using the funding to promote guardianship prevention measures. Another commenter suggested we clarify that the term guardianship includes conservatorship and other similar fiduciary proceedings analogous to guardianship. Several commenters suggested we update the terms ‘‘proposed protected persons’’ and ‘‘protected persons’’ to ‘‘older individual at risk of guardianship’’ and ‘‘older individual subject to guardianship’’ as more in keeping with the Uniform Guardianship, 234 42 Fmt 4701 Sfmt 4700 E:\FR\FM\14FER4.SGM U.S.C. 3020e–1. 14FER4 ddrumheller on DSK120RN23PROD with RULES4 Federal Register / Vol. 89, No. 31 / Wednesday, February 14, 2024 / Rules and Regulations Conservatorship, and Other Protective Arrangements Act (UGCOPAA).235 Response: We reiterate that we use ‘‘defense of guardianship’’ in these regulations because it is the language used in section 307(a)(11)(E) of the OAA.236 We also agree that, unlike the other priority areas of law set forth in § 1321.93(d)(2), the term is very confusing. That is why while we will keep the term to retain consistency with the Act, we have chosen to include a separate subsection, § 1321.93(d)(2)(i), to define defense of guardianship. Our definition includes what commenters described as guardianship prevention, including execution of advance directives and supportive decision arrangements as chosen by older individuals. We agree with the commenter that the term guardianship includes conservatorship and other similar fiduciary proceedings analogous to guardianship. We have also revised § 1321.93(d)(2)(i) and replace ‘‘proposed protected persons’’ and ‘‘protected persons’’ with ‘‘older individuals at risk of guardianship’’ and ‘‘older individuals subject to guardianship.’’ We have made a technical correction at § 1321.93(e)(2)(i) to correct the crossreference from ‘‘paragraph (c)(1)(ii)(B)(1)(ii)’’ to ‘‘paragraph (d)(1), (2).’’ Comment: Several commenters asked us to go beyond the proposed definition of defense of guardianship. For example, they asked that we require someone’s beliefs about guardianship be memorialized in their person-centered plan. Other commenters asked that we require the person subject to guardianship be involved to the maximum extent possible. Others asked that we require all people subject to guardianship proceedings be represented by an attorney. Response: ACL is very supportive of person-centered planning. In § 1321.77(b), we give older adults and family caregivers an opportunity to develop a person-centered plan that discusses the services they may receive under the Act, where appropriate. Service providers who assist in developing these plans may want to include the view of older adults and family caregivers on guardianship and whether they have alternatives in place. Person-centered plans as developed in the context of receipt of certain Medicaid benefits are outside the scope 235 Nat’l. Conference of Comm’rs. on Unif. State Laws, Uniform Guardianship, Conservatorship, and Other Protective Arrangements Act (2017), https:// www.uniformlaws.org/committees/communityhome?CommunityKey=2eba8654-8871-4905-ad38aabbd573911c. 236 42 U.S.C. 3027(a)(11)(E). VerDate Sep<11>2014 20:33 Feb 13, 2024 Jkt 262001 of this regulation, as it does not address Medicaid requirements. The request to involve the person subject to guardianship to the maximum extent possible is consistent with the existing obligations of attorneys under Rules of Professional Conduct in representing someone who is the subject of a guardianship proceeding or who seeks to modify or revoke a guardianship. State law, not Federal law, governs how the individual under guardianship will be involved in working with the guardian, and accordingly this request is beyond the scope of these regulations. We note that attorneys representing persons under guardianship retain all the requisite duties of loyalty to the client imposed by the ethical obligations of the Rules of Professional Conduct of their State. Similarly, State law, not Federal law, governs whether the person subject to a guardianship petition is entitled to have an attorney appointed to represent them. Comment: Another commenter requested that we modify § 1321.93(d)(2)(i) to require that limitation of guardianship be sought both when a guardianship is initially established and in subsequent petitions to modify the guardianship. The same commenter recommended amending § 1321.93(d)(2)(ii)(A), (B) to reference promoting limited guardianship. Response: We appreciate the comments and have revised these provisions. While attorneys representing persons proposed for and subject to guardianship are generally expected to seek diversion from and alternatives to guardianship, we recognize and agree that limitations on guardianship may be appropriate in certain cases. Comment: We received many comments from organizations that represent older people or people with disabilities on guardianship itself in response to our discussion about the meaning of the term ‘‘defense of guardianship’’ in the proposed rule. All commenters agreed that guardianship should be avoided. Some commenters discussed alternatives to guardianship, including those referenced in the proposed regulations, as discussed above. Others suggested complimentary approaches, such as increased education about advance planning and expressing each person’s preferences. Many discussed the role that aging and disability organizations play in representing and protecting the interests of older people. Regarding our request for comments on the role of legal assistance and AAAs in defense of guardianship, one commenter agreed that public guardianship is a last resort and that it PO 00000 Frm 00049 Fmt 4701 Sfmt 4700 11613 is critical to have firewalls between AAA functions and guardianship functions to avoid COIs or the appearance of COIs. The commenter objected, however, to precluding AAAs from serving as guardians, particularly for older adults with significant barriers to functioning and without other supports. Response: We appreciate the concerns raised by the commenter. Our regulatory approach is to promote alternatives to guardianship and to support limitations on the imposition of guardianship. Our COI provisions are designed to prevent conflicts that could arise if a AAA receives outside funding to serve as a guardian, while at the same time contracting with legal assistance entities that represent people to oppose, divert from, or find alternatives to guardianship or who want to revoke an existing guardianship. Similar conflicts may arise if a Title III, part B legal assistance program is housed in a program funded by the LSC, and the LSC program brings a petition for guardianship while the OAA-funded component is asked to represent the individual over whom the guardianship is sought. Rules of Professional Conduct would apply to that conflict, as would standard legal services processes for checking conflicts among clients. Comment: Several commenters provided examples of when OAAfunded legal services programs might appropriately petition for guardianship. Examples include petitioning for guardianship over a minor grandchild or other relative; or where appealing a Social Security termination or reduction may require a decision-maker, yet there is no authorized representative on file and the older individual lacks decisional capability to consent to the representation; or similarly where there is a need to assert rights by appealing Medicaid denials where appeal may only be brought by a power of attorney or guardian and there is no agent under a power of attorney; preventing eviction or foreclosure; or taking action against someone engaged in adult maltreatment. According to the commenters, all the examples resulted in an older person continuing to serve as primary care giver for a minor; or as a caregiver of another older individual endeavoring to retain public benefits; to live in the individual’s preferred residence; and/or to remain in the community. One commenter pointed out that, although pro bono attorneys may be willing to file for guardianship, they may feel uncomfortable or unknowledgeable about bringing a Medicaid or Social Security appeal and may not be equipped to explain to the court why E:\FR\FM\14FER4.SGM 14FER4 ddrumheller on DSK120RN23PROD with RULES4 11614 Federal Register / Vol. 89, No. 31 / Wednesday, February 14, 2024 / Rules and Regulations the temporary guardianship is needed to appeal the public benefit denial. Other commenters said that they petition for guardianship because there are no attorneys available to bring the petition in the rural area they serve. Several CILs asked that CILs be added to the list of entities available to bring guardianship petitions. Response: We thank the commenters for their responses. We emphasize the imperative of identifying the least restrictive means of pursuing rights such as those described above. OAAfunded legal assistance providers should consistently strive to avoid guardianship as a remedy in these circumstances, unless they can document that no other option is available. Additionally, however, we believe that the CILs who asked to identify CILs as entities available to bring guardianship petitions misunderstood the context of the discussion and therefore, we decline to make the change. Petitioning for guardianship is inconsistent with the mission of CILs to promote autonomy and self-direction. We intend to offer technical assistance to provide additional clarification based on the comment responses. Comment: Section 1321.93(d)(2)(ii)(A) contains an exception to defense of guardianship in limited circumstances involving guardianship proceedings of older individuals who seek to become guardians when no other alternatives to guardianship are appropriate, and only if other adequate representation is unavailable in the proceeding. The exception is stated in section 321(a)(6)(B)(ii) of the Act.237 In addition to the comments discussed above that provide examples of when legal assistance providers use this exception, we received comments asking us to strengthen the language to ensure the exception is used only in limited circumstances. Several commenters said the language could be strengthened by requiring providers to document the efforts they made to explore less restrictive alternatives, why none of those options were appropriate or available, and how the provider determined that no other adequate representation was available. Response: Many State statutes require this kind of documentation from all parties to guardianship proceedings; 238 we accept the comments and have modified the language accordingly. Commenters also suggested making the 237 42 U.S.C. 3030d(a)(6)(B)(ii). e.g. Tex. Estate Code Ann. § 1101.001; Ariz. Rev. Stat. Ann. section 14–5303; Wash. Rev. Code Ann. section 11.130.265. 238 See VerDate Sep<11>2014 20:33 Feb 13, 2024 Jkt 262001 exception to defense of guardianship a separate section to clarify what we mean by defense of guardianship. We accept these comments as well. Accordingly, we have modified § 1321.93(d)(2)(ii)(A) to create a new § 1321.93(d)(2)(ii)(C) that sets forth the limited circumstances in which a legal assistance program may bring a guardianship petition on behalf of an older individual, i.e., only if other adequate representation is unavailable; and the provider documents the circumstances as described above. Comment: Section 1321.93(e) establishes standards for contracting between AAAs and legal assistance providers. We received comments from legal assistance providers that support the provision. They strongly supported § 1321.93(e)(3)(i), clarifying that area agencies are precluded from requiring a pre-screening to receive legal services or from being the sole and exclusive referral pathway for older adults to access legal assistance, to avoid creating unnecessary barriers to such assistance. They found the provision consistent with the Rules of Professional Conduct, as well as a means to avoid potential COI with the area agency. Commenters also cited the requirement in § 1321.93(e)(1)(v) referencing adherence to the Rules of Professional Conduct as helpful, particularly when AAAs with which they contract want them to provide confidential information about their clients without authorization from the client in contravention of the Rules of Professional Conduct. Regarding OAA-funded legal assistance programs that are located within a LSC grantee entity, commenters were particularly appreciative of § 1321.93(e)(3)(v)(c). That section enables the Assistant Secretary for Aging to exempt additional restrictions on activities and client representation that would otherwise be prohibited for legal assistance providers housed within a LSC grantee entity. This provision implements section 307(a)(11)(A) of the Act.239 The commenters noted that such restrictions can prevent legal assistance providers from advocating for individuals in the greatest social and economic need and require assistance in the very areas that the OAA identified as priorities. Response: We thank commenters for their comments. Comment: Section 1321.93(f) sets out legal assistance provider requirements. These requirements include taking reasonable steps to ensure meaningful access to legal assistance by older individuals with LEP and other communication needs, including 239 42 PO 00000 U.S.C. 3027(a)(11)(A). Frm 00050 Fmt 4701 Sfmt 4700 providing access to interpretation, translation, and auxiliary aids and services. Several commenters raised concerns that people who are deaf and rely on American Sign Language (ASL) or who rely on Communication Real Time Access (CART), as well as people with visual impairments and other sensory disabilities, have had difficulties accessing legal assistance. Response: We appreciate the concerns raised by these commenters and reiterate that the regulations require the legal assistance provider to provide the necessary accommodations. We agree with commenters that interpretation and translation services must be provided through qualified individuals. The use of qualified individuals is particularly critical, given the technical nature of discussions about legal rights. The use of untrained laypersons for interpretation and translation could lead to dangerous or detrimental outcomes, and conflicts with civil rights obligations. Comment: Section 1321.93(f) also prohibits the use of funds for lobbying. Subsection 1321.93(f)(4)(ii)(A)(5) clarifies that the section is not intended to prohibit legal assistance providers from testifying before a government agency, legislative body, or committee at the request of the government agency, legislative body, or committee. One commenter asked that we remove the requirement that the legal assistance provider may testify when requested to do so by the entity before which they propose to testify. The commenter pointed out that the legal assistance provider may have important information to share and a technical understanding of older adults’ experience with the issue but may not be able to obtain a timely request from the government agency, legislative body, or committee. Response: We decline to make the edit, as the language is consistent with other requirements for recipients of Federal funding. B. New Provisions Added To Clarify Responsibilities and Requirements Under Grants to State and Community Programs on Aging We include the following new provisions to provide direction in response to inquiries and feedback received from grantees and other interested parties and changes in the provision of services, and to clarify requirements under the Act. E:\FR\FM\14FER4.SGM 14FER4 Federal Register / Vol. 89, No. 31 / Wednesday, February 14, 2024 / Rules and Regulations Subpart B—State Agency Responsibilities § 1321.23 Appeal to the Departmental Appeals Board on Area Agency on Aging Withdrawal of Designation Section 305(a)(2)(A) of the Act empowers State agencies to designate eligible entities as AAAs.240 Section 305(b)(5)(C)(i) of the Act affords a AAA the right to appeal a State agency’s decision to revoke its designation including up to the Assistant Secretary for Aging.241 Per section 305(b)(5)(C)(iv) the Assistant Secretary for Aging may affirm or set aside the State agency’s decision.242 Historically, appeals of AAA designation to the Assistant Secretary for Aging have been extremely rare. Under new § 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 §§ 1321.17 and 1321.39. The HHS DAB provides impartial, independent review of disputed decisions under more than 60 statutory provisions. We believe this regulation will provide clarity and consistency to State agencies and AAAs. § 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, redesignated as §§ 1321.31 and 1321.35, address submission of amendments to the State plan and notification of State plan or amendment approval; however, they lack a process for notification of receipt of State plan amendments that are required to be submitted, but not approved by the Assistant Secretary for Aging. We include this new section to provide for notification of receipt of State plan amendments that do not require Assistant Secretary for Aging approval. ddrumheller on DSK120RN23PROD with RULES4 § 1321.47 Conflicts of Interest Policies and Procedures for State Agencies Section 307(a)(7)(B) of the Act directs State agencies to include assurances against COI in their State plans.243 As explained earlier, § 1321.3 defines two broad categories of conflict: one or more 240 42 U.S.C. 3025(a)(2)(A). section 3025(b)(5)(C)(i). 242 Id. section 3025(b)(5)(C)(iv). 243 42 U.S.C. 3027(a)(7)(B). 241 Id. VerDate Sep<11>2014 20:33 Feb 13, 2024 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. State agencies may wish to identify other COI based on State law or other requirements. Section 1321.47 requires State agencies to have policies and procedures that establish mechanisms to avoid both actual and perceived COI and to identify, remove, and remedy any existing COI at organizational and individual levels. They include providing a mechanism for informing relevant parties of COI responsibilities and identifying and addressing conflicts when they arise. 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 solutions that preserve the integrity of the mission of the Act. Comment: Many commenters supported proposed § 1321.47 and appreciated the clarification related to COI for OAA grantees and subrecipients. Several commenters provided suggestions to strengthen the rule. One commenter suggested requiring provisions related to COI in State plans on aging. Another commenter suggested establishing an appeals process for entities should a State agency identify a COI. A commenter suggested requiring training for individuals, including leadership, on COI. One commenter recommended a two-year timeframe for review and implementation of the rule’s COI provisions. Response: We appreciate these suggestions for strengthening the rule. Section 307(a)(7)(B) of the Act requires assurances related to COI in State plans, including that no officer, employee, or other representative of the State or area agency is subject to a COI prohibited under this Act.244 We decline to require additional COI provisions in State plans in this regulation because such provisions, if determined appropriate by the State agency, are best determined at the State level. State agencies may include such provisions in their State plans if they believe it will assist in implementation and enforcement of the rule’s COI requirements. We likewise decline to require the establishment of 244 Id. Jkt 262001 PO 00000 section 3027(a)(7)(B). Frm 00051 Fmt 4701 Sfmt 4700 11615 an appeals process. Such a process, if determined appropriate by the State agency, is best developed at the State level. We agree training for staff on COI is necessary and appropriately incorporated in the training required by § 1321.5(a). We intend to provide State agencies with technical assistance on this final rule’s COI provisions. We believe the timeframe specified for implementation of the rule is sufficient for State agencies to come into compliance. Comment: A few commenters pointed out the potential for COI when a State agency or a AAA is lobbied by private interest or establishes contracts and commercial relationships with private entities. Response: We agree that COI may arise in the context of contracts and commercial relationships with private entities. As detailed in the discussion of § 1321.9(c)(2), a State agency should consider the potential for a heightened risk of COI when developing policies and procedures for approving such agreements.245 ACL will continue to provide sub-regulatory guidance and technical assistance related to COI in contracts and commercial relationships for grantees and subrecipients. Comment: A few commenters sought to clarify that it may not be a COI for a State agency to operate both OAA programs and APS or a public guardianship program, for example. A commenter noted that such arrangements strengthen the ability of an agency to improve the lives of older adults and influence policy. Comments reiterated that this situation is not uncommon and requested clarity as to whether specific scenarios represent COI that cannot be mitigated. We received several comments that described how the commenters mitigated the potential COI with guardianship programs. For example, they only served as guardian of last resort; promoted the use of alternatives to guardianship; provided for defense of guardianship through another funding source; and generally adhered to the ethical standards for guardians developed by the National Guardianship Association. Response: Whether a COI exists due to co-location of APS and guardianship programs, and whether it can be mitigated, is fact-dependent. This provision does not suggest that certain programs may not be located in State agencies. Rather, State agencies should carefully evaluate the potential for COI to arise when programs are co-located and should create and maintain robust 245 88 E:\FR\FM\14FER4.SGM FR 39572 (June 16, 2023). 14FER4 11616 Federal Register / Vol. 89, No. 31 / Wednesday, February 14, 2024 / Rules and Regulations ddrumheller on DSK120RN23PROD with RULES4 polices, firewalls, monitoring, and remediation as necessary. To address concerns, however, we have amended § 1321.47 to require the State agency to document COI mitigation strategies, as necessary and appropriate, when a State agency or Title III program operates an APS or guardianship program. Comment: A few commenters requested eliminated or revising § 1321.47(a)(3), which requires ‘‘robust monitoring and oversight.’’ Commenters asserted that such monitoring would be too costly and burdensome to implement. Another commenter suggested that State plans on aging include provisions for the State agency to perform continual monitoring for COI. Response: We appreciate the comments. Given the importance of this provision to ensuring access to vital services, we decline to make changes. Comment: One commenter suggests that ACL add definitions for ‘‘financial interest’’ and ‘‘agent of the State’’ or give State agencies the discretion to adopt a State law or common definition. The commenter also asks whether ‘‘agent of the State’’ includes a AAA, employees of a AAA, and AAA providers. Response: As with all terms not defined in the Act or in this final rule, State agencies may use reasonable definitions for ‘‘financial interest’’ or ‘‘agent of the State’’ or any other term the State agency chooses to define (or chooses not to define) including State law or common definitions. § 1321.53 State Agency Title III and Title VI Coordination Responsibilities New § 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),246 307(a)(21)(A),247 614(a)(11),248 and 624(a)(3) 249 of the Act. We received inquiries and feedback from grantees and other interested parties 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 clarify that coordination is required under the Act and that all entities are responsible for coordination, including State agencies, AAAs, service providers, and Title VI grantees, and that State agencies must have specific policies and 246 42 U.S.C. 3026(a)(11)(B). U.S.C. 3027(a)(21)(A). 248 42 U.S.C. 3057e(a)(11). 249 42 U.S.C. 3057j(a)(3). 247 42 VerDate Sep<11>2014 20:33 Feb 13, 2024 Jkt 262001 procedures to guide coordination efforts within the State. Comment: Commenters overwhelmingly expressed support for coordination between Title III and Title VI programs. Comments expressed concern regarding the lack of coordination with Title VI grantees by State agencies, low amounts of funding provided under Title III to Tribes, and lack of technical assistance on how Tribes can apply for available Title III funds. One commenter recommended that any entities involved in provision of services under Title III of the Act develop their procedures for outreach and coordination with the relevant Title VI program director. Another commenter expressed they thought the proposed language regarding coordination was too permissive. We received a comment recommending specifying that services should be delivered in a culturally appropriate and trauma-informed manner. Some commenters also requested technical assistance for State agencies on their roles and responsibilities. We also received other suggestions, program management recommendations, and implementation questions regarding this provision, including regarding examples and best practices for coordination. Response: To make clear the responsibilities of State agencies under the Act, explicit expectations for coordination between Title III and Title VI programs are specified in this rule. The provision at § 1321.53 is complementary with the provisions for AAAs and service providers under Title III of the Act as set forth at § 1321.69 (Area agency on aging Title III and Title VI coordination responsibilities) and § 1321.95 (Service provider Title III and Title VI coordination responsibilities), as well as for Title VI grantees under the Act as set forth at § 1322.31 (Title VI and Title III coordination). This rule makes clear that all entities are responsible for coordination, including State agencies, AAAs, service providers, and Title VI grantees. Based on the comments received, we revised each provision to use consistent language, where appropriate. We explain the changes made in the following paragraphs. We have reordered the opening paragraph in § 1321.53 as § 1321.53(a) and have reordered the subsequent paragraphs accordingly. ACL also recognizes the variability of local circumstances, resources, and needs. We appreciate the comment recommending that Title III entities work with the relevant Title VI program directors in developing their policies and procedures regarding coordination. PO 00000 Frm 00052 Fmt 4701 Sfmt 4700 We have further revised the language at reorganized § 1321.53(a) to read, ‘‘For States where there are Title VI programs, the State agency’s policies and procedures, developed in coordination with the relevant Title VI program director(s) as set forth in § 1322.13(a), must explain how the State’s aging network, including area agencies and service providers, will coordinate with Title VI programs to ensure compliance with sections 306(a)(11)(B) (42 U.S.C. 3026(a)(11)(B)) and 307(a)(21)(A) (42 U.S.C. 3027(a)(21)(A)) of the Act. State agencies may meet these requirements through a Tribal consultation policy that includes Title VI programs.’’ We have created a reordered paragraph § 1321.53(b) and have revised this provision to clarify the topics that the policies and procedures set forth in paragraph (a) ‘‘[. . .] must at a minimum address[.]’’ As such, we have clarified that coordination is required. We further enumerate how outreach and referrals will be provided to Tribal elders and family caregivers regarding services for which they may be eligible under Title III and/or VII; remove duplicate language which was incorporated into revised paragraph (a); revise ‘‘such as’’ to ‘‘to include’’ in reference to meetings, email distribution lists, and public hearings and add ‘‘Title III and other funding opportunities, technical assistance on how to apply for Title III and other funding opportunities,’’ to the list of communication opportunities; clarify collaboration on and sharing of program information and changes; add ‘‘How services will be provided in a culturally appropriate and trauma-informed manner;’’ and add ‘‘Opportunities to serve on advisory councils, workgroups, and boards, including area agency advisory councils, as set forth in § 1321.63.’’ Regarding provision of Title III funding to Tribes, the amount of available Title III funding is limited to what is appropriated for such purposes. State agencies are required to distribute such funding to AAAs via an IFF in States with multiple PSAs, as required by the Act and as set forth at § 1321.49. In some States, Tribes have been designated as AAAs and receive Title III funds. Single PSA State agencies are required to distribute funds in accordance with a funds distribution plan as set forth at § 1321.51(b), and Title VI programs may receive funds under a contract or grant with a State agency in such States. State agencies and AAAs are required to establish and follow procurement policies in awarding Title III funds under the Act, E:\FR\FM\14FER4.SGM 14FER4 Federal Register / Vol. 89, No. 31 / Wednesday, February 14, 2024 / Rules and Regulations which may allow for awarding of funds to Title VI grantees, Tribes, and other Tribal organizations. ACL encourages Tribes and Tribal organizations to apply to provide Title III-funded services. However, the statute does not allow for a requirement that Title III funds be provided to Title VI grantees outside of the procurement policies in place for awarding of Title III funds under the Act. There are multiple successful examples of such coordination that ACL is committed to sharing and expanding. As such expectations were not explicitly stated in the prior regulation, we believe that the promulgation of these regulations will provide a significant opportunity to further coordination between Title III and Title VI programs, including improving ACL’s monitoring of programs for compliance. ACL anticipates providing technical assistance on this provision and other provisions related to coordination among Title VI and Title III programs upon promulgation of the final rule. ddrumheller on DSK120RN23PROD with RULES4 Subpart C—Area Agency Responsibilities § 1321.59 Area Agency Policies and Procedures Section 306 of the Act sets forth the responsibilities of AAAs regarding programs operated under the Act. 250 Section 306, in conjunction with other language throughout the Title III of the Act, establishes the AAA’s role with relation to the State agency and service providers.251 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 agency versus AAA responsibility. New § 1321.59 states that AAAs shall develop policies and procedures governing all aspects of programs operated under the Act, in compliance with State agency 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 incorporate the provision previously set forth at § 1321.25 (Restriction of delegation of authority to other agencies) within this new provision. Comment: ACL received many comments regarding the roles of both area agencies and State agencies in developing policies and procedures for the area agency. Most of these comments expressed support for the 250 42 U.S.C. 3026. 251 Id. VerDate Sep<11>2014 20:33 Feb 13, 2024 Jkt 262001 proposed provision as detailed in § 1321.59(a) and the reinforcement of an area agency’s responsibility for developing their own policies and procedures, in compliance with the State agency’s rules. A variety of commenters recommended that State agencies and program participants explicitly be consulted with surrounding the development of area agency policies and procedures. Response: ACL appreciates comments regarding the development of area agency policies and procedures. As commenters noted, area agencies have the authority and responsibility to develop their own policies and procedures. These policies and procedures must be developed in compliance with all State agency policies and procedures, including those detailed in § 1321.9, and be in alignment with the Act and all applicable Federal requirements, and, where appropriate, in consultation with other parties in the PSAs. ACL maintains that the rule provides area agencies the flexibility to develop policies and procedures that align with the needs of their individual PSAs. Area agencies have full authority to consult with State agencies in the development of policies and procedures, as appropriate. Further, the Act requires area agencies to establish advisory councils who help with developing and administering the area plan; § 1321.63 requires the councils to be representative of program participants or those that are eligible to participate and to solicit and incorporate public input into the area plan, which will help ensure that the perspectives of older adults are incorporated into area agency policies and procedures. Comment: Some commenters requested that ACL revise § 1321.59(b) to require area agencies to make quality monitoring and measurement results publicly available and specifically requested that they be available to the public in ‘‘plain language format designed to support and provide information and choice.’’ Response: ACL appreciates comments related to the transparency of quality monitoring and measurement results and the importance of sharing information with the public in a manner that is easily accessible and understood. We maintain that § 1321.59(b) encourages both transparency and accessibility surrounding quality monitoring and measurement results and decline to revise the provision. ACL will continue to provide technical assistance to encourage area agencies to ensure that quality monitoring and measurement results are available to the PO 00000 Frm 00053 Fmt 4701 Sfmt 4700 11617 public and provide technical assistance surrounding best practices for communicating in plain language. Comment: One commenter voiced concern that § 1321.59(d), which clarifies that area agencies may not delegate the authority to award or administer funds to another agency, could be understood to prohibit provider subgrants which would disrupt program and service delivery. The commenter provided a specific example in which an area agency may contract with a county-based service provider which then in-turn provides subawards for home-delivered meals. Response: ACL appreciates the request for clarity surrounding § 1321.59(d). This section requires the area agency to be responsible for approving and administering funding for all subawards; area agencies may not delegate the authority to award or administer funds to another agency. In the example provided, the area agency would need to approve all subawards by the service provider and would be responsible for administering all funding under the subawards. ACL will provide technical assistance regarding this requirement, as needed. Comment: One commenter proposed setting requirements for eligibility beyond age and need, assessment, planning, and detailing the limitation of the frequency or type of services provided. The commenter also stated that if there is a limit of service and hours, there would need to be a staffing procedure to allow for the circumstances when additional hours are necessary. Response: Given the wide variation in resources, needs, and available services, ACL believes that this regulation sufficiently requires establishment of policies and procedures at the AAA level, in accordance with State agency policies and procedures. State agencies and AAAs may establish additional policies and procedures, as long as they are in accordance with the Act and all applicable Federal requirements. § 1321.67 Conflicts of Interest Policies and Procedures for Area Agencies on Aging As previously discussed, § 1321.3 defines COI, and § 1321.47 explains the responsibilities of State agencies to avoid and mitigate COI. Similarly, § 1321.67 explains the responsibilities of AAAs to meet the requirements of section 307(a)(7)(B) of the Act.252 AAAs must have policies and procedures to identify both organizational and individual COI. The policies must 252 42 E:\FR\FM\14FER4.SGM U.S.C. 3027(a)(7)(B). 14FER4 ddrumheller on DSK120RN23PROD with RULES4 11618 Federal Register / Vol. 89, No. 31 / Wednesday, February 14, 2024 / Rules and Regulations 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. AAAs have expanded their business activities over the last decade, necessitating additional guidance on preventing and mitigating COI so they may engage in the new activities and carry out the objectives of the Act. Comment: Several commenters requested more information and assistance in identifying and addressing COI, including examples, training, tools, and best practices. Commenters noted that there is currently no process in place for Title III providers or AAA administrators to comply with the proposed rule to ‘‘ensure that no individual or immediate family of and individual involved in Title III program has a conflict of interest’’ and noted that the additional screening could be burdensome for programs. One commenter emphasized the need for flexibility as State agencies and AAAs address and mitigate COI. Response: We intend to provide technical assistance to AAAs and State agencies on COI requirements. We welcome ongoing feedback as we develop these materials. In policies involving COI, and throughout this rule, we recognize the need to balance flexibility and ease of administration for grantees and subrecipients while adhering to the requirements of the Act. Comment: We received numerous comments on COI related to guardianship programs administered by AAAs. Several commenters wrote in support of allowing AAAs to serve as public guardians. Some noted that such programs are a last resort. A commenter offered that allowing a AAA to serve as a guardian was preferable to relying on a for-profit entity, where the presence of a profit motive heightens the risk of abuse. One commenter wrote that guardianship programs hosted by AAAs were particularly important in rural communities, where other options may not be readily available. Many commenters stressed the necessity of appropriate safeguards and firewalls for guardianship programs colocated in or administered by AAAs. Some commenters provided examples of successful guardianship programs administered by AAAs. Commenters stressed that such programs can be ethically and efficiently administered alongside other Title III programs with appropriate measures to protect from COI and further detailed the process by which their State agency or a AAA establishes firewalls to protect against conflicts. As discussed in response to VerDate Sep<11>2014 20:33 Feb 13, 2024 Jkt 262001 comments to § 1321.47, commenters described mitigation strategies such as serving as guardian of last resort; promoting the use of alternatives to guardianship; and providing for defense of guardianship through another funding source. A number of other commenters, however, held that it is in the public interest to prohibit AAAs from being appointed as guardians and that an inherent and irremediable COI exists for a AAA hosting a guardianship program. One commenter offered an example wherein individuals remained in a nursing home when they should have received care in the community due to a COI in a AAA guardianship program. Response: We appreciate commenters who responded to our request for input regarding AAAs conducting guardianship programs or being appointed the guardian for an older person. We recognize the potential for COI and are sensitive to the gravity of such situations and concerns of commenters who believe such conflicts are irredeemable. However, we decline to completely prohibit AAAs from hosting guardianship programs or serving as guardians to older adults. As noted by some commenters, oftentimes these programs and appointments exist because no other alternative is available. Furthermore, some State statutes appoint the AAA or State agency to serve as guardian in cases where no other entity is available or appropriate. We agree that policies and procedures including firewalls and other safeguards are necessary to protect against COI for AAAs that serve as guardians. Therefore, we have amended both § 1321.47 and § 1321.67 to require documentation of COI mitigation strategies, as necessary and appropriate, when a State agency, AAA, or Title III program operates an Adult Protective Services or guardianship program. We will continue to provide technical assistance to State agencies and AAAs. Comment: A commenter expressed support for APS and Ombudsman programs co-located within AAAs provided there are appropriate safeguards and firewalls in place. Another commenter sought to clarify whether an organizational COI necessarily exists when a AAA provides both OAA and non-OAA services. The commenter noted deeming such a situation a COI may create an administrative burden and increase programmatic costs. Response: Many APS and Ombudsman programs are located in AAAs. We agree such placement is advantageous in many situations; PO 00000 Frm 00054 Fmt 4701 Sfmt 4700 however, appropriate COI policies and procedures are necessary. As stated in response to the previous comment, we have amended §§ 1321.47 and 1321.67 to require documentation of mitigation strategies when a State agency or AAA also houses the APS program. We also wish to clarify that a AAA providing both OAA and non-OAA services is not a per se COI. We recognize this is an extremely common occurrence and encourage AAAs to develop dynamic and diverse service delivery systems. The COI standards for AAAs in this final rule apply across organizations, providers, and service relationships. Furthermore, some nonOAA programs offered by a AAA may be governed by their own COI rules, for example the State Health Insurance Assistance Program or Medicaid managed care plans. Ombudsman program COI requirements are governed by this rule at § 1324.21. Comment: A few commenters noted that in small communities, particularly rural and frontier areas, many AAAs with limited providers may be serving family members. Agency staff may be related to staff of organizations that receive Title III funding. A commenter noted that nearly everyone wears multiple hats and has relationships within the organization and community. Response: We understand that in smaller communities the possibility for individual and organizational COI may be more likely to arise simply by nature of communities’ size and structure. Whether and how actual or potential COI may be remedied through appropriate policies and procedures is fact-dependent. Factors to consider include whether the individual in question is a decision maker, whether firewalls or other safeguards can be erected between organizations and individuals, and what monitoring protocols are in place for a potentially conflicted situation. Similarly, if a conflict arises, a AAA may ask whether it can be remediated and what the likely impact will be on the quality of services and the credibility of the AAA, its employees, and agents. § 1321.69 Area Agency on Aging Title III and Title VI Coordination Responsibilities Consistent with new § 1321.53 (State agency Title III and Title VI coordination responsibilities), new § 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),253 253 42 E:\FR\FM\14FER4.SGM U.S.C. 3026(a)(11)(B). 14FER4 ddrumheller on DSK120RN23PROD with RULES4 Federal Register / Vol. 89, No. 31 / Wednesday, February 14, 2024 / Rules and Regulations 307(a)(21)(A),254 614(a)(11),255 and 624(a)(3) 256 of the Act. We clarify that coordination is required under the Act and that all entities are responsible for coordination, including State agencies, AAAs, service providers, and Title VI grantees. The section complements the language at § 1321.53 for State agencies, and includes specific considerations for AAAs, such as opportunities for representatives of Title VI grantees to serve on AAA advisory councils, workgroups, and boards and opportunities to receive notice of Title III and other funding opportunities. Comment: Commenters overwhelmingly expressed support for coordination between Title III and Title VI programs. Comments expressed concern regarding the lack of coordination with Title VI grantees, low amounts of funding provided under Title III to Tribes, and lack of technical assistance on how to apply for available Title III funds. One commenter recommended that any entities involved in provision of services under Title III of the Act develop their procedures for outreach and coordination with the relevant Title VI program director. Another commenter expressed they thought the proposed language regarding coordination was too permissive. We received a comment recommending specifying that services should be delivered in a culturally appropriate and trauma-informed manner. Some commenters also requested technical assistance on roles and responsibilities. We also received other suggestions, program management recommendations, and implementation questions regarding this provision, including regarding examples and best practices for coordination. Response: To make clear the responsibilities of area agencies under the Act, explicit expectations for coordination between Title III and Title VI programs are included as new provisions in this rule. The provision at § 1321.69 is complementary with the provisions for State agencies and service providers under Title III of the Act as set forth at § 1321.53 (State agency Title III and Title VI coordination responsibilities) and § 1321.95 (Service provider Title III and Title VI coordination responsibilities), as well as for Title VI grantees under the Act as set forth at § 1322.31 (Title VI and Title III coordination). This rule makes clear that all entities are responsible for coordination, including AAAs, State agencies, service providers, and Title VI 254 42 U.S.C. 3027(a)(21)(A). U.S.C. 3057e(a)(11). 256 42 U.S.C. 3057j(a)(3). 255 42 VerDate Sep<11>2014 20:33 Feb 13, 2024 Jkt 262001 grantees. Based on the comments received, we have revised each provision to use consistent language, where appropriate. We explain the changes we have made in the following paragraphs. We have reordered the opening paragraph in § 1321.69 as § 1321.69(a) and have reordered the subsequent paragraphs accordingly. ACL also recognizes the variability of local circumstances, resources, and needs. We appreciate the comment recommending that Title III entities work with the relevant Title VI program directors in developing their policies and procedures regarding coordination. We have revised the language at § 1321.69(a) to read, ‘‘For planning and service areas where there are Title VI programs, the area agency’s policies and procedures, developed in coordination with the relevant Title VI program director(s) as set forth in § 1322.13(a), must explain how the area agency’s aging network, including service providers, will coordinate with Title VI programs to ensure compliance with section 306(a)(11)(B) (42 U.S.C. 3026(a)(11)(B)) of the Act.’’ We have created a reordered paragraph § 1321.69(b) and have revised this provision to clarify the topics that the policies and procedures set forth in paragraph (a) ‘‘must at a minimum address[.]’’ As such, we clarify that coordination is required. We have further made edits to require how outreach and referrals will be provided to Tribal elders and family caregivers regarding services for which they may be eligible under Title III; revise ‘‘such as’’ to ‘‘to include’’ in reference to meetings, email distribution lists, presentations, and public hearings and add ‘‘Title III and other funding opportunities, technical assistance on how to apply for Title III and other funding opportunities,’’ to the list of communication opportunities; clarify collaboration on and sharing of program information and changes to include coordinating with service providers where applicable; add how services will be provided in a trauma-informed, as well as culturally appropriate, manner; and add ‘‘Opportunities to serve on advisory councils, workgroups, and boards, including area agency advisory councils, as set forth in § 1321.63.’’ We have removed duplicate provisions that were otherwise incorporated into revised paragraph (b). Regarding provision of Title III funding to Tribes, the amount of available Title III funding is limited to what is appropriated for such purposes. State agencies are required to distribute such funding to AAAs via an IFF in PO 00000 Frm 00055 Fmt 4701 Sfmt 4700 11619 States with multiple PSAs, as required by the Act and as set forth at § 1321.49. In some States, Tribes have been designated as AAAs and receive Title III funds. Single PSA State agencies are required to distribute funds in accordance with a funds distribution plan as set forth at § 1321.51(b), and Title VI programs may receive funds under a contract or grant with a State agency in such States. State agencies and AAAs are required to establish and follow procurement policies in awarding Title III funds under the Act, which may allow for awarding of funds to Title VI grantees, Tribes, and other Tribal organizations. ACL encourages Tribes and Tribal organizations to apply to provide Title III-funded services. However, the statute does not allow for a requirement that Title III funds be provided to Title VI grantees outside of the procurement policies in place for awarding of Title III funds under the Act. There are multiple successful examples of such coordination that ACL is committed to sharing and expanding. As such expectations were not explicitly stated in the prior regulation, we believe that the promulgation of these regulations will provide a significant opportunity to further coordination between Title III and Title VI programs, including improving ACL’s monitoring of programs for compliance. ACL anticipates providing sub-regulatory guidance and technical assistance on this provision and other provisions related to coordination among Title VI and Title III programs upon promulgation of the final rule. Subpart D—Service Requirements § 1321.77 Purpose of Services— Person- and Family-Centered, TraumaInformed New § 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 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 traumainformed services.257 Comment: We received comments supporting person-centered and traumainformed services in the regulations, consistent use of these terms throughout the regulations, and in-depth training on diversity, equity, inclusion, and accessibility being offered to every 257 42 E:\FR\FM\14FER4.SGM U.S.C. 3001. 14FER4 11620 Federal Register / Vol. 89, No. 31 / Wednesday, February 14, 2024 / Rules and Regulations person who provides services and programs for older adults. Response: ACL appreciates these comments and notes that training by State agencies, AAAs, and service providers is required at § 1321.77(c). However, we defer to entities to determine the specific content of the required training. Comment: Another commenter stressed that as part of person-centered supports and planning, assistance with activities of daily living and independent activities of daily living should be provided, with interagency and intergovernmental promotion of these services. Response: ACL appreciates these supportive comments and notes that assistance with activities of daily living and independent activities of daily living may be provided with funds under the Act, as set forth at § 1321.85 (Supportive services). Further, coordination and interagency collaboration are listed as expectations under § 1321.5 (Mission of the State agency) and § 1321.55 (Mission of the area agency). Comment: A commenter suggested edits regarding person-centered services. Response: We appreciate this suggestion and add the following, ‘‘Person-centered services may include community-centered and familycentered approaches consistent with the traditions, practices, beliefs, and cultural norms and expectations of older adults and family caregivers’’ in § 1321.77(a). Comment: We received other suggestions, program management recommendations, and implementation questions regarding this provision. Response: We decline to make further changes to this provision and intend to address other suggestions and requests for clarification through technical assistance. ddrumheller on DSK120RN23PROD with RULES4 § 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 VerDate Sep<11>2014 20:33 Feb 13, 2024 Jkt 262001 services, which is not allowable under the Act. New § 1321.81 clarifies eligibility requirements under the Act and explains that State agencies, 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. Comment: We received comments asking for the age of eligibility for services under Title III to be lowered to allow for service to Tribal elders to coincide with the age of eligibility set by the Tribe and to allow for service to individuals of young onset of Alzheimer’s disease and related dementias. We also received comment requesting an increase of the age for eligibility of service to 65 years old. Response: The Act defines ‘‘older individual’’ in section 102(40), ‘‘The term ‘‘older individual’’ means an individual who is 60 years of age or older.’’ 258 As such we do not have the authority to modify this provision in response to comments. Title III allows for services to family caregivers of individuals of any age with Alzheimer’s or related disorder at section 302(3), ‘‘[t]he term ‘‘family caregiver’’ means an adult family member, or another individual, who is an informal provider of in-home and community care to an older individual or to an individual of any age with Alzheimer’s disease or a related disorder with neurological and organic brain dysfunction,’’ 259 along with service to ‘‘older relative caregivers,’’ as further defined below. The regulation for services provided under Title VI at § 1322.3 provides the following definition, ‘‘Older Indians, means those individuals who have attained the minimum age determined by the Indian Tribe for services.’’ Comment: One commenter expressed concern that no requirements were set forth that address service to unlawfully present individuals. Response: There is no requirement that recipients of services be citizens of the United States nor be lawfully present to receive services under the OAA. In September 2022, the Department of Homeland Security (DHS) finalized a rule defining the criteria it uses when determining whether a person can be denied a visa and/or legal residency because they are likely to become a ‘‘public charge.’’ Services provided under the OAA are not among those considered in determining whether a person is likely 258 Id. 259 42 PO 00000 section 3001(40). U.S.C. 3021(3). Frm 00056 Fmt 4701 to become a ‘‘public charge.’’ 260 State agencies, AAAs, and service providers under the Act should not require that recipients of services be citizens of the United States nor be lawfully present to receive services under the Older Americans Act. Comment: We received comment that Ombudsman program services be included among the list of exceptions in § 1321.81(a). Response: We appreciate this comment and add (4) to read, ‘‘Ombudsman program services, as provided in part 1324.’’ Comment: We received comments asking for clarity regarding § 1321.81(a)(2). We received another comment noting that ‘‘age 55 or older’’ is redundant in § 1321.81(a)(2)(ii) and (iii), as that is a component of the definition of ‘‘older relative caregiver.’’ Response: We appreciate these comments and have revised § 1321.81(a)(2)(i) to read, ‘‘Adults caring for older adults and adults caring for individuals of any age with Alzheimer’s or a related disorder[.]’’ We have also removed the redundant language in § 1321.81(a)(2)(ii) and (iii). To clarify, ‘‘family caregiver’’ does not include the following categories of individuals: (1) an individual under age 55 caring for an adult under age 60 without Alzheimer’s or a related disorder; (2) an individual under age 55 caring for a child under age 18; and (3) an individual age 55 or older who is caring for a child under age 18, where the individual’s relationship to the child is that of biological or adoptive parent, not including adoptive parents who are also grandparents. Comment: We received various comments in support of this provision, as well as other suggestions, program management recommendations, and implementation questions regarding this provision. Response: We appreciate the comments of support and decline to make further changes to this provision. We intend to address other suggestions and requests for clarification through technical assistance. § 1321.85 Supportive Services New § 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 260 Public Charge Ground of Inadmissibility, 8 CFR 212.20 et seq. Sfmt 4700 E:\FR\FM\14FER4.SGM 14FER4 ddrumheller on DSK120RN23PROD with RULES4 Federal Register / Vol. 89, No. 31 / Wednesday, February 14, 2024 / Rules and Regulations an approved IFF or funds distribution plan, as articulated in the State plan.261 Comment: We received various comments noting need for the types of in-home supportive services that may be provided under this provision, including help with housework like cleaning and laundry and home maintenance and repairs. Some commenters noted that while needed, such services are not available. Response: In-home supportive services provided under the Act may include homemaker services (to help with routine household tasks like cleaning and doing laundry) and repairs to and minor modification of homes to allow an older adult to age in place. ACL acknowledges that the need for such services is likely to exceed the available funding under the Act. With these regulations, ACL intends to clarify how funds under the Act may be used, in coordination with the other provisions set forth at §§ 1321.27 and 1321.65 regarding identifying persons in greatest economic need and greatest social need who should be prioritized in receiving services under the Act, as well as the role of public participation in guiding how funds under the Act are used in State and area plans on aging. Comment: We received a comment noting need for the types of access services that may be provided under this provision, including free or affordable transportation in rural areas. The commenter noted that while needed, such services are not available. Response: Access services provided under the Act may include transportation. ACL acknowledges that the need for such services is likely to exceed the available funding under the Act. With these regulations, ACL intends to clarify how funds under the Act may be used, in coordination with the other provisions set forth at §§ 1321.27 and 1321.65 regarding identifying persons in greatest economic need and greatest social need who should be prioritized in receiving services under the Act, as well as the role of public participation in guiding how funds under the Act are used in State and area plans on aging. Comment: Several commenters recommended changes to this section to make clear that while expenditures for multipurpose senior centers should be allowable, a multipurpose senior center is not in and of itself a service. Response: In referencing supports which may be provided with funds under the Act, multipurpose senior centers are mentioned multiple times, including in section 301(a)(1) regarding 261 42 U.S.C. 3030d. VerDate Sep<11>2014 20:33 Feb 13, 2024 Jkt 262001 the purpose of Title III,262 section 303 regarding authorization of appropriations and uses of funds,263 section 304 regarding allotment and Federal share,264 section 306(a)(1) regarding area plans on aging,265 and in the title of Part B, ‘‘Supportive Services and Senior Centers.’’ 266 We note that some in the aging network may implement multipurpose senior centers as a service, consistent with section 321(a),267 which authorizes services that promote or support social connectedness and reduce negative health effects associated with social isolation and any other services necessary for the general welfare of older individuals. The service of multipurpose senior centers may track measures such as number of visits, number of unduplicated persons served, and hours of staff/volunteer time. For the purposes of including multipurpose senior centers as an allowable expenditure of funds appropriated under Title III, part B as set forth at § 1321.71(a)(1) and an allowable access service to meet minimum adequate proportion provisions as set forth at § 1321.27(i), we consider multipurpose senior centers to be a supportive service and decline to make changes to this provision. We have made an edit at § 1321.3 (Definitions) to indicate ‘‘[. . .] as used in § 1321.85, facilitation of services in such a facility.’’ Comment: We received other suggestions regarding this provision, including specifying other services that may be allowable. Response: As referenced in this provision, section 321 of the Act sets forth twenty-six types of supportive services that may be provided.268 State agencies and AAAs also have certain flexibility to craft service definitions and requirements to reflect their specific circumstances and meet local needs. For these reasons, we decline to make further changes to this provision and intend to address other suggestions and requests for clarification through technical assistance. § 1321.87 Nutrition Services New § 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 262 42 U.S.C. 3021(a)(1). U.S.C. 3023. 264 42 U.S.C. 3024. 265 42 U.S.C. 3026(a)(1). 266 42 U.S.C. Ch. 35, Subch. III, Pt. B. 267 42 U.S.C. 3030d(a). 268 Id. section 3030d. 263 42 PO 00000 Frm 00057 Fmt 4701 Sfmt 4700 11621 other nutrition services.269 Based on experiences during the COVID–19 PHE and numerous requests for flexibility in provision of meals, we set forth that meals provided under Title III, part 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 clarify that home-delivered meals may be provided via home delivery, pick-up, carry-out, or drivethrough and that eligibility for homedelivered 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 specify that nutrition education, nutrition counseling, and other nutrition services may be provided with funds under Title III, parts C–1 or C–2 of the Act. As required by section 331(1), we set forth requirements to determine the frequency of meals in areas where five or more days a week of service is not feasible.270 This provision also clarifies that funds must be distributed through an approved IFF or funds distribution plan, as articulated in the State plan. Finally, this provision sets forth requirements for NSIP allocations. NSIP allocations are based on the number of meals reported by the State agency which meet certain requirements, as specified. State agencies may choose to receive their allocation grants as cash, commodities, or a combination thereof. NSIP funds may only be used to purchase domestically produced foods (definition included in § 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 NSIP. Comment: We received many comments for individual participants in nutrition programs funded under the Act who shared what they liked about the nutrition program and their suggestions for maintaining and improving the nutrition program. Response: We are grateful for the feedback from individual participants and will use their feedback in promulgating these regulations, as well 269 42 U.S.C. 3030d; 42 U.S.C. 3030e; 42 U.S.C. 3030f; 42 U.S.C. 3030g. 270 42 U.S.C. 3030e(1). E:\FR\FM\14FER4.SGM 14FER4 ddrumheller on DSK120RN23PROD with RULES4 11622 Federal Register / Vol. 89, No. 31 / Wednesday, February 14, 2024 / Rules and Regulations as in considering other technical assistance. Comment: We received comments noting a technical correction needed at § 1321.87(a)(1)(ii). Response: We are grateful for these comments, and revise this provision to read ‘‘Meals provided as set forth in (i) shall[.]’’ Comment: We received various comments requesting improved meal presentation. Response: ACL recognizes the importance of meals and other services provided under the Act being appealing to participants. Such services are to be person-centered, as set forth in § 1321.77. Additionally, we expect that feedback from service participants will be solicited and used to the greatest extent possible in the ongoing provision of services as set forth in § 1321.73(c). To further clarify the importance of the participant experience, we have added ‘‘[. . .] and preferences,’’ to the expectations for monitoring participant needs set forth in § 1321.73(c). Comment: We received many comments expressing support for shelfstable, pick-up, carry-out, drive through, ‘‘grab and go,’’ and similar options. Other commenters disagreed with broadening congregate meal program requirements, allowing for virtual congregate meals programming, and expanding the circumstances allowable for home-delivered meal service provision. We also received comment in support of groceries being included under other nutrition services. Response: ACL appreciates the comments in support of various nutrition services and delivery options to meet the purposes and requirements of the Act. We also recognize the evolution of service models that were initiated during the COVID–19 PHE being adapted into ongoing practice. We note that while these regulations set forth the types of services that may be provided, State agencies, AAAs, and service providers will likely need to make decisions about what services are provided and any applicable limitations, due to limited resources available, the need to prioritize service to individuals in the greatest economic need and greatest social need, and other factors as set forth at § 1321.81(b). Comment: We received a comment expressing that local program requirements hinder the nutrition program. Response: Given the wide variation in resources, needs, and available services, ACL believes that this regulation sufficiently requires establishment of policies and procedures at the State agency, AAA, and/or service provider VerDate Sep<11>2014 20:33 Feb 13, 2024 Jkt 262001 levels as set forth in § 1321.73(a). For consistency, we have revised § 1321.87(b) to be clear that AAAs may develop policies and procedures regarding this provision as delegated by the State agency. State agencies, AAAs, and service providers may establish additional policies and procedures, as long as they are in accordance with the Act and all applicable Federal requirements. Such additional policies and procedures should further the purposes of the Act and be consistent with a person-centered manner of service provision, as set forth at § 1321.77. Additional information on how State agencies, AAAs, and service providers have implemented various policies and procedures is available at ACL’s Nutrition and Aging Resource Center: https://acl.gov/senior-nutrition. Comment: We received many comments noting the importance of the nutrition programs provided under the Act, as well as culturally appropriate meals, medically tailored meals, fresh produce, and locally sourced food. Other commenters noted support for the clarifications included in this provision. Response: We appreciate these comments. Comment: We received comments asking to allow State agencies and/or AAAs to make decisions on whether to provide shelf-stable, pick-up, carry-out, drive-through, or similar meals with Title III, part C–1 funds as set forth in § 1321.87(a)(1)(i), without AAAs requiring the State agency’s approval, the provision of such meals statewide, or demonstration that such meals complement the congregate meal program. Response: Congress appropriates separate funds for congregate and homedelivered meals, as set forth by the Act. The State agency is responsible for policies and procedures to implement programs under the Act, as well as for making the decision about whether or not to permit the provision of shelfstable, pick-up, carry-out, drive-through, or similar meals. The State agency is responsible for ensuring program requirements are met, including reporting to ACL. We note that nothing in this provision requires this option to be offered statewide; if State agencies choose to permit the provision of these types of meals using Title III, part C–1 funds, that decision must be incorporated into the applicable State and area plans. For these reasons, we decline to amend the requirements in the final rule. We encourage that if this option is pursued, the State agency and area agencies use streamlined processes for documenting the use of this option in State and area plans, for monitoring PO 00000 Frm 00058 Fmt 4701 Sfmt 4700 the use of this option, and for reporting on the use of this option. Comment: We received comments asking to modify the 20 percent limit on shelf-stable, pick-up, carry-out, drivethrough, or similar meals with Title III, part C–1 funds as set forth in § 1321.87(a)(1)(ii) and to clarify if the 20 percent limit is to be calculated based on the original allocation to the State or after completion of any transfers. Response: Congress appropriates separate funds for congregate and homedelivered meals, as set forth by the Act. ACL believes that offering a limited number of shelf-stable, pick-up, carryout, drive-through, or similar meals to complement the congregate meals program and meet unique needs of program participants in greatest economic need and greatest social need is allowable and aligned with the purpose of these funds as appropriated. Based on the feedback we received, we believe that a limit of up to 25 percent, to be calculated based on the final amount of the Title III, part C–1 award after all transfers as set forth in § 1321.9(c)(2)(iii), is a reasonable approach to provide some flexibility while retaining the important aspects of the congregate meals program. As a result, ACL has modified the provisions at § 1321.87(a)(1)(ii)(A) to read ‘‘Not exceed 25 percent of the funds expended by the State agency under Title III, part C–1, to be calculated based on the amount of Title III, part C–1 funds available after all transfers as set forth in § 1321.9(c)(2)(iii) are completed;’’ and at § 1321.87(a)(1)(ii)(B) to read, ‘‘Not exceed 25 percent of the funds expended by any area agency on aging under Title III, part C–1, to be calculated based on the amount of Title III, part C–1 funds available after all transfers as set forth in § 1321.9(c)(2)(iii) are completed.’’ Comment: Several commenters asked ACL to remove distinctions between funding for congregate meals and homedelivered meals. We also received comments expressing hope that if another pandemic occurs that carry-out and similar meals would be allowed without the 20% restriction. Response: Congress appropriates separate funds for congregate and homedelivered meals, as set forth by the Act. ACL is unable to make changes to statutory provisions. As they did during the COVID–19 PHE through the Coronavirus Aid, Relief, and Economic Security (CARES) Act, Congress may also enact measures that allow for flexible use of funds for specific disaster situations. Should another pandemic or large-scale disaster occur, ACL set forth at §§ 1321.99 and 1321.101 additional E:\FR\FM\14FER4.SGM 14FER4 ddrumheller on DSK120RN23PROD with RULES4 Federal Register / Vol. 89, No. 31 / Wednesday, February 14, 2024 / Rules and Regulations flexibilities that could be exercised. ACL’s Nutrition and Aging Resource Center at https://acl.gov/senior-nutrition provides many useful resources for how existing OAA flexibilities can be utilized to manage emergencies. Comment: We received request for clarification regarding meals meeting the Dietary Guidelines for Americans and Dietary Reference Intakes as set forth in section 339 of the OAA.271 Response: We appreciate this inquiry and confirm that meals provided with funds under the Act must meet the Dietary Guidelines for Americans and Dietary Reference Intakes as set forth in section 339.272 We have revised § 1321.87(a)(1) and (2) to read ‘‘[. . .] are meals meeting the Dietary Guidelines for Americans and Dietary Reference Intakes as set forth in section 339 (42 U.S.C. 3030g–21) provided[.]’’ Comment: Some commenters had questions on the expectations for nutrition education and nutrition counseling, including if nutrition education and nutrition counseling may also be provided with funding under Title III, part B, if these services may be provided to individuals not receiving meal services, and whether the requirements must adhere to the Nutrition Care Process of the Academy of Nutrition and Dietetics. Response: ACL differentiates and sets forth requirements for nutrition education and nutrition counseling at § 1321.87(a)(3) and (4), respectively. We acknowledge that due to various issues, including limited resources and local variation, implementation decisions that are consistent with the Act and all applicable Federal requirements are determined by the State agency, AAA, and/or service provider. The provisions in this rule allow for nutrition education and nutrition counseling to be provided in various modalities, including telephonic and virtual delivery to expand access to the services. Nutrition education content is to be consistent with the Dietary Guidelines for Americans; accurate, culturally sensitive, regionally appropriate, and considerate of personal preferences; and overseen by a registered dietitian or individual of comparable expertise, as set forth in section 339(1) of the OAA.273 Section 321 of the Act sets forth supportive services that may be provided with funds under Title III, part B of the Act, including ‘‘(17) health and nutrition education services, including information concerning prevention, 271 42 U.S.C. 3030g–21. 272 Id. 273 42 diagnosis, treatment, and rehabilitation of age-related diseases and chronic disabling conditions;’’ 274 and ‘‘(26) any other services necessary for the general welfare of older individuals; if such services meet standards prescribed by the Assistant Secretary and are necessary for the general welfare of older individuals.’’ 275 Expectations for nutrition education or nutrition counseling that are provided as supportive services are set forth in this rule at § 1321.85. The Act and these provisions do not require individuals receiving nutrition education and nutrition counseling to receive meal services, although nutrition education and nutrition counseling should be provided based on the needs of meal participants. For example, eligible individuals who have significant or multiple dietary restrictions for which Title III, part C meals may not be appropriate (e.g., medically required tube feedings, severe allergies which cannot be reasonably accommodated), may participate in nutrition education or nutrition counseling. The Academy of Nutrition and Dietetics does not require the Nutrition Care Process approach for documenting nutrition counseling sessions. Therefore, we have removed the requirement to follow the Nutrition Care Process approach from § 1321.87(a)(4) and have made other minor edits in this provision for consistency. Comment: We received a request for clarification if § 1321.87(d)(1)(i) means that meals provided to eligible individuals receiving family caregiver support services under the Act could be reported by the State agency for use in determining the State agency’s NSIP allocation. Response: Yes, we confirm this is allowable, if reported in alignment with NSIP reporting requirements, as set forth by the Assistant Secretary for Aging. Comment: We received comment requesting clarification that a voluntary contribution made by an individual receiving nutrition program services under the Act is not a ‘‘payment’’ for purposes of section 170(e)(3) of the Internal Revenue Code, which provides for deductions of qualified contributions of food inventory. Response: Issues relating to the Internal Revenue Code and requirements relating to United States Department of Agriculture (USDA)donated foods are outside the scope of this regulation. While ACL does not consider voluntary contributions under 274 42 U.S.C. 3030g–21(1). VerDate Sep<11>2014 20:33 Feb 13, 2024 275 Id Jkt 262001 PO 00000 U.S.C. 3030d(a)(17). section 3030d(a)(26). Frm 00059 Fmt 4701 Sfmt 4700 11623 the Act to be payments, the ACL-funded National Resource Center on Nutrition & Aging fact sheet on Partnerships with Foodbanks and Other USDA Programs at https://acl.gov/sites/default/files/ nutrition/Partnerships-with-Foodbanksand-Other-United-States-Department-ofAgriculture-non-COVID_508.pdf may be of interest in working with other programs and partners. Comment: We received comments requesting clarity on the State agency’s role regarding provision of meals less than five days per week. Response: In response to this request for clarification, we have revised the provision at § 1321.87(b) to be clear regarding the State agency’s role. The State agency must establish policies and procedures that define a nutrition project and include how nutrition projects will provide meals and nutrition services five or more days per week in accordance with the Act. The definition established by the State agency must consider the availability of resources and the community’s need for nutrition services as described in the State and area plans. Comment: We received various comments suggesting requirements that should be used for eligibility determination, speed of service initiation, reporting, and other program management topics. Response: Given the wide variation in resources, needs, and available services, ACL believes that this regulation sufficiently requires establishment of policies and procedures at the State agency, AAA, and/or service provider levels as set forth in § 1321.73(a). State agencies, AAAs, and service providers may establish additional policies and procedures, as long as they are in accordance with the Act and all applicable Federal requirements. Additional information on how State agencies, AAAs, and service providers have implemented various policies and procedures is available at ACL’s Nutrition and Aging Resource Center: https://acl.gov/senior-nutrition. We decline to make further changes to this provision and intend to address other suggestions and requests for clarification through technical assistance. § 1321.89 Evidence-Based Disease Prevention and Health Promotion Services New § 1321.89 clarifies evidencebased 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 E:\FR\FM\14FER4.SGM 14FER4 ddrumheller on DSK120RN23PROD with RULES4 11624 Federal Register / Vol. 89, No. 31 / Wednesday, February 14, 2024 / Rules and Regulations clarifies allowable use of funds and that those funds must be distributed through an approved IFF or funds distribution plan, as articulated in the State plan. Comment: We received a comment that programs that are considered to be evidence-based often do not include Native American populations. An absence of an evidence-base for programs addressing Native American populations results in further inequity and lack of service to populations in need of disease prevention and health promotion services. The commenter recommended that promising practices be allowed to serve populations where an evidence base is lacking. We received other comments that provision of evidence-based services is challenging in rural and frontier communities given the small amount of funding appropriated under the Act. Response: ACL appreciates this comment. Section 361 of the Act requires evidence-based programs and allows the Assistant Secretary for Aging to provide technical assistance on the delivery of such services in different settings and for different populations.276 ACL recently commissioned and is evaluating a study of the EvidenceBased Review Process to examine the existing review process and explore opportunities that would enhance the review process so it is equitable and responsive to program needs across different populations and settings, including Native American populations. The ACL-funded National Chronic Disease Self-Management Education Resource Center and National Falls Prevention Resource Center hold a bimonthly Evidence-Based Program Advisory Council meeting that includes members of the National Resource Center on Native American Aging and Native American leadership and organizations on the unique needs of Native American populations in evidence-based programming. The ACLsupported Evidence-Based Program Registry lists health promotion and disease prevention programs that may be adapted and culturally tailored for different populations and settings. More information is available at https:// acl.gov/programs/health-wellness/ disease-prevention. Additional information on how State agencies, AAAs, and service providers can engage rural and frontier communities is available at the ACL-funded National Chronic Disease Self-Management Education Resource Center and National Falls Prevention Resource Center. ACL also intends to provide technical 276 42 U.S.C. 3030m(a). VerDate Sep<11>2014 20:33 Feb 13, 2024 Jkt 262001 assistance regarding providing services under Title III, part D of the Act. Comment: Some commenters asked what expenses may be covered with funds provided under Title III, part D of the Act.277 Response: ACL appreciates this concern and confirms that funds provided under Title III, part D of the Act may be used for reasonable, allowable, and allocable expenses necessary for the direct provision of evidence-based disease prevention and health promotion services, subject to appropriate procurement and other policies and procedures. This may include information technology systems; devices, such as laptop or tablet computers and smartphones; program licensing fees; program materials and supplies; and training of staff and volunteers. Comment: We received comments recommending education and prevention activities to be considered as evidence-based programming. Some commenters suggested strategic partnerships with local health and public health entities. Other commenters noted challenges with meeting evidence-based program expectations. We received other suggestions, program management recommendations, and implementation questions regarding this provision. Response: ACL recently commissioned and concluded an evaluation study of the Evidence-Based Review Process to examine the existing review process and explore opportunities that would enhance the review process. Activities alone may not qualify as evidence-based programs, as evidence-based programs must demonstrate improved the health and well-being or reduce disease, disability and/or injury among older adults over time. Additional information on how States, AAAs, and service providers have implemented various policies and procedures is available at the ACLfunded National Chronic Disease SelfManagement Education Resource Center 278 and National Falls Prevention Resource Center.279 We decline to make further changes to this provision and intend to address other suggestions and 277 Id. section 3030m; 42 U.S.C. 3030n. CDSME Resource Center for Professionals, The Nat’l Council on Aging, https:// www.ncoa.org/professionals/health/center-forhealthy-aging/national-cdsme-resource-center (last visited October 13, 2023). 279 National Falls Prevention Resource Center for Professionals, The Nat’l Council on Aging, https:// www.ncoa.org/professionals/health/center-forhealthy-aging/national-falls-prevention-resourcecenter (last visited Oct. 13, 2023). 278 National PO 00000 Frm 00060 Fmt 4701 Sfmt 4700 requests for clarification through technical assistance. § 1321.91 Family Caregiver Support Services In the 2000 amendments to the Act (Pub. L. 106–501), Congress added Title III, part E to set forth allowable expenses for family caregiver support services. New § 1321.91 clarifies the family caregiver support services available under the Act and eligibility requirements for respite care and supplemental services, as set forth in section 373(c)(1)(B).280 It also clarifies allowable use of funds and that those funds must be distributed through an approved IFF or funds distribution plan, as articulated in the State plan. Comment: One commenter expressed support for clear, consistent, and durable regulations regarding the National Family Caregiver Support Program. Other commenters stated support for regulations regarding caregiver support programs, including caring for someone with Alzheimer’s disease or related dementia and the special subset of caring for someone with young onset of Alzheimer’s or related dementia. Several commenters also urged ACL to align this rule with the National Strategy to Support Family Caregivers. Response: We appreciate this support. ACL is committed to aligning this rule with the National Strategy to Support Family Caregivers, as appropriate. Comment: One commenter requested ACL clarify the meaning of ‘‘limited basis’’ in the provision of supplemental services. Other commenters expressed support for the flexibility for State agencies and AAAs to determine ‘‘limited basis.’’ Response: The rule includes the following, ‘‘State agencies and AAAs shall define ‘‘limited basis’’ for supplemental services and may consider limiting units, episodes or expenditure amounts when making this determination.’’ ACL agrees this provides sufficient guidance for State agencies and AAAs, while maintaining flexibility to respond to local needs and circumstances. Comment: We received comment expressing concern in providing all five services statewide given direct care worker shortages, limited funding, and other challenges. Response: ACL appreciates the challenges faced by the aging network in providing services across the country. ACL’s expectation is that there is a plan for all five services to be available in each PSA in each State with multiple 280 42 E:\FR\FM\14FER4.SGM U.S.C. 3030s–1(c)(1)(B). 14FER4 ddrumheller on DSK120RN23PROD with RULES4 Federal Register / Vol. 89, No. 31 / Wednesday, February 14, 2024 / Rules and Regulations PSAs, or that there is a plan for statewide availability of services for single PSA States, subject to availability of funds under the Act. This plan may include provision of services with funding sources other than the OAA, based on the resources and needs of local communities. For clarity, we have revised (b) to state, ‘‘State agencies shall ensure that there is a plan to provide each of the services authorized under this part in each planning and service area, or statewide in accordance with a funds distribution plan for single planning and service area States, subject to availability of funds under the Act.’’ Comment: Some commenters expressed confusion whether the term ‘‘family caregiver’’ also includes older relative caregivers, and if so, recommended it be clear that the same eligibility requirements apply. Response: Family caregiver support services listed in § 1321.91(a)(1) through (5) may be provided to family caregivers, including older relative caregivers. In other words, ‘‘older relative caregivers’’ is a subset of ‘‘family caregivers.’’ In § 1321.3, this rule includes a definition of ‘‘family caregiver’’ that includes older relative caregivers, as well as a definition of ‘‘older relative caregiver,’’ since the Act includes requirements specific to services provided to non-older relative caregivers at section 373(c)(1)(B).281 This rule also includes provisions at § 1321.83(c) that state service priorities as set forth in at section 373(c)(2).282 In the rule, we consistently use the term ‘‘family caregiver,’’ and we use the term ‘‘older relative caregiver’’ only when this level of specificity is needed. For these reasons, we decline to modify the eligibility and priority provisions set forth in this rule. Comment: One commenter expressed concern for an increased threshold that limits assistance to a caregiver providing support to someone with at least two limitations in activities of daily living instead of at least two limitations in activities of daily living or independent activities of daily living. Response: This provision does not represent a change from what is required by section 373(c)(1)(B) of the Act.283 Comment: One commenter expressed support for the inclusive definition of family caregiver to unmarried partners, friends, or neighbors, but expressed that the use of ‘‘family’’ may deter eligible caregivers because they do not consider themselves family. The commenter recommended consideration of terms such as ‘‘informal caregiver,’’ ‘‘natural support caregiver,’’ or ‘‘trusted personal caregiver.’’ Response: We appreciate this comment and encourage State agencies, AAAs, and service providers to use terms that will best reach individuals in need of family caregiver support services in their outreach, marketing, and service delivery efforts. Comment: We received comment requiring a correction to remove an extra word in § 1321.91(c). Response: We are grateful to the commenters who noted this correction and have revised this provision to read, ‘‘[. . .] the individual for whom they are caring must be determined to be functionally impaired[.]’’ Comment: We received other suggestions, program management recommendations, and implementation questions regarding this provision, including regarding evidence-informed or evidence-based caregiver assessments that may be used. Response: We decline to make further changes to this provision and intend to address other suggestions and requests for clarification through technical assistance. § 1321.95 Service Provider Title III and Title VI Coordination Responsibilities Consistent with § 1321.53 (State agency Title III and Title VI coordination responsibilities) and § 1321.69 (Area agency on aging Title III and Title VI coordination responsibilities), new § 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),284 307(a)(21)(A),285 614(a)(11),286 and 624(a)(3) 287 of the Act. We clarify that coordination is required under the Act and that all entities are responsible for coordination, including State agencies, AAAs, service providers, and Title VI grantees. The section complements the language at § 1321.53 for State agencies and § 1321.69 for AAAs and includes those requirements specific to service providers. Comment: Commenters overwhelmingly expressed support for coordination between Title III and Title VI programs. Comments expressed concern regarding the lack of coordination with Title VI grantees, low amounts of funding provided under Title III to Tribes, and lack of technical 284 42 U.S.C. 3026(a)(11)(B). U.S.C. 3027(a)(21)(A). 286 42 U.S.C. 3057e(a)(11). 287 42 U.S.C. 3057j(a)(3). 281 Id. section 3030s–1(c)(1)(B). 282 Id. section 3030s–1(c)(2). 283 Id. section 3030s–1(c)(1)(B). VerDate Sep<11>2014 20:33 Feb 13, 2024 285 42 Jkt 262001 PO 00000 Frm 00061 Fmt 4701 Sfmt 4700 11625 assistance on how to apply for available Title III funds. One commenter recommended that any entities involved in provision of services under Title III of the Act to develop their procedures for outreach and coordination with the relevant Title VI program director. Another commenter expressed they thought the proposed language regarding coordination was too permissive. We received a comment recommending specifying that services should be delivered in a culturally appropriate and trauma-informed manner. Some commenters also requested technical assistance on roles and responsibilities. We also received other suggestions, program management recommendations, and implementation questions regarding this provision, including regarding examples and best practices for coordination. Response: To make clear the responsibilities of service providers under the Act, explicit expectations for coordination between Title III and Title VI programs are specified in this rule. The provision at § 1321.95 is complementary with the provisions for State agencies and area agencies under Title III of the Act as set forth at § 1321.53 (State agency Title III and Title VI coordination responsibilities) and § 1321.69 (Area agency on aging Title III and Title VI coordination responsibilities), as well as for Title VI grantees under the Act as set forth at § 1322.31 (Title VI and Title III coordination). For clarity, we revise each provision to use consistent terminology, where appropriate. We explain the changes made in the following paragraphs. We have reordered the opening paragraph in § 1321.95 as § 1321.95(a), and we have reordered the subsequent paragraphs accordingly. ACL also recognizes the variability of local circumstances, resources, and needs. We appreciate the comment recommending that Title III entities work with the relevant Title VI program directors in developing their policies and procedures regarding coordination. We have revised the language at reorganized § 1321.95(a) to read, ‘‘For locations served by service providers under Title III of the Act where there are Title VI programs, the area agency on aging’s and/or service provider’s policies and procedures, developed in coordination with the relevant Title VI program director(s), as set forth in § 1322.13(a), must explain how the service provider will coordinate with Title VI programs.’’ We have created a reordered paragraph § 1321.95(b), and we have revised this provision to clarify the E:\FR\FM\14FER4.SGM 14FER4 11626 Federal Register / Vol. 89, No. 31 / Wednesday, February 14, 2024 / Rules and Regulations ddrumheller on DSK120RN23PROD with RULES4 topics that the policies and procedures set forth in paragraph (a) ‘‘must at a minimum address[.]’’ As such, we clarify that coordination is required. We have further made edits to specify how the service provider will provide outreach and referrals to tribal elders and family caregivers regarding services for which they may be eligible under Title III; clarify communication opportunities to include meetings, email distribution lists, and presentations; add how services will be provided in trauma-informed, as well as culturally appropriate, manner; and add ‘‘Opportunities to serve on advisory councils, workgroups, and boards.’’ As expectations for this type of coordination are not explicitly incorporated in the existing regulation, we believe that the promulgation of this final rule will provide a significant opportunity to further coordination between Title III and Title VI programs, including improving ACL’s monitoring programs for compliance. ACL anticipates providing technical assistance on this provision and other provisions related to coordination among Title VI and Title III programs upon promulgation of the final rule. Subpart E—Emergency and Disaster Requirements Based on input from interested parties and our experience, particularly during the COVID–19 PHE, we add Subpart E— Emergency and Disaster Requirements (§§ 1321.97–1321.105) to explicitly set forth expectations and clarify flexibilities that are available in a disaster situation. The previous subpart E (Hearing Procedures for State Agencies) is no longer necessary since we redesignate and cover the provisions in subpart E in subpart B (State Agency Responsibilities) of the final rule. Although the previous regulation mentions the responsibilities of service providers in weather-related emergencies (§ 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,288 this MDD triggers certain disaster relief authority under section 310 of the Act.289 The COVID– 19 PHE for example, demonstrated the devastating impact of an emergency or 288 Public 289 42 Law 100–707; 42 U.S.C. 5121–5207. U.S.C. 3030. VerDate Sep<11>2014 20:33 Feb 13, 2024 Jkt 262001 disaster on the target population who receive services under the Act. During the COVID–19 PHE, 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. Throughout the COVID–19 PHE, we received inquiries and feedback that demonstrated a need for clarity on available flexibilities in an emergency. RFI and NPRM respondents also provided substantial feedback regarding 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 prior regulatory guidance did 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 and NPRM 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 PHE, increased flexibility in transferring funds, allowable spending on disaster mitigation supplies, and providing mental health services to older adults who experience disasterrelated 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 and disaster 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, part C–2 funds which are allocated to home-delivered meals for shelf-stable, pick-up, carry-out, drivethrough, or similar meals, constitute innovative ways to deliver services that could be allowable on a regular basis within the parameters of Title III, part C–2 and without any special authorization by ACL during an emergency. Those flexibilities have been incorporated where applicable in the PO 00000 Frm 00062 Fmt 4701 Sfmt 4700 revised regulation for clarification purposes, for example in § 1321.87(a)(2), which addresses carry-out and other alternatives to traditional homedelivered 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) 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.290 We also recognize that during an event which results in a MDD, such as the COVID–19 PHE, 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 PHE, we discuss 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 allow in this section, we are compelled to list 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. Comment: Commenters overwhelmingly expressed support for emergency and disaster preparedness and response plans, as well as clearly defined expectations and requirements before, during, and after any natural disaster. We received other suggestions, program management recommendations, and implementation questions regarding this provision, including allowable provision of goods and services in disaster situations, establishing registries of at-risk individuals, ensuring accessible and effective communications during emergencies and disasters, and connecting with public health departments, emergency response organizations, and other long-term services and supports programs and providers. Response: We appreciate these comments. Other than the changes specified in the subsequent paragraphs, 290 Id. E:\FR\FM\14FER4.SGM section 3030(c). 14FER4 Federal Register / Vol. 89, No. 31 / Wednesday, February 14, 2024 / Rules and Regulations we decline to make further changes to the provisions under subpart E and intend to address other suggestions, program management recommendations, implementation questions, and requests for clarification through technical assistance. ddrumheller on DSK120RN23PROD with RULES4 § 1321.97 Coordination With State, Tribal and Local Emergency Management New § 1321.97 states that State agencies and AAAs must establish emergency plans, per sections 307(a)(28) 291 and 306(a)(17) of the Act,292 respectively, and this section specifies requirements under the Act that these plans must meet. While the Act requires emergency planning by State agencies and AAAs, the Act provides limited guidance regarding emergency planning. We also include in this section additional guidance in connection with the development of sound emergency plans (such as requirements for continuity of operations planning, taking an allhazards approach to planning, and coordination with Tribal emergency management and other agencies that have responsibility for disaster relief delivery). Comment: We received comments in support of this provision, including specifying coordination with Tribal emergency management and having policies and procedures in place at all levels of the aging network to ensure minimal disruptions to services. We received comment requesting that emergencies include climate-related and human-caused disasters. Another commenter recommended the definition of ‘‘all-hazards’’ be deferred to the State and that this be specified. Response: ACL appreciates these comments of support and notes that the regulation specifies an ‘‘all-hazards’’ approach. ACL intends that includes climate-related, weather-specific, and other natural and human-caused disasters, specific to the determination of likely ‘‘all-hazards’’ by the State agency and AAAs. Comment: One commenter recommended that service providers under the Act be included among those with whom State agencies and AAAs coordinate. Response: We appreciate this recommendation and have made revisions at § 1321.97(a)(1)(ii), (a)(3), and (b)(2) to incorporate service providers under the Act. 291 42 292 42 U.S.C. 3027(a)(28). U.S.C. 3026(a)(17). VerDate Sep<11>2014 20:33 Feb 13, 2024 § 1321.99 Setting Aside Funds To Address Disasters New § 1321.99 describes the parameters under which State agencies may set aside and use funds during a MDD, per section 310 of the Act.293 This section also clarifies that State agencies may specify that they are setting aside Title III funds for disaster relief in their IFF or funds distribution plan. It provides direction as to the process a State agency must follow in order to award such funds for use within all or part of a PSA covered by a specific MDD where Title III services are impacted, as well as requirements with respect to the awarding of such funds. Comment: We received comments supporting the proposed options for State agencies to address disasters as set forth. We received comments expressing concern regarding timeframes that apply, recommending limitations to proposals to allow State agencies to set aside funds, or opposing this proposed provision. Other commenters recommended that State agencies be required to consult with AAAs prior to exercising this option. Another commenter offered an alternate approach of requiring a mandatory input period or having a provision for a AAA network appeal of the State agency’s plan. One commenter asked for this option to be available for Statedeclared disasters or for additional flexibility for State agencies to select the best method for setting aside funds. Response: ACL agrees that the ideal service delivery mechanism, as set forth by the Act, is for regular service provision through AAAs, using an approved IFF, or for single PSA States to use their approved funds distribution plan. However, we recognize that based on our experience during the COVID–19 PHE and in certain other disaster situations, circumstances may not allow for the timely and needed delivery of services to older adults and family caregivers. For example, during the COVID–19 PHE supply chain issues occurred relatively quickly and smaller local programs and providers were at a disadvantage in procuring food, personal protective equipment, and other supplies in comparison to a larger State agency’s procurement options. It is also possible that a natural disaster might result in one or more AAAs or service providers being unable to function. Requiring a mandatory input period may not allow for action to be taken in the timeframe an emergency may necessitate. We recognize that 293 42 Jkt 262001 PO 00000 U.S.C. 3030. Frm 00063 Fmt 4701 Sfmt 4700 11627 during an event which results in a MDD, statewide procurement or other direct expenditures by the State agency may be critical to meeting the mission of the Act. Therefore, we propose certain options to be available to State agencies to expedite expenditures of Title III funds only in exceptional circumstances during a MDD incident period, as set forth in paragraph (a) of this provision. ACL sought to balance maintenance of the AAAs’ role with the need for expedited action in extreme circumstances. To make clear the requirements that apply in exercising this flexibility, we have specified that up to five percent of the total Title III allocation may be used if specified in the State agency’s approved IFF, funds distribution plan, or with prior approval from the Assistant Secretary for Aging. We have removed the redundant language regarding submitting a State plan amendment at § 1321.99(b)(1) and have revised the remaining items under (b) accordingly. We have also revised newly ordered § 1321.99(b)(1) to read that the set aside funds that are awarded under this provision must comply with the requirements under § 1321.101. The provision at reordered § 1321.101(b)(3)(iii)(B) requires consultation with AAAs prior to exercising this flexibility. Further, the provision at § 1321.101(b)(3)(iii)(C) requires use of set aside funding for services provided through AAAs and other aging network partners to the extent reasonably practicable. To provide appropriate checks on this flexibility, ACL set forth the following limitations in § 1321.99 and § 1321.101: (1) this flexibility may only be exercised under a MDD, (2) up to five percent of the State agency’s total Title III allocation or with prior approval of the Assistant Secretary for Aging may be set aside, (3) a State agency must submit a State plan amendment not requiring prior approval detailing various information regarding their use of such a flexibility, (4) the State agency must use such funding for services provided through AAAs and other aging network partners to the extent reasonably practicable in the judgement of the State agency, (5) the State agency must report on the clients and units served, and services provided with such funds, and (6) if funds are set aside for this purpose, the State agency must have policies and procedures in place to award the funds through the IFF or funds distribution plan if the funds are not awarded within 30 days of the end of the fiscal year in which the funds were received, as set forth at § 1321.99(b)(2). E:\FR\FM\14FER4.SGM 14FER4 ddrumheller on DSK120RN23PROD with RULES4 11628 Federal Register / Vol. 89, No. 31 / Wednesday, February 14, 2024 / Rules and Regulations As set forth in § 1321.31(b) and this provision, the State plan amendment required when using funds set aside to address disasters does not require prior approval by the Assistant Secretary for Aging. ACL intends this requirement to facilitate transparency and communication in times of emergency and disaster and does not intend for response times to be hindered. When a State agency obligates funding under this provision, they should submit a State plan amendment to include the specific entities receiving such funds; the amount, source, and intended use for such funds; and other justification of the use of these funds. ACL does not find this expectation to be overly burdensome. As a note, funds awarded within 30 days of the end of the fiscal year in which the funds were received may have a project period that extends to the length of the State agency’s award, subject to the State agency’s policies and procedures. For example, if FY 2024 funds set aside were not used under this provision, they would need to be awarded through the IFF or funds distribution plan by August 31, 2024. They could have a project period ending up to September 30, 2025, subject to the State agency’s policies and procedures. As funds provided under Title III of the Act typically have a project period of two years, ACL believes this provides sufficient time for AAAs and service providers to use the funds. ACL encourages the State agency, AAAs, and service providers to be in communication regarding the status of and expectations for use of these funds. We have added the cross-references for the IFF provision (§ 1321.49) and funds distribution plan (§ 1321.51(b)) to § 1321.99(b)(2) for clarity. Additionally, use of the flexibility set forth at § 1321.99 is not required, and some State agencies may elect not to pursue this option given limited availability of funds or for other reasons. Other State agencies may provide for emergency and disaster preparedness or response through funds awarded through their existing IFFs or funds distribution plans. This provision offers an opportunity for State agencies to consult with AAAs, service providers, and the general public prior to setting aside funds to address disasters. We believe that as set forth, these provisions provide the appropriate balance of flexibility to State agencies during disaster-related emergencies, and decline to make further changes at § 1321.99. VerDate Sep<11>2014 20:33 Feb 13, 2024 Jkt 262001 § 1321.101 Flexibilities Under a Major Disaster Declaration New § 1321.101 describes disaster relief flexibilities available pursuant to Title III under a MDD to provide disaster relief services for affected older adults and family caregivers. Recognizing that there is no required period of advance notice of the end of a MDD incident period, the final rule allows State agencies up to 90 calendar days after the end of a MDD incident period to obligate funds for disaster relief services or additional time with prior approval from the Assistant Secretary for Aging. We also recognize that during an event which results in a MDD, such as the COVID–19 PHE, 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 PHE, we set forth additional options to be available to State agencies to expedite expenditures of Title III funds while under a MDD, including allowing a State agency to procure items on a statewide level and allowing a State agency to allocate a portion of its State plan administration funds (not to exceed five percent of the total Title III grant award) to a PSA covered under a MDD to be used for direct service provision without having to allocate the funds through the IFF or funds distribution plan. We selected a cap of five percent as State agencies are allowed under section 308(b)(2) 294 of the Act to apply the greater of $750,000 or five percent of the total Title III grant award to State plan administration. For example, at the beginning of the COVID–19 PHE, we provided flexibilities where State agencies were able to provide some direct services, like food boxes, to areas in the State that were not able to access needed food for older adults and their caregivers. This flexibility allowed State agencies to quickly provide needed access to food for vulnerable populations where access was severely limited at a local level. The terms and conditions that will apply to these flexibilities also are set forth in this section, such as requirements to submit State plan amendments when a State agency intends to exercise such flexibilities (such amendments are to include the specific entities receiving the funds, the amount, the source, the intended use for the funds, and other justification for the use of the funds) and reporting requirements. We received many comments in response to the RFI and NPRM asking 294 42 PO 00000 U.S.C. 3028(b)(2). Frm 00064 Fmt 4701 that various flexibilities allowed during the COVID–19 PHE remain in place permanently. We are limited by the Act in the extent to which flexibilities may be allowed. For example, a MDD is required in order for a State agency to be permitted, pursuant to section 310(c) 295 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, and the Act contains limitations on the transfer of Title III funds among the various parts of Title III. Flexibility was provided for 100 percent of transfer of Title III nutrition services funds through separate legislation, the CARES Act, which is limited to the period of the declared Public Health Emergency for COVID–19. Comment: Many commenters expressed support for allowing flexibility in the use of funds as outlined in this provision. Some commenters agreed with the timeframe proposed in § 1321.101(g). Other commenters expressed concern about the feasibility of fully obligating funds under the proposed timeline. We received one comment requesting that funds provided for the Ombudsman program under part 1324, subpart A, be exempt from use under these flexibilities. One commentor asked for clarification regarding the five percent amount of State plan administration that the State agency may use and the five percent amount for direct expenditures and/or acting to procure items on a statewide level that the State agency may use. Other commenters expressed confusion regarding the intended use of these provisions. Response: We appreciate these comments and have made edits to improve the clarity of this provision. We have created new paragraphs (b) and (c) and have redesignated the subsequent provisions. In paragraph (b) we have specified the flexibilities a State agency may exercise under a MDD. Through § 1321.101(b), ACL intends to provide three distinct flexibilities that a State agency may exercise pursuant to a MDD. Section 1321.101(b)(1) allows any portion of open grant awards funds to be used for disaster relief services. For example, during the MDD for the COVID–19 PHE, this allowed AAAs and service providers to use funds originally provided for congregate meals under Title III, part C–1 of the Act to be used for home-delivered meals and other purposes that, at the time, would 295 42 Sfmt 4700 E:\FR\FM\14FER4.SGM U.S.C. 3030(c). 14FER4 ddrumheller on DSK120RN23PROD with RULES4 Federal Register / Vol. 89, No. 31 / Wednesday, February 14, 2024 / Rules and Regulations otherwise have been unallowable absent a MDD. Secondly, § 1321.101(b)(2) permits the State agency to redirect and use its State plan administration funding for direct service provision. For clarity, we have revised this provision to state, ‘‘Awarding portions of State plan administration, up to a maximum of five percent of the Title III grant award or to a maximum of the amounts set forth at § 1321.9(c)(2)(iv), for use in a planning and service area[.]’’ Thirdly, § 1321.101(b)(3) allows for the State agency’s awarding of funds set aside to address disasters, as set forth in § 1321.99, pursuant to a major disaster declaration incident period. This provision is in addition to and separate from the provision at § 1321.101(b)(2). For clarity, we further specify how the State agency may use the set aside funds. Section 1321.101(b)(3)(i) provides for awarding of funds to an area agency serving a PSA covered in whole or in part under a MDD without allocation through the IFF; § 1321.101(b)(3)(ii) provides for awarding of funds to a service provider, in single PSA States, without allocation through the funds distribution plan; and § 1321.101(b)(3)(iii) provides for the State agency to use funds for direct service provision, direct expenditures, and/or procurement of items on a statewide level, subject to requirements as specified in § 1321.101(b)(3)(iii)(A) through (D). ACL recognizes the importance of the Ombudsman program in responding to residents of long-term care facilities in times of disasters and other emergencies. ACL also recognizes that there may be times when the Ombudsman program is not able to fully use its funding during an emergency. The flexibilities described in this provision may allow a State agency to meet urgent, time sensitive needs of older adults and family caregivers, including residents of long-term care facilities. However, in recognition of the importance of proper coordination and communication between the State agency and the Ombudsman program, we have revised § 1321.101(b)(3)(iii)(B) and (f) to better incorporate the Ombudsman program. We added a new paragraph (c) to specify the State plan amendment requirements that apply. The subsequent provisions are reordered. Section 1321.101(c) requires the State agency to submit a State plan amendment as set forth in § 1321.31(b) to justify its use of funds and to provide transparency about the use of funding flexibilities. State plan amendments required under § 1321.31(b) do not VerDate Sep<11>2014 20:33 Feb 13, 2024 Jkt 262001 require prior approval by the Assistant Secretary for Aging. In light of commenter concerns about the timeliness of awarding funds and submitting the State plan amendment, we have revised § 1321.31(b) to clarify timeline for submission of such State plan amendments whenever necessary and within 30 calendar days of the action(s) listed in the provision. The flexibilities under this provision enable State agencies and AAAs to provide immediate response in a disaster situation. Extending this timeframe would not be aligned with the urgent response time expected during disaster response. However, we recognize that additional time to obligate funds may be appropriate under certain circumstances with prior approval from the Assistant Secretary for Aging, as included in the proposed rule. § 1321.103 Title III and Title VI Coordination for Emergency and Disaster Preparedness Section 1321.53 (State agency Title III and Title VI coordination responsibilities), § 1321.69 (Area agency on aging Title III and Title VI coordination responsibilities), and § 1321.95 (Service provider Title III and Title VI coordination responsibilities), set forth expectations for coordinating activities and delivery of services under Title III and Title VI, as articulated in the Act sections 306(a)(11)(B),296 307(a)(21)(A),297 614(a)(11),298 and 624(a)(3).299 New § 1321.103 clarifies that Title III and Title VI coordination should extend to emergency and disaster preparedness planning, response, and recovery. Comment: We received comment in support of this provision. We also received recommendation that any entities involved in provision of services under Title III of the Act to develop their procedures for outreach and coordination with the relevant Title VI program director. Response: We appreciate these comments, including recommending that Title III entities work with the relevant Title VI program directors in developing their policies and procedures regarding coordination. We have revised the language at § 1321.103 to read, ‘‘[. . .] policies and procedures, developed in communication with the relevant Title VI program director(s) as set forth in § 1322.13(c), in place[.]’’ 296 42 U.S.C. 3026(a)(11)(B). U.S.C. 3027(a)(21)(A). 298 42 U.S.C. 3057e(a)(11). 299 42 U.S.C. 3057j(a)(3). 297 42 PO 00000 Frm 00065 Fmt 4701 Sfmt 4700 11629 Comment: We received comment requesting that emergencies include climate-related and human-caused disasters in Tribal communities. Response: ACL appreciates this comment and notes that the regulation specifies an ‘‘all-hazards’’ approach. ACL intends for ‘‘all-hazards’’ to include climate-related, weatherspecific, and other natural and humancaused disasters, specific to the determination of likely ‘‘all-hazards’’ by the State agency, AAAs, and Title VI programs. § 1321.105 Modification During Major Disaster Declaration or Public Health Emergency New § 1321.105 states that the Assistant Secretary for Aging retains the right to modify emergency and disasterrelated requirements set forth in the regulation under a Major Disaster declared by the U.S. President under The Robert T. Stafford Disaster Relief and Emergency Assistance Act (Pub. L. 100–707; 42 U.S.C. 5121–5207), or public health emergency (PHE) as declared by the U.S. Secretary for Health and Human Services. C. Deleted Provisions We remove the following provisions since they are no longer necessary and/ or applicable, and to avoid potential confusion or conflicts due to statutory and/or regulatory changes. § 1321.5 Applicability of Other Regulations We remove § 1321.5, which lists other applicable regulations, because the provision is unnecessary and may create confusion or become outdated due to statutory or regulatory changes. § 1321.75 Licenses and Safety We remove § 1321.75, which describes State agency and AAA responsibilities to ensure that facilities who are awarded funds for multipurpose senior center activities obtain appropriate licensing and follow required safety procedures, and that proposed alterations or renovations of multipurpose senior centers comply with applicable ordinances, laws, or building codes. The provision is no longer necessary since these responsibilities are addressed by other policies and procedures at the State and local levels. Part 1322—Grants to Indian Tribes for Support and Nutrition Services Title VI General Comments Comment: Many commenters supported the updating and modernizing of the regulations. In E:\FR\FM\14FER4.SGM 14FER4 ddrumheller on DSK120RN23PROD with RULES4 11630 Federal Register / Vol. 89, No. 31 / Wednesday, February 14, 2024 / Rules and Regulations particular, ACL received overwhelmingly positive comments supporting the provision of services for Tribal and Hawaiian Native elders and family caregivers. Commenters shared the harsh realities for and significant needs of Tribal and Hawaiian Native elders and family caregivers and requested additional funding for Tribal organizations and Hawaiian Native grantees to provide services under the Act. Response: ACL appreciates these comments of support. ACL anticipates continuing to provide technical assistance to grantees under Title VI of the Act in support of Tribal and Hawaiian Native elders and family caregivers. We acknowledge comments about funding constraints, but funding is outside the scope of this rule. Comment: ACL received comments of appreciation for the proposed changes to clarify Title VI and other provisions of the Act to better allow grantees to serve Native elders and family caregivers. One commenter noted that consolidating the sections referencing Title VI services to Indian Tribes and Native Hawaiian grantees creates more clarity in the regulations, which will permit grantees to better serve Native American, Alaskan Native, and Native Hawaiian elders and family caregivers. Response: ACL appreciates these comments of support. Comment: One commenter recommended updating all references from ‘‘Native Americans’’ to ‘‘Indian Tribes.’’ Another commenter requested use of ‘‘Native Americans’’ instead of ‘‘Indians.’’ Other commenters expressed various beliefs and preferences regarding the appropriate terms to use regarding service to American Indian and/or Native American elders and family caregivers. Response: In this rule, ACL took great care to ensure that the terms used are respectful and have appropriate meaning for practical, consistent application. We also recognize there is variation in the terms used and preferred by different individuals and organizations. In this rule, we used the terms as specified in § 1322.3 (Definitions). We referred to organizations in terms of ‘‘Eligible organization,’’ ‘‘Hawaiian Native grantee,’’ ‘‘Indian tribe,’’ 300 and ‘‘Tribal organization.’’ 301 References to ‘‘Hawaiian Native or Native 300 Section 102(27) of the OAA, 42 U.S.C. 3002(27); sec. 612(c) of the OAA, 42 U.S.C. 3057c(c). 301 Section 102(56) of the OAA, 42 U.S.C. 3002(56); sec. 612(c) of the OAA, 42 U.S.C. 3057c(c). VerDate Sep<11>2014 20:33 Feb 13, 2024 Jkt 262001 Hawaiian,’’ 302 ‘‘Native Americans,’’ 303 and ‘‘Older Indians’’ are specific to the individual rather than the entity, except in the case of referencing a Hawaiian Native grantee. Where existing, we used the same definitions as established in the OAA and other statutes. A. Provisions Revised To Reflect Statutory Changes and/or for Clarity Subpart A—Introduction § 1322.1 Part Basis and Purpose of This Revised § 1322.1 explains the requirements of Title VI of the Act to provide grants to Indian Tribes and Native Hawaiian grantees. We consolidate 45 CFR part 1322 and 45 CFR part 1323 into 45 CFR part 1322 and subsequently retitle this part as ‘‘Grants to Indian Tribes and Native Hawaiian Grantees for Supportive, Nutrition, and Caregiver Services.’’ We revise language to affirm the sovereign government to government relationship with a Tribal organization, and similar considerations, as appropriate for Hawaiian Native grantees representing elders and family caregivers, and to ensure consistency with statutory terminology and requirements, such as adding reference to caregiver services and specifying family caregivers as a service population, as set forth in Title VI of the Act. We add language to incorporate Native Hawaiians and Native Hawaiian grantees. We also clarify that terms not otherwise defined will have meanings ascribed to them in the Act. Comment: We received multiple comments expressing support for the rights of Native Americans and funding to support Native Americans as they age. Response: We appreciate these comments. Comment: One commenter recommended that ACL consider changes to § 1322.1(a), specifically the statement ‘‘[. . .] American Indian elders on Indian reservations [. . .]’’ to instead reference American Indians elders and family caregivers from a Federally or State recognized Tribe, as not all Tribal elders reside on a reservation. Response: ACL acknowledges the population of American Indian elders and family caregivers residing outside a reservation. Other Federally recognized Tribes do not maintain Tribal reservations. The relevant service area 302 Section 102(37)(B) of the OAA, 42 U.S.C. 3002(37)(B); sec. 625 of the OAA, 42 U.S.C. 3057k. 303 Section 102(37) of the OAA, 42 U.S.C. 3002(37). PO 00000 Frm 00066 Fmt 4701 Sfmt 4700 for provision of services under Title VI of the Act is specified in the definition of ‘‘service area’’ in § 1322.3 and § 1322.5(b). For clarity, we have revised this provision to read, ‘‘This program is established to meet the unique needs and circumstances of American Indian and Alaskan Native elders and family caregivers and of older Native Hawaiians and family caregivers, on Indian reservations and/or in service areas as approved in § 1322.7.’’ § 1322.3 Definitions Our final rule updates the definitions of significant terms in § 1322.3 to reflect current statutory terminology and operating practice and to provide clarity. We add several definitions and revise several existing definitions. The additions and revisions 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 interested parties. We add definitions of the following terms: ‘‘Access to services,’’ ‘‘Act,’’ ‘‘Area agency on aging,’’ ‘‘Domestically produced foods,’’ ‘‘Eligible organization,’’ ‘‘Family caregiver,’’ ‘‘Hawaiian Native or Native Hawaiian,’’ Hawaiian Native grantee,’’ ‘‘In-home supportive services,’’ ‘‘Major disaster declaration,’’ ‘‘Multipurpose senior center,’’ ‘‘Native American,’’ ‘‘Nutrition Services Incentive Program,’’ ‘‘Older Native Hawaiian,’’ ‘‘Older relative caregiver,’’ ‘‘Program income,’’ ‘‘Reservation,’’ ‘‘State agency,’’ ‘‘Title VI director,’’ and ‘‘Voluntary contributions.’’ We retain and make minor revisions to the terms: ‘‘Acquiring,’’ ‘‘Altering or renovating,’’ ‘‘Constructing,’’ ‘‘Department,’’ ‘‘Means test,’’ ‘‘Service area,’’ ‘‘Service provider,’’ and ‘‘Tribal organization.’’ We retain with no revisions the terms: ‘‘Budgeting period,’’ ‘‘Indian reservation,’’ ‘‘Indian Tribe,’’ ‘‘Older Indians,’’ and ‘‘Project period.’’ Comment: We received comment expressing support for the added definitions to clarify and provide consistency with the intersection of Title III and Title VI funding. Other commenters suggested other terms for potential definition in this rule. Response: ACL appreciates these comments. We have made additional edits to definitions for consistency with Title III, where appropriate. In lieu of additional definition in this rule, grantees under Title VI of the Act may establish their own definitions, as long as they are not in conflict with applicable Federal requirements. ACL also intends to provide technical assistance to aid in the implementation of this rule. E:\FR\FM\14FER4.SGM 14FER4 ddrumheller on DSK120RN23PROD with RULES4 Federal Register / Vol. 89, No. 31 / Wednesday, February 14, 2024 / Rules and Regulations Comment: One commenter recommended changing all references in part 1322 from ‘‘Tribal Organizations’’ to ‘‘Tribal Grantees,’’ due to the definition of ‘‘Tribal Organization’’ set forth in the Indian Self-Determination and Education Assistance Act (ISDEAA).304 The commenter stated that the proposed change would reduce the potential of confusing a chartered Tribal organization as representing the governing body of the Tribe. Another commenter requested that Staterecognized Tribes be included in the definition of ‘‘eligible organization.’’ Response: Section 612(c) of the Act 305 expressly provides that, for purposes of Title VI, tribal has the same meaning as in section 4 of the ISDEAA.306 Section 612 of the Act 307 also sets forth the criteria for an eligible organization to receive a grant, using the criteria in section 4 of the ISDEAA.308 Accordingly, ACL uses the statutory definitions in this regulation. Comment: Commenters requested expansion of the definition of in-home supportive services and that the definition be consistent with the definition in § 1321.3, to allow for collaboration with other programs. Commenters also asked for consistency in the example of ‘‘minor modification of homes’’ in part 1321. Response: We have revised the definition of in-home supportive services in response to the comments. We similarly have amended this definition in part 1321 for consistency. Comment: We received many comments supporting an inclusive definition of family caregiver, as well as suggestions for expanded wording of the definition. One commenter recommended ACL consider alternatives to the term ‘‘informal’’ within the ‘‘family caregiver’’ definition to avoid minimizing their invaluable role and avoid inaccuracy due to some receiving financial compensation. Response: ACL appreciates these comments and concurs that the definition includes non-traditional families and families of choice. We believe that the definition is sufficiently broad to account for the concerns raised by commenters. To address family caregivers who may receive limited financial compensation, we have revised the definition to add, ‘‘For purposes of this part, family caregiver does not include individuals whose primary relationship with the older adult is based on a financial or professional agreement.’’ We have made a similar edit to the definition in part 1321. Comment: We received comments questioning the use of the term ‘‘multipurpose senior centers’’ to reference a service. We also received comments disagreeing with definition, including with the inclusion of virtual facilities. Other commenters expressed appreciation for the inclusion of virtual facilities to reflect a growing number of programs and services offered online after the pandemic, noting this may make programs more accessible and equitable. Response: We appreciate these comments and have revised § 1322.3 to indicate ‘‘[. . .] as used in § 1322.25, facilitation of services in such a facility.’’ We also agree with commenters that allowing virtual facilities ‘‘as practicable’’ provides options for various service modalities to reflect local circumstances, while remaining true to the definition of multipurpose senior center as set forth in the Act. Comment: One commenter expressed concern about the definition of service area and how to serve Tribal elders residing in urban areas outside of the reservation. Response: Service areas are required by section 614(c)(4) of the OAA and are approved through the funding application process.309 Grantees under Title VI of the Act may facilitate service to elders and family caregivers living outside the service area through appropriate coordination with Title III and other programs. Comment: We received comments and suggestions regarding clarification to the definition of ‘‘voluntary contributions.’’ Response: We appreciate these comments and suggestions. We have revised the definition of ‘‘voluntary contributions’’ to read, ‘‘[. . .] means donations of money or other personal resources given freely, without pressure or coercion, by individuals receiving services under the Act.’’ We have made a similar change to the definition in part 1321 for consistency. We also intend to address other suggestions and requests for clarification through technical assistance. Subpart B—Application § 1322.5 304 Public Law 93–638, 88 Stat. 2203 (1975); 25 U.S.C. 5301 et seq. 305 42 U.S.C. 3057(c). 306 25 U.S.C. 5304. 307 42 U.S.C. 3057c. 308 25 U.S.C. 5304. VerDate Sep<11>2014 20:33 Feb 13, 2024 Jkt 262001 Application Requirements We redesignated § 1322.19 of the existing regulation (Application requirements) as § 1322.5 and revised 309 42 PO 00000 U.S.C. 3057e(c)(4). Frm 00067 Fmt 4701 the provisions to reflect updates to the Act. We specify that application submissions must include program objectives; a map and/or description of the geographic boundaries of the proposed service area; documentation of supportive and nutrition services capability; certain assurances; a tribal resolution; and signature by a principal official. Comment: Many commentors expressed concern with § 1322.5(d)(1) which requires eligible organizations to represent at least 50 individuals age 60 and older in order to apply for funding. Several asked that the age of an elder as established by the eligible organization be used in qualifying to apply for funds under Title VI of the Act and that no minimum number of elders be required to apply for funds. Other commenters expressed need to amend the current funding formula for allocation of services to include the population under age 60 as it results in unfunded eligibility. One commenter noted that after COVID–19, life expectancy for American Indians decreased by 6.6 years. An additional commenter noted that many communities, including some Alaskan Tribes, have a great number of elders in need over the Tribal elder age of 50 but may not have at least 50 elders who are age 60. They therefore are not eligible to apply for funding. Response: ACL acknowledges the decreased life expectancy and many needs of Native American elders and family caregivers. However, we are unable to make changes in this provision, as this would require statutory changes to section 612(a).310 We emphasize that smaller Tribes may be eligible to apply for Title VI funding as a consortium. ACL is available to provide technical assistance regarding how Tribes with a smaller number of elders who are at least 60 years of age may apply for funding under Title VI of the Act. Comment: Commenters expressed issues with inadequate funding based on current funding formula/distribution procedures. They noted that Tribal nations only receive 2% of the OAA budget and that Title VI funding should be increased and provided directly to Tribal nations through ISDEAA Title I contracts and Title V compacts to fulfill trust and treaty obligations. Response: The amount of OAA funding is determined by Congress and beyond the scope of this regulation. The Act sets out the requirements for making funding awards to Tribal organizations with approved funding applications. 310 25 Sfmt 4700 11631 E:\FR\FM\14FER4.SGM U.S.C. 5304(a). 14FER4 11632 Federal Register / Vol. 89, No. 31 / Wednesday, February 14, 2024 / Rules and Regulations Comment: One commenter recommended including Indian Health Service maps to identify service areas as an acceptable submission under § 1322.5(b). Response: Indian Health Service maps may be used to describe the geographic service area proposed. Section 614(c)(4) of the Act allows an applicant to provide an appropriate narrative description of the geographic area to be served and an assurance that procedures will be adopted to ensure against duplicate services.311 Comment: One commenter expressed concern that new applicants might not be able to meet the requirement § 1322.5(c) of their ability to provide supportive and nutrition services effectively or that they have provided such services for the past three years. Another commenter stated that Title VI programs may lack funding and capacity to develop and submit a Title VI application. They suggest adequate training, financial resources, and updated guidance document be provided to ensure programs fully understand what is expected. Response: The application requirements in § 1322.5 are consistent with those in effect in the most recent cycle of Title VI funding and as set forth in the Act. Documentation of supportive and nutrition services capacity is an important application component. The rule provides the options of attesting to this capacity either with documentation of such services provided within the last three years or with documentation of the ability to do so. ACL provides significant training and guidance documents on the Older Indians website, available at https:// olderindians.acl.gov. We will continue to provide technical assistance and guidance to grantees and prospective grantees. ddrumheller on DSK120RN23PROD with RULES4 § 1322.7 Application Approval Section 1322.21 of the existing regulation (Application approval) is redesignated here as § 1322.7. We make minor revisions to align the provision with updates to the Act and to clarify that no less than annual performance and fiscal reporting is required. Comment: We received numerous comments on the inadequacy of funding for Title VI programs. Response: The amount of funding for OAA programs is determined by Congress and thus is outside the scope of this regulation. 311 42 U.S.C. 3057e(c)(4). VerDate Sep<11>2014 20:33 Feb 13, 2024 § 1322.9 Hearing Procedures Section 1322.23 of the existing regulation (Hearing procedures) is redesignated here as § 1322.9. Section 614(d)(3) of the Act provides opportunity for a hearing when an organization’s application under section 614 is denied.312 As under Title III, hearings will be conducted by the HHS Departmental Appeals Board (DAB). We received no comments on § 1322.9. However, we have made technical corrections to remove unnecessary words and to align the section with 45 CFR part 16. Subpart C—Service Requirements § 1322.13 Policies and Procedures We combined §§ 1322.9 (Contributions), 1322.11 (Prohibition against supplantation), and 1322.17 (Access to information) of the existing regulation and redesignated them as § 1322.13 (Policies and procedures). We also combined into § 1322.13 the areas for which a Tribal organization or Hawaiian Native grantee must have established policies and procedures. Section 1322.13 specifies programmatic and fiscal requirements for which a Tribal organization or Hawaiian Native grantee should have established policies and procedures. These include identifying an individual to serve as the Title VI director; collecting and submission of data and other reports to ACL; ensuring that the direct provision of services meet requirements of the Act; client eligibility; coordination with area agencies on aging and other Title III and VII-funded programs; specifying a listing and definitions of services that may be provided by the Tribal organization or Hawaiian Native grantee; detailing any limitations on the frequency, amount, or type of service provided; and the grievance process for older Native Americans and family caregivers who are dissatisfied with or denied services under the Act. We have previously provided technical assistance to Tribal organizations or Hawaiian Native grantees that were unaware of certain fiscal requirements and/or did not understand their obligations under these requirements. We add § 1322.13(c)(2) to provide clarity regarding policies and procedures for fiscal requirements such as voluntary contributions; buildings and equipment; and supplantation. In particular, § 1322.13(c)(2)(ii) addresses the need to ensure that the funding is used for allowable costs that support allowable activities; to ensure 312 42 Jkt 262001 PO 00000 U.S.C. 3057e. Frm 00068 Fmt 4701 Sfmt 4700 consistency in the guidance provided by ACL; and to affirm that altering and renovating activities are allowable for facilities providing services under this section. Comment: Commenters expressed concern that the number of policies and procedures being asked of Title VI programs could be burdensome, that they would need additional staff to support the changes, and that they lack sufficient funds to meet the requirements of § 1322.13. Response: Section 1322.13 responds to requests for technical assistance and feedback from listening sessions by clarifying the policies and procedures that grantees under Title VI of the Act must have. The provisions reflect current expectations for grantees under Title VI of the Act. ACL is committed to supporting all grantees with technical assistance so that they may comply with the requirements. Comment: One commenter noted grievance processes are usually in place at the Tribal level, but they can be difficult to navigate. Response: Section 1322.13(c)(1)(iv) requires there to be a grievance process for elders and family caregivers who are dissatisfied with or denied services under the Act. In deference to Tribal sovereignty, the grantee under Title VI of the Act is to specify the process to be used. ACL will provide technical assistance regarding how grievance processes can be designed for appropriate navigation by elders and family caregivers. § 1322.15 Confidentiality and Disclosure of Information Section 1322.7 of the existing regulation (Confidentiality and disclosure of information) is redesignated here as § 1322.15. We make minor revisions to align the provision with updates to definitions and consolidation of part 1323 regarding applicability to a Hawaiian Native grantee. We also specify that a provider of legal assistance shall not be required to reveal any information that is protected by attorney client privilege; policies and procedures are in place to maintain confidentiality of records; and information may be shared with other organizations, as appropriate, in order to provide services. The Tribal organization or Hawaiian Native grantee may also require the application of other laws and guidance for the collection, use, and exchange of both PII and personal health information. Comment: A commenter expressed the need for respecting data sovereignty regarding Tribal laws and that Tribal E:\FR\FM\14FER4.SGM 14FER4 Federal Register / Vol. 89, No. 31 / Wednesday, February 14, 2024 / Rules and Regulations ddrumheller on DSK120RN23PROD with RULES4 laws should supersede reporting requirements. Response: ACL respects issues relating to sensitivity of data ownership and use with respect to Title VI programs. As such, the data addressed in § 1322.13(b) is used for program management, fiscal accountability, and budget justification purposes. ACL is committed to following appropriate data collection requirements, including meeting Paperwork Reduction Act requirements. The current data collection requirements for performance reporting are approved under OMB Control No. 0985–0007. Comment: We received comments that expressed strong support for ACL’s proposal to clarify the obligation of Tribal organizations and Hawaiian Native grantees and other providers to protect the confidentiality of OAA participants and to specify that policies and procedures must comply with all applicable Federal laws, codes, rules, and regulations. However, another commenter felt that as sovereign nations, Native communities should not be required to enforce the National Institutes for Standards Cybersecurity and Privacy Frameworks as well as other applicable Federal laws. Instead, they stated that Tribal entities should be allowed to determine what works best for their respective community. Response: ACL appreciates these comments and has removed the National Institutes for Standards Cybersecurity and Privacy Frameworks requirement from the final rule. § 1322.25 Supportive Services Section 1322.13 of the existing regulation (Supportive services) is redesignated here as § 1322.25. Revised § 1322.25 clarifies the supportive services available under Title VI, parts A and B of the Act are intended to be comparable to such services set forth in Title III of the Act. Supportive services under Title III of the Act include inhome supportive services, access services, and legal services. We clarify allowable use of funds, including for acquiring, altering or renovating, and constructing multipurpose senior centers. We also clarify that inappropriate duplication of services be avoided for participants receiving service under both part A or B and part C and include minor language revisions for clarity and consistency with updated definitions. Comment: ACL received comment supporting the proposal to clarify the allowable use of funds and that Title VIfunded supportive services include inhome supportive, access, and legal services. VerDate Sep<11>2014 20:33 Feb 13, 2024 Jkt 262001 Response: ACL appreciates this comment. § 1322.27 Nutrition Services Section 1322.15 of the existing regulation (Nutrition services) is redesignated here as § 1322.27. Revised § 1322.27 clarifies that nutrition services available under Title VI, parts A and B of the Act are intended to be comparable to services available under Title III of the Act. Section 614(a)(8) of the Act requires nutrition services to be substantially in compliance with the provisions of part C of Title III, which includes congregate meals, homedelivered meals, nutrition education, nutrition counseling, and other nutrition services.313 Based on experiences during the COVID–19 PHE and numerous requests for flexibility in provision of meals, we clarify that home-delivered meals may be provided via home delivery, pick-up, carry-out, drive-through, or as determined by the Tribal organization or Hawaiian Native grantee; that eligibility for homedelivered meals is determined by the Tribal organization or Hawaiian Native grantee and 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 specify that the Tribal organization or Hawaiian Native grantee must provide congregate and homedelivered meals, and nutrition education, nutrition counseling, and other nutrition services may be provided, with funds under Title VI part A or B of the Act. We also include minor clarifications for consistency. Finally, this provision sets forth requirements for NSIP allocations. NSIP allocations are based on the number of meals reported by the Tribal organization or Hawaiian Native grantee which meet certain requirements, as specified. A Tribal organization or Hawaiian Native grantee may choose to receive their allocation grants as cash, commodities, or a combination thereof. NSIP funds may only be used to purchase domestically produced foods 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 NSIP funds. Comment: We received a comment asking to allow Title VI programs to use NSIP funds to purchase food directly 313 42 PO 00000 U.S.C. 3057e(a)(8). Frm 00069 Fmt 4701 Sfmt 4700 11633 from Tribes and Tribal organizations and for traditional foods. Response: Purchase of food from Tribes and Tribal organizations in the United States is considered to be domestically produced food and consistent with § 1322.27. ACL encourages the purchase of traditional foods and other foods from Tribes and Tribal organizations in the United States and intends that the promulgation of this rule makes this clear. Comment: Commenters supported ACL’s proposals to clarify the provision of nutrition services. One commenter recommended additional flexibility for nutrition services requirements that limit service options in remote Tribal areas. Another commenter expressed concern about the proposed expansion of home-delivered meals to older adults who are not homebound due to concerns surrounding funding and staff capacity. One commenter noted that aligning services to the requirements of Title III may create more barriers to funding flexibility. We also received comments regarding reporting and other program implementation matters. Response: ACL appreciates these comments. The OAA states that nutrition services available under Title VI, parts A and B of the Act are intended to be comparable to such services set forth in Title III of the Act. Based on comments received, we have revised § 1322.27(a)(4) to remove reference to the Nutrition Care Process, consistent with changes in part 1321. We have also made other edits for consistency with these similar provisions in part 1321. The provisions of § 1322.13, regarding policies and procedures to implement Title VI services, offer existing flexibilities to address remote areas, as well as to set priorities for how and to whom services will be provided given limited funds. We will provide technical assistance to address reporting concerns and other program implementation matters. B. New Provisions Added To Clarify Responsibilities and Requirements Under Grants to Indian Tribes and Native Hawaiian Grantees for Supportive, Nutrition, and Caregiver Services The final rule includes the following new provisions to provide guidance in response to inquiries and feedback received from grantees and other interested parties and changes in the provision of services, and to clarify requirements under the Act. E:\FR\FM\14FER4.SGM 14FER4 11634 Federal Register / Vol. 89, No. 31 / Wednesday, February 14, 2024 / Rules and Regulations requests for clarification through technical assistance. Subpart C—Service Requirements § 1322.11 Purpose of Services Allotments Under Title VI New § 1322.11 specifies that services provided under Title VI consist of supportive, nutrition, and family caregiver support program services, and that funds are to assist a Tribal organization or Hawaiian Native grantee to develop or enhance comprehensive and coordinated community-based systems for older Native Americans and family caregivers. We received no comments on this section. ddrumheller on DSK120RN23PROD with RULES4 § 1322.17 Purpose of Services— Person- and Family-Centered, TraumaInformed New § 1322.17 clarifies that services under the Act should be provided in a manner that is person-centered and trauma-informed. Recipients of services are entitled to an equal opportunity to the full and free enjoyment of the best possible physical and mental health, which includes access to personcentered and trauma-informed services. Comment: We received many comments expressing support for culturally sensitive, person- and familycentered, and trauma-informed approaches and practices in working with Native American elders and family caregivers. Other comments requested guidance in implementing these provisions. We also received comment that the term ‘‘holistic traditional care’’ would be a more appropriate term, as it implies the entire person within a setting which includes familial, cultural, and historical components. Response: We appreciate these comments and have revised § 1322.17 to include culturally appropriate holistic traditional care. Comment: One commenter expressed concern that the section is not clear if this provision is required for all services that are provided, given use of the terms ‘‘as appropriate’’ and ‘‘if applicable.’’ Response: ACL acknowledges the comment and uses the terms ‘‘as appropriate’’ and ‘‘if applicable’’ to reflect the variety of services that may be provided and to maintain the inherent flexibility of the OAA to respond to the needs of the local Tribal communities. For example, not all services use a person-centered plan; a person-centered plan would not be appropriate for a public education service. Grantees under Title VI of the Act can implement these provisions to best meet their circumstances, as long as implementation is consistent with all applicable Federal requirements. We intend to address further questions and VerDate Sep<11>2014 20:33 Feb 13, 2024 Jkt 262001 § 1322.19 Responsibilities of Service Providers New § 1322.19 specifies the responsibilities of service providers to include providing service participants with an opportunity to contribute to the cost of the service; providing selfdirected services to the extent feasible; acknowledging service provider responsibility to comply with local APS requirements, as appropriate; arranging for weather-related and other emergencies; assisting participants to benefit from other programs; and coordinating with other appropriate services. Comment: We received comment expressing support for specifying the responsibilities of service providers and suggesting two responsibilities be added: cultural competence training and inclusion of nondiscrimination language. Response: ACL appreciates this comment. Nondiscrimination policies are among the Federal requirements that apply to all service providers under the Act. ACL recognizes that cultural competence training is best offered locally to honor distinct Tribal and Hawaiian Native differences and local availability. As such we have revised the text to include, ‘‘Receive training to provide services in a culturally competent manner and consistent with §§ 1322.13 through 1322.17.’’ § 1322.21 Client Eligibility for Participation To be eligible for services under the Act, participants must have attained the minimum age determined by the Tribal organization or Hawaiian Native grantee, 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 Tribal organizations and Native Hawaiian grantees, as well as from others in the aging network, about eligibility requirements for Title VI services. For example, we received feedback expressing confusion as to whether younger caregivers of adults of any age are eligible to receive Title VI part C program services, which is not allowable under the Act, as well as the circumstances under which non-Native Americans who live within a Tribal organization’s or Hawaiian Native grantee’s approved service area and are considered members of the community by the Tribal organization may be PO 00000 Frm 00070 Fmt 4701 Sfmt 4700 eligible to receive services under this part. New § 1322.21 clarifies eligibility requirements under the Act and explains that a Tribal organization or Hawaiian Native grantee 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. Comment: One commenter supported ACL clarifying that a Tribal organization or Native Hawaiian grantee may adopt eligibility requirements beyond those included in the OAA, as long as they don’t conflict with the OAA or guidance from the Assistant Secretary for Aging. Another commenter stressed the importance of upholding Tribal sovereignty and favorably cited this provision as honoring sovereignty. We received additional comments encouraging ACL to widen the scope of service to eligible individuals based on their membership status within Federally or State recognized Tribes regardless of having a residence on Federally recognized reservations. Response: These regulations do not require elders receiving services to live on a reservation of a Federally recognized Tribe. In fact, there are Federally recognized Tribes that do not have reservation lands. ACL respects Tribal sovereignty, and has included the following at § 1322.21(b), ‘‘A Tribal organization or Hawaiian Native grantee may develop further eligibility requirements for implementation of services for older Native Americans and family caregivers, consistent with the Act and other applicable Federal requirements.’’ Among these is ‘‘geographic boundaries’’ in § 1322.21(b)(2). As we believe this offers maximum flexibility to Tribes, Tribal organizations, and Hawaiian Native grantees under the Act, we make no further edits to this section. § 1322.23 Client and Service Priority We previously received numerous inquiries about how a Tribal organization or Hawaiian Native grantee 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 in the wake of the COVID–19 Public Health Emergency (PHE). Entities sought clarification on whether they are permitted to set priorities, who is permitted to set priorities, and the E:\FR\FM\14FER4.SGM 14FER4 Federal Register / Vol. 89, No. 31 / Wednesday, February 14, 2024 / Rules and Regulations ddrumheller on DSK120RN23PROD with RULES4 degree to which entities have discretion to set their own priority parameters. New § 1322.23 clarifies that entities may prioritize services and that they have flexibility to set their own policies based on their assessment of local needs and resources. For clarity and convenience, we list the priorities for serving family caregivers as set forth in section 631(b) of the Act.314 Comment: Commenters supported the flexibility given to Tribal organizations and Native Hawaiian grantees to prioritize services and set their own policies based on their assessment of local need and resources. One commenter requested that language be added to include assessments based on greatest social or economic needs. Another commenter recommended that ACL consider the adoption of explicit language referring to LGBTQI+ Indian and Native Hawaiian older adults, TwoSpirit older adults, and Indian and Native Hawaiian older adults with HIV and including such language in all nondiscrimination provisions and in cultural competency training requirements. Response: ACL appreciates these comments and encourages prioritization of services to assist elders with the greatest social and the greatest economic needs, including the populations referenced in the comments. Section 1322.23 directs grantees to conduct their own assessment of local needs and resources, as well as to identify criteria for prioritizing the delivery of services. In order to maintain flexibility of Tribal organizations and Hawaiian Native grantees, ACL declines to further specify how this is done in this rule. However, ACL will provide technical assistance in implementing these provisions. § 1322.29 Family Caregiver Support Services New § 1322.29 implements section 631 of the Act related to family caregiver support services.315 It clarifies the services available; eligibility requirements for respite care and supplemental services; and allowable use of funds. Comment: Commenters supported the breadth of § 1322.29. One commenter noted that while they support flexible definitions of family caregiving, they are concerned that as more people will be eligible for services, this would require additional funds. Response: ACL appreciates these comments and notes that funding decisions are outside the scope of this rule. § 1322.31 Title VI and Title III Coordination Consistent with § 1321.53 (State agency Title III and Title VI coordination responsibilities), § 1321.69 (Area agency on aging Title III and Title VI coordination responsibilities), and § 1321.95 (Service provider Title III and Title VI coordination responsibilities), new § 1322.31 outlines expectations for coordinating activities and delivery of services under Title VI and Title III, as articulated in sections 306(a)(11)(B),316 307(a)(21)(A),317 614(a)(11),318 and 624(a)(3) of the Act.319 We clarify that coordination is required under the Act and that all entities are responsible for coordination, including Tribal organizations and a Hawaiian Native grantee, State agencies, AAAs, and service providers. Comment: Commenters overwhelmingly expressed support for coordination between Title VI and Title III programs. They expressed concern about the lack of coordination between Title VI grantees and State agencies, low amounts of funding provided under Title III to Tribes, and lack of technical assistance on how to apply for available Title III funds. One commenter recommended that any entities involved in provision of services under Title III of the Act develop their procedures for outreach and coordination with the relevant Title VI program director. Another commenter expressed that the proposed language regarding coordination was too permissive. A commenter recommended specifying that services should be delivered in a culturally appropriate and traumainformed manner. Some commenters also requested technical assistance for State agencies on their roles and responsibilities. We also received other suggestions, program management recommendations, and implementation questions regarding this provision, including regarding examples and best practices for coordination. Response: ACL expects coordination between Title VI and Title III programs. As stated above, § 1322.31 sets forth the same requirements for Title VI programs as are set forth in § 1321.53 for State agencies, in § 1321.69 for AAAs, and in § 1321.95 for service providers under Title III of the Act. Based on the comments received, we revised each provision to use consistent language, where appropriate. We explain the changes made in the following paragraphs. 316 42 U.S.C. 3026(a)(11)(B). U.S.C. 3027(a)(21)(A). 318 42 U.S.C. 3057e(a)(11). 319 42 U.S.C. 3057j(a)(3). 317 42 314 42 315 42 U.S.C. 3057k–11(b). U.S.C. 3057k–11. VerDate Sep<11>2014 20:33 Feb 13, 2024 Jkt 262001 PO 00000 Frm 00071 Fmt 4701 Sfmt 4700 11635 We have reordered the opening paragraph in § 1322.31 as § 1322.31(a) and have reordered the subsequent paragraphs accordingly. We have further revised the language in reorganized § 1322.31(a) to read, ‘‘A Tribal organization or Hawaiian Native grantee under Title VI of the Act must have policies and procedures, developed in coordination with the relevant State agency, area agency or agencies, and service provider(s) that explain how the Title VI program will coordinate with Title III and/or VII funded services [. . .] A Tribal organization or Hawaiian Native grantee may meet these requirements by participating in tribal consultation with the State agency regarding Title VI programs.’’ We have created a reordered paragraph § 1322.53(b) and have made revisions to clarify topics that the policies and procedures set forth in paragraph (a) ‘‘[. . .] must at a minimum address[.]’’ By using these words, ACL makes clear that coordination is required. We have further made edits to include how outreach and referrals will be provided to Tribal elders and family caregivers regarding services for which they may be eligible under Title III and/or VII; remove duplicate language which was incorporated into revised paragraph (a); revise ‘‘[. . .] such as [. . .]’’ to ‘‘[. . .] to include [. . .]’’ in reference to meetings, email distribution lists, and presentations regarding communication opportunities; add ‘‘How services will be provided in a culturally appropriate and trauma-informed manner;’’ and make other grammatical edits for consistency. We have also added new § 1322.31(c) to state, ‘‘The Title VI program director, as set forth in § 1322.13(a), shall participate in the development of policies and procedures as set forth in §§ 1321.53, 1321.69, and 1321.95.’’ There are multiple successful examples of such coordination that ACL is committed to sharing and expanding. We believe that the promulgation of these regulations will provide a significant opportunity to further coordination between Title VI and Title III programs, including improving ACL’s monitoring programs for compliance. ACL anticipates providing technical assistance on this provision and other provisions related to coordination among Title VI and Title III programs upon promulgation of the final rule. Regarding provision of Title III funding to Tribes, the amount of available Title III funding is limited to what is appropriated for such purposes. State agencies are required to distribute such funding to AAAs via an IFF in E:\FR\FM\14FER4.SGM 14FER4 11636 Federal Register / Vol. 89, No. 31 / Wednesday, February 14, 2024 / Rules and Regulations ddrumheller on DSK120RN23PROD with RULES4 States with multiple PSAs, as required by the Act and as set forth at § 1321.49. In some States, Tribes have been designated as AAAs and receive Title III funds. Single PSA State agencies are required to distribute funds in accordance with a funds distribution plan as set forth at § 1321.51(b), and Title VI programs may receive funds under a contract or grant with a State agency in such States. State agencies and AAAs are required to establish and follow procurement policies in awarding Title III funds under the Act, which may allow for awarding of funds to Title VI grantees, Tribes, and other Tribal organizations. ACL emphasizes that this new provision is included based on feedback by Tribes and Title VI-funded programs to specify that coordination is a requirement. While coordination is a requirement, there are various ways for grantees under Title VI and Title III of the Act to coordinate. ACL encourages Tribes and Tribal organizations to apply to provide Title III-funded services. However, the statute does not allow for a requirement that Title III funds be provided to Title VI grantees outside of the procurement policies in place for awarding of Title III funds under the Act. Subpart D—Emergency & Disaster Requirements The COVID–19 PHE highlighted the importance of the efforts of Tribal organizations and the Hawaiian Native grantee to maintain the health and wellness of older Native Americans and family caregivers. 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 emergencies and disasters may uniquely affect older Native Americans and family caregivers. If a State or Indian Tribe (whether directly, or through association with the State) receives a MDD by the President under the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121–5207, section 310 of the Act applies, and provides flexibility related to disaster relief.320 The COVID– 19 PHE for example, demonstrated the devastating impact on the target population of services under the Act. During the pandemic, all States and some Indian Tribes received a MDD, and we provided guidance on flexibilities available under the Act while under a MDD to meet the needs of older Native Americans and caregivers, such as those related to meal 320 42 U.S.C. 3030. VerDate Sep<11>2014 20:33 Feb 13, 2024 Jkt 262001 delivery systems, methods for conducting well-being checks, delivery of pharmacy, grocery, and other supplies, and other vital services. Throughout the COVID–19 PHE we received inquiries and feedback that demonstrated a need for clarity on available flexibilities in an emergency. RFI and NPRM respondents also provided substantial feedback regarding limitations and the need for additional guidance and options for serving older adults during emergencies. Multiple RFI respondents noted that services under the Act may be impacted by a wide range of emergencies and disasters— including natural, human-caused, climate-related, and viral disasters—and that previous regulatory guidance did not provide service providers under the Act the flexibility necessary to adequately plan for emergency situations. Accordingly, the aging network sought an expansion of the definition of ‘‘emergency’’ that better reflected their realities regarding service delivery. RFI and NPRM 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 the COVID–19 PHE, 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 outlining what is expected of a grantee under the Act in an emergency to allow for the development of better emergency and disaster preparedness plans at all levels. Based on input from interested parties and our experience, particularly during the COVID–19 PHE, we add Subpart D— Emergency and Disaster Requirements (§§ 1322.33–1322.39) to explicitly outline expectations and clarify flexibilities that are available in a disaster situation. We considered various approaches in developing this section. Certain flexibilities, such as allowing 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 VI part A or B and without any special authorization by ACL during an emergency. Those flexibilities have been incorporated where applicable in the revised regulation for clarification purposes (see § 1322.27, which addresses carry-out and other alternatives to traditional homedelivered meals). We are limited by the Act in the extent to which other flexibilities may be allowed. For example, a MDD is required in order for PO 00000 Frm 00072 Fmt 4701 Sfmt 4700 a Tribal organization or Hawaiian Native grantee to be permitted, pursuant to section 310(c) of the Act,321 to use Title VI funds to provide disaster relief services (which must consist of allowable services under the Act) for areas of the service area where the specific major disaster declaration is authorized and where older Native Americans and family caregivers are affected. Comment: We received comment expressing general support for inclusion of this subpart and flexibility to innovatively address disasters and emergencies. Response: ACL appreciates this comment. § 1322.33 Coordination With Tribal, State, and Local Emergency Management New § 1322.33 states that Tribal organizations and Hawaiian Native grantees must establish emergency plans, and this section outlines requirements that these plans must meet. While the Act requires emergency planning by State agencies and area agencies on aging, the Act provides limited guidance regarding emergency planning specific to Title VI grantees. We also include in this section additional guidance in connection with the development of sound emergency plans (such as requirements for continuity of operations planning, taking an all-hazards approach to planning, and coordination among Tribal, State, and local emergency management and other agencies that have responsibility for disaster relief delivery). Comment: We received comments supporting ACL’s proposal to require Tribal organizations and Hawaiian Native grantees to establish emergency plans, to specify the requirements those plans must meet, and to provide guidance regarding development of emergency plans. We received comment recommending any regulations directing the State agency or AAAs to develop procedures for outreach and coordination with Tribes be developed in consultation with that community’s Title VI program directors. Another commenter noted there are existing Tribal emergency plans that could be used to comply with the section and that in incidences where there is an opportunity to coordinate, it could be captured with a memorandum of understanding. Response: ACL appreciates these comments. The provisions in part 1322 are specific to the expectations for 321 42 E:\FR\FM\14FER4.SGM U.S.C. 3030(c). 14FER4 Federal Register / Vol. 89, No. 31 / Wednesday, February 14, 2024 / Rules and Regulations ddrumheller on DSK120RN23PROD with RULES4 grantees under Title VI of the Act. Expectations for grantees under Title III of the Act are in part 1321. In response to the recommendation to consult with the appropriate Title VI program directors, we have made this change at § 1321.103. ACL agrees that existing Tribal emergency plans that address coordination with the services funded under Title VI of the Act, in accordance with these provisions, would meet these expectations. Establishing a memorandum of understanding is also a reasonable method to meet the expectations as set forth. ACL appreciates the comments identifying how implementation of these provisions can be accomplished. § 1322.35 Flexibilities Under a Major Disaster Declaration New § 1322.35 outlines disaster relief flexibilities available under a MDD to provide disaster relief services for affected older Native Americans and family caregivers. Recognizing that there is no required period of advance notice of the end of a MDD incident period, the final rule allows a Tribal organization or Hawaiian Native grantee up to 90 days after the expiration of a MDD to obligate funds for disaster relief services. We received many comments in response to the RFI and NPRM asking that various flexibilities allowed during the COVID–19 PHE remain in place following the end of the PHE. We are limited by the Act in the extent to which flexibilities may be allowed. For example, a MDD is required in order for a Title VI grantee to be permitted, pursuant to section 310(c) of the Act,322 to use Title VI funds to provide disaster relief services (which must consist of allowable services under the Act) for areas of the service area where the specific MDD is authorized and where older Native Americans and family caregivers are affected. Comment: We received comments in support of these changes that will better enable OAA-funded programs to serve Native elders in instances of disasters or emergencies. We also received comments with questions if a Tribal declaration needs to be recognized by the non-Tribal entities that are referenced. Response: ACL appreciates these comments and intends to provide technical assistance regarding various declarations that may apply in emergency and disaster situations. We have also made edits to § 1322.35(b) for consistency with the language used in this similar provision in part 1321 and have reordered items accordingly. 322 42 U.S.C. 3030(c). VerDate Sep<11>2014 20:33 Feb 13, 2024 Jkt 262001 11637 § 1322.37 Title VI and Title III Coordination for Emergency and Disaster Preparedness Part 1323—Grants for Supportive and Nutritional Services to Older Hawaiian Natives Section 1321.53 (State agency Title III and Title VI coordination responsibilities), § 1321.69 (Area agency on aging Title III and Title VI coordination responsibilities), and § 1321.95 (Service provider Title III and Title VI coordination responsibilities), outline expectations for coordinating activities and delivery of services under Title III and Title VI, as articulated in the Act sections 306(a)(11)(B),323 307(a)(21)(A),324 614(a)(11),325 and 624(a)(3).326 New § 1322.37 clarifies that Title VI and Title III coordination should extend to emergency and disaster preparedness planning and response. Comment: We received comments supporting the clarification that Title VI and Title III coordination should extend to emergency and disaster preparedness and response. We also received comment noting geographic, historical, and cultural considerations that are part of the preparedness plans developed by the Tribal aging programs that are uniquely Tribal. Response: ACL appreciates these comments and confirms that specific to emergency and disaster coordination, § 1321.97 requires coordination by grantees under Title III of the Act with State, Tribal, and local emergency management, while § 1321.103 requires that State and area agencies coordinate with Title VI programs. These provisions complement this provision at § 1322.37. A. Deleted Provisions The final rule removes part 1323, which is specific to Title VI, part B, which applies to one Hawaiian Native grantee. We include requirements specific to Title VI, part B in the revised part 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 thereof. Comment: ACL received comments of appreciation for the proposed changes to clarify Title VI and other provisions of the Act to better allow grantees to serve Native elders and family caregivers. One commenter noted that consolidating the sections referencing Title VI services to Indian Tribes and Native Hawaiian grantees creates more clarity in the regulations, which will permit grantees to better serve Native American, Alaskan Native, and Native Hawaiian elders and family caregivers. Response: ACL appreciates these comments. § 1322.39 Modification During Major Disaster Declaration or Public Health Emergency New § 1322.39 states that the Assistant Secretary for Aging retains the right to modify emergency and disasterrelated requirements set forth in the regulation under a MDD or PHE. C. Deleted Provisions § 1322.5 Applicability of Other Regulations The final rule removes § 1322.5, which lists other applicable regulations, because the provision is unnecessary and may create confusion or become outdated due to statutory or regulatory changes. 323 42 U.S.C. 3026(a)(11)(B). U.S.C. 3027(a)(21)(A). 325 42 U.S.C. 3057e(a)(11). 326 42 U.S.C. 3057j(a)(3). 324 42 PO 00000 Frm 00073 Fmt 4701 Sfmt 4700 Part 1324—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 The regulation for the State LongTerm Care Ombudsman Program (Ombudsman program) was first issued in 2015. In the eight years since, ACL has provided technical assistance to State Long-Term Care Ombudsmen, State agencies, and designated local Ombudsman entities as they work to implement the regulation. The 2016 reauthorization of the Act also made changes specific to the Ombudsman program. Changes to the regulation are needed to ensure consistency with updates to the Act. Additionally, based on requests for technical assistance and comments to the NPRM, ACL has determined to clarify certain sections of part 1324, including the responsibilities and the authority of the State LongTerm Care Ombudsman (Ombudsman); duties owed to residents regarding confidentiality; and COI requirements. Comment: Many commenters stated support in general for the updating of the regulations to be consistent with Title VII of the Act. Response: ACL appreciates these comments of support. ACL anticipates continuing to provide technical assistance to grantees under Title VII of E:\FR\FM\14FER4.SGM 14FER4 ddrumheller on DSK120RN23PROD with RULES4 11638 Federal Register / Vol. 89, No. 31 / Wednesday, February 14, 2024 / Rules and Regulations the Act in support of the individuals served by Title VII programs. Comment: A commenter noted a need for increased funding for Ombudsman programs and legal services for older adults, adding that increased funding would help programs rely less on volunteers. Other organizations commented on the utilization of volunteers in the Ombudsman program and recommended that we establish multiple levels of certification to account for volunteers who desire fewer responsibilities, noting that training could be adjusted as well. Response: Although program funding is beyond the scope of the rule, we acknowledge the decline in volunteers over multiple years and understand the impact on program resources. The Act calls for the Ombudsman to designate representatives of the Office of the State Long-Term Care Ombudsman (the Office), without distinguishing between paid and volunteer representatives. The rule defines ‘‘representatives of the Office’’ as the ‘‘[. . .] employees or volunteers designated by the Ombudsmanto fulfill the duties set forth in § 1324.19(a)[.]’’ 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. Further, the Act requires ACL to develop training standards for representatives; in doing so as subregulatory guidance, we sought input from Ombudsman programs across the country to establish a minimum level of training, but several states adjusted their training to provide additional hours and content for representatives who are assigned more complex responsibilities. We have determined that Ombudsman programs have flexibility to assign volunteer duties to meet the needs of the program if they are performing duties described in the rule. Comment: One commenter challenged the accuracy of Frequently Asked Questions that ACL published as subregulatory guidance, noting that they contradict the rule. Response: While we respectfully disagree with the concern about the guidance in relation to the prior version of the Ombudsman rule, we intend to review previous sub-regulatory guidance and adjust where necessary to align with this final rule. VerDate Sep<11>2014 20:33 Feb 13, 2024 Jkt 262001 § 1324.1 Definitions We add a new definition for ‘‘Official duties’’ to § 1324.1 for consistency with part 1321 of the regulation, which also contains this defined term. In both parts 1321 and 1324, this term is used to define the duties of representatives of the Office. As currently defined at § 1324.1, representatives of the Office are the employees or volunteers designated by the Ombudsman to conduct the work of the Ombudsman program. The definition of ‘‘Official duties’’ is included to clarify the role of representatives of the Office. We made clarifications to address misunderstandings of the role expressed by third parties who deal with the Ombudsman program. We also made minor changes to the definition of ‘‘Resident representative.’’ Comment: Most commenters agreed with the added and clarified definitions in § 1324.1. Some commenters recommended we add language to clarify that representatives of the Office may be carrying out the duties ‘‘[. . .] by direct delegation from, the State Long-Term Care Ombudsman’’ in addition to carrying out duties ‘‘[. . .] under the auspices and general direction of, [. . .] the State Long-Term Care Ombudsman.’’ Response: We appreciate the comments. We recognize that Ombudsman programs operate in a variety of organizational structures and that direct delegation is one way that programs are managed. We have modified the definition of ‘‘Official duties’’ as recommended. The same change was made in part 1321. Comment: One commenter recommended that we add a definition of ‘‘resolved’’ to support accuracy of data. Response: We appreciate the commenter’s interest in accuracy. Specifying data collection requirements is outside the scope of this rule. The National Ombudsman Reporting System includes definitions for accurate data collection and is accompanied by training and a series of frequently asked questions. We will work with the National Ombudsman Resource Center to continue to refine guidance regarding data collection requirements. Comment: Commenters identified incongruent sentence structure in the proposed modification to the definition of resident representative. Response: We agree with the commenters’ notes about wording and have made technical corrections to that definition. Comment: One commenter underscored the importance of the PO 00000 Frm 00074 Fmt 4701 Sfmt 4700 Ombudsman program being residentdirected and recommended the addition of a definition of ‘‘informed consent.’’ The commenter noted that some longterm care facilities, guardians, and others have attempted to limit the ability of the Ombudsman program to advocate on behalf of residents and that multiple understandings of the term lead to inconsistent application. They suggested including that, when seeking consent, representatives of the Ombudsman program give residents a full explanation of the facts, options, and possible outcomes. Response: We agree that consent is a key to successful advocacy for residents. We will provide technical assistance for obtaining informed consent. § 1324.11 Establishment of the Office of the State Long-Term Care Ombudsman Section 1324.11 sets forth requirements related to the establishment of the Office of the State Long-Term Care Ombudsman (Office). We make minor changes to § 1324.11(a) and to the introductory clause of (b), as well as to (e) introductory text, (e)(1)(i) and (v); (e)(4)(i) through (iii); (e)(5) and (6); and (e)(8)(ii), to clarify the purpose of the section. Other changes to this section are discussed in more detail, below. In fulfilling their responsibilities, representatives of the Office may need access to the medical, social and/or other records of a resident, and section 712(b) of the Act requires State agencies to ensure that representatives of the Office will have such access, as appropriate, including in the circumstance where a resident is unable to communicate consent to the review and has no legal representative.327 Previously, § 1324.11 did not require policies and procedures to address access to a resident’s records in this circumstance by the Ombudsman and the representatives of the Office, and we receive many requests for technical assistance as to how to address this situation. Accordingly, we add language in § 1324.11(e)(2) to require policies and procedures to provide direction for the Ombudsman and representatives of the Office as to how to address a situation where a resident is unable to communicate consent to the review of their records and they have no legal representative who can communicate consent for them. We add the requirement for policies and procedures as § 1324.11(e)(2)(iv)(C) and renumber 327 42 E:\FR\FM\14FER4.SGM U.S.C. 3058g(b). 14FER4 ddrumheller on DSK120RN23PROD with RULES4 Federal Register / Vol. 89, No. 31 / Wednesday, February 14, 2024 / Rules and Regulations subsequent subsections within § 1324.11(e)(2)(iv). A major tenet of the Ombudsman program is that it is resident-directed. This concept extends to if and how information about a resident’s complaints is disclosed, and section 712(d) of the Act requires State agencies to prohibit the disclosure of the identity of a resident without their consent.328 We have received many requests for technical assistance as to how to address a situation when the resident is unable to provide consent to disclose; there is no resident representative authorized to act on behalf of the resident; or the resident representative refuses consent and there is reasonable cause to believe the resident’s representative has taken an action, failed to act, or otherwise made a decision that may adversely affect the resident. We add language to § 1324.11(e)(3)(iv) to require State agencies to have policies and procedures in place to provide direction for representatives of the Office as to how to address these situations. States may have laws that require mandatory reporting of abuse, neglect, and exploitation. We have received questions as to the applicability of these requirements to the Ombudsman program, despite the prohibitions in section 712(b) of the Act against disclosure of resident records and identifying information without resident consent.329 To clarify existing requirements, we add language to § 1324.11(e)(3)(v) to require State agencies to have policies and procedures in place to make clear that mandatory reporting of abuse, neglect, and exploitation by the Ombudsman program is prohibited. Subsequent subsections within § 1324.11(e)(3) have been re-numbered to reflect the new language. Section 712 of the Act requires the Ombudsman program to represent the interests of residents before government agencies and to seek administrative, legal, and other remedies to protect the health, safety, welfare, and rights of the residents.330 Section 712 also provides that the Ombudsman, personally or through representatives of the Office, is to analyze, comment on, and monitor the development and implementation of Federal, State, and local laws, regulations, and other governmental policies and actions that pertain to the health, safety, welfare, and rights of the residents, with respect to the adequacy of long-term care facilities and services section 3058g(d). section 3058g(b). 330 Id. section 3058g. in the State; recommend any changes in such laws, regulations, policies, and actions as the Office determines to be appropriate; and review, and if necessary, comment on any existing and proposed laws, regulations, and other government policies and actions, that pertain to the rights and well-being of residents.331 To be a strong advocate, the Ombudsman must be able to make determinations and to establish positions of the Office independently and without interference and must not be constrained by determinations or positions of the agency in which the Office is organizationally located. In response to information ACL received about State government agencies engaging in interference prohibited under section 712 of the Act 332 (e.g., by requiring prior approval of positions of the Office regarding governmental laws, regulations, or policies), we add language to the introductory portion of § 1324.11(e)(8) to clarify this prohibition. Specifically, we replace the existing phrase ‘‘[. . .] without necessarily representing the determinations or positions of the State agency or other agency in which the Office is organizationally located’’ with ‘‘[. . .] without interference and shall not be constrained by or necessarily represent the determinations or positions of the State agency or other agency in which the Office is organizationally located.’’ Comment: One commenter recommended the addition of language to clarify that any work for nonombudsman services or programs must not utilize funding designated for the Ombudsman program and must not interfere with the duties and functions of the Ombudsman program. Response: Section 1324.13(f) directs the Ombudsman to determine the use of fiscal resources appropriated for or otherwise available for the operation of the Office, including determining that program budgets and expenditures of local Ombudsman entities are consistent with laws, policies, and procedures governing the Ombudsman program. Further, § 1324.11(e)(1)(vi) provides that procedures that clarify fiscal responsibilities of local Ombudsman entities include clarifications about access to programmatic fiscal information by appropriate representatives of the Office. Therefore, we believe the recommendation of the commenter would be most appropriately handled through Ombudsman policies and procedures, 328 Id. 329 Id. VerDate Sep<11>2014 20:33 Feb 13, 2024 and we have elected not to make a change to the rule. Comment: Commenters recommended additional requirements for qualification to serve as the State LongTerm Care Ombudsman. Recommendations included educational requirements, minimum years of experience in the current role or in the field, expertise in the legal system and legislative process as well as organizational management and program administration, and gaps in employment with a long-term care facility. Response: The rule includes several areas of expertise required of an Ombudsman as well as a one-year cooling off period after employment by a long-term care facility, as required by section 712(f)(1)(C)(iii) of the Act.333 Given the statutory requirement, we have retained this provision as proposed. Comment: Many commenters recommended ACL clarify in part 1324 the authority of the Ombudsman to develop policies and procedures, noting that such authority is critical to their responsibility for program operation, monitoring, and service delivery. One commenter suggested the regulations grant the Ombudsman full legal authority to establish policies and procedures. Response: We have modified § 1324.11(e) to clarify that the agency shall establish Ombudsman program policies and procedures as recommended by the Ombudsman. The edit is designed to ensure that the Ombudsman leads development of policies and procedures. We decline to require that the Ombudsman have full legal authority to establish policy and procedures to allow for coordination and cooperation and where State law does not provide such authority. Comment: One commenter recommended that ACL add a requirement for policies and procedures for emergency and disaster preparedness and response that would incorporate continuity of operations planning, all-hazards planning, and coordination with emergency management agencies. Response: The COVID–19 PHE provided new opportunities for Ombudsman programs to forge relationships with emergency management agencies and public health agencies, and we agree that some programs were more equipped than others to create and implement continuity of operations plans. We appreciate the comment and have added 331 Id. 332 Id. Jkt 262001 PO 00000 Frm 00075 333 42 Fmt 4701 Sfmt 4700 11639 E:\FR\FM\14FER4.SGM U.S.C. 3058g(f)(1)(C)(iii). 14FER4 ddrumheller on DSK120RN23PROD with RULES4 11640 Federal Register / Vol. 89, No. 31 / Wednesday, February 14, 2024 / Rules and Regulations a requirement in § 1324.11(e) that policies and procedures related to emergency planning include continuity of operations procedures. Additionally, we will provide technical assistance to Ombudsman programs to implement the new requirement. Comment: One commenter recommended that ACL establish a requirement for the Ombudsman to collaborate with area agencies on aging to create a uniform system for monitoring local Ombudsman entities to assure that designated programs are performing duties as required. Another commenter noted that varied processes lead to extra requests for information that take up limited program resources. Several commenters recommended a standard frequency of monitoring, such as every one to four years or every two to three years. Response: Section 1324.11(e) requires that when local Ombudsman entities are designated within area agencies on aging or other entities, the Ombudsman shall develop such policies and procedures in consultation with the agencies hosting local Ombudsman entities and with representatives of the Office. However, the rule does not clearly require consultation with area agencies on aging when the area agency on aging is not the host agency for the local Ombudsman program. Therefore, we have amended § 1324.11(e) to add such consultation. Further, we use this rule to make § 1324.11(e) consistent with § 1324.13(c), which requires the Ombudsman to monitor local Ombudsman entities ‘‘on a regular basis.’’ Specifically, we modify § 1324.11(e)(1)(iii) to require monitoring ‘‘on a regular basis’’ defer to the Ombudsman to define ‘‘regular’’ in terms of the frequency of monitoring, in consultation with area agencies on aging based on the revision to § 1324.11(e) described above. Because resources vary and there are other factors that would determine an appropriate monitoring frequency, we are not prescribing a timeframe. Comment: Several commenters recommended edits to § 1324.11(e)(1)(v) to clarify the standards the Ombudsman must establish regarding response times to complaints. Response: We appreciate the comments and agree that clarification of the rule will assist Ombudsman programs to establish timeframes for response to complaints made by or on behalf of residents. Therefore, we have revised the section to clarify the standards the Ombudsman must establish based on the needs and resources of the program. VerDate Sep<11>2014 20:33 Feb 13, 2024 Jkt 262001 Comment: A few organizations commented on § 1324.11(e)(1)(vi), recommending language to ensure that the Ombudsman program manager at local Ombudsman entities is involved in the budget and expenditure process and receives regular reports of fund balances and expenditures. Response: Section § 1324.11(e)(1)(vi) addresses procedures regarding fiscal responsibilities of the local Ombudsman entity such as access to programmatic fiscal information by appropriate representatives of the Office. This subsection provides general guidance while allowing State agencies and Ombudsman to devise the policies and procedures that fit their specific program structures and resources. We are not changing the language but will provide targeted technical assistance in the future. Comment: Commenters recommended an addition to procedural requirements to establish time frames and methods of destruction of Ombudsman program records. One commenter also suggested a statement that Ombudsman program records are not subject to public records or freedom of information requests. Response: ACL has received questions from Ombudsman programs about record retention requirements and appreciates the comment raising the issue in the context of the rule. We agree that requiring Ombudsman programs to have policies and procedures regarding timeframes would help with consistent response to requests for records. Therefore, we have added a requirement at § 1324.11(e)(1)(vii) for Ombudsman programs to have procedures regarding record retention. We believe that existing provisions in section 712 of the Older Americans Act 334 and at § 1324.11(e)(3) support confidentiality of records. ACL intends to provide additional sub-regulatory guidance for implementation of existing requirements. Comment: Some commenters recommended that § 1324.11(e)(2), which addresses procedures for access to facilities, residents, and records, be amended to require access to long-term care facilities at any time to ensure residents have unrestricted access to representatives of the Office. Other recommendations include that ACL specify that long-term care facilities must provide the Ombudsman and/or representatives of the Office with resident names, contact information, and room numbers so that representatives can quickly and easily locate residents; and to set specific maximum timeframes to produce the 334 42 PO 00000 U.S.C. 3058g. Frm 00076 Fmt 4701 Sfmt 4700 roster and other requested information. One commenter also recommended that ACL clarify that failure to comply would constitute willful interference. Response: ACL does not have authority to establish requirements for long-term care facilities. We have determined that existing requirements for policies and procedures coupled with State agency requirements about interference at § 1324.15(i) provide sufficient guidance for Ombudsmen and State agencies to collaborate on how to ensure that representatives of the Office can perform their duties effectively. We appreciate the suggestions, and ACL intends to offer technical assistance and make best practices available to support Ombudsmen and representatives of the Office to fulfill their duties. Comment: Many commenters expressed support for the new requirement at § 1324.11(e)(3)(iv), that policies and procedures about disclosure of files, records, and other information maintained by the Ombudsman program must include standard criteria for making determinations about disclosure of resident information when the resident is unable to provide consent and there is no resident representative or the resident representative refuses consent in certain circumstances as set forth. Response: ACL appreciates the support of this provision. We note the related clarification to § 1324.11(e)(2)(iv)(C). When a resident is unable to grant or decline consent and there is no legal representative, the representative of the Office must seek approval of the Ombudsman. The clarification makes § 1324.11(e)(2)(iv)(C) consistent with § 1324.11(e)(2)(iv)(D). Comment: One commenter requested that we clarify the requirement in § 1324.11(e)(3)(iv) regarding policies and procedures for obtaining consent to include non-verbal consent as an acceptable method. Response: The existing rule provides for consent to be provided orally, visually, or through the use of auxiliary aids and services. ACL intends that visual or assisted communication includes non-verbal forms of communication and will retain the existing language. Comment: Many commenters expressed support for the proposed clarification of § 1324.11(e)(3)(v). One commenter noted that despite longstanding requirements about disclosure and consent, mandatory reporting requirements have continued to be an issue in States where the Ombudsman program is not exempt from reporting in State rules, laws, and professional licensing requirements. One commenter E:\FR\FM\14FER4.SGM 14FER4 ddrumheller on DSK120RN23PROD with RULES4 Federal Register / Vol. 89, No. 31 / Wednesday, February 14, 2024 / Rules and Regulations recommended that we use ‘‘mandated’’ as that is the most common term for such provisions. Response: We appreciate the comment and have made the requested modification in the final rule. In reviewing the NPRM we identified a technical error; the new provision at § 1324.11(e)(3)(v) should have replaced the language in § 1324.11(e)(3)(vi). Paragraphs have been merged and renumbered in the final rule. Comment: Many commenters expressed support for the change to § 1324.11(e)(6)(i), which removed ‘‘adequately’’ in regard to removing or remedying COI, as it allows for less ambiguity. Response: We appreciate the support of the modification. Comment: One organization recommended adding that the policies and procedures regarding grievances in § 1324.11(e)(7); personnel management in § 1324.17; and COI in § 1324.21 be ‘‘fair’’ if an Ombudsman takes adverse action on designation of a local Ombudsman entity, noting that removal of designation and certification could be arbitrary actions. They additionally recommended a requirement to provide the grievance process in writing to covered entities and individuals in advance. Response: ACL believes that the regulatory language is sufficient to address the concern, and will provide technical assistance and additional guidance, if necessary, in consultation with interested parties. Comment: Many commenters raised concerns that the subject of determinations identified in § 1324.11(e)(8)(i) through (iii) is too narrow and does not include other areas of Ombudsman program operations about which the Ombudsman makes determinations (e.g., complaint processing, contents of the annual report). Commenters suggested that changing ‘‘regarding’’ to ‘‘including’’ would clarify that the areas listed are not all-inclusive but are examples and suggested adding the annual report as required in § 1324.13(g). They cited instances of host agencies editing determinations. One commenter recommended seeking input from representatives of the Office when making determinations regarding systems advocacy. Response: We appreciate the explanation and information about Ombudsman program experiences and note that the examples in the existing rule are also included in § 1324.13 (Functions and responsibilities of the State Long-Term Care Ombudsman). Therefore, we have amended VerDate Sep<11>2014 20:33 Feb 13, 2024 Jkt 262001 § 1324.11(e)(8) to refer to the functions and responsibilities of the Ombudsman. We will provide technical assistance on practices for seeking input, including regular review of Ombudsman records, data analysis, or direct consultation with representatives of the Office. § 1324.13 Functions and Responsibilities of the State Long-Term Care Ombudsman Section 712 of the Act sets forth the functions and roles of the Ombudsman and provides that the Ombudsman has the authority to make independent determinations in connection with these various functions.335 Through technical assistance inquiries, monitoring activities, and RFI comments, we have been made aware of instances where a State agency does not understand the authority and independence of the Ombudsman, such as with respect to commenting on governmental policy. We clarify § 1324.13 to provide that the Ombudsman has the authority to lead and manage the Office. Specifically, we change the phrase in the first sentence ‘‘[. . .] responsibility for the leadership [. . .]’’ to ‘‘[. . .] responsibility and authority for the leadership [. . .]’’ to emphasize the authority of the Ombudsman to carry out the statutory functions. Section 201(d) of the Act provides for oversight of the Ombudsman program by a Director of the Office of Long-Term Care Ombudsman Programs.336 We update § 1324.13(c)(2) to take into account previous sub-regulatory guidance and require training for certification and continuing education procedures to be based on and consistent with the standards established by ACL’s Director of the Office of Long-Term Care Ombudsman Programs, as well as with any standards set forth by the Assistant Secretary for Aging. Section 712 of the Act contains detailed requirements with which representatives of the Office must comply, such as requirements as to confidentiality of resident records, as well as limitations on disclosure of such records and on the disclosure of the identity of residents.337 Section 712 also requires that representatives receive adequate training with respect to program requirements.338 We have been made aware of instances where staff of the Ombudsman program have had access to resident records without training or certification as a 335 Id. section 3058g. U.S.C. 3011(d). 337 42 U.S.C. 3058g. 338 Id. 336 42 PO 00000 Frm 00077 Fmt 4701 11641 representative of the Office. Pursuant to the statutory requirements, and to address instances of noncompliance, § 1324.13(c)(2)(iii) and (d) require that all staff and volunteers of the Ombudsman program who will have access to resident records, as well as other files, records, and information subject to disclosure requirements, be trained and certified as designated representatives of the Office, so that individuals with access to confidential information will be accountable to the Ombudsman for their actions. The subsequent subsection in § 1324.13(c)(2) is re-numbered accordingly. The Act affords the Ombudsman discretion in determining whether to disclose the files, records, or other information of the Office. ACL often receives requests for technical assistance regarding criteria for such determinations. In response, we add to § 1324.13(e)(2) the following criteria to assist the Ombudsman in making this determination: whether the disclosure has the potential to cause retaliation, to undermine the working relationships between the Ombudsman program and other entities, or to undermine other official duties of the Ombudsman program. We are aware of an apparent conflict between provisions of the Developmental Disabilities Act, which affords protection and advocacy programs access to resident records, and provisions of the OAA which prohibit the Ombudsman from disclosing resident-identifying information and afford the Ombudsman discretion in determining whether to disclose the files, records, or other information of the Office.339 Consistent with our authority to interpret these two statutes, we have worked with protection and advocacy and Long-Term Care Ombudsman programs to collect additional information on the experiences and circumstances of grantees related to this issue. As a result of these efforts, ACL has offered technical assistance to individual States as issues arise to assist protection and advocacy and Ombudsman programs to come to an agreement on how to handle these questions. ACL technical assistance centers have co-branded a toolkit on collaboration between Ombudsman programs and protection and advocacy agencies.340 We encourage such collaboration. 339 42 U.S.C. 15043. Care Ombudsman Programs and Protection & Advocacy Agencies Collaboration Toolkit, The Nat’l Consumer Voice for Long Term Care, https://ltcombudsman.org/omb_support/pm/ collaboration/ltcop-protection-and-advocacy340 Long-Term Continued Sfmt 4700 E:\FR\FM\14FER4.SGM 14FER4 ddrumheller on DSK120RN23PROD with RULES4 11642 Federal Register / Vol. 89, No. 31 / Wednesday, February 14, 2024 / Rules and Regulations Section 712(h) of the Act provides that the State agency must require the Ombudsman program to submit an annual report that, among other things, describes the activities carried out by the Office, evaluates problems experienced by residents, analyzes the success of the Ombudsman program, and makes recommendations to improve the quality of life of residents.341 This information is separate from and in addition to the data reported annually to ACL through the national data reporting system known as the National Ombudsman Reporting System (NORS). We have found that some Ombudsman programs do not understand that the annual report required by section 712 differs from the annual NORS reporting. We add language to § 1324.13(g) to clarify the distinction between reports required by section 712 and NORS. The Ombudsman program’s effectiveness in advocacy relies on relationships with other entities that can assist residents. Section 712 of the Act also requires that the Ombudsman program will coordinate services with legal assistance providers and others, as appropriate, and enter into a memorandum of understanding with legal assistance providers.342 We revise § 1324.13(h)(1)(i) to require the adoption of memoranda of understanding with legal assistance programs provided under section 306(a)(2)(C) of the Act 343 that address, at a minimum, referral processes and strategies to be used when the Ombudsman and a legal assistance programs are both providing services to a resident. Further, the final rule requires memoranda of understanding with facility and long-term care provider licensing and certification programs to address communication protocols and procedures to share information, including procedures for access to copies of licensing and certification records maintained by the State. Federal nursing home regulations require interaction between Ombudsman programs and licensing and certification programs. The goal of this requirement is to foster consistency in the relationships among Ombudsman programs and regulators across the country and support communication about all types of long-term care providers regulated by the State. Language regarding this requirement is set forth in § 1324.13(h)(1)(ii). agencies-collaboration-toolkit (last visited Oct. 13, 2023). 341 42 U.S.C. 3058g(h). 342 Id. section 3058g. 343 42 U.S.C. 3026(a)(2)(C). VerDate Sep<11>2014 20:33 Feb 13, 2024 Jkt 262001 We also clarify that memoranda of understanding are recommended with other organizations, programs and systems as set forth in § 1324.13(h)(2). Elements of § 1324.13(h) have been renumbered in connection with these changes. We also make minor changes to § 1324.13(a)(7)(vii) and (h) for clarity. Comment: A few commenters expressed support for clarification of the Ombudsman’s authority to lead and manage the Office, noting that the update would increase program effectiveness by limiting barriers in program implementation. Response: We appreciate the support and have finalized the rule as proposed. Comment: Commenters expressed support for existing language requiring Ombudsman review and approval of plans and contracts governing local Ombudsman entities, noting appreciation for oversight by the Ombudsman as well as support for the updated language about training. Response: ACL appreciates the support. Comment: Commenters expressed support for the language at § 1324.13(c)(2)(iii) that removes ambiguity and ensures that staff and volunteers who have access to records are trained and designated. One commenter asked whether ACL requires the Office to use the training curriculum developed by the National Ombudsman Resource Center. One commenter recommended that ACL require supervision during training only when the trainee is working directly with residents and facility staff and not during documentation or administrative duties. Response: The rule at § 1324.13(c)(2)(iii) has been finalized as proposed. ACL does not require Ombudsman programs to use the model training that was developed to assist programs and inform a State-specific curriculum if the training curriculum used complies with the minimum standards developed and issued as subregulatory guidance. We defer to the Ombudsman to determine implementation of the supervision requirement that meets the needs of the program. ACL will provide technical assistance as needed. Comment: Commenters proposed language requiring the Ombudsman to work with designated program coordinators at local Ombudsman entities to create and revise local program budgets and to work with host agencies to ensure programs have regular access to reports on income and expenditures. One commenter recommended that ACL require certification from the Ombudsman PO 00000 Frm 00078 Fmt 4701 Sfmt 4700 program manager at local Ombudsman entities that they have consulted on and approved the expenditures of the local Ombudsman entity. Response: Section 1324.11(e)(1) requires that procedures clarify access to programmatic fiscal information by appropriate representatives of the Office, and §§ 1324.11(e)(1)(iii), 1324.13(c)(1)(iii) require monitoring of local Ombudsman entities on a regular basis. ACL will provide technical assistance to programs as needed to ensure compliance. Comment: Many commenters expressed support for the proposed clarification of the annual reporting requirement in addition to the data report submitted to ACL. Commenters additionally recommended the addition of ‘‘dissemination’’ of the report and reference to the requirement for independent development. Response: We appreciate the suggested edit and have added dissemination to § 1324.13(g). Comment: Many commenters provided feedback on the proposed new requirement at § 1324.13(h) to establish a memorandum of understanding with the State entity responsible for licensing and certification of long-term care facilities (State survey agencies). Some responses supported the proposal without modification. There was also a suggestion to include State mental health departments and others with a role in providing access to LTC facilities or community-based services. Others recommended modification to require State survey agencies to provide Ombudsman programs with unredacted records and all records. Additionally, some commenters objected to the provision for communication protocols and sharing of information to be included in the memorandum of understanding. Response: We agree with the suggestion to include mental health authorities as an optional entity with which to execute a memorandum of understanding and have added this at § 1324.13(h)(2)(x). Ombudsman programs have reported an increase in residents of LTC facilities who have mental illness and substance use disorders. ACL does not have authority to require State survey agencies to release information to Ombudsman programs. The memorandum of understanding, however, will help clarify the information that can be shared and how it will be shared, and will support formalized protocols for communication to create consistency and to eliminate the gaps that Ombudsman programs report. Therefore, we have finalized the E:\FR\FM\14FER4.SGM 14FER4 Federal Register / Vol. 89, No. 31 / Wednesday, February 14, 2024 / Rules and Regulations ddrumheller on DSK120RN23PROD with RULES4 rule as proposed and will provide technical assistance to address the concerns raised by commenters. Comment: One commenter asked for clarification of the difference between the memorandum of understanding requirement with legal assistance providers and the suggested agreement with the legal assistance developer. They raised concerns about the need to have a separate agreement with each legal assistance provider in a State that does not have a centralized legal assistance program. Response: Due to the variety of structures of both Ombudsman programs and legal assistance programs, we defer to the Ombudsman to determine how to implement the requirement within the State-specific structure and community resources. We refer commenters to the existing toolkit for collaboration between Ombudsman programs and legal services. ACL will continue to provide technical assistance through our legal assistance and ombudsman resource centers. Comment: Commenters expressed concern that § 1324.13(i), which defines activities to be performed by the Ombudsman to include activities determined by the Assistant Secretary to be appropriate, could lead to ‘‘mission drift.’’ They recommended qualifying language that such other activities must not conflict with the duties and responsibilities of the Ombudsman program and must be relevant to the program and residents. Response: We accept the comment and have revised this provision accordingly. § 1324.15 State Agency Responsibilities Related to the Ombudsman Program Section 712 of the Act sets forth State agency responsibilities for the Ombudsman program.344 Section 712(g) of the Act requires the State agency to ensure that adequate legal counsel is available with respect to the program, and § 1324.15(j) explains those requirements.345 We include minor changes to this section for clarity. For example, the requirements and detail about the scope of responsibility of legal counsel are reorganized to clarify that legal counsel is to be available for consultation on program matters, as well as consultation to the program on the legal needs of residents. The regulations modify the provision for attorney-client privilege to specify that the privilege applies to communications between the Ombudsman and their legal 344 42 345 Id. U.S.C. 3058g. section 3058g(g). VerDate Sep<11>2014 20:33 Feb 13, 2024 counsel, not between the Ombudsman and counsel for the resident. We receive many requests for technical assistance with respect to the requirement in section 712 of the Act that the Ombudsman be responsible for fiscal management of the Office.346 Revised § 1324.15(k) addresses specific components of fiscal management and codifies best practices. Specifically, the State agency must notify the Ombudsman of all sources of funds for the program and requirements for those funds and must ensure that the Ombudsman has full authority to determine the use of fiscal resources for the Office and to approve allocation to designated local Ombudsman entities before distribution of funds. In addition, the revised section requires the Ombudsman to determine that program budgets and expenditures of the Office and local Ombudsman entities are consistent with laws, policies, and procedures governing the Ombudsman program. ACL anticipates providing training and technical assistance for the implementation of these requirements. The section immediately following new § 1324.15(k) is re-numbered accordingly. We also replace the word ‘‘of’’ with ‘‘for’’ in the last sentence of § 1324.15(e) to correct a typographical error relating to reasonable requests ‘‘for’’ reports by the State agency as it conducts its monitoring responsibilities. Comment: Many commenters recommended modification to § 1324.15(b) to ensure that State agencies implement requirements of part 1324 in the establishment and operation of the Ombudsman program with the necessary authority to perform its functions. The recommended amendment would add a requirement for State agencies to ensure that the Office acts independent of the State agency, or other agency in which the Office is organizationally located, in the performance of the Ombudsman program’s functions, responsibilities, and duties. Another commenter recommended that State agency monitoring include a review and documentation of the Ombudsman program’s systems advocacy activities through a request for examples. Response: The rule requires the State agency to ensure that the Ombudsman program has sufficient authority and access to fully perform all the functions, responsibilities, and duties of the Office. As stated earlier § 1324.11 requires establishment of the Office of the State Long-Term Care Ombudsman as a 346 Id. Jkt 262001 PO 00000 section 3058g(a)(2). Frm 00079 Fmt 4701 Sfmt 4700 11643 distinct, separately identifiable entity that authorizes the Ombudsman, as head of the Office, to make independent determinations and establish positions that do not necessarily represent the determinations or positions of the agency in which it is located. We reiterate that we have accepted comments to clarify that § 1324.11(e)(8) applies to all determinations. Further, § 1324.15(e) requires the State agency to assess as part of its monitoring whether the Ombudsman program is performing all the functions, responsibilities, and duties set forth in §§ 1324.13 and 1324.19. Therefore, ACL believes that the rule provides both clear requirements for functional autonomy and for assurance of implementation. ACL intends to provide technical assistance on implementation of monitoring responsibilities. Comment: Many commenters expressed support for § 1324.15(j) regarding legal counsel and the State agency’s role in ensuring that effective legal representation and consultation is available. Commenters also stated that local representatives of the Office need to have an attorney present when participating in legal proceedings such as depositions and hearings. Response: We appreciate support for § 1324.15(j). ACL will defer to the Ombudsman and the attorneys it chooses to work with on specific matters related to representation. Comment: Many commenters expressed strong support for clarifying language at § 1324.15(k) that defines the expectations for the State agency to provide critical information for the Ombudsman to manage the fiscal components of the Ombudsman program efficiently and effectively. One commenter noted that the revision will help eliminate confusion and disparities around the country. Another recommended adding a requirement for the Ombudsman program manager of the local Ombudsman entity to approve initial budgets, expenditures, and changes and to certify that the manager has been involved in and approved expenditures as well as being provided with access to fiscal information throughout the year. Response: We believe that the recommendation regarding § 1324.15(k) is addressed in § 1324.11(e)(1)(vi) and in § 1324.13(f), which discuss policies and procedures and fiscal responsibility. We decline to make the change. § 1324.17 Responsibilities of Agencies Hosting Local Ombudsman Entities We did not propose any changes to § 1324.17, which sets forth the responsibilities of agencies hosting local E:\FR\FM\14FER4.SGM 14FER4 11644 Federal Register / Vol. 89, No. 31 / Wednesday, February 14, 2024 / Rules and Regulations ddrumheller on DSK120RN23PROD with RULES4 Ombudsman entities for the personnel management policies and procedures. This section prohibits host agencies from establishing policies and procedures that prohibit the representative of the Office from performing their duties as authorized by law. Comment: A few commenters expressed concern that some local host agencies do not support representatives of the Office performing systems advocacy and recommended explicit language to ensure that local representatives of the Office are insulated from interference. Response: As noted above, § 1324.17 prohibits policies and procedures that would interfere with the representative of the Office’s performance of their duties. Section 1324.11(e)(5) discusses the duty to engage in systems advocacy. Further, § 1324.19(a)(7) requires representatives of the Office to carry out other activities that the Ombudsman determines to be appropriate. Taken together with §§ 1324.11 and 1324.13, which authorize the Ombudsman to make determinations and establish positions of the Office, these sections support engaging in systems advocacy related to the determinations and positions established by the Ombudsman. The ACL Office of LongTerm Care Ombudsman Programs learns about these types of program barriers through technical assistance and review of State Ombudsman annual reports. As needed, these issues are addressed through additional technical assistance, training, and requests for corrective action. § 1324.19 Duties of the Representatives of the Office This section addresses the duties of the representatives of the Office and provides detailed instructions as to the processing of complaints by representatives of the Office. Minor revisions are made to § 1324.19(b)(2)(ii) and (b)(5) for clarity. Comment: One commenter recommended editing § 1324.19(a)(7) to ensure that representatives of the Office are not required to perform activities that are inconsistent with the program requirements. Response: We have accepted the comment. Comment: One commenter requested that we clarify that providing consent to complaint processing includes nonverbal consent. Response: The rule allows consent to be provided orally, visually, or using auxiliary aids and services. ACL intends that visual or assisted communication includes non-verbal forms of VerDate Sep<11>2014 20:33 Feb 13, 2024 Jkt 262001 communication, and we have finalized the rule as written. Comment: One commenter identified various mechanisms that authorize an individual to serve as a representative for a resident and suggested the Ombudsman be required to provide guidance to representatives of the Office about these mechanisms. Response: We thank the commenter for the suggestion. ACL training standards already require training about the role of resident representatives, resident decision-making supports and options, State laws on third-party decision makers, communication with resident representatives, and ascertaining the extent of the resident representative’s authority. § 1324.21 Conflicts of Interest Section 712(f) of the Act sets forth requirements related to individual and organizational COI, and § 1324.21 implements the statutory provision. COI provisions promote credibility and effectiveness of the Ombudsman program.347 Section 1324.21(a) sets out as organizational conflicts the placement of an Ombudsman program in specified organizations. These include an organization that is responsible for licensing, surveying, or certifying longterm care services, including facilities; that provides long-term services and supports under a Medicaid waiver or a Medicaid State plan; that conducts preadmission screening for long-term care facility admissions; that provides long-term care coordination or case management services in settings that include long-term care facilities; that sets reimbursement rates for long-term care services; or that is responsible for eligibility determinations for the Medicaid program carried out under title XIX of the Social Security Act.348 We make minor clarifying changes to § 1324.21(b)(3). We remove the last sentence of § 1324.21(b)(5), which repeats language included in § 1324.21(b)(3). We clarify in § 1324.21(c) situations that create an individual COI, consistent with section 712(f)(1)(C) of the Act.349 Comment: Most commenters expressed support for aligning the regulations regarding COI with the underlying statutory provisions. One expressed concern about separating Ombudsman program staff from agency staff serving people with greatest economic or social need, noting that such separation increases the difficulty of all staff to understand and benefit from the valuable role of the Ombudsman program. Another commented that it is acceptable for Ombudsman programs and APS to be in the same agency with appropriate firewalls. One commenter recommended adding a definition of long-term care services and noted that the expanded list could narrow the list of entities willing to house the program in a decentralized model. Response: As stated, § 1324.21 is consistent with the COI provisions in section 712 of the Act.350 We will update our sub-regulatory guidance as State agencies and Ombudsman programs work to implement the requirements. We refer commenters to section 102 of the Older Americans Act and § 1324.1 for definitions.351 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 § 1324.201 State Agency Responsibilities for the Prevention of Elder Abuse, Neglect, and Exploitation Title VII, chapter 3 of the Act sets forth requirements that State agencies must meet with respect to the development and enhancement of programs to address elder abuse, neglect, and exploitation.352 New § 1324.201 clarifies that as a condition of receiving Federal funds under this chapter State agencies must comply with all applicable provisions of the Act, including those of section 721(c), (d), (e), as well as with all other applicable Federal requirements.353 Comment: ACL received comments on this section supportive of the addition. They also recommended that ACL consider the prevalence of elder abuse within LGBTQI+ and HIV positive communities, including residents of long-term care facilities. One commenter recommended that State agencies partner with and support State and Tribal elder justice coalitions to ensure coordination and guidance from interested parties in development of the elder justice system, dissemination of information and educational resources, and to provide policy consultation and research. Response: ACL appreciates the support. Section 721 of the Act requires 350 42 347 Id. section 3058g(f). 348 42 U.S.C. 1396–1396v. 349 42 U.S.C. 3058g(f)(1)(C). PO 00000 Frm 00080 Fmt 4701 Sfmt 4700 U.S.C. 3058g. U.S.C. 3002. 352 42 U.S.C. 3058i. 353 Id. section 3058i(c), (d), (e). 351 42 E:\FR\FM\14FER4.SGM 14FER4 Federal Register / Vol. 89, No. 31 / Wednesday, February 14, 2024 / Rules and Regulations coordination, and ACL has elected not to repeat statutory language.354 Subpart C—State Legal Assistance Development ddrumheller on DSK120RN23PROD with RULES4 § 1324.301 Definitions New § 1324.301 states definitions set forth in § 1321.3 apply to subpart C, and terms used in subpart C but not otherwise defined will have the meanings ascribed to them in the Act. § 1324.303 Legal Assistance Developer We add a new regulation under Title VII, § 1324.303 to implement section 731 of the Act regarding the position of Legal Assistance Developer (LAD).355 The State agency designates the LAD and describes the office and its duties as well as activities in the State plan. The regulation sets forth the duties of the LAD, including training and technical assistance to legal assistance providers and coordination with the Ombudsman program. The final rule includes COI prohibitions, including a prohibition against undertaking responsibilities that might compromise the performance of duties as LAD. COI may arise if the LAD serves as the director of the APS program, legal counsel to the Ombudsman program, or counsel or a party to administrative appeals related to long-term care settings. COI may also arise, for example, if the LAD serves as the administrator of a public guardianship program; hearing officer in Medicaid appeals related to LTSS delivered under Medicaid authorities including waiver programs and Medicaid State plan, and/or nursing home eligibility; or serves as the Ombudsman. The LAD oversees advice, training, and technical assistance support for the provision of legal assistance provided by the State agency; coordinates with all legal assistance and representation for all priority areas described in the Act; and coordinates with the legal assistance resource center established pursuant to section 420 of the Act.356 Comment: Section 1324.303 sets forth the requirements for the LAD, pursuant to section 731 of the OAA.357 Several commenters were appreciative of the clarification regarding the roles and responsibilities of the LAD. Most, however, discussed challenges facing the position, including a lack of adequate funding and its designation as a part-time position. Some described the LAD as wearing many hats and noted that many LADs are not lawyers, 354 Id. section 3058i. U.S.C. 3058j. 356 42 U.S.C. 3032i. 357 42 U.S.C. 3058j. 355 42 VerDate Sep<11>2014 20:33 Feb 13, 2024 potentially hindering their ability to support the needs of the legal assistance program, including support for legal assistance and elder rights education, and coordination with the Ombudsman program and APS. One commenter stated that it is a misnomer to designate subpart C of the regulations as a State Legal Assistance Development Program, since the Act refers only to the designation of a person as LAD, and to the optional activities a State agency may choose to have the LAD undertake. Additionally, most LAD positions are not full-time, and section 731 of the Act only refers to an individual working as the LAD. Commenters requested that the regulations require the LAD to be a fulltime position staffed by an attorney. Response: ACL appreciates the comments. It is our intent to set out expectations for the duties of the LAD, including coordination of the provision of legal assistance, consistent with the provisions of the Act. However, it is outside the scope of the regulations to address funding issues. We also cannot mandate that the LAD be a full-time position and/or staffed by an attorney. Nevertheless, we remind State agencies that § 1324.303(b) requires them to ensure that the LAD has the knowledge, resources, and capacity to carry out the functions of the position. The Act does not require professional qualifications for the individual a State agency designates as the LAD, nor does the Act require, as it does for other statutorily designated positions, such as the Ombudsman, that the LAD be a fulltime position. Accordingly, these matters are beyond the scope of our regulatory authority. We have made one change to the regulatory text in response to the comments. Given that section 731 of the OAA 358 requires the State agency to provide the assistance of an individual, rather than a program, we have modified the title of subpart C of these regulations to State Legal Assistance Development. The title mirrors the title of section 731 of the OAA. Comment: Commenters appreciated that § 1324.303(a)(4)(ii) requires LADs to promote alternatives to guardianship. One commenter noted that supported decision making can be used both formally through contractual agreement and informally. The commenter recommended that the section refer to supported decision making, rather than supported decision making agreements as the proposed regulatory text reads. Response: ACL accepts the comment. ACL agrees that decision supports are available through a range of tools and 358 Id. Jkt 262001 PO 00000 Frm 00081 Fmt 4701 Sfmt 4700 11645 approaches and each adult has the right to determine which tool or approach suits their needs, or to determine that they do not want to adopt such a tool. We refer to all such tools and approaches as decision supports. Comment: Proposed § 1324.303(d) defines standards to address COI. One commenter objected to these provisions related to the legal assistance developer, which ‘‘stringently prohibit ‘dual hatting’ of the LAD positions with other responsibilities,’’ as being unduly burdensome, given the lack of dedicated funding authorized in the Act for the position. The same commenter was concerned that the lack of dedicated funding made it cost-prohibitive for the LAD to carry out the roles and responsibilities set forth in the regulation. Response: We do not prohibit LADs from assuming additional functions, as long as these functions do not pose actual or perceived COI. For the reasons stated earlier, we believe that the COI provisions are necessary to protect the interests of older people and the integrity of the LAD position. We expect State agencies to include their conflict mitigation strategies for this position in their policies and procedures. State agencies may also review and prioritize the roles and responsibilities of the LAD position to meet the needs of the State, provided that their priorities are clearly described in the State plan. III. Required Regulatory Analyses Comment: ACL received several comments indicating concerns with implementation costs and administrative burden in implementing the final rule, as well as concerns regarding ongoing costs to monitor compliance with the final rule. Some State agencies commented that they anticipate that consultants and/or additional staff will need to be hired and/or that changes will need to be made to information technology systems. Some State agencies asserted that ACL has greatly underestimated both the cost, and the amount of time needed, to come into compliance with the rule; some have included cost estimates in their comments of hundreds of thousands dollars or more (in some cases these are expressed as annual costs and not so in others). Response: For the reasons discussed below, we maintain the Regulatory Impact Analysis (RIA) as proposed, except that we have updated the analysis with more recent data. As noted in the RIA, the most recent reauthorization of the OAA was enacted during Federal Fiscal Year 2020, and the baseline for the analysis was Federal E:\FR\FM\14FER4.SGM 14FER4 ddrumheller on DSK120RN23PROD with RULES4 11646 Federal Register / Vol. 89, No. 31 / Wednesday, February 14, 2024 / Rules and Regulations Fiscal Year 2019. Most of the changes to 45 CFR parts 1321, 1322, and 1324 modernize the OAA regulations to bring them into conformity with reauthorizations of the OAA that were enacted prior to the 2020 reauthorization and to provide clarity of administration for ACL and its grantees with respect to aspects of the OAA that were enacted under previous reauthorizations. A limited number of substantive changes were made by the 2020 reauthorization to the implementation of programs by State agencies and area agencies, and as more particularly discussed in the RIA, we anticipate that any costs to a State agency associated with these changes will be de minimis. We also note that public comments that provided Statespecific cost estimates to implement and administer the final rule did not clearly differentiate between costs attributable to the statute and the incremental costs of implementing the final rule, which makes it difficult to incorporate this information in the final RIA. In addition to areas where we better align regulation with statute, as also described in more detail in the RIA below, the final rule benefits State agencies by modernizing the regulatory text to provide greater flexibility to State agencies and area agencies and to reflect ongoing feedback from interested parties and responses to our RFI in areas where our prior regulations did not address the evolving needs of Title III, VI, and VII grantees and the older adults and family caregivers they serve. While State agencies and AAAs should review their practices, policies, and procedures to ensure they comply with the final rule, we note again that a majority of this rule updates prior regulations to conform to longstanding statutory requirements. State agencies and AAAs also already should be engaging in monitoring activities for compliance with the Act. In addition, the final rule grants significant discretion to the State or area agency (as applicable) in how to implement many provisions. Similarly, a majority of the provisions of this final rule that apply to Title VI grantees and to service providers bring the prior regulation into conformity with what is already required by the Act. However, in consideration of comments related to the time required for implementation of the rule, we have decided to delay the compliance date of this rule until October 1, 2025. This should give all regulated entities sufficient time to come into compliance with these regulations. It will also allow time for State and area plans on aging that will be effective as of October 1, VerDate Sep<11>2014 20:33 Feb 13, 2024 Jkt 262001 2025, to incorporate the requirements of this final rule into new or amended plans. As noted previously, State agencies that need additional time to comply with one or more provisions of the rule may submit a request to proceed under a corrective action plan. A request should include the reason the State needs additional time, the steps the State will take to reach full compliance, and how much additional time the State anticipates needing. The corrective action plan process is intended to be highly collaborative and flexible. Under a corrective action plan, States agencies and ACL will jointly identify progress milestones and a feasible timeline for the State agency to come into compliance with the provision(s) of the rule incorporated into the corrective action plan. State agencies must make a good faith effort at compliance to continue operating under a corrective action plan. Requests for corrective action plans will be reviewed after April 1, 2024, and ACL will provide guidance on this process after this rule takes effect. Comment: One commenter proposed allowing State agencies to request waivers from having to meet the requirements set forth in the final rule if they could otherwise meet the intent of the Act. Response: ACL has determined not to make any changes to the regulatory text in response to this comment. Most of the changes to 45 CFR part 1321 modernize the OAA regulations to bring them into conformity with the requirements of the OAA. Accordingly, we decline to allow State agencies to request waivers from meeting provisions in the final rule (unless otherwise explicitly allowed). Comment: ACL received a comment expressing concern that the rule may have Federalism implications. Response: Pursuant to Executive Order 13132, ACL has considered the impact of the final rule on State and local governments. Our analysis of the potential federalism implications of the final rule is set forth in Section III.C below. Regulatory Impact Analysis 1. Overall Impact We have examined the impacts of this rule as required by Executive Order 12866 on Regulatory Planning and Review (September 30, 1993), Executive Order 13563 on Improving Regulation and Regulatory Review (January 18, 2011), Executive Order 14094 entitled ‘‘Modernizing Regulatory Review’’ (April 6, 2023), the Regulatory Flexibility Act (RFA) (September 19, PO 00000 Frm 00082 Fmt 4701 Sfmt 4700 1980, Pub. L. 96–354), section 1102(b) of the Social Security Act (42 U.S.C. 1302(b)), section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA; March 22, 1995; Pub. L. 104–4), Executive Order 13132 on Federalism (August 4, 1999), and the Congressional Review Act (CRA; 5 U.S.C. 804(2)). Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). The Executive Order 14094 entitled ‘‘Modernizing Regulatory Review’’ (hereinafter, the Modernizing E.O.) amends section 3(f) of Executive Order 12866 (Regulatory Planning and Review). The amended section 3(f) of Executive Order 12866 defines a ‘‘significant regulatory action’’ as an action that is likely to result in a rule: (1) having an annual effect on the economy of $200 million or more in any 1 year (adjusted every 3 years by the Administrator of the Office of Management and Budget’s (OMB) Office of Information and Regulatory Affairs (OIRA) for changes in gross domestic product), or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, territorial, or tribal governments or communities; (2) creating a serious inconsistency or otherwise interfering with an action taken or planned by another agency; (3) materially altering the budgetary impacts of entitlement grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) raise legal or policy issues for which centralized review would meaningfully further the President’s priorities or the principles set forth in this Executive order, as specifically authorized in a timely manner by the Administrator of OIRA in each case. A RIA must be prepared for significant rules. Based on our estimates, OIRA has determined that this rulemaking is ‘‘significant’’ per section 3(f) of Executive Order 12866. Therefore, OMB has reviewed these proposed regulations, and the Departments have provided the following assessment of their impact. Pursuant to Subtitle E of the Small Business Regulatory Enforcement Fairness Act of 1996 (also known as the Congressional Review Act, 5 U.S.C 801 et seq.) OIRA has determined that this rule does not meet the criteria set forth in 5 U.S.C. 804(2). E:\FR\FM\14FER4.SGM 14FER4 Federal Register / Vol. 89, No. 31 / Wednesday, February 14, 2024 / Rules and Regulations 1. Summary of Costs and Transfers This analysis describes costs and transfers under this final rule and quantifies several categories of costs to grantees (State agencies under Title III and Title VII and Tribal organizations and Hawaiian Native grantees under Title VI) and subrecipients (area agencies and service providers under Title III and where applicable, Title VII). Specifically, we quantify costs associated with grantees and subrecipients revising policies and procedures, conducting staff training, and revising State plan documentation accessibility practices. As discussed in greater detail in this analysis, we estimate that the final rule will result in one-time costs of approximately $17.43 million, including costs associated with covered entities revising policies and procedures, and costs associated with training. The analysis also includes a discussion of costs we do not quantify, and a discussion of the potential benefits under the rule that we similarly do not quantify. ddrumheller on DSK120RN23PROD with RULES4 Baseline Conditions and Changes Due to Reauthorization The most recent reauthorization of the OAA was enacted during Federal Fiscal Year (FFY) 2020; therefore, the baseline used for the analysis is FFY 2019. A main impact of the 2020 reauthorization of the OAA was to increase the authorized appropriations available to be distributed to the State agencies for the implementation of programs and services under Titles III, VI, and VII. A limited number of substantive changes were made by the 2020 reauthorization to the implementation of programs by State agencies and area agencies, including: requiring outreach efforts to Asian-Pacific American, Native American, Hispanic, and AfricanAmerican older individuals, and older sexual and gender minority populations and the collection of data with respect thereto; requiring State agencies to simplify the process for transferring funds for nutrition services to reduce administrative barriers and direct resources to where the greatest need is for such services; broadening allowable services under Title III, part B, such as screening for traumatic brain injury and the negative effects of social isolation; clarifying that a purpose of the Title III, part C program is to reduce malnutrition; clarifying the allowability of reimbursing volunteer Ombudsman representatives under Title VII for costs incurred; and expanding the examples of allowable elder justice activities VerDate Sep<11>2014 20:33 Feb 13, 2024 Jkt 262001 under section 721 359 to include community outreach and education as well as the support and implementation of innovative practices, programs, and materials in communities to develop partnerships for the prevention, investigation, and prosecution of abuse, neglect, and exploitation. The OAA initially was passed in 1965. The prior regulations for programs authorized under the OAA are from 1988 and have not been substantially altered since that time (other than portions of 45 CFR part 1321 and 45 CFR part 1324 regarding the State LongTerm Care Ombudsman Program, which were promulgated in 2015). Following its initial passage, the OAA has been reauthorized and amended sixteen times prior to the 2020 reauthorization, including five times since the regulations were promulgated in 1988. Many changes have been made in the implementation of the OAA since 1988 as a result of these reauthorizations. State agencies, area agencies, and Title VI grantees should already be aware of programmatic and fiscal requirements in the reauthorizations and should have established policies and procedures to implement them. Accordingly, substantially all of the changes to 45 CFR parts 1321, 1322, and 1324 modernize the OAA regulations to bring them into conformity with reauthorizations of the OAA that were enacted prior to the 2020 reauthorization and provide clarity of administration for ACL and its grantees with respect to aspects of the OAA that were enacted under previous reauthorizations. In addition to areas where we better align regulation with statute, we make modifications to regulatory text that modernize our rule to provide greater flexibility to State agencies and area agencies and to reflect ongoing feedback from interested parties and responses to our RFI in areas where our prior regulations did not address the evolving needs of Title III, VI, and VII grantees and the older adults and family caregivers they serve. For example, we modernize our nutrition regulations to better support grantees’ efforts to meet the needs of older adults. Our previous sub-regulatory guidance has indicated that meals are either consumed on-site at a congregate meal setting or delivered to a participant’s home. This previous 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 359 42 PO 00000 U.S.C. 3058i. Frm 00083 Fmt 4701 Sfmt 4700 11647 experienced during the COVID–19 PHE. The COVID–19 PHE brought to light limitations in our prior nutrition regulations, which we have addressed in § 1321.87 to allow for shelf-stable, pick-up, carry-out, drive-through, or similar meals where a participant will be able to collect their meal from a congregate site and return to the community off-site to enjoy it. Our final rule is a direct response to feedback from interested parties, including as gathered from the RFI and NPRM comment period, and appropriately reflects the evolving needs of both grantees and OAA participants. Another example of a modification to regulatory text that modernizes our rule is the new definition of ‘‘greatest economic need.’’ Focusing OAA services toward individuals who have the greatest economic need is one of the basic tenets of the OAA. The definition of ‘‘greatest economic need’’ in the OAA incorporates income and poverty status. However, the definition in the OAA is not intended to preclude State agencies from taking into consideration populations that experience economic need due to other causes. 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 will allow State agencies and AAAs to make these determinations. A detailed discussion of costs and transfers associated with the rule follows. i. 2020 Reauthorization a. New Requirements for State Agencies and Area Agencies The 2020 reauthorization imposed the following new requirements on grantees: required outreach efforts to Asian-Pacific American, Native American, Hispanic, and AfricanAmerican older individuals, and older lesbian, gay, bisexual, and transgender (LGBT) populations and the collection of data with respect thereto; required State agencies to simplify the process for transferring funds for nutrition services to reduce administrative barriers and direct resources to where the greatest need is for such services; and clarified that reducing malnutrition is a purpose of the OAA Title III, part C program. We do not associate any additional costs for the agencies with respect to these requirements. The agencies were E:\FR\FM\14FER4.SGM 14FER4 11648 Federal Register / Vol. 89, No. 31 / Wednesday, February 14, 2024 / Rules and Regulations required to conduct outreach to minority populations prior to the 2020 reauthorization, and State agencies already have been reaching out to the LGBTQI+ population.360 For those agencies that have not been reaching out to LGBTQI+ communities, we believe any additional cost to conduct outreach to this population will be de minimis, as they already have processes in place to reach out to underserved populations. The data collection cost likewise will be minimal as agencies already have data collection systems and practices in place. The cost to State agencies to comply with the requirement that they simplify the process for transferring funds for nutrition services to reduce administrative barriers and direct resources to where the greatest need is for such services is not quantifiable. Each State agency must comply with its State-level procurement requirements, and it is not possible for us to determine what any State agency may be able to change in this regard or at what cost. It is in each State agency’s interest to improve this process for transferring nutrition services funds, and we believe that State agencies engage in ongoing efforts to improve their fiscal management processes generally, within allowable parameters. Accordingly, we anticipate that any costs to a State agency associated with this requirement will be de minimis. We do not associate any costs to State agencies, AAAs, or Title VI grantees with respect to the clarification that a purpose of the Title III, part C program is to reduce malnutrition. Grantees already were screening for older adults who are at high nutrition risk and have been offering nutrition counseling and nutrition education, as appropriate, and this clarification is not expected to impose additional costs on OAA grantees or subrecipients. ii. Final Rule a. Revising Policies and Procedures This analysis anticipates that the final rule will result in one-time costs to State agencies, AAAs, service providers, and Title VI grantees to revise policies and procedures. The obligations of State agencies and AAAs under the OAA are more extensive than are those of Title VI grantees under the OAA. Accordingly, the Title III rule is considerably more extensive than is the Title VI rule, and we address State agencies and AAAs separately from Title VI grantees. We also address service providers separately, as we anticipate that the scope of the review needed for service providers will be narrower than that needed for State agencies and AAAs. In addition to changes to the existing regulations, we add several new provisions to the regulations in the following areas: 45 CFR part 1321 (Title III): State Agency Responsibilities, Area Agency Responsibilities, Service Requirements, Emergency and Disaster Requirements; 45 CFR part 1322 (Title VI): Service Requirements, Emergency and Disaster Requirements; and 45 CFR part 1324 (Title VII): Programs for Prevention of Elder Abuse, Neglect, and Exploitation and State Legal Assistance Development. However, substantially all of these new provisions update the OAA regulations to bring them into conformity with reauthorizations of the OAA that were enacted prior to the 2020 reauthorization and provide clarity of administration for ACL and its grantees with respect to aspects of the OAA that were enacted under previous reauthorizations. We associate one-time costs to State agencies, AAAs, service providers, and Title VI grantees to update their policies and procedures and to train employees on the updated policies and procedures, as discussed below. State agencies, AAAs, service providers, and Title VI grantees already should be aware of these requirements and already should have established policies and procedures in place. Accordingly, we otherwise associate no cost to them as a result of these new provisions. State Agencies and AAAs In clarifying requirements for State agency and AAA policies and procedures under the OAA, ACL anticipates that all 56 State agencies and 615 AAAs (671 aggregate State agencies and AAAs) will revise their policies and procedures under the final rule, with half of these State agencies or AAAs requiring fewer revisions. We estimate that State agencies or AAAs with more extensive revisions will spend forty-five (45) total hours on revisions per agency. Of these, forty (40) hours in the aggregate will be spent by one or more mid-level manager(s) equivalent to a first-line supervisor (U.S. Bureau of Labor Statistics (BLS) Occupation code 43–1011),361 at a cost of $59.02 per hour after adjusting for non-wage benefits and indirect costs,362 while an average of five (5) hours will be spent by executive staff equivalent to a general and operations manager (BLS Occupation code 11–1021),363 at a cost of $94.32 per hour after adjusting for non-wage benefits and indirect costs.364 For State agencies or AAAs with less extensive revisions, we assume that twenty-five (25) total hours will be spent on revisions per agency. Of these, twenty (20) hours will be spent by one or more mid-level manager(s), and five (5) hours will be spent by executive staff. We monetize the time that will be spent by State agencies and AAAs on revising policies and procedures by estimating a total cost per entity as follows: 336 State agencies/AAAs—more extensive revisions: First-Line Supervisor: 40 hours @ $59.02/hr: .......................................................................................................................... General and Operations Manager: 5 hours @ $94.32/hr: ........................................................................................................ $2,360.80 $471.60 ddrumheller on DSK120RN23PROD with RULES4 $2,832.40 per agency. 360 For example, in its plan on aging that was effective October 1, 2018, the California State agency noted a focus on developing strategies to better serve LGBTQI+ populations; the Ohio State agency sought input regarding the needs of LGBTQI+ populations in connection with the preparation of its State plan on aging for FFY 2019– 2022; and the New York State agency’s plan on aging for FFY 2019–2023 references ongoing efforts VerDate Sep<11>2014 20:33 Feb 13, 2024 Jkt 262001 to work with area agencies on aging to conduct outreach to the LGBTQI+ community. 361 U.S. Dep’t. of Labor, Bureau of Labor Statistics, Occupational Employment and Wages, 43–1011 First-Line Supervisors of Office and Administrative Support Workers (May 2022), https://www.bls.gov/oes/current/oes431011.htm. 362 This hourly cost was determined by multiplying the median wage of $29.51 by 2. PO 00000 Frm 00084 Fmt 4701 Sfmt 4700 363 U.S. Dep’t. of Labor, Bureau of Labor Statistics, Occupational Employment and Wages, 11–1021 General and Operations Managers (May 2022), https://www.bls.gov/oes/current/ oes111021.htm. 364 This hourly cost was determined by multiplying the median wage of $47.16 by 2. E:\FR\FM\14FER4.SGM 14FER4 Federal Register / Vol. 89, No. 31 / Wednesday, February 14, 2024 / Rules and Regulations 335 State agencies/AAAs—less extensive revisions: First-Line Supervisor: 20 hours @ $59.02/hr: .......................................................................................................................... General and Operations Manager: 5 hours @ $94.32/hr: ........................................................................................................ 11649 $1,180.40 $471.60 $1,652.00 per agency. For the approximately 336 State agencies or AAAs with more extensive revisions, we estimate a cost of approximately $951,686.40. For the 335 State agencies or AAAs with less extensive revisions, we estimate a cost of approximately $553,420.00. We estimate the total cost associated with revisions with respect to the final rule for State agencies and AAAs of $1,505,106.40. Service Providers According to data submitted to ACL by the State agencies, there were 17,438 service providers during FFY 2021, and we use that figure for this analysis. We anticipate that all 17,438 service providers will review their existing policies and procedures to confirm that they comply the rule and will update their policies and procedures, as needed, in order to bring them into compliance. We estimate that the scope of the review needed for service providers will be narrower than that needed for State agencies and AAAs and will be limited to areas related to their provision of direct services, such as person-centered and trauma-informed services, eligibility for services, client prioritization, and client contributions. Like State agencies, AAAs and Title VI grantees, service providers already should be aware of the fiscal and programmatic changes that have been made to the OAA since 1988, and to the extent required, they already should have established policies and procedures with respect to the OAA requirements that apply to them. We estimate that service providers will spend seven (7) total hours on revisions per agency. Of these, five (5) hours in the aggregate will be spent by one or more mid-level manager(s) equivalent to a first-line supervisor (U.S. Bureau of Labor Statistics (BLS) Occupation code 43–1011),365 at a cost of $59.02 per hour after adjusting for non-wage benefits and indirect costs,366 while an average of two (2) hours would be spent by executive staff equivalent to a general and operations manager (BLS Occupation code 11–1021),367 at a cost of $94.32 per hour after adjusting for non-wage benefits and indirect costs.368 We monetize the time spent by service providers on revising policies and procedures by estimating a total cost per entity as follows: First-Line Supervisor: 5 hours @ $59.02/hr: ................................................................................................................................... General and Operations Manager: 2 hours @ $94.32/hr: ................................................................................................................ $295.10 188.64 $483.74 per agency. We estimate the total cost associated with revisions with respect to the final rule for 17,438 service providers of $8,435,458.12. Title VI Grantees This analysis anticipates that the final rule also will result in one-time costs to Title VI grantees to revise policies and procedures. In clarifying requirements for Title VI grantee policies and procedures under the OAA, ACL anticipates that all 290 Title VI grantees will revise their policies and procedures under the final rule, with approximately one-third of these Title VI grantees requiring fewer revisions. We estimate that Title VI grantees with more extensive revisions will spend thirty (30) total hours on revisions per agency. All of these 30 hours will be spent by a mid-level manager equivalent to a first-line supervisor (U.S. Bureau of Labor Statistics (BLS) Occupation code 43–1011),369 at a cost of $59.02 per hour after adjusting for non-wage benefits and the indirect costs. For Title VI grantees with less extensive revisions, we assume fifteen (15) total hours spent on revisions per agency. All of these hours will be spent by a mid-level manager equivalent to a first-line supervisor (U.S. Bureau of Labor Statistics (BLS) Occupation code 43– 1011),370 at a cost of $59.02 per hour after adjusting for non-wage benefits and indirect costs.371 We monetize the time spent by Title VI grantees on revising policies and procedures as follows: ddrumheller on DSK120RN23PROD with RULES4 196 Title VI grantees—more extensive revisions:. First-Line Supervisor: 30 hours @ $59.02/hr: .................................................................................................... 94 Title VI grantees—less extensive revisions: First-Line Supervisor: 15 hours @ $59.02/hr: .................................................................................................... $1,770.60 per grantee. $885.30 per grantee. For the approximately 196 Title VI grantees with more extensive revisions, we estimate a cost of approximately $347,037.60. For the 94 Title VI grantees with less extensive revisions, we estimate a cost of approximately $83,218.20. We estimate the total cost associated with revisions of policies and procedures for Title VI grantees with respect to the final rule of $430,255.80. The above estimates of time and number of State agencies, AAAs and Title VI grantees that will revise their policies under the regulation are approximate estimates based on ACL’s 365 U.S. Dep’t. of Labor, Bureau of Labor Statistics, Occupational Employment and Wages, 43–1011 First-Line Supervisors of Office and Administrative Support Workers (May 2022), https://www.bls.gov/oes/current/oes431011.htm. 366 This hourly cost was determined by multiplying the median wage of $29.51 by 2. 367 U.S. Dep’t of Labor, Bureau of Labor Statistics, Occupational Employment and Wages, 11–1021 General and Operations Managers (May 2022), https://www.bls.gov/oes/current/oes111021.htm. 368 This hourly cost was determined by multiplying the median wage of $47.16 by 2. 369 U.S. Dep’t of Labor, Bureau of Labor Statistics. Occupational Employment and Wages, 43–1011 First-Line Supervisors of Office and Administrative Support Workers (May 2022), https://www.bls.gov/ oes/current/oes431011.htm. 370 Id. 371 These hourly costs were determined by multiplying the median wage of $29.51 by 2. VerDate Sep<11>2014 20:33 Feb 13, 2024 Jkt 262001 PO 00000 Frm 00085 Fmt 4701 Sfmt 4700 E:\FR\FM\14FER4.SGM 14FER4 11650 Federal Register / Vol. 89, No. 31 / Wednesday, February 14, 2024 / Rules and Regulations extensive experience working with the agencies (including providing technical assistance), feedback and inquiries that we have received from State agencies, AAAs, and Title VI grantees, as well as ACL staff’s prior experience working with OAA programs at State agencies and AAAs. Due to variation in the types and sizes of State agencies, AAAs, and Title VI grantees, the above estimates of time and number of entities that will revise their policies under the regulation is difficult to calculate precisely. b. Training ACL estimates that State agencies, AAAs, service providers and Title VI grantees will incur one-time costs with respect to training or re-training employees under the final revised rule. For reasons similar to the discussion above with respect to revisions to policies and procedures, we address State agencies and AAAs separately from Title VI grantees. We also address service providers separately, as we anticipate that the training needed for service providers will be less extensive than that needed for State agencies and AAAs. State Agencies and AAAs Costs To Prepare and Conduct Trainings of Their Own Staff Consistent with our estimates relating to the number of agencies that will require extensive revision of their policies, we estimate that 50 percent of the State agencies and AAAs program management staff will require more extensive staff training regarding the rule. Based on our experience working with State agencies and AAAs, we estimate that, for State agencies and AAAs that need more extensive trainings, one (1) employee per agency, equivalent to a first-line supervisor (U.S. Bureau of Labor Statistics (BLS) Occupation code 43–1011) 372 will spend three (3) total hours to prepare the training, and five (5) hours to provide the training, at a cost of $59.02 per hour after adjusting for non-wage benefits and indirect costs, and that for those needing less extensive trainings, one (1) employee per agency, equivalent to a first-line supervisor (U.S. Bureau of Labor Statistics (BLS) Occupation code 43–1011) 373 will spend two (2) total hours to prepare the training, and two (2) hours to provide the training, at a cost of $59.02 per hour after adjusting for non-wage benefits and indirect costs.374 We monetize the time spent by State agencies and AAAs to prepare and conduct trainings for their own employees as follows: 336 State agencies/AAAs—more extensive trainings: First-Line Supervisor: 8 hours @$59.02/hr: ...................... 335 State agencies/AAAs—less extensive trainings: First-Line Supervisor: 4 hours @$59.02/hr: ........................ For the approximately 336 State agencies or AAAs with more extensive needed training, we estimate a cost of approximately $158,645.76. For the 335 State agencies or AAAs with less extensive training needs, we estimate a cost of approximately $79,086.80. We estimate the total cost associated with the preparation and conduct of trainings with respect to the final rule for State agencies and AAAs of $237,732.56. Costs To Receive Trainings by Their Own Staff As noted above, we estimate that 50 percent of the State agencies and AAAs program management staff will require more extensive staff training regarding the rule. Based on our experience working with State agencies and AAAs, we estimate that State agencies and AAAs with more extensive trainings will spend five (5) total hours on trainings per agency, and that those with less extensive trainings will spend two (2) hours on trainings per agency. $472.16 per agency. $236.08 per agency We estimate that five (5) employees per agency, equivalent to social and community service managers (BLS Occupation code 11–9151),375 will receive training at a cost of $71.38 per hour per employee after adjusting for non-wage benefits and indirect costs,376 and that one (1) employee per agency, equivalent to a business operations specialist (BLS Occupation code 13– 1199),377 will receive training at a cost of $73.06 per hour after adjusting for non-wage benefits and indirect costs.378 We monetize the time spent in the receipt of trainings as follows: 336 State agencies/AAAs—more extensive trainings: Social & Community Service Manager: 5 staff × 5 hours @$71.38/hr: .......................................................................................... Business Operations Specialist: 1 staff × 5 hours @$73.06/hr: ............................................................................................................. $1,784.50 365.30 $2,149.80/ agency. 335 State agencies/AAAs—less extensive trainings: Social & Community Service Manager: 5 staff × 2 hours @$71.38/hr: .......................................................................................... Business Operations Specialist: 1 staff × 2 hours @$73.06/hr: ...................................................................................................... $713.80 146.12. ddrumheller on DSK120RN23PROD with RULES4 $859.92/ agency. For the approximately 336 State agencies or AAAs with more extensive trainings, we estimate a cost of approximately $722,332.80. For the 335 State agencies or AAAs with less extensive trainings, we estimate a cost of approximately $288,073.20. We estimate the total cost associated with receipt of training by employees with respect to revisions to policies and procedures under the final rule of $1,010,406.00. 372 U.S. Dep’t of Labor, Bureau of Labor Statistics. Occupational Employment and Wages, 43–1011 First-Line Supervisors of Office and Administrative Support Workers (May 2022), https://www.bls.gov/ oes/current/oes431011.htm.. 373 Id. 374 These hourly costs were determined by multiplying the median wage of $29.51 by 2. 375 U.S. Dep’t. of Labor, Bureau of Labor Statistics, Occupational Employment and Wages, 11–9151 Social and Community Service Managers (May 2022), https://www.bls.gov/oes/current/ oes119151.htm. 376 This hourly cost was determined by multiplying the median wage of $35.69 by 2. 377 U.S. Dep’t of Labor, Bureau of Labor Statistics, Occupational Employment and Wages, 13–1199 Business Operations Sepcialists, All Other (May 2022), https://www.bls.gov/oes/current/ oes131199.htm. 378 This hourly cost was determined by multiplying the median wage of $36.53 by 2. VerDate Sep<11>2014 22:03 Feb 13, 2024 Jkt 262001 PO 00000 Frm 00086 Fmt 4701 Sfmt 4700 E:\FR\FM\14FER4.SGM 14FER4 Federal Register / Vol. 89, No. 31 / Wednesday, February 14, 2024 / Rules and Regulations Costs To Conduct Trainings of AAAs by State Agencies We estimate that each of the fortyseven (47) State agencies that have AAAs will conduct one (1) training for their AAAs. We estimate that two (2) State agency employees per agency, each equivalent to a first-line supervisor (U.S. Bureau of Labor Statistics (BLS) Occupation code 43–1011),379 will spend three (3) total hours to conduct the training, at a cost per employee of $59.02 per hour after adjusting for nonwage benefits and indirect costs.380 As the State agencies already will have created trainings for their own employees, we do not associate any costs with the creation of trainings for the AAAs. We monetize the time spent by the 47 State agencies to train AAAs by estimating a cost per agency of $354.12 (2 staff × 3 hours × $59.02/hr). We estimate the total cost to the State agencies to train AAAs to be $16,643.64. We estimate that each of the 615 AAAs will arrange for two (2) AAA employees, each equivalent to a firstline supervisor (U.S. Bureau of Labor Statistics (BLS) Occupation code 43– 1011),381 to attend the three (3) hour trainings conducted by the State agency, at a cost per employee of $59.02 per hour after adjusting for non-wage benefits and indirect costs.382 We monetize the time spent by the 615 AAAs to attend the State agency trainings by estimating a cost per agency of $354.12 (2 staff × 3 hours × $59.02/ hr). We estimate the total cost associated to the AAAs to receive training from the State agencies to be $217,783.80. We estimate the total costs associated with the training by State agencies of AAAs to be $234,427.44. Cost To Receive Training We estimate that all 17,438 service providers will receive training regarding revised policies and procedures in connection with the final rule. We estimate that two (2) employees per agency, equivalent to social and community service managers (BLS Occupation code 11–9151),385 will receive two (2) hours of training at a cost per employee of $71.38 per hour after adjusting for non-wage benefits and indirect costs.386 We monetize the time spent by service providers to receive training with respect to revised policies and procedures by estimating a total cost per entity of $285.52 (2 staff × 2 hours × $71.38/hr). We estimate the total cost associated with receipt of training with respect to the final rule for 17,438 service providers of $4,978,897.76. Title VI Grantees Cost To Conduct Trainings We estimate that the 615 AAAs, as well as the 9 State agencies in single PSA States that do not have AAAs, will provide training to their service providers with respect to revisions to policies and procedures under the final rule. We estimate that two (2) AAA or State agency employees per agency, as Costs To Prepare and Conduct Trainings of Their Own Staff Consistent with our estimates relating to the number of Title VI grantees that will require extensive revision of their policies, we estimate that two thirds of the Title VI grantees’ program management staff will require more extensive staff training regarding the rule. Based on our experience working with Title VI grantees, we estimate that, for Title VI grantees that need more 379 U.S. Dep’t. of Labor, Bureau of Labor Statistics, Occupational Employment and Wages, 43–1011 First-Line Supervisors of Office and Administrative Support Workers (May, 2022), https://www.bls.gov/oes/current/oes431011.htm. 380 This hourly cost was determined by multiplying the median wage of $29.51 by 2. 381 U.S. Dep’t. of Labor, Bureau of Labor Statistics, Occupational Employment and Wages, 43–1011 First-Line Supervisors of Office and Administrative Support Workers (May, 2022), https://www.bls.gov/oes/current/oes431011.htm.. 382 This hourly cost was determined by multiplying the median wage of $29.51 by 2. 383 U.S. Dep’t. of Labor, Bureau of Labor Statistics, Occupational Employment and Wages, 43–1011 First-Line Supervisors of Office and Administrative Support Workers (May, 2022), https://www.bls.gov/oes/current/oes431011.htm. 384 This hourly cost was determined by multiplying the median wage of 29.51 by 2. 385 U.S. Dep’t. of Labor, Bureau of Labor Statistics, Occupational Employment and Wages, 11–9151 Social and Community Service Managers (May, 2022), https://www.bls.gov/oes/current/ oes119151.htm. 386 This hourly cost was determined by multiplying the median wage of $36.59 by 2. Service Providers ddrumheller on DSK120RN23PROD with RULES4 applicable, each equivalent to a firstline supervisor (U.S. Bureau of Labor Statistics (BLS) Occupation code 43– 1011),383 will spend two (2) total hours to conduct one (1) training, at a cost of $59.02 per hour after adjusting for nonwage benefits and indirect costs.384 As the State agencies and AAAs already will have created trainings for their own employees, we do not associate any costs with the creation of trainings for the service providers. We monetize the time spent by the 615 AAAs and the 9 State agencies to train service providers by estimating a cost per agency of $236.08 (2 staff × 2 hours × $59.02/hr). We estimate the total cost associated with the conduct of trainings of service providers to be $147,313.92. VerDate Sep<11>2014 20:33 Feb 13, 2024 Jkt 262001 PO 00000 Frm 00087 Fmt 4701 Sfmt 4700 11651 extensive trainings, one (1) employee per agency, equivalent to a first-line supervisor (U.S. Bureau of Labor Statistics (BLS) Occupation code 43– 1011) 387 will spend three (3) total hours to prepare the training, and five (5) hours to provide the training, at a cost of $59.02 per hour after adjusting for non-wage benefits and indirect costs, and that for those needing less extensive trainings one (1) employee per agency, equivalent to a first-line supervisor (U.S. Bureau of Labor Statistics (BLS) Occupation code 43–1011) 388 will spend two (2) total hours to prepare the training, and two (2) hours to provide the training, at a cost of $59.02 per hour after adjusting for non-wage benefits and indirect costs.389 We monetize the time spent by Title VI grantees to prepare and conduct trainings for their own employees by estimating a total cost per entity of $472.16 (1 staff × 8 hours × $59.02/hr) or $251.92 (1 staff × 4 hours × $59.02/ hr), depending on the extent of the training needed. For the approximately 196 Title VI grantees with more extensive needed training, we estimate a cost of approximately $92,543.36. For the 94 Title VI grantees with less extensive training needs, we estimate a cost of approximately $22,191.52. We estimate the total cost associated with the preparation and conduct of trainings with respect to the final rule for Title VI grantees of $114,734.88. Cost To Receive Trainings by Their Own Staff As noted above, we estimate that two thirds of the Title VI grantees’ program management staff will require more extensive staff training regarding the rule. Based on our experience working with Title VI grantees, we estimate that those grantees with more extensive trainings will spend five (5) total hours on the receipt of training per agency, and that those with less extensive trainings will spend two (2) hours on the receipt of trainings per agency. We estimate that three (3) employees per agency, equivalent to social and community service managers (BLS Occupation code 11–9151),390 will 387 U.S. Dep’t. of Labor, Bureau of Labor Statistics, Occupational Employment and Wages, 43–1011 First-Line Supervisors of Office and Administrative Support Workers (May, 2022), https://www.bls.gov/oes/current/oes431011.htm. 388 Id. 389 These hourly costs were determined by multiplying the median wage of $29.51 by 2. 390 U.S. Dep’t. of Labor, Bureau of Labor Statistics, Occupational Employment and Wages, 11–9151 Social and Community Service Managers (May, 2022), https://www.bls.gov/oes/current/ oes119151.htm. E:\FR\FM\14FER4.SGM 14FER4 11652 Federal Register / Vol. 89, No. 31 / Wednesday, February 14, 2024 / Rules and Regulations receive training at a cost per employee of $71.38 per hour after adjusting for non-wage benefits and indirect costs,391 and that one (1) employee per agency, equivalent to a business operations specialist (BLS Occupation code 13– 1199),392 will receive training at a cost of $73.06 per hour after adjusting for non-wage benefits and indirect costs.393 We monetize the time spent on receipt of training as follows: 196 Title VI Grantees—more extensive trainings: Social & Community Service Manager: 3 staff × 5 hours @ $71.38/hr: ......................................................................... Business Operations Specialist: 1 staff × 5 hours @ $73.06/hr: ..................................................................................... $1,070.70 365.30 $1,436.00/grantee 94 Title VI Grantees—less extensive trainings: Social & Community Service Manager: 3 staff × 2 hours @ $71.38/hr: ......................................................................... Business Operations Specialist: 1 staff × 2 hours @ $73.06/hr: ..................................................................................... $428.28 146.12 $574.40/grantee For the approximately 196 Title VI grantees with more extensive trainings, we estimate a cost of approximately $281,456.00. For the 94 Title VI grantees with less extensive trainings, we estimate a cost of approximately $53,993.60. We estimate the total cost associated with receipt of training of employees with respect to revisions to policies and procedures under the final rule of $335,449.60. The above estimates of the time needed by State agencies, AAAs, and Title VI grantees for training of employees with respect to the final rule, as well as the number of employees to be trained, are approximate estimates based on ACL’s extensive experience working with the agencies, including providing technical assistance as well as ACL staff’s prior experience working with OAA programs at State agencies and AAAs. Due to variation in the types and sizes of State agencies, AAAs, and Title VI grantees, the above estimates of time needed for training and the number of employees to be trained with respect to the final rule is difficult to calculate precisely. ddrumheller on DSK120RN23PROD with RULES4 c. Making State Plan Documentation Available Section 305(a)(2) of the OAA,394 together with existing 45 CFR 1321.27, require State agencies, in the development and administration of the State plan, to obtain and consider the input of older adults, the public, and recipients of services under the OAA. Section 1321.29 of the final regulation requires State agencies to ensure that documents which are to be available for public review in connection with State plans and State plan amendments, as well as final State plans and State plan 391 This hourly cost was determined by multiplying the median wage of $35.69 by 2. 392 U.S. Dep’t. of Labor, Bureau of Labor Statistics, Occupational Employment and Wages, 13–1199 Business Operations Specialists, All Other (May, 2022), https://www.bls.gov/oes/current/ oes131199.htm. VerDate Sep<11>2014 20:33 Feb 13, 2024 Jkt 262001 amendments, be available in a public location, as well as available in print by request. Based on ACL’s extensive experience working with State agencies in their development of State plans and State plan amendments, we estimate that most State agencies already comply with the requirements to make such documentation accessible in a public place. It is common practice for State agencies to post the documents on their public websites.395 For those that do not already post the documents on their websites, we estimate that it will take less than one hour of time spent by a computer and information system employee to post the documents on their websites. Accordingly, we believe this cost will be minimal and do not quantify it. Occasionally, a member of the public may request a print copy of a State plan. State plan documents can vary widely in length; based on our experience, we estimate that on average each State plan contains 75 pages, including exhibits. At an estimated cost of $.50 per page for copies, each paper copy will cost approximately $37.50. Today, documents typically are shared electronically, rather than via print copies, and we estimate that each State agency will receive few requests for print copies of their State plans. In addition, all States have established laws that allow access to public records.396 Therefore, we also believe this cost will be minimal and do not quantify it. the COVID–19 PHE, we add Subpart E— Emergency and Disaster Requirements (§§ 1321.97–1321.105) to set forth expectations and clarify flexibilities that are available in certain disaster situations. Similarly, § 1322.35 will provide for flexibilities to be available to Title VI grantees during certain emergencies and will require Title VI grantees to report separately on expenditures of funds when exercising such flexibilities. ACL estimates that some State agencies, AAAs, and Title VI grantees will incur costs to comply with the new provision. For reasons similar to the discussion above with respect to revisions to policies and procedures, we address State agencies and area agencies separately from Title VI grantees. State Agencies and AAAs Based on input from interested parties and our experience, particularly during ACL has administrative oversight responsibility with respect to the expenditures of Federal funds pursuant to the OAA, and these flexibilities involve exceptions to certain programmatic and fiscal requirements under the OAA. Accordingly, in addition to the flexibilities we allow in this section, we are compelled to set forth that State agencies be required to submit State plan amendments when they intend to exercise any of these flexibilities, as well to comply with reporting requirements. We believe the cost to a State agency to prepare and submit a State plan amendment will be quite minimal, in particular in comparison to the benefits to older adults in emergency situations as a result of these flexibilities. We, therefore, do not quantify the cost to a State agency to prepare and submit such a State plan amendment. We likewise do not quantify the cost to a State 393 This hourly cost was determined by multiplying the median wage of $36.53 by 2. 394 42 U.S.C. 3025(a)(2). 395 For example, the State agencies from Alabama, Arizona, California, Florida, Georgia, Illinois, Massachusetts, Montana, North Dakota, New York, and Ohio, in addition to others, post their plans on aging on their websites. 396 Public Records, Natl. Assn. of Attorneys General, https://www.naag.org/issues/civil-law/ public-records/ (last visited Oct. 24, 2023); State Public Records Laws, FOIAdvocates, https://www.foi advocates.com/records.html (last visited Oct. 24, 2023). States may charge fees in order to provide copies of public records; e.g., New Jersey’s Open Public Records Law, N.J.S.A. 47:1A–1 et seq. d. State Plan Amendments and Disaster Flexibilities PO 00000 Frm 00088 Fmt 4701 Sfmt 4700 E:\FR\FM\14FER4.SGM 14FER4 Federal Register / Vol. 89, No. 31 / Wednesday, February 14, 2024 / Rules and Regulations agency to comply with reporting requirements, as sound fiscal and data tracking policies and principles, outside of the OAA, should be in place for all State agency expenditures of Federal funds, regardless of the source. Title VI Grantees Similarly, § 1322.35 will provide for flexibilities to be available to Title VI grantees during certain emergencies and will require Title VI grantees to report separately on expenditures of funds when exercising such flexibilities. Again, we do not quantify the cost to a Title VI grantee to comply with reporting requirements, as sound fiscal and data tracking policies and principles, outside of the OAA, should iii. Total Quantified Costs of the Final Rule The table below sets forth the total estimated cost of the final rule: 397 Service providers ($) Title VI Grantees ($) 2020 OAA Reauthorization .................................................................................................. Revise Policies and Procedures .......................................................................................... Prepare/Conduct Training for Own Staff ............................................................................. Receipt of Training for Own Staff ........................................................................................ SUA Training of AAAs ......................................................................................................... SUA/AAA Training of Service Providers ............................................................................. Available Documentation ..................................................................................................... State Plan Amendments for Disaster Flexibilities ............................................................... 0.00 1,505,106.40 237,732.56 1,010,406.00 234,427.44 147,313.92 0.00 8,435,458.12 N/A 4,978,897.76 N/A N/A 0.00 430,255.80 114,734.88 335,449.60 N/A N/A Total .............................................................................................................................. 3,134,986.32 13,414,355.88 880,440.28 variety of local conditions and individual situations, other than income, that 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 will allow State agencies and AAAs to make these determinations. The flexibilities to be afforded to State agencies and Title VI grantees in certain emergency and disaster situations will allow funding to be directed more efficiently where it is needed most to better assist older adults in need. We have determined that the many anticipated benefits of the final rule are not quantifiable, given the variation in the types and sizes of State agencies, AAAs, and Title VI grantees, as well as the variation in conditions and situations at the State and local level throughout the U.S. The benefits from this final rule are difficult to quantify. We anticipate that the rule will provide clarity of administration for State agencies, AAAs, and Title VI grantees with respect to aspects of the OAA that were enacted under previous reauthorizations. This clarity likely will reduce time spent by grantees in implementing and managing OAA programs and services and result in improved program and fiscal management. Additional benefits are anticipated from our modifications to regulatory text that modernize our rule to provide greater flexibility to State agencies and AAAs, as well as to reflect ongoing feedback from interested parties and responses to our RFI and NPRM in areas where our prior regulations did not address the evolving needs of Title III, VI, and VII grantees and the older adults and family caregivers they serve. The rule’s allowance for shelf-stable, pickup, carry-out, drive-through, or similar meals, where a participant will be able to collect their meal from a congregate site and return to the community off-site to enjoy it, is a direct response to feedback from interested parties, including as gathered from the RFI, and appropriately reflects the evolving needs of both grantees and OAA participants. We anticipate increased participation in the Title III nutrition programs, which in turn will lead to better nutritional health for a new group of older adults that does not currently participate in the program. Another example of a modification to regulatory text that will modernize our rule is the new definition of ‘‘greatest economic need,’’ which will allow State agencies and AAAs to take into consideration populations that experience economic need due to a 397 For information regarding the calculations of the amounts set forth in this table, please see the RIA discussion above. 398 Average weekly hours worked information per U.S. Dep’t. of Labor, Bureau of Labor and Statistics, Labor Productivity and Cost Measures—Major Sectors nonfarm business, business, nonfinancial corporate, and manufacturing (Feb. 2, 2023), https://www.bls.gov/productivity/tables/home.htm. As the table above indicates, the costs attributable to the final rule, in the aggregate amount, are estimated at $17,429,782.50. ACL estimates quantified costs attributable to the final rule of $3.13 million for State agencies and AAAs (at an average cost of $4,484 per State agency in States that have AAAs, $4,488 per State agency in States with no AAAs, and $4,694 per area agency), $13.4 million for service providers (at an average cost of $769 per service provider), and $0.88 million for Title VI grantees (at an average cost of $3,036 per Title VI grantee). These costs would consist of staff time to revise policies and procedures and to create, provide and receive trainings. Assuming annual productive time per full time employee (FTE) of 1,650 hours (based on average weekly hours worked of 33 hours per week 398 and 50 weeks worked per annum), these estimated costs would equate to approximately four percent of one (1) FTE’s annual time for each State agency and area agency, three percent of one (1) FTE’s annual time for each Title VI grantee, and .7 percent of one (1) FTE’s annual time for each service provider. 2. Discussion of Benefits ddrumheller on DSK120RN23PROD with RULES4 be in place for all Title VI grantee expenditures of Federal funds, regardless of the source. State agencies and AAAs ($) Item of cost 11653 VerDate Sep<11>2014 20:33 Feb 13, 2024 Jkt 262001 PO 00000 Frm 00089 Fmt 4701 Sfmt 4700 B. Regulatory Flexibility Act Under the Regulatory Flexibility Act, as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA) (5 U.S.C. 601 et seq.), agencies must consider the impact of regulations on small entities and analyze regulatory options that would minimize a rule’s impacts on these entities. Alternatively, the agency head may certify that the final rule will not have a significant economic impact on a substantial number of small entities. E:\FR\FM\14FER4.SGM 14FER4 11654 Federal Register / Vol. 89, No. 31 / Wednesday, February 14, 2024 / Rules and Regulations ACL estimates the costs that would result from the final rule to be $4,879 per State agency in States that have area agencies, $4,883 per State agency in States with no area agencies, $5,104 per area agency, $856 per service provider, and $3,247 per Title VI grantee. These costs would consist of staff time to revise policies and procedures and to create, provide and receive trainings. Assuming annual productive time per full time employee (FTE) of 1,650 hours (based on average weekly hours worked of 33 hours per week 399 and 50 weeks worked per annum), these estimated costs would equate to approximately four percent of one (1) FTE’s annual time for each State agency and area agency, three percent of one (1) FTE’s annual time for each Title VI grantee, and .7 percent of one (1) FTE’s annual time for each service provider. HHS certifies that this final rule will not have a significant economic impact on a substantial number of small businesses and other small entities. C. Executive Order 13132 (Federalism) Executive Order 13132 requires Federal agencies to consider the impact of their regulatory actions on State and local governments. Where such actions have federalism implications, agencies are directed to provide a statement describing the agency’s considerations. ddrumheller on DSK120RN23PROD with RULES4 Consultations With State and Local Officials Executive Order 13132 requires meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications. As discussed in the preamble, the proposed regulations were developed with input from interested parties, including State and local officials. We issued a Request for Information (RFI) 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. ACL received comments from over 90 entities in response to the RFI. In addition, ACL conducted a listening session on April 18, 2022, at the national conference for Tribal organization grantees under Title VI of the OAA. We also promoted the RFI and the NPRM with Title VI grantees and Indian Tribes, and a Tribal consultation meeting took place at the National Title VI Conference April 12, 2023. 399 Id. VerDate Sep<11>2014 20:33 Feb 13, 2024 Jkt 262001 On June 16, 2023, the Federal Register published a notice of proposed rulemaking (NPRM) regarding OAA Titles III, VI, and VII (88 FR 39568). Through the NPRM, ACL sought feedback regarding ACL’s proposal to modernize the implementing regulations of the OAA, which have not been substantially altered since their promulgation in 1988. ACL received 780 public comments on the NPRM. The goal of the processes outlined above was to hear from all interested entities, including State and local officials, the public, and professional fields about their experience with OAA services and about the proposed regulations. Interested parties were provided with opportunities to give input as to areas where our prior regulations did not address the evolving needs of Title III, VI, and VII grantees and the older adults and family caregivers they serve, as well as input into the content of the final rule. We carefully reviewed comments received in response to the RFI and the NPRM from State and local officials, considered concerns raised in developing the final rule, and made changes to several of the final rule’s provisions based on public comments. Our final rule is a direct response to feedback from interested parties and reflects the evolving needs of both grantees and OAA program participants. Nature of Concerns and the Need To Issue This Proposed Rule The final rule modifies existing OAA regulations 45 CFR parts 1321, 1322, and 1324 and removes 45 CFR part 1323. Most of these changes modernize the OAA regulations to bring them into conformity with the reauthorized OAA and to provide clarity of administration for ACL and its grantees. In addition to areas where we better align regulation with current statute, we make modifications to regulatory text that modernize our rule to provide greater flexibility to State agencies. Commenters overwhelmingly supported most provisions in the proposed rule. Many commenters expressed general support for our updates to modernize the regulations. Some commenters appreciated the flexibilities in the rule, while others appreciated the additional clarity offered by the rule. Some commenters asked that ACL be more prescriptive in the final rule and that the final rule be revised to allow less discretion to State agencies in implementing the Act. The preamble notes several instances where ACL declined such requests, in order to PO 00000 Frm 00090 Fmt 4701 Sfmt 4700 provide flexibility to State agencies in implementing the final rule. We received comments that the final rule would be challenging to implement absent additional funding. We seriously considered these views in developing the final rule. We also completed a regulatory impact analysis to fully assess costs and benefits of the new requirements. We recognize that some of the new proposed regulatory provisions may create administrative and monetary burden in updating policies and procedures, as well as a potential need for changes to some States’ laws or regulations. However, this burden should be a one-time expense, some policies are at the States’ option to adopt, and States will have significant discretion to implement the proposed provisions in the manner best suited to State needs. Much of this final rule codifies the policies and procedures that State agencies already have, or should have, in place to administer programs and deliver services under the OAA, and we believe that many State agencies already are in substantial compliance with the final rule. Extent to Which We Meet Those Concerns The 2020 OAA reauthorization increased the amount of OAA funding that State agencies 400 may use to administer the Act from the greater of (i) 5% of Title III B, C, D, and E funding and (ii) $500,000 to the greater of (i) 5% of Title III B, C, D, and E funding and (ii) $750,000.401 In addition, we believe that many States already are in substantial compliance with the final rule, most of which brings the regulations into conformity with the OAA. We also believe the benefits of the final rule will be significant: the rule provides considerable latitude to State agencies to determine how best to implement the OAA in order to respond to local needs and circumstances, and it increases the flexibility available to States in administering the OAA. D. Executive Order 13175 (Consultation and Coordination With Indian Tribal Governments) ACL will fulfill its responsibilities under Executive Order 13175, ‘‘Consultation and Coordination with Indian Tribal Governments.’’ Executive Order 13175 requires Federal agencies to establish procedures for meaningful consultation and coordination with 400 This excludes Guam, American Samoa, the United States Virgin Islands, the Trust Territory of the Pacific Islands, and the Commonwealth of the Northern Mariana Islands, which have lower administrative caps. 401 42 U.S.C. 3028(b). E:\FR\FM\14FER4.SGM 14FER4 ddrumheller on DSK120RN23PROD with RULES4 Federal Register / Vol. 89, No. 31 / Wednesday, February 14, 2024 / Rules and Regulations Tribal officials in the development of Federal policies that have Tribal implications. ACL conducted a listening session at the National Title VI Conference on April 18, 2022. We also promoted the RFI and NPRM with Title VI grantees and Indian Tribes. A Tribal consultation meeting took place at the National Title VI Conference April 12, 2023. ACL continued to solicit input from affected Federally recognized Indian Tribes as we developed these updated regulations. ACL conducted a Tribal consultation meeting on Thursday June 22, 2023, from 2:00 p.m. to 4:00 p.m. eastern time. Additional details were made available at https:// olderindians.acl.gov/events/. Comment: Commenters expressed concern that proposed service policies and procedures were not added through consultation and do not honor Tribal sovereignty. Another commenter noted the numerous acts of Congress that require Federal agencies to consider the administrative burden and infrastructure inequities faced by Tribes. A commenter noted that there should be additional Tribal consultation with Alaskan and Hawaiian programs given the volume and special circumstances that they could speak to on the impact of the proposed regulations. Response: ACL honors Tribal sovereignty and offered formal Tribal consultation and other engagements with Tribal grantee input prior to issuing the NPRM. ACL conducted a listening session at the National Title VI Conference on April 18, 2022. We also promoted the RFI with Title VI grantees and Indian Tribes until it closed on June 6, 2022. A Tribal consultation meeting took place at the National Title VI Conference April 12, 2023. ACL also conducted a Tribal briefing on June 22, 2023. These activities were conducted in addition to the weekly announcements made by ACL’s Office of American Indian, Alaskan Native, and Native Hawaiian Programs once the NPRM was released on June 16, 2023, and the formal Tribal consultation requested and received on the NPRM on August 9, 2023, following a ‘‘Dear Tribal Leader’’ sent from ACL. ACL is committed to honoring Tribal sovereignty while offering opportunities to directly engage with program contacts and leaders regularly. ACL works to maintain a strong government to government relationship with opportunities to provide meaningful and timely input on areas that have a direct impact to their programs. ACL used comments received from Tribal grantees and other commentators through the RFI process to ensure that cultural and traditional VerDate Sep<11>2014 20:33 Feb 13, 2024 Jkt 262001 practices were incorporated into the proposed regulations. ACL sent a Tribal Leader Letter to Tribal leaders on July 14, 2023, sharing a direct link to make comments and hosted a Tribal consultation regarding the proposed regulations on August 9, 2023. ACL notes that much of what is in the final rule is codifying what is in the Act. E. Unfunded Mandates Reform Act of 1995 Section 202 of the Unfunded Mandates Reform Act of 1995 requires that a covered agency prepare a budgetary impact statement before promulgating a rule that includes any Federal mandate that may result in the expenditure by State, local, and Tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year. In 2023, that threshold is approximately $177 million. If a covered agency must prepare a budgetary impact statement, section 205 further requires that it select the most cost-effective and least burdensome alternative that achieves the objectives of the rule and is consistent with the statutory requirements. In addition, section 203 requires a plan for informing and advising any small governments that may be significantly or uniquely impacted by the rule. We have determined that this rule would not result in the expenditure by State, local, and Tribal governments, in the aggregate, or by the private sector, of more than $177 million in any one year. Accordingly, we have not prepared a budgetary impact statement, specifically addressed the regulatory alternatives considered, or prepared a plan for informing and advising any significantly or uniquely impacted small governments. F. Plain Language in Government Writing Pursuant to Executive Order 13563 of January 18, 2011, and Executive Order 12866 of September 30, 1993, Executive Departments and Agencies are directed to use plain language in all proposed and final rules. ACL believes it has used plain language in drafting of the proposed and final rule. G. Paperwork Reduction Act (PRA) The final rule contains an information collection in the form of State plans on aging under Title III and Title VII of the Act and applications for funding by eligible organizations to serve older Native Americans and family caregivers under Title VI of the Act. ACL intends to update guidance regarding State plans on aging and applications for PO 00000 Frm 00091 Fmt 4701 Sfmt 4700 11655 funding under Title VI of the Act when the final rule is published. The requirement for each State agency to submit a multi-year State plan on aging, for a two, three, or four-year period, is a core function of State agencies and a long-standing requirement to receive funding under the Act. State agencies use funds provided under the Act to prepare State plans on aging. In preparing and submitting State plans on aging, State agencies compile information and obtain public input. They coordinate with State, Tribal, AAA, service providers, local government, and other interested parties. ACL will submit a PRA request to the Office of Management and Budget (OMB) for the development of the State plans on aging. Respondents include 55 State agencies located in each of the 50 States as well as the District of Columbia, Guam, Puerto Rico, American Samoa, and the Mariana Islands. ACL estimates 40 burden hours per response. Due to the multi-year nature of the plans, ACL estimates a total of 683 hours in the aggregate to meet State plan requirements by State agencies each year. Based on our years of experience, we anticipate for each State agency 171 hours of executive staff time equivalent to a general and operations manager (Occupation code 11–1021), at a cost of $55.41 per hour unadjusted hourly wage, $110.82 adjusted for non-wage benefits and indirect costs, and 512 hours of first-line supervisor time (Occupation code 43–1011), at a cost of $30.47 per hour unadjusted hourly wage, $60.94 adjusting for non-wage benefits and indirect costs. We monetize the cost of meeting State plan requirements at $50,151.50 per year. This final rule contains an information collection under OMB control number 0985–0064 Application for Older Americans Act, Title VI parts A/B and C Grants with an expiration date of November 30, 2025. The OAA requires the Department to promote the delivery of supportive services and nutrition services to Native Americans. ACL is responsible for administering the Title VI part A/B (Nutrition and Supportive Service) and part C (Caregiver) grants. This information collection (0985–0064) gathers information on the ability of Federally recognized American Indian, Alaskan Native and Native Hawaiian organizations to provide nutrition, supportive, and caregiver services to elders within their service area. Title VI grant applications are required once every three (3) years, with 545 respondents taking 4.25 hours per response. ACL estimates the burden E:\FR\FM\14FER4.SGM 14FER4 11656 Federal Register / Vol. 89, No. 31 / Wednesday, February 14, 2024 / Rules and Regulations associated with this collection of information as 395.4 annual burden hours. Following publication of this rule, ACL will update guidance regarding State plans on aging and applications for funding under Title VI of the Act. In accordance with the regulations implementing the PRA, sections § 1320.11 and § 1320.12, ACL will submit any material or substantive revisions under 0985–0064 and 0985– New to the Office of Management and Budget for review, comment, and approval. List of Subjects in 45 CFR Parts 1321, 1322, 1323, and 1324 Administrative practice and procedure, Aged, Area agencies on aging, Elder rights, Family caregivers, Grant programs—social programs, Indians, Native Hawaiian programs, Tribal organizations and a Native Hawaiian grantee. For the reasons discussed in the preamble, ACL amends 45 CFR chapter XIII as follows: ■ 1. Revise part 1321 to read as follows: PART 1321—GRANTS TO STATE AND COMMUNITY PROGRAMS ON AGING Sec. ddrumheller on DSK120RN23PROD with RULES4 Subpart A—Introduction 1321.1 Basis and purpose of this part. 1321.3 Definitions. 20:33 Feb 13, 2024 Jkt 262001 Subpart C—Area Agency Responsibilities 1321.55 Mission of the area agency. 1321.57 Organization and staffing of the area agency. 1321.59 Area agency policies and procedures. 1321.61 Advocacy responsibilities of the area agency. 1321.63 Area agency advisory council. 1321.65 Submission of an area plan and plan amendments to the State agency for approval. 1321.67 Conflicts of interest policies and procedures for area agencies on aging. 1321.69 Area agency on aging Title III and Title VI coordination responsibilities. Subpart D—Service Requirements Subpart B—State Agency Responsibilities 1321.5 Mission of the State agency. 1321.7 Organization and staffing of the State agency. 1321.9 State agency policies and procedures. 1321.11 Advocacy responsibilities. 1321.13 Designation of and designation changes to planning and service areas. 1321.15 Interstate planning and service area. 1321.17 Appeal to the Departmental Appeals Board on planning and service area designation. 1321.19 Designation of and designation changes to area agencies. 1321.21 Withdrawal of area agency designation. 1321.23 Appeal to the Departmental Appeals Board on area agency on aging withdrawal of designation. 1321.25 Duration, format, and effective date of the State plan. 1321.27 Content of State plan. 1321.29 Public participation. 1321.31 Amendments to the State plan. 1321.33 Submission of the State plan or plan amendment to the Assistant Secretary for Aging for approval. 1321.35 Notification of State plan or State plan amendment approval or disapproval for changes requiring Assistant Secretary for Aging approval. 1321.37 Notification of State plan amendment receipt for changes not VerDate Sep<11>2014 requiring Assistant Secretary for Aging approval. 1321.39 Appeals to the Departmental Appeals Board regarding State plan on aging. 1321.41 When a disapproval decision is effective. 1321.43 How the State agency may appeal the Departmental Appeals Board’s decision. 1321.45 How the Assistant Secretary for Aging may reallot the State agency’s withheld payments. 1321.47 Conflicts of interest policies and procedures for State agencies. 1321.49 Intrastate funding formula. 1321.51 Single planning and service area States. 1321.53 State agency Title III and Title VI coordination responsibilities. 1321.71 Purpose of services allotments under Title III. 1321.73 Policies and procedures. 1321.75 Confidentiality and disclosure of information. 1321.77 Purpose of services—person- and family-centered, trauma-informed. 1321.79 Responsibilities of service providers under State and area plans. 1321.81 Client eligibility for participation. 1321.83 Client and service priority. 1321.85 Supportive services. 1321.87 Nutrition services. 1321.89 Evidence-based disease prevention and health promotion services. 1321.91 Family caregiver support services. 1321.93 Legal assistance. 1321.95 Service provider Title III and Title VI coordination responsibilities. Subpart E—Emergency and Disaster Requirements 1321.97 Coordination with State, Tribal, and local emergency management. 1321.99 Setting aside funds to address disasters. 1321.101 Flexibilities under a major disaster declaration. 1321.103 Title III and Title VI coordination for emergency and disaster preparedness. 1321.105 Modification during major disaster declaration or public health emergency. Authority: 42 U.S.C. 3001 et seq. PO 00000 Frm 00092 Fmt 4701 Sfmt 4700 Subpart A—Introduction § 1321.1 Basis and purpose of this part. (a) The purpose of this part is to implement Title III of the Older Americans Act, as amended (the Act) (42 U.S.C. 3001 et seq.). This part prescribes requirements State agencies shall meet to receive grants to develop comprehensive and coordinated systems for the delivery of the following services: supportive, nutrition, evidence-based disease prevention and health promotion, caregiver, legal, and, where appropriate, other services. These services are provided via State agencies, area agencies on aging, and local service providers under the Act. These requirements include: (1) Responsibilities of State agencies; (2) Responsibilities of area agencies on aging; (3) Service requirements; and (4) Emergency and disaster requirements. (b) The requirements of this part are based on Title III of the Act. Title III provides for formula grants to State agencies on aging, under approved State plans described in § 1321.27, to develop or enhance comprehensive and coordinated community-based systems resulting in a continuum of personcentered services to older persons and family caregivers, with special emphasis on older individuals with the greatest economic need and greatest social need, with particular attention to low-income minority older individuals. A responsive community-based system of services shall include collaboration in planning, resource allocation, and delivery of a comprehensive array of services and opportunities for all older adults in the community. Title III funds are intended to be used as a catalyst to bring together public and private resources in the community to assure the provision of a full range of efficient, well-coordinated, and accessible person-centered services for older persons and family caregivers. (c) Each State designates one State agency to: (1) Develop and submit a State plan on aging, as set forth in § 1321.33; (2) Administer Title III and VII funds under the State plan and the Act; (3) Be responsible for planning, policy development, administration, coordination, priority setting, monitoring, and evaluation of all State activities related to the Act; (4) Serve as an advocate for older individuals and family caregivers; (5) Designate planning and service areas; (6) Designate an area agency on aging to serve each planning and service area, E:\FR\FM\14FER4.SGM 14FER4 Federal Register / Vol. 89, No. 31 / Wednesday, February 14, 2024 / Rules and Regulations except in single planning and service area States; and (7) Provide funds as set forth in the Act to either: (i) Area agencies on aging under approved area plans on aging, in States with multiple planning and service areas, for their use in fulfilling requirements under the Act and distribution to service providers to provide direct services, (ii) Service providers, in single planning and service area States, to provide direct services, or (iii) The Ombudsman program, as set forth in part 1324 of this chapter. (d) Terms used, but not otherwise defined, in this part will have the meanings ascribed to them in the Act. ddrumheller on DSK120RN23PROD with RULES4 § 1321.3 Definitions. Access to services or access services, as used in this part and sections 306 and 307 of the Act (42 U.S.C. 3026 and 3027), means services which may facilitate connection to or receipt of other direct services, including transportation, outreach, information and assistance, options counseling, and case management services. Acquiring, as used in the Act, means obtaining ownership of an existing facility. Act, means the Older Americans Act of 1965, as amended. Altering or renovating, as used in this part, means making modifications to or in connection with an existing facility which are necessary for its effective use. Such modifications may include alterations, improvements, replacements, rearrangements, installations, renovations, repairs, expansions, upgrades, or additions, which are not in excess of double the square footage of the original facility and all physical improvements. Area agency on aging, as used in this part, means a single agency designated by the State agency to perform the functions specified in the Act for a planning and service area. Area plan administration, as used in this part, means funds used to carry out activities as set forth in section 306 of the Act (42 U.S.C. 3026) and other activities to fulfill the mission of the area agency as set forth in § 1321.55, including development of private pay programs or other contracts and commercial relationships. Best available data, as used in section 305(a)(2)(C) of the Act (42 U.S.C. 3025(a)(2)(C)), with respect to the development of the intrastate funding formula, means the most current reliable data or population estimates available from the U.S. Decennial Census, American Community Survey, or other VerDate Sep<11>2014 20:33 Feb 13, 2024 Jkt 262001 high-quality, representative data available to the State agency. Constructing, as used in this part, means building a new facility, including the costs of land acquisition and architectural and engineering fees, or making modifications to or in connection with an existing facility which are in excess of double the square footage of the original facility and all physical improvements. Conflicts of interest, as used in this part, means: (1) One or more conflicts between the private interests and the official responsibilities of a person in a position of trust; (2) 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; and (3) Other conflicts of interest identified in guidance issued by the Assistant Secretary for Aging and/or by State agency policies. Cost sharing, as used in section 315(a) of the Act (42 U.S.C. 3030c–2(a)), means requesting payment using a sliding scale, based only on an individual’s income and the cost of delivering the service, in a manner consistent with the exceptions, prohibitions, and other conditions laid out in the Act. Department, means the U.S. Department of Health and Human Services. Direct services, as used in this part, means any activity performed to provide services directly to an older person or family caregiver, groups of older persons or family caregivers, or to the general public by the staff or volunteers of a service provider, an area agency on aging, or a State agency whether provided in-person or virtually. Direct services exclude State or area plan administration and program development and coordination activities. Domestically produced foods, as used in this part, means Agricultural foods, beverages and other food ingredients which are a product of the United States, its Territories or possessions, the Commonwealth of Puerto Rico, or the Trust Territories of the Pacific Islands (hereinafter referred to as ‘‘the United States’’), except as may otherwise be required by law, and shall be considered to be such a product if it is grown, processed, and otherwise prepared for sale or distribution exclusively in the United States except with respect to minor ingredients. Ingredients from nondomestic sources will be allowed to be utilized as a United States product if such ingredients are not otherwise: (1) Produced in the United States; and PO 00000 Frm 00093 Fmt 4701 Sfmt 4700 11657 (2) Commercially available in the United States at fair and reasonable prices from domestic sources. Family caregiver, as used in this part, means an adult family member, or another individual, who is an informal provider of in-home and community care to an older individual; an adult family member, or another individual, who is an informal provider of in-home and community care to an individual of any age with Alzheimer’s disease or a related disorder with neurological and organic brain dysfunction; or an older relative caregiver. For purposes of this part, family caregiver does not include individuals whose primary relationship with the older adult is based on a financial or professional agreement. Fiscal year, as used in this part, means the Federal fiscal year. Governor, as used in this part, means the chief elected officer of each State and the mayor of the District of Columbia. Greatest economic need, as used in this part, means the need resulting from an income level at or below the Federal poverty level and as further defined by State and area plans based on local and individual factors, including geography and expenses. Greatest social need, as used in this part, means the need caused by noneconomic factors, which include: (1) Physical and mental disabilities; (2) Language barriers; (3) Cultural, social, or geographical isolation, including due to: (i) Racial or ethnic status; (ii) Native American identity; (iii) Religious affiliation; (iv) Sexual orientation, gender identity, or sex characteristics; (v) HIV status; (vi) Chronic conditions; (vii) Housing instability, food insecurity, lack of access to reliable and clean water supply, lack of transportation, or utility assistance needs; (viii) Interpersonal safety concerns; (ix) Rural location; or (x) Any other status that: (A) Restricts the ability of an individual to perform normal or routine daily tasks; or (B) Threatens the capacity of the individual to live independently; or (4) Other needs as further defined by State and area plans based on local and individual factors. Immediate family, as used in this part pertaining to conflicts of interest, means a member of the household or a relative with whom there is a close personal or significant financial relationship. In-home supportive services, as used in this part, references those supportive E:\FR\FM\14FER4.SGM 14FER4 ddrumheller on DSK120RN23PROD with RULES4 11658 Federal Register / Vol. 89, No. 31 / Wednesday, February 14, 2024 / Rules and Regulations services provided in the home as set forth in the Act, to include: (1) Homemaker, personal care, home care, home health, and other aides; (2) Visiting and telephone or virtual reassurance; (3) Chore maintenance; (4) Respite care for families, including adult day care; and (5) Minor modification of homes that is necessary to facilitate the independence and health of older individuals and that is not readily available under another program. Local sources, as used in the Act and local public sources, as used in section 309(b)(1) of the Act (42 U.S.C. 3029(b)(1)), means tax-levy money or any other non-Federal resource, such as State or local public funding, funds from fundraising activities, reserve funds, bequests, or cash or third-party in-kind contributions from non-client community members or organizations. Major disaster declaration, as used in this part and section 310 of the Act (42 U.S.C. 3030), means a Presidentially declared disaster under the Robert T. Stafford Relief and Emergency Assistance Act (42 U.S.C. 5121–5207). Means test, as used in the Act, means the use of the income, assets, or other resources of an older person, family caregiver, or the households thereof to deny or limit that person’s eligibility to receive services under this part. Multipurpose senior center, as used in the Act, means a community facility for the organization and provision of a broad spectrum of services, which shall include provision of health (including mental and behavioral health), social, nutritional, and educational services and the provision of facilities for recreational activities for older individuals, as practicable, including as provided via virtual facilities; as used in § 1321.85, facilitation of services in such a facility. Native American, as used in the Act, means a person who is a member of any Indian Tribe, band, nation, or other organized group or community of Indians (including any Alaska Native village or regional or village corporation as defined in or established pursuant to the Alaska Native Claims Settlement Act (43 U.S.C. 1601 et seq.) who: (1) Is recognized as eligible for the special programs and services provided by the United States to Indians because of their status as Indians; or (2) Is located on, or in proximity to, a Federal or State reservation or rancheria; or is a person who is a Native Hawaiian, who is any individual any of whose ancestors were natives of the area which consists of the Hawaiian Islands prior to 1778. VerDate Sep<11>2014 20:33 Feb 13, 2024 Jkt 262001 Nutrition Services Incentive Program, as used in the Act, means grant funding to State agencies, eligible Tribal organizations, and Native Hawaiian grantees to support congregate and home-delivered nutrition programs by providing an incentive to serve more meals. Official duties, as used in section 712 of the Act (42 U.S.C. 3058g) with respect to representatives of the Long-Term Care Ombudsman Program, means work pursuant to the Long-Term Care Ombudsman Program authorized by the Act, 45 CFR part 1324, subpart A, and/ or State law and carried out under the auspices and general direction of, or by direct delegation from, the State LongTerm Care Ombudsman. Older relative caregiver, as used in section 372(a)(4) of the Act (42 U.S.C. 3030s(a)(4)), means a caregiver who is age 55 or older and lives with, is the informal provider of in-home and community care to, and is the primary caregiver for, a child or an individual with a disability; (1) In the case of a caregiver for a child is: (i) The grandparent, step-grandparent, or other relative (other than the parent) by blood, marriage, or adoption, of the child; (ii) Is the primary caregiver of the child because the biological or adoptive parents are unable or unwilling to serve as the primary caregivers of the child; and (iii) Has a legal relationship to the child, such as legal custody, adoption, or guardianship, or is raising the child informally; and (2) In the case of a caregiver for an individual with a disability, is the parent, grandparent, step-grandparent, or other relative by blood, marriage, or adoption of the individual with a disability. Periodic, as used in this part to refer to the frequency of client assessment and data collection, means, at a minimum, once each fiscal year, and as used in section 307(a)(4) of the Act (42 U.S.C. 3027(a)(4)) to refer to the frequency of evaluations of, and public hearings on, activities and projects carried out under State and area plans, means, at a minimum once each State or area plan cycle. Planning and service area, as used in section 305 of the Act (42 U.S.C. 3025), means an area designated by a State agency under section 305(a)(1)(E) (42 U.S.C. 3025(a)(1)(E)), for the purposes of local planning and coordination and awarding of funds under Title III of the Act, including a single planning and service area. PO 00000 Frm 00094 Fmt 4701 Sfmt 4700 Private pay programs, as used in section 306(g) of the Act (42 U.S.C. 3026(g)), are a type of contract or commercial relationship and are programs, separate and apart from programs funded under the Act, for which the individual consumer agrees to pay to receive services under the programs. Program development and coordination activities, as used in this part, means those actions to plan, develop, provide training, and coordinate at a systemic level those programs and activities which primarily benefit and target older adult and family caregiver populations who have the greatest social needs and greatest economic needs, including development of contracts, commercial relationships, or private pay programs. Program income, means gross income earned by the non-Federal entity that is directly generated by a supported activity or earned as a result of the Federal award during the period of performance except as otherwise provided under Federal grantmaking authorities. Program income includes but is not limited to income from fees for services performed, the use or rental of real or personal property acquired under Federal awards, the sale of commodities or items fabricated under a Federal award, license fees and royalties on patents and copyrights, and principal and interest on loans made with Federal award funds. Interest earned on advances of Federal funds is not program income. Except as otherwise provided in Federal statutes, regulations, or the terms and conditions of the Federal award, program income does not include rebates, credits, discounts, and interest earned on any of them. See also 35 U.S.C. 200–212 (which applies to inventions made under Federal awards). Reservation, as used in section 305(b)(2) of the Act (42 U.S.C. 3025(b)(2)) with respect to the designation of planning and service areas, means any Federally or State recognized American Indian Tribe’s reservation, pueblo, or colony, including former reservations in Oklahoma, Alaska Native regions established pursuant to the Alaska Native Claims Settlement Act (43 U.S.C. 1601 et seq.), and Indian allotments. Service provider, means an entity that is awarded funds, including via a grant, subgrant, contract, or subcontract, to provide direct services under the State or area plan. Severe disability, as used to carry out the provisions of the Act, means a severe, chronic disability attributable to mental or physical impairment, or a E:\FR\FM\14FER4.SGM 14FER4 Federal Register / Vol. 89, No. 31 / Wednesday, February 14, 2024 / Rules and Regulations ddrumheller on DSK120RN23PROD with RULES4 combination of mental and physical impairments, that: (1) Is likely to continue indefinitely; and (2) Results in substantial functional limitation in three or more of the following major life activities: self-care, receptive and expressive language, learning, mobility, self-direction, capacity for independent living, economic self-sufficiency, cognitive functioning, and emotional adjustment. Single planning and service area State, means a State which was approved on or before October 1, 1980, as such and continues to operate as a single planning and service area. State, as used in this part, means one or more of the 50 States, the District of Columbia, and the Territories of Guam, Puerto Rico, the United States Virgin Islands, American Samoa, and the Commonwealth of the Northern Mariana Islands, unless otherwise specified. State agency, as used in this part, means the designated State unit on aging for each of the 50 States, the District of Columbia, and the Territories of Guam, Puerto Rico, the United States Virgin Islands, American Samoa, and the Commonwealth of the Northern Mariana Islands, unless otherwise specified. State plan administration, as used in this part, means funds used to carry out activities as set forth in section 307 of the Act (42 U.S.C. 3027) and other activities to fulfill the mission of the State agency as set forth in § 1321.5. Supplemental foods, as used in this part, means foods that assist with maintaining health, but do not alone constitute a meal. Supplemental foods include liquid nutrition supplements or enhancements to a meal, such as additional beverage or food items, and may be specified by State agency policies and procedures. Supplemental foods may be provided with a meal, or separately, to older adults who participate in either congregate or homedelivered meal services. Voluntary contributions, as used in section 315(b) of the Act (42 U.S.C. 3030c–2(b)), means donations of money or other personal resources given freely, without pressure or coercion, by individuals receiving services under the Act. Subpart B—State Agency Responsibilities § 1321.5 Mission of the State agency. (a) The Act intends that the State agency shall be a leader on all aging issues on behalf of all older individuals and family caregivers in the State. The State agency shall proactively carry out VerDate Sep<11>2014 20:33 Feb 13, 2024 Jkt 262001 a wide range of functions, including advocacy, planning, coordination, interagency collaboration, information sharing, training, monitoring, and evaluation. The State agency shall lead the development or enhancement of comprehensive and coordinated community-based systems in, or serving, communities throughout the State. These systems shall be designed to assist older individuals and family caregivers in leading independent, meaningful, and dignified lives in their own homes and communities. (b) In States with multiple planning and service areas, the State agency shall designate area agencies on aging to assist in carrying out the mission described above for the State agency at the sub-State level. The State agency shall designate as area agencies on aging only those non-State agencies having the capacity and making the commitment to fully carry out the mission described for area agencies in § 1321.55. (c) The State agency shall assure that the resources made available to area agencies on aging under the Act are used to carry out the mission described for area agencies in § 1321.55. § 1321.7 Organization and staffing of the State agency. (a) The State shall designate a sole State agency to develop and administer the State plan required under this part and part 1324 of this chapter and to serve as the effective and visible advocate for older adults within the State. (b) The State agency shall have an adequate number of qualified staff to fulfill the functions prescribed in this part. (c) The State agency shall establish, contract, or otherwise arrange with another agency or organization as permitted by section 307(a)(9)(A) of the Act (42 U.S.C. 3027(a)(9)(A)), an Office of the State Long-Term Care Ombudsman. Such Office must be headed by a full-time Ombudsman and consist of other staff as appropriate to fulfill responsibilities as set forth in part 1324, subpart A, of this chapter. (d) If a State statute establishes an Ombudsman program which will perform the functions of section 307(a)(9)(A) of the Act (42 U.S.C. 3027(a)(9)(A)), the State agency continues to be responsible for assuring that the requirements of this program under the Act and as set forth in part 1324, subpart A, of this chapter, are met, notwithstanding any additional requirements or funding related to State law. In such cases where State law may conflict with the Act, the Governor shall PO 00000 Frm 00095 Fmt 4701 Sfmt 4700 11659 confirm understanding of the State agency’s continuing obligations under the Act through an assurance in the State plan. (e) The State agency shall have as set forth in section 307(a)(13) (42 U.S.C. 3027(a)(13)) and section 731 of the Act (42 U.S.C. 3058j) and 45 CFR part 1324, subpart C, a Legal Assistance Developer, and such other personnel as appropriate to provide State leadership in developing legal assistance programs for older individuals throughout the State. § 1321.9 State agency policies and procedures. (a) The State agency on aging shall develop policies and procedures governing all aspects of programs operated as set forth in this part and part 1324 of this chapter. These policies and procedures shall be developed in consultation with area agencies on aging, program participants, and other appropriate parties in the State. Except for the Ombudsman program as set forth in 45 CFR part 1324, subpart A and where otherwise indicated, the State agency policies may allow for such policies and procedures to be developed at the area agency on aging level. The State agency is responsible for implementing, monitoring, and enforcing policies and procedures, where: (1) The policies and procedures developed by the State agency shall address how the State agency will monitor the programmatic and fiscal performance of all programs and activities initiated under this part for compliance with all requirements, and for quality and effectiveness. As set forth in sections 305(a)(2)(A) and 306(a) of the Act (42 U.S.C. 3025(a)(2)(A) and 3026(a)), and consistent with section 305(a)(1)(C) (42 U.S.C. 3025(a)(1)(C)), the State agency shall be responsible for monitoring the program and financial activities of subrecipients and subgrantees to ensure that grant awards are used for the authorized purposes and in compliance with Federal statutes, regulations, and the terms and conditions of the grant award, including: (i) Evaluating each subrecipient’s risk of noncompliance to ensure proper accountability and compliance with program requirements and achievement of performance goals; (ii) Reviewing subrecipient policies and procedures; and (iii) Ensuring that all subrecipients and subgrantees complete audits as required in 2 CFR part 200, subpart F and 45 CFR part 75, subpart F. E:\FR\FM\14FER4.SGM 14FER4 ddrumheller on DSK120RN23PROD with RULES4 11660 Federal Register / Vol. 89, No. 31 / Wednesday, February 14, 2024 / Rules and Regulations (2) The State agency may not delegate to another agency the authority to award or administer funds under this part. (3) The State Long-Term Care Ombudsman shall be responsible for monitoring the files, records, and other information maintained by the Ombudsman program, as set forth in part 1324, subpart A. Such monitoring may be conducted by a designee of the Ombudsman. Neither the Ombudsman nor a designee shall disclose identifying information of any complainant or longterm care facility resident to individuals outside of the Ombudsman program, except as otherwise specifically provided in § 1324.11(e)(3) of this chapter. (b) The State agency shall ensure policies and procedures are aligned with periodic data collection and reporting requirements, including ensuring service and unit definitions are consistent with definitions set forth in these regulations, policy guidance, and other information developed by the Assistant Secretary for Aging. (c) Policies and procedures developed and implemented by the State agency shall address: (1) Direct service provision for services as set forth in §§ 1321.85, 1321.87, 1321.89, 1321.9, and 1321.93, including: (i) Requirements for client eligibility, periodic assessment, and personcentered planning, where appropriate; (ii) A listing and definitions of services that may be provided in the State with funds received under the Act; (iii) Limitations on the frequency, amount, or type of service provided; (iv) Definition of those within the State in greatest social need and greatest economic need; (v) Specific actions the State agency will use or require the area agency to use to target services to meet the needs of those in greatest social need and greatest economic need; (vi) How area agencies on aging may request to provide direct services under provisions of § 1321.65(b)(7), where appropriate; (vii) Actions to be taken by area agencies and direct service providers to implement requirements as set forth in paragraphs (c)(2)(x) through (xi) of this section; and (viii) The grievance process for older individuals and family caregivers who are dissatisfied with or denied services under the Act. (2) Fiscal requirements including: (i) Intrastate funding formula (IFF). Distribution of Title III funds via the intrastate funding formula or funds distribution plan and of Nutrition Services Incentive Program funds as set VerDate Sep<11>2014 20:33 Feb 13, 2024 Jkt 262001 forth in § 1321.49 or § 1321.51 shall be maintained by the State agency where funds must be promptly disbursed. (ii) Non-Federal share (match). As set forth in sections 301(d)(1) (42 U.S.C. 3021(d)(1)), 304(c) (42 U.S.C. 3024(c)), 304(d)(1)(A) (42 U.S.C. 3024(d)(1)(A)), 304(d)(1)(D) (42 U.S.C. 3024(d)(1)(D)), 304(d)(2) (42 U.S.C. 3024(d)(2)), 309(b) (42 U.S.C. 3029(b)), 316(b)(5) (42 U.S.C. 3030c–3(b)(5)), and 373(h)(2) (42 U.S.C. 3030s–2(h)(2)) of the Act, the State agency shall maintain statewide match requirements, where: (A) The match may be made by State and/or local public sources except as set forth in paragraph (c)(2)(ii)(C) of this section. (B) Non-Federal shared costs or match funds and all contributions, including cash and third-party in-kind contributions must be accepted if the funds meet the specified criteria for match. A State agency may not require only cash as a match requirement. (C) State or local public resources used to fund a program which uses a means test shall not be used to meet the match. (D) Proceeds from fundraising activities may be used to meet the match as long as no Federal funds were used in the fundraising activity. Fundraising activities are unallowable costs without prior written approval, as set forth in 2 CFR 200.442. (E) A State agency may use State and local funds expended for a non-Title III funded program to meet the match requirement for Title III expenditures when the non-Title III funded program: (1) Is directly administered by the State or area agency; (2) Does not conflict with requirements of the Act; (3) Is used to match only the Title III program and not any other Federal program; and (4) Includes procedures to track and account expenditures used as match for a Title III program or service. (F) Match requirements for area agencies are determined by the State agency. (G) Match requirements for direct service providers are determined by the State and/or area agency. (H) A State or area agency may determine a match in excess of required amounts. (I) Other Federal funds may not be used to meet required match unless there is specific statutory authority. (J) The required statewide match for grants awarded under Title III of the Act is as follows: (1) Administration. Federal funding for State, Territory, and area plan administration may not account for PO 00000 Frm 00096 Fmt 4701 Sfmt 4700 more than 75 percent of the total funding expended and requires a 25 percent match. As set forth in 2 CFR 200.306(c), prior written approval is hereby granted for unrecovered indirect costs to be used as match. (2) Supportive services and nutrition services. (i) Federal funding for services funded under supportive services as set forth in § 1321.85, less the portion of funds used for the Ombudsman program, may not account for more than 85 percent of the total funding expended, and requires a 15 percent match; (ii) Federal funding for services funded under nutrition services as set forth in § 1321.87, less funds provided under the Nutrition Services Incentive Program, may not account for more than 85 percent of the total funding expended, and requires a 15 percent match; (iii) One-third (1⁄3) of the 15 percent match must be met from State resources, and the remaining two-thirds (2⁄3) match may be met by State or local resources; (iv) The match for supportive services and nutrition services may be pooled. (3) Family caregiver support services. The Federal funding for services funded under family caregiver support services as set forth in § 1321.91 may not account for more than 75 percent of the total dollars expended and requires a 25 percent match. (4) Services not requiring match. Services for which no match is required include: (i) Evidence-based disease prevention and health promotion services as set forth in § 1321.89; (ii) The Nutrition Services Incentive Program; and (iii) The portion of funds from supportive services used for the Ombudsman program. (iii) Transfers. Transfer of service allotments elected by the State agency which must meet the following requirements: (A) A State agency must provide notification of the transfer amounts elected pursuant to guidance as set forth by the Assistant Secretary for Aging; (B) A State agency shall not delegate to an area agency on aging or any other entity the authority to make a transfer; (C) A State agency may only elect to transfer between the Title III, part B Supportive Services and Senior Centers, part C–1 Congregate Nutrition Services, and part C–2 Home-Delivered Nutrition Services grant awards; (1) The State agency may elect to transfer up to 40 percent between the Title III, part C–1 and part C–2 grant awards, per section 308(b)(4)(A) of the Act (42 U.S.C. 3028(b)(4)(A)); E:\FR\FM\14FER4.SGM 14FER4 ddrumheller on DSK120RN23PROD with RULES4 Federal Register / Vol. 89, No. 31 / Wednesday, February 14, 2024 / Rules and Regulations (i) The State agency must request and receive approval of a waiver from the Assistant Secretary for Aging to exceed the 40 percent transfer limit. (ii) The State agency may request a waiver up to an additional 10 percent between the Title III part C–1 and part C–2 grant awards, per section 308(b)(4)(B) of the Act (42 U.S.C. 3028(b)(4)(B)). (2) The State agency may elect to transfer up to 30 percent between Title III, parts B and C, per section 308(b)(5)(A) of the Act (42 U.S.C. 3028(b)(5)(A)); and (i) The State agency must request and receive approval of a waiver from the Assistant Secretary for Aging to exceed the 30 percent limitation between parts B and C, per section 316(b)(4) of the Act (42 U.S.C. 3030c–3(b)(4)); (D) Percentages subject to transfer are calculated based on the total original Title III award allotted; (E) Transfer limitations apply to the State agency in aggregate; (F) State agencies, in consultation with area agencies, shall: (1) Ensure the process used by the State agencies in transferring funds under this section (including requirements relating to the authority and timing of such transfers) is simplified and clarified to reduce administrative barriers; and (2) With respect to transfers between parts C–1 and C–2, direct limited resources to the greatest nutrition service needs at the community level; and (G) State agencies do not have to apply equal limitations on transfers to each area agency on aging. (iv) State, Territory, and area plan administration. State and Territory plan administration maximum allocation requirements must align with the approved intrastate funding formula or funds allocation plan as set forth in § 1321.49 or § 1321.51, as applicable. In addition: (A) State and Territory plan administration maximum allocation amounts. State and Territory plan administration maximum allocation amounts may be taken from any part of the overall allotment to a State agency under Title III of the Act. Maximum allocation amounts are determined by the State agency’s status as set forth in this paragraph (c)(2)(iv)(A) and paragraph (c)(2)(iv)(B) of this section: (1) A State agency which serves a State with multiple planning and service areas may use the greater of $750,000, per section 308(b)(2)(A) of the Act (42 U.S.C. 3028(b)(2)(A)), or five percent of the total Title III Award. VerDate Sep<11>2014 20:33 Feb 13, 2024 Jkt 262001 (2) A State agency which serves a single planning and service area State and is not listed in (3) below may elect to be subject to paragraph (c)(2)(iv)(A)(1) of this section or to the area plan administration limit of ten percent of the overall allotment to a State agency under Title III, as specified in section 308(a)(3) (42 U.S.C. 3028(a)(3)) of the Act. (3) Guam, the United States Virgin Islands, American Samoa, and the Commonwealth of the Northern Mariana Islands shall have available the greater of $100,000 or five percent of the total final Title III Award, as set forth in section 308(b)(2)(B) (42 U.S.C. 3028(b)(2)(B)) of the Act. (B) Area plan administration maximum allocation amounts. Area plan administration maximum allocation amounts may be allocated to any part of the overall allotment to the State agency under Title III, with the exception of part D, for use by area agencies on aging for activities as set forth in sections 304(d)(1)(A) and 308 of the Act (42 U.S.C. 3024(d)(1)(A) and 3028) and in § 1321.57(b). Single planning and service area States may elect amounts for either State plan administration or area plan administration, as set forth in the Act and paragraph (c)(2)(iv)(A)(2) of this section. (1) The State agency will determine the maximum amount of funding available for area plan administration from the total Title III allocation after deducting the amount of funding allocated for State plan administration and calculating a maximum of ten percent of this amount; (2) The State agency may make no more than the amount calculated in paragraph (c)(2)(iv)(B)(1) of this section available to area agencies on aging for distribution in accordance with the intrastate funding formula as set forth in § 1321.49; and (3) Any amounts available to the State agency for State plan administration which the State agency determines are not needed for that purpose may be used to supplement the amount available for area plan administration (42 U.S.C. 3028(a)(2)). (v) Minimum adequate proportion. The State agency will meet expectations for the minimum adequate proportion of funds expended by each area agency on aging and State agency to provide the categories of services of access services, in-home supportive services, and legal assistance, as identified in the approved State plan as set forth in § 1321.27(i). (vi) Maintenance of effort. The State agency will meet expectations regarding maintenance of effort, where: PO 00000 Frm 00097 Fmt 4701 Sfmt 4700 11661 (A) The State agency must expend for both services and administration at least the average amount of State funds reported and certified as expended under the State plan for these activities for the three previous fiscal years for Title III; (B) The amount certified must at least meet minimum match requirements from State resources; (C) Any amount of State resources included in the Title III maintenance of effort certification that exceeds the minimum amount mandated becomes part of the permanent maintenance of effort; and (D) Excess State match reported on the Federal financial report does not become part of the maintenance of effort unless the State agency certifies the excess. (vii) The State Long-Term Care Ombudsman Program. The State agency shall maintain State Long-Term Care Ombudsman Program funding requirements, where: (A) Minimum Certification of Expenditures. The State agency must expend annually under Title III and Title VII of the Act, respectively, for the Ombudsman program no less than the minimum amounts that are required to be expended by section 307(a)(9) of the Act (42 U.S.C. 3027(a)(9)); (B) Expenditure Information. The State agency must provide the Ombudsman with verifiable expenditure information for the annual certification of minimum expenditures and for completion of annual reports; and (C) Fiscal management and determination of resources. Fiscal management and determination of resources appropriated or otherwise available for the operation of the Office are in compliance as set forth at § 1324.13(f) of this chapter. (viii) Rural minimum expenditures. The State agency shall maintain minimum expenditures for services for older individuals residing in rural areas, where: (A) The State agency shall establish a process and control for determining the definition of ‘‘rural areas’’ within their State; (B) For each fiscal year, the State agency must spend on services for older individuals residing in rural areas the minimum annual amount that is not less than the amount expended for such services, as required by the Act; and (C) The State agency must project the cost of providing such services for each fiscal year (including the cost of providing access to such services) and must specify a plan for meeting the E:\FR\FM\14FER4.SGM 14FER4 ddrumheller on DSK120RN23PROD with RULES4 11662 Federal Register / Vol. 89, No. 31 / Wednesday, February 14, 2024 / Rules and Regulations needs for such services for each fiscal year. (ix) Reallotment. The State agency shall maintain requirements for reallotment of funds, where: (A) The State agency must annually review and notify the Assistant Secretary for Aging prior to the end of the fiscal year in which grant funds were awarded if there is funding that will not be expended within the grant period for Title III or VII that the State agency will release to the Assistant Secretary for Aging. (B) The State agency must annually review and notify the Assistant Secretary for Aging of the amount of any released Title III or VII funding from other State agencies that the State agency requests to receive and expend within the grant period from the Assistant Secretary for Aging. (C) The State agency must use its intrastate funding formula or funds distribution plan, as set forth in § 1321.49 or § 1321.51, to distribute any Title III funds that the Assistant Secretary for Aging reallots pursuant to the State agency’s notification under paragraph (c)(2)(ix)(B) of this section. (x) Voluntary contributions. Voluntary contributions shall be allowed and may be solicited for all services for which funds are received under this Act, consistent with section 315(b) (42 U.S.C. 3030c–2(b)). Policies and procedures related to voluntary contributions shall address these requirements: (A) Suggested contribution levels. The suggested contribution levels shall be based on the actual cost of services; (B) Individuals encouraged to contribute. Voluntary contributions shall be encouraged for individuals whose self-declared income is at or above 185 percent of the Federal poverty level. Assets, savings, or other property owned by an older individual or family caregiver may not be considered when seeking voluntary contributions from any older individual or family caregiver; (C) Solicitation. The method of solicitation must be noncoercive, and the solicitation: (1) Must meet all the requirements of this provision; and (2) Be conducted in such a manner so as not to cause a service recipient to feel intimidated, or otherwise feel pressured into making a contribution. (D) Provisions to all service recipients. All recipients of services shall be provided: (1) An opportunity to voluntarily contribute to the cost of the service; (2) Clear information, including information in alternative formats and in languages other than English in VerDate Sep<11>2014 20:33 Feb 13, 2024 Jkt 262001 compliance with Federal civil rights laws, explaining there is no obligation to contribute, and the contribution is voluntary; (3) Protection of privacy and confidentiality of each recipient with respect to the recipient’s income and contribution or lack of contribution. (E) Prohibition on means testing. Means testing, as defined in § 1321.3, is prohibited; (F) Prohibition on denial of services. Services shall not be denied because the older individual or family caregiver will not or cannot make a voluntary contribution; (G) Procedures to be established. Appropriate procedures to safeguard and account for all contributions are established; and (H) Collection of program income. Amounts collected are considered program income and are subject to the requirements in 2 CFR 200.307 and in § 1321.9(c)(2)(xii). (xi) Cost sharing. A State agency is permitted under section 315(a) of the Act (42 U.S.C. 3030c–2(a)), to implement cost sharing for services funded by the Act by recipients of the services, except as provided for in paragraph (c)(2)(xi)(D) of this section. If the State agency allows for cost sharing, the State agency shall address these requirements: (A) Policies and procedures. The State agency shall develop policies and procedures to be implemented statewide, including how an area agency on aging may request and receive a waiver of cost sharing policies, if the area agency on aging adequately demonstrates: (1) A significant proportion of persons receiving services under the Act have incomes below the threshold established in State agency policies and procedures; or (2) That cost sharing would be an unreasonable administrative or financial burden upon the area agency on aging. (B) Sliding contribution scale. The State agency shall establish a sliding contribution scale and a description of the criteria to participate in cost sharing to be implemented statewide, which shall: (1) Meet all the requirements of this provision; (2) Be based solely on individual income and the cost of delivering services; (3) Be communicated including in written materials and in alternative formats upon request; (4) Explain there is no obligation to contribute, and the contribution is voluntary; PO 00000 Frm 00098 Fmt 4701 Sfmt 4700 (5) Be conducted in such a manner so as not to cause a service recipient to feel intimidated, or otherwise feel pressured into making a contribution; (6) Protect the privacy and confidentiality of each recipient with respect to the recipient’s income and contribution or lack of contribution. (C) Individuals eligible to cost share. Individuals shall be determined eligible to cost share based solely on a confidential declaration of income and with no requirement for verification; (D) Prohibitions on cost sharing. Cost sharing is prohibited as follows: (1) By a low-income older individual if the income of such individual is at or below the Federal poverty level; (2) If State agency policies and procedures specify other low-income individuals within the State excluded from cost sharing; (3) For the following services: (i) Information and assistance, outreach, benefits counseling, or case management services; (ii) Ombudsman, elder abuse prevention, legal assistance, or other consumer protection services; (iii) Congregate and home-delivered meals; and (iv) Any services delivered through Tribal organizations. (E) Prohibition on means testing. Means testing, as defined in § 1321.3, is prohibited; (F) Prohibition on denial of services. Services shall not be denied because the older individual or family caregiver will not or cannot make a cost sharing contribution; (G) Procedures to be established. Appropriate procedures to safeguard and account for all cost sharing contributions are established; and (H) Collection of program income. All cost sharing contributions collected are considered program income and are subject to the requirements of 2 CFR 200.307, 45 CFR 75.307, and in § 1321.9(c)(2)(xii). (xii) Use of program income. Program income is subject to the requirements in 2 CFR 200.307 and 45 CFR 75.307 and as follows: (A) Voluntary contributions and cost sharing payments are considered program income; (B) Program income collected must be used to expand a service funded under the Title III grant award pursuant to which the income was originally collected; (C) The State agency must use the addition alternative as set forth in 2 CFR 200.307(e)(2) and 45 CFR 75.307(e)(2) when reporting program income, and prior approval of the addition alternative from the Assistant Secretary for Aging is not required; E:\FR\FM\14FER4.SGM 14FER4 ddrumheller on DSK120RN23PROD with RULES4 Federal Register / Vol. 89, No. 31 / Wednesday, February 14, 2024 / Rules and Regulations (D) Program income must be expended or disbursed prior to requesting additional Federal funds; and (E) Program income may not be used to match grant awards funded by the Act without prior approval. (xiii) Private pay programs. The State agency shall maintain requirements for private pay programs, where: (A) State agencies, area agencies on aging, and service providers may provide private pay programs, subject to State and/or area agency policies and procedures; (B) The State agency requires area agencies and service providers under the Act that establish private pay programs to develop policies and procedures to: (1) Promote equity, fairness, inclusion, and adherence to the requirements of the Act, including: (i) Meeting conflict of interest requirements; (ii) Meeting financial accountability requirements; (iii) Prohibiting use of funds for direct services under Title III to support provision of service via private pay programs, except as a part of routine information and assistance or case management referrals; and (2) Require that persons who receive information about private pay programs and who are eligible for services provided with Title III funds in the planning and service area be made aware of Title III-funded and any similar voluntary contributions-based service options, even if there is a waiting list for those services, on an initial and periodic basis to allow individuals to determine whether they will select voluntary contributions-based services or private pay programs. (xiv) Contracts and commercial relationships. The State agency shall maintain requirements for contracts and commercial relationships, where: (A) State agencies, area agencies on aging, and service providers may enter into contracts and commercial relationships, subject to State and/or area agency policies and procedures and guidance as set forth by the Assistant Secretary for Aging, including through: (1) Contracts with health care payers; (2) Private pay programs; or (3) Other arrangements with entities or individuals that increase the availability of home-and communitybased services and supports. (B) The State agency shall require area agencies and service providers under the Act that establish contracts and commercial relationships to develop policies and procedures to: (1) Promote fairness, inclusion, and adherence to the requirements of the Act, including: VerDate Sep<11>2014 20:33 Feb 13, 2024 Jkt 262001 (i) Meeting conflict of interest requirements; and (ii) Meeting financial accountability requirements. (2) With the approval of the State and/ or area agency, allow use of funds for direct services under Title III to support provision of service via contracts and commercial relationships when: (i) All requirements for direct services provision are maintained, as set forth in this part and the Act, or (ii) In compliance with the requirements of the Act, as set forth in section 212 (42 U.S.C. 3020c), and all other applicable Federal requirements. (C) The State agency shall, through the area plan or other process, develop policies and procedures for area agencies on aging and service providers to receive approval to establish contracts and commercial relationships and participate in activities related to contracts and commercial relationships. (xv) Buildings, alterations or renovations, maintenance, and equipment. Buildings and equipment, where costs incurred for altering or renovating, utilities, insurance, security, necessary maintenance, janitorial services, repair, and upkeep (including Federal property unless otherwise provided for) to keep buildings and equipment in an efficient operating condition, including acquisition and replacement of equipment, may be an allowable use of funds, and the following apply: (A) Costs are only allowable to the extent not payable by third parties through rental or other agreements; (B) Costs must be allocated proportionally to the benefiting grant program; (C) Construction and acquisition activities are only allowable for multipurpose senior centers. In addition to complying with the requirements of the Act, as set forth in section 312 (42 U.S.C. 3030b), as well as with all other applicable Federal laws, the grantee or subrecipient as applicable must file a Notice of Federal Interest in the appropriate official records of the jurisdiction where the property is located at the time of acquisition or prior to commencement of construction, as applicable. The Notice of Federal Interest must indicate that the acquisition or construction, as applicable, has been funded with an award under Title III of the Act, that the requirements set forth in section 312 of the Act (42 U.S.C. 3030b) apply to the property, and that inquiries regarding the Federal Government’s interest in the property should be directed in writing to the Assistant Secretary for Aging; PO 00000 Frm 00099 Fmt 4701 Sfmt 4700 11663 (D) Altering and renovating activities are allowable for facilities providing direct services with funds provided as set forth in §§ 1321.85, 1321.87, 1321.89, and 1321.91 subject to Federal grant requirements under 2 CFR part 200 and 45 CFR part 75; (E) Altering and renovating activities are allowable for facilities used to conduct area plan administration activities with funds provided as set forth in paragraph (c)(2)(iv)(B) of this section, subject to Federal grant requirements under 2 CFR part 200 and 45 CFR part 75; and (F) Prior approval by the Assistant Secretary for Aging does not apply. (xvi) Supplement, not supplant. Funds awarded under the Act for services provided under sections 306(a)(9)(B) (42 U.S.C. 3026(a)(9)(B)), 315(b)(4)(E) (42 U.S.C. 3030c– 2(b)(4)(E)), 321(d) (42 U.S.C. 3030d(d)), 374 (42 U.S.C. 3030s–2), and 705(a)(4) (42 U.S.C. 3058d(a)(4)), must be used to supplement, not supplant existing Federal, State, and local funds expended to support those activities. (xvii) Monitoring of State plan assurances. Monitoring for compliance for assurances identified in the approved State plan as set forth in § 1321.27. (xviii) Advance funding. If the State agency permits the advance of funding to meet immediate cash needs of area agencies on aging and service providers, the State agency shall have policies and procedures which comply with all applicable Federal requirements, including timeframes and amount limitations that may apply. (xix) Fixed amount subawards. Fixed amount subawards up to the simplified acquisition threshold are allowed. (3) The State plan process, including compliance with requirements as set forth in §§ 1321.27 and 1321.29. (4) In States with multiple planning and service areas, the area plan process, including compliance with requirements as set forth in § 1321.65. § 1321.11 Advocacy responsibilities. (a) The State agency shall: (1) Review, monitor, evaluate, and comment on Federal, State, and local plans, budgets, regulations, programs, laws, levies, hearings, policies, and actions which affect or may affect older individuals or family caregivers, and recommend any changes in these which the State agency considers to be aligned with the interests identified in the Act; (2) Provide technical assistance and training to agencies, organizations, associations, or individuals representing older individuals and family caregivers; and E:\FR\FM\14FER4.SGM 14FER4 11664 Federal Register / Vol. 89, No. 31 / Wednesday, February 14, 2024 / Rules and Regulations (3) Review and comment on applications to State and Federal agencies for assistance relating to meeting the needs of older individuals and family caregivers. (b) No requirement in this section shall be deemed to supersede a prohibition contained in a Federal appropriation on the use of Federal funds to lobby. ddrumheller on DSK120RN23PROD with RULES4 § 1321.13 Designation of and designation changes to planning and service areas. (a) The State agency is responsible for designating distinct planning and service areas within the State. (b) No State agency may designate the entire State as a single planning and service area, except for States designated as such on or before October 1, 1980. (c) State agencies must have policies and procedures regarding designation of and changes to planning and service areas in accordance with the Act. Such policies and procedures should provide due process to affected parties, accountability, and transparency. Such policies and procedures must address the following: (1) The application process to change a planning and service area, if initiated outside of the State agency; (2) How notice to interested parties will be provided; (3) How need for the action will be documented; (4) Provisions for conducting a public hearing; (5) Provisions for involving area agencies on aging, service providers, and older individuals in the action or proceeding, such as offering other opportunities for feedback from interested parties; (6) The appeals process for affected parties; and (7) Timeframes that apply to each of the items under this paragraph (c). (d) State agencies that seek to change one or more planning and service area designations must consider the following: (1) The geographical distribution of older individuals in the State; (2) The incidence of the need for services under the Act; (3) The distribution of older individuals who have greatest economic need and greatest social need (with particular attention to low-income older individuals, including low-income minority older individuals, older individuals with limited English proficiency, and older individuals residing in rural areas) residing in such areas; (4) The distribution of older individuals who are Native Americans residing in such areas; VerDate Sep<11>2014 20:33 Feb 13, 2024 Jkt 262001 (5) The distribution of resources available to provide such services under the Act; (6) The boundaries of existing areas within the State which were drawn for the planning or administration of services under the Act; (7) The location of units of general purpose local government, as defined in section 302(4) of the Act (2 U.S.C. 3022(4)), within the State; and (8) Any other relevant factors. (e) When the State agency issues a decision to change planning and service areas, it shall provide an explanation of its consideration of the factors in paragraph (d) of this section. Such explanations must be included in the State plan amendment submitted as set forth in § 1321.31(b) or State plan submitted as set forth in § 1321.33. § 1321.15 area. Interstate planning and service (a) An interstate planning and service area is an agreement between the State agencies that have responsibility for administering the programs within the interstate area, in which the agreement increases the allotment of the State agency or agencies with lead responsibility and decreases the allotment of the State agency or agencies without the lead responsibility. The Governor of any State in which a planning and service area crosses State boundaries, or in which an interstate Indian reservation is located, may apply to the Assistant Secretary for Aging to request redesignation as an interstate planning and service area comprising the entire metropolitan area or Indian reservation. If the Assistant Secretary for Aging approves such an application, the Assistant Secretary for Aging shall adjust the State agency allotments of the areas within the planning and service area in which the interstate planning and service area is established to reflect the number of older individuals within the area who will be served by an interstate planning and service area not within the State. (b) Before requesting permission of the Assistant Secretary for Aging to designate an interstate planning and service area, the Governor of each State shall execute a written agreement that specifies the State agency proposed to have lead responsibility for administering the programs within the interstate planning and service area and lists the conditions, agreed upon by each State agency, governing the administration of the interstate planning and service area. (c) The lead State agency shall request permission of the Assistant Secretary for Aging to designate an interstate PO 00000 Frm 00100 Fmt 4701 Sfmt 4700 planning and service area by submitting the request, together with a copy of the agreement as part of its State plan or as an amendment to its State plan. (d) Prior to the Assistant Secretary for Aging’s approval for State agencies to designate an interstate planning and service area, the Assistant Secretary for Aging shall determine that all applicable requirements and procedures in §§ 1321.27 and 1321.29 are met. (e) If the request is approved, the Assistant Secretary for Aging, based on the agreement between the State agencies, will increase the allocation(s) of the State agency or agencies with lead responsibility for administering the programs within the interstate area and will reduce the allocation(s) of the State agency or agencies without lead responsibility by one of these methods: (1) Reallocation of funds in proportion to the number of individuals age 60 and over for funding provided under Title III, parts B, C, and D and in proportion to the number of individuals age 70 and over for funding provided under Title III, part E for that portion of the interstate planning and service area located in the State without lead responsibility; or (2) Reallocation of funds based on the intrastate funding formula of the State agency or agencies without lead responsibility. (f) Each State agency that is a party to an interstate planning and service area agreement shall review and confirm their agreement as a part of their State plan on aging as set forth in § 1321.27. § 1321.17 Appeal to the Departmental Appeals Board on planning and service area designation. (a) This section sets forth the procedures for providing hearings to applicants for designation as a planning and service area under § 1321.13, whose application is denied by the State agency or § 1321.15, whose application is denied by the Assistant Secretary for Aging. (b) Any applicant for designation as a planning and service area whose application is denied, and who has been provided a hearing and a written decision by the State agency, may appeal the denial to the Departmental Appeals Board (DAB) in writing following receipt of the State agency’s written decision, in accordance with the procedures set forth in 45 CFR part 16. The applicant must, at the time of filing an appeal with the DAB, mail a copy of the appeal to the State agency, if appealing subject to § 1321.13, or the Assistant Secretary for Aging, if appealing subject to § 1321.15, and include a certificate of service with its E:\FR\FM\14FER4.SGM 14FER4 Federal Register / Vol. 89, No. 31 / Wednesday, February 14, 2024 / Rules and Regulations initial filing. The DAB may refer an appeal to its Alternative Dispute Resolution Division for mediation prior to making a decision. ddrumheller on DSK120RN23PROD with RULES4 § 1321.19 Designation of and designation changes to area agencies. (a) The State agency is responsible for designating an area agency on aging to serve each planning and service area. Only one area agency on aging shall be designated to serve each planning and service area. An area agency on aging may serve more than one planning and service area. An area agency that serves more than one planning and service area must maintain separate funding, planning, and advocacy responsibilities for each planning and service area. State agencies shall have policies and procedures regarding designation of area agencies on aging and changes to an agency’s designation as an area agency on aging in accordance with the Act. Such policies and procedures should provide due process to affected parties, accountability, and transparency and must address the following: (1) Provisions for designating an area agency on aging, including: (i) The application process; (ii) How notice to interested parties will be provided; (iii) How views offered by the unit(s) of general purpose local government in such area will be obtained and considered; (iv) How the State agency will provide the right of first refusal to a unit of general purpose local government if: (A) Such unit demonstrates ability to meet the requirements as set forth by the State agency, in accordance with the Act; and (B) The boundaries of such a unit and the boundaries of the area are reasonably contiguous. (v) How the State agency shall then give preference to an established office on aging if the unit of general purpose local government chooses not to exercise the right of first refusal; (vi) How the State agency will assume area agency on aging responsibilities in the event there are no successful applicants in the State agency’s application process; and (vii) The appeals process for affected parties. (2) Provisions for an area agency on aging that voluntarily relinquishes their area agency on aging designation, including that the State agency’s written acceptance of the voluntary relinquishment of area agency on aging designation will be considered as the State agency’s withdrawal of area agency on aging designation, and requirements under § 1321.21(b) will apply; VerDate Sep<11>2014 20:33 Feb 13, 2024 Jkt 262001 (3) Provisions for when the State agency takes action to withdraw an area agency on aging’s designation, in accordance with § 1321.21; (4) Provisions for when the State agency administers area agency on aging programs as provided for in section 306(f) (42 U.S.C. 3026(f)), where the Assistant Secretary for Aging may extend the 90-day period if the State agency requests an extension and demonstrates to the satisfaction of the Assistant Secretary for Aging a need for the extension; and (5) If a State agency previously designated the entire State as a single planning and service area, provisions for when the State agency designates one or more additional planning and service areas. (b) For any of the actions listed in paragraph (a) of this section, the State agency must submit a State plan amendment as set forth in § 1321.31(b) or State plan as set forth in § 1321.33; (c) An area agency may be any of the following types of agencies: (1) An established office on aging which is operating within a planning and service area; (2) Any office or agency of a unit of general purpose local government, which is designated to function for the purpose of serving as an area agency on aging by the chief elected official of such unit; (3) Any office or agency designated by the appropriate chief elected officials of any combination of units of general purpose local government to act on behalf of such combination for such purpose; or (4) Any non-State, local public, or nonprofit private agency in a planning and service area, or any separate organizational unit within such agency, which is under the supervision or direction for this purpose of the designated State agency, and which demonstrates the ability and willingness to engage in the planning or provision of a broad range of services under the Act within such planning and service area. (d) A State agency may not designate any regional or local office of the State as an area agency. 11665 (3) There is substantial failure in the provisions or administration of an approved area plan to comply with any provision of the Act, regulations and other guidance as set forth by the Assistant Secretary for Aging, terms and conditions of Federal grant awards under the Act, or policies and procedures established and published by the State agency on aging; (4) Activities of the area agency are inconsistent with the statutory mission prescribed in the Act; (5) The State agency changes one or more planning and service area designations; or (6) The area agency voluntarily requests the State agency withdraw its designation. (b) If a State agency withdraws an area agency’s designation under this section it shall: (1) Provide a plan for the continuity of area agency functions and services in the affected planning and service area; (2) Submit a State plan amendment as set forth in § 1321.31(b) or State plan as set forth in § 1321.33; and (3) Designate a new area agency in the planning and service area in a timely manner. (c) If necessary to ensure continuity of services in a planning and service area, the State agency may, for a period of up to 180 days after its final decision to withdraw designation of an area agency: (1) Perform the responsibilities of the area agency; or (2) Assign the responsibilities of the area agency to another agency in the planning and service area. (d) The Assistant Secretary for Aging may extend the 180-day period if a State agency: (1) Notifies the Assistant Secretary for Aging in writing of its action under this section; (2) Requests an extension; and (3) Demonstrates to the satisfaction of the Assistant Secretary for Aging a need for the extension. Need for the extension may include the State agency’s reasonable but unsuccessful attempts to procure an applicant to serve as the area agency. § 1321.21 Withdrawal of area agency designation. § 1321.23 Appeal to the Departmental Appeals Board on area agency on aging withdrawal of designation. (a) In carrying out section 305 of the Act (42 U.S.C. 3025), the State agency shall withdraw the area agency designation whenever it, after reasonable notice and opportunity for a hearing, finds that: (1) An area agency does not meet the requirements of this part; (2) An area plan or plan amendment is not approved; (a) This section sets forth hearing procedures afforded to affected parties if the State agency initiates an action or proceeding to withdraw designation of an area agency on aging. (b) Any area agency on aging that has appealed a State agency’s decision to withdraw area agency on aging designation, and that has been provided a hearing and a written decision, may PO 00000 Frm 00101 Fmt 4701 Sfmt 4700 E:\FR\FM\14FER4.SGM 14FER4 11666 Federal Register / Vol. 89, No. 31 / Wednesday, February 14, 2024 / Rules and Regulations appeal the decision to the Departmental Appeals Board in writing following receipt of the State agency’s written decision, in accordance with the procedures set forth in 45 CFR part 16. The applicant must, at the time of filing an appeal with the DAB, mail a copy of the appeal to the State agency and include a certificate of service with its initial filing. The DAB may refer an appeal to its Alternative Dispute Resolution Division for mediation prior to making a decision. § 1321.25 Duration, format, and effective date of the State plan. (a) A State agency will follow the guidance issued by the Assistant Secretary for Aging regarding duration and formatting of the State plan. Unless otherwise indicated, a State agency may determine the format, how to collect information for the plan, and whether the plan will remain in effect for two, three, or four years. (b) An approved State plan or amendment identified in § 1321.31(a) becomes effective on the date designated by the Assistant Secretary for Aging. (c) A State agency may not make expenditures under a new plan or amendment requiring approval, as identified in § 1321.27 or § 1321.31(a), until it is approved. ddrumheller on DSK120RN23PROD with RULES4 § 1321.27 Content of State plan. To receive a grant under this part, a State agency shall have an approved State plan as prescribed in section 307 of the Act (42 U.S.C. 3027). In addition to meeting the requirements of section 307, a State plan shall include: (a) Identification of the sole State agency that the State has designated to develop and administer the plan. (b) Statewide program objectives to implement the requirements under Title III and Title VII of the Act and any objectives established by the Assistant Secretary for Aging. (c) Evidence that the State plan is informed by and based on area plans, except for single planning and service area States. (d) A description of how greatest economic need and greatest social need are determined and addressed by specifying: (1) How the State agency defines greatest economic need and greatest social need, which shall include the populations as set forth in the § 1321.3 definitions of greatest economic need and greatest social need; and (2) The methods the State agency will use to target services to the populations identified in paragraph (d)(1) of this section, including how funds under the VerDate Sep<11>2014 20:33 Feb 13, 2024 Jkt 262001 Act may be distributed to serve prioritized populations in accordance with requirements as set forth in § 1321.49 or § 1321.51, as appropriate. (e) An intrastate funding formula or funds distribution plan indicating the proposed use of all Title III funds administered by a State agency, and the distribution of Title III funds to each planning and service area, in accordance with § 1321.49 or § 1321.51, as appropriate. (f) Identification of the geographic boundaries of each planning and service area and of area agencies on aging designated for each planning and service area, if applicable. (g) Demonstration that the determination of greatest economic need and greatest social need specific to Native American persons is identified pursuant to communication among the State agency and Tribes, Tribal organizations, and Native communities, and that the services provided under this part will be coordinated, where applicable, with the services provided under Title VI of the Act and that the State agency shall require area agencies to provide outreach where there are older Native Americans in any planning and service area, including those living outside of reservations and other Tribal lands. (h) Certification that any program development and coordination activities shall meet the following requirements: (1) The State agency shall not fund program development and coordination activities as a cost of supportive services under area plans until it has first spent 10 percent of the total of its combined allotments under Title III on the administration of area plans; (2) Program development and coordination activities must only be expended as a cost of State plan administration, area plan administration, and/or Title III, part B supportive services; (3) State agencies and area agencies on aging shall, consistent with the area plan and budgeting cycles, submit the details of proposals to pay for program development and coordination as a cost of Title III, part B supportive services to the general public for review and comment; and (4) Expenditure by the State agency and area agency on program development and coordination activities are intended to have a direct and positive impact on the enhancement of services for older individuals and family caregivers in the planning and service area. (i) Specification of the minimum proportion of funds that will be expended by each area agency on aging PO 00000 Frm 00102 Fmt 4701 Sfmt 4700 and the State agency to provide each of the following categories of services: (1) Access to services; (2) In-home supportive services; and (3) Legal assistance, as set forth in § 1321.93. (j) If the State agency allows for Title III, part C–1 funds to be used as set forth in § 1321.87(a)(1)(i): (1) Evidence, using participation projections based on existing data, that provision of such meals will enhance and not diminish the congregate meals program, and a commitment to monitor the impact on congregate meals program participation; (2) Description of how provision of such meals will be targeted to reach those populations identified as in greatest economic need and greatest social need; (3) Description of the eligibility criteria for service provision; (4) Evidence of consultation with area agencies on aging, nutrition and other direct services providers, other interested parties, and the general public regarding the provision of such meals; and (5) Description of how provision of such meals will be coordinated with area agencies on aging, nutrition and other direct services providers, and other interested parties. (k) How the State agency will use funds for prevention of elder abuse, neglect, and exploitation as set forth in 45 CFR part 1324, subpart B. (l) How the State agency will meet responsibilities for the Legal Assistance Developer, as set forth in 45 CFR part 1324, subpart C. (m) Description of how the State agency will conduct monitoring that the assurances to which they attest are being met. § 1321.29 Public participation. The State agency shall: (a) Have mechanisms and varied methods to obtain the views of older individuals, family caregivers, service providers, and the public on a periodic basis, with a focus on those in greatest economic need and greatest social need; (b) Consider those views in developing and administering the State plan and policies and procedures regarding services provided under the plan; (c) Establish and comply with a reasonable minimum time period (at least 30 calendar days) for public review and comment on new State plans as set forth in § 1321.27 and State plan amendments requiring approval of the Assistant Secretary for Aging as set forth in § 1321.31(a). State agencies may request a waiver of the minimum time E:\FR\FM\14FER4.SGM 14FER4 Federal Register / Vol. 89, No. 31 / Wednesday, February 14, 2024 / Rules and Regulations period from the Assistant Secretary for Aging during an emergency or when a time sensitive action is otherwise necessary; (d) Ensure the documents noted in paragraph (c) of this section and final State plans and amendments are available to the public for review, as well as available in alternative formats and other languages if requested. ddrumheller on DSK120RN23PROD with RULES4 § 1321.31 Amendments to the State plan. (a) Subject to prior approval by the Assistant Secretary for Aging, a State agency shall amend the State plan whenever necessary to reflect: (1) New or revised statutes or regulations as determined by the Assistant Secretary for Aging; (2) An addition, deletion, or change to a State agency’s goal, assurance, or information requirement statement; (3) A change in the State agency’s intrastate funding formula or funds distribution plan for Title III funds, as set forth in § 1321.49 or § 1321.51; (4) A request to waive State plan requirements as set forth in section 316 of the Act (42 U.S.C. 3030c–3), or as required by guidance as set forth by the Assistant Secretary for Aging; or (5) Other changes as required by guidance as set forth by the Assistant Secretary for Aging. (b) A State agency shall amend the State plan and notify the Assistant Secretary for Aging of an amendment not requiring prior approval whenever necessary and within 30 days of the action(s) listed in paragraphs (b)(1) through (6) of this section: (1) A significant change in a State law, organization, policy, or State agency operation; (2) A change in the name or organizational placement of the State agency; (3) Distribution of State plan administration funds for demonstration projects; (4) A change in planning and service area designation, as set forth in § 1321.13; (5) A change in area agency on aging designation, as set forth in § 1321.19; or (6) Exercising of major disaster declaration flexibilities, as set forth in § 1321.101. (c) Information required by this section shall be submitted according to guidelines prescribed by the Assistant Secretary for Aging. § 1321.33 Submission of the State plan or plan amendment to the Assistant Secretary for Aging for approval. (a) Each State plan, or plan amendment which requires approval of the Assistant Secretary for Aging as set VerDate Sep<11>2014 20:33 Feb 13, 2024 Jkt 262001 forth at § 1321.31(a), shall be signed by the Governor, or the Governor’s designee, and submitted to the Assistant Secretary for Aging to be considered for approval at least 90 calendar days before the proposed effective date of the plan or plan amendment according to guidance as set forth by the Assistant Secretary for Aging, except in the case of a waiver provided by the Assistant Secretary for Aging. Each State plan amendment which does not require the prior approval of the Assistant Secretary for Aging shall be submitted as set forth at § 1321.31(b). (b) In advance of the submission to the Assistant Secretary for Aging to be considered for approval, the State agency shall submit a draft of the plan or amendment to the appropriate ACL Regional Office at least 120 calendar days before the proposed effective date of the plan or plan amendment, except in the case of a waiver request or as otherwise provided in guidance as set forth by the Assistant Secretary for Aging. The State agency shall work with the ACL Regional Office in reviewing the plan or plan amendment for compliance. § 1321.35 Notification of State plan or State plan amendment approval or disapproval for changes requiring Assistant Secretary for Aging approval. (a) The Assistant Secretary for Aging shall approve a State plan or State plan amendment by notifying the Governor or the Governor’s designee in writing. (b) When the Assistant Secretary for Aging proposes to disapprove a State plan or amendment, the Assistant Secretary for Aging shall notify the Governor in writing, giving the reasons for the proposed disapproval, and inform the State agency that it may request a hearing on the proposed disapproval following the procedures described in guidance issued by the Assistant Secretary for Aging. § 1321.37 Notification of State plan amendment receipt for changes not requiring Assistant Secretary for Aging approval. The State agency shall submit an amendment not requiring Assistant Secretary for Aging approval as set forth at § 1321.31(b) to the appropriate ACL Regional Office. The ACL Regional Office shall review the amendment to confirm the contents do not require approval of the Assistant Secretary for Aging and will acknowledge receipt of the State plan amendment by notifying the head of the State agency in writing. PO 00000 Frm 00103 Fmt 4701 Sfmt 4700 11667 § 1321.39 Appeal to the Departmental Appeals Board regarding State plan on aging. If the Assistant Secretary for Aging intends to disapprove a State plan or State plan amendment, the Assistant Secretary for Aging shall first afford the State agency notice and an opportunity for a hearing. Administrative reviews of State plan disapprovals, as provided for in sections 307(c) and 307(d) of the Act (42 U.S.C. 3027(c)–(d)) are performed by the Department Appeals Board 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 making a decision. § 1321.41 effective. When a disapproval decision is (a) The Assistant Secretary for Aging shall specify the effective date for reduction and withholding of the State agency’s grant upon a disapproval decision from the Departmental Appeals Board. This effective date may not be earlier than the date of the Departmental Appeals Board’s decision or later than the first day of the next calendar quarter. (b) A disapproval decision issued by the DAB represents the final determination of the Assistant Secretary for Aging and shall remain in effect unless reversed or stayed on judicial appeal, or until the agency or the plan is changed to meet all Federal requirements, except that the Assistant Secretary for Aging may modify or set aside the decision before the record of the proceedings under this subpart is filed in court. § 1321.43 How the State agency may appeal the Departmental Appeals Board’s decision. A State agency may appeal the final decision of the Departmental Appeals Board disapproving the State plan or plan amendment, finding of noncompliance, or finding that a State agency does not meet the requirements of this part to the U.S. Court of Appeals for the circuit in which the State is located. The State agency shall file the appeal within 30 days of the Departmental Appeals Board’s final decision. § 1321.45 How the Assistant Secretary for Aging may reallot the State agency’s withheld payments. The Assistant Secretary for Aging may disburse funds withheld from the State agency directly to any public or nonprofit private organization or agency, or political subdivision of the State that has the authority and capacity to carry out the functions of the State E:\FR\FM\14FER4.SGM 14FER4 11668 Federal Register / Vol. 89, No. 31 / Wednesday, February 14, 2024 / Rules and Regulations agency and submits a State plan which meets the requirements of this part, and which contains an agreement to meet the non-Federal share requirements. ddrumheller on DSK120RN23PROD with RULES4 § 1321.47 Conflicts of interest policies and procedures for State agencies. (a) State agencies must have policies and procedures regarding conflicts of interest, in accordance with the Act and all other applicable Federal requirements. These policies and procedures must safeguard against conflicts of interest on the part of the State agency, employees, and agents of the State who have responsibilities relating to Title III programs, including area agencies on aging, governing boards, advisory councils, staff, and volunteers. Conflicts of interest policies and procedures must establish mechanisms to identify, avoid, remove, and remedy conflicts of interest in a Title III program at organizational and individual levels, including: (1) Ensuring that State agency 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 due to an employee or agent’s financial interest in a Title III program; (3) Establishing robust monitoring and oversight, including periodic reviews, to identify conflicts of interest in a Title III program; (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 a conflict of interest; (5) Requiring that other agencies that operate a Title III program have policies in place to prohibit the employment or appointment of Title III program decision-makers, staff, or volunteers 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 conflict of interest, or who has an immediate family member with a conflict of interest, which cannot be adequately removed or remedied; (7) Ensuring that no organization which provides a Title III service is subject to a conflict of interest; (8) Prohibiting the officers, employees, or agents of the Title III program from soliciting or accepting gratuities, favors, or anything of monetary value from grantees, contractors, and/or subrecipients, except where policies and procedures allow for situations where the financial VerDate Sep<11>2014 20:33 Feb 13, 2024 Jkt 262001 interest is not substantial, or the gift is an unsolicited item of nominal value; (9) Establishing the actions the State agency will require a Title III program to take in order to remedy or remove such conflicts, as well as disciplinary actions to be applied for violations of such standards by officers, employees, or agents of the Title III program; and (10) Documenting conflict of interest mitigation strategies, as necessary and appropriate, when a State agency or Title III program operates an Adult Protective Services or guardianship program. (b) Individual conflicts include: (1) An employee, or immediate member of an employee’s family, maintaining ownership, employment, consultancy, or fiduciary interest in a Title III program organization or awardee when that employee or immediate family member is in a position to derive personal benefit from actions or decisions made in their official capacity; (2) One or more conflicts between the private interests and the official responsibilities of a person in a position of trust; (3) One or more conflicts between competing duties; and (4) Other conflicts of interest identified in guidance issued by the Assistant Secretary for Aging and/or by State agency policies. (c) Organizational conflicts include: (1) One or more conflicts between competing duties, programs, and/or services; and (2) Other conflicts of interest identified in guidance issued by the Assistant Secretary for Aging and/or by State agency policies. § 1321.49 Intrastate funding formula. (a) The State agency of a State with multiple planning and service areas, as part of its State plan, in accordance with guidelines issued by the Assistant Secretary for Aging, using the best available data, and after consultation with all area agencies on aging in the State, shall develop and publish for review and comment by older individuals, family caregivers, other appropriate agencies and organizations, and the general public, an intrastate funding formula for the allocation of funds specific to each planning and service area to area agencies on aging under Title III for supportive, nutrition, evidence-based disease prevention and health promotion, and family caregiver services prior to taking the steps as set forth in § 1321.33. The intrastate funding formula shall be made available for public review and comment for a reasonable minimum time period (at PO 00000 Frm 00104 Fmt 4701 Sfmt 4700 least 30 calendar days, unless a waiver is provided by the Assistant Secretary for Aging during an emergency or when a time sensitive action is otherwise necessary). The formula shall reflect the proportion among the planning and service areas of persons age 60 and over in greatest economic need and greatest social need with particular attention to low-income minority older individuals. A separate formula may be provided for the evidence-based disease prevention and health promotion allocation to target areas that are medically underserved and in which there are large numbers of older individuals who have the greatest economic need and greatest social need for such services. The State agency shall review, update, and submit for approval to the Assistant Secretary for Aging its formula as needed. (b) The publication for review and comment required by the preceding paragraph shall include: (1) A descriptive statement of the formula’s assumptions and goals, and the application of the definitions of greatest economic need and greatest social need, including addressing the populations identified pursuant to § 1321.27(d)(1), which includes the following components: (i) A statement that discloses if and how, prior to distribution under the intrastate funding formula to the area agencies on aging, funds are deducted from Title III funds for State plan administration, disaster set-aside funds as set forth in § 1321.99, and/or LongTerm Care Ombudsman Program allocations; (ii) A statement that describes if a separate formula will be used for evidence-based disease prevention and health promotion allocation; and (iii) A statement of how the State agency’s Nutrition Services Incentive Program award will be distributed. (2) A numerical mathematical statement of the actual funding formula to be used for all supportive, nutrition, evidence-based disease prevention and health promotion, and family caregiver allocations of Title III funds, including the separate numerical mathematical statement that may be provided for the evidence-based disease prevention and health promotion allocation, which includes: (i) A descriptive statement of each factor and the weight or percentage used for each factor; and (ii) Definitions of the terms used in the numerical mathematical statement. (3) A listing of the population, economic, and social data to be used for each planning and service area in the State; E:\FR\FM\14FER4.SGM 14FER4 ddrumheller on DSK120RN23PROD with RULES4 Federal Register / Vol. 89, No. 31 / Wednesday, February 14, 2024 / Rules and Regulations (4) A demonstration of the allocation of funds, pursuant to the funding formula, to each planning and service area in the State by part of Title III; and (5) The source of the best available data used to allocate funding through the intrastate funding formula, which may include: (i) The most current U.S. Decennial Census results; (ii) The most current and reliable American Community Survey results; and/or (iii) Other high-quality data available to the State agency. (c) In meeting the requirement in paragraph (a) of this section, the intrastate funding formula may not allow for: (1) The State agency to hold funds at the State level except as outlined in paragraph (b)(1)(i) of this section; (2) Exceeding the State plan and area plan administration caps set in the Act, as set forth at § 1321.9(c)(2)(iv); (3) Use of Title III, part D funds for area plan administration; (4) A State agency to directly provide Title III funds to any entity other than a designated area agency on aging, with the exception of State plan administration funds, Title III, part B Ombudsman program funds, and disaster set-aside funds as described in § 1321.99; or (5) Any other use in conflict with the Act. (d) In meeting the requirement in paragraph (b)(1)(iii) of this section, the following apply: (1) Cash must be promptly and equitably disbursed to recipients of grants or contracts for nutrition projects under the Act; (2) The statement of distribution of grant funds and procedures for determining any commodities election amount must be followed; (3) State agencies have the option to receive grant as cash and/or agricultural commodities; and (4) State agencies may consult with the area agencies on aging to determine the amount of the commodities election. (e) In meeting the requirements in this section, the following apply: (1) Title VII funds are not required to be subject to the intrastate funding formula; (2) Any funds allocated for the LongTerm Care Ombudsman Program under Title III, part B are not required to be subject to the intrastate funding formula; (3) The intrastate funding formula may provide for a separate allocation of funds received under Title III, part D for preventive health services. In the award of such funds to selected planning and VerDate Sep<11>2014 20:33 Feb 13, 2024 Jkt 262001 service areas, the State agency shall give priority to areas of the State: (i) Which are medically underserved; and (ii) In which there are large numbers of individuals who have the greatest economic need and greatest social need for such services, including the populations the State agency identifies pursuant to § 1321.27(d)(1). (4) The State agency may determine the amount of funds available for area plan administration prior to deducting Title III, part B Ombudsman program funds and disaster set-aside funds as described in § 1321.99; (5) After deducting any State plan administration funds, Title III, part B Ombudsman program funds, and disaster set-aside funds as described in § 1321.99, the State agency must allocate all other Title III funding to area agencies on aging designated to serve each planning and service area; (6) State agencies may reallocate funding within the State when an area agency on aging voluntarily or otherwise returns funds, subject to the State agency’s policies and procedures which must include the following: (i) If an area agency voluntarily returns funds, the area agency on aging must provide evidence that its governing board or chief elected official approves the return of funds; (ii) Funds must be made available to all area agencies on aging who request funds available for reallocation; (iii) The intrastate funding formula shall be proportionally adjusted based on area agencies on aging that request redistributed allocations; and (iv) Title III funds subject to reallocation may only be reallocated to area agencies on aging via the proportionally adjusted intrastate funding formula described in paragraph (a) of this section. (f) The State agency shall submit its proposed intrastate funding formula to the Assistant Secretary for Aging for prior approval as part of a State plan or State plan amendment as set forth in § 1321.33. § 1321.51 States. Single planning and service area (a) Unless otherwise specified, the State agency in single planning and service area States must meet the requirements in the Act and subpart C of this part, including maintaining an advisory council as set forth in § 1321.63. (b) As part of their State plan submission, single planning and service area States must provide a funds distribution plan which includes: (1) A descriptive statement as to how the State agency determines the PO 00000 Frm 00105 Fmt 4701 Sfmt 4700 11669 geographical distribution of the Title III and Nutrition Services Incentive Program funding; (2) How the State agency targets the funding to reach individuals with greatest economic need and greatest social need, with particular attention to low-income minority older individuals; (3) At the option of the State agency, a numerical/mathematical statement as a part of their funds distribution plan; and (4) Justification if the State agency determines it meets requirements to provide services directly where: (i) As set forth in section 307(a)(8)(A) of the Act (42 U.S.C. 3027(a)(8)(A)), no supportive services, except as set forth in paragraph (b)(4)(i)(B) of this section, nutrition services, disease prevention and health promotion, or family caregiver services will be directly provided by the State agency, unless, in the judgment of the State agency: (A) Provision of such services by the State agency is necessary to assure an adequate supply of such services; (B) Such services are directly related to such State agency’s administrative functions; or (C) Such services may be provided more economically, and with comparable quality, by such State agency. (ii) The State agency may directly provide case management, information and assistance services, and outreach. (iii) Approval of the State agency to provide direct services may only be granted for a maximum of the State plan period. For each time that approval is granted to a State agency to provide direct services, the State agency must demonstrate the State agency’s efforts to identify service providers prior to being granted a subsequent approval. (c) Single planning and service area States must adhere to use of the funds distribution plan for Title III and Nutrition Services Incentive Program funds within the State. If a single planning and service area State agency revises their Title III funds distribution plan, they may do so by: (1) Following their policies and procedures to publish the updated funds distribution plan for public review and comment for a reasonable minimum time period (30 calendar days or greater, unless a waiver is provided by the Assistant Secretary for Aging during an emergency or when a time sensitive action is otherwise necessary); and (2) Submitting the revised funds distribution plan for Assistant Secretary for Aging approval prior to implementing the changes as noted at § 1321.33. E:\FR\FM\14FER4.SGM 14FER4 11670 Federal Register / Vol. 89, No. 31 / Wednesday, February 14, 2024 / Rules and Regulations § 1321.53 State agency Title III and Title VI coordination responsibilities. (a) For States where there are Title VI programs, the State agency’s policies and procedures, developed in coordination with the relevant Title VI program director(s), as set forth in § 1322.13(a), must explain how the State’s aging network, including area agencies and service providers, will coordinate with Title VI programs to ensure compliance with sections 306(a)(11)(B) and 307(a)(21)(A) of the Act (42 U.S.C. 3026(a)(11)(B) and 3027(a)(21)(A)). State agencies may meet these requirements through a Tribal consultation policy that includes Title VI programs. (b) The policies and procedures set forth in paragraph (a) of this section must at a minimum address: (1) How the State’s aging network, including area agencies on aging and service providers, will provide outreach to Tribal elders and family caregivers regarding services for which they may be eligible under Title III and/or VII; (2) The communication opportunities the State agency will make available to Title VI programs, to include Title III and other funding opportunities, technical assistance on how to apply for Title III and other funding opportunities, meetings, email distribution lists, presentations, and public hearings; (3) The methods for collaboration on and sharing of program information and changes, including coordinating with area agencies and service providers where applicable; (4) How Title VI programs may refer individuals who are eligible for Title III and/or VII services; (5) How services will be provided in a culturally appropriate and traumainformed manner; and (6) Opportunities to serve on advisory councils, workgroups, and boards, including area agency advisory councils, as set forth in § 1321.63. Subpart C—Area Agency Responsibilities ddrumheller on DSK120RN23PROD with RULES4 § 1321.55 Mission of the area agency. (a) The Act intends that the area agency on aging shall be the lead on all aging issues on behalf of all older individuals and family caregivers in the planning and service area. The area agency shall proactively carry out, under the leadership and direction of the State agency, a wide range of functions including advocacy, planning, coordination, inter-agency collaboration, information sharing, monitoring, and evaluation. The area agency shall lead the development or VerDate Sep<11>2014 20:33 Feb 13, 2024 Jkt 262001 enhancement of comprehensive and coordinated community-based systems in, or serving, each community in the planning and service area. These systems shall be designed to assist older individuals and family caregivers in leading independent, meaningful, healthy, and dignified lives in their own homes and communities. (b) A comprehensive and coordinated community-based system described in of this section shall: (1) Have a point of contact where anyone may go or contact for help, information, and/or referral on any aging issue; (2) Provide information on a range of available public and private long-term care services and support options; (3) Assure that these options are readily accessible to all older individuals and family caregivers, no matter what their income; (4) Include a commitment of public, private, voluntary, and personal resources committed to supporting the system; (5) Involve collaborative decisionmaking among public, private, voluntary, faith-based, civic, and fraternal organizations, including trusted leaders of communities in greatest economic need and greatest social need, and older individuals and family caregivers in the community; (6) Offer special help or targeted resources for the most vulnerable older individuals, family caregivers, and those in danger of losing their independence; (7) Provide effective referral from agency to agency to assure that information and/or assistance is provided, no matter how or where contact is made in the community; (8) Evidence sufficient flexibility to respond with appropriate individualized assistance, especially for vulnerable older individuals or family caregivers; (9) Be tailored to the specific nature of the community and the needs of older adults in the community; and (10) Have a board of directors comprised of leaders in the community, including leaders from groups identified as in greatest economic need and greatest social need, who have the respect, capacity, and authority necessary to convene all interested persons, assess needs, design solutions, track overall success, stimulate change, and plan community responses for the present and for the future. (c) The resources made available to the area agency on aging under the Act shall be used consistent with the definition of area plan administration as set forth in § 1321.3 to finance those activities necessary to achieve elements PO 00000 Frm 00106 Fmt 4701 Sfmt 4700 of a community-based system set forth in paragraph (b) of this section and consistent with the requirements for provision of direct services as set forth in §§ 1321.85 through 1321.93. (d) The area agency may not engage in any activity which is inconsistent with its statutory mission prescribed in the Act or policies prescribed by the State agency under § 1321.9. § 1321.57 Organization and staffing of the area agency. (a) An area agency may be either: (1) An agency whose single purpose is to administer programs for older individuals and family caregivers; or (2) A separate organizational unit within a multipurpose agency which functions as the area agency on aging. Where the State agency designates a separate organizational unit of a multipurpose agency that has previously been serving as an area agency, the State agency action shall not be subject to section 305(b)(5)(B) of the Act (42 U.S.C. 3025(b)(5)(B)). (b) The area agency, once designated, is responsible for providing for adequate and qualified staff to facilitate the performance of the functions as set forth in this part. Such functions, except for provision of direct services, are considered to be area plan administration functions. (c) The designated area agency shall continue to function in that capacity until either: (1) The State agency withdraws the designation of the area agency as provided in § 1321.21(a)(1) through (5); or (2) The area agency informs the State agency that it no longer wishes to carry out the responsibilities of an area agency as provided in § 1321.21(a)(6). § 1321.59 Area agency policies and procedures. (a) The area agency on aging shall develop policies and procedures in compliance with State agency policies and procedures, including those required under § 1321.9, governing all aspects of programs operated under this part, including those related to conflict of interest, and be in alignment with the Act and all other applicable Federal requirements. These policies and procedures shall be developed in consultation with other appropriate parties in the planning and service area. (b) The policies and procedures developed by the area agency shall address the manner in which the area agency will monitor the programmatic and fiscal performance of all programs, direct service providers, and activities initiated under this part for quality and E:\FR\FM\14FER4.SGM 14FER4 Federal Register / Vol. 89, No. 31 / Wednesday, February 14, 2024 / Rules and Regulations effectiveness. Quality monitoring and measurement results are encouraged to be publicly available in a format that may be understood by older individuals, family caregivers, and their families. (c) The area agency is responsible for enforcement of these policies and procedures. (d) The area agency may not delegate to another agency the authority to award or administer funds under this part. ddrumheller on DSK120RN23PROD with RULES4 § 1321.61 Advocacy responsibilities of the area agency. (a) The area agency shall serve as the public advocate for the development or enhancement of comprehensive and coordinated community-based systems of services in each community throughout and specific to each planning and service area. (b) In carrying out this responsibility, the area agency shall: (1) Monitor, evaluate, and comment on policies, programs, hearings, levies, and community actions which affect older individuals and family caregivers which the area agency considers to be aligned with the interests identified in the Act; (2) Solicit comments from the public on the needs of older individuals and family caregivers; (3) Represent the interests of older individuals and family caregivers to local level and executive branch officials, public and private agencies, or organizations; (4) Consult with and support the State’s Long-Term Care Ombudsman Program; and (5) Coordinate with public and private organizations, including units of general purpose local government to promote new or expanded benefits and opportunities for older individuals and family caregivers. (c) Each area agency on aging shall undertake a leadership role in assisting communities throughout the planning and service area to target resources from all appropriate sources to meet the needs of older individuals and family caregivers with greatest economic need and greatest social need, with particular attention to low-income minority individuals. Such activities may include location of services and specialization in the types of services most needed by these groups to meet this requirement. However, the area agency shall not permit a grantee or contractor under this part to employ a means test for services funded under this part. (d) No requirement in this section shall be deemed to supersede a prohibition contained in the Federal appropriation on the use of Federal funds to lobby the Congress; or the VerDate Sep<11>2014 20:33 Feb 13, 2024 Jkt 262001 lobbying provision applicable to private nonprofit agencies and organizations contained in OMB Circular A–122. § 1321.63 Area agency advisory council. (a) Functions of council. The area agency shall establish an advisory council. The council shall carry out advisory functions which further the area agency’s mission of developing and coordinating community-based systems of services for all older individuals and family and older relative caregivers specific to each planning and service area. The council shall advise the agency relative to: (1) Developing and administering the area plan; (2) Ensuring the plan is available to older individuals, family caregivers, service providers, and the general public; (3) Conducting public hearings; (4) Representing the interests of older individuals and family caregivers; and (5) Reviewing and commenting on community policies, programs and actions which affect older individuals and family caregivers with the intent of assuring maximum coordination and responsiveness to older individuals and family caregivers. (b) Composition of council. The council shall include individuals and representatives of community organizations from or serving the planning and service area who will help to enhance the leadership role of the area agency in developing communitybased systems of services targeting those in greatest economic need and greatest social need. The advisory council shall be made up of: (1) More than 50 percent older individuals, including minority individuals who are participants or who are eligible to participate in programs under this part, with efforts to include individuals identified as in greatest economic need and individuals identified as in greatest social need in § 1321.65(b)(2); (2) Representatives of older individuals; (3) Family caregivers, which may include older relative caregivers; (4) Representatives of health care provider organizations, including providers of veterans’ health care (if appropriate); (5) Representatives of service providers, which may include legal assistance, nutrition, evidence-based disease prevention and health promotion, caregiver, long-term care ombudsman, and other service providers; (6) Persons with leadership experience in the private and voluntary sectors; PO 00000 Frm 00107 Fmt 4701 Sfmt 4700 11671 (7) Local elected officials; (8) The general public; and (9) As available: (i) Representatives from Indian Tribes, Pueblos, or Tribal aging programs; and (ii) Older relative caregivers, including kin and grandparent caregivers of children or adults age 18 to 59 with a disability. (c) Review by advisory council. The area agency shall submit the area plan and amendments for review and comment to the advisory council before it is transmitted to the State agency for approval. (d) Conflicts of interest. The advisory council shall not operate as a board of directors for the area agency. Individuals may not serve on both the advisory council and the board of directors for the same entity. § 1321.65 Submission of an area plan and plan amendments to the State agency for approval. (a) The area agency shall submit the area plan on aging and amendments specific to each planning and service area to the State agency for approval following procedures specified by the State agency in the State agency policies prescribed by § 1321.9. (b) State agency policies and procedures regarding area plan requirements will at a minimum address the following: (1) Content, duration, and format; (2) That the area agency shall identify populations within the planning and service area at greatest economic need and greatest social need, which shall include the populations as set forth in the § 1321.3 definitions of greatest economic need and greatest social need. (3) Assessment and evaluation of unmet need, such that each area agency shall submit objectively collected, and where possible, statistically valid, data with evaluative conclusions concerning the unmet need for supportive services, nutrition services, evidence-based disease prevention and health promotion services, family caregiver support services, and multipurpose senior centers. The evaluations for each area agency shall consider all services in these categories regardless of the source of funding for the services; (4) Public participation specifying mechanisms to obtain the periodic views of older individuals, family caregivers, service providers, and the public with a focus on those in greatest economic need and greatest social need, including: (i) A reasonable minimum time period (at least 30 calendar days, unless a waiver is provided by the State agency during an emergency or when a time E:\FR\FM\14FER4.SGM 14FER4 ddrumheller on DSK120RN23PROD with RULES4 11672 Federal Register / Vol. 89, No. 31 / Wednesday, February 14, 2024 / Rules and Regulations sensitive action is otherwise necessary) for public review and comment on area plans and area plan amendments; and (ii) Ensuring the documents noted in (b)(4)(i) of this section and final area plans and amendments are accessible in a public location, as well as available in print by request. (5) The services, including a definition of each type of service; the number of individuals to be served; the type and number of units to be provided; and corresponding expenditures proposed to be provided with funds under the Act and related local public sources under the area plan; (6) Plans for how direct services funds under the Act will be distributed within the planning and service area, in order to address populations identified as in greatest social need and greatest economic need, as identified in § 1321.27(d)(1); (7) Process for determining whether the area agency meets requirements to provide services directly where: (i) As set forth in section 307(a)(8)(A) of the Act (42 U.S.C. 3027(a)(8)(A)), no supportive services, nutrition services, evidence-based disease prevention and health promotion services, or family caregiver support services will be directly provided by an area agency on aging in the State, unless, in the judgment of the State agency: (A) Provision of such services by the area agency on aging is necessary to assure an adequate supply of such services; (B) Such services are directly related to such area agency on aging’s administrative functions; or (C) Such services may be provided more economically, and with comparable quality, by such area agency on aging. (ii) At its discretion, the State agency may waive the conditions set forth in paragraph (b)(7)(i) of this section and allow area agencies on aging to directly provide the supportive services of case management, information and assistance services, and outreach without additional restriction. (iii) Approval of the area agency to provide direct services shall only be granted for a maximum of the area plan period. For each time approval is granted to an area agency to provide direct services, the area agency must demonstrate the area agency’s efforts to identify service providers prior to being granted a subsequent approval. (8) Minimum adequate proportion requirements, as identified in the approved State plan as set forth in § 1321.27; (9) Requirements for program development and coordination activities VerDate Sep<11>2014 20:33 Feb 13, 2024 Jkt 262001 as set forth in § 1321.27(h), if allowed by the State agency; (10) If the area agency requests to allow Title III, part C–1 funds to be used as set forth in § 1321.87(a)(1)(i) through (iii), it must provide the following information to the State agency: (i) Evidence, using participation projections based on existing data, that provision of such meals will enhance and not diminish the congregate meals program, and a commitment to monitor impact on congregate meals program participation; (ii) Description of how provision of such meals will be targeted to reach those populations identified as in greatest economic need and greatest social need; (iii) Description of the eligibility criteria for service provision; (iv) Evidence of consultation with nutrition and other direct services providers, other interested parties, and the general public regarding the need for and provision of such meals; and (v) Description of how provision of such meals will be coordinated with nutrition and other direct services providers and other interested parties. (11) Initial submission and amendments; (12) Approval by the State agency; and (13) Appeals regarding area plans on aging. (c) Area plans shall incorporate services which address the incidence of hunger, food insecurity and malnutrition; social isolation; and physical and mental health conditions. (d) Pursuant to section 306(a)(16) of the Act (42 U.S.C. 3026(a)(16)), area plans shall provide, to the extent feasible, for the furnishing of services under this Act, through self-direction. (e) Area plans on aging shall develop objectives that coordinate with and reflect the State plan goals for services under the Act. § 1321.67 Conflicts of interest policies and procedures for area agencies on aging. (a) The area agency must have policies and procedures regarding conflicts of interest in accordance with the Act, guidance as set forth by the Assistant Secretary for Aging, and State agency policies and procedures as set forth at § 1321.47. These policies and procedures must safeguard against conflicts of interest on the part of the area agency, area agency employees, governing board and advisory council members, and awardees who have responsibilities relating to the area agency’s grants and contracts. Conflicts of interest policies and procedures must establish mechanisms to avoid both PO 00000 Frm 00108 Fmt 4701 Sfmt 4700 actual and perceived conflicts of interest and to identify, remove, and remedy any existing or potential conflicts of interest at organizational and individual levels, including: (1) Reviewing service utilization and financial incentives to ensure agency employees, governing board and advisory council members, grantees, contractors, and other awardees who serve multiple roles, such as assessment and service delivery, are appropriately stewarding Federal resources while fostering services to enhance access to community living; (2) Ensuring that the area agency on aging employees and agents administering Title III programs do not have a financial interest in Title III programs; (3) Complying with § 1324.21 of this chapter regarding the Ombudsman program, as appropriate; (4) Removing and remedying any actual, perceived, or potential conflict between the area agency on aging and the area agency on aging employee or contractor’s financial interest in a Title III program; (5) Establishing robust monitoring and oversight, including periodic reviews, to identify conflicts of interest in the Title III program; (6) Ensuring that no individual, or member of the immediate family of an individual, involved in Title III programs has a conflict of interest; (7) Requiring that agencies to which the area agency provides Title III funds have policies in place to prohibit the employment or appointment of Title III program decision makers, staff, or volunteers with conflicts that cannot be adequately removed or remedied; (8) Requiring that Title III programs take reasonable steps to refuse, suspend or remove Title III program responsibilities of an individual who has a conflict of interest, or who has a member of the immediate family with a conflict of interest, that cannot be adequately removed or remedied; (9) Complying with the State agency’s periodic review and identification of conflicts of the Title III program; (10) Prohibiting the officers, employees, or agents of the Title III program from soliciting or accepting gratuities, favors, or anything of monetary value from grantees, contractors, and/or subrecipients, except where policies and procedures allow for situations where the financial interest is not substantial, or the gift is an unsolicited item of nominal value; (11) Establishing the actions the area agency will require Title III programs to take in order to remedy or remove such conflicts, as well as disciplinary actions E:\FR\FM\14FER4.SGM 14FER4 Federal Register / Vol. 89, No. 31 / Wednesday, February 14, 2024 / Rules and Regulations to be applied for violations of such standards by officers, employees, or agents of the Title III program; and (12) Documentation of conflict of interest mitigation strategies, as necessary and appropriate, when operating an Adult Protective Services or guardianship program. (b) [Reserved] § 1321.69 Area agency on aging Title III and Title VI coordination responsibilities. (a) For planning and service areas where there are Title VI programs, the area agency’s policies and procedures, developed in coordination with the relevant Title VI program director(s), as set forth in § 1322.13(a), must explain how the area agency’s aging network, including service providers, will coordinate with Title VI programs to ensure compliance with section 306(a)(11)(B) of the Act (42 U.S.C. 3026(a)(11)(B)). (b) The policies and procedures set forth in paragraph (a) of this section must at a minimum address: (1) How the area agency’s aging network, including service providers, will provide outreach to Tribal elders and family caregivers regarding services for which they may be eligible under Title III; (2) The communication opportunities the area agency will make available to Title VI programs, to include Title III and other funding opportunities, technical assistance on how to apply for Title III and other funding opportunities, meetings, email distribution lists, presentations, and public hearings; (3) The methods for collaboration on and sharing of program information and changes, including coordinating with service providers where applicable; (4) How Title VI programs may refer individuals who are eligible for Title III services; (5) How services will be provided in a culturally appropriate and traumainformed manner; and (6) Opportunities to serve on advisory councils, workgroups, and boards, including area agency advisory councils as set forth in § 1321.63. Subpart D—Service Requirements ddrumheller on DSK120RN23PROD with RULES4 § 1321.71 Purpose of services allotments under Title III. (a) Title III of the Act authorizes the distribution of Federal funds to the State agency on aging for the following services: (1) Supportive services; (2) Nutrition services; (3) Evidence-based disease prevention and health promotion services; and VerDate Sep<11>2014 20:33 Feb 13, 2024 Jkt 262001 (4) Family caregiver support services. (b) Funds authorized are for the purpose of assisting the State agency and its area agencies to develop, provide, or enhance for older individuals and family caregivers comprehensive and coordinated community-based direct services and systems. (c) Except for ombudsman services, State plan administration, disaster assistance as noted at §§ 1321.99 through 1321.101, or as otherwise allowed in the Act, State agencies in States with multiple planning and service areas will award the funds made available under this section to designated area agencies on aging according to the approved intrastate funding formula as set forth in § 1321.49. (d) Except for ombudsman services, State plan administration, disaster assistance as noted at §§ 1321.99 through 1321.101, or as otherwise allowed in the Act, State agencies in States with single planning and service areas shall award funds by grant or contract to community services provider agencies and organizations for direct services to older individuals and family caregivers in, or serving, communities throughout the planning and service area, except as set forth in § 1321.51(b)(4). (e) Except where the State agency approves the area agency to provide direct services, as set forth in § 1321.65(b)(7), after subtracting funds for area plan administration as set forth in § 1321.9(c)(2)(iv)(B) and program development and coordination activities, if allowed by the State agency, as set forth in § 1321.27(h), area agencies shall award these funds by grant or contract to community services provider agencies and organizations for direct services to older individuals and family caregivers in, or serving, communities throughout the planning and service area. § 1321.73 Policies and procedures. (a) The area agency on aging and/or service provider shall ensure the development and implementation of policies and procedures in accordance with State agency policies and procedures, including those required as set forth in § 1321.9. The State agency may allow for policies and procedures to be developed by the subrecipient(s), except as set forth at §§ 1321.9(a) and 1321.9(c)(2)(xi) and where otherwise specified. (b) The area agency on aging and/or service provider will provide the State agency in a timely manner with statistical and other information which PO 00000 Frm 00109 Fmt 4701 Sfmt 4700 11673 the State agency requires to meet its planning, coordination, evaluation, and reporting requirements established by the State agency under § 1321.9. (c) The State agency and/or area agencies on aging must develop an independent qualitative and quantitative monitoring process ensuring the quality and effectiveness of services regarding meeting participant needs and preferences, the goals described within the State and/or area plan, and State and local requirements, as well as conflicts of interest policies and procedures. Quality monitoring and measurement results are encouraged to be made available to the public in plain language format designed to support and provide information and choice among persons and families receiving services. § 1321.75 Confidentiality and disclosure of information. (a) State agencies and area agencies on aging shall have procedures to protect the confidentiality of information about older individuals and family caregivers collected in the conduct of their responsibilities. The procedures shall ensure that no information about an older person or family caregiver, or obtained from an older person or family caregiver by a service provider or the State or area agencies, is disclosed by the provider or agency in a form that identifies the person without the informed consent of the person or of their legal representative, unless the disclosure is required by law or court order, or for program monitoring and evaluation by authorized Federal, State, or local monitoring agencies. (b) A State agency, area agency on aging or other contracting or granting or auditing agency may not require a provider of long-term care ombudsman services under this part to reveal any information that is protected by disclosure provisions in 45 CFR part 1324, subpart A. State agencies must comply with confidentiality and disclosure of information provisions as directed in 45 CFR part 1324, as appropriate. (c) A State or area agency on aging shall not require a provider of legal assistance under this part to reveal any information that is protected by attorney client privilege. (d) State agencies must have policies and procedures that ensure that entities providing services under this title promote the rights of each older individual who receives such services. Such rights include the right to confidentiality of records relating to such individual. E:\FR\FM\14FER4.SGM 14FER4 11674 Federal Register / Vol. 89, No. 31 / Wednesday, February 14, 2024 / Rules and Regulations (e) State agencies’ policies and procedures must explain that individual information and records may be shared with other State and local agencies, community-based organizations, and health care providers and payers in order to provide services. (f) State agencies’ policies and procedures must comply with all applicable Federal laws as well as guidance as the State determines, for the collection, use, and exchange of both Personal Identifiable Information (PII) and personal health information in the provision of Title III services under the Act. State agencies are encouraged to consult with Tribes regarding any Tribal data sovereignty expectations that may apply. § 1321.77 Purpose of services—personand family-centered, trauma-informed. (a) Services must be provided to older adults and family caregivers in a manner that is person-centered, traumainformed, and culturally sensitive. Services should be responsive to their interests, physical and mental health, social and cultural needs, available supports, and desire to live where and with whom they choose. Personcentered services may include community-centered and familycentered approaches consistent with the traditions, practices, beliefs, and cultural norms and expectations of older adults and family caregivers. (b) Services should, as appropriate, provide older adults and family caregivers with the opportunity to develop a person-centered plan that is led by the individual or, if applicable, by the individual and the individual’s authorized representative. Services should be incorporated into existing person-centered plans, as appropriate. (c) State and area agencies and service providers should provide training to staff and volunteers on person-centered and trauma-informed service provision. ddrumheller on DSK120RN23PROD with RULES4 § 1321.79 Responsibilities of service providers under State and area plans. As a condition for receipt of funds under this part, each State agency and/ or area agency on aging shall assure that service providers shall: (a) Specify how the service provider intends to satisfy the service needs of those identified as in greatest economic need and greatest social need, with a focus on low-income minority individuals in the area served, including attempting to provide services to lowincome minority individuals at least in proportion to the number of low-income minority older individuals and family caregivers in the population serviced by the provider; VerDate Sep<11>2014 20:33 Feb 13, 2024 Jkt 262001 (b) Provide recipients with an opportunity to contribute to the cost of the service as provided in § 1321.9(c)(2)(x) or (xi); (c) Pursuant to section 306(a)(16) of the Act (42 U.S.C. 3026(a)(16)), provide, to the extent feasible, for the furnishing of services under this Act through selfdirection; (d) Bring conditions or circumstances which place an older person, or the household of an older person, in imminent danger to the attention of adult protective services or other appropriate officials for follow-up, provided that: (1) The older person or their legal representative consents; or (2) Such action is in accordance with local adult protective services requirements, except as set forth at § 1321.93 and part 1324, subpart A, of this chapter; (e) Where feasible and appropriate, make arrangements for the availability of services to older individuals and family caregivers in weather-related and other emergencies; (f) Assist participants in taking advantage of benefits under other programs; and (g) Assure that all services funded under this part are coordinated with other appropriate services in the community, and that these services do not constitute an unnecessary duplication of services provided by other sources. § 1321.81 Client eligibility for participation. (a) An individual must be age 60 or older at the time of service to be eligible to participate in services under the Act, unless the Act otherwise provides an explicit exception. Exceptions are limited to the following specific services: (1) Nutrition services: (i) Services shall be available to spouses of any age of older individuals; (ii) Services may be available to: (A) A person with a disability who lives with an adult age 60 or older or who resides in a housing facility that is primarily occupied by older adults at which congregate meals are served; and (B) A volunteer during meal hours. (2) Family caregiver support services for: (i) Adults caring for older adults and adults caring for individuals of any age with Alzheimer’s or a related disorder; (ii) Older relative caregivers who are caring for children and are not the biological or adoptive parent of the child, where older relative caregivers shall no longer be eligible for services under this part when the child reaches 18 years of age; or PO 00000 Frm 00110 Fmt 4701 Sfmt 4700 (iii) Older relative caregivers who are caring for individuals age 18 to 59 with disabilities and who may be of any relationship, including the biological or adoptive parent. (3) Services such as information and assistance and public education, where recipients of information may not be age 60 or older, but the information is targeted to those who are age 60 or older and/or benefits those who are age 60 or older. (4) Ombudsman program services, as provided in 45 CFR part 1324. (b) State agencies, area agencies on aging, and local service providers may develop further eligibility requirements for implementation of services for older adults and family caregivers, as long as they do not conflict with the Act, this part, or guidance as set forth by the Assistant Secretary for Aging. Such requirements may include: (1) Assessment of greatest social need; (2) Assessment of greatest economic need; (3) Assessment of functional and support need; (4) Geographic boundaries; (5) Limitations on number of persons that may be served; (6) Limitations on number of units of service that may be provided; (7) Limitations due to availability of staff/volunteers; (8) Limitations to avoid duplication of services; and (9) Specification of settings where services shall or may be provided. § 1321.83 Client and service priority. (a) The State agency and/or area agency shall ensure service to those identified as members of priority groups through assessment of local needs and resources. (b) The State agency and/or area agency shall establish criteria to prioritize the delivery of services under Title III, parts B (except for Ombudsman program services which are subject to provisions in 45 CFR part 1324), C, and D, in accordance with the Act. (c) The State agency and/or area agency shall establish criteria to prioritize the delivery of services under Title III, part E, in accordance with the Act, to include: (1) Caregivers who are older individuals with greatest social need, and older individuals with greatest economic need (with particular attention to low-income older individuals); (2) Caregivers who provide care for individuals with Alzheimer’s disease and related disorders with neurological and organic brain dysfunction; and E:\FR\FM\14FER4.SGM 14FER4 Federal Register / Vol. 89, No. 31 / Wednesday, February 14, 2024 / Rules and Regulations (3) If serving older relative caregivers, older relative caregivers of children or adults with severe disabilities. § 1321.85 Supportive services. (a) Supportive services are community-based interventions set forth in the Act under Title III, part B, section 321 (42 U.S.C. 3030d) which meet standards established by the Assistant Secretary for Aging. They include inhome supportive services, access services, which may include multipurpose senior centers, and legal services. (b) State agencies may allow use of Title III, part B funds for acquiring, altering or renovating, or constructing facilities to serve as multipurpose senior centers, in accordance with guidance as set forth by the Assistant Secretary for Aging. (c) For those Title III, part B services intended to benefit family caregivers, such as those provided under sections 321(a)(6)(C), 321(a)(19), and 321(a)(21) of the Act (42 U.S.C. 3030d(a)(6)(C), 3030d(a)(19), and 3030d(a)(21)), State and area agencies shall ensure that there is coordination and no inappropriate duplication of such services available under Title III, part E. (d) All funds provided under Title III, part B of the Act must be distributed within a State pursuant to § 1321.49 or § 1321.51. ddrumheller on DSK120RN23PROD with RULES4 § 1321.87 Nutrition services. (a) Nutrition services are communitybased interventions as set forth in Title III, part C of the Act, and as further defined by the Assistant Secretary for Aging. Nutrition services include congregate meals, home-delivered meals, nutrition education, nutrition counseling, and other nutrition services. (1) Congregate meals are meals meeting the Dietary Guidelines for Americans and Dietary Reference Intakes as set forth in section 339 of the Act (42 U.S.C. 3030g–21) provided under Title III, part C–1 by a qualified nutrition service provider to eligible individuals and consumed while congregating virtually or in-person, except where: (i) If included as part of an approved State plan as set forth in § 1321.27 or State plan amendment as set forth in § 1321.31(a) and area plan or plan amendment as set forth in § 1321.65 and to complement the congregate meals program, shelf-stable, pick-up, carryout, drive-through, or similar meals may be provided under Title III, part C–1; (ii) Meals provided as set forth in paragraph (a)(1)(i) of this section shall: (A) Not exceed 25 percent of the funds expended by the State agency VerDate Sep<11>2014 20:33 Feb 13, 2024 Jkt 262001 under Title III, part C–1, to be calculated based on the amount of Title III, part C– 1 funds available after all transfers as set forth in § 1321.9(c)(2)(iii) are completed; (B) Not exceed 25 percent of the funds expended by any area agency on aging under Title III, part C–1, to be calculated based on the amount of Title III, part C– 1 funds available after all transfers as set forth in § 1321.9(c)(2)(iii) are completed. (iii) Meals provided as set forth in paragraph (a)(1)(i) of this section may be provided to complement the congregate meal program: (A) During disaster or emergency situations affecting the provision of nutrition services; (B) To older individuals who have an occasional need for such meal; and/or (C) To older individuals who have a regular need for such meal, based on an individualized assessment, when targeting services to those in greatest economic need and greatest social need. (2) Home-delivered meals are meals meeting the Dietary Guidelines for Americans and Dietary Reference Intakes as set forth in section 339 of the Act (42 U.S.C. 3030g–21) provided under Title III, part C–2 by a qualified nutrition service provider to eligible individuals and consumed at their residence or otherwise outside of a congregate setting, as organized by a service provider under the Act. Meals may be provided via home delivery, pick-up, carry-out, drive-through, or similar meals. (i) Eligibility criteria for homedelivered meals may include consideration of an individual’s ability to leave home unassisted, ability to shop for and prepare nutritious meals, degree of disability, or other relevant factors pertaining to their need for the service, including social need and economic need. (ii) Home-delivered meals service providers may encourage meal participants to attend congregate meal sites and other health and wellness activities, as feasible, based on a personcentered approach and local service availability. (3) Nutrition education is information provided under Title III, parts C–1 or 2 which provides individuals with the knowledge and skills to make healthy food and beverage choices. Congregate and home-delivered nutrition services shall provide nutrition education, as appropriate, based on the needs of meal participants. (4) Nutrition counseling is a service provided under Title III, parts C–1 or 2 which must align with the Academy of Nutrition and Dietetics. Congregate and home-delivered nutrition services shall provide nutrition counseling, as PO 00000 Frm 00111 Fmt 4701 Sfmt 4700 11675 appropriate, based on the needs of meal participants, the availability of resources, and the expertise of a Registered Dietitian Nutritionist. (5) Other nutrition services include additional services provided under Title III, parts C–1 or 2 that may be provided to meet nutritional needs or preferences of eligible participants, such as weighted utensils, supplemental foods, oral nutrition supplements, or groceries. (b) State agencies shall establish policies and procedures that define a nutrition project and include how a nutrition project will provide meals and nutrition services five or more days per week in accordance with the Act. The definition of nutrition project established by the State agency must consider the availability of resources and the community’s need for nutrition services as described in the State and area plans. (c) All funds provided under Title III, part C of the Act must be distributed within a State pursuant to § 1321.49 or § 1321.51. (d) Nutrition Services Incentive Program allocations are available to States and Territories that provide nutrition services where: (1) Nutrition Services Incentive Program allocation amounts are based on the number of meals reported by the State agency which meet the following requirements: (i) The meal is served to an individual who is eligible to receive services under the Act; (ii) The meal is served to an individual who has not been meanstested to receive the meal; (iii) The meal is served to an individual who has been provided the opportunity to provide a voluntary contribution to the cost of service; (iv) The meal meets the other requirements of the Act, including that the meal meets the Dietary Guidelines for Americans and Dietary Reference Intakes as set forth in section 339 of the Act (42 U.S.C. 3030g–21); and (v) The meal is served by an agency that has a grant or contract with a State agency or area agency. (2) The State agency may choose to receive their Nutrition Services Incentive Program grant as cash, commodities, or a combination of cash and commodities. (3) Nutrition Services Incentive Program funds may only be used to purchase domestically produced foods used in a meal as set forth under the Act. (4) Nutrition Services Incentive Program funds are distributed within a State pursuant to § 1321.49(b)(1)(iii) and (d) or § 1321.51(b)(1). E:\FR\FM\14FER4.SGM 14FER4 11676 Federal Register / Vol. 89, No. 31 / Wednesday, February 14, 2024 / Rules and Regulations § 1321.89 Evidence-based disease prevention and health promotion services. (a) Evidence-based disease prevention and health promotion services programs are community-based interventions as set forth in Title III, part D of the Act, that have been proven to improve health and well-being and/or reduce risk of injury, disease, or disability among older adults. All programs provided using these funds must be evidencebased and must meet the Act’s requirements and guidance as set forth by the Assistant Secretary for Aging. (b) All funds provided under Title III, part D of the Act must be distributed within a State pursuant to § 1321.49 or § 1321.51. ddrumheller on DSK120RN23PROD with RULES4 § 1321.91 services. Family caregiver support (a) Family caregiver support services are community-based interventions set forth in Title III, part E of the Act, which meet standards set forth by the Assistant Secretary for Aging and which may be informed through the use of an evidence-informed or evidence-based caregiver assessment, including: (1) Information to family caregivers about available services via public education; (2) Assistance to family caregivers in gaining access to the services through: (i) Individual information and assistance; or (ii) Case management or care coordination. (3) Individual counseling, organization of support groups, and caregiver training to assist family caregivers in those areas in which they provide support, including health, nutrition, complex medical care, and financial literacy, and in making decisions and solving problems relating to their caregiving roles; (4) Respite care to enable family caregivers to be temporarily relieved from their caregiving responsibilities; and (5) Supplemental services, on a limited basis, to complement the care provided by family caregivers. State agencies and AAAs shall define ‘‘limited basis’’ for supplemental services and may consider limiting units, episodes or expenditure amounts when making this determination. (b) State agencies shall ensure that there is a plan to provide each of the services authorized under this part in each planning and service area, or statewide in accordance with a funds distribution plan for single planning and service area States, subject to availability of funds under the Act. (c) To provide services listed in paragraphs (a)(4) and (5) of this section VerDate Sep<11>2014 20:33 Feb 13, 2024 Jkt 262001 to family caregivers of adults aged 60 and older or of individuals of any age with Alzheimer’s disease or a related disorder, the individual for whom they are caring must be determined to be functionally impaired because the individual: (1) Is unable to perform at least two activities of daily living without substantial assistance, including verbal reminding, physical cueing, or supervision; (2) At the option of the State agency, is unable to perform at least three such activities without such assistance; or (3) Due to a cognitive or other mental impairment, requires substantial supervision because the individual poses a serious health or safety hazard to themself or others. (d) All funds provided under Title III, part E of the Act must be distributed within a State pursuant to § 1321.49 or § 1321.51. § 1321.93 Legal assistance. (a) General—definition. (1) The provisions and restrictions in this section apply to legal assistance funded by and provided pursuant to the Act. (2) Legal assistance means legal advice and/or representation provided by an attorney to older individuals with economic or social needs, per section 102(33) of the Act (42 U.S.C. 3002(33)). Legal assistance may include, to the extent feasible, counseling, or other appropriate assistance by a paralegal or law student under the direct supervision of an attorney, and counseling or representation by a nonlawyer as permitted by law. (b) State agency on aging requirements. (1) Under section 307(a)(11) of the Act (42 U.S.C. 3027(a)(11)), the roles and responsibilities of the State agency shall include assurances for the provision of legal assistance in the State plan as follows: (i) Legal assistance, to the extent practicable, supplements and does not duplicate or supplant legal services provided with funding from other sources, including grants made by the Legal Services Corporation; (ii) Legal assistance supplements existing sources of legal services through focusing legal assistance delivery and provider capacity in the specific areas of law affecting older adults with greatest economic need or greatest social need; (iii) Reasonable efforts will be made to maintain existing levels of legal assistance for older individuals; (iv) Advice, training, and technical assistance support for the provision of legal assistance for older adults will be PO 00000 Frm 00112 Fmt 4701 Sfmt 4700 made available to legal assistance providers, as provided in § 1324.303 and section 420(a)(1) of the Act (42 U.S.C. 3032i(a)(1)); (v) The State agency in single planning and service area States or area agencies on aging in States with multiple planning and service areas shall award, through contract funds, only to legal assistance providers that meet the standards and requirements as set forth in this section and section (c); and (vi) Attorneys and personnel under the supervision of attorneys providing legal assistance shall adhere to the applicable Rules of Professional Conduct including the obligation to preserve the attorney-client privilege. (2) As set forth in section 307(a)(2)(C) of the Act (42 U.S.C. 3027(a)(2)(C)) and § 1321.27(i)(3), the State agency shall designate the minimum proportion of Title III, part B funds and require the expenditure of at least that sum for each planning and service area for the purpose of procuring contract(s) for legal assistance. (3) The State agency in States with a single planning and service area shall meet the requirements for area agencies on aging as set forth in paragraph (c) of this section. (c) Area Agency on Aging requirements—(1) Adequate proportion funding. The area agency on aging shall award at a minimum the required adequate proportion of Title III, part B funds designated by the State agency to procure legal assistance for older residents of the planning and service area as set forth in §§ 1321.27 and 1321.65. (2) Standards for selection of legal assistance providers. Area agencies on aging shall adhere to the following standards in selecting legal assistance providers: (i) The area agency on aging must select and procure through contract the legal assistance provider or providers best able to provide legal assistance as provided in this paragraph (c)(2) and paragraphs (d) through (f) of this section; and (ii) The area agency on aging must select the legal assistance provider(s) that best demonstrate the capacity to conduct legal assistance, which means having the requisite expertise and staff to fulfill the requirements of the Act and all applicable Federal requirements for provision of legal assistance. (d) Standards for legal assistance provider selection. Selected legal assistance providers shall exhibit the capacity to: (1) Retain staff with expertise in specific areas of law affecting older E:\FR\FM\14FER4.SGM 14FER4 ddrumheller on DSK120RN23PROD with RULES4 Federal Register / Vol. 89, No. 31 / Wednesday, February 14, 2024 / Rules and Regulations individuals with economic or social need, including the priority areas identified in the Act; (2) Demonstrate expertise in specific areas of law that are given priority in the Act, including income and public entitlement benefits, health care, longterm care, nutrition, consumer law, housing, utilities, protective services, abuse, neglect, age discrimination, and defense of guardianship, prioritizing focus from among the areas of law based on the needs of the community served; (i) Defense of guardianship means advice to and representation of older individuals at risk of guardianship and older individuals subject to guardianship to divert them from guardianship to less restrictive, more person-directed forms of decisional support whenever possible, to oppose appointment of a guardian in favor of such less restrictive decisional supports, to seek limitation of guardianship and to seek revocation of guardianship; (ii) Defense of guardianship includes: (A) Representation to maintain the rights of individuals at risk of guardianship, and to advocate for limited guardianship if a court orders guardianship to be imposed; assistance removing or limiting an existing guardianship; or assistance to preserve or restore an individual’s rights or autonomy; (B) Representation to advocate for and assert use of least-restrictive alternatives to guardianship to preserve or restore an individual’s rights and or autonomy to support decision-making, or to limit the scope of guardianship orders when such orders have or will be entered by a court; and (C) A legal assistance provider shall not represent a petitioner for imposition of guardianship except in limited circumstances involving guardianship proceedings of older individuals who seek to become guardians only if other adequate representation is unavailable in the proceedings, and the provider has exhausted, and documents efforts made to explore less restrictive alternatives to guardianship. (3) Provide effective administrative and judicial advocacy in the areas of law affecting older individuals with greatest economic need or greatest social need; (4) Support other advocacy efforts, for example, the Long-Term Care Ombudsman Program, including requiring a memorandum of agreement between the State Long-Term Care Ombudsman and the legal assistance provider(s) as required by section 712(h)(8) of the Act (42 U.S.C. 3058g(h)(8)); and VerDate Sep<11>2014 20:33 Feb 13, 2024 Jkt 262001 (5) Effectively provide legal assistance to older individuals residing in congregate residential long-term settings as defined in the Act in section 102(35) (42 U.S.C. 3002(35)), or who are isolated as defined in the Act in section 102(24)(c) (42 U.S.C. 3002(24)(c)), or who are restricted to the home due to cognitive or physical limitations. (e) Standards for contracting between Area Agencies on Aging and legal assistance providers. (1) The area agency shall enter into a contract(s) with the selected legal assistance provider(s) that demonstrate(s) the capacity to deliver legal assistance. (2) The contract shall specify that legal assistance provider(s) shall demonstrate capacity to: (i) Maintain expertise in specific areas of law that are to be given priority, as defined in paragraphs (d)(1) and (2) of this section. (ii) Prioritize representation and advice that focus on the specific areas of law that give rise to problems that are disparately experienced by older adults with economic or social need. (iii) Maintain staff with the expertise, knowledge, and skills to deliver legal assistance as described in this section. (iv) Engage in reasonable efforts to involve the private bar in legal assistance activities authorized under the Act, including groups within the private bar furnishing services to older individuals on a pro bono and reduced fee basis. (v) Ensure that attorneys and personnel under the supervision of attorneys providing legal assistance will adhere to the applicable Rules of Professional Conduct including, but not limited to, the obligation to preserve the attorney-client privilege. (3) The contract shall include provisions: (i) Describing the duty of the area agency to refer older adults to the legal assistance provider(s) with whom the area agency contracts. In fulfilling this duty, the area agency 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. (ii) Requiring the contracted legal assistance provider(s) to maintain capacity to provide legal assistance in the preferred language used by older individuals seeking and/or receiving legal assistance who are limited English proficient (LEP), including in oral and written communication, and to ensure effective communication for individuals with disabilities, including by providing appropriate auxiliary aids and services where necessary. PO 00000 Frm 00113 Fmt 4701 Sfmt 4700 11677 (A) This includes requiring legal assistance providers take reasonable steps to ensure meaningful access to legal assistance by older individuals with limited-English proficiency, including an individualized assessment of an individual’s need to understand and participate in the legal process (as determined by each individual). (B) This includes stating the responsibility of the legal assistance provider to provide access to interpretation and translation services to meet clients’ needs. (C) This includes taking appropriate steps to ensure communications with persons with disabilities are as effective as communication with others, including by providing appropriate auxiliary aids and services where necessary to afford qualified persons with disabilities an equal opportunity to participate in, and enjoy the benefits of, legal assistance. (iii) Providing that the area agency will provide outreach activities that will include information about the availability of legal assistance to address problems experienced by older adults that may have legal solutions, such as those referenced in sections 306(a)(4)(B) and 306(a)(19) of the Act (42 U.S.C. 3026(a)(4)(B) and 3026(a)(19)). This includes outreach to: (A) Older adults with greatest economic need due to low income and to those with greatest social need, including minority older individuals; and (B) Older adults of underserved communities, including: (1) Older adults with limited-English proficiency and/or whose primary language is not English; (2) Older adults with severe disabilities; (3) Older adults living in rural areas; (4) Older adults at risk for institutional placement; and (5) Older adults with Alzheimer’s disease and related disorders with neurological and organic brain dysfunction and their caregivers. (iv) Providing that legal assistance provider attorney staff and non-attorney personnel under the supervision of legal assistance attorneys must adhere to the applicable State Rules of Professional Conduct. (v) Requiring that if the legal assistance provider(s) contracted by the area agency is located within a Legal Services Corporation grantee entity, that the legal assistance provider(s) shall adhere to the specific restrictions on activities and client representation in the Legal Services Corporation Act (42 U.S.C. 2996 et seq.). Exempted from this requirement are: E:\FR\FM\14FER4.SGM 14FER4 ddrumheller on DSK120RN23PROD with RULES4 11678 Federal Register / Vol. 89, No. 31 / Wednesday, February 14, 2024 / Rules and Regulations (A) Restrictions governing eligibility for legal assistance under such Act; (B) Restrictions for membership of governing boards; and (C) Any additional provisions as determined appropriate by the Assistant Secretary for Aging. (f) Legal assistance provider requirements. (1) The provisions and restrictions in this section apply to legal assistance provider(s) when they are providing legal assistance under section 307(a)(11) of the Act (42 U.S.C. 3027(a)(11)). (2) Legal assistance providers under contract with the State agency in States with single planning and service areas or area agency in States with multiple planning and service areas shall adhere to the following requirements: (i) 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 (ii) Maintain the capacity for and provision of effective administrative and judicial representation. (A) Effective administrative and judicial representation means the expertise and ability to provide the range of services necessary to adequately address the needs of older adults through legal assistance in administrative and judicial forums, as required under the Act. This includes providing the full range of legal services, from brief service and advice through representation in administrative and judicial proceedings. (B) [Reserved] (iii) Conduct administrative and judicial advocacy as is necessary to meet the legal needs of older adults with economic or social need, focusing on such individuals with the greatest economic need or greatest social need: (A) Economic need means the need for legal assistance resulting from income at or below the Federal poverty level, as defined in section 102(44) of the Act (42 U.S.C. 3002(44)), that is insufficient to meet the legal needs of an older individual or that causes barriers to attaining legal assistance to assert the rights of older individuals as articulated in the Act and in the laws, regulations, and Constitution. (B) Social need means the need for legal assistance resulting from social factors, as defined by in section 102(24) of the Act (42 U.S.C. 3002(24)), that cause barriers to attaining legal assistance to assert the rights of older individuals. (iv) Maintain the expertise required to capably handle matters related to the VerDate Sep<11>2014 20:33 Feb 13, 2024 Jkt 262001 priority case type areas specified under the Act, including income and public entitlement benefits, health care, longterm care, nutrition, housing, utilities, protective services, abuse, neglect, age discrimination and defense of guardianship (as defined in paragraph (d)(2)(i) of this section). (v) Maintain the expertise required to deliver any matters in addition to those specified in paragraph (f)(2)(iv) of this section that are related to preserving, maintaining, and restoring an older adult’s independence, choice, or financial security. (vi) Maintain the expertise and capacity to deliver a full range of legal assistance, from brief service and advice through representation in hearings, trials, and other administrative and judicial proceedings in the areas of law affecting such older individuals with economic or social need. (vii) Maintain the capacity to provide effective legal assistance and legal support to other advocacy efforts, including, but not limited to, the LongTerm Care Ombudsman Program serving the planning and service area, as required by section 712(h)(8) of the Act (42 U.S.C. 3058g(h)(8)), and maintain the capacity to form, develop and maintain partnerships that support older adults’ independence, choice, or financial security. (viii) Maintain and exercise the capacity to effectively provide legal assistance to older adults regardless of whether they reside in community or congregate settings, and to provide legal assistance to older individuals who are confined to their home, and older adults whose access to legal assistance may be limited by geography or isolation. (ix) Maintain the capacity to provide legal assistance in the preferred language used by older individuals seeking and/or receiving legal assistance who are limited-English proficient (LEP), including in oral and written communication. (A) Legal assistance provider(s) shall take reasonable steps to ensure meaningful access to legal assistance by older individuals with limited Englishspeaking proficiency and other communication needs; (B) Such reasonable steps require an individualized assessment of the needs of individuals who are seeking legal assistance and legal assistance clients to understand and participate in the legal process (as determined by each individual); and (C) Legal assistance provider(s) are responsible for providing access to interpretation, translation, and auxiliary aids and services to meet older individuals’ legal assistance needs. PO 00000 Frm 00114 Fmt 4701 Sfmt 4700 (x) Maintain staff with knowledge of the unique experiences of older adults with economic or social need and expertise in areas of law affecting such older adults. (xi) Meet the following legal assistance provider requirements: (A) A legal assistance provider may not require an older person to disclose information about income or resources as a condition for providing legal assistance under this part. (B) A legal assistance provider may ask about the person’s financial circumstances as a part of the process of providing legal advice, counseling, and representation, or for the purpose of identifying additional resources and benefits for which an older person may be eligible. (C) A legal assistance provider and its attorneys may engage in other legal activities to the extent that there is no conflict of interest nor other interference with their professional responsibilities under this Act. (D) Legal assistance providers that are not housed within Legal Services Corporation grantee entities shall coordinate their services with existing Legal Services Corporation projects to concentrate funds under this Act in providing legal assistance to older adults with the greatest economic need or greatest social need. (E) Nothing in this section is intended to prohibit any attorney from providing any form of legal assistance to an eligible client, or to interfere with the fulfillment of any attorney’s professional responsibilities to a client. (F) Legal assistance provider attorney staff and non-attorney personnel under the supervision of legal assistance attorneys must adhere to the applicable Rules of Professional Conduct. (3) Restrictions on legal assistance. (i) No legal assistance provider(s) shall use funds received under the Act to provide legal assistance in a fee generating case unless other adequate representation is unavailable or there is an emergency requiring immediate legal action. All providers shall establish procedures for the referral of fee generating cases. (A) ‘‘Fee generating case’’ means any case or matter which, if undertaken on behalf of an eligible client by an attorney in private practice, reasonably may be expected to result in a fee for legal services from an award to a client, from public funds, or from the opposing party. (B) [Reserved] (ii) Other adequate representation is deemed to be unavailable when: (A) Recovery of damages is not the principal object of the client; or E:\FR\FM\14FER4.SGM 14FER4 ddrumheller on DSK120RN23PROD with RULES4 Federal Register / Vol. 89, No. 31 / Wednesday, February 14, 2024 / Rules and Regulations (B) A court appoints a provider or an employee of a provider pursuant to a statute or a court rule or practice of equal applicability to all attorneys in the jurisdiction; or (C) An eligible client is seeking benefits under Title II of the Social Security Act (42 U.S.C. 401 et seq.), Federal Old Age, Survivors, and Disability Insurance Benefits; or Title XVI of the Social Security Act (42 U.S.C. 1381 et seq.), Supplemental Security Income for Aged, Blind, and Disabled. (iii) A provider may seek and accept a fee awarded or approved by a court or administrative body or included in a settlement. (iv) When a case or matter accepted in accordance with this section results in a recovery of damages, other than statutory benefits, a provider may accept reimbursement for out-of-pocket costs and expenses incurred in connection with the case or matter. (4) Legal assistance provider prohibited activities. (i) A provider, employee of the provider, or staff attorney shall not engage in the following prohibited political activities: (A) No provider or its employees shall contribute or make available funds, personnel, or equipment provided under the Act to any political party or association or to the campaign of any candidate for public or party office; or for use in advocating or opposing any ballot measure, initiative, or referendum; (B) No provider or its employees shall intentionally identify the Title III program or provider with any partisan or nonpartisan political activity, or with the campaign of any candidate for public or party office; or (C) While engaged in legal assistance activities supported under the Act, no attorney shall engage in any political activity. (ii) No funds made available under the Act shall be used for lobbying activities including, but not limited to, any activities intended to influence any decision or activity by a nonjudicial Federal, State, or local individual or body. (A) Nothing in this section is intended to prohibit an employee from: (1) Communicating with a governmental agency for the purpose of obtaining information, clarification, or interpretation of the agency’s rules, regulations, practices, or policies; (2) Informing a client about a new or proposed statute, executive order, or administrative regulation relevant to the client’s legal matter; (3) Responding to an individual client’s request for advice only with VerDate Sep<11>2014 20:33 Feb 13, 2024 Jkt 262001 respect to the client’s own communications to officials unless otherwise prohibited by the Act, Title III regulations or other applicable law. This provision does not authorize publication or training of clients on lobbying techniques or the composition of a communication for the client’s use; (4) Making direct contact with the area agency for any purpose; or (5) Testifying before a government agency, legislative body, or committee at the request of the government agency, legislative body, or committee. (B) [Reserved] (iii) A provider may use funds provided by private sources to: (A) Engage in lobbying activities if a government agency, elected official, legislative body, committee, or member thereof is considering a measure directly affecting activities of the provider under the Act; (B) [Reserved] (iv) While carrying out legal assistance activities and while using resources provided under the Act, by private entities or by a recipient, directly or through a subrecipient, no provider or its employees shall: (A) Participate in any public demonstration, picketing, boycott, or strike, whether in person or online, except as permitted by law in connection with the employee’s own employment situation; (B) Encourage, direct, or coerce others to engage in such activities; or (C) At any time engage in or encourage others to engage in: (1) Rioting or civil disturbance; (2) Activity determined by a court to be in violation of an outstanding injunction of any court of competent jurisdiction; (3) Any illegal activity; (4) Any intentional identification of programs funded under the Act or recipient with any partisan or nonpartisan political activity, or with the campaign of any candidate for public or party office; or (v) None of the funds made available under the Act may be used to pay dues exceeding a reasonable amount per legal assistance provider per annum to any organization (other than a bar association), a purpose or function of which is to engage in activities prohibited under these regulations. Such dues may not be used to engage in activities for which Older Americans Act funds cannot be directly used. § 1321.95 Service provider Title III and Title VI coordination responsibilities. (a) For locations served by service providers under Title III of the Act where there are Title VI programs, the PO 00000 Frm 00115 Fmt 4701 Sfmt 4700 11679 area agency on aging’s and/or service provider’s policies and procedures, developed in coordination with the relevant Title VI program director(s), as set forth in § 1322.13(a), must explain how the service provider will coordinate with Title VI programs. (b) The policies and procedures set forth in paragraph (a) of this section must at a minimum address: (1) How the service provider will provide outreach to Tribal elders and family caregivers regarding services for which they may be eligible under Title III; (2) The communication opportunities the service provider will make available to Title VI programs, to include meetings email distribution lists, and presentations; (3) The methods for collaboration on and sharing of program information and changes; (4) How Title VI programs may refer individuals who are eligible for Title III services; (5) How services will be provided in a culturally appropriate and traumainformed manner; and (6) Opportunities to serve on advisory councils, workgroups, and boards. Subpart E—Emergency and Disaster Requirements § 1321.97 Coordination with State, Tribal, and local emergency management. (a) State agencies. (1) State agencies shall establish emergency plans, as set forth in section 307(a)(28) of the Act (42 U.S.C. 3027(a)(28)). Such plans must include, at a minimum: (i) The State agency’s continuity of operations plan and an all-hazards emergency response plan based on completed risk assessments for all hazards and updated annually; (ii) A plan to coordinate activities with area agencies on aging, service providers, local emergency response agencies, relief organizations, local governments, State agencies responsible for emergency and disaster preparedness, and any other institutions that have responsibility for disaster relief service delivery; (iii) Processes for developing and updating long-range emergency and disaster preparedness plans; and (iv) Other relevant information as determined by the State agency. (2) The plan shall include information describing the involvement of the head of the State agency in the development, revision, and implementation of emergency and disaster preparedness plans, including the State Public Health Emergency Preparedness and Response Plan. E:\FR\FM\14FER4.SGM 14FER4 11680 Federal Register / Vol. 89, No. 31 / Wednesday, February 14, 2024 / Rules and Regulations (3) The plan shall discuss coordination with area agencies on aging and service providers and Tribal and local emergency management. (b) Area agencies on aging. (1) Area agencies on aging shall establish emergency plans. Such plans must include: (i) The area agency’s continuity of operations plan and an all-hazards emergency response plan based on completed risk assessments for all hazards and updated annually; (ii) A description of coordination activities for both development and implementation of long-range emergency and disaster preparedness plans; and (iii) Other information as deemed appropriate by the area agency on aging. (2) The area agency on aging shall coordinate with Federal, local, and State emergency response agencies, service providers, relief organizations, local and State governments, and any other entities that have responsibility for disaster relief service delivery, as well as with Tribal emergency management, as appropriate. ddrumheller on DSK120RN23PROD with RULES4 § 1321.99 Setting aside funds to address disasters. (a) Section 310 of the Act (42 U.S.C. 3030) authorizes the use of funds during Presidentially declared major disaster declarations under the Stafford Act (42 U.S.C. 5121–5207) without regard to distribution through the State agency’s intrastate funding formula or funds distribution plan when the following apply: (1) Title III services are impacted; and (2) Flexibility is needed as determined by the State agency. (b) When implementing this authority, State agencies may set aside funds, up to five percent of their total Title III allocations, if specified as being allowed to be withheld for the purpose in their approved intrastate funding formula or funds distribution plan, or with prior approval from the Assistant Secretary for Aging. The following apply for use of set aside funds: (1) Set aside funds that are awarded under this provision must comply with the requirements at § 1321.101; and (2) The State agency must have policies and procedures in place to award funds set aside through the intrastate funding formula, as set forth in § 1321.49, or funds distribution plan, as set forth in § 1321.51(b), if there are no funds awarded subject to this provision within 30 days of the end of the fiscal year in which the funds were received. VerDate Sep<11>2014 20:33 Feb 13, 2024 Jkt 262001 § 1321.101 Flexibilities under a major disaster declaration. (a) If a State or Indian Tribe requests and receives a major disaster declaration under the Stafford Act (42 U.S.C. 5121– 5207), the State agency may use disaster relief flexibilities under Title III as set forth in this section to provide disaster relief services for areas of the State where the specific major disaster declaration is authorized and where older adults and family caregivers are affected. (b) Flexibilities a State agency may exercise under a major disaster declaration include: (1) Allowing use of any portion of the funds of any open grant awards under Title III of the Act for disaster relief services for older individuals and family caregivers. (2) Awarding portions of State plan administration, up to a maximum of five percent of the Title III grant award or to a maximum of the amounts set forth at § 1321.9(c)(2)(iv), for use in a planning and service area covered in whole or part under a major disaster declaration without the requirement of allocation through the intrastate funding formula or funds distribution plan to be used for direct service provision. (3) Awarding of funds set aside to address disasters, as set forth in § 1321.99, or as determined by the Assistant Secretary for Aging, in the following ways: (i) to an area agency serving a planning and service area covered in whole or part under a major disaster declaration without the requirement of allocation through the intrastate funding formula; (ii) for single planning and service area States, to a service provider without the requirement of allocation through a funds distribution plan; or (iii) to be used for direct service provision, direct expenditures, and/or procurement of items on a statewide level, if the State agency adheres to the following: (A) The State agency judges that provision of services or procurement of supplies by the State agency is necessary to ensure an adequate supply of such services and/or that such services can be provided/supplies procured more economically, and with comparable quality, by the State agency; (B) The State agency consults with area agencies on aging prior to exercising the flexibility, and includes the Ombudsman as set forth in part 1324, subpart A if funding for the Ombudsman program is affected; (C) The State agency uses such set aside funding, as provided at § 1321.99, for services provided through area PO 00000 Frm 00116 Fmt 4701 Sfmt 4700 agencies on aging and other aging network partners to the extent reasonably practicable, in the judgment of the State agency; and (D) The State agency ensures reporting of any clients, units, and services provided through such expenditures. (c) A State agency must submit a State plan amendment as set forth in § 1321.31(b) if the State agency exercises any of the flexibilities as set forth in paragraph (b) of this section. The State plan amendment must at a minimum include the specific entities receiving funds; the amount, source, and intended use for funds; and other such justification of the use of funds. (d) Disaster relief services may include any allowable services under the Act to eligible older individuals or family caregivers during the period covered by the major disaster declaration. (e) Expenditures of funds under disaster relief flexibilities must be reported separately from the grant where funding was expended. State agencies may expend funds from any source within open grant awards under Title III and Title VII of the Act but must track the source of all expenditures. (f) State agencies must have policies and procedures outlining communication with area agencies on aging and/or local service providers regarding State agency expectations for eligibility, use, and reporting of services and funds provided under these flexibilities, and include the Ombudsman as set forth in part 1324, subpart A if funding for the Ombudsman program is affected. (g) A State agency may only make obligations exercising this flexibility during the major disaster declaration incident period or 90 days thereafter or with prior approval from the Assistant Secretary for Aging. § 1321.103 Title III and Title VI coordination for emergency and disaster preparedness. State agencies, area agencies, and Title VI programs should coordinate in emergency and disaster preparedness planning, response, and recovery. State agencies and area agencies that have Title VI programs in operation within their jurisdictions must have policies and procedures, developed in communication with the relevant Title VI program director(s) as set forth in § 1322.13(c), in place for how they will communicate and coordinate with Title VI programs regarding emergency and disaster preparedness planning, response, and recovery. E:\FR\FM\14FER4.SGM 14FER4 Federal Register / Vol. 89, No. 31 / Wednesday, February 14, 2024 / Rules and Regulations § 1321.105 Modification during major disaster declaration or public health emergency. The Assistant Secretary for Aging retains the right to modify the requirements described in these regulations pursuant to a major disaster declaration or public health emergency. ■ 2. Revise part 1322 to read as follows: PART 1322—GRANTS TO INDIAN TRIBES AND NATIVE HAWAIIAN GRANTEES FOR SUPPORTIVE, NUTRITION, AND CAREGIVER SERVICES Sec. Subpart A—Introduction 1322.1 Basis and purpose of this part. 1322.3 Definitions. § 1322.3 Subpart B—Application 1322.5 Application requirements. 1322.7 Application approval. 1322.9 Hearing procedures. Subpart C—Service Requirements 1322.11 Purpose of services allotments under Title VI. 1322.13 Policies and procedures. 1322.15 Confidentiality and disclosure of information. 1322.17 Purpose of services—person- and family-centered, trauma-informed. 1322.19 Responsibilities of service providers. 1322.21 Client eligibility for participation. 1322.23 Client and service priority. 1322.25 Supportive services. 1322.27 Nutrition services. 1322.29 Family caregiver support services. 1322.31 Title VI and Title III coordination. Subpart D—Emergency and Disaster Requirements 1322.33 Coordination with Tribal, State, and local emergency management. 1322.35 Flexibilities under a major disaster declaration. 1322.37 Title VI and Title III coordination for emergency and disaster preparedness. 1322.39 Modification during major disaster declaration or public health emergency. Authority: 42 U.S.C. 3001 et seq. Subpart A—Introduction ddrumheller on DSK120RN23PROD with RULES4 § 1322.1 Basis and purpose of this part. (a) This program is established to meet the unique needs and circumstances of American Indian and Alaskan Native elders and family caregivers and of older Native Hawaiians and family caregivers, on Indian reservations and/or in service areas as approved in § 1322.7. This program honors the sovereign government to government relationship with a Tribal organization serving elders and family caregivers through direct grants to serve the eligible participants and similar considerations, as VerDate Sep<11>2014 20:33 Feb 13, 2024 Jkt 262001 appropriate, for Hawaiian Native grantees representing elders and family caregivers. This part implements Title VI (parts A, B, and C) of the Older Americans Act, as amended (the Act), by establishing the requirements that an Indian Tribal organization or Hawaiian Native grantee shall meet in order to receive a grant to promote the delivery of services for older Indians, Alaskan Native, Native Hawaiians, and Native American family caregivers that are comparable to services provided under Title III. This part also prescribes application and hearing requirements and procedures for these grants. (b) Terms used, but not otherwise defined, in this part will have the meanings ascribed to them in the Act. Definitions. Access to services or access services, as used in this part, means services which may facilitate connection to or receipt of other direct services, including transportation, outreach, information and assistance, options counseling, and case management services. Acquiring, as used in this part, means obtaining ownership of an existing facility. Act, means the Older Americans Act of 1965 as amended. Altering or renovating, as used in this part, means making modifications to or in connection with an existing facility which are necessary for its effective use. Such modifications may include alterations, improvements, replacements, rearrangements, installations, renovations, repairs, expansions, upgrades, or additions, which are not in excess of double the square footage of the original facility and all physical improvements. Area agency on aging, as used in this part, means a single agency designated by the State agency to perform the functions specified in the Act for a planning and service area. Budgeting period, as used in § 1322.19, means the intervals of time into which a period of assistance (project period) is divided for budgetary and funding purposes. Constructing, as used in this part, means building a new facility, including the costs of land acquisition and architectural and engineering fees, or making modifications to or in connection with an existing facility which are in excess of double the square footage of the original facility and all physical improvements. Department, means the U.S. Department of Health and Human Services. PO 00000 Frm 00117 Fmt 4701 Sfmt 4700 11681 Domestically produced foods, as used in this part, means agricultural foods, beverages and other food ingredients which are a product of the United States, its Territories or possessions, the Commonwealth of Puerto Rico, or the Trust Territories of the Pacific Islands (hereinafter referred to as ‘‘the United States’’), except as may otherwise be required by law, and shall be considered to be such a product if it is grown, processed, and otherwise prepared for sale or distribution exclusively in the United States except with respect to minor ingredients. Ingredients from nondomestic sources will be allowed to be utilized as a United States product if such ingredients are not otherwise: (1) Produced in the United States; and (2) Commercially available in the United States at fair and reasonable prices from domestic sources. Eligible organization, means either a Tribal organization or a public or nonprofit private organization having the capacity to provide services under this part for older Hawaiian Natives. Family caregiver, as used in this part, means an adult family member, or another individual, who is an informal provider of in-home and community care to an older Native American; an adult family member, or another individual, who is an informal provider of in-home and community care to an individual of any age with Alzheimer’s disease or a related disorder with neurological and organic brain dysfunction; or an older relative caregiver. For purposes of this part, family caregiver does not include individuals whose primary relationship with the older adult is based on a financial or professional agreement. Hawaiian Native or Native Hawaiian, as used in this part, means any individual, any of whose ancestors were native of the area which consists of the Hawaiian Islands prior to 1778. Hawaiian Native grantee, as used in this part, means an eligible organization that has received funds under Title VI of the Act to provide services to older Hawaiians. Indian reservation, means the reservation of any Federally recognized Indian Tribe, including any band, nation, pueblo, or rancheria, any former reservation in Oklahoma, any community on non-trust land under the jurisdiction of an Indian Tribe, including a band, nation, pueblo, or rancheria, with allotted lands, or lands subject to a restriction against alienation imposed by the United States, and Alaska Native regions established, pursuant to the Alaska Native Claims Settlement Act (43 U.S.C. 1601 et seq.). E:\FR\FM\14FER4.SGM 14FER4 ddrumheller on DSK120RN23PROD with RULES4 11682 Federal Register / Vol. 89, No. 31 / Wednesday, February 14, 2024 / Rules and Regulations Indian Tribe, means any Indian Tribe, band, nation, or organized group or community, including any Alaska Native village, regional or village corporation as defined in or established pursuant to the Alaska Native Claims Settlement Act (43 U.S.C. 1601 et seq.) which is recognized as eligible for the special programs and services provided by the United States to Indians because of their status as Indians (25 U.S.C. 450b). In-home supportive services, as used in this part, references those supportive services provided in the home as set forth in the Act, to include: (1) Homemaker, personal care, home care, home health, and other aides; (2) Visiting and telephone or virtual reassurance; (3) Chore maintenance; (4) Respite care for families, including adult day care as a respite service for families; and (5) Minor modification of homes that is necessary to facilitate the independence and health of older Native Americans and that is not readily available under another program. Major disaster declaration, as used in this part and section 310 of the Act (42 U.S.C. 3030), means a Presidentially declared disaster under the Robert T. Stafford Relief and Emergency Assistance Act (42 U.S.C. 5121–5207). Means test, as used in this part in the provision of services, means the use of the income, assets, or other resources of an older Native American, family caregiver, or the households thereof to deny or limit that person’s eligibility to receive services under this part. Multipurpose senior center, as used in the Act, means a community facility for the organization and provision of a broad spectrum of services, which shall include provision of health (including mental and behavioral health), social, nutritional, and educational services and the provision of facilities for recreational activities for older Native Americans, as practicable, including as provided via virtual facilities; as used in § 1322.25, facilitation of services in such a facility. Native American, as used in the Act, means a person who is a member of any Indian Tribe, band, nation, or other organized group or community of Indians (including any Alaska Native village or regional or village corporation as defined in or established pursuant to the Alaska Native Claims Settlement Act (43 U.S.C. 1601 et seq.) who: (1) Is recognized as eligible for the special programs and services provided by the United States to Indians because of their status as Indians; or VerDate Sep<11>2014 20:33 Feb 13, 2024 Jkt 262001 (2) Is located on, or in proximity to, a Federal or State reservation or rancheria; or is a person who is a Native Hawaiian, who is any individual any of whose ancestors were natives of the area which consists of the Hawaiian Islands prior to 1778. Nutrition Services Incentive Program, as used in the Act, means grant funding to State agencies, eligible Tribal organizations, and Native Hawaiian grantees to support congregate and home-delivered nutrition programs by providing an incentive to serve more meals. Older Indians, means those individuals who have attained the minimum age determined by the Indian Tribe for services. Older Native Hawaiian, means any individual, age 60 or over, who is a Hawaiian Native. Older relative caregiver, as used in section 631 of the Act (42 U.S.C. 3057k– 11), means a caregiver who is age 55 or older and lives with, is the informal provider of in-home and community care to, and is the primary caregiver for, a child or an individual with a disability; (1) In the case of a caregiver for a child is: (i) The grandparent, step-grandparent, or other relative (other than the parent) by blood, marriage, or adoption, of the child; (ii) Is the primary caregiver of the child because the biological or adoptive parents are unable or unwilling to serve as the primary caregivers of the child; and (iii) Has a legal relationship to the child, such as legal custody, adoption, or guardianship, or is raising the child informally; and (2) In the case of a caregiver for an individual with a disability, is the parent, grandparent, step-grandparent, or other relative by blood, marriage, or adoption of the individual with a disability. Program income, as defined in 2 CFR part 200.1 means gross income earned by the non-Federal entity that is directly generated by a supported activity or earned as a result of the Federal award during the period of performance except as provided in 2 CFR 200.307(f). Program income includes but is not limited to income from fees for services performed, the use or rental of real or personal property acquired under Federal awards, the sale of commodities or items fabricated under a Federal award, license fees and royalties on patents and copyrights, and principal and interest on loans made with Federal award funds. Interest earned on advances of Federal funds is not PO 00000 Frm 00118 Fmt 4701 Sfmt 4700 program income. Except as otherwise provided in Federal statutes, regulations, or the terms and conditions of the Federal award, program income does not include rebates, credits, discounts, and interest earned on any of them. See also 2 CFR 200.307, 200.407 and 35 U.S.C. 200–212 (which applies to inventions made under Federal awards). Project period, as used in § 1322.19, means the total time for which a project is approved including any extensions. Reservation, as used in section 305(b)(2) of the Act (42 U.S.C. 3025(b)(2)) with respect to the designation of planning and service areas, means any Federally or State recognized American Indian Tribe’s reservation, pueblo, or colony, including former reservations in Oklahoma, Alaska Native regions established pursuant to the Alaska Native Claims Settlement Act (85 Stat. 688), and Indian allotments. Service area, as used in § 1322.5(b) and elsewhere in this part, means that geographic area approved by the Assistant Secretary for Aging in which the Tribal organization or Hawaiian Native grantee provides supportive, nutrition, and/or family caregiver support services to older Indians or Native Hawaiians residing there. Service areas are approved through the funding application process, which may include Bureau of Indian Affairs service area maps. A service area may include all or part of the reservation or any portion of a county or counties which has a common boundary with the reservation. A service area may also include a noncontiguous area if the designation of such an area will further the purpose of the Act and will provide for more effective administration of the program by the Tribal organization. Service provider, means an entity that is awarded funds, including via a grant, subgrant, contract, or subcontract, from a Tribal organization or Native Hawaiian grantee to provide direct services under this part. State agency, as used in this part, means the designated State unit on aging for each of the 50 States, the District of Columbia, and the Territories of Guam, Puerto Rico, the United States Virgin Islands, American Samoa, and the Commonwealth of the Northern Mariana Islands, unless otherwise specified. Title VI director, as used in this part, means a single individual who is the key personnel responsible for day-today management of the Title VI program and who serves as a contact point for communications regarding the Title VI program. E:\FR\FM\14FER4.SGM 14FER4 Federal Register / Vol. 89, No. 31 / Wednesday, February 14, 2024 / Rules and Regulations Tribal organization, as used in this part, means the recognized governing body of any Indian Tribe, or any legally established organization of Indians which is controlled, sanctioned, or chartered by such governing body or which is democratically elected by the adult members of the Indian community to be served by such organization and which includes the maximum participation of Indians in all phases of its activities. Provided that in any case where a contract is let or grant made to an organization to perform services benefiting more than one Indian Tribe, the approval of each Indian Tribe shall be a prerequisite to the letting or making of the contract or grant (25 U.S.C. 450b). Voluntary contributions, as used in section 315(b) of the Act (42 U.S.C. 3030c–2(b)), means donations of money or other personal resources given freely, without pressure or coercion, by individuals receiving services under the Act. Subpart B—Application ddrumheller on DSK120RN23PROD with RULES4 § 1322.5 Application requirements. An eligible organization shall submit an application. The application shall be submitted as prescribed in section 614 of the Act (42 U.S.C. 3057e) and in accordance with the Assistant Secretary for Aging’s instructions for the specified project and budget periods. In addition to the requirements set out in section 614 of the Act (42 U.S.C. 3057e), the application shall provide for: (a) Program objectives, as set forth in section 614(a)(5) of the Act (42 U.S.C. 3057e(a)(5)), and any objectives established by the Assistant Secretary for Aging; (b) A map and/or description of the geographic boundaries of the service area proposed by the eligible organization, which may include Bureau of Indian Affairs service area maps; (c) Documentation of the ability of the eligible organization to deliver supportive and nutrition services to older Native Americans, or documentation that the eligible organization has effectively administered supportive and nutrition services within the last 3 years; (d) Assurances as prescribed by the Assistant Secretary for Aging that: (1) The eligible organization represents at least 50 individuals who have attained 60 years of age or older and reside in the service area; (2) The eligible organization shall comply with all applicable State and local license and safety requirements, if any, for the provision of those services; VerDate Sep<11>2014 20:33 Feb 13, 2024 Jkt 262001 (3) If a substantial number of the older Native Americans residing in the service area are limited English proficient, the Tribal organization shall utilize the services of workers who are fluent in the language used by a predominant number of older Native Americans; (4) Procedures to ensure that all services under this part are provided without use of any means tests; (5) The eligible organization shall comply with all requirements set forth in §§ 1322.7 through 1322.17; (6) The services provided under this part shall be coordinated, where applicable, with services provided under Title III of the Act as set forth in 45 CFR part 1321 and Title VII of the Act as set forth in 45 CFR part 1324, and the eligible organization shall establish and follow policies and procedures as set forth in § 1322.13; (7) The eligible organization shall have a completed needs assessment within the project period immediately prior to the application identifying the need for nutrition and supportive services for older Native Americans and, if applying for funds under Title VI part C, for family caregivers; (8) The eligible organization shall ensure policies and procedures are aligned with periodic data collection and reporting requirements, including ensuring service and unit definitions are consistent with definitions set forth in these regulations, policy guidance, and other information developed by the Assistant Secretary for Aging; and (9) The eligible organization shall complete a program evaluation using data as set forth by the Assistant Secretary for Aging and shall use findings of such program evaluation to establish and update program goals and objectives. (e) A Tribal resolution(s) authorizing the Tribal organization to apply for a grant under this part; and (f) Signature by the principal official of the Indian Tribe or eligible organization. § 1322.7 Application approval. (a) Approval of any application under section 614(e) of the Act (42 U.S.C. 3057e(e)), shall not commit the Assistant Secretary for Aging in any way to make additional, supplemental, continuation, or other awards with respect to any approved application. (b) The Assistant Secretary for Aging may give first priority in awarding grants to grantees that have effectively administered such grants in the prior year. (c) Upon approval of an application and acceptance of the funding award, the Tribal organization or Hawaiian PO 00000 Frm 00119 Fmt 4701 Sfmt 4700 11683 Native grantee is required to submit all performance and fiscal reporting as set forth by the Assistant Secretary for Aging on a no less than an annual basis. (d) If the Assistant Secretary for Aging disapproves of an application, the Assistant Secretary for Aging must follow procedures outlined in section 614(d) of the Act (42 U.S.C. 3057e(d)). § 1322.9 Hearing procedures. In meeting the requirements of section 614(d)(3) of the Act (42 U.S.C. 3057e(d)(3)), if the Assistant Secretary for Aging disapproves an application from an eligible organization, the eligible organization may file a written request for a hearing with the Departmental Appeals Board (DAB) in accordance with 45 CFR part 16. (a) The request shall be postmarked or delivered in person within 30 days of the date of the disapproval notice. If it requests a hearing, the eligible organization shall submit to the DAB, as part of the request, a full written response to each objection specified in the notice of disapproval, including the pertinent facts and reasons in support of its response, and all documentation to support its position as well as any documentation requested by the DAB. (b) Upon receipt of appeal for reconsideration of a rejected application or activities proposed by an applicant, the DAB will notify the applicant by certified mail that the appeal has been received. (c) The DAB may refer an appeal to its Alternative Dispute Resolution Division for mediation prior to making a decision. After consideration of the record, the DAB will issue a written decision, based on the record, that sets forth the reasons for the decision and the evidence on which it was based. A disapproval decision issued by the DAB represents the final determination of the Assistant Secretary for Aging and remains in effect unless reversed or stayed on judicial appeal, except that the Assistant Secretary for Aging may modify or set aside the decision before the record of the proceedings under this subpart is filed in court. (d) Either the eligible organization or the staff of the Administration on Aging may request for good cause an extension of any of the time limits specified in this section. Subpart C—Service Requirements § 1322.11 Purpose of services allotments under Title VI. (a) Title VI of the Act authorizes the distribution of Federal funds to Tribal organizations and a Hawaiian Native grantee for the following categories of services: E:\FR\FM\14FER4.SGM 14FER4 11684 Federal Register / Vol. 89, No. 31 / Wednesday, February 14, 2024 / Rules and Regulations (1) Supportive services; (2) Nutrition services; and (3) Family caregiver support program services. (b) Funds authorized under these categories are for the purpose of assisting a Tribal organization or Hawaiian Native grantee to develop or enhance comprehensive and coordinated community-based systems for older Native Americans and family caregivers. ddrumheller on DSK120RN23PROD with RULES4 § 1322.13 Policies and procedures. The Tribal organization and Hawaiian Native grantee shall ensure the development and implementation of policies and procedures, including those required as set forth in this part. (a) Upon approval of a program application and acceptance of funding, the Tribal organization or Hawaiian Native grantee must appoint a Title VI Director and provide appropriate contact information for the Title VI Director consistent with guidance from the Assistant Secretary for Aging. (b) The Tribal organization or Hawaiian Native grantee shall provide the Assistant Secretary for Aging with statistical and other information in order to meet planning, coordination, evaluation and reporting requirements in a timely manner and shall ensure policies and procedures are aligned with periodic data collection and reporting requirements, including ensuring service and unit definitions are consistent with definitions set forth in these regulations, policy guidance, and other information developed by the Assistant Secretary for Aging. (c) A Tribal organization or Hawaiian Native grantee must maintain program policies and procedures. Policies and procedures shall address: (1) Direct service provision, including: (i) Requirements for client eligibility, periodic assessment, and personcentered planning, where appropriate; (ii) Access to information and assistance to minimally address: (A) Establishing or having a list of all services that are available to older Native Americans in the service area; (B) Maintaining a list of services needed or requested by older Native Americans; (C) Providing assistance to older Native Americans to help them take advantage of available services; (D) Working with agencies, such as area agencies on aging and other programs funded by Title III and Title VII as set forth in §§ 1321.53 and 1321.69 of this chapter, to facilitate participation of older Native Americans; and VerDate Sep<11>2014 20:33 Feb 13, 2024 Jkt 262001 (E) A listing and definitions of services that may be provided by the Tribal organization or Native Hawaiian grantee with funds received under the Act. (iii) Limitations on the frequency, amount, or type of service provided; and (iv) The grievance process for older individuals and family caregivers who are dissatisfied with or denied services under the Act. (2) Fiscal requirements including: (i) Voluntary contributions. Voluntary contributions, where: (A) Each Tribal organization or Hawaiian Native grantee shall: (1) Provide each older Native American with a voluntary opportunity to contribute to the cost of the service; (2) Protect the privacy of each older Native American with respect to their contribution; (3) Establish appropriate procedures to safeguard and account for all contributions; (4) Use all voluntary contributions to expand comprehensive and coordinated services systems supported under this part, while using voluntary contributions provided for nutrition services only to expand nutrition services, consistent with § 1322.27. (B) Each Tribal organization or Native Hawaiian grantee may develop a suggested contribution schedule for services provided under this part. In developing a contribution schedule, the Tribal organization or Native Hawaiian grantee shall consider the income ranges of older Native Americans in the service area and the Tribal organization’s or Hawaiian Native grantee’s other sources of income. However, means tests may not be used. (C) A Tribal organization or Hawaiian Native grantee that receives funds under this part may not deny any older Native American a service because the older Native American will not or cannot contribute to the cost of the service. (ii) Buildings and equipment. Buildings and equipment, where costs incurred for altering or renovating, utilities, insurance, security, necessary maintenance, janitorial services, repair, and upkeep (including Federal property unless otherwise provided for) to keep buildings and equipment in an efficient operating condition, may be an allowable use of funds if: (A) Costs are not payable by third parties through rental or other agreements; (B) Costs support an allowed activity under Title VI part A, B, or C of the Act and are allocated proportionally to the benefiting grant program; PO 00000 Frm 00120 Fmt 4701 Sfmt 4700 (C) Constructing and acquiring activities are only allowable for multipurpose senior centers; (D) In addition to complying with 2 CFR part 200, the Tribal organization or Native Hawaiian grantee (and all other necessary parties) must file a Notice of Federal Interest in the appropriate official records of the jurisdiction where the property is located at the time of acquisition or prior to commencement of construction, as applicable. The Notice of Federal Interest must indicate that the acquisition or construction has been funded with an award under Title VI of the Act and that inquiries regarding the Federal Government’s interest in the property should be directed in writing to the Assistant Secretary for Aging; (E) Altering and renovating activities are allowable for facilities providing services with funds provided as set forth in this part and as subject to 2 CFR part 200. (iii) Supplement, not supplant. Funds awarded under this part must be used to supplement, not supplant existing Federal, State, and local funds expended to support activities. (d) The Tribal organization or Hawaiian Native grantee must develop a monitoring process ensuring the quality and effectiveness of services regarding meeting participant needs, the goals outlined within the approved application, and Tribal organization requirements. § 1322.15 Confidentiality and disclosure of information. A Tribal organization or Hawaiian Native grantee shall develop and maintain confidentiality and disclosure procedures as follows: (a) A Tribal organization or Hawaiian Native grantee shall have procedures to ensure that no information about an older Native American or obtained from an older Native American by any provider of services is disclosed by the provider of such services in a form that identifies the person without the informed consent of the person or their legal representative, unless the disclosure is required by court order, or for program monitoring by authorized Federal or Tribal monitoring agencies. (b) A Tribal organization or Hawaiian Native grantee is not required to disclose those types of information or documents that are exempt from disclosure by a Federal agency under the Federal Freedom of Information Act (5 U.S.C. 552). (c) A Tribal organization or Hawaiian Native grantee shall not require a provider of legal assistance under this E:\FR\FM\14FER4.SGM 14FER4 Federal Register / Vol. 89, No. 31 / Wednesday, February 14, 2024 / Rules and Regulations part to reveal any information that is protected by attorney client privilege. (d) The Tribal organization or Hawaiian Native grantee must have policies and procedures that ensure that entities providing services under this title promote the rights of each older Native American who receives such services. Such rights include the right to confidentiality of records relating to such Native American. (e) A Tribal organization’s or Hawaiian Native grantee’s 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, as appropriate, in order to provide services. (f) A Tribal organization’s or Hawaiian Native grantee’s policies and procedures must comply with all applicable Federal laws, codes, rules, and regulations, including the Health Insurance Portability and Accountability Act (HIPAA) (42 U.S.C. 1301 et seq.), as well as guidance as the Tribal organization or Hawaiian Native grantee determines, for the collection, use, and exchange of both Personal Identifiable Information (PII) and personal health information in the provision of Title VI services under the Act. ddrumheller on DSK120RN23PROD with RULES4 § 1322.17 Purpose of services—personand family-centered, trauma-informed. (a) Services must be provided to older Native Americans and family caregivers in a manner that is person-centered, trauma-informed, and culturally sensitive. Services should be consistent with culturally appropriate holistic traditional care and responsive to their interests, physical and mental health, social and cultural needs, available supports, and desire to live where and with whom they choose. Personcentered services may include community-centered and familycentered approaches consistent with the traditions, practices, beliefs, and cultural norms and expectations of the Tribal organization or Hawaiian Native grantee. (b) Services should, as appropriate, be consistent with culturally appropriate holistic traditional care and provide older Native Americans and family caregivers with the opportunity to develop a person-centered plan that is led by the individual or, if applicable, by the individual and the individual’s authorized representative. Services should be incorporated into existing person-centered plans, as appropriate. (c) Tribal organizations and Hawaiian Native grantees should provide training VerDate Sep<11>2014 20:33 Feb 13, 2024 Jkt 262001 to staff and volunteers on culturally appropriate holistic traditional care and person-centered and trauma-informed service provision. § 1322.19 Responsibilities of service providers. As a condition for receipt of funds under this part, each Tribal organization and Hawaiian Native grantee shall assure that providers of services shall: (a) Provide service participants with an opportunity to contribute to the cost of the service as provided in § 1322.13(c)(2)(i); (b) Provide, to the extent feasible, for the furnishing of services under this Act, through self-direction; (c) With the consent of the older Native American, or their legal representative if there is one, or in accordance with local adult protective services requirements, bring to the attention of adult protective services or other appropriate officials for follow-up, conditions or circumstances which place the older Native American, or the household of the older Native American, in imminent danger; (d) Where feasible and appropriate, make arrangements for the availability of services to older Native Americans and family caregivers in weather-related and other emergencies; (e) Assist participants in taking advantage of benefits under other programs; (f) Assure that all services funded under this part are coordinated with other appropriate services in the community, and that these services do not constitute an unnecessary duplication of services provided by other sources; and (g) Receive training to provide services in a culturally competent manner and consistent with §§ 1322.13 through 1322.17. § 1322.21 Client eligibility for participation. (a) An individual must have attained the minimum age determined by the Tribal organization or Hawaiian Native grantee as specified in their approved application, to be eligible to participate in services under the Act, unless the Act otherwise provides an explicit exception. Exceptions are limited to the following specific services: (1) Nutrition services: (i) Services shall be available to spouses of any age of older Native Americans; (ii) Services may be available to: (A) A person with a disability who lives with an adult, age 60 or older, or who resides in a housing facility that is primarily occupied by older adults at which congregate meals are served; and PO 00000 Frm 00121 Fmt 4701 Sfmt 4700 11685 (B) A volunteer during meal hours. (2) Family caregiver support services for: (i) Adults caring for older Native Americans or individuals of any age with Alzheimer’s or related disorder; (ii) Older relative caregivers who are caring for children and are not the biological or adoptive parent of the child, where older relative caregivers shall no longer be eligible for services under this part when the child reaches 18 years of age; or (iii) Older relative caregivers who are caring for individuals age 18 to 59 with disabilities, and who may be of any relationship, including the biological or adoptive parent. (3) Services such as information and assistance and public education, where recipients of information may not be older Native Americans, but the information is targeted to those who are older Native Americans and/or benefits those who are older Native Americans. (b) A Tribal organization or Hawaiian Native grantee may develop further eligibility requirements for implementation of services for older Native Americans and family caregivers, consistent with the Act and all applicable Federal requirements. Such requirements may include: (1) Assessment of functional and support needs; (2) Geographic boundaries; (3) Limitations on number of persons that may be served; (4) Limitations on number of units of service that may be provided; (5) Limitations due to availability of staff/volunteers; (6) Limitations to avoid duplication of services; (7) Specification of settings where services shall or may be provided; (8) Whether to serve Native Americans who have Tribal or Native Hawaiian membership other than those who are specified in the Tribal organization’s or Hawaiian Native grantee’s approved application; and (9) Whether to serve older individuals or family caregivers who are non-Native Americans but live within the approved service area and are considered members of the community by the Tribal organization. § 1322.23 Client and service priority. (a) The Tribal organization or Hawaiian Native grantee shall ensure service to those identified as members of priority groups through their assessment of local needs and resources. (b) The Tribal organization or Hawaiian Native grantee shall identify criteria for being given priority in the delivery of services under Title VI, parts E:\FR\FM\14FER4.SGM 14FER4 11686 Federal Register / Vol. 89, No. 31 / Wednesday, February 14, 2024 / Rules and Regulations A or B, consistent with the Act and all applicable Federal requirements. (c) The Tribal organization or Hawaiian Native grantee shall identify criteria for being given priority in the delivery of services under Title VI, part C, consistent with the Act and all applicable Federal requirements: (1) Caregivers who are older Native Americans with greatest social need, and older Native Americans with greatest economic need (with particular attention to low-income older individuals); (2) Caregivers who provide care for individuals with Alzheimer’s disease and related disorders with neurological and organic brain dysfunction; and (3) When serving older relative caregivers, older relative caregivers of children or adults with severe disabilities shall be given priority. ddrumheller on DSK120RN23PROD with RULES4 § 1322.25 Supportive services. (a) Supportive services are community-based interventions as set forth in Title VI of the Act, are intended to be comparable to such services set forth under Title III, and meet standards established by the Assistant Secretary for Aging. They include in-home supportive services, access services, which may include multipurpose senior centers, and legal services. (b) A Tribal organization or Hawaiian Native grantee may provide any of the supportive services mentioned under Title III of the Act, and any other supportive services that are necessary for the general welfare of older Native Americans and older Hawaiian Natives. (c) A Tribal organization or Hawaiian Native grantee may allow use of Title VI, part A and B funds, respectively, for acquiring, altering or renovating, or constructing facilities to serve as multipurpose senior centers, in accordance with guidance as set forth by the Assistant Secretary for Aging. (d) For those Title VI, parts A and B services intended to benefit family caregivers, a Tribal organization or Hawaiian Native grantee, respectively, shall ensure that there is coordination and no duplication of such services available under Title VI, part C or Title III. (e) If a Tribal organization or Hawaiian Native grantee elects to provide legal services, it shall comply with the requirements in § 1321.93 of this chapter and legal services providers shall comply fully with the requirements in § 1321.93(f) of this chapter. § 1322.27 Nutrition services. (a) Nutrition services are communitybased interventions as set forth in Title VerDate Sep<11>2014 20:33 Feb 13, 2024 Jkt 262001 VI, parts A and B of the Act, and as further defined by the Assistant Secretary for Aging. Nutrition services include congregate meals, homedelivered meals, nutrition education, nutrition counseling, and other nutrition services. (1) Congregate meals are meals meeting the Dietary Guidelines for Americans and Dietary Reference Intakes as set forth in section 339 of the Act (42 U.S.C. 3030g–21) provided by a qualified nutrition service provider to eligible individuals and consumed while congregating virtually, in-person, or in community off-site. (2) Home-delivered meals are meals meeting the Dietary Guidelines for Americans and Dietary Reference Intakes as set forth in section 339 of the Act (42 U.S.C. 3030g–21) provided by a qualified nutrition service provider to eligible individuals and consumed at their residence or otherwise outside of a congregate setting, as organized by a service provider under the Act. Meals may be provided via home delivery, pick-up, carry-out or drive-through, or through other service as determined by the Tribal organization or Hawaiian Native grantee. (i) Eligibility criteria for homedelivered meals, as determined by the Tribal organization or Hawaiian Native grantee, may include consideration of an individual’s ability to leave home unassisted, ability to shop for and prepare nutritious meals, degree of disability, or other relevant factors pertaining to their need for the service. (ii) Home-delivered meals providers may encourage meal participants to attend congregate meal sites and other health and wellness activities, as feasible, based on a person-centered approach and local service availability. (3) Nutrition education is information provided which provides individuals with the knowledge and skills to make healthy food and beverage choices. Congregate and home-delivered nutrition services may provide nutrition education, as appropriate, based on the needs of meal participants. (4) Nutrition counseling is a standardized service provided which must align with the Academy of Nutrition and Dietetics. Congregate and home-delivered nutrition services may provide nutrition counseling, as appropriate, based on the needs of meal participants. (5) Other nutrition services include additional services that may be provided to meet nutritional needs or preferences, such as weighted utensils, supplemental foods, or food items, based on the needs of eligible participants. PO 00000 Frm 00122 Fmt 4701 Sfmt 4700 (b) The Tribal organization or Hawaiian Native grantee shall provide congregate meals and home-delivered meals to eligible participants and may provide nutrition education, nutrition counseling, and other nutrition services, as available. As set forth in section 614(a)(8) of the Act (42 U.S.C. 3057e(a)(8)), if the need for nutrition services is met from other sources, the Tribal organization or Hawaiian Native grantee may use the available funding under the Act for supportive services. (c) Nutrition Services Incentive Program allocations are available to a Tribal organization or Hawaiian Native grantee that provides nutrition services where: (1) Nutrition Services Incentive Program allocation amounts are based on the number of meals reported by the Tribal organization or Hawaiian Native grantee which meet the following requirements: (i) The meal is served to an individual who is eligible to receive services under the Act; (ii) The meal is served to an individual who has not been meanstested to receive the meal; (iii) The meal is served to an individual who has been provided the opportunity to provide a voluntary contribution to the cost of service; (iv) The meal meets the other requirements of the Act, including that the meal meets the Dietary Guidelines for Americans and Dietary Reference Intakes as set forth in section 339 of the Act (42 U.S.C. 3030g–21); and (v) The meal is served by an agency that is, or has a grant or contract with, a Tribal organization or Hawaiian Native grantee. (2) The Tribal organization or Hawaiian Native grantee may choose to receive their Nutrition Services Incentive Program grant as cash, commodities, or a combination of cash and commodities. (3) Nutrition Services Incentive Program funds may only be used to purchase domestically produced foods used in a meal as set forth under the Act. (d) Where applicable, the Tribal organization or Hawaiian Native grantee shall work with agencies responsible for administering nutrition and other programs to facilitate participation of older Native Americans. § 1322.29 services. Family caregiver support (a) Family caregiver support services are community-based interventions set forth in Title VI, part C of the Act, which meet standards set forth by the Assistant Secretary for Aging and which E:\FR\FM\14FER4.SGM 14FER4 ddrumheller on DSK120RN23PROD with RULES4 Federal Register / Vol. 89, No. 31 / Wednesday, February 14, 2024 / Rules and Regulations may be informed through the use of an evidence-informed or evidence-based caregiver assessment, including: (1) Information to caregivers about available services via public education; (2) Assistance to caregivers in gaining access to the services through: (i) Individual information and assistance; or (ii) Case management or care coordination. (3) Individual counseling, organization of support groups, and caregiver training to assist the caregivers in those areas in which they provide support, including health, nutrition, complex medical care, and financial literacy, and in making decisions and solving problems relating to their caregiving roles; (4) Respite care to enable caregivers to be temporarily relieved from their caregiving responsibilities; and (5) Supplemental services, on a limited basis, to complement the care provided by caregivers. A Tribal organization or Hawaiian Native grantee shall define ‘‘limited basis’’ for supplemental services and may consider limiting units, episodes or expenditure amounts when making this determination. (b) The Title VI Native American Family Caregiver Support Program is intended to serve unpaid family caregivers and to provide services to caregivers, not to the people for whom they care. Its primary purpose is not to pay for care for an elder. However, respite care may be provided to an unpaid family caregiver. (c) To provide services listed in paragraphs (a)(4) and (5) of this section to caregivers of older Native Americans or of individuals of any age with Alzheimer’s disease or a related disorder, the individual for whom they are caring must be determined to be functionally impaired because the individual: (1) Is unable to perform at least two activities of daily living without substantial assistance, including verbal reminding, physical cueing, or supervision; (2) At the option of the Tribal organization or Hawaiian Native grantee, is unable to perform at least three such activities without such assistance; or (3) Due to a cognitive or other mental impairment, requires substantial supervision because the individual behaves in a manner that poses a serious health or safety hazard to the individual or to another individual. § 1322.31 Title VI and Title III coordination. (a) A Tribal organization or Hawaiian Native grantee under Title VI of the Act VerDate Sep<11>2014 20:33 Feb 13, 2024 Jkt 262001 must have policies and procedures, developed in coordination with the relevant State agency, area agency or agencies, and service provider(s) that explain how the Title VI program will coordinate with Title III and/or VII funded services within the Tribal organization’s or Hawaiian Native grantee’s approved service area for which older Native Americans and family caregivers are eligible to ensure compliance with sections 614(a)(11) and 624(a)(3) of the Act (42 U.S.C. 3057e(a)(11) and 3057j(a)(3)), respectively. A Tribal organization or Hawaiian Native grantee may meet these requirements by participating in Tribal consultation with the State agency regarding Title VI programs. (b) The policies and procedures set forth in paragraph (a) of this section must at a minimum address: (1) How the Tribal organization or Hawaiian Native grantee will provide outreach to Tribal elders and family caregivers regarding services for which they may be eligible under Title III and/ or VII of the Act; (2) The communication opportunities the Tribal organization or Hawaiian Native grantee will make available to Title III and VII programs, to include meetings, email distribution lists, and presentations; (3) The methods for collaboration on and sharing of program information and changes; (4) How Title VI programs may refer individuals who are eligible for Title III services; (5) How services will be provided in a culturally appropriate and traumainformed manner; and (6) Processes the Title VI program will use for providing feedback on the State plan on aging and any area plans on aging relevant to the Tribal organization’s or Hawaiian Native grantee’s approved service area. (c) The Title VI program director, as set forth in § 1322.13(a), shall participate in the development of policies and procedures as set forth in §§ 1321.53, 1321.69, and 1321.95 of this chapter. Subpart D—Emergency and Disaster Requirements § 1322.33 Coordination with Tribal, State, and local emergency management. A Tribal organization or Hawaiian Native grantee shall establish emergency plans. Such plans must include, at a minimum: (a) A continuity of operations plan and an all-hazards emergency response plan based on completed risk assessments for all hazards and updated annually; PO 00000 Frm 00123 Fmt 4701 Sfmt 4700 11687 (b) A plan to coordinate activities with the State agency, any area agencies on aging providing Title III and VII funded services within the Tribal organization’s or Hawaiian Native grantee’s approved service area, local emergency response and management agencies, relief organizations, local governments, other State agencies responsible for emergency and disaster preparedness, and any other institutions that have responsibility for disaster relief service delivery; (c) Processes for developing and updating long-range emergency and disaster preparedness plans; and (d) Other relevant information as determined by the Tribal organization or Hawaiian Native grantee. § 1322.35 Flexibilities under a major disaster declaration. (a) If a State or Indian Tribe requests and receives a major disaster declaration under the Stafford Act (42 U.S.C. 5121– 5207), the Tribal organization or Hawaiian Native grantee may use disaster relief flexibilities as set forth in this section to provide disaster relief services within its approved service area for areas of the State or Indian Tribe where the specific major disaster declaration is authorized and where older Native Americans and family caregivers are affected. (b) Flexibilities a Tribal organization or Hawaiian Native grantee may exercise under a major disaster declaration include allowing use of any portion of the funds of any open grant awards under Title VI of the Act for disaster relief services for older individuals and family caregivers. (c) Disaster relief services may include any allowable services under the Act to eligible older Native Americans or family caregivers during the period covered by the major disaster declaration. (d) Expenditures of funds under disaster relief flexibilities must be reported separately from the grant where funding was expended. A Tribal organization or Hawaiian Native grantee may expend funds from any source within open grant awards under Title VI of the Act but must track the source of all expenditures. (e) A Tribal organization or Hawaiian Native grantee must have policies and procedures outlining eligibility, use, and reporting of services and funds provided under these flexibilities. (f) A Tribal organization or Hawaiian Native grantee may only make obligations exercising this flexibility during the major disaster declaration incident period or 90 days thereafter or E:\FR\FM\14FER4.SGM 14FER4 11688 Federal Register / Vol. 89, No. 31 / Wednesday, February 14, 2024 / Rules and Regulations with prior approval from the Assistant Secretary for Aging. Subpart A—State Long-Term Care Ombudsman Program § 1322.37 Title VI and Title III coordination for emergency and disaster preparedness. § 1324.1 A Tribal organization or Hawaiian Native grantee under Title VI of the Act and State and area agencies funded under Title III of the Act should coordinate in emergency and disaster preparedness planning, response, and recovery. A Tribal organization or Hawaiian Native grantee must have policies and procedures in place for how they will communicate and coordinate with State agencies and area agencies regarding emergency and disaster preparedness planning, response, and recovery. § 1322.39 Modification during major disaster declaration or public health emergency. The Assistant Secretary for Aging retains the right to modify the requirements described in these regulations pursuant to a major disaster declaration or public health emergency. PART 1323—[REMOVED] 3. Under the authority of 42 U.S.C. 3001 et seq., remove part 1323. ■ ■ 4. Revise part 1324 to read as follows: PART 1324—ALLOTMENTS FOR VULNERABLE ELDER RIGHTS PROTECTION ACTIVITIES Sec. Subpart A—State Long-Term Care Ombudsman Program 1324.1 Definitions. 1324.11 Establishment of the Office of the State Long-Term Care Ombudsman. 1324.13 Functions and responsibilities of the State Long-Term Care Ombudsman. 1324.15 State agency responsibilities related to the Ombudsman program. 1324.17 Responsibilities of agencies hosting local Ombudsman entities. 1324.19 Duties of the representatives of the Office. 1324.21 Conflicts of interest. ddrumheller on DSK120RN23PROD with RULES4 Subpart B—Programs for Prevention of Elder Abuse, Neglect, and Exploitation 1324.201 State agency responsibilities for the prevention of elder abuse, neglect, and exploitation. Subpart C—State Legal Assistance Development 1324.301 1324.303 Definitions. Legal Assistance Developer. Authority: 42 U.S.C. 3001 et seq. VerDate Sep<11>2014 20:33 Feb 13, 2024 Jkt 262001 Definitions. The following definitions apply to this part: Immediate family, pertaining to conflicts of interest as used in section 712 of the Older Americans Act (the Act) (42 U.S.C. 3058g), means a member of the household or a relative with whom there is a close personal or significant financial relationship. Office of the State Long-Term Care Ombudsman, as used in sections 711 and 712 of the Act (42 U.S.C. 3058f and 3058g), means the organizational unit in a State or Territory which is headed by a State Long-Term Care Ombudsman. Official duties, as used in section 712 of the Act (42 U.S.C. 3058g) with respect to representatives of the Long-Term Care Ombudsman Program, means work pursuant to the Long-Term Care Ombudsman Program authorized by the Act, subpart A of this part, and/or State law and carried out under the auspices and general direction of, or by direct delegation from, the State Long-Term Care Ombudsman. Representatives of the Office of the State Long-Term Care Ombudsman, as used in sections 711 and 712 of the Act (42 U.S.C. 3058f and 3058g), means the employees or volunteers designated by the Ombudsman to fulfill the duties set forth in § 1324.19(a), whether personnel supervision is provided by the Ombudsman or their designees or by an agency hosting a local Ombudsman entity designated by the Ombudsman pursuant to section 712(a)(5) of the Act (42 U.S.C. 3058g(a)(5)). Resident representative means any of the following: (1) An individual chosen by the resident to act on behalf of the resident in order to support the resident in decision-making; access the resident’s medical, social, or other personal information; manage the resident’s financial matters; or receive notifications pertaining to the resident; (2) A person authorized by State or Federal law (including but not limited to agents under power of attorney, representative payees, and other fiduciaries) to act on behalf of the resident in order to support the resident in decision-making; access the resident’s medical, social or other personal information; manage the resident’s financial matters; or receive notifications pertaining to the resident; (3) Legal representative, as used in section 712 of the Act (42 U.S.C. 3058g); (4) The court-appointed guardian or conservator of a resident; PO 00000 Frm 00124 Fmt 4701 Sfmt 4700 (5) Nothing in this rule is intended to expand the scope of authority of any resident representative beyond that authority specifically authorized by the resident, State or Federal law, or a court of competent jurisdiction. State Long-Term Care Ombudsman, or Ombudsman, as used in sections 711 and 712 of the Act (42 U.S.C. 3058f and 3058g), means the individual who heads the Office and is responsible to personally, or through representatives of the Office, fulfill the functions, responsibilities and duties set forth in §§ 1324.13 and 1324.19. State Long-Term Care Ombudsman program, Ombudsman program, or program, as used in sections 711 and 712 of the Act (42 U.S.C. 3058f and 3058g), means the program through which the functions and duties of the Office are carried out, consisting of the Ombudsman, the Office headed by the Ombudsman, and the representatives of the Office. Willful interference means actions or inactions taken by an individual in an attempt to intentionally prevent, interfere with, or attempt to impede the Ombudsman from performing any of the functions or responsibilities set forth in § 1324.13, or the Ombudsman or a representative of the Office from performing any of the duties set forth in § 1324.19. § 1324.11 Establishment of the Office of the State Long-Term Care Ombudsman. (a) The Office of the State Long-Term Care Ombudsman shall be an entity headed by the State Long-Term Care Ombudsman, who shall carry out all of the functions and responsibilities set forth in § 1324.13 and, directly and/or through local Ombudsman entities, the duties set forth in § 1324.19. (b) The State agency shall establish the Office and thereby carry out the Long-Term Care Ombudsman Program in either of the following ways: (1) The Office is a distinct entity, separately identifiable, and located within or connected to the State agency; or (2) The State agency enters into a contract or other arrangement with any public agency or nonprofit organization which shall establish a separately identifiable, distinct entity as the Office. (c) The State agency shall require that the Ombudsman serve on a full-time basis. In providing leadership and management of the Office, the functions, responsibilities, and duties, as set forth in §§ 1324.13 and 1324.19 are to constitute the entirety of the Ombudsman’s work. The State agency or other agency carrying out the Office shall not require or request the E:\FR\FM\14FER4.SGM 14FER4 ddrumheller on DSK120RN23PROD with RULES4 Federal Register / Vol. 89, No. 31 / Wednesday, February 14, 2024 / Rules and Regulations Ombudsman to be responsible for leading, managing or performing the work of non-ombudsman services or programs except on a time-limited, intermittent basis. (1) This provision does not limit the authority of the Ombudsman program to provide ombudsman services to populations other than residents of long-term care facilities so long as the appropriations under the Act are utilized to serve residents of long-term care facilities, as authorized by the Act. (2) [Reserved] (d) The State agency, and other entity selecting the Ombudsman, if applicable, shall ensure that the Ombudsman meets minimum qualifications which shall include, but not be limited to, demonstrated expertise in: (1) Long-term services and supports or other direct services for older individuals or individuals with disabilities; (2) Consumer-oriented public policy advocacy; (3) Leadership and program management skills; and (4) Negotiation and problem resolution skills. (e) Where the Ombudsman has the legal authority to do so, they shall establish policies and procedures, in consultation with the State agency, to carry out the Ombudsman program in accordance with the Act. Where State law does not provide the Ombudsman with legal authority to establish policies and procedures, the Ombudsman shall recommend policies and procedures to the State agency or other agency in which the Office is organizationally located, and such agency shall establish Ombudsman program policies and procedures as recommended by the Ombudsman. Where local Ombudsman entities are designated within area agencies on aging or other entities, the Ombudsman and/or appropriate agency shall develop such policies and procedures in consultation with the agencies hosting local Ombudsman entities, area agencies on aging, and representatives of the Office. The policies and procedures must address the following: (1) Program administration. Policies and procedures regarding program administration must include, but not be limited to: (i) A requirement that the agency in which the Office is organizationally located must not have personnel policies or practices that prohibit the Ombudsman from performing the functions and responsibilities of the Ombudsman, as set forth in § 1324.13, or from adhering to the requirements of section 712 of the Act (42 U.S.C. 3058g). VerDate Sep<11>2014 20:33 Feb 13, 2024 Jkt 262001 Nothing in this provision shall prohibit such agency from requiring that the Ombudsman, or other employees or volunteers of the Office, adhere to the personnel policies and procedures of the entity which are otherwise lawful. (ii) A requirement that an agency hosting a local Ombudsman entity must not have personnel policies or practices which prohibit a representative of the Office from performing the duties of the Ombudsman program or from adhering to the requirements of section 712 of the Act (42 U.S.C. 3058g). Nothing in this provision shall prohibit such agency from requiring that representatives of the Office adhere to the personnel policies and procedures of the host agency which are otherwise lawful. (iii) A requirement that the Ombudsman shall, on a regular basis, monitor the performance of local Ombudsman entities which the Ombudsman has designated to carry out the duties of the Office. (iv) A description of the process by which the agencies hosting local Ombudsman entities will coordinate with the Ombudsman in the employment or appointment of representatives of the Office. (v) Standards to ensure that the Office and/or local Ombudsman entities provide prompt response to complaints, with priority given to complaints regarding abuse, neglect, exploitation, and complaints that are time sensitive. At a minimum, the standards shall require consideration of the severity of the risk to the resident, the imminence of the threat of or potential harm to the resident, and the opportunity for mitigating harm to the resident through provision of Ombudsman program services. (vi) Procedures that clarify appropriate fiscal responsibilities of the local Ombudsman entity, including but not limited to clarifications regarding access to programmatic fiscal information by appropriate representatives of the Office. (vii) Procedures that establish standard retention periods for files, records, and other information maintained by the Ombudsman program and allowable methods of storage and destruction. (2) Procedures for access. Policies and procedures regarding timely access to facilities, residents, and appropriate records (regardless of format and including, upon request, copies of such records) by the Ombudsman and representatives of the Office must include, but not be limited to: (i) Access to enter all long-term care facilities at any time during a facility’s regular business hours or regular PO 00000 Frm 00125 Fmt 4701 Sfmt 4700 11689 visiting hours, and at any other time when access may be required by the circumstances to be investigated; (ii) Access to all residents to perform the functions and duties set forth in §§ 1324.13 and 1324.19; (iii) Access to the name and contact information of the resident representative, if any, where needed to perform the functions and duties set forth in §§ 1324.13 and 1324.19; (iv) Access to review the medical, social, and other records relating to a resident, if: (A) The resident or resident representative communicates informed consent to the access and the consent is given in writing or through the use of auxiliary aids and services; (B) The resident or resident representative communicates informed consent orally, visually, or through the use of auxiliary aids and services, and such consent is documented contemporaneously by a representative of the Office in accordance with such procedures; (C) The resident is unable to communicate consent to the review and has no legal representative, and the representative of the Office obtains the approval of the Ombudsman; or (D) Access is necessary in order to investigate a complaint, the resident representative refuses to consent to the access, a representative of the Office has reasonable cause to believe that the resident representative is not acting in the best interests of the resident, and the representative of the Office obtains the approval of the Ombudsman. (v) Access to the administrative records, policies, and documents, to which the residents have, or the general public has access, of long-term care facilities; (vi) Access of the Ombudsman to, and, upon request, copies of all licensing and certification records maintained by the State with respect to long-term care facilities; and (vii) Reaffirmation that the Health Insurance Portability and Accountability Act of 1996 (HIPAA) Privacy Rule (42 U.S.C. 1301 et seq.), 45 CFR part 160 and 45 CFR part 164, subparts A and E, does not preclude release by covered entities of resident private health information or other resident identifying information to the Ombudsman program, including but not limited to residents’ medical, social, or other records, a list of resident names and room numbers, or information collected in the course of a State or Federal survey or inspection process. (3) Disclosure. Policies and procedures regarding disclosure of files, records, and other information E:\FR\FM\14FER4.SGM 14FER4 ddrumheller on DSK120RN23PROD with RULES4 11690 Federal Register / Vol. 89, No. 31 / Wednesday, February 14, 2024 / Rules and Regulations maintained by the Ombudsman program must include, but not be limited to: (i) Provision that the files, records, and information maintained by the Ombudsman program may be disclosed only at the discretion of the Ombudsman or designee of the Ombudsman for such purpose and in accordance with the criteria developed by the Ombudsman, as required by § 1324.13(e); (ii) Prohibition of the disclosure of identifying information of any resident with respect to whom the Ombudsman program maintains files, records, or information, except as otherwise provided by § 1324.19(b)(5) through (8), unless: (A) The resident or the resident representative communicates informed consent to the disclosure and the consent is given in writing or through the use of auxiliary aids and services; (B) The resident or resident representative communicates informed consent orally, visually, or through the use of auxiliary aids and services and such consent is documented contemporaneously by a representative of the Office in accordance with such procedures; or (C) The disclosure is required by court order. (iii) Prohibition of the disclosure of identifying information of any complainant with respect to whom the Ombudsman program maintains files, records, or information, unless: (A) The complainant communicates informed consent to the disclosure and the consent is given in writing or through the use of auxiliary aids and services; (B) The complainant communicates informed consent orally, visually, or through the use of auxiliary aids and services and such consent is documented contemporaneously by a representative of the Office in accordance with such procedures; or (C) The disclosure is required by court order. (iv) Standard criteria for making determinations about disclosure of resident information when the resident is unable to provide consent and there is no resident representative or the resident representative refuses consent as set forth in § 1324.19(b)(5) through (8); (v) Prohibition on requirements for mandatory reporting abuse, neglect, or exploitation to adult protective services or any other entity, long-term care facility, or other concerned person, including when such reporting would disclose identifying information of a complainant or resident without appropriate consent or court order, VerDate Sep<11>2014 20:33 Feb 13, 2024 Jkt 262001 except as otherwise provided in § 1324.19(b)(5) through (8); and (vi) Adherence to the provisions of paragraph (e)(3) of this section, regardless of the source of the request for information or the source of funding for the services of the Ombudsman program, notwithstanding section 705(a)(6)(C) of the Act (42 U.S.C. 3058d(a)(6)(C)). (4) Conflicts of interest. Policies and procedures regarding conflicts of interest must establish mechanisms to identify and remove or remedy conflicts of interest as provided in § 1324.21, including: (i) Ensuring that no individual, or member of the immediate family of an individual, involved in the employment or appointment of the Ombudsman has or may have a conflict of interest; (ii) Requiring that other agencies in which the Office or local Ombudsman entities are organizationally located have policies in place to prohibit the employment or appointment of an Ombudsman or a representative of the Office who has or may have a conflict that cannot be adequately removed or remedied; (iii) Requiring that the Ombudsman take reasonable steps to refuse, suspend, or remove designation of an individual who has a conflict of interest, or who has a member of the immediate family who has or may have a conflict of interest, which cannot be removed or remedied; (iv) Establishing the methods by which the Office and/or State agency will periodically review and identify conflicts of the Ombudsman and representatives of the Office; and (v) Establishing the actions the Office and/or State agency will require the Ombudsman or representatives of the Office to take in order to remedy or remove such conflicts. (5) Systems advocacy. Policies and procedures related to systems advocacy must assure that the Office is required and has sufficient authority to carry out its responsibility to analyze, comment on, and monitor the development and implementation of Federal, State, and local laws, regulations, and other government policies and actions that pertain to long-term care facilities and services and to the health, safety, welfare, and rights of residents, and to recommend any changes in such laws, regulations, and policies as the Office determines to be appropriate. (i) Such procedures must exclude the Ombudsman and representatives of the Office from any State lobbying prohibitions to the extent that such requirements are inconsistent with section 712 of the Act (42 U.S.C. 3058g). PO 00000 Frm 00126 Fmt 4701 Sfmt 4700 (ii) Nothing in this part shall prohibit the Ombudsman or the State agency or other agency in which the Office is organizationally located from establishing policies which promote consultation regarding the determinations of the Office related to recommended changes in laws, regulations, and policies. However, such a policy shall not require a right to review or pre-approve positions or communications of the Office. (6) Designation. Policies and procedures related to designation must establish the criteria and process by which the Ombudsman shall designate and/or refuse, suspend, or remove designation of local Ombudsman entities and representatives of the Office. (i) Such criteria should include, but not be limited to, the authority to refuse, suspend, or remove designation of a local Ombudsman entity or representative of the Office in situations in which an identified conflict of interest cannot be removed or remedied as set forth in § 1324.21. (ii) [Reserved] (7) Grievance process. Policies and procedures related to grievances must establish a grievance process for the receipt and review of grievances regarding the determinations or actions of the Ombudsman and representatives of the Office. (i) Such process shall include an opportunity for reconsideration of the Ombudsman decision to refuse, suspend, or remove designation of a local Ombudsman entity or representative of the Office. Notwithstanding the grievance process, the Ombudsman shall make the final determination to designate or to refuse, suspend, or remove designation of a local Ombudsman entity or representative of the Office. (ii) [Reserved] (8) Determinations of the Office. Policies and procedures related to the determinations of the Office must ensure that the Ombudsman, as head of the Office, shall be able to independently make determinations and establish positions of the Office, and carry out the functions and responsibilities authorized by § 1324.13 without interference and shall not be constrained by or necessarily represent the determinations or positions of the State agency or other agency in which the Office is organizationally located. (9) Emergency planning. Policies and procedures related to emergency planning must include continuity of operations procedures using an allhazards approach, and coordination with emergency management agencies. E:\FR\FM\14FER4.SGM 14FER4 Federal Register / Vol. 89, No. 31 / Wednesday, February 14, 2024 / Rules and Regulations ddrumheller on DSK120RN23PROD with RULES4 § 1324.13 Functions and responsibilities of the State Long-Term Care Ombudsman. The Ombudsman, as head of the Office, shall have responsibility and authority for the leadership and management of the Office in coordination with the State agency, and, where applicable, any other agency carrying out the Ombudsman program, as follows. (a) Functions. The Ombudsman shall, personally or through representatives of the Office: (1) Identify, investigate, and resolve complaints that: (i) Are made by, or on behalf of, residents; and (ii) Relate to action, inaction, or decisions, that may adversely affect the health, safety, welfare, or rights of residents (including the welfare and rights of residents with respect to the appointment and activities of resident representatives) of: (A) Providers, or representatives of providers, of long-term care; (B) Public agencies; or (C) Health and social service agencies. (2) Provide services to protect the health, safety, welfare, and rights of the residents; (3) Inform residents about means of obtaining services provided by the Ombudsman program; (4) Ensure that residents have regular and timely access to the services provided through the Ombudsman program and that residents and complainants receive timely responses from representatives of the Office to requests for information and complaints; (5) Represent the interests of residents before governmental agencies, assure that individual residents have access to, and pursue (as the Ombudsman determines as necessary and consistent with resident interests) administrative, legal, and other remedies to protect the health, safety, welfare, and rights of residents; (6) Provide administrative and technical assistance to representatives of the Office and agencies hosting local Ombudsman entities; (7)(i) Analyze, comment on, and monitor the development and implementation of Federal, State, and local laws, regulations, and other governmental policies and actions, that pertain to the health, safety, welfare, and rights of the residents, with respect to the adequacy of long-term care facilities and services in the State; (ii) Recommend any changes in such laws, regulations, policies, and actions as the Office determines to be appropriate; (iii) Facilitate public comment on the laws, regulations, policies, and actions; VerDate Sep<11>2014 20:33 Feb 13, 2024 Jkt 262001 (iv) Provide leadership to statewide systems advocacy efforts of the Office on behalf of long-term care facility residents, including coordination of systems advocacy efforts carried out by representatives of the Office; (v) Provide information to public and private agencies, legislators, the media, and other persons, regarding the problems and concerns of residents and recommendations related to the problems and concerns; (vi) Such determinations and positions shall be those of the Office and shall not necessarily represent the determinations or positions of the State agency or other agency in which the Office is organizationally located; (vii) In carrying out systems advocacy efforts of the Office on behalf of longterm care facility residents and pursuant to the receipt of grant funds under the Act, the provision of information, recommendations of changes of laws to legislators, and recommendations of changes to government agency regulations and policies by the Ombudsman or representatives of the Office do not constitute lobbying activities as defined by 45 CFR part 93. (8) Coordinate with and promote the development of citizen organizations consistent with the interests of residents; and (9) Promote, provide technical support for the development of, and provide ongoing support as requested by resident and family councils to protect the well-being and rights of residents. (b) Responsibilities. The Ombudsman shall be the head of a unified statewide Long-Term Care Ombudsman Program and shall: (1) Establish or recommend policies, procedures, and standards for administration of the Ombudsman program pursuant to § 1324.11(e); (2) Require representatives of the Office to fulfill the duties set forth in § 1324.19 in accordance with Ombudsman program policies and procedures. (c) Designation. The Ombudsman shall determine designation and refusal, suspension, or removal of designation, of local Ombudsman entities and representatives of the Office pursuant to section 712(a)(5) of the Act (42 U.S.C. 3058g(a)(5)) and the policies and procedures set forth in § 1324.11(e)(6). (1) If an Ombudsman chooses to designate local Ombudsman entities, the Ombudsman shall: (i) Designate local Ombudsman entities to be organizationally located within public or non-profit private entities; (ii) Review and approve plans or contracts governing local Ombudsman PO 00000 Frm 00127 Fmt 4701 Sfmt 4700 11691 entity operations, including, where applicable, through area agency on aging plans, in coordination with the State agency; and (iii) Monitor, on a regular basis, the Ombudsman program performance of local Ombudsman entities. (2) The Ombudsman shall establish procedures for training for certification and continuing education of the representatives of the Office, based on and consistent with standards established by the Director of the Office of Long-Term Care Ombudsman Programs as described in section 201(d) of the Act (42 U.S.C. 3011(d)) and set forth by the Assistant Secretary for Aging, in consultation with residents, resident representatives, citizen organizations, long-term care providers, and the State agency, that: (i) Specify a minimum number of hours of initial training; (ii) Specify the content of the training, including training relating to Federal, State, and local laws, regulations, and policies, with respect to long-term care facilities in the State; investigative and resolution techniques; and such other matters as the Office determines to be appropriate; (iii) Specify that all program staff or volunteers who have access to residents, files, records, and other information of the Ombudsman program subject to disclosure requirements shall undergo training and certification to be designated as representatives of the Office; and (iv) Specify an annual number of hours of in-service training for all representatives of the Office. (3) Prohibit any representative of the Office from carrying out the duties described in § 1324.19 unless the representative: (i) Has received the training required under paragraph (c)(2) of this section or is performing such duties under supervision of the Ombudsman or a designated representative of the Office as part of certification training requirements; and (ii) Has been approved by the Ombudsman as qualified to carry out the activity on behalf of the Office. (4) The Ombudsman shall investigate allegations of misconduct by representatives of the Office in the performance of Ombudsman program duties and, as applicable, coordinate such investigations with the State agency in which the Office is organizationally located, agency hosting the local Ombudsman entity and/or the local Ombudsman entity. (5) Policies, procedures, or practices which the Ombudsman determines to be in conflict with the laws, policies, or E:\FR\FM\14FER4.SGM 14FER4 ddrumheller on DSK120RN23PROD with RULES4 11692 Federal Register / Vol. 89, No. 31 / Wednesday, February 14, 2024 / Rules and Regulations procedures governing the Ombudsman program shall be sufficient grounds for refusal, suspension, or removal of designation of the representative of the Office and/or the local Ombudsman entity. (d) Ombudsman program information. The Ombudsman shall manage the files, records, and other information of the Ombudsman program, whether in physical, electronic, or other formats, including information maintained by representatives of the Office and local Ombudsman entities pertaining to the cases and activities of the Ombudsman program. Such files, records, and other information are the property of the Office. Nothing in this provision shall prohibit a representative of the Office or a local Ombudsman entity from maintaining such information in accordance with Ombudsman program requirements. All program staff or volunteers who access the files, records, and other information of the Ombudsman program subject to disclosure requirements shall undergo training and certification to be designated as representatives of the Office. (e) Disclosure. In making determinations regarding the disclosure of files, records, and other information maintained by the Ombudsman program, the Ombudsman shall: (1) Have the sole authority to make or delegate determinations concerning the disclosure of the files, records, and other information maintained by the Ombudsman program. The Ombudsman shall comply with section 712(d) of the Act (42 U.S.C. 3058g(d)) in responding to requests for disclosure of files, records, and other information, regardless of the format of such file, record, or other information, the source of the request, and the sources of funding to the Ombudsman program; (2) Develop and adhere to criteria to guide the Ombudsman’s discretion in determining whether to disclose the files, records, or other information of the Office. Criteria for disclosure of records shall consider if the disclosure has the potential to: (i) Cause retaliation against residents, complainants, or witnesses; (ii) Undermine the working relationships between the Ombudsman program, facilities, and/or other agencies; or (iii) Undermine other official duties of the program. (3) Develop and adhere to a process for the appropriate disclosure of information maintained by the Office, including: VerDate Sep<11>2014 20:33 Feb 13, 2024 Jkt 262001 (i) Classification of at least the following types of files, records, and information: medical, social, and other records of residents; administrative records, policies, and documents of long-term care facilities; licensing and certification records maintained by the State with respect to long-term care facilities; and data collected in the Ombudsman program reporting system; (ii) Identification of the appropriate individual designee or category of designee, if other than the Ombudsman, authorized to determine the disclosure of specific categories of information in accordance with the criteria described in this paragraph (e). (f) Fiscal management. The Ombudsman shall determine the use of the fiscal resources appropriated or otherwise available for the operation of the Office. Where local Ombudsman entities are designated, the Ombudsman shall approve the allocations of Federal and State funds provided to such entities, subject to applicable Federal and State laws and policies. The Ombudsman shall determine that program budgets and expenditures of the Office and local Ombudsman entities are consistent with laws, policies, and procedures governing the Ombudsman program. (g) Annual report. In addition to the annual submission of the National Ombudsman Reporting System report, the Ombudsman shall independently develop, provide final approval of, and disseminate an annual report as set forth in section 712(h)(1) of the Act (42 U.S.C. 3058g(h)(1)) and as otherwise required by the Assistant Secretary for Aging. (1) Such report shall: (i) Describe the activities carried out by the Office in the year for which the report is prepared; (ii) Contain analysis of Ombudsman program data; (iii) Describe evaluation of the problems experienced by, and the complaints made by or on behalf of, residents; (iv) Contain policy, regulatory, and/or legislative recommendations for improving quality of the care and life of the residents; protecting the health, safety, welfare, and rights of the residents; and resolving resident complaints and identified problems or barriers; (v) Contain analysis of the success of the Ombudsman program, including success in providing services to residents of assisted living, board and care facilities, and other similar adult care facilities; and (vi) Describe barriers that prevent the optimal operation of the Ombudsman program. PO 00000 Frm 00128 Fmt 4701 Sfmt 4700 (2) The Ombudsman shall make such report available to the public and submit it to the Assistant Secretary for Aging, the chief executive officer of the State, the State legislature, the State agency responsible for licensing or certifying long-term care facilities, and other appropriate governmental entities. (h) Memoranda of understanding. Through adoption of memoranda of understanding or other means, the Ombudsman shall lead State-level coordination and support appropriate local Ombudsman entity coordination, between the Ombudsman program and other entities with responsibilities relevant to the health, safety, well-being, or rights of residents of long-term care facilities, including: (1) The required adoption of memoranda of understanding between the Ombudsman program and: (i) Legal assistance programs provided under section 306(a)(2)(C) of the Act (42 U.S.C. 3026(a)(2)(C)), addressing at a minimum referral processes and strategies to be used when the Ombudsman program and a legal assistance program are both providing program services to a resident; (ii) Facility and long-term care provider licensure and certification programs, addressing at minimum communication protocols and procedures to share information including procedures for access to copies of licensing and certification records maintained by the State with respect to long-term care facilities. (2) The recommended adoption of memoranda of understanding or other means between the Ombudsman program and: (i) Area agency on aging programs; (ii) Aging and disability resource centers; (iii) Adult protective services programs; (iv) Protection and advocacy systems, as designated by the State, and as established under the Developmental Disabilities Assistance and Bill of Rights Act of 2000 (42 U.S.C. 15001 et seq.); (v) The State Medicaid fraud control unit, as defined in section 1903(q) of the Social Security Act (42 U.S.C. 1396b(q)); (vi) Victim assistance programs; (vii) State and local law enforcement agencies; (viii) Courts of competent jurisdiction; (ix) The State Legal Assistance Developer as provided under section 731 of the Act (42 U.S.C. 3058j) and as set forth in subpart C to this part; and (x) The State mental health authority. (i) Other activities. The Ombudsman shall carry out such other activities as the Assistant Secretary for Aging determines to be appropriate and are E:\FR\FM\14FER4.SGM 14FER4 Federal Register / Vol. 89, No. 31 / Wednesday, February 14, 2024 / Rules and Regulations consistent with the functions of the State Long-Term Care Ombudsman Program as authorized by the Older Americans Act. ddrumheller on DSK120RN23PROD with RULES4 § 1324.15 State agency responsibilities related to the Ombudsman program. (a) Compliance. In addition to the responsibilities set forth in part 1321 of this chapter, the State agency shall ensure that the Ombudsman complies with the relevant provisions of the Act and of this rule. (b) Authority and access. The State agency shall ensure, through the development of policies, procedures, and other means, consistent with § 1324.11(e)(2), that the Ombudsman program has sufficient authority and access to facilities, residents, and information needed to fully perform all of the functions, responsibilities, and duties of the Office. (c) Training. The State agency shall provide opportunities for training for the Ombudsman and representatives of the Office in order to maintain expertise to serve as effective advocates for residents. The State agency may utilize funds appropriated under Title III and/ or Title VII of the Act designated for direct services in order to provide access to such training opportunities. (d) Personnel supervision and management. The State agency shall provide personnel supervision and management for the Ombudsman and representatives of the Office who are employees of the State agency. Such management shall include an assessment of whether the Office is performing all of its functions under the Act. (e) State agency monitoring. The State agency shall provide monitoring, as required by § 1321.9(b) of this chapter, including but not limited to fiscal monitoring, where the Office and/or local Ombudsman entity is organizationally located within an agency under contract or other arrangement with the State agency. Such monitoring shall include an assessment of whether the Ombudsman program is performing all of the functions, responsibilities and duties set forth in §§ 1324.13 and 1324.19. The State agency may make reasonable requests for reports, including aggregated data regarding Ombudsman program activities, to meet the requirements of this provision. (f) Disclosure limitations. The State agency shall ensure that any review of files, records, or other information maintained by the Ombudsman program is consistent with the disclosure limitations set forth in §§ 1324.11(e)(3) and 1324.13(e). VerDate Sep<11>2014 20:33 Feb 13, 2024 Jkt 262001 (g) State and area plans on aging. The State agency shall integrate the goals and objectives of the Office into the State plan and coordinate the goals and objectives of the Office with those of other programs established under Title VII of the Act and other State elder rights, disability rights, and elder justice programs, including, but not limited to, legal assistance programs provided under section 306(a)(2)(C) of the Act (42 U.S.C. 3026(a)(2)(C)), to promote collaborative efforts and diminish duplicative efforts. Where applicable, the State agency shall require inclusion of goals and objectives of local Ombudsman entities into area plans on aging. (h) Elder rights leadership. The State agency shall provide elder rights leadership. In so doing, it shall require the coordination of Ombudsman program services with the activities of other programs authorized by Title VII of the Act, as well as other State and local entities with responsibilities relevant to the health, safety, well-being, or rights of older adults, including residents of long-term care facilities as set forth in § 1324.13(h). (i) Interference, retaliation, and reprisals. The State agency shall: (1) Ensure that it has mechanisms to prohibit and investigate allegations of interference, retaliation, and reprisals: (i) By a long-term care facility, other entity, or individual with respect to any resident, employee, or other person for filing a complaint with, providing information to, or otherwise cooperating with any representative of the Office; or (ii) By a long-term care facility, other entity or individual against the Ombudsman or representatives of the Office for fulfillment of the functions, responsibilities, or duties enumerated at §§ 1324.13 and 1324.19; and (2) Provide for appropriate sanctions with respect to interference, retaliation, and reprisals. (j) Legal counsel. (1) The State agency shall ensure that: (i) Legal counsel for the Ombudsman program is adequate, available, is without conflict of interest (as defined by the State ethical standards governing the legal profession), and has competencies relevant to the legal needs of: (A) The program, in order to provide consultation and/or representation as needed to assist the Ombudsman and representatives of the Office in the performance of their official functions, responsibilities, and duties, including complaint resolution and systems advocacy. Legal representation, arranged by or with the approval of the Ombudsman, is provided to the PO 00000 Frm 00129 Fmt 4701 Sfmt 4700 11693 Ombudsman or 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 official duties. (B) Residents, in order to provide consultation and representation as needed for the Ombudsman program to protect the health, safety, welfare, and rights of residents. (ii) The Ombudsman and representatives of the Office assist residents in seeking administrative, legal, and other appropriate remedies. In so doing, the Ombudsman shall coordinate with the Legal Assistance Developer, legal services providers, and victim assistance services to promote the availability of legal counsel to residents. (2) Such legal counsel may be provided by one or more entities, depending on the nature of the competencies and services needed and as necessary to avoid conflicts of interest (as defined by the State ethical standards governing the legal profession). At a minimum, the Office shall have access to an attorney knowledgeable about the Federal and State laws protecting the rights of residents and governing long-term care facilities. (3) Legal representation of the Ombudsman program by the Ombudsman or representative of the Office who is a licensed attorney shall not by itself constitute sufficiently adequate legal counsel. (4) The communications between the Ombudsman and their legal counsel are subject to attorney-client privilege. (k) Fiscal management. The State agency shall ensure that: (1) The Ombudsman receives notification of all sources of funds received by the State agency that are allocated or appropriated to the Ombudsman program and provides information on any requirements of the funds, and the Ombudsman is supported in their determination of the use of funds; (2) The Ombudsman has full authority to determine the use of fiscal resources appropriated or otherwise available for the operation of the Office; (3) Where local Ombudsman entities are designated, the Ombudsman approves the allocations of Federal and State funds to such entities, prior to any distribution of such funds, subject to applicable Federal and State laws and policies; and (4) The Ombudsman determines that program budgets and expenditures of the Office and local Ombudsman entities are consistent with laws, E:\FR\FM\14FER4.SGM 14FER4 11694 Federal Register / Vol. 89, No. 31 / Wednesday, February 14, 2024 / Rules and Regulations policies, and procedures governing the Ombudsman program. (l) State agency requirements of the Office. The State agency shall require the Office to: (1) Develop and provide final approval of an annual report as set forth in section 712(h)(1) of the Act (42 U.S.C. 3058g(h)(1)) and § 1324.13(g) and as otherwise required by the Assistant Secretary for Aging; (2) Analyze, comment on, and monitor the development and implementation of Federal, State, and local laws, regulations, and other government policies and actions that pertain to long-term care facilities and services, and to the health, safety, welfare, and rights of residents, in the State, and recommend any changes in such laws, regulations, and policies as the Office determines to be appropriate; (3) Provide such information as the Office determines to be necessary to public and private agencies, legislators, the media, and other persons, regarding the problems and concerns of individuals residing in long-term care facilities; and recommendations related to such problems and concerns; (4) Establish procedures for the training of the representatives of the Office, as set forth in § 1324.13(c)(2); and (5) Coordinate Ombudsman program services with entities with responsibilities relevant to the health, safety, welfare, and rights of residents of long-term care facilities, as set forth in § 1324.13(h). ddrumheller on DSK120RN23PROD with RULES4 § 1324.17 Responsibilities of agencies hosting local Ombudsman entities. (a) The agency in which a local Ombudsman entity is organizationally located shall be responsible for the personnel management, but not the programmatic oversight, of representatives, including employee and volunteer representatives, of the Office. (b) The agency in which a local Ombudsman entity is organizationally located shall not have personnel policies or practices which prohibit the representatives of the Office from performing the duties, or from adhering to the access, confidentiality, and disclosure requirements of section 712 of the Act (42 U.S.C. 3058g), as implemented through this rule and the policies and procedures of the Office. (1) Policies, procedures, and practices, including personnel management practices of the host agency, which the Ombudsman determines conflict with the laws or policies governing the Ombudsman program shall be sufficient grounds for the refusal, suspension, or removal of VerDate Sep<11>2014 20:33 Feb 13, 2024 Jkt 262001 the designation of local Ombudsman entity by the Ombudsman. (2) Nothing in this provision shall prohibit the host agency from requiring that the representatives of the Office adhere to the personnel policies and procedures of the agency which are otherwise lawful. § 1324.19 Duties of the representatives of the Office. In carrying out the duties of the Office, the Ombudsman may designate an entity as a local Ombudsman entity and may designate an employee or volunteer of the local Ombudsman entity as a representative of the Office. Representatives of the Office may also be designated employees or volunteers within the Office. (a) Duties. An individual so designated as a representative of the Office shall, in accordance with the policies and procedures established by the Office and the State agency: (1) Identify, investigate, and resolve complaints made by or on behalf of residents that relate to action, inaction, or decisions, that may adversely affect the health, safety, welfare, or rights of the residents; (2) Provide services to protect the health, safety, welfare, and rights of residents; (3) Ensure that residents in the service area of the local Ombudsman entity have regular and timely access to the services provided through the Ombudsman program and that residents and complainants receive timely responses to requests for information and complaints; (4) Represent the interests of residents before government agencies and assure that individual residents have access to, and pursue (as the representative of the Office determines necessary and consistent with resident interest) administrative, legal, and other remedies to protect the health, safety, welfare, and rights of the residents; (5)(i) Review, and if necessary, comment on any existing and proposed laws, regulations, and other government policies and actions, that pertain to the rights and well-being of residents; (ii) Facilitate the ability of the public to comment on the laws, regulations, policies, and actions. (6) Promote, provide technical support for the development of, and provide ongoing support as requested by resident and family councils; and (7) Carry out other activities that the Ombudsman determines to be appropriate and are consistent with the functions of the State Long-Term Care Ombudsman Program as authorized by the Older Americans Act. PO 00000 Frm 00130 Fmt 4701 Sfmt 4700 (b) Complaint processing. (1) With respect to identifying, investigating, and resolving complaints, and regardless of the source of the complaint (i.e., complainant), the Ombudsman and the representatives of the Office serve the resident of a long-term care facility. The Ombudsman or representative of the Office shall investigate a complaint, including but not limited to a complaint related to abuse, neglect, or exploitation, for the purposes of resolving the complaint to the resident’s satisfaction and of protecting the health, welfare, and rights of the resident. The Ombudsman or representative of the Office may identify, investigate, and resolve a complaint impacting multiple residents or all residents of a facility. (2) Regardless of the source of the complaint (i.e., the complainant), including when the source is the Ombudsman or representative of the Office, the Ombudsman or representative of the Office must support and maximize resident participation in the process of resolving the complaint as follows: (i) The Ombudsman or representative of the Office shall offer privacy to the resident for the purpose of confidentially providing information and hearing, investigating, and resolving complaints. (ii) The Ombudsman or representative of the Office shall discuss the complaint with the resident (and, if the resident is unable to communicate informed consent, the resident’s representative) in order to: (A) Determine the perspective of the resident (or resident representative, where applicable) of the complaint; (B) Request the resident (or resident representative, where applicable) to communicate informed consent in order to investigate the complaint; (C) Determine the wishes of the resident (or resident representative, where applicable) with respect to resolution of the complaint, including whether the allegations are to be reported and, if so, whether the Ombudsman or representative of the Office may disclose resident identifying information or other relevant information to the facility and/or appropriate agencies. Such report and disclosure shall be consistent with paragraph (b)(3) of this section; (D) Advise the resident (and resident representative, where applicable) of the resident’s rights; (E) Work with the resident (or resident representative, where applicable) to develop a plan of action for resolution of the complaint; E:\FR\FM\14FER4.SGM 14FER4 ddrumheller on DSK120RN23PROD with RULES4 Federal Register / Vol. 89, No. 31 / Wednesday, February 14, 2024 / Rules and Regulations (F) Investigate the complaint to determine whether the complaint can be verified; and (G) Determine whether the complaint is resolved to the satisfaction of the resident (or resident representative, where applicable). (iii) Where the resident is unable to communicate informed consent, and has no resident representative, the Ombudsman or representative of the Office shall: (A) Take appropriate steps to investigate and work to resolve the complaint in order to protect the health, safety, welfare and rights of the resident; and (B) Determine whether the complaint was resolved to the satisfaction of the complainant. (iv) In determining whether to rely upon a resident representative to communicate or make determinations on behalf of the resident related to complaint processing, the Ombudsman or representative of the Office shall ascertain the extent of the authority that has been granted to the resident representative under court order (in the case of a guardian or conservator), by power of attorney or other document by which the resident has granted authority to the representative, or under other applicable State or Federal law. (3) The Ombudsman or representative of the Office may provide information regarding the complaint to another agency in order for such agency to substantiate the facts for regulatory, protective services, law enforcement, or other purposes so long as the Ombudsman or representative of the Office adheres to the disclosure requirements of section 712(d) of the Act (42 U.S.C. 3058g(d)) and the procedures set forth in § 1324.11(e)(3). (i) Where the goals of a resident or resident representative are for regulatory, protective services or law enforcement action, and the Ombudsman or representative of the Office determines that the resident or resident representative has communicated informed consent to the Office, the Office must assist the resident or resident representative in contacting the appropriate agency and/ or disclose the information for which the resident has provided consent to the appropriate agency for such purposes. (ii) Where the goals of a resident or resident representative can be served by disclosing information to a facility representative and/or referrals to an entity other than those referenced in paragraph (b)(3)(i) of this section, and the Ombudsman or representative of the Office determines that the resident or resident representative has VerDate Sep<11>2014 20:33 Feb 13, 2024 Jkt 262001 communicated informed consent to the Ombudsman program, the Ombudsman or representative of the Office may assist the resident or resident representative in contacting the appropriate facility representative or the entity, provide information on how a resident or representative may obtain contact information of such facility representatives or entities, and/or disclose the information for which the resident has provided consent to an appropriate facility representative or entity, consistent with Ombudsman program procedures. (iii) In order to comply with the wishes of the resident, (or, in the case where the resident is unable to communicate informed consent, the wishes of the resident representative), the Ombudsman and representatives of the Office shall not report suspected abuse, neglect or exploitation of a resident when a resident or resident representative has not communicated informed consent to such report except as set forth in paragraphs (b)(5) through (7) of this section, notwithstanding State laws to the contrary. (4) For purposes of paragraphs (b)(1) through (3) of this section, communication of informed consent may be made in writing, including through the use of auxiliary aids and services. Alternatively, communication may be made orally or visually, including through the use of auxiliary aids and services, and such consent must be documented contemporaneously by the Ombudsman or a representative of the Office, in accordance with the procedures of the Office. (5) For purposes of paragraphs (b)(1) through (3) of this section, if a resident is unable to communicate their informed consent, or perspective on the extent to which the matter has been satisfactorily resolved, the Ombudsman or representative of the Office may rely on the communication by a resident representative of informed consent and/ or perspective regarding the resolution of the complaint if the Ombudsman or representative of the Office has no reasonable cause to believe that the resident representative is not acting in the best interests of the resident. (6) For purposes of paragraphs (b)(1) through (3) of this section, the procedures for disclosure, as required by § 1324.11(e)(3), shall provide that the Ombudsman or representative of the Office may refer the matter and disclose resident-identifying information to the appropriate agency or agencies for regulatory oversight; protective services; access to administrative, legal, or other PO 00000 Frm 00131 Fmt 4701 Sfmt 4700 11695 remedies; and/or law enforcement action in the following circumstances: (i) The resident is unable to communicate informed consent to the Ombudsman or representative of the Office; (ii) The resident has no resident representative; (iii) The Ombudsman or representative of the Office has reasonable cause to believe that an action, inaction, or decision may adversely affect the health, safety, welfare, or rights of the resident; (iv) The Ombudsman or representative of the Office has no evidence indicating that the resident would not wish a referral to be made; (v) The Ombudsman or representative of the Office has reasonable cause to believe that it is in the best interest of the resident to make a referral; and (vi) The representative of the Office obtains the approval of the Ombudsman or otherwise follows the policies and procedures of the Office described in paragraph (b)(9) of this section. (7) For purposes of paragraphs (b)(1) through (3) of this section, the procedures for disclosure, as required by § 1324.11(e)(3), shall provide that, the Ombudsman or representative of the Office may refer the matter and disclose resident-identifying information to the appropriate agency or agencies for regulatory oversight; protective services; access to administrative, legal, or other remedies; and/or law enforcement action in the following circumstances: (i) The resident is unable to communicate informed consent to the Ombudsman or representative of the Office and the Ombudsman or 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; (ii) The Ombudsman or representative of the Office has no evidence indicating that the resident would not wish a referral to be made; (iii) The Ombudsman or representative of the Office has reasonable cause to believe that it is in the best interest of the resident to make a referral; and (iv) The representative of the Office obtains the approval of the Ombudsman. (8) The procedures for disclosure, as required by § 1324.11(e)(3), shall provide that, if the Ombudsman or representative of the Office personally witnesses suspected abuse, gross neglect, or exploitation of a resident, the Ombudsman or representative of the Office shall seek communication of E:\FR\FM\14FER4.SGM 14FER4 ddrumheller on DSK120RN23PROD with RULES4 11696 Federal Register / Vol. 89, No. 31 / Wednesday, February 14, 2024 / Rules and Regulations informed consent from such resident to disclose resident-identifying information to appropriate agencies. (i) Where such resident is able to communicate informed consent, or has a resident representative available to provide informed consent, the Ombudsman or representative of the Office shall follow the direction of the resident or resident representative as set forth in paragraphs (b)(1) through (3) of this section; and (ii) Where the resident is unable to communicate informed consent, and has no resident representative available to provide informed consent, the Ombudsman or representative of the Office shall open a case with the Ombudsman or representative of the Office as the complainant, follow the Ombudsman program’s complaint resolution procedures, and shall refer the matter and disclose identifying information of the resident to the management of the facility in which the resident resides and/or to the appropriate agency or agencies for substantiation of abuse, gross neglect or exploitation in the following circumstances: (A) The Ombudsman or representative of the Office has no evidence indicating that the resident would not wish a referral to be made; (B) The Ombudsman or representative of the Office has reasonable cause to believe that disclosure would be in the best interest of the resident; and (C) The representative of the Office obtains the approval of the Ombudsman or otherwise follows the policies and procedures of the Office described in paragraph (b)(9) of this section. (iii) In addition, the Ombudsman or representative of the Office, following the policies and procedures of the Office described in paragraph (b)(9) of this section, may report the suspected abuse, gross neglect, or exploitation to other appropriate agencies for regulatory oversight; protective services; access to administrative, legal, or other remedies; and/or law enforcement action. (9) Prior to disclosing residentidentifying information pursuant to paragraph (b)(6) or (8) of this section, a representative of the Office must obtain approval by the Ombudsman or, alternatively, follow policies and procedures of the Office which provide for such disclosure. (i) Where the policies and procedures require Ombudsman approval, they shall include a time frame in which the Ombudsman is required to communicate approval or disapproval in order to assure that the representative of the Office has the ability to promptly VerDate Sep<11>2014 20:33 Feb 13, 2024 Jkt 262001 take actions to protect the health, safety, welfare or rights of residents. (ii) Where the policies and procedures do not require Ombudsman approval prior to disclosure, they shall require that the representative of the Office promptly notify the Ombudsman of any disclosure of resident-identifying information under the circumstances set forth in paragraph (b)(6) or (8) of this section. (iii) Disclosure of resident-identifying information under paragraph (b)(7) of this section shall require Ombudsman approval. § 1324.21 Conflicts of interest. The State agency and the Ombudsman shall consider both the organizational and individual conflicts of interest that may impact the effectiveness and credibility of the work of the Office. In so doing, both the State agency and the Ombudsman shall be responsible to identify actual and potential conflicts and, where a conflict has been identified, to remove or remedy such conflict as set forth in paragraphs (b) and (d) of this section. (a) Identification of organizational conflicts. In identifying conflicts of interest pursuant to section 712(f) of the Act (42 U.S.C. 3058g(f)), the State agency and the Ombudsman shall consider the organizational conflicts that may impact the effectiveness and credibility of the work of the Office. Organizational conflicts of interest include, but are not limited to, placement of the Office, or requiring that an Ombudsman or representative of the Office perform conflicting activities, in an organization that: (1) Is responsible for licensing, surveying, or certifying long-term care services, including facilities; (2) Is an association (or an affiliate of such an association) of long-term care facilities, or of any other residential facilities for older individuals or individuals with disabilities; (3) Has any ownership or investment interest (represented by equity, debt, or other financial relationship) in, or receives grants or donations from, a long-term care facility; (4) Has governing board members with any ownership, investment, or employment interest in long-term care facilities; (5) Provides long-term care to residents of long-term care facilities, including the provision of personnel for long-term care facilities or the operation of programs which control access to or services for long-term care facilities; (6) Provides long-term care services, including programs carried out under a Medicaid waiver approved under PO 00000 Frm 00132 Fmt 4701 Sfmt 4700 section 1115 of the Social Security Act (42 U.S.C. 1315) or under subsection (b) or (c) of section 1915 of the Social Security Act (42 U.S.C. 1396n), or under a Medicaid State plan under section 1905(a) or subsection (i), (j), or (k) of section 1915 of the Social Security Act (42 U.S.C. 1396d(a); 42 U.S.C. 1396n(i)– (k)); (7) Provides long-term care coordination or case management, including for residents of long-term care facilities; (8) Sets reimbursement rates for longterm care facilities; (9) Sets reimbursement rates for longterm care services; (10) Provides adult protective services; (11) Is responsible for eligibility determinations for the Medicaid program carried out under title XIX of the Social Security Act (42 U.S.C. 1396– 1396v); (12) Is responsible for eligibility determinations regarding Medicaid or other public benefits for residents of long-term care facilities; (13) Conducts preadmission screening for long-term care facility admission; (14) Makes decisions regarding admission or discharge of individuals to or from long-term care facilities; or (15) Provides guardianship, conservatorship or other fiduciary or surrogate decision-making services for residents of long-term care facilities. (b) Removing or remedying organizational conflicts. The State agency and the Ombudsman shall identify and take steps to remove or remedy conflicts of interest between the Office and the State agency or other agency carrying out the Ombudsman program. (1) The Ombudsman shall identify organizational conflicts of interest in the Ombudsman program and describe steps taken to remove or remedy conflicts within the annual report submitted to the Assistant Secretary for Aging through the National Ombudsman Reporting System. (2) Where the Office is located within or otherwise organizationally attached to the State agency, the State agency shall: (i) Take reasonable steps to avoid internal conflicts of interest; (ii) Establish a process for review and identification of internal conflicts; (iii) Take steps to remove or remedy conflicts; (iv) Ensure that no individual, or member of the immediate family of an individual, involved in designating, appointing, otherwise selecting, or terminating the Ombudsman is subject to a conflict of interest; and E:\FR\FM\14FER4.SGM 14FER4 ddrumheller on DSK120RN23PROD with RULES4 Federal Register / Vol. 89, No. 31 / Wednesday, February 14, 2024 / Rules and Regulations (v) Assure that the Ombudsman has disclosed such conflicts and described steps taken to remove or remedy conflicts within the annual report submitted to the Assistant Secretary for Aging through the National Ombudsman Reporting System. (3) Where a State agency is unable to adequately remove or remedy a conflict, it shall carry out the Ombudsman program by contract or other arrangement with a public agency or nonprofit private organization, pursuant to section 712(a)(4) of the Act (42 U.S.C. 3058g(a)(4)). The State agency may not enter into a contract or other arrangement to carry out the Ombudsman program if the other entity, and may not operate the Office directly if it: (i) Is responsible for licensing, surveying, or certifying long-term care facilities; (ii) Is an association (or an affiliate of such an association) of long-term care facilities, or of any other residential facilities for older individuals or individuals with disabilities; or (iii) Has any ownership, operational, or investment interest (represented by equity, debt, or other financial relationship) in a long-term care facility. (4) Where the State agency carries out the Ombudsman program by contract or other arrangement with a public agency or nonprofit private organization, pursuant to section 712(a)(4) of the Act (42 U.S.C. 3058g(a)(4)), the State agency shall: (i) Prior to contracting or making another arrangement, take reasonable steps to avoid conflicts of interest in such agency or organization which is to carry out the Ombudsman program and to avoid conflicts of interest in the State agency’s oversight of the contract or arrangement; (ii) Establish a process for periodic review and identification of conflicts; (iii) Establish criteria for approval of steps taken by the agency or organization to remedy or remove conflicts; (iv) Require that such agency or organization have a process in place to: (A) Take reasonable steps to avoid conflicts of interest; and (B) Disclose identified conflicts and steps taken to remove or remedy conflicts to the State agency for review and approval. (5) Where an agency or organization carrying out the Ombudsman program by contract or other arrangement develops a conflict and is unable to adequately remove or remedy a conflict, the State agency shall either operate the Ombudsman program directly or by contract or other arrangement with VerDate Sep<11>2014 20:33 Feb 13, 2024 Jkt 262001 another public agency or nonprofit private organization. (6) Where local Ombudsman entities provide ombudsman services, the Ombudsman shall: (i) Prior to designating or renewing designation, take reasonable steps to avoid conflicts of interest in any agency which may host a local Ombudsman entity; (ii) Establish a process for periodic review and identification of conflicts of interest with the local Ombudsman entity in any agencies hosting a local Ombudsman entity; (iii) Require that such agencies disclose identified conflicts of interest with the local Ombudsman entity and steps taken to remove or remedy conflicts within such agency to the Ombudsman; (iv) Establish criteria for approval of steps taken to remedy or remove conflicts in such agencies; and (v) Establish a process for review of and criteria for approval of plans to remove or remedy conflicts with the local Ombudsman entity in such agencies. (7) Failure of an agency hosting a local Ombudsman entity to disclose a conflict to the Office or inability to adequately remove or remedy a conflict shall constitute grounds for refusal, suspension, or removal of designation of the local Ombudsman entity by the Ombudsman. (c) Identifying individual conflicts of interest. (1) In identifying conflicts of interest pursuant to section 712(f) of the Act (42 U.S.C. 3058g(f)), the State agency and the Ombudsman shall consider individual conflicts that may impact the effectiveness and credibility of the work of the Office. (2) Individual conflicts of interest for an Ombudsman, representatives of the Office, and members of their immediate family include, but are not limited to: (i) Direct involvement in the licensing or certification of a long-term care facility or of a provider of a long-term care service; (ii) Ownership, operational, or investment interest (represented by equity, debt, or other financial relationship) in an existing or proposed long-term care facility or a long-term care service; (iii) Employment of an individual by, or participation in the management of, a long-term care facility or a related organization, in the service area or by the owner or operator of any long-term care facility in the service area; (iv) Receipt of, or right to receive, directly or indirectly, remuneration (in cash or in kind) under a compensation PO 00000 Frm 00133 Fmt 4701 Sfmt 4700 11697 arrangement with an owner or operator of a long-term care facility; (v) Accepting gifts or gratuities of significant value from a long-term care facility or its management, a resident, or a resident representative of a long-term care facility in which the Ombudsman or representative of the Office provides services (except where there is a personal relationship with a resident or resident representative which is separate from the individual’s role as Ombudsman or representative of the Office); (vi) Accepting money or any other consideration from anyone other than the Office, or an entity approved by the Ombudsman, for the performance of an act in the regular course of the duties of the Ombudsman or the representatives of the Office without Ombudsman approval; (vii) Serving as guardian, conservator or in another fiduciary or surrogate decision-making capacity for a resident of a long-term care facility in which the Ombudsman or representative of the Office provides services; (viii) Serving residents of a facility in which an immediate family member resides; (ix) Management responsibility for, or operating under the supervision of, an individual with management responsibility for, adult protective services; and (x) Serving as a guardian or in another fiduciary capacity for residents of longterm care facilities in an official capacity (as opposed to serving as a guardian or fiduciary for a family member, in a personal capacity). (d) Removing or remedying individual conflicts. (1) The State agency or Ombudsman shall develop and implement policies and procedures, pursuant to § 1324.11(e)(4), to ensure that no Ombudsman or representatives of the Office are required or permitted to hold positions or perform duties that would constitute a conflict of interest as set forth in § 1324.21(c). This rule does not prohibit a State agency or Ombudsman from having policies or procedures that exceed these requirements. (2) When considering the employment or appointment of an individual as the Ombudsman or as a representative of the Office, the State agency or other employing or appointing entity shall: (i) Take reasonable steps to avoid employing or appointing an individual who has an unremedied conflict of interest or who has a member of the immediate family with an unremedied conflict of interest; (ii) Take reasonable steps to avoid assigning an individual to perform E:\FR\FM\14FER4.SGM 14FER4 ddrumheller on DSK120RN23PROD with RULES4 11698 Federal Register / Vol. 89, No. 31 / Wednesday, February 14, 2024 / Rules and Regulations duties which would constitute an unremedied conflict of interest; (iii) Establish a process for periodic review and identification of conflicts of the Ombudsman and representatives of the Office; and (iv) Take steps to remove or remedy conflicts. (3) In no circumstance shall the entity, which appoints or employs the Ombudsman, appoint or employ an individual as the Ombudsman who: (i) Has direct involvement in the licensing or certification of a long-term care facility; (ii) Has an ownership or investment interest (represented by equity, debt, or other financial relationship) in a longterm care facility. Divestment within a reasonable period may be considered an adequate remedy to this conflict; (iii) Has been employed by or participated in the management of a long-term care facility within the previous twelve months; and (iv) Receives, or has the right to receive, directly or indirectly, remuneration (in cash or in kind) under a compensation arrangement with an owner or operator of a long-term care facility. (4) In no circumstance shall the State agency, other agency which carries out the Office, or an agency hosting a local Ombudsman entity appoint or employ an individual, nor shall the Ombudsman designate an individual, as a representative of the Office who: (i) Has direct involvement in the licensing or certification of a long-term care facility; (ii) Has an ownership or investment interest (represented by equity, debt, or other financial relationship) in a longterm care facility. Divestment within a reasonable period may be considered an adequate remedy to this conflict; (iii) Receives, directly or indirectly, remuneration (in cash or in kind) under a compensation arrangement with an owner or operator of a long-term care facility; or (iv) Is employed by, or participating in the management of, a long-term care facility. (A) An agency which appoints or employs representatives of the Office shall make efforts to avoid appointing or employing an individual as a representative of the Office who has been employed by or participated in the management of a long-term care facility within the previous twelve months. (B) Where such individual is appointed or employed, the agency shall take steps to remedy the conflict. VerDate Sep<11>2014 20:33 Feb 13, 2024 Jkt 262001 Subpart B—Programs for Prevention of Elder Abuse, Neglect, and Exploitation § 1324.201 State agency responsibilities for the prevention of elder abuse, neglect, and exploitation. (a) In accordance with Title VII, chapter 3 of the Act, the distribution of Federal funds to the State agency on aging by formula is authorized to carry out activities to develop, strengthen, and carry out programs for the prevention, detection, assessment, and treatment of, intervention in, investigation of, and response to elder abuse, neglect, and exploitation. (b) All programs using these funds must meet requirements as set forth in the Act, including those of section 721(c), (d), (e) (42 U.S.C. 3058i(c)–(e)) and guidance as set forth by the Assistant Secretary for Aging. Subpart C—State Legal Assistance Development § 1324.301 Definitions. (a) Definitions as set forth in § 1321.3 of this chapter apply to this part. (b) Terms used, but not otherwise defined in this part will have the meanings ascribed to them in the Act. § 1324.303 Legal Assistance Developer. (a) State Legal Assistance Developer. In accordance with section 731 of the Act (42 U.S.C. 3058j), the State agency shall designate an individual who shall be known as a State Legal Assistance Developer, and other personnel, sufficient to ensure: (1) State leadership in securing and maintaining the legal rights of older individuals; (2) State capacity for coordinating the provision of legal assistance, in accordance with section 102(23) and (24) and consistent with section 102(33) of the Act (42 U.S.C. 3002(23), (24), (33)), to include prioritizing such services provided to individuals with greatest economic need, or greatest social need; (3) State capacity to provide technical assistance, training, and other supportive functions to area agencies on aging, legal assistance providers, LongTerm Care Ombudsman programs, adult protective services, and other service providers under the Act; (i) The Legal Assistance Developer shall utilize the trainings, case consultations, and technical assistance provided by the support and technical assistance entity established pursuant to section 420(c) of the Act (42 U.S.C. 3032i(c)). (ii) [Reserved] PO 00000 Frm 00134 Fmt 4701 Sfmt 4700 (4) State capacity to promote financial management services to older individuals at risk of guardianship, conservatorship, or other fiduciary proceedings; (i) In so doing, the Legal Assistance Developer shall take into consideration promotion of activities to increase awareness of and access to self-directed financial management services and legal assistance and; (ii) The Legal Assistance Developer shall also take into consideration promotion of activities that proactively enable older adults and those they designate as decisional supporters through powers of attorney, health care proxies, supported decision making and similar instruments or approaches to be connected to resources and education to manage their finances and the decisions they make about their lives so as to limit their risk for guardianship, conservatorship, or more restrictive fiduciary proceedings. (5) State capacity to assist older individuals in understanding their rights, exercising choices, benefiting from services and opportunities authorized by law, and maintaining the rights of older individuals at risk of guardianship, conservatorship, or other fiduciary proceedings; (i) In so doing, the Legal Assistance Developer shall take into consideration engaging in activities aimed at preserving an individual’s rights or autonomy, including, but not limited to, increasing awareness of and access to least-restrictive alternatives to guardianship, conservatorship, or more restrictive fiduciary proceedings, such as supported decision making, and legal assistance; (ii) In so doing, the Legal Assistance Developer shall adhere to the restrictions contained in section 321(a)(6)(B)(i) of the Act (42 U.S.C. 3030d(a)(6)(B)(i)) regarding the involvement of legal assistance providers in guardianship proceedings, and shall apply these restrictions to conservatorship and other fiduciary proceedings; (iii) In undertaking this activity, the Legal Assistance Developer shall take into consideration coordination of efforts with legal assistance providers funded under the Act contracted by area agencies on aging, any Bar Association Elder Law section, and other elder rights or entities active in the State. (6) State capacity to improve the quality and quantity of legal services provided to older individuals. (b) State plan. The activities designated by the State agency for the Legal Assistance Developer, in accordance with paragraphs (a)(1) E:\FR\FM\14FER4.SGM 14FER4 Federal Register / Vol. 89, No. 31 / Wednesday, February 14, 2024 / Rules and Regulations ddrumheller on DSK120RN23PROD with RULES4 through (6) of this section, shall be contained in the State plan, per section 307 of the Act (42 U.S.C. 3027) and as set forth in § 1321.27 of this chapter. (c) Knowledge, resources, and capacity. The State agency shall ensure that the Legal Assistance Developer has the knowledge, resources, and capacity to conduct the activities outlined in paragraph (a) of this section. (d) Conflicts of interest. (1) In designating a Legal Assistance Developer, the State agency shall consider any potential conflicts of interest posed by any candidate for the role, and take steps to prevent, remedy, or remove such conflicts of interest. (2) In designating a Legal Assistance Developer, the State agency shall consider both organizational and individual interests that may impact the effectiveness and credibility of the work of the Legal Assistance Developer to coordinate legal assistance and work to secure, protect, and promote the legal rights of older adults in the State. (i) This includes holding a position or performing duties that could lead to decisions that are or have the VerDate Sep<11>2014 20:33 Feb 13, 2024 Jkt 262001 appearance of being contrary to the Legal Assistance Developer’s duties as defined in this section and contained in the State plan as set forth in § 1321.27 of this chapter. (ii) [Reserved] (3) The State agency shall not designate as Legal Assistance Developer any individual who is: (i) Serving as a director of adult protective services, or as legal counsel to adult protective services; (ii) Serving as a State Long-Term Care Ombudsman, or as legal counsel to a State Long-Term Care Ombudsman Program; (iii) Serving as a hearing officer, administrative law judge, trier of fact or counsel to these positions in an administrative proceeding related to the legal rights of older adults, such as one in which a legal assistance provider might appear; (iv) Serving as legal counsel or a party to an administrative proceeding related to long-term care settings, including residential settings; (v) Conducting surveys of and licensure certifications for long-term PO 00000 Frm 00135 Fmt 4701 Sfmt 9990 11699 care settings, including residential settings, or serving as counsel or advisor to such positions; (vi) Serving as a public or private guardian, conservator, or fiduciary or operating such a program, or serving as counsel to these positions or programs. (4) The State agency and the Legal Assistance Developer shall be responsible for identifying any other actual and potential conflicts of interest and circumstances that may lead to the appearance of a conflict of interest; identifying processes for preventing conflicts of interest and, where a conflict of interest has been identified, for removing or remedying the conflict. (5) The State agency shall develop and implement policies and procedures to ensure that the Legal Assistance Developer is not required or permitted to hold positions or perform duties that would constitute a conflict of interest. Xavier Becerra, Secretary, Department of Health and Human Services. [FR Doc. 2024–01913 Filed 2–6–24; 8:45 am] BILLING CODE 4154–01–P E:\FR\FM\14FER4.SGM 14FER4

Agencies

DEPARTMENT OF HEALTH AND HUMAN SERVICES
Administration for Community Living

[Federal Register Volume 89, Number 31 (Wednesday, February 14, 2024)]
[Rules and Regulations]
[Pages 11566-11699]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-01913]



[[Page 11565]]

Vol. 89

Wednesday,

No. 31

February 14, 2024

Part IV





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 and Native Hawaiian Grantees for Supportive, 
Nutrition, and Caregiver Services; Grants for Supportive and 
Nutritional Services to Older Hawaiian Natives; and Allotments for 
Vulnerable Elder Rights Protection Activities; Final Rule

Federal Register / Vol. 89 , No. 31 / Wednesday, February 14, 2024 / 
Rules and Regulations

[[Page 11566]]


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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 and Native Hawaiian Grantees for 
Supportive, Nutrition, and Caregiver 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 or ``the Department'').

ACTION: Final rule.

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SUMMARY: ACL is issuing this final rule to modernize the implementing 
regulations of the Older Americans Act of 1965 (``the Act'' or OAA). 
These changes advance the policy goals of the Act as articulated by 
Congress, including equity in service delivery, accountability for 
funds expended, and clarity of administration for ACL and its grantees. 
This final rule ultimately facilitates improved service delivery and 
enhanced benefits for OAA participants, particularly those in greatest 
economic need and greatest social need consistent with the statute.

DATES: 
    Effective date: This final rule is effective on March 15, 2024.
    Compliance date: October 1, 2025.

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: [email protected], Telephone: (312) 938-9858. 
Alice Kelsey, Deputy Director for the Administration on Aging, 
Administration for Community Living, Department of Health and Human 
Services, 330 C Street SW, Washington, DC 20201. Email: 
[email protected], Telephone: (202) 795-7342.
    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 regulations. To schedule an 
appointment for this type of accommodation or auxiliary aid, please 
call (312) 938-9858 or email [email protected].

SUPPLEMENTARY INFORMATION: 

Table of Contents

I. Background
    A. Statutory and Regulatory History
    B. Overview of the Final Rule
    C. Severability
II. Provisions of the Final Rule and Analysis and Responses to 
Public Comments
    Part 1321: 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 the 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 Agency May Appeal the 
Departmental Appeals Board's Decision
    19. Sec.  1321.45 How the Assistant Secretary for Aging May 
Reallot the State Agency'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 Agency for Approval
    Subpart D--Service Requirements
    1. Sec.  1321.71 Purpose of Services Allotments Under Title III
    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 the Departmental Appeals Board on 
Area Agency on Aging Withdrawal of Designation
    2. Sec.  1321.37 Notification of 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 and 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
    Part 1322: Grants to Indian Tribes and Native Hawaiian Grantees 
for Supportive, Nutrition, and Caregiver Services

[[Page 11567]]

    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 and 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 and Disaster 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
    Part 1323: Grants for Supportive and Nutritional Services to 
Older Hawaiian Natives
    A. Deleted Provisions
    1. Part 1323: Grants for Supportive and Nutritional Services to 
Older Hawaiian Natives.
    Part 1324: 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 State Agency Responsibilities for the 
Prevention of Elder Abuse, Neglect, and Exploitation
    Subpart C--State Legal Assistance Development
    1. Sec.  1324.301 Definitions
    2. Sec.  1324.303 Legal Assistance Developer
III. Required Regulatory Analyses
    A. Regulatory Impact Analysis
    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 OAA in 1965 to expand and enhance community 
social services for older persons.\1\ The original legislation 
established authority for grants to State agencies 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 (LTCOP or 
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), to serve as the 
principal agency designated to carry out the provisions of the OAA and 
as the 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 ACL.\4\
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    \1\ Public Law 89-73, 79 Stat. 218 (1965). 42 U.S.C. 3001 et 
seq.
    \2\ Section 201 of the OAA; 42 U.S.C. 3011.
    \3\ Section 202 of the OAA; 42 U.S.C. 3012. Title V of the OAA 
added in the 1978 reauthorization is administered by the Dep't of 
Labor.
    \4\ 80 FR 31389, 31391 (June 2, 2015).
---------------------------------------------------------------------------

    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 or area agencies) 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 included 56 State agencies (including the District of Columbia 
and five Territories), over 600 AAAs, and over 20,000 local service 
providers.\6\
---------------------------------------------------------------------------

    \5\ Title III of the OAA; 42 U.S.C. 3021 et seq.
    \6\ Cong. Research Serv., R43414, Older Americans Act: Overview 
and Funding (May 17, 2023), https://crsreports.congress.gov/product/pdf/R/R43414.
---------------------------------------------------------------------------

    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 10.1 million older persons in 2020 (the most recent year for 
which data is available).\8\ Title III accounted for nearly three 
quarters of the of the $2.378 billion OAA 2023 budget and funding for 
these programs is based on a statutory formula that determines yearly 
allocations to individual Territories and States.\9\
---------------------------------------------------------------------------

    \7\ Title III of the OAA; 42 U.S.C. 3021 et seq.
    \8\ Admin. for Cmty. Living, Overview of Older Americans Act 
Title III, VI, and VII Programs: 2020 Summary of Highlights and 
Accomplishments, p. III-2 (2022), https://acl.gov/sites/default/files/news%202022-09/2020%20OAA%20Report_Complete%20Product%209-1-22_508.pdf.
    \9\ Admin. For Cmty. Living, FY 2022 OAA Title III Annual Grant 
Awards (without transfers) (Apr. 27, 2022), https://acl.gov/sites/default/files/about-acl/2022-05/Title%20III-2022.pdf.
---------------------------------------------------------------------------

    Title III services are available to persons aged 60 and older and 
family caregivers; however, they are prioritized to serve those with 
the greatest economic need and greatest social need, particularly low-
income minority older individuals, older persons with limited English 
proficiency (LEP), older persons residing in rural areas, and older 
persons with disabilities.\10\
---------------------------------------------------------------------------

    \10\ Title III of the OAA; 42 U.S.C. 3021 et seq.
---------------------------------------------------------------------------

    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 Federally recognized 
Tribal organizations, including Native Alaskan organizations, and a 
designated not-for-profit group representing Native Hawaiians. To be 
eligible for funding, a Tribal organization or Hawaiian Native grantee 
must represent at least 50 Native Americans aged 60 and older who 
reside in the service area. In FY2023, grants were awarded to 290 
Tribal organizations representing approximately 400 Indian Tribes and 
Alaskan Native entities and one

[[Page 11568]]

organization serving Native Hawaiian elders.\11\
---------------------------------------------------------------------------

    \11\ U.S. Dep't of Health & Human Servs., Tracking 
Accountability in Government Grants System (TAGGS), https://taggs.hhs.gov (last visited Oct. 13, 2023).
---------------------------------------------------------------------------

    Title VII authorizes the Ombudsman program, programs for elder 
abuse, neglect, and exploitation prevention, and a requirement for 
State agencies to provide a State Legal Assistance Developer.\12\ 
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.\13\ 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.\14\ That same year, Ombudsman fielded 182,000 complaints 
and provided more than 569,000 instances of information and assistance 
to individuals and long-term care facilities.\15\ Title VII also 
authorizes grants to State agencies for program activities aimed at 
preventing and remedying elder abuse, neglect, and exploitation.
---------------------------------------------------------------------------

    \12\ Title VII of the OAA; 42 U.S.C. 3058 et seq.
    \13\ Cong. Research Serv., R43414, Older Americans Act: Overview 
and Funding (May 17, 2023), https://crsreports.congress.gov/product/pdf/R/R43414.
    \14\ Admin. For Cmty. Living, Fiscal Year 2023 Justification of 
Estimates for Appropriations Committees, 132, https://acl.gov/about-acl/budget.
    \15\ National Ombudsman Reporting System (NORS), Data at a 
Glance, Admin. for Cmty. Living (last visited Jan. 18, 2023).
---------------------------------------------------------------------------

A. Statutory and Regulatory History

    This final rule 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 the 
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 regulations, 
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. Regulations for programs authorized under the Act date from 
1988.\16\ 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.\17\
---------------------------------------------------------------------------

    \16\ 53 FR 33758 (Aug. 31, 1988).
    \17\ 80 FR 7704 (Feb. 11, 2015).
---------------------------------------------------------------------------

    There have been substantial statutory changes since 1988, as 
detailed by the Congressional Research Service in several summary 
publications.\18\ 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), which 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; 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.
---------------------------------------------------------------------------

    \18\ Cong. Research Serv., R46439, Older Americans Act: A 2020 
Reauthorization (July 1, 2020), https://crsreports.congress.gov/product/pdf/R/R46439; Cong. Research Serv., R43414, Older Americans 
Act: Overview and Funding (May 17, 2023), https://crsreports.congress.gov/product/pdf/R/R43414.
---------------------------------------------------------------------------

    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 State agencies to impose cost-sharing, subject to 
limitations, for some Title III services certain older persons receive 
while retaining authority for voluntary contributions toward the costs 
of services. The 2006 amendments (Pub. L. 109-365) authorized the 
Assistant Secretary for Aging to designate an individual within AoA to 
be responsible for prevention of elder abuse, neglect, and exploitation 
and to coordinate Federal elder justice activities. 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 State agencies 
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.
    The 2016 amendments (Pub. L. 114-144) provided additional 
flexibility to State agencies, AAAs, and social services providers in 
addressing the modernization of senior centers, falls prevention, and 
behavioral health screening, and codified existing practices, such as 
requiring ``evidence-based'' disease prevention and health promotion 
services. For the Ombudsman program, they clarified conflicts of 
interest (COI) provisions, strengthened confidentiality and Ombudsman 
training requirements, and improved resident access to representatives 
of the Office. They addressed coordination among ADRCs and other home 
and community-based service (HCBS) organizations providing information 
and referrals.
    The Supporting Older Americans Act of 2020 (Pub. L. 116-131) added 
new definitions, including person-centered and trauma-informed. 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, as well as address the negative 
effects of social isolation among older individuals. Congress focused 
on other reauthorization issues as well, including changes to nutrition

[[Page 11569]]

services programs and to programs that provide support to family 
caregivers.
    We issued a Request for Information (RFI) 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.\19\ Most of the comments we 
received focused on: 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.
---------------------------------------------------------------------------

    \19\ 87 FR 27160 (May 6, 2022); section 2013A of the OAA, 42 
U.S.C. 3013a.
---------------------------------------------------------------------------

    On June 16, 2023, the Federal Register published a notice of 
proposed rulemaking (NPRM) regarding OAA Titles III, VI, and VII (88 FR 
39568). Through this NPRM, ACL sought feedback regarding ACL's proposal 
to modernize the implementing regulations of the OAA, which have not 
been substantially altered since their promulgation in 1988. The NPRM 
addressed supportive, nutrition, evidence-based disease prevention and 
health promotion, caregiver, legal, long-term care ombudsman, and other 
services provided by State agencies, Tribal organizations and a 
Hawaiian Native grantee, AAAs, and service providers under the OAA. The 
60-day comment period for the NPRM closed on August 15, 2023.

B. Overview of the Final Rule

    This final rule adopts the same structure and framework as the 
proposed rule. Part 1321 addresses programs authorized under Title III 
of the Act and includes subpart A (basis, purpose, and definitions), 
subpart B (State agency responsibilities), subpart C (area agency 
responsibilities), subpart D (service requirements), and subpart E 
(emergency and disaster requirements). Part 1322 addresses programs 
authorized under Title VI of the Act and includes subpart A (basis, 
purpose, and definitions), subpart B (application), subpart C (service 
requirements), and subpart D (emergency and disaster requirements). 
Part 1324 includes programs authorized under Title VII of the Act and 
includes subpart A (State Long-Term Care Ombudsman Program), subpart B 
(programs for prevention of elder abuse, neglect, and exploitation), 
and subpart C (State legal assistance development).
    ACL has made changes to several of the proposed rule's provisions 
based on public comments. Our final rule is a direct response to 
feedback from interested parties and reflects the evolving needs of 
both grantees and OAA program participants. In response to robust 
comment, we have clarified the flexibilities available during a major 
disaster, increased the amount of funds under Title III, part C-1 of 
the Act that may be used for shelf-stable, pick-up, carry-out, drive-
through, or similar meals, and provided more information about 
implementing the definition of ``greatest social need'' in State and 
area plans, among other clarifications.

C. Severability

    To the extent that any portion of the requirements arising from the 
final rule is declared invalid by a court, ACL intends for all other 
parts of the final rule that are capable of operating in the absence of 
the specific portion that has been invalidated to remain in effect. 
While our expectation is that all parts of the final rule that are 
operable in such an environment would remain in effect, ACL will assess 
at that time whether further rulemaking is necessary to amend any 
provisions subsequent to any holding that ACL exceeded its discretion, 
or the provisions are inconsistent with the OAA, or are vacated or 
enjoined on any other basis.

II. Provisions of the Final Rule and Analysis and Responses to Public 
Comments

    We received 780 public comments from individuals and organizations, 
including State agencies, Tribes and Tribal organizations, AAAs, 
service providers, Ombudsman programs, advocacy groups, and private 
citizens. We thank commenters for their consideration of the proposed 
rule and appreciate all comments received. We particularly are grateful 
for the OAA program participants who wrote to share their experience of 
OAA services and their thoughts on what they enjoy and would like to 
see in the future regarding OAA programming. In the subsequent 
sections, we summarize the rule's provisions and the public comments 
received, and we provide our response.

General Comments on the NPRM

General Support
    Comment: Commenters overwhelmingly supported most provisions in the 
proposed rule. Many commenters expressed general support for our 
updates to modernize the regulations. Other commenters appreciated the 
flexibilities in the rule and noted that they would like to work with 
their State and local leaders to identify other creative approaches to 
expanding services to older adults. A significant number of commenters 
requested additional funds to provide services under the Act.
    Response: ACL appreciates these comments. We encourage 
collaboration at the State and local levels to identify solutions that 
are responsive to the needs and resources in local communities. 
Requests for funding are outside the scope of this rule.
Technical Corrections; Recommendations for Sub-Regulatory Guidance
    Comment: A number of commenters identified technical corrections, 
including citation errors and a misnumbered preamble provision. 
Commenters also provided suggestions and raised questions that could be 
addressed in future sub-regulatory guidance on a variety of topics.
    Response: We appreciate these comments and have made the 
recommended technical corrections. We have also clarified the 
regulation text to remove references to sub-regulatory guidance that 
has not yet been issued, and we have revised the regulation title to 
accurately reflect program titles. We look forward to providing 
technical assistance and guidance on a number of topics subsequent to 
promulgation of the final rule.
LGBTQI+ Older Adults and Older Adults Living With HIV
    Comment: A significant number of comments focused on the importance 
of serving those in greatest economic need and greatest social need, 
including older adults and family caregivers who are lesbian, gay, 
bisexual, transgender, queer, intersex and/or have other sexual 
orientations, gender identities and expressions, and sex 
characteristics (LGBTQI+). Many commenters expressed support overall, 
and for specific provisions, concerning LGBTQI+ older adults and older 
adults with HIV. Specifically, commenters voiced support for full legal 
protections, protection of rights and privacy, and protection from 
discrimination when accessing services or meeting with providers. 
Commenters also supported quality, inclusive, and equitable 
legislation, regulations, aging policies, programs, services, and 
initiatives. Many commenters also suggested that staff and 
professionals working with older adults be trained in sensitivity, 
cultural competency, and needs specific to LGBTQI+ older adults and 
older adults with HIV. Specifically, commenters expressed the 
importance of ensuring that providers foster a welcoming, safe, and 
respectful

[[Page 11570]]

environment. Several commenters noted the importance of considering 
other noneconomic factors, such as geographic location (e.g., rural), 
disabilities, ethnicity, and the intersectional challenges of multiply 
marginalized populations. Several commenters noted the specific 
concerns of this community related to services funded under Title VII 
of the Act, such as the Ombudsman program and prevention of elder 
abuse, neglect, and exploitation.
    A few commenters specifically recommended engaging State agencies, 
AAAs, and service providers in providing funding, outreach, and 
services specific to older adults with HIV. Additionally, a few 
commenters noted the importance of hiring LGBTQI+ service provider 
employees and professionals. Several commenters referenced support for 
and access to high quality and culturally competent medical and mental 
health care. Some commenters noted the importance of recognition of and 
respect for partners, friends, and families. One commenter suggested 
requiring inclusive language and graphics in marketing materials as a 
matter of compliance. One commenter observed that LGBTQI+ individuals 
and people with HIV have a greater need to overcome isolation. Several 
commenters expressed concerns about finding affordable senior supported 
living options.
    Response: ACL appreciates these comments expressing concern for 
older adults and family caregivers who are LGBTQI+, as well as older 
adults and family caregivers with HIV. A majority of these comments are 
beyond the scope of this regulation because they do not relate to the 
substance of the rule, and in some cases address areas that are outside 
of ACL's statutory authority. However, we appreciate the numerous 
comments in support of these communities and believe the provisions at 
Sec.  1321.3 (defining ``Greatest social need''), Sec.  1321.11 
(Advocacy responsibilities), Sec.  1321.27 (Content of State plan), 
Sec.  1321.61 (Advocacy responsibilities of the area agency), Sec.  
1321.65 (Submission of an area plan and plan amendments to the State 
agency for approval), Sec.  1321.75 (Confidentiality and disclosure of 
information), and Sec.  1321.93 (Legal assistance) will improve 
services to these populations.
    ACL funds the National Resource Center on LGBTQ+ Aging (https://www.lgbtagingcenter.org), which provides training and technical 
assistance to aging services providers, including those funded under 
the OAA, in their work to support and include LGBTQI+ older adults and 
family caregivers. In a partnership with the Office of the Assistant 
Secretary for Health, ACL has worked to support the development of 
innovative efforts that improve health outcomes and quality of life for 
people aging with HIV and long-term survivors in both rural and urban 
areas, particularly among underserved communities, including on the 
basis of race, ethnicity, and LGBTQI+ status.\20\ We expect to build on 
these efforts and anticipate providing training and technical 
assistance following promulgation of the final rule to support 
effective implementation of these provisions.
---------------------------------------------------------------------------

    \20\ HHS Selects Phase 2 Winners of National HIV and Aging 
Challenges, HIV.gov, https://www.hiv.gov/blog/hhs-selects-phase-2-winners-of-national-hiv-and-aging-challenges/ (last updated Sept. 
21, 2023).
---------------------------------------------------------------------------

Collaboration Between State Agencies and Area Agencies
    Comment: ACL received many comments expressing concern that the 
rule allows State agencies to exert too much control in a variety of 
areas (e.g., which programs AAAs implement under the Act, how AAAs 
implement programs, minimum expenditures for certain services, 
prioritization of services, voluntary contributions). Commenters also 
expressed concern that the extent of control afforded to State agencies 
by the rule will stifle AAAs' abilities to tailor programs to the needs 
of their respective planning and service areas (PSAs).
    Response: 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[.]'' \21\ As the grantees under the Act, State agencies are 
responsible to ACL for monitoring the compliance of activities 
initiated under Title III with all applicable requirements to ensure 
grant awards are used for authorized purposes and are in compliance 
with Federal law. In light of these responsibilities, we believe the 
rule affords State agencies appropriate authority over the 
administration and implementation of the Act within their states.
---------------------------------------------------------------------------

    \21\ 42 U.S.C. 3025(a)(1)(C).
---------------------------------------------------------------------------

    Notwithstanding these State agency obligations, AAAs have a 
critical role in the development of State agency policies and 
procedures. Section 1321.9(a) requires that the policies and procedures 
be developed by State agencies in consultation with AAAs, program 
participants, and other appropriate parties in the State. As set forth 
in Sec.  1321.61 (Advocacy responsibilities of the area agency), AAAs 
also have an obligation to monitor, evaluate, and comment on policies, 
programs, hearings, levies, and community actions which affect older 
persons and family caregivers; this includes regarding the policies and 
procedures developed and implemented by State agencies. Further, except 
for the Ombudsman program as set forth in 45 CFR part 1324, subpart A 
and where otherwise indicated, the State agency policies may allow for 
such policies and procedures to be developed at the AAA level. 
Accordingly, the final rule provides tools for State and area agencies 
to work in tandem with one another and to address the concerns raised 
by these comments.
    The OAA is clear that State agencies and AAAs should work together 
to achieve the mission set forth in the Act. AAAs and State agencies 
have distinct but related roles that are all vitally important in 
providing services to older adults and family caregivers. ACL is 
available to provide technical assistance and support to State agencies 
and AAAs in maintaining positive working relationships, fulfilling 
their roles, and meeting the expectations of the OAA.
Housing, Housing Instability, and Homelessness
    Comment: Many commenters expressed support for addressing housing, 
housing instability, and homelessness, including information and 
assistance/referral (I&A/R), partnerships with the U.S. Department of 
Housing and Urban Development (HUD), assistance with paying for housing 
costs and shared living options, advocacy regarding rising housing 
costs and development which displaces older residents, and legal 
assistance to assist with housing problems, including evictions.
    Response: ACL appreciates these comments expressing concern for 
older adults and family caregivers who experience challenges with 
housing, housing instability, and homelessness. ACL notes the OAA's 
long-standing role in support of this topic, including State agency and 
AAA development of a comprehensive and coordinated network of services 
and supports; instances of co-location of congregate meal programs 
under Title III, part C-1 of the Act in affordable housing facilities; 
and the provision of legal assistance under the Act to respond to 
various housing and housing-related concerns. While regulating the 
provision of housing, including paying for housing costs, is beyond the 
scope

[[Page 11571]]

of the Act, we believe the provisions at Sec.  1321.3 (defining 
``Access to services or access services,'' ``In-home supportive 
services,'' and ``Greatest social need''), Sec.  1321.27 (Content of 
State plan), Sec.  1321.61 (Advocacy responsibilities of the area 
agency), Sec.  1321.65 (Submission of an area plan and plan amendments 
to the State agency for approval), Sec.  1321.75 (Confidentiality and 
disclosure of information), Sec.  1321.85 (Supportive services), and 
Sec.  1321.93 (Legal assistance) will support the aging network in 
responding to issues relating to housing, housing instability, and 
homelessness. This includes local partnerships between AAAs and housing 
authorities or providers and enabling access to services and supports 
for older adults residing in HUD-assisted housing as well as the 
braiding of funding to support housing stability with service 
coordination and delivery.
    ACL leads the Housing and Services Resource Center (https://acl.gov/HousingAndServices), a partnership between HHS and HUD. We 
expect to build on these efforts and anticipate providing training and 
technical assistance following promulgation of the final rule to 
support effective implementation of these provisions.
Accessibility and Civil Rights Obligations
    Comment: Numerous commenters expressed concern with the elimination 
of the definition of ``severe disability,'' as well as the lack of a 
specific definition of disability, and the absence of specific 
incorporation of major sensory disabilities and accessibility in the 
definition of ``greatest social need.'' Many of these commenters 
reported instances in which OAA grantees and subrecipients had not 
respected the civil rights of people with sensory or mobility 
disabilities. Some shared specific accounts of AAAs and legal service 
providers failing to provide culturally competent, accessible services 
to older adult consumers who are blind, low-vision, deaf, hard-of-
hearing, deafblind, or who have limited mobility. Many requested that 
we expand the definition of greatest social need to encompass these 
disability populations, codify the terms ``accessibility'' and ``vision 
rehabilitation services,'' require training in disability competency, 
and more clearly and forcefully require grantees to meet their civil 
rights obligations to older adults with disabilities.
    Commenters also recommended that ACL direct resources specifically 
to research on aging and vision loss, treatment for diseases that 
result in vision loss, and supportive services for people with vision 
loss so that they may age in place--such as transportation and home 
care assistance.
    Response: All recipients of Federal funding, including OAA grantees 
and subrecipients, must comply with the Americans with Disabilities 
Act,\22\ Section 504 of the Rehabilitation Act,\23\ Section 1557 of the 
Affordable Care Act,\24\ and all other applicable laws that protect 
against discrimination, including against people with disabilities. 
These civil rights laws require OAA grantees and subrecipients to 
provide auxiliary aids and services to ensure effective communication 
and to ensure that no eligible person with a disability is denied 
access to OAA programs and services due to disability. Older adults 
with disabilities and advocates may file complaints with the HHS Office 
for Civil Rights if anyone is denied equitable access to OAA programs 
or services, including due to lack of effective communication.\25\
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    \22\ 42 U.S.C. 12101 et seq.
    \23\ 29 U.S.C. 794.
    \24\ 42 U.S.C. 18116.
    \25\ How to File a Civil Rights Complaint, U.S. Dept. of Health 
and Human Serv., Office for Civil Rights, https://www.hhs.gov/civil-rights/filing-a-complaint/complaint-process/ (last visited 
Oct. 11, 2023).
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    While we strongly recommend that OAA grantees and subrecipients 
train staff on cultural competency and disability accommodations as a 
best practice, training requirements in disability accommodation and 
cultural competency are beyond the scope of this rulemaking. We decline 
to adopt definitions of accessibility, vision rehabilitation services, 
and related terms, preferring to defer to existing definitions in 
relevant civil rights laws. However, we have reincorporated the 
definition of ``severe disability'' in this final rule. In addition, 
the definition of ``greatest social need'' already includes ``physical 
and mental disabilities,'' and this includes all severe disabilities 
and sensory and communication disabilities.
    Directing resources for research on aging and vision loss is also 
outside the scope of this rule. However, we believe the provisions at 
Sec.  1321.3 (defining ``Access to services or access services'' and 
``Greatest social need''), Sec.  1321.27 (Content of State plan), Sec.  
1321.61 (Advocacy responsibilities of the area agency), Sec.  1321.65 
(Submission of an area plan and plan amendments to the State agency for 
approval), and Sec.  1321.85 (Supportive services) will support the 
aging network in responding to issues relating to vision and hearing 
loss.
Age Discrimination in the Workplace
    Comment: Several commenters expressed concern about age 
discrimination in the workplace.
    Response: While addressing age discrimination in the workplace 
broadly is outside of the scope of these regulations, ACL notes that 
supportive services provided under Title III of the Act may be helpful 
to those experiencing work-related concerns. For example, age 
discrimination is one of the priority areas that may be addressed by 
legal assistance provided under the Act (Sec.  1321.93 Legal 
assistance). While Title V, the Senior Community Service Employment 
Program, is outside the scope of these regulations because it is 
implemented by the Department of Labor, programs funded under Title 
III, VI, and VII of the Act are encouraged to have referral mechanisms 
among programs funded under all Titles of the Act.
Administrative Burden, Implementation Costs, Implementation Timeframe
    Comment: We received a significant number of comments related to 
concerns about the burden, cost, and amount of time regulated entities 
would need to implement the final rule (e.g., costs and time needed to 
review and update existing policies and procedures, to create new 
policies and procedures, create or update state regulations, and to 
train staff), as well as concerns about the ongoing costs of monitoring 
compliance with the final rule. Some State agencies commented that they 
anticipate that consultants and/or additional staff will need to be 
hired and/or that changes will need to be made to information 
technology systems. Some State agencies asserted that ACL has greatly 
underestimated both the cost, and the amount of time, needed to come 
into compliance with the rule.
    Response: A limited number of substantive changes were made by the 
2020 reauthorization to the implementation of programs under the Act, 
and much of this final rule codifies the policies and procedures that 
Title VI grantees, State agencies, AAAs, and service providers already 
have or should have in place to administer programs and deliver 
services under the Act. Similarly, State and area agencies should 
already be engaging in monitoring activities for compliance with the 
Act and implementing regulations. State and area agencies will have to 
review and revise their existing practices, policies, and procedures to 
ensure they comply with the final rule. For example, State agencies and 
AAAs will need to update definitions of

[[Page 11572]]

greatest social need and greatest economic need. However, this final 
rule does not require States to have regulations, and many of the new 
potentially burdensome aspects of the final rule are at the State 
agency's option to implement (for example, allowing shelf-stable, pick-
up, carry-out, drive-through, or similar meals to complement the 
congregate meals program). We also note that public comments that 
provided State-specific cost estimates to implement and administer the 
final rule did not clearly differentiate between costs attributable to 
the statute and the incremental costs of implementing the final rule; 
accordingly, it is not feasible to incorporate this information into 
our analysis of the impact of the final rule. As more particularly 
discussed in the Regulatory Impact Analysis below, we anticipate that 
any costs to regulated entities associated with the final rule will not 
be onerous.
    In consideration of comments related to the time required for 
implementation of the rule, we have decided to delay the compliance 
date of this rule until October 1, 2025. This should give all regulated 
entities sufficient time to come into compliance with these 
regulations. It will also allow time for State and area plans on aging 
that will be effective as of October 1, 2025, to incorporate the 
requirements of this final rule into new or amended plans.
    Consistent with current practice, if State agencies encounter 
challenges implementing specific provisions of the rule, they should 
engage with ACL for technical assistance and support. In addition, 
State agencies that need additional time to comply with one or more 
provisions of the rule may submit a request to proceed under a 
corrective action plan. A request should include the reason the State 
needs additional time, the steps the State will take to reach full 
compliance, and how much additional time the State anticipates needing. 
The corrective action plan process is intended to be highly 
collaborative and flexible. Under a corrective action plan, States 
agencies and ACL will jointly identify progress milestones and a 
feasible timeline for the State agency to come into compliance with the 
provision(s) of the rule incorporated into the corrective action plan. 
State agencies must make a good faith effort at compliance to continue 
operating under a corrective action plan. Requests for corrective 
action plans will be reviewed after April 1, 2024, and ACL will provide 
guidance on this process after this rule takes effect.

Part 1321: Grants to State and Community Programs on Aging

A. Provisions Revised To Reflect Statutory Changes or Provide Clarity

    The following provisions of this final rule reflect statutory 
changes (e.g., changing ``Commissioner for Aging'' to ``Assistant 
Secretary for Aging'' throughout), revisions for clarity, and direction 
in response to requests for technical assistance from grantees and 
other interested parties, RFI responses, listening sessions, Tribal 
consultation, and public comment received on the NPRM.
Subpart A--Introduction
Sec.  1321.1 Basis and Purpose of This Part
    Section 1321.1 sets forth the requirements of Title III of the Act 
to provide grants to State and community programs on aging. This final 
rule ensures consistency with statutory terminology and requirements, 
such as referring 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.
    Comment: Commenters expressed support for the priority given to 
services for those with the greatest economic and social need. One 
commenter requested Sec.  1321.1(c)(4) also recognize the need for 
advocacy on behalf of family caregivers.
    Response: We appreciate these comments and have revised Sec.  
1321.1(c)(4) to read, ``Serve as an advocate for older individuals and 
family caregivers[.]''
    Comment: One commenter stated that given the authority for the 
State agency to allocate funds to the Ombudsman program, they strongly 
recommend language be added at Sec.  1321.1(c)(7) to reflect allocation 
of funds for the Ombudsman program.
    Response: ACL appreciates this comment and has revised Sec.  
1321.1(c)(7) to remove ``or'' in (i), add ``or'' to the end of (ii), 
and add (iii) to read, ``The Ombudsman program, as set forth in part 
1324.''
Sec.  1321.3 Definitions
    The final rule updates 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 interested parties.
    We 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 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,'' ``Service provider,'' and ``Severe 
disability.'' We retain with no revisions the terms: ``Act'' and 
``Fiscal year'' and we remove the terms: ``Frail'' and ``Human 
services.''
    Comment: We received many comments in support of these updated 
definitions.
    Response: We appreciate these comments. ACL's responses to comments 
of particular note follow.
``Access to Services'' or ``Access Services''
    Comment: We received one comment requesting additional examples of 
access services.
    Response: ACL appreciates this comment and acknowledges that 
service provision and technologies continue to evolve. In response to 
this comment, we have added ``options counseling'' to the list of 
examples.
``Acquiring,'' ``Altering or Renovating,'' and ``Constructing''
    Comment: We received comments supporting the removal of the term 
``multipurpose senior center'' from the definitions of ``altering or 
renovating'' and ``constructing.'' Other commenters expressed confusion 
related to these terms, because the rule only allows grantees to use 
OAA funding for ``acquiring'' and ``constructing'' multipurpose senior 
centers. Other commenters sought clarity as to whether these terms 
apply to minor home repairs

[[Page 11573]]

or modifications provided to individual service participants under the 
Act.
    Response: We only use these terms to clarify how grantees may use 
OAA funds on facilities where OAA services are provided or facilities 
that are otherwise necessary to satisfy the administrative requirements 
of the Act. These terms do not apply to ``in-home supportive services'' 
provided to individuals, such as minor modification of homes or 
individual residences.
``Conflicts of Interest''
    Recognizing the importance of ensuring the integrity of, and trust 
in, activities carried out under the Act, section 307(a)(7) of the Act 
requires State agencies to have mechanisms in place to identify and 
remove COI.\26\ We include several provisions related to 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 
provisions reflect the expanded potential for COI 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.
---------------------------------------------------------------------------

    \26\ 42 U.S.C. 3027(a)(7).
---------------------------------------------------------------------------

``Cost Sharing''
    We clarify the definition of cost sharing to implement the intent 
of section 315 of the Act.\27\ 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, this term is used differently in the Act than it is commonly 
used in other settings. There are many restrictions on how cost sharing 
may be implemented under the Act, 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,\28\ but State agencies that wish to allow the practice of 
cost sharing must comply with a number of requirements, which are 
described in Sec.  1321.9(c)(2)(xi).
---------------------------------------------------------------------------

    \27\ 42 U.S.C. 3030c-2.
    \28\ 42 U.S.C. 3030c-2(a)(2) prohibits a State agency 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 FPL. State agencies 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.
---------------------------------------------------------------------------

``Cost Sharing'' and ``Voluntary Contributions''
    Comment: We received a mix of comments on these definitions; some 
commenters felt the definitions were clear as drafted, while others 
disagreed or asked for further clarification.
    Response: We have revised the definition of ``voluntary 
contributions'' to read, ``[. . .] means donations of money or other 
personal resources given freely, without pressure or coercion, by 
individuals receiving services under the Act.'' For consistency, we 
have also revised this definition in part 1322. We intend to address 
other suggestions and requests for clarification through technical 
assistance.
``Family Caregiver''
    We define ``family caregiver'' to include the following subsets: 
adult family members or other individuals who are caring for an older 
individual, adult family members or other individuals 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'' (defined below). 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, part E of the Act. For example, this includes unmarried partners, 
friends, or neighbors caring for an older adult.
    Comment: We received one comment suggesting that individuals of 
working age who are not adults should be included in the definition of 
family caregiver.
    Response: ACL appreciates this comment. Entities implementing 
services for family caregivers have the discretion to define an 
``adult'' in this context or to consider such individuals as ``other 
individuals'' as used in the definition, so long as they comply with 
State agency policies and procedures, these regulations, and any other 
applicable Federal requirements.
    Comment: We received many comments supporting an inclusive 
definition of family caregiver, as well as suggestions for expanded 
wording of the definition. One commenter recommended ACL consider 
alternatives to the term ``informal'' within the family caregiver 
definition to avoid minimizing their invaluable role and avoid 
inaccuracy due to some receiving financial compensation.
    Response: ACL appreciates these comments and concurs that the 
definition includes non-traditional families and families of choice. We 
believe that the definition of ``an adult family member, or another 
individual'' and the subsequent preamble explanation that this 
``includes unmarried partners, friends, or neighbors'' is sufficiently 
broad. To address family caregivers who may receive limited financial 
compensation, we have revised the definition to add, ``For purposes of 
this part, family caregiver does not include individuals whose primary 
relationship with the older adult is based on a financial or 
professional agreement.'' We have also revised this definition in part 
1322.
``Greatest Economic Need''
    One of the basic tenets of the Act is focusing OAA services on 
individuals who have the greatest economic need. 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.'' \29\ Through its policies, 
the State agency may permit AAAs to further refine specific target 
populations of greatest economic need within their PSA.\30\ 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.
---------------------------------------------------------------------------

    \29\ 42 U.S.C. 3026(a)(4)(A)(i)(I)(aa).
    \30\ 42 U.S.C. 3025(a)(1).
---------------------------------------------------------------------------

    Comment: We received multiple comments expressing support for 
focusing services on those in greatest economic need. One commenter 
stated that it would be beneficial to create a process of enabling 
local AAAs to set standards and definitions to reflect local needs.
    Response: ACL appreciates these comments and notes that the 
preamble discussion supports local targeting. Furthermore, Sec.  
1321.27(d) and

[[Page 11574]]

Sec.  1321.65(b)(2) permit the State agency and AAAs to further refine 
specific target populations of greatest economic need based on local 
and individual factors.
    Comment: Some commenters noted that the definition in Sec.  1321.3 
of ``greatest social need'' does not entirely align with the text at 
Sec.  1321.27 and Sec.  1321.65.
    Response: We appreciate commenters raising this issue; we have 
revised these provisions for consistency.
    Comment: Some commenters expressed concern that the expanded 
definition of greatest social need could diminish the focus on those in 
greatest economic need if the revised definition results in changing an 
intrastate funding formula (IFF).
    Response: Changes to IFFs are one, but not an exclusive, method of 
targeting and prioritizing services to those in greatest social need. 
We provide additional discussion on methods to target and prioritize 
services to those in greatest economic and greatest social need in the 
preamble discussion under Sec.  1321.27.
``Greatest Social Need''
    Focusing OAA services on individuals who have the greatest social 
need is one of the basic tenets of the Act. ``Greatest social need'' is 
defined in the Act 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.\31\ This definition allows for consideration of other 
noneconomic factors that contribute to cultural, social, or geographic 
isolation.
---------------------------------------------------------------------------

    \31\ 42 U.S.C. 3002(24).
---------------------------------------------------------------------------

    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 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 
professionals and aging services providers.\32\ People aging with HIV 
are a growing population with distinct needs. The experience of HIV 
stigma may contribute to isolation and feelings of loneliness and be 
complicated by other stigmatized or marginalized components of an 
individual's identity, including age, race, sexual orientation, and 
gender identity. Older people with HIV report poor mental and physical 
health at higher rates than their HIV negative counterparts, as well as 
difficulty accessing necessary supports and services like 
transportation, nutrition, and housing.\33\
---------------------------------------------------------------------------

    \32\ Nat'l Resource Ctr. on LGBT Aging, Inclusive Services for 
LGBT Older Adults: A Practical Guide to Creating Welcoming Agencies 
(2020), https://www.lgbtagingcenter.org/resources/pdfs/Sage_GuidebookFINAL1.pdf.
    \33\ State of Aging with HIV: Third National Survey, HealthHIV 
(2023) https://healthhiv.org/stateof/agingwithhiv/?eType=EmailBlastContent&eId=883056c6-e9af-47dc-a653-022e1f4fb9fc; 
Mark Brennan-Ing, Emerging Issues in HIV and Aging, prepared for the 
HIV and Aging Policy and Action Collation (May 11, 2020), https://www.sageusa.org/wp-content/uploads/2020/07/emerging-issues-in-hiv-and-aging-may-2020.pdf.
---------------------------------------------------------------------------

    Other chronic conditions may also result in isolation or stigma, as 
may housing instability, food insecurity, lack of access to reliable 
and clean water supply, lack of transportation, utility assistance 
needs, or interpersonal safety concerns, including abuse, neglect, and 
exploitation.
    We received many comments through the RFI and the NPRM comment 
period urging ACL to set clear and consistent expectations regarding 
the populations to be included, and our intent is to do so in this 
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.'' \34\ Through its 
policies, the State agency may permit AAAs to further refine specific 
target populations of greatest social need within their PSAs.\35\ 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.
---------------------------------------------------------------------------

    \34\ 42 U.S.C. 3026(a)(4)(A)(i)(I)(aa).
    \35\ 42. U.S.C. 3025(a)(1).
---------------------------------------------------------------------------

    Comment: We received multiple comments expressing support for 
focusing services on those in greatest social need. One commenter 
stated it would be beneficial to create a process of enabling local 
AAAs to set standards and definitions to reflect local needs.
    Response: ACL appreciates these comments and notes that the 
preamble discussion supports local targeting. Furthermore, Sec.  
1321.27(d) and Sec.  1321.65(b)(2) permit the State agency and AAAs to 
further refine specific target populations of greatest social need 
based on local and individual factors.
    Comment: Commenters suggested various additions to the list of non-
economic factors, such as ``solo older adults,'' people living alone 
with cognitive impairments, older individuals who are experiencing 
abuse, neglect, self-neglect, and/or exploitation, and formerly 
incarcerated individuals. One commenter requested a modification from 
``normal'' to ``routine'' in proposed (9)(i). Other commenters 
disagreed with the proposed definition and/or provided other 
suggestions. For example, some commenters raised the concern that the 
definition is inadequate regarding racial or ethnic status because it 
only mentions it in the context of isolation when impacts are far more 
extensive, including experiences of incarceration, higher rates of 
poverty and homelessness, health inequities such as being served in 
underperforming facilities, and lack of trust in external services and 
service providers. Commenters also requested clarification as to 
whether sensory loss or sensory impairment, including deafness, being 
hard of hearing, blindness, and having low vision, may be considered 
under ``physical and mental disabilities'' or ``chronic conditions.''
    Response: ACL appreciates these comments and recognizes that there 
are various additional factors that a State agency or a AAA may wish to 
include within the category of ``[o]ther needs as further defined by 
State and area plans based on local and individual factors[.]'' Such 
factors may be included in the target populations that a State agency 
or a AAA may define pursuant to Sec.  1321.27(d)(1) and Sec.  
1321.65(b)(2)(i), respectively. Additionally, we acknowledge that the 
concepts included in our definition may be expressed using different 
words. For example, ``solo older adults'' or ``older adults living 
alone'' may be included as examples of experiences of cultural, social, 
or geographical isolation due to ``any other status'' under (3)(x) of 
this revised definition. We have added ``routine'' to (3)(x)(a) in 
addition to the statutory term, ``normal.''
    ACL recognizes the extensive impacts to older adults who may face 
cumulative effects of a lifetime of

[[Page 11575]]

isolation caused by racial or ethnic status which restrict the ability 
of an individual to perform routine daily tasks or threaten the 
capacity of an individual to live independently, such as experiences of 
incarceration, higher rates of poverty and homelessness, health 
inequities due to being served in underperforming facilities, and lack 
of trust in external services and service providers. Considerations 
relating to racial or ethnic status may be further defined under ``(x) 
Other needs as further defined by State and area plans based on local 
and individual factors[.]''
    ACL confirms that sensory loss or sensory impairment, including 
deafness, being hard of hearing, blindness, and having low vision, may 
be considered under ``Physical and mental disabilities,'' ``Chronic 
conditions,'' or separately defined as provided at ``Other needs as 
further defined by State and area plans based on local and individual 
factors[.]'' Older individuals who are experiencing abuse, neglect, 
self-neglect, and/or exploitation may be considered under 
``Interpersonal safety concerns,'' as well as under several of the 
other population categories listed here, depending on the individual's 
personal situation.
    Comment: A commenter recommended including the concept of 
``lifesaving/preservation'' (relating to the availability of 
necessities such as water, access to food supplies, and electricity) in 
the definition of greatest social need. This comment was raised in the 
context of Indian reservations where, for example, water may need to be 
manually hauled and electricity may be unavailable.
    Response: ACL appreciates these comments. We acknowledge that 
access to these types of necessities is important, and we have revised 
the definition to include lack of access to reliable and clean water 
supply. We have also amended the regulatory definition to better align 
with the structure of the statutory provision.
    ACL has determined that the definition as proposed, with the 
revisions noted here, provides an appropriate balance in meeting the 
intent of the Act and allowing for State and local agency 
customization.
``Immediate Family''
    Comment: We received one comment stating that the term ``immediate 
family'' should include non-relatives that are socially connected, 
especially including clan relationships in Tribal communities.
    Response: This term is used specifically in the context of COI 
policies at Sec.  1321.47 and Sec.  1321.67 requiring State agencies 
and AAAs, respectively, to have policies and procedures ``[e]nsuring 
that no individual, or member of the immediate family of an individual, 
involved in administration or provision of a Title III program has a 
conflict of interest[.]'' ACL declines to expand the definition of 
immediate family to avoid creating an overly broad application of COI 
provisions in Tribal communities. ACL notes that the definition of 
``family caregiver'' set forth in Sec.  1321.3 and used in Sec.  
1321.91 for provision of family caregiver support services includes 
``[. . .] an adult family member, or another individual [. . .]'' which 
includes non-relatives that are socially connected and clan 
relationships in Tribal communities.
``In-Home Supportive Services''
    Comment: We received supportive comments regarding this provision, 
as well as comments requesting expansion of the in-home supportive 
services identified. We received comment asking for the definition to 
be altered or to otherwise remove the phrase ``[. . .] and that is not 
available under another program'' regarding the example of minor 
modification of homes for parity with the definition under part 1322, 
to allow for collaboration with other programs, and to avoid excessive 
burden in proving no other program is available.
    Response: ACL appreciates these comments. We have revised (1) under 
this definition to read, ``Homemaker, personal care, home care, home 
health, and other aides[.]'' Recognizing that respite care of all types 
assists older adults in avoiding institutionalization, we have revised 
(4) under this definition to begin, ``Respite care for families[.]'' To 
facilitate consistency of definitions and avoid excessive burden, we 
have amended the phrase regarding minor modification of homes to state, 
``[. . .] and that is not readily available under another program.'' We 
have similarly amended this definition in part 1322 for consistency.
``Means Test''
    Comment: We received several comments questioning how to prioritize 
participants without means testing.
    Response: The definition of ``means test'' in the final rule is 
very similar to the previous regulatory definition. We updated the 
definition to be consistent with the statute by adding family 
caregivers and made other edits for clarity. Under the Act, service 
providers may not determine an older adult or family caregiver to be 
ineligible for services due to the participant's income, assets, or 
other resources.\36\ However, service providers may determine that due 
to limited resources and requirements to focus providing services to 
those in greatest economic need and greatest social need, they are 
unable to provide immediate service to some individuals. In such 
situations, service providers may include prospective participants on a 
waiting list; make referrals to other service providers or services; 
offer to provide services under a private pay program, as set forth in 
Sec.  1321.9(c)(2)(xiii); and/or advocate for additional resources. 
Service providers may ask for financial information from prospective 
participants to assess for needs, screen for other benefits or services 
that may be available, establish priority for receipt of services, and 
collect data for needs assessment, reporting, evaluation, and other 
appropriate purposes.
---------------------------------------------------------------------------

    \36\ Section 315 of the OAA; 42 U.S.C. 3030c-2 (b)(3).
---------------------------------------------------------------------------

    For example, a family caregiver seeking respite assistance may be 
assessed by a AAA and found to have some financial resources, several 
other family members providing care as back-up to the primary 
caregiver, and a care recipient who has fewer care needs. A second 
family caregiver seeking respite assistance from the AAA is caring for 
a care recipient with very high care needs and is from an underserved 
community, as identified in the State and area plan. This second family 
caregiver may be prioritized for respite services by the AAA, as they 
have very limited financial resources and no nearby sources of back-up 
caregiving. The first family caregiver would not be ineligible for 
services, but due to the respite program's limited resources might be 
placed on a waiting list and referred to other services, including 
those under private pay arrangements. While not receiving respite 
services, the first family caregiver could also participate in 
caregiver support group and education services provided by the AAA 
under the Act.
    The AAA could use the data collected regarding waiting lists and 
unmet needs in its advocacy efforts. With successful advocacy efforts 
resulting in an increase in funding for family caregiver programs, the 
first family caregiver could then receive respite services when those 
additional resources become available.
``Multipurpose Senior Center''
    Comment: We received comments requesting a change from ``shall'' to 
``may'' in the definition as proposed. We received comments questioning 
the use

[[Page 11576]]

of the term ``multipurpose senior center'' to reference a service. We 
also received comment disagreeing with the definition, including with 
the inclusion of ``virtual facilities'' to the definition. Other 
commenters expressed appreciation for the inclusion of ``virtual 
facilities'' to reflect a growing number of programs and services 
offered online after the pandemic, noting this may make programs more 
accessible and equitable.
    Response: We appreciate these comments and have revised Sec.  
1321.3 (Definitions) to indicate ``[. . .] as used in Sec.  1321.85, 
facilitation of services in such a facility.'' We have determined that 
the inclusion of virtual facilities allows for the option of various 
service modalities and that the use of the term ``as practicable'' 
allows for appropriate variation in local circumstances, while 
remaining true to the definition of ``multipurpose senior center'' as 
set forth in the Act and the intent for facilitation of such services. 
We have made a corresponding revision to this definition in part 1322.
``Official Duties''
    Comment: We received recommendations to clarify that 
representatives of the Office may be carrying out the duties ``[. . .] 
by direct delegation from, the State Long-Term Care Ombudsman'' in 
addition to the proposed ``[. . .] under the auspices and general 
direction of [. . .] the State Long-Term Care Ombudsman.''
    Response: We appreciate the comments. We recognize that Ombudsman 
programs operate in a variety of organizational structures and that 
direct delegation is one way that programs are managed. We have 
modified the definition as recommended and made a corresponding 
revision to part 1324.
``Private Pay''
    Comment: We received a comment requesting private pay and 
commercial relationship be defined separately.
    Response: We define private pay as a type of commercial 
relationship. As discussed in our response to comments on Sec.  
1321.9(c)(2)(xiv), we have declined to define ``commercial 
relationship.''
``Program Development and Coordination Activities''
    This term explains 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 this definition, we include language in Sec.  1321.27 to 
clarify requirements for these activities.
``Severe Disability''
    Comment: A number of commenters objected to our proposal to 
eliminate the definition of ``severe disability'' from the regulation. 
Commenters expressed concern that people with disabilities would no 
longer sufficiently be considered within the definition of greatest 
social need.
    Response: We have reincorporated the statutory definition of 
``severe disability'' into the regulation. We reiterate that people 
with disabilities also meet the definition of the general term 
``physical and mental disabilities.'' However, there are several 
statutory references that require specifically prioritizing people with 
``severe disabilities,'' and so we have incorporated the statutory 
definition in this final rule.
    Comment: We received other suggestions, program management 
recommendations, and implementation questions regarding the definitions 
in this provision.
    Response: We decline to make further changes to this provision and 
intend to address other suggestions and requests for clarification 
through technical assistance.
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. Section 1321.5 sets forth the State 
agency's mission, role, and functions as a leader on all aging issues 
in the State, and it specifies that the State agency will designate 
AAAs in States with multiple PSAs to assist in carrying out the 
mission. We include minor revisions to align with reauthorizations of 
the statute, such as adding family caregivers as a service population 
per the 2000 amendments (Pub. L. 106-501). We also update regulatory 
references and revise language for clarity.
    Comment: We received comments expressing support for the wording 
used in this section, including the additional detailed grant 
requirements for State agencies to develop comprehensive and 
coordinated systems of service delivery. We received several 
suggestions for other text to add to this section. Several commenters 
also recommended cultural humility and cultural competency training for 
the aging network, including regarding Tribal and disability issues.
    Response: We appreciate these comments. We believe the text is 
sufficient as drafted and that further examples, explanation, and 
training opportunities may be addressed through technical assistance, 
as appropriate.
    Comment: One commenter questioned the proposed change to ``[. . .] 
shall be the lead on all aging issues'' recommending instead ``be the 
leader,'' recognizing that some aging issues may be led by other 
entities within the State.
    Response: ACL appreciates this comment and has revised this 
statement to ``[. . .] shall be a leader on all aging issues[.]''
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 
make several changes to the provision on organization and staffing for 
consistency and for clarification. Minor changes at Sec.  1321.7(a), 
(c), and (d) reflect consistent wording with the State agency's 
obligations under 45 CFR part 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 part 1324. Section 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) \37\ and section 731 \38\ of the Act require the 
State agency to ensure that there is 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 add a new paragraph (e) to this provision that 
sets forth these requirements to assist State agencies to better 
understand their obligations under the Act related to staffing. The 
role of the Legal Assistance Developer is

[[Page 11577]]

discussed more fully in the preamble, below.
---------------------------------------------------------------------------

    \37\ 42 U.S.C. 3027(a)(13).
    \38\ 42 U.S.C. 3058j.
---------------------------------------------------------------------------

    Comment: We received comments of support for language recognizing 
the Ombudsman as the head of the Office of the State Long-Term Care 
Ombudsman and for including expectations for the Legal Assistance 
Developer. Other commenters expressed concern that provisions regarding 
State agency oversight of the Ombudsman program would create 
complexities within their State agency's current organizational 
structure.
    Response: We appreciate these comments. Regarding concerns with 
oversight of the Ombudsman program, the updates included in the 
proposed rule did not differ significantly from current regulatory 
expectations. We have made a minor revision to proposed Sec.  1321.7(c) 
for clarity. ACL will provide technical assistance to help State 
agencies understand and satisfy these requirements.
    Comment: We also received a recommendation that State agencies be 
allowed to enter into a contract or other arrangement to designate an 
individual as Legal Assistance Developer.
    Response: State agencies have the discretion to make human 
resources decisions about how to staff their agencies in order to 
fulfill their obligations under the Act.
Sec.  1321.9 State Agency Policies and Procedures
    We 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 
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 the 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[.]'' \39\ Consistent with that obligation, this final rule requires 
State agencies to promulgate policies and procedures related to a range 
of topics that fall within the State agency's authority to oversee 
compliance with 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). The policy 
development process includes the establishment of procedures, which set 
forth the steps to follow to implement policies. Accordingly, we have 
included minor revisions to clarify that the policy development and 
implementation process includes the establishment of procedures, as 
well as policies.
---------------------------------------------------------------------------

    \39\ 42 U.S.C. 3025(a).
---------------------------------------------------------------------------

    The language at Sec.  1321.9(a) is intended to (1) reflect 
statutory updates (i.e., the LTCOP regulation (45 CFR part 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 combine the areas for which State agencies must have established 
policies and procedures in this provision. The first area relates to 
data collection and reporting. Section 307 of the Act requires the 
collection of data and periodic (at a minimum, once each fiscal year) 
submission of reports to ACL regarding State agency and AAA 
activities.\40\ ACL has implemented a national reporting system and 
reporting requirements that must be used by all State agencies to 
ensure timely and consistent reporting. Section 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.
---------------------------------------------------------------------------

    \40\ 42 U.S.C. 3027.
---------------------------------------------------------------------------

    Section 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.\41\ In response 
to the RFI and the NPRM comment period, this section addresses comments 
from AAAs and service providers that requested State agencies provide 
transparency and clarity to AAAs and service providers about the 
policies and procedures that they 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 indicated 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. ACL strongly encourages State agencies to make their OAA 
policies and procedures available to the public, either by posting them 
online or by providing a point of contact at the State agency to 
respond to requests for this information. Doing so may help ensure 
accountability to the public regarding the implementation of OAA 
programs and services.
---------------------------------------------------------------------------

    \41\ 42 U.S.C. 3025(a)(2); 42 U.S.C. 3012(a)(9).
---------------------------------------------------------------------------

    Under section 306(a)(4)(A)(i)(I)(aa), AAAs are responsible for 
setting specific objectives, consistent with State agency policy, for 
provision of services to older individuals with greatest economic need 
and greatest social need.\42\ Identifying such populations at the State 
level facilitates consistent messaging and outreach, collaboration with 
other State level organizations and interested parties, 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 set forth in 
Sec.  1321.65. For example, a State agency 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 (FPL)), and another State agency may include older

[[Page 11578]]

adults experiencing housing instability in their definition of greatest 
economic need. A State agency might also choose to define those at 
greatest social need to include people with low literacy, while another 
State agency may include grandparents raising grandchildren due to 
substance use disorder or loss of parents to COVID-19 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.
---------------------------------------------------------------------------

    \42\ 42 U.S.C. 3026(a)(4)(A)(i)(I)(aa).
---------------------------------------------------------------------------

    The Act sets forth at section 307(a)(8)(A) that services will not 
be directly provided by a State agency or by a AAA, subject to certain 
conditions. AAAs must receive State agency approval to provide direct 
services. We clarify in this rule that the State agency must 
communicate how the area agencies may request approval to directly 
provide services.\43\ This section also incorporates the requirement 
under section 307(a)(5)(B) 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.\44\
---------------------------------------------------------------------------

    \43\ 42 U.S.C. 3027(a)(8)(A).
    \44\ Id. section 3027(a)(5)(B).
---------------------------------------------------------------------------

    Section 1321.9(c)(2) requires State agencies to establish policies 
and procedures related to the fiscal requirements associated with being 
awarded funding for the Nutrition Services Incentive Program 
(NSIP),\45\ Title III,\46\ and Title VII \47\ 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) provides guidance on the following 
fiscal requirements: distribution of Title III \48\ and NSIP \49\ 
funds; non-Federal share (match) requirements; \50\ permitted transfers 
of service allotments; \51\ maximum allocation amounts for State, 
Territory, and area plan administration; \52\ minimum funding 
expenditures for access to services, in-home supportive services, and 
legal assistance; \53\ State agency maintenance of effort obligations; 
\54\ requirements related to Ombudsman program expenditures and fiscal 
management; \55\ minimum expenditures for services for older adults who 
live in rural areas; \56\ reallotment of funds; \57\ voluntary 
contributions, including cost-sharing at the election of the State 
agency; \58\ use of program income; \59\ private pay programs; \60\ 
commercial relationships; \61\ buildings, alterations or renovations, 
maintenance, and equipment; \62\ prohibition against supplantation; 
\63\ monitoring of State plan assurances; \64\ advance funding; \65\ 
and fixed amount subawards.\66\ We provide further context for these 
fiscal requirements in the following paragraphs.
---------------------------------------------------------------------------

    \45\ 42 U.S.C. 3030a(e).
    \46\ 42 U.S.C. 3023.
    \47\ 42 U.S.C. 3058a.
    \48\ 42 U.S.C. 3025(a)(2)(C).
    \49\ 42 U.S.C. 3030a(d).
    \50\ 42 U.S.C. 3024(d), 3028(a)(1), 3029(b), 3030s-1(h)(2).
    \51\ 42 U.S.C. 3028(a)(4), (5).
    \52\ 42 U.S.C. 3024(d)(1), 3028(a), (b)(1)-(2).
    \53\ 42 U.S.C. 3026(a)(2).
    \54\ 42 U.S.C. 3029(c).
    \55\ 42 U.S.C. 3027(a)(9)(A).
    \56\ Id. section 3027(a)(3)(B)(i).
    \57\ 42 U.S.C. 3024(b), 3058b(b).
    \58\ 42 U.S.C. 3030c 2.
    \59\ Id. section 3030c-2(a)(5)(c).
    \60\ 42 U.S.C. 3020c; 42 U.S.C. 3026(g).
    \61\ 42 U.S.C. 3026(a)(13)-(14).
    \62\ 45 CFR 75; 42 U.S.C. 3030b, 3030d(b).
    \63\ 42 U.S.C. 3026(a)(9)(B), 3030c-2(b)(4)(E), 3030d(d), 3030s-
2, 3058d(a)(4).
    \64\ 42 U.S.C. 3025(a)(1)(A)-(C).
    \65\ 45 CFR 75.305.
    \66\ Id. section 75.353.
---------------------------------------------------------------------------

    Comment: Many commenters, including but not limited to State and 
area agencies, expressed support for this section generally. One 
commenter expressed support for the proposed rule, specifically Sec.  
1321.9(a) and (b). Other commenters expressed support for specific 
portions of Sec.  1321.9, including one commenter noted that the 
prohibition against means testing is a strength of the Act, and another 
expressed support for the requirement in Sec.  1321.9(c)(2)(i) that 
State agency policies and procedures must provide for the prompt 
disbursement of Title III funds and NSIP funds. Commenters also 
supported the clarification in Sec.  1321.9(c)(2)(vi) that excess State 
match reported on the Federal financial report does not become part of 
the maintenance of effort unless the State agency certifies the excess. 
Commenters additionally supported the requirement to have policies 
clarifying that funds awarded under certain sections of the Act cannot 
supplant existing Federal, State, and local funds (Sec.  
1321.9(c)(2)(xvi)) and the requirement to have policies which address 
monitoring for compliance with assurances (Sec.  1321.9(c)(2)(xvii)).
    Response: ACL appreciates the support for this provision, the 
purpose of which is to consolidate, and to make easier to locate, 
applicable requirements of the Act for which State agencies should have 
established policies and procedures.
    Comment: A commenter sought guidance as to whether Sec.  1321.9 
requires State agencies to monitor the performance of Ombudsman 
programs.
    Response: Regarding concerns with oversight of the Ombudsman 
program, the requirements in the final rule do not differ significantly 
from current regulatory expectations. ACL will provide technical 
assistance to help State agencies understand and sufficiently meet 
these requirements.
Sec.  1321.9(b)
    Comment: ACL received several comments requesting additional 
guidance and direction with respect to the collection of data (such as 
data on sexual orientation and gender identity, data regarding 
populations experiencing greatest economic need and greatest social 
need, and data stratification). Some commenters expressed concern as to 
additional data collection that may be required in connection with the 
expansion of the definitions of greatest economic need and greatest 
social need. Other commenters were concerned about potential costs 
associated with changes to data collection expectations. We also 
received various comments asking for improvements in ACL's data 
collection efforts, including specific data collection on sexual 
orientation and gender identity.
    Response: Section 307(a)(4) of the Act requires the collection of 
data and periodic submission of reports to ACL regarding State agency 
and AAA activities.\67\ ACL has developed a system for these purposes 
and has implemented reporting requirements that must be used by all 
State agencies to ensure timely and consistent reporting, as well as 
the quality and accuracy of the data reported. These reporting 
requirements include, among other things, data that must be collected 
by all State agencies (at a minimum, once each fiscal year). Specific 
details on the reporting system and its related requirements are 
outside the scope of the final rule. ACL is available to provide 
technical assistance to State agencies regarding data collection and 
reporting.
---------------------------------------------------------------------------

    \67\ 42 U.S.C. 3027(a)(4).
---------------------------------------------------------------------------

    Comment: Some commenters suggested that certain requirements be 
added to the proposed rule related to abuse and neglect of older 
adults. One commenter noted that the Ombudsman program is required to 
serve all residents and does not prioritize clients

[[Page 11579]]

based on greatest social need or greatest economic need and requested 
the proposed rule be clarified to acknowledge this distinction.
    Response: ACL declines to add any requirements to part 1321 of the 
rule related to abuse and neglect of older adults. The Ombudsman 
program and programs for the prevention of elder abuse, neglect, and 
exploitation are established pursuant to Title VII of the Act.\68\ ACL 
believes that Title VII of the Act and its accompanying regulation (45 
CFR part 1324) adequately address requirements for these programs and 
that no additional clarification is needed in the final rule.
---------------------------------------------------------------------------

    \68\ 42 U.S.C. 3058 et seq.
---------------------------------------------------------------------------

    Comment: Some State agencies and AAAs expressed concern that the 
requirements in Sec.  1321.9 regarding the promulgation of policies and 
procedures are too burdensome.
    Response: The Act contains many programmatic and fiscal 
requirements of which State agencies should be aware, and section 305 
of the Act requires State agencies to develop policies for ``[. . .] 
all State activities related to the objectives of this Act[.]'' \69\ 
Substantially all requirements included in this section are set forth 
in the Act; accordingly, State agencies should be aware of them and 
already should have policies and procedures in place. For clarity and 
ease of reference, we combined the areas for which State agencies 
should have established policies and procedures in this provision to 
assist State agencies in understanding their obligations under, and 
ensuring their compliance with, the Act. ACL understands that some 
State agencies' existing policies and procedures may not address all 
areas included in this section. To give State agencies ample time to 
establish or update their policies and procedures, ACL has deferred the 
compliance date of the rule to October 1, 2025.
---------------------------------------------------------------------------

    \69\ 42 U.S.C. 3025(a)(1)(C).
---------------------------------------------------------------------------

    Comment: One commenter recommends that the term ``policies and 
procedures'' be defined to also include State administrative rules or 
contractual obligations.
    Response: ACL declines to define ``policies and procedures'' in 
order to provide flexibility to the State agencies and to allow them to 
take into account applicable State requirements and standard practices 
with respect to the development of policies and procedures, which can 
vary from one State to another.
Sec.  1321.9(c)(1) Direct Service Provision
    Comment: A commenter requested that the list in Sec.  1321.9(c)(1) 
of topics related to direct services for State agencies be a suggested 
list, rather than a required list of topics to be covered.
    Response: ACL declines to revise the regulatory language as 
requested. The topics covered are the minimum, essential areas for 
which State agencies should have policies and procedures to administer 
direct services as contemplated by the Act. State agencies may elect to 
adopt additional policies and procedures with respect to the provision 
of direct services under the Act.
    Comment: With respect to Sec.  1321.9(c)(1)(i), which requires 
State agencies to develop policies and procedures regarding 
requirements for client eligibility, periodic (at a minimum, once each 
fiscal year) assessment, and person-centered planning, one commenter 
suggested that ACL require AAAs to consider the full array of available 
long-term service and support options, inclusive of community-based 
long-term services and supports, such as Programs of All-Inclusive Care 
for the Elderly (PACE programs).
    Response: ACL appreciates the comment, but ACL declines to direct 
State agencies as to the specific requirements that State agencies must 
include in these policies and procedures. State agencies are in the 
best position to make such decisions based on conditions and need in 
their States, and ACL leaves these determinations to the State 
agencies.
    Comment: Section 1321.9(c)(1), requires State agencies to have 
policies and procedures regarding the definition of those with greatest 
economic need and those with greatest social need within their States. 
One commenter recommended that ACL provide more detailed guidance on 
strategies for reaching populations with the ``greatest economic 
need.'' The commenter also recommended that ACL provide guidance 
regarding methods for measuring their success in reaching such 
populations and requested additional guidance regarding the definition 
of ``greatest economic need'' to prevent ``unintended consequences'' 
and to ensure that vulnerable older adults receive essential services. 
Commenters also recommended that we impose additional limitations on 
State agency determinations related to the definitions of greatest 
social need and greatest economic need, including recommendations of 
other populations to include and how such determinations should be made 
and disclosed.
    Response: ACL retains the regulatory text in Sec.  1321.9(c)(1) as 
proposed. ACL believes the definitions in Sec.  1321.3 of greatest 
economic need and greatest social need, as well as the requirements in 
Sec.  1321.27 regarding information required to be included in the 
State plan, adequately address these concerns.
    Regarding the comments raised with respect to the definition of 
``greatest economic need,'' the definition in the Act incorporates 
income and poverty status. The Act also permits State agencies to set 
policies, consistent with ACL's regulations, that incorporate other 
considerations into the definition of ``greatest economic need,'' and 
the discussion in Sec.  1321.3 above includes additional guidance for 
State agencies regarding how to define ``greatest economic need.'' \70\ 
Through its policies, the State agency may permit AAAs to further 
refine specific target populations of greatest economic need within 
their PSAs. 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. To maximize the flexibility 
afforded to State agencies in making these determinations, ACL declines 
to provide more specific direction in the final rule. Any additional 
guidance that may be appropriate will be offered by ACL via technical 
assistance.
---------------------------------------------------------------------------

    \70\ 42 U.S.C. 3026(a)(4)(A)(i)(I)(aa); 42. U.S.C. 3025(a)(1).
---------------------------------------------------------------------------

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).\71\ The Act requires 
distribution to occur via an IFF (further defined in Sec.  1321.49) or 
funds distribution plan (further defined in Sec.  1321.51). The IFF is 
required for States with multiple PSAs, and a funds distribution plan 
is required for single PSA States. Through this provision, we also 
require that funds be promptly disbursed using the IFF or funds 
distribution plan and to allow fixed amount subawards up to the 
simplified acquisition threshold, as set forth in 45 CFR 75.353.
---------------------------------------------------------------------------

    \71\ 42 U.S.C. 3025(a)(2)(C)-(D).
---------------------------------------------------------------------------

    Comment: Some commenters requested definitions of the terms 
``promptly disbursed'' ``fixed amount subawards,'' and ``subaward'' as 
used in this section. One commenter asked how

[[Page 11580]]

State agencies will be monitored for compliance.
    Response: The requirement that funds be promptly disbursed can be 
found in section 311(d)(4) of the Act, and ACL declines to provide a 
definition for this term.\72\ State agencies should define this term in 
their policies and procedures. Such definitions should include a 
reasonable time frame and should take into account State fiscal policy 
(which can vary from one State to another). For a definition of 
``subaward'' see 2 CFR 200.1 and 45 CFR 75.2, and for an explanation of 
``fixed amount subaward'' see 2 CFR 200.333 and 45 CFR 75.353. State 
agencies should have systems in place to monitor their compliance with 
the requirements of the Act, which ACL will regularly review as part of 
State plan review, in addition to ACL's other fiscal and program 
monitoring activities.
---------------------------------------------------------------------------

    \72\ 42 U.S.C. 3030a.
---------------------------------------------------------------------------

    In the course of reviewing Sec.  1321.9(c)(2)(i) in response to 
comments received, ACL has determined that the language in this section 
should be clarified. Accordingly, ACL has revised the regulatory text 
of Sec.  1321.9(c)(2)(i). In addition, ACL has moved the language 
regarding fixed amount subawards from this section to a new Sec.  
1321.9(c)(2)(xix) and has simplified the language used in this 
provision. For a definition of ``simplified acquisition threshold'' see 
2 CFR 200.1 and 45 CFR 75.2. ACL will provide technical assistance, as 
needed, regarding Sec.  1321.9(c)(2)(xix).
    Comment: ACL received several other suggestions, recommendations, 
and implementation questions regarding the IFF.
    Response: We intend to address any additional issues related to the 
IFF through technical assistance.
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 (match) funds from State or local sources, as set 
forth in sections 301(d)(1),\73\ 304(c),\74\ 304(d)(1)(A),\75\ 
304(d)(1)(D),\76\ 304(d)(2),\77\ 309(b),\78\ 316(b)(5),\79\ and 
373(h)(2).\80\ We 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 
match. We clarify that State or local public resources used to fund a 
program which uses a means test shall not be used to meet match 
requirements. We also clarify that a State agency or AAA may determine 
match in excess of required amounts, and we clarify match requirements 
that apply to service and administration costs for each type of grant 
award under Title III of the Act. We also provide prior written 
approval for unrecovered indirect costs to be used as match.
---------------------------------------------------------------------------

    \73\ 42 U.S.C. 3021(d)(1).
    \74\ 42 U.S.C. 3023(c).
    \75\ Id. section 3023(d)(1)(A).
    \76\ Id. section 3023(d)(1)(D).
    \77\ Id. section 3023(d)(2).
    \78\ 42 U.S.C. 3029(b).
    \79\ 42 U.S.C. 3030c-3(b)(5).
    \80\ 42 U.S.C. 3030s-1(h)(2).
---------------------------------------------------------------------------

    Comment: One commenter suggested that ACL encourage State agencies 
to allow the use of unrecovered facilities and administrative or 
indirect costs as match for administration.
    Response: ACL appreciates this comment and notes that the rule 
authorizes unrecovered indirect costs to be used as match (see Sec.  
1321.9(c)(2)(ii)(J)(1)). ACL encourages State agencies to consider this 
approach, subject to State agency policies and procedures. ACL will 
provide technical assistance, as requested.
    Comment: We received multiple comments supporting the use of means 
tested funds to count toward the required match. In addition, many 
commenters requested clarification on, or objected to, Sec.  
1321.9(c)(2)(ii)(C), which provides that ``State or local public 
resources used to fund a program which uses a means test shall not be 
used to meet the match.''
    Response: The prohibition against using State or local public 
resources which use a means test to count toward match is due to the 
prohibition against means testing in the OAA under section 
315(b)(3).\81\ Match for the federal grant is the non-federal share of 
the total project costs that a grantee is required to contribute to 
achieve the purposes of the award and allowability of costs must 
conform to any limitations or exclusions set forth in the Federal 
award, 2 CFR 200.403(b) and 45 CFR 75.403(b). Therefore, match must 
meet the same requirements that apply to allowed costs under the Act, 
and the Act prohibits means testing. Accordingly, we maintain the 
regulatory language of Sec.  1321.9(c)(2)(ii)(C) as proposed. ACL will 
further address this requirement through technical assistance, as 
needed.
---------------------------------------------------------------------------

    \81\ 42 U.S.C. 3030c-2(b)(3).
---------------------------------------------------------------------------

    Comment: A commenter asked for clarification regarding the 
difference between means testing and prioritizing services for 
individuals of ``greatest economic need.''
    Response: Means testing is a criterion used to determine an 
individual's financial eligibility for a program. If an individual's 
resources exceed the determined limit for a program, the individual is 
ineligible for a program--that individual cannot participate in the 
program even if the program has sufficient resources to be able to 
serve them. On the other hand, the use of ``greatest economic need'' is 
a way to prioritize services for those who are most in need of the 
service; it does not deem those of lesser economic need to be 
ineligible for the program.
    Comment: Some commenters expressed concern that a State agency or 
AAA may determine a match in excess of amounts required under the Act.
    Response: The Act does not prohibit a State agency or AAA from 
requiring a match in excess of amounts required under the Act, and ACL 
leaves these decisions to State agencies and AAAs to determine in 
accordance with State agency and AAA policies and procedures. ACL 
encourages State agencies to make requirements clear in terms and 
conditions of subaward agreements.
    Comment: Some commenters requested that the match requirements be 
reduced.
    Response: The match requirements are set by the Act, and ACL has no 
authority to reduce them.
    Comment: Some commenters requested clarification regarding Sec.  
1321.9(c)(2)(ii)(I), which provides that other Federal funds may not be 
used as match for programs funded under Title III of the Act unless 
there is specific statutory authority.
    Response: The Act does not provide statutory authority for other 
Federal programs to meet match requirements. ACL will provide 
additional guidance through technical assistance, as needed.
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 State agencies by parts of the Act (for example, the 
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

[[Page 11581]]

funding is for home-delivered meals)). We list the requirements and 
considerations that apply if a State agency 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 
agency. For example, a State may find that older individuals have a 
need for transportation to congregate meal sites. A State agency 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.
    Comment: ACL received several comments on this section, which 
addresses transfers between Title III, parts C-1 and C-2 and between 
Title III, parts B and C. The comments on this section were mixed. Some 
expressed support for the provision, while other commenters expressed 
that the transfer limitations are unnecessarily burdensome, and that 
AAAs should be able to make transfers as they see fit and without State 
agency approval.
    Response: ACL does not have the authority to modify this 
requirement. Section 308(b) of the Act does not allow the State agency 
to delegate authority to make a transfer to a AAA or any other 
entity.\82\ However, section 308 of the Act requires the State agency, 
in consultation with AAAs, to ensure that the process used by the State 
agency in transferring funds between Title III, parts C-1 and C-2 and 
between Title III, parts B and C is simplified and clarified to reduce 
administrative barriers. We have also clarified that for transfers 
between parts C-1 and C-2, State agencies must direct limited resources 
to the greatest nutrition service needs at the community level. We have 
added these requirements to Sec.  1321.9(c)(2)(iii). Given the volume 
of comments on this issue, ACL will further address these requirements 
through technical assistance, as needed.
---------------------------------------------------------------------------

    \82\ 42 U.S.C. 3028(b).
---------------------------------------------------------------------------

Sec.  1321.9(c)(2)(iv) State, Territory, and Area Plan Administration
    Section 308 of the Act sets limits on the amount of Title III funds 
which may be used for State, Territory, and area plan 
administration.\83\ In this provision, we 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 the use 
of funds for plan administration. This provision is intended to provide 
clarity to State agencies. For example, State agencies 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. Plan administration activities include 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 PSAs, we clarify section 304(d)(1)(A) of the Act 
and better streamline implementation of maximum allocation amounts.\84\ 
We specify that the maximum amount the State agency may make available 
for area plan administration is ten percent of the total amount of 
funding allocated to AAAs. This funding may be made available to AAAs 
in accordance with the IFF for the purpose of area plan administration, 
which we further address in Sec.  1321.57(b).
---------------------------------------------------------------------------

    \83\ Id. section 3028.
    \84\ 42 U.S.C. 3024(d)(1)(A).
---------------------------------------------------------------------------

    Comment: We received comment asking ACL to limit the amount of area 
plan administration funds that may be spent on the development of 
private pay or other contracts and commercial relationships.
    Response: Funds for area plan administration are limited to ten 
percent of the total funding allocated to AAAs. AAAs must complete the 
area plan activities required under the Act and as set forth by State 
agency policies and procedures; development of private pay programs or 
other contracts and commercial relationships is allowable, but not 
required. Given the levels of funding for Title III programs under the 
Act and the responsibility for State agencies to set policies and 
procedures, ACL does not believe further limitation is needed.
    Comment: One commenter expressed that too much OAA funding is 
allocable to State and area plan administration and requested that the 
administration of OAA programs be streamlined, while another expressed 
that amounts available for area plan administration should be 
increased, noting that area plan administration costs exceed the 
maximum that can be made available under the Act.
    Response: The maximum amounts for State and area plan 
administration are specified in the Act, and ACL does not have the 
authority to modify such amounts. Accordingly, ACL maintains the 
regulatory language for this provision as proposed.
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. Our final rule requires 
the State agency to have policies and procedures to implement these 
requirements.
    Comment: A commenter expressed concern about the impact of Sec.  
1321.9(c)(2)(v) in States that may lack continuity of leadership in 
their State agencies. The commenter also expressed concern that minimum 
expenditure requirements set by State agencies could impact the area 
agency and service provider network, given limited availability of OAA 
funds. Another commenter expressed concern that decisions on minimum 
adequate proportion amounts that will be expended on access services, 
in-home supportive services, and legal assistance will take away from 
current service levels in other areas without more funding being made 
available.
    Response: ACL appreciates these concerns but declines to make any 
modifications to this section. Section 307(a)(2)(C) of the Act requires 
each State plan to specify a minimum proportion of Title III, part B 
funds that will be used by area agencies to provide access services, 
in-home supportive services, and legal assistance.\85\ Accordingly, ACL 
does not have the authority to modify this requirement. Finally, the 
minimum expenditure requirements in this section are not new 
requirements; State and area agencies are already subject to these 
requirements.
---------------------------------------------------------------------------

    \85\ 42 U.S.C. 3027(a)(2)(C).
---------------------------------------------------------------------------

    Comment: A commenter suggested that ACL modify Sec.  
1321.9(c)(2)(v) to require each State plan to specify a minimum 
proportion of funds that will be used by area agencies to provide 
caregiver support services, in addition

[[Page 11582]]

to access services, in-home supportive services, and legal assistance.
    Response: ACL declines to make the requested change. The Act does 
not require that Title III, part B funds be used to provide caregiver 
support services, and ACL declines to impose such a requirement on 
State agencies. Title III, part E funds are specified to provide family 
caregiver support services. ACL leaves the decision to the State 
agencies as to whether to use Title III, part B funds for caregiver 
services in accordance with the Act, in order to afford flexibility to 
the State agencies as to how to allocate Title III, part B funding.
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. The final rule requires State agencies to 
develop fiscal policies and procedures related to requirements under 
the Act, corresponding to sections 309(c) \86\ and 374.\87\ These 
requirements include expending specific minimum maintenance of effort 
amounts, which are calculated as required by the Act. In response to 
technical assistance requests, we also clarify that excess amounts 
reported in other reports, such as the Federal financial report (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.
---------------------------------------------------------------------------

    \86\ 42 U.S.C. 3029.
    \87\ 42 U.S.C. 3030s-2.
---------------------------------------------------------------------------

    Comment: Two commenters recommended that Sec.  1321.9(c)(2)(vi) be 
amended to allow for one-time appropriations of State funding to be 
excluded from the Act's maintenance of effort requirement for Title 
III.
    Response: ACL understands these concerns. ACL is unable to 
accommodate this suggestion, however, as this requirement is based on 
the language in section 309(c) of the Act, which provides that ``[a] 
State's allotment under section 304 [of the Act] for a fiscal year 
shall be reduced by the percentage (if any) by which its expenditures 
for such year from State sources under its State plan approved under 
section 307 [of the Act] are less than its average annual expenditures 
from such sources for the period of 3 fiscal years preceding such 
year.'' \88\
---------------------------------------------------------------------------

    \88\ 42 U.S.C. 3029.
---------------------------------------------------------------------------

    Comment: A commenter recommended that Sec.  1321.9(c)(2)(vi)(C) be 
removed. This paragraph provides that any amount of State resources 
included in the Title III maintenance of effort certification that 
exceeds the minimum amount required becomes part of the permanent 
maintenance of effort. The commenter expressed that this requirement 
may disincentivize States from providing more than the minimum amount 
of funds.
    Response: ACL appreciates the comment but declines to remove this 
paragraph, in order to provide maximum flexibility to the State 
agencies. Contrary to the commenter's note, a State agency may have 
reason to employ this provision to increase the required maintenance of 
effort. In addition, as set forth in Sec.  1321.9(c)(2)(vi)(D), excess 
State match reported on the Federal financial report does not become 
part of the maintenance of effort unless the State agency certifies the 
excess.
Sec.  1321.9(c)(2)(vii) State Long-Term Care Ombudsman Program
    This final rule requires State agencies to develop fiscal policies 
and procedures related to requirements under the Act, corresponding to 
section 307(a)(9).\89\ These requirements include that the State agency 
will expend no less than the minimum amounts that are required to be 
expended by section 307(a)(9) of the Act. We also 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 comply with the requirements set forth 
in Sec.  1324.13(f).
---------------------------------------------------------------------------

    \89\ 42 U.S.C. 3027(a)(9).
---------------------------------------------------------------------------

    Comment: Two commenters expressed support for this provision. 
Currently, the Act sets the required minimum expenditure amount at the 
amount expended by the State agency during fiscal year 2019 for the 
Ombudsman program under Titles III and VII of the Act,\90\ and 
subsection (A) of Sec.  1321.9(c)(2)(vii), which addresses the minimum 
expenditure amount, likewise refers specifically to fiscal year 2019. 
Several commenters recommended not including a specific fiscal year in 
Sec.  1321.9(c)(2)(vii)(A), as such fiscal year may be modified as a 
result of future reauthorizations of the Act and recommends instead 
using language in Sec.  1321.9(c)(2)(vii)(A) that avoids mentioning a 
specific fiscal year.
---------------------------------------------------------------------------

    \90\ Id.
---------------------------------------------------------------------------

    Response: ACL appreciates the support expressed for Sec.  
1321.9(c)(2)(vii). We agree with the suggestion to remove the reference 
to fiscal year 2019 and have revised subsection (A) accordingly.
    Comment: A commenter expressed concern that the language in Sec.  
1321.9(c)(2)(vii)(A), which sets forth the minimum amount State 
agencies must expend for the Ombudsman program, is unclear.
    Response: ACL will address any questions regarding minimum 
expenditures for the Ombudsman program through technical assistance, as 
needed.
Sec.  1321.9(c)(2)(viii)--Rural Minimum Expenditures
    The final rule requires State agencies to develop fiscal policies 
and procedures related to requirements under the Act, corresponding to 
section 307(a)(3)(B).\91\ These requirements include that the State 
agency must: expend not less than the amount expended 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 set forth that the State agency 
establish a process and control for determining how rural areas within 
the State shall be defined.
---------------------------------------------------------------------------

    \91\ 42 U.S.C. 3027(a)(3)(B).
---------------------------------------------------------------------------

    Comment: A few commenters expressed support for Sec.  
1321.9(c)(2)(viii). Many commenters sought more clarity about the 
requirements in Sec.  1321.9(c)(viii). One commenter shared the concern 
that State agencies will lack the necessary information to project the 
cost of providing services to rural areas.
    Response: ACL appreciates the support of this provision. ACL 
appreciates these comments but declines to provide further direction in 
this final rule to State agencies as to how to comply with these 
requirements (which can be found in section 307(a)(3)(B) of the 
Act).\92\ State agencies are best positioned to make these 
determinations.
---------------------------------------------------------------------------

    \92\ Id.
---------------------------------------------------------------------------

    The term ``rural'' appears many times in the Act with respect to 
the delivery and prioritization of services. In addition, State 
agencies may use the IFF to direct Title III funding to rural areas. 
There is no one universally accepted or mandated definition of what 
constitutes a ``rural area.'' Over the years, State agencies have 
determined what areas in their States are rural, and the factors that 
State agencies have used to make this determination can vary. In 
recognition of this variation in how State agencies determine what 
areas in their State are rural, the Act does not

[[Page 11583]]

mandate a definition of rural areas, and ACL declines to limit the 
flexibility afforded to the State agencies by the Act.
    Likewise, State agencies are better positioned than ACL to project 
the cost of providing services and to develop a plan for meeting the 
needs for services in the rural areas of their respective States. We 
note that State agencies provide these projections in their current 
State plans on aging, as this is an existing requirement. For clarity, 
we have revised the final rule to specify that the minimum amount as 
set forth in the Act must be maintained. ACL will provide technical 
assistance with respect to this requirement, as needed.
    Comment: Two commenters raised questions about the relationship 
between the requirement in Sec.  1321.9(c)(2)(viii) that State agencies 
develop a process for determining how ``rural areas'' are defined and 
the Older Americans Act Performance System (OAAPS) definition of 
``rural'' for reporting purposes. Another commenter raised a concern 
that this requirement conflicts with the OAAPS definition of ``rural.''
    Response: ACL appreciates these questions and concerns and 
acknowledges the potential for confusion due to the requirement of 
Sec.  1321.9(c)(2)(viii) related to defining ``rural areas'' and the 
separate requirement to submit annual performance report data on 
``rural'' program participants. OAAPS is the reporting tool that State 
agencies and, in some cases area agencies, use to submit their annual 
performance report data on program participants, services, and 
expenditures related to the Act. OAAPS uses rural-urban commuting area 
(RUCA) codes defined at the ZIP code level to determine whether an 
individual program participant resides in a rural or non-rural 
area.\93\ With respect to those clients for whom demographic data must 
be reported into OAAPS, all State agencies must use this definition and 
tool to report on ``rural'' program participants. State agencies are 
not required to use this definition of ``rural'' for any other purpose.
---------------------------------------------------------------------------

    \93\ Specifically, OAAPS uses Categorization C of the Rural-
Urban Commuting Area (RUCA) codes to determine geographic 
distribution between rural and non-rural. See The Rural Health 
Research Ctr., https://depts.washington.edu/uwruca/ruca-uses.php 
(last visited Oct. 25, 2023). For additional information and 
background on the zip code-based RUCA, see also Rural-Urban 
Commuting Area, The U.S. Dep't. of Agric., Econ. Research Serv., 
https://www.ers.usda.gov/data-products/rural-urban-commuting-area-codes/documentation/ (last visited Oct. 25, 2023).
---------------------------------------------------------------------------

    Section 1321.9(c)(2)(viii) of the final rule, by contrast, relates 
to the State agency's projections, plans, and expenditures pertaining 
to its implementation and administration of programs and services under 
the Act. The definition of ``rural areas'' referred to in this section 
may be separate and distinct from the definition of ``rural areas'' 
that is required to be used for annual program reporting on individual 
program participants.
    Comment: A commenter expressed concern that the language of Sec.  
1321.9(c)(2)(viii)(B), which requires State agencies to expend annually 
on services for older individuals residing in rural areas no less than 
the amount expended for such services as set forth in the Act, may 
cause State agencies to believe they are not allowed to spend on such 
services more than the required minimum expenditure.
    Response: ACL appreciates this comment but disagrees with this 
interpretation of the section (the language of which is the same as 
that found in section 307(a)(3)(B) of the Act).\94\ The language 
provides the minimum amount that State agencies must spend; it does not 
impose a maximum amount that State agencies may spend on services for 
older adults residing in rural areas.
---------------------------------------------------------------------------

    \94\ 42 U.S.C. 3027(a)(3)(B).
---------------------------------------------------------------------------

    Comment: With respect to the requirement in Sec.  
1321.9(c)(2)(viii)(B) that State agencies expend annually on services 
for older individuals residing in rural areas no less than the amount 
expended for such services as set forth in the Act, a commenter 
proposed that State agencies be required to demonstrate how their IFFs 
meet the needs of older adults with greatest social need and with 
greatest economic need, in lieu of a policy of requiring minimum 
expenditure levels for one category of older adults (i.e., older adults 
residing in rural areas).
    Response: There is a requirement that State agencies expend 
annually on services for older individuals residing in rural areas no 
less than the amount as set forth in section 307(a)(3)(B) of the 
Act.\95\ This provision is included to further implementation of this 
statutory requirement. ACL requires State agencies to include in the 
IFF a descriptive statement and application of the State agency's 
definitions of greatest economic need and greatest social need (see 
Sec.  1321.49); we believe this requirement addresses the concern.
---------------------------------------------------------------------------

    \95\ Id.
---------------------------------------------------------------------------

    Comment: A few commenters expressed concern as to how State 
agencies will be able to comply with the rural minimum expenditure 
amount requirement set forth in Sec.  1321.9(c)(2)(viii)(B) when the 
rule allows for various definitions among the State agencies. Another 
commenter recommends that ACL add clarifying language requiring State 
agencies to address their application of the rural minimum expenditure 
requirement, including how this requirement relates to each State 
agency's IFF.
    Response: ACL appreciates the above comments related to rural 
minimum expenditure requirements set forth Sec.  1321.9(c)(2)(viii)(B) 
but maintains the regulatory language as proposed. Regarding potential 
varying definitions of what constitutes rural areas, each State agency 
only compares what it will spend for each fiscal year against what was 
spent in that State as set forth in the Act. The definitions applied in 
other States will be irrelevant to this calculation. In addition, Sec.  
1321.9 (c)(2)(viii)(A) requires the State agency to establish a process 
and control for determining the definition of rural areas within their 
State in part so that the State agency will be able to comply with the 
rural minimum expenditure requirement.
    Regarding the recommendation that State agencies be required to 
address their application of the rural minimum expenditure requirement, 
section 307(a)(3) of the Act requires State agencies to provide 
assurances in their State plans with respect to their compliance with 
the rural minimum expenditure.\96\ ACL declines to impose additional 
requirements.
---------------------------------------------------------------------------

    \96\ Id. section 3027(a)(3).
---------------------------------------------------------------------------

    Comment: Two commenters noted that without additional funding, the 
requirements of Sec.  1321.9(c)(2)(viii) may result in decreased 
services to metropolitan areas with a higher proportion of older 
adults.
    Response: The commenters' concerns relate to the distribution of 
Title III funds throughout the State, which is addressed elsewhere in 
the rule. Section 305(a)(2)(C) through (D) of the Act \97\ requires 
distribution of Title III funds to occur via an IFF (further defined in 
Sec.  1321.49) or funds distribution plan (further defined in Sec.  
1321.51). The IFF is required for States with multiple PSAs, and a 
funds distribution plan is required for single PSA States. Sections 
1321.49 and 1321.51 require State agencies to develop the IFF or funds 
distribution plan, through a process that allows for input from area 
agencies, interested parties, and the public; the concerns raised by 
the commenters can be addressed during this public input process.
---------------------------------------------------------------------------

    \97\ 42 U.S.C. 3025(a)(2)(C-D).

---------------------------------------------------------------------------

[[Page 11584]]

    Comment: A commenter expressed concern that the OAAPS definition of 
rural is an inaccurate reflection of rural areas and could negatively 
impact area agencies. Another commenter expressed concerns as to U.S. 
Census data used in the OAAPS definition of rural.\98\
---------------------------------------------------------------------------

    \98\ Supra note 93.
---------------------------------------------------------------------------

    Response: States are not required to use the OAAPS definition of 
rural in their IFFs; accordingly, the commenter's concern that the 
OAAPS definition could negatively impact area agencies is misplaced. 
The comments regarding the inaccuracy of, and the data used in, the 
OAAPS definition of rural are outside of the scope of the rule, which 
does not address the OAAPS reporting system. ACL is available to 
provide technical assistance regarding defining and serving rural 
areas.
Sec.  1321.9(c)(2)(ix) Reallotment
    Our final rule requires State agencies to develop fiscal policies 
and procedures related to a State agency's voluntary release of funds 
(reallotment), corresponding with sections 304(b) \99\ and 703(b) \100\ 
of the Act. These policies and procedures include that the State agency 
must communicate annually to ACL if the State agency has funding that 
will not be expended in the grant period to be voluntarily 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 communicate 
annually to ACL 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 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.  1321.49 
or Sec.  1321.51.
---------------------------------------------------------------------------

    \99\ 42 U.S.C. 3024(b).
    \100\ 42 U.S.C. 3058b(b).
---------------------------------------------------------------------------

Sec.  1321.9(c)(2)(x) Voluntary Contributions; Sec.  1321.9(c)(2)(xi) 
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 add Sec.  
1321.9(c)(2)(xi) (Cost sharing) to delineate between the two types of 
consumer contributions. Section 315 of the Act allows for consumer 
contributions which may take the form of (1) an individual voluntarily 
contributing toward the cost of a service (a voluntary contribution) 
\101\ and (2) the State agency establishing a cost sharing policy, 
creating a structured system for collecting sliding scale payments from 
some service participants for some services (cost sharing).\102\ 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, a significant amount we estimate was in the 
form of voluntary contributions.
---------------------------------------------------------------------------

    \101\ 42 U.S.C. 3030c-2(b).
    \102\ Id. section 3030c-2(a).
---------------------------------------------------------------------------

    Cost sharing provisions were added in the 2000 amendments to the 
OAA (Pub. L. 106-501). 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 agency 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 State 
agencies 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, State agencies have a long history of requesting voluntary 
contributions and are less likely to pursue cost sharing arrangements.
    We 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.\103\ 
In contrast, we also 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.\104\
---------------------------------------------------------------------------

    \103\ 42 U.S.C. 3030c-2.
    \104\ Id. section 3030c-2(a)(2).
---------------------------------------------------------------------------

    In Sec.  1321.9(c)(2)(xi) we 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 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 agency 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 agency cost sharing and consumer contribution policies must 
not be required for OAA program participants, and State agencies must 
ensure that program participants are aware that they are not required 
to contribute, and services will not be impacted if they choose not to 
contribute. We also 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) \105\ and (b)(3),\106\ 
and we confirm that both voluntary contribution and cost sharing 
solicitation amounts are to be based on the actual cost of services.
---------------------------------------------------------------------------

    \105\ Id. section 3030c-2(a)(5)(E).
    \106\ Id. section 3030c-2(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 FPL, 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 
FPL 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

[[Page 11585]]

upon the AAA, as set forth in section 315(a)(6).\107\
---------------------------------------------------------------------------

    \107\ Id. section 3030c-2(a)(6).
---------------------------------------------------------------------------

Sec.  1321.9(c)(2)(x) Voluntary Contributions
    Comment: A few commenters expressed support for Sec.  
1321.9(c)(2)(x) and Sec.  1321.9(c)(2)(xi), which detail requirements 
related to voluntary contributions and cost sharing, respectively, and 
expressed appreciation for the distinctions made between the two 
concepts.
    Response: ACL appreciates the support for these provisions.
    Comment: A few commenters recommended removal of the requirement in 
Sec.  1329.9(c)(2)(x)(B) that voluntary contributions be encouraged for 
individuals whose self-declared income is at or above 185 percent of 
the FPL. One commenter requested clarity as to whether this requirement 
applies to both registered and non-registered services, as defined in 
OAAPS.\108\ The commenter also suggested that an exception be added to 
this provision for non-registered services under OAAPS where self-
reported income is not collected as part of service delivery. Another 
commenter recommended that the voluntary donation policy be eliminated 
for Title III, part C meal programs and replaced with an income-based 
charge for meals.
---------------------------------------------------------------------------

    \108\ Registered services are certain services for which 
demographic and other information are collected from each client and 
reported into OAAPS (such as home-delivered meals), while non-
registered services are those for which no client demographic 
information is required to be reported in OAAPS (such as public 
information sessions).
---------------------------------------------------------------------------

    Response: ACL appreciates these comments but does not have the 
authority to modify this requirement because it is mandated by section 
315 of the Older Americans Act.\109\ However, Sec.  1329.9(c)(2)(x)(B) 
does not require an agency to obtain the income levels of all clients 
to determine whether the clients should be encouraged to voluntarily 
donate; rather, the provision merely requires that voluntary 
contributions be encouraged for individuals whose self-declared income 
is at or above 185 percent of the FPL.
---------------------------------------------------------------------------

    \109\ 42 U.S.C. 3030c-2.
---------------------------------------------------------------------------

    Comment: ACL received a few comments objecting to allowing 
Ombudsman programs to seek voluntary contributions, noting a concern 
that it could be a barrier to residents accessing ombudsman services.
    Response: The language of the rule is permissive, and we defer to 
Ombudsman programs to make determinations about voluntary 
contributions. We decline to make further revisions to this provision.
Sec.  1321.9(c)(2)(xi) Cost Sharing
    Comment: ACL received many comments regarding this section. There 
was disagreement among the commenters about this section. Some 
commenters expressed that the section helped to clarify the 
requirements of the Act. Most commenters, however, had issues with the 
concept of cost sharing as set forth in the provision (some felt the 
concept should be eliminated) or had issues with the process as set 
forth in the provision (many felt decisions as to cost sharing should 
be made at the area agency level).
    Response: ACL appreciates these comments but declines to make the 
commenters' requested changes to this section. The requirements in 
Sec.  1329.9(c)(2)(xi) is mandated by section 315 of the Act.\110\
---------------------------------------------------------------------------

    \110\ Id. section 3030c-2.
---------------------------------------------------------------------------

    Comment: Some commenters expressed confusion regarding the 
distinctions between voluntary contributions and cost sharing, and one 
commenter's understanding was that cost sharing is not voluntary.
    Response: For many decades, State and area agencies and service 
providers have collected voluntary contributions from participants 
receiving services under the Act. Cost-sharing provisions were added in 
the 2000 amendments to the Act (Pub. L. 106-501). Because the Act 
includes many restrictions and requirements regarding cost sharing, in 
practice ACL has only seen cost sharing implemented for a few limited 
services, such as transportation and respite. Many State agencies 
choose not to pursue cost sharing as they find limited or no benefit in 
comparison to the traditional model of collecting voluntary 
contributions. We clarify in Sec.  1321.9(c)(2)(x) that voluntary 
contributions are allowed and may be solicited for all services, as 
long as the method of solicitation is noncoercive. In contrast, we also 
list the services for which the Act prohibits cost sharing.
    In Sec.  1321.9(c)(2)(xi) we 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 Sec.  1321.9(c)(2)(x) and (xi) are 
intended to clarify that services may not be denied, even when a State 
agency has a cost-sharing policy and a voluntary contribution policy, 
if someone cannot or chooses not to contribute or to pay a suggested 
cost-sharing amount. In other words, all State agency cost sharing and 
consumer contribution policies must be voluntary for OAA program 
participants, and State agencies must ensure that program participants 
are aware that they are not required to contribute.
    ACL will offer technical assistance to any State agencies that 
request assistance in implementing voluntary contributions and cost 
sharing.
    Comment: One commenter expressed concern regarding the 
applicability of cost sharing to Tribal organizations and requested 
that Tribal organizations be allowed to request a waiver from such 
requirements.
    Response: ACL appreciates the comment but believes the commenter's 
concerns are adequately addressed in the rule. Section 315(a) of the 
Act \111\ and Sec.  1321.9(c)(2)(xi)(D)(3)(iv) expressly prohibit cost 
sharing for any services delivered through Tribal organizations.
---------------------------------------------------------------------------

    \111\ Id. section 3030c-2(a).
---------------------------------------------------------------------------

    Comment: One commenter requested that AAAs be allowed to implement 
cost sharing for Title III, part C nutrition programs (congregate and 
home-delivered meals). The commenter also expressed concern that some 
clients with the financial means to voluntarily contribute to the cost 
of the meals do not do so, which can impact a AAA's ability to provide 
services to those at greatest social need and greatest economic need.
    Response: Section 315(a) of the Act \112\ expressly prohibits cost 
sharing for congregate and home-delivered meals. Even if cost sharing 
were permitted for these services, an area agency would not be 
permitted to deny the service to any client who is unwilling to 
contribute, as discussed above. Section 1321.9(c)(2)(x) requires that 
voluntary contributions be encouraged for clients whose self-reported 
income is at or above 185 percent of the FPL. In addition, serving 
clients with the ``greatest social need'' could include clients of 
considerable financial means.
---------------------------------------------------------------------------

    \112\ Id.
---------------------------------------------------------------------------

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)(xii) and revised. We clarify the fiscal requirements that 
apply to program income, which include voluntary contributions and 
cost-sharing

[[Page 11586]]

payments. For example, we clarify that State agencies are required to 
report contributions as program income and set forth restrictions on 
the use of program income.
    Comment: ACL received comments requesting clarification of the 
requirement in Sec.  1321.9(c)(2)(xii)(B) that ``[p]rogram income 
collected must be used to expand the service category by part of Title 
III of the Act, as defined in Sec.  1321.71, for which the income was 
originally collected;'' as well as requesting that Sec.  
1321.9(c)(2)(xii) be modified to permit area agencies the flexibility 
to allow program income to be used to expand any Title III service.
    Response: Section 315 of the Act \113\ does not authorize ACL to 
permit area agencies to use program income collected under one part of 
Title III to expand a service provided under another part of Title III.
---------------------------------------------------------------------------

    \113\ Id. section 3030c-2.
---------------------------------------------------------------------------

    In addition, in the course of reviewing these comments, ACL has 
determined that contributions must be used to expand a service funded 
under the Title III grant award pursuant to which the income originally 
was collected, and that the language of this section was in need of 
revision. Accordingly, Sec.  1321.9(c)(2)(xii)(B) has been revised to 
state that program income collected must be used to expand a service 
funded under the Title III grant award pursuant to which the income was 
originally collected.
    Thus, a contribution for transportation (a supportive service under 
Title III, part B) can only be reported as income and used to expand 
Title III, part B supportive services such as transportation or 
multipurpose senior centers. Similarly, if someone pays a portion of 
the cost of a Title III, part B transportation service under a cost-
sharing arrangement, that portion must be reported as income to the 
Title III, part B supportive services program. In addition, because 
Title III, part C-1 funding for congregate meals and Title III, part C-
2 funding for home-delivered meals are issued under separate grant 
awards, contributions for services under these two awards cannot be 
commingled. A contribution for the nutrition service of home-delivered 
meals must be reported as income to the home-delivered nutrition 
program and used to expand home-delivered nutrition services, such as 
home-delivered meals, or nutrition education for home-delivered meals 
clients; it cannot be used to expand congregate meals services.
Sec.  1321.9(c)(2)(xiii) Private Pay Programs
    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. We add paragraph (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 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 and waitlist opportunities for those services.
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 contracts and commercial 
relationships with various entities to accomplish the delivery of 
comprehensive services, as authorized in sections 212 \114\ and 
306(a)(13) and (14) of the Act.\115\
---------------------------------------------------------------------------

    \114\ 42 U.S.C. 3020c.
    \115\ 42 U.S.C. 3026(a)(13)-(14).
---------------------------------------------------------------------------

    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 with 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 2020 
reauthorization of the OAA.\116\
---------------------------------------------------------------------------

    \116\ 42 U.S.C. 3027(a)(26) (2018) as amended by Public Law 116-
131 (2020).
---------------------------------------------------------------------------

    In response to numerous questions about the appropriate roles, 
responsibilities, and oversight of such activities, feedback received 
in response to the RFI and the NPRM, and based on our observations of 
program activities, this final rule clarifies the policies and 
procedures that State agencies must establish related to all contracts 
and commercial relationships in subsection Sec.  1321.9(c)(2)(xiv). We 
intend this rule to respond to numerous concerns from AAAs regarding 
inconsistent State agency approaches to contracts and commercial 
relationships, as well as concerns from State agencies about the level 
of risk and associated oversight required. We encourage a review and 
approval process that complies with the statutory requirements found in 
section 212 \117\ and throughout Title III but is not onerous, can be 
implemented easily, and does not cause undue delay. We anticipate 
providing technical assistance in this area to State agencies and AAAs.
---------------------------------------------------------------------------

    \117\ 42 U.S.C. 3020c.
---------------------------------------------------------------------------

    As a component of these policies and procedures, and consistent 
with their authority under sections 305(a)(1)(C),\118\ 306(a),\119\ 
306(b),\120\ and 212(b)(1),\121\ State agencies must establish 
processes for AAAs to receive prior approval for contracts and 
commercial relationships permitted under section 212 of the Act.\122\ 
We expect such processes to be flexible and streamlined. This provision 
will help ensure that the activities of recipients and subrecipients of 
funding further the intended benefits of the Act and do not compromise 
core responsibilities or the statutory mission of State agencies, AAAs, 
and service providers. Through these requirements, we intend to promote 
and expand the ability of the aging network to engage in business 
activities.
---------------------------------------------------------------------------

    \118\ 42 U.S.C. 3025(a)(1)(C).
    \119\ 42 U.S.C. 3026(a).
    \120\ Id. section 3026(b).
    \121\ 42 U.S.C. 3020c(b)(1).
    \122\ Id. section 3020c.
---------------------------------------------------------------------------

    Comment: Several commenters recommended that we define ``commercial 
relationships.'' Commenters also sought clarity as to whether this 
provision applies to contracts or commercial relationships to provide 
services to non-profit entities in addition to ``profitmaking'' 
entities (under section 212 of the Act).\123\ We have received several 
questions through public comments and requests for technical assistance 
seeking to understand when a business arrangement is or is not a 
``commercial relationship.''
---------------------------------------------------------------------------

    \123\ Id.
---------------------------------------------------------------------------

    Response: Typically, an organization seeking clarity on this issue 
either wants to or is already engaged in a business arrangement and is 
trying to understand whether certain OAA requirements apply to that 
arrangement. Our intent is to broadly define ``commercial 
relationships.'' Whether they are contracts, ``business arrangements,'' 
``agreements,'' ``business transactions,''

[[Page 11587]]

or any other term that an organization might use to describe the 
activity, it is broadly encompassed within the statutory term 
``contracts or commercial relationships.''
    The Act only uses the phrase ``commercial relationship'' in tandem 
with ``contracts'' or ``contractual.'' \124\ We have sought to 
consistently adopt the phrase ``contracts and commercial 
relationships'' throughout the NPRM and in this final rule. When we are 
not referring to all ``contracts and commercial relationships,'' we 
explain which subset is relevant. For example, the phrase ``contracts 
and commercial relationships that fall under section 212 of the Act'' 
would refer to the agreements described in section 212 of the Act.\125\ 
It is not relevant to distinguish between a ``contract'' and a 
``commercial relationship'' under section 212; the same requirements 
apply, regardless of how an organization defines the agreement.
---------------------------------------------------------------------------

    \124\ 42 U.S.C. 3026; 42 U.S.C. 3027; 42 U.S.C. 3012.
    \125\ 42 U.S.C. 3020c.
---------------------------------------------------------------------------

    We appreciate comments seeking a clearer definition of ``private 
pay'' in the final rule. We have revised the definitions of ``area plan 
administration,'' ``private pay programs'' and ``program development 
and coordination activities'' to use ``contracts and commercial 
relationships,'' consistent with our use throughout the rest of the 
rule.
    We also decline to provide a regulatory definition of 
``profitmaking'' as used in section 212 of the Act, which lays out the 
circumstances under which a recipient may enter ``[. . .] an agreement 
with a profitmaking organization for the recipient to provide services 
to individuals or entities not otherwise receiving services under this 
Act[.]'' \126\ We interpret ``profitmaking'' as referring to entities 
that are not non-profits. However, because section 212 establishes a 
framework for understanding how and when these arrangements are 
consistent with the intent of the Act, we think it is reasonable for a 
State agency to apply the same opportunities and obligations in the 
context of agreements with non-profit entities. In other words, if an 
agreement would be permitted under section 212 with a for-profit 
entity, a State agency could determine that a similar agreement with a 
non-profit entity is permissible so long as the other requirements of 
section 212 are met. We encourage State agencies to take this approach 
or otherwise explain why they decline to do so in their policies and 
procedures.
---------------------------------------------------------------------------

    \126\ 42 U.S.C. 3020c(a).
---------------------------------------------------------------------------

    Comment: We received a significant number of comments related to 
contracts and commercial relationships, generally focusing on approval 
requirements for agreements that fall under section 212 of the 
Act.\127\ Many commenters raised concerns about the appropriate degree 
of State oversight and the role of the State agency. Commenters had 
concerns about how time-consuming State agency approval processes can 
be, both out of concern for the burden and potential cost to State 
agencies and because of the potential delay in executing contracts and 
commercial relationships and subsequent impact on potential 
partnerships. Several commenters were concerned that this provision 
could deter OAA grantees from innovating and forming relationships with 
health and social sector commercial entities.
---------------------------------------------------------------------------

    \127\ Id. section 3020c.
---------------------------------------------------------------------------

    All commenters that raised this issue agreed that oversight of 
contracts and commercial relationships should be streamlined and not 
overly burdensome. Several commenters described the proposed policies 
and procedures as an expansion of State agency control and were 
concerned that ``excessive approval requirements'' would usurp local 
decision-making. Other commenters suggested that ACL limit the State 
agency approval process to a generic review of AAA activity, and that 
State agencies should not be authorized to review and approve of 
specific contracts or contract details. Commenters recommended relying 
solely on assurances in AAA contracts that reflect adherence to all key 
principles within the OAA as a maximum degree of State oversight. One 
commenter suggested that State agency approval should be limited to 
approval of standard language for AAAs to incorporate into agreements 
with third-party entities, as appropriate.
    Many comments related to the State approval process under section 
212 of the Act,\128\ including requests for more clarity about how 
comprehensive the process should be. One commenter recommended 
incorporating more specific information about the nature of State 
agency ``approval'' into the regulation and establishing a right of 
appeal if a State agency opts not to approve of a contract or 
commercial relationship. Several commenters noted that State agencies 
are not a party to the contract they are responsible for approving, and 
thus should not have approval authority; other commenters asked whether 
the State agency became a party to the contract by virtue of its review 
and approval role.
---------------------------------------------------------------------------

    \128\ 42 U.S.C. 3020c.
---------------------------------------------------------------------------

    Several comments included requests for information that we believe 
would be better incorporated into sub-regulatory guidance to assist in 
implementing this provision. For example, how should State agencies 
deal with contract amendments; can ACL provide examples of streamlined 
State agency review processes; what degree of oversight does a State 
agency have over a separate non-profit entity established by a AAA; 
what is the scope of State liability in the event of an issue that 
arises due to a contract or commercial relationship approved by the 
State agency; and what the remedy is if the State agency identifies an 
issue related to the proposed contract or commercial relationship.
    Response: We appreciate these comments. We agree that State agency 
oversight policies and procedures should be streamlined, transparent, 
not overly burdensome to either the State or the subrecipients of 
Federal funds, and commensurate to the degree of risk associated with a 
specific contract or commercial relationship. Like most commenters who 
raised this issue, we do not believe it should usually be necessary for 
State agencies to review contract documents in order to approve the 
establishment of a contract or commercial relationship. As we stated in 
the proposed rule, we expect State agency approval processes to be 
flexible, reflecting the needs of the older individuals served and the 
abilities of AAAs and service providers to engage in contracts and 
commercial relationships.\129\ We believe that requiring State agencies 
to establish clear policies and procedures for approval processes, 
developed in consultation with AAAs, will expedite the establishment of 
important partnerships.
---------------------------------------------------------------------------

    \129\ 88 FR 39578 (June 16, 2023).
---------------------------------------------------------------------------

    States agencies could use a number of different approaches to 
streamline the approval processes. For example, a State agency could 
adopt standard assurances related to COI (and other concerns) to be 
adopted into all AAA agreements to provide services and decide not to 
review case-by-case information related to COI. A State agency could 
pre-approve a AAA to engage in a general category of contracts and 
commercial relationships with a certain type of organization, subject 
to certain conditions and a commitment to provide information about the 
agreement annually, as required under

[[Page 11588]]

section 306(a).\130\ The State agency could decide as a matter of 
policy that all contracts and commercial relationships to expand the 
reach of services will be approved unless certain concerning conditions 
exist (for example, if a AAA is under a corrective action plan). Under 
such a policy, AAAs would provide assurances that proposed agreements 
do not meet any exclusionary criteria. State agencies might decide that 
certain kinds of arrangements pose more risk than others. For example, 
contracts that involve a AAA on a corrective action plan or contracts 
that are disproportionately large compared to a AAA's overall budget 
may be considered to pose more risk. As we discussed in the proposed 
rule, State agencies could consider the potential risks of different 
kinds of contracts and commercial relationships as they develop and 
implement the most efficient and least burdensome approval processes 
possible.\131\ State agencies have the discretion to decide whether it 
is appropriate to incorporate template language into agreements, 
standard assurances, or to use other methods of standardization.
---------------------------------------------------------------------------

    \130\ 42 U.S.C. 3026(a)(13).
    \131\ 88 FR 39578 (June 16, 2023).
---------------------------------------------------------------------------

    We hope that having clear statewide policies and procedures will 
help to establish best practices nationwide. We strongly encourage 
State agencies to seek input on proposed approval processes from AAAs 
to help achieve a balanced and feasible approach that will achieve the 
goal of minimizing risks while enabling the expansion of services to 
reach older adults with unmet needs.
    Commenters raised questions related to compliance and State agency 
liability for unsuccessful contracts or commercial relationships 
approved under State agency policy. We appreciate these concerns and 
reiterate here that the activities described in section 212 (both 
successful and unsuccessful) are allowable costs under the grant.\132\ 
The State agency must establish and follow policies and procedures that 
are compliant with this final rule and comply with any other applicable 
requirements for recipients of Federal grants.
---------------------------------------------------------------------------

    \132\ 42 U.S.C. 3020c.
---------------------------------------------------------------------------

    The structure of the Act is such that State agencies (as Federal 
grantees) are ultimately responsible for ensuring the appropriate use 
of funds, while AAA subrecipients are predominantly responsible for 
using those funds to develop the aging services network. This framework 
may lead State agencies to err on the side of caution (which is 
appropriate in overseeing the use of Federal funds) so as not to be 
held responsible for risky subrecipient activities. However, too much 
caution in this area may inhibit the provision of vital services and 
the sustainable growth of the network at a time when there is a growing 
population of older adults and greater demand for services. Section 212 
\133\ and section 306(g) \134\ highlight the importance of leveraging 
existing knowledge, expertise, and relationships to expand the reach of 
the aging services network.\135\ All new business endeavors represent 
some degree of risk; we intend the policies and procedures under this 
provision to help mitigate, not eliminate, that risk. The intent of 
sections 212 and 306(g) can only be realized if the full weight of the 
potential failure of new contracts and commercial relationships does 
not fall on State agencies. We can alleviate that concern by clarifying 
that activities under section 212 are allowable costs so long as they 
comply with State agency policies and procedures.
---------------------------------------------------------------------------

    \133\ Id. section 3020c.
    \134\ 42 U.S.C. 3026(g).
    \135\ 42 U.S.C. 3020c; 42 U.S.C. 3026(g).
---------------------------------------------------------------------------

    We agree with commenters who noted that State agencies are not 
parties to these contracts and commercial relationships; however, that 
has no bearing on their authority to review and approve them. State 
agencies are responsible for reviewing and approving certain contracts 
and commercial relationships, consistent with sections 
305(a)(1)(C),\136\ 306(a),\137\ 306(b),\138\ and 212(b)(1) of the 
Act.\139\ Engaging in these responsibilities does not make the State 
agency a party to the contract or commercial relationship under review.
---------------------------------------------------------------------------

    \136\ 42 U.S.C. 3025(a)(1)(C).
    \137\ 42 U.S.C. 3026(a).
    \138\ Id. section 3026(b).
    \139\ 42 U.S.C. 3020c(b)(1).
---------------------------------------------------------------------------

    Commenters encouraged ACL to develop regulatory text that sets an 
appropriate Federal regulatory floor for State agencies to meet but 
that remains flexible enough for State agencies with capacity or need 
to establish processes or standards that meet their State-specific 
priorities. We intend the regulatory text that we have set forward to 
be just that: a standard regulatory floor that defers to State agency 
discretion to develop policies and procedures to appropriately review 
contracts and commercial relationships that require State agency 
approval.
    We prefer to leave State agencies the discretion to decide the 
details of their policies and procedures related to review and approval 
of contracts and commercial relationships (including pre-approval of 
agreements described in section 212 of the Act) \140\ because 
circumstances vary across States and the State agency is ultimately 
responsible for ensuring the appropriate use of Federal funds granted 
to the State. However, in developing their policies and procedures, 
State agencies should consider the government interests in reviewing 
the potential contract or commercial relationship (including, among 
other concerns, any potential COI and whether appropriate firewalls 
exist to mitigate them; whether the AAA is meeting existing obligations 
under the Act; and potential risks to the AAA, the aging services 
network, or to the individuals served by the AAA associated with the 
proposed contract or commercial relationship). Section 306(a) of the 
Act sets forth many of these interests in the form of assurances that 
AAAs must offer for area plan approval.\141\ State agencies have the 
discretion to request to review contract documents if they deem it 
necessary to determine whether the contract or commercial relationship 
may be approved, consistent with their policies and procedures. 
However, subrecipients should generally be able to provide sufficient 
information to address these concerns without having to share contract 
documents for review. This should include, at a minimum, information 
related to the proposed partnering entity,\142\ the proposed services 
to be provided, and specific assurances related to other requirements 
under section 212(b).\143\ We intend to provide tools and examples that 
State agencies may, at their discretion, adapt and use. We intend the 
delayed compliance date for this provision to provide adequate time for 
State agencies and subrecipients to adopt compliant policies and to 
engage in technical assistance as needed.
---------------------------------------------------------------------------

    \140\ 42 U.S.C. 3020c(b)(1).
    \141\ 42 U.S.C. 3026(a)(13).
    \142\ In deference to non-disclosure agreements, this may 
include the type of organization and not the identity of the 
specific entity. However, the State agency may require the AAA to 
attest that the proposed agreement is not with a specific entity.
    \143\ 42 U.S.C. 3020c(b).
---------------------------------------------------------------------------

    Comment: We received several comments recommending against 
incorporating any prior approval process for contracts and commercial 
relationships into the area plan approval process. Commenters also 
recommended that State agencies be required to provide timely approval.
    Response: We agree that State agencies should establish a prior 
approval process that is distinct from the area plan approval process, 
as opportunities may arise outside of

[[Page 11589]]

standard area plan timeframes and requests for prior approval may not 
need to meet the same expectations for public input, advisory council 
review, and other requirements. Subrecipients can only successfully 
establish contracts and commercial relationships that require prior 
approval if approval can be granted in a timely fashion. However, we 
encourage State agencies to use the area plan approval process as an 
additional opportunity to discuss any new business under development.
    Comment: A number of commenters were particularly interested in 
minimizing the State's oversight role with respect to contracts and 
commercial relationships described in section 212 of the Act \144\ that 
are executed by AAAs without expending OAA funding. Several commenters 
argued that the Act does not apply to such agreements, and thus 
oversight is not appropriate. Some commenters raised concerns that the 
State pre-approval required under section 212 of the Act conflicts with 
section 306(g) of the Act, which states that, ``Nothing in this Act 
shall restrict an area agency on aging from providing services not 
provided or authorized by this Act[.]'' \145\ On the other hand, one 
AAA commenter strongly supported the approval role of the State agency 
and suggested that statewide standardization of the process to engage 
in contracts and commercial relationships under section 212 of the Act 
would help improve the AAA network's ability to equitably engage in 
such business.
---------------------------------------------------------------------------

    \144\ 42 U.S.C. 3020c.
    \145\ 42 U.S.C. 3026(g).
---------------------------------------------------------------------------

    Response: We disagree with commenters who described State oversight 
in this area as an overreach. Our interpretation of the statute is that 
the Act applies to agreements ``[. . .] to provide services to 
individuals or entities not otherwise receiving services under this Act 
[. . .]'' \146\ regardless of whether OAA funds are directly expended 
as part of the agreement. We seek to clarify here our interpretation of 
the statutory language and the Federal interests (as articulated in the 
Act) in responsible oversight of any contract or commercial 
relationship that falls within the category of ``agreements'' described 
in section 212.
---------------------------------------------------------------------------

    \146\ 42 U.S.C. 3020c(a).
---------------------------------------------------------------------------

    Section 212(a) of the Act states that, subject to the conditions 
set forth in 212(b), ``[. . .] this Act shall not be construed to 
prevent a recipient of a grant or a contract under this Act (other than 
title V) from entering into an agreement with a profitmaking 
organization for the recipient to provide services to individuals or 
entities not otherwise receiving services under this Act[.]'' \147\ We 
interpret this paragraph as defining ``an agreement'' for the purposes 
of section 212 as any arrangement with a profitmaking organization to 
provide services to individuals or entities not otherwise receiving 
services under this Act. Consistent with section 306(g),\148\ such 
agreements must be permitted, provided they meet the conditions laid 
out in section 212, and that a subrecipient seeking pre-approval has 
followed the State agency policy and procedures established under this 
provision. A State agency should not arbitrarily deny approval of an 
agreement that satisfies the requirements of section 212 and of the 
State's own policies and procedures.
---------------------------------------------------------------------------

    \147\ Id. section 3020c(a).
    \148\ 42 U.S.C. 3026(g) Nothing in this Act shall restrict an 
area agency on aging from providing services not provided or 
authorized by this Act, including through--(1) contracts with health 
care payers; (2) consumer private pay programs; or (3) other 
arrangements with entities or individuals that increase the 
availability of home- and community-based services and supports.
---------------------------------------------------------------------------

    Subsection (a) continues in paragraphs (a)(1) through (3) by 
providing three limiting conditions that are only relevant to certain 
agreements:
     Paragraph (a)(1) states that if funds provided under this 
Act to such recipient are initially used by the recipient to pay part 
or all of a cost incurred by the recipient in developing and carrying 
out such agreement, such agreement guarantees that the cost is 
reimbursed to the recipient.\149\ We interpret this paragraph to mean 
that if agreements are developed and carried out using OAA funds, those 
funds must be reimbursed. Importantly, agreements may also be entered 
into without using OAA funds, in which case this condition does not 
apply, and reimbursement of OAA funds is not relevant.
---------------------------------------------------------------------------

    \149\ 42 U.S.C. 3020c(a)(1).
---------------------------------------------------------------------------

     Paragraph (a)(2) states that if such agreement provides 
for the provision of one or more services, of the type provided under 
this Act by or on behalf of such recipient, to an individual or entity 
seeking to receive such services \150\ certain additional conditions 
apply. Individuals and entities may only purchase services at a fair 
market rate; all costs incurred (and not otherwise reimbursed under 
(a)(1)) must be reimbursed; and recipients must report rates and rates 
must be consistent with the prevailing market rate in the relevant 
geographic area. We interpret this paragraph to mean that if the 
agreement is for the recipient to provide one or more OAA-authorized 
services to OAA service participants or clients, these additional 
conditions apply. As in (a)(1), we also interpret this paragraph to 
mean that an agreement might be entered into under section 212 that 
does not provide for the provision of one or more OAA services.
---------------------------------------------------------------------------

    \150\ Id. section 3020c(a)(2).
---------------------------------------------------------------------------

     Paragraph (a)(3) describes any amount of payment to the 
recipient under the agreement that exceeds reimbursement under this 
subsection of the recipient's costs is used to provide, or support the 
provision of, services under this Act.\151\ We interpret this paragraph 
to mean that if an agreement is profitable beyond the required 
reimbursement of any OAA funds if used (under (a)(1)) and the 
reimbursement of any other costs incurred by the recipient (under 
(a)(2)(B)), any profits must be used to support the provision of OAA 
services to OAA clients.
---------------------------------------------------------------------------

    \151\ 42 U.S.C. 3020c(a)(3).
---------------------------------------------------------------------------

    Section 212(b) lists the limitations that apply to all agreements 
under section 212. An agreement described in paragraph (a) may not:
     be made without the prior approval of the State agency 
(or, in the case of a grantee under title VI, without the prior 
recommendation of the Director of the Office for American Indian, 
Alaska Native, and Native Hawaiian Aging and the prior approval of the 
Assistant Secretary), after timely submission of all relevant documents 
related to the agreement including information on all costs 
incurred.\152\ We interpret this paragraph to require State agency pre-
approval for all agreements under section 212. We have discussed at 
length the requirement in this final rule for State agencies to develop 
policies and procedures to implement this provision;
---------------------------------------------------------------------------

    \152\ Id. section 3020c(b)(1).
---------------------------------------------------------------------------

     have the effect of ``[. . .] paying, reimbursing, 
subsidizing, or otherwise compensating an individual or entity in an 
amount that exceeds the fair market value of the services subject to 
such an agreement[.]'' \153\ This paragraph applies the limitation in 
section 212(a)(2)(A) to all agreements under section 212;
---------------------------------------------------------------------------

    \153\ Id. section 3020c(b)(2).
---------------------------------------------------------------------------

     result in the displacement of services otherwise available 
to an older individual with greatest social need, an older individual 
with greatest economic need, or an older individual who is at risk of 
institutional placement; or
     in any other way compromise, undermine, or be inconsistent 
with the objective of serving the needs of older individuals, as 
determined by the

[[Page 11590]]

Assistant Secretary.\154\ Agreements under section 212 may not 
compromise OAA services to OAA program participants or clients and may 
not be inconsistent with the objective of serving older individuals. 
The Assistant Secretary for Aging has the discretion to determine 
whether an agreement violates this provision.
---------------------------------------------------------------------------

    \154\ Id. section 3020c(b)(3),(4).
---------------------------------------------------------------------------

    Section 212(c), (d), and (e) relate to monitoring and reporting 
requirements, timely reimbursement, and defining ``cost'' in this 
section, respectively.\155\ We did not receive significant comments 
related to interpreting these provisions.
---------------------------------------------------------------------------

    \155\ Id. section 3020c(c),(d),(e).
---------------------------------------------------------------------------

    Section 212 \156\ cannot be read without the context provided by 
section 306(a),\157\ which sets forth the requirements for the 
development of area plans, which lay out in detail the work that a AAA 
must do to fulfill their obligations under the Act, inclusive of 
compliance with section 212. Both sections 306(a) and 212 require 
subrecipients to provide information for State agency review and 
approval about the contracts and commercial relationships in which they 
are engaged, or in which they intend to engage. Section 306(a) 
incorporates the requirements of section 212 and enumerates the 
assurances the AAAs must offer as part of developing an area plan. 
Among other attestations, AAAs are required to provide assurances that 
they will:
---------------------------------------------------------------------------

    \156\ 42 U.S.C. 3020c.
    \157\ 42. U.S.C. 3026(a).
---------------------------------------------------------------------------

     maintain the integrity and public purpose of services 
provided, and service providers, under this title in all contractual 
and commercial relationships;
     disclose the identity of each nongovernmental entity with 
which they have a contract or commercial relationship relating to 
providing any service to older individuals and the nature of such 
contract or such relationship;
     demonstrate that a loss or diminution in the quantity or 
quality of the services provided, or to be provided, under this title 
by such agency has not resulted and will not result from such contract 
or such relationship;
     demonstrate that the quantity or quality of the services 
to be provided under this title by such agency will be enhanced as a 
result of such contract or such relationship;
     if requested, disclose all sources and expenditures of 
funds such agency receives or expends to provide services to older 
individuals;
     avoid giving preference in receiving services under this 
title to particular older individuals as a result of a contract or 
commercial relationship that is not carried out to implement this 
title; and use funds provided under this title to provide benefits and 
services to older individuals, giving priority to older individuals 
identified in section 306(a)(4)(A)(i),\158\ and in compliance with 
these assurances and the limitations specified in section 212.\159\ 
[.]''
---------------------------------------------------------------------------

    \158\ 42 U.S.C. 3026(a)(4)(A)(i).
    \159\ 42 U.S.C. 3020c.
---------------------------------------------------------------------------

    The OAA established the AAA designation, and AAAs have since grown 
into a nationally recognized network of entities working on behalf of 
older adults. The assurances laid out in section 306(a) \160\ are a 
clear statement of the Federal interests in ensuring that the integrity 
of the network is not compromised by any contracts and commercial 
relationships in which recipients and subrecipients engage; and that 
services to OAA clients will be enhanced (and not diminished) as the 
result of such agreements.
---------------------------------------------------------------------------

    \160\ 42 U.S.C. 3026(a).
---------------------------------------------------------------------------

    Even commenters who felt that certain activities described in 
section 212 of the Act \161\ were ``not related to the OAA'' shared 
comments that nevertheless indicated an understanding that these 
interests apply to those activities. For example, a commenter noted 
that AAAs should be able to demonstrate that the work aligns with their 
mission and should keep their State agency informed about their work, 
albeit without ``seeking permission.'' One commenter who wrote in favor 
of relying solely on assurances for pre-approval noted that AAAs could 
be required to attest that contracting work to provide services outside 
the OAA would not in any way harm the goals of the Act or compromise 
the agency's responsibilities within the Act. Another comment noted 
further that any potential ``profits'' made from these kinds of 
contracts or commercial relationships are put back into services or the 
development of new programs for older adults, a reinvestment that is 
required under section 212--though the commenter claims that such 
agreements do not fall under the purview of section 212.
---------------------------------------------------------------------------

    \161\ 42 U.S.C. 3020c.
---------------------------------------------------------------------------

    Both section 212 \162\ and section 306(a) \163\ establish an 
important oversight role for State agencies. As we noted in the 
proposed rule, we intend this provision to help ensure that 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.
---------------------------------------------------------------------------

    \162\ Id.
    \163\ 42 U.S.C. 3026(a)
---------------------------------------------------------------------------

    Comment: A few commenters raised concerns related to sharing 
proprietary information or violating non-disclosure agreements as part 
of the review process. One commenter specifically asked about the 
relationship between State public records laws and State agency 
oversight of contracts between AAAs and health care entities with non-
disclosure agreements.
    Response: Generally, the application of State public records laws 
is beyond the scope of our regulation. However, we are not aware of any 
State that does not include certain exceptions for trade secrets or 
other proprietary information. In addition, we encourage State agencies 
to request and review the minimum information appropriate to the 
circumstances in order to approve of a contract or commercial 
relationship.
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 use of funding. We add paragraph Sec.  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.\164\ To ensure that third parties will be on 
notice of this requirement, we 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.
---------------------------------------------------------------------------

    \164\ 42 U.S.C. 3030b.
---------------------------------------------------------------------------

    Comment: One commenter requested definitions for: ``alterations,'' 
``renovations,'' and ``construction.'' Two commenters suggested 
including ``retrofitting'' in the definition of ``alterations'' for 
clarity. Another commenter requested that ACL maximize flexibility for 
State agencies to make infrastructure investments.
    Response: ACL appreciates these comments but declines to add the

[[Page 11591]]

requested changes, as ``altering or renovating'' and ``constructing'' 
are defined in Sec.  1321.3 of the rule. ``Infrastructure'' is a broad 
term, and ACL lacks authority under the Act to allow for such a broad 
use of OAA funds. Section 321 of the Act only allows construction 
activities for multipurpose senior centers.\165\
---------------------------------------------------------------------------

    \165\ 42 U.S.C. 3030d.
---------------------------------------------------------------------------

    Comment: A commenter noted that the term ``constructing,'' as 
defined in the current regulation, specifically refers only to 
``multipurpose senior centers,'' while the definition of the term 
``constructing'' in Sec.  1321.3 of the proposed rule makes no 
reference to senior centers. The commenter sought clarity as to whether 
constructing activities only are permitted for multipurpose senior 
centers.
    Response: ACL appreciates this comment. Section 1321.9(c)(2)(xv)(C) 
of the rule expressly states that construction activities only are 
allowable for multipurpose senior centers.
    Comment: One commenter expressed the concern that Sec.  
1321.9(c)(2)(xv) does not adequately address equipment.
    Response: In response to this comment, we have revised the 
introductory statement of this section as follows: ``Buildings and 
equipment, where costs incurred for [. . .] repair, and upkeep [. . .] 
to keep buildings and equipment in an efficient operating condition, 
including acquisition and replacement of equipment, may be an allowable 
use of funds and the following apply[.]'' We also have made a technical 
correction to the cross-references in Sec.  1321.9(c)(2)(xv)(D) to 
specify the applicability of this provision. Finally, we have added a 
provision at Sec.  1321.9(c)(2)(xv)(F) to specify that prior approval 
by the Assistant Secretary for Aging does not apply.
    Comment: In connection with the acquisition or construction of a 
multipurpose senior center, ACL received a comment requesting guidance 
and training related to the requirement to file a Notice of Federal 
Interest in the appropriate official records of the jurisdiction where 
the property is located.
    Response: ACL will address this comment through technical 
assistance, as needed.
Sec.  1321.9(c)(2)(xvi) Supplement, Not Supplant
    The Act sets forth requirements in sections 306(a)(9)(B),\166\ 
315(b)(4)(E),\167\ 321(d),\168\ 374,\169\ and 705(a)(4) \170\ 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, part E funding. In this example, the result would be 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.\171\ This provision requires a State agency policy and procedure 
on supplementing, not supplanting existing funds for the programs where 
specified in the Act.
---------------------------------------------------------------------------

    \166\ 42 U.S.C. 3026(a)(9)(B).
    \167\ 42 U.S.C. 3030c-2(b)(4)(E).
    \168\ 42 U.S.C. 3030d(d).
    \169\ 42 U.S.C. 3030s-2.
    \170\ 42 U.S.C. 3058d(a)(4).
    \171\ 42 U.S.C. 3030s-2.
---------------------------------------------------------------------------

    Comment: ACL received a comment requesting guidance as to Sec.  
1321.9(c)(2)(xvi), which provides that funds awarded under certain 
sections of the Act must not supplant existing Federal, State, and 
local funds.
    Response: ACL will address requests for guidance regarding this 
requirement through technical assistance, as needed.
Sec.  1321.9(c)(2)(xvii) Monitoring of State Plan Assurances
    The Act sets forth many assurances to which State agencies must 
attest as a part of their State plans and to which AAAs must attest as 
a part of their area plans. The final rule specifies that the State 
agency must have policies and procedures to monitor compliance with 
these assurances. We made a technical edit to remove ``and area'' from 
the proposed language in this provision, as monitoring of area plan 
assurances is addressed in Sec.  1321.9(c)(4).
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 specifies that State agencies may advance 
funding to meet immediate cash needs of AAAs and service providers, and 
if a State agency chooses to do so, the State agency must have policies 
and procedures that comply with all applicable Federal requirements.
    Comment: One commenter expressed support for Sec.  
1321.9(c)(2)(xviii). Other commenters expressed concern that this 
section includes requirements that may be difficult to comply with, 
given the diverse needs of area agencies.
    Response: ACL appreciates these comments, but we decline to revise 
this provision. We do not have the authority to modify or waive Federal 
requirements that apply to advance payments.
Sec.  1321.9(c)(2)(xix) Fixed Amount Subawards
    The rule allows fixed amount subawards up to the simplified 
acquisition threshold, as set forth in 2 CFR 200.333 and 45 CFR 75.353. 
The NPRM included this point in Sec.  1321.9(c)(2)(i). In the course of 
reviewing Sec.  1321.9(c)(2)(i) in response to comments received, ACL 
has determined that the language from that section regarding fixed 
amount subawards should be in a separate provision. Accordingly, ACL 
has added a new Sec.  1321.9(c)(2)(xix) which states that fixed amount 
subawards up to the simplified acquisition threshold are allowed.
    For a definition of ``simplified acquisition threshold'' see 2 CFR 
200.1 and 45 CFR 75.2. ACL will provide technical assistance, as 
needed, regarding Sec.  1321.9(c)(2)(xix).
Sec.  1321.9(c)(4) Area Plan Process
    We add paragraphs Sec.  1321.9(c)(3) and (4) to ensure the 
integrity and transparency of the State plan process and, in States 
with multiple PSAs, of the area plan process. The final rule requires 
the State agency to have policies and procedures that align with the 
requirements for State and area plans in Sec. Sec.  1321.27, 1321.29, 
and 1321.65. In this final rule we have revised these requirements to 
clarify that State and area agencies must establish and comply with a 
reasonable minimum time period (at least 30 calendar days, unless a 
waiver has been granted) for public review of and comment on State and 
area plans.
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 
indicated, these include advocacy, technical assistance, and training 
activities. We make additional minor revisions to these provisions to 
include activities related to the National Family Caregiver Support 
Program. Section 305(a) of the Act provides that the State agency 
should serve as ``an effective and visible advocate'' for older 
individuals

[[Page 11592]]

and family caregivers.\172\ Accordingly, we 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.
---------------------------------------------------------------------------

    \172\ 42 U.S.C. 3025(a).
---------------------------------------------------------------------------

    Comment: We received comment supporting inclusion of advocacy 
responsibilities, such as including family caregivers, and offering 
suggestions for strengthening these expectations. One commenter 
requested we require State agencies to incorporate diversity, 
inclusion, and cultural competency training, while another commenter 
requested removing local plans from the items the State agency is 
expected to review, monitor, evaluate, and provide comment on.
    Response: We appreciate these comments. We have revised Sec.  
1321.11(a)(1) from ``[. . .] recommend any changes in these which the 
State agency considers to be appropriate'' to ``[. . .] recommend any 
changes in these which the State agency considers to be aligned with 
the interests identified in the Act[.]'' At Sec.  1321.61(b)(1), we 
also have revised the regulations to remove the phrase ``where 
appropriate'' and add ``which the area agency considers to be aligned 
with the interests identified in the Act[.]''
    We agree with the commenter that diversity, inclusion, and cultural 
competency are essential, and we encourage State agencies to 
incorporate these concepts throughout their trainings. However, we 
decline to expressly require such training. State agencies must provide 
training related to all of the topics listed in this regulation, 
including on how to provide services to those in the greatest economic 
and greatest social need. ACL encourages State agencies to work with 
Tribes and Tribal organizations, organizations representing those 
identified as in the greatest economic need and greatest social need, 
and others with lived experience in providing such trainings.
    Additionally, State agencies are encouraged to provide review and 
comment on local plans and activities as part of their statewide 
oversight responsibilities. The State agency may benefit from learning 
about local innovations and developments, and the local agency may 
benefit from feedback on and connections to State agency initiatives 
and activities.
Sec.  1321.13 Designation of and Designation Changes To Planning and 
Service Areas
    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 revised provision.
    Section 305 of the Act requires the State agency to divide the 
State into distinct PSAs and subsequently designate a AAA to serve each 
PSA.\173\ The Act allowed for exceptions for some State agencies to 
designate the entire State as a single PSA; however, this option only 
remains for States that did so on or before October 1, 1980. Single PSA 
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 PSAs allows for a local approach to the 
planning, coordination, advocacy, and administration responsibilities 
as required under the Act. We revise this section to affirm the State 
agencies' obligations to have policies and procedures in place to 
ensure that the State agency process of designating and changing PSAs 
will be transparent, will hold the State agency accountable for its 
decisions, and will afford due process to affected parties. We also 
describe factors that a State agency should take into account when it 
considers changing a PSA 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 and 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 PSAs, we provide greater detail on the requirements for 
changing PSAs, 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 requirement that State agencies must consider 
the listed factors will resolve confusion over how State agencies 
should make decisions about whether and how to change PSA designations.
---------------------------------------------------------------------------

    \173\ Id. section 3025.
---------------------------------------------------------------------------

    Comment: One commenter pointed out a technical correction: the 
reference in Sec.  1321.13(e) to Sec.  1321.15(d) should instead 
reference Sec.  1321.13(d).
    Response: We are grateful to the commenter and have made this 
revision.
    Comment: We received comments expressing support for the clarity of 
these provisions. One commenter also noted Tribes may request changes 
to better serve Native American elders.
    Response: We appreciate these comments and encourage consideration 
of PSA changes that may better serve older adults and family 
caregivers, including Native American elders and family caregivers.
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 made 
to this provision to clarify the nature of an interstate PSA (per 
section 305(b) of the Act),\174\ as well as the process for requesting 
the Assistant Secretary for Aging to designate an interstate PSA. 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.
---------------------------------------------------------------------------

    \174\ Id. section 3025(b).
---------------------------------------------------------------------------

    Comment: We received comment emphasizing the need for coordination 
especially when Tribal reservations cross State lines.
    Response: We appreciate this comment. ACL is available to provide 
technical assistance in coordinating among State agencies, AAAs, and 
Tribal aging programs regarding interstate PSAs.
Sec.  1321.17 Appeal to the Departmental Appeals Board on Planning and 
Service Area Designation
    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) 
\175\ of the Act provides State agencies authority to divide the State 
into distinct PSAs 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) \176\ to the Assistant Secretary for Aging who 
must then afford the entity an opportunity for a hearing pursuant to 
section 305(b)(4) \177\ of the Act. There have historically been

[[Page 11593]]

very few appeals under section 305(a)(1)(E).\178\
---------------------------------------------------------------------------

    \175\ Id. section 3025(a)(1)(E).
    \176\ Id.
    \177\ Id. section 3025(b)(4).
    \178\ Id. section 3025(a)(1)(E).
---------------------------------------------------------------------------

    Through this provision, appeals of State agency decisions for 
designation of PSAs are 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 change aligns 
with Sec. Sec.  1321.23 and 1321.39. We believe it continues to fulfill 
the Act's mandate to provide an 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 and AAAs and is aligned with the intent of the Act.
    Comment: We received comments supporting PSA designation appeals to 
the DAB. We also received comments requesting additional clarification.
    Response: ACL intends for appeals regarding any PSAs, including 
those in which an interstate Indian reservation is located, as set 
forth in Sec.  1321.15 (Interstate planning and service area) to be 
considered by the DAB. We have revised Sec.  1321.17 to clarify that 
PSA designation changes may be appealed.
    As stated in Sec.  1321.17(b), ``Any applicant for designation as a 
planning and service area whose application is denied, and who has been 
provided a hearing and a written decision by the State agency, may 
appeal the denial to the Departmental Appeals Board (DAB)[.]'' Any 
applicant includes Tribes who apply.
Sec.  1321.19 Designation of and Designation Changes to Area Agencies
    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 revised provision. Section 305(b) of 
the Act requires State agencies not located in single PSA States to 
designate a AAA to serve each PSA.\179\ We specify that only one AAA 
shall be designated to serve each PSA and that an organization may be 
designated as a AAA for more than one PSA. 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 PSA. 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.
---------------------------------------------------------------------------

    \179\ Id. section 3025(a).
---------------------------------------------------------------------------

    We 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 a AAA (i.e., 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 provide greater 
clarity to assist State agencies in understanding the designation 
process pursuant to section 305 of the Act and the types of agencies 
permitted by the Act to serve as AAAs.\180\ Consistent with the Act's 
requirements, we retain the existing restriction against a regional or 
local State office serving as a AAA, and the provision continues to 
reference the State agency's obligations under section 305 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.\181\
---------------------------------------------------------------------------

    \180\ Id. section 3025.
    \181\ Id.
---------------------------------------------------------------------------

    Comment: We received comments in support of these clarifying 
provisions. We received suggestions for additional language and a 
recommendation that further regulation and oversight be added when an 
area agency on aging serves more than one PSA.
    Response: ACL appreciates these comments. We expect that State 
agencies will exercise appropriate oversight of each PSA. We have 
revised this provision to clarify that an area agency that serves more 
than one PSA must maintain separate funding, planning, and advocacy 
responsibilities for each PSA.
    For consistency, we similarly revised Sec.  1321.49 (Intrastate 
funding formula), Sec.  1321.61 (Advocacy responsibilities of the area 
agency), Sec.  1321.63 (Area agency advisory council), and Sec.  
1321.65 (Submission of an area plan and plan amendments to the State 
agency for approval).
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 include 
changes to paragraph (a) to clarify the circumstances under which a 
State agency may withdraw a AAA designation. These include failure to 
comply with all applicable Federal requirements or policies and 
procedures established and published by the State agency; a State 
agency decision to change one or more PSA designations; and a AAA 
voluntary request for withdrawal of their designation. In paragraph (b) 
we include a clarification that changes to the designation of a AAA 
must be included in the State plan on aging or an amendment to the 
State plan, with appropriate cross-references. In paragraph (d) we 
detail that a State agency may request an extension of time to perform 
the responsibilities of a 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.
    Comment: We received comments expressing appreciation for the 
clarifications made in this section. We also received a concern that an 
attempt to procure a new AAA no less than once per State plan on aging 
period was too long.
    Response: We appreciate these comments. We have modified the final 
rule to remove the following sentence from Sec.  1321.21(d)(3), 
``Reasonable attempts include conducting a procurement for an applicant 
to serve as an area agency no less than once per State plan on aging 
period.'' The requirement for the Assistant Secretary for Aging to 
approve any extensions will allow for the Assistant Secretary for Aging 
to determine if an extension is appropriate. We decline to make any 
other changes to this provision and will provide technical assistance, 
as appropriate.
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 State agencies regarding the formulation, duration, and 
formatting of State plans.

[[Page 11594]]

    Comment: ACL received comments in support of this provision, as 
well as recommendations regarding implementation of this provision. One 
commenter also recommended additional coordination opportunities 
relating to State plans on aging.
    Response: ACL appreciates these comments. We intend to provide 
technical assistance regarding implementation of this provision and 
additional coordination opportunities that may be available as State 
agencies develop their State plans on aging.
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 and family caregivers 
and serves as a blueprint for achieving the goals and objectives during 
the plan period. Section 307 of the Act sets forth requirements that 
State plans must meet and content that must be included in the State 
plan and authorizes the Assistant Secretary for Aging to prescribe 
criteria for State plan development and content.\182\
---------------------------------------------------------------------------

    \182\ 42 U.S.C. 3027.
---------------------------------------------------------------------------

    We also include 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 in States with multiple PSAs; 
explain how individuals with greatest economic need and greatest social 
need are determined and served; include the State agency's IFF 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, part C-1 funds to be used as set forth in Sec.  
1321.87(a)(1)(i); 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 
provision also clarifies the Assistant Secretary for Aging's authority 
to establish objectives for State plans, including objectives related 
to Title VII of the Act.
    The State plan must define greatest economic need and greatest 
social need, including for the following populations: people with 
disabilities; people who experience language barriers; people who 
experience cultural, social, or geographical isolation, including due 
to racial or ethnic status, Native American identity, religious 
affiliation, sexual orientation, gender identity, or sex 
characteristics, HIV status, chronic conditions, housing instability, 
food insecurity, lack of access to reliable and clean water supply, 
lack of transportation, or utility assistance needs, interpersonal 
safety concerns, rural location; and people otherwise adversely 
affected by persistent poverty or inequality as the State agency 
defines it in the State plan. 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. The final rule establishes standard expectations for whom 
State agencies must include in their definitions of greatest economic 
need and greatest social need, while still allowing for State agencies 
to flexibly include other populations that are specific to their 
circumstances. For example, one State agency may also 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 
agency may also include persons experiencing housing instability. 
Another State agency may not specify any additional populations to be 
included in their definitions of greatest economic need and greatest 
social need at the State plan level but encourage such additions at the 
area plan level (for which we further discuss requirements in Sec.  
1321.65).
    We also specify that upon identifying the populations of greatest 
economic need and greatest social need, the State plan must include how 
the State agency will target services to these populations, including 
how funds under the Act may be distributed in accordance with listed 
IFF or funds distribution plan requirements at Sec.  1321.49 or Sec.  
1321.51, respectively. For example, a State agency may specify that it 
will use one factor based on the low-income and rural population of 
individuals age 60 and older in its IFF to meet populations identified 
as in greatest economic need and greatest social need. Another State 
agency may use two separate factors, one for low-income individuals age 
60 and older and another for rural individuals age 60 and older. These 
State agencies may use methods other than IFFs or funds distribution 
plans for targeting services to those with certain dietary 
requirements, experiencing housing instability, and as determined at 
the area plan level.
    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 are also 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 systems and services 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. The final rule requires State 
agencies 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 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, 
part B supportive services, under limited circumstances.
    The final rule requires State agencies 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), consistent 
with the legal assistance section at Sec.  1321.93.\183\
---------------------------------------------------------------------------

    \183\ Id. section 3027(a)(2)(C).
---------------------------------------------------------------------------

    The provision also includes a new requirement for State agencies to 
provide certain information regarding any permitted use of Title III, 
part C-1 funds (funds for meals served in a congregate setting) for 
shelf-stable, pick-up, carry-out, drive-through, or similar meals, as 
permitted by new Sec.  1321.87(a)(1)(i). 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 Public Health 
Emergency (PHE), ACL provided guidance on innovative, permissible 
service delivery options that grantees could use to provide meals to 
older individuals and other eligible recipients of home-delivered meals 
with Title III, part C-2

[[Page 11595]]

funds.\184\ In response to comments from grantees and interested 
parties on the RFI, we included a new provision at Sec.  1321.87 to 
allow these meal delivery methods through the use of Title III, part C-
1 congregate meal funds, subject to certain terms and conditions. As 
this represents an expansion of the permitted use of congregate meals 
funds, State agencies must provide information about this use of Title 
III, part 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 so that ACL will be aware of the extent to which State 
agencies plan to implement this new allowable use of Title III, part C-
1 funds.
---------------------------------------------------------------------------

    \184\ For example, Reopening Considerations for Senior Nutrition 
Programs (April 2021), available at https://acl.gov/sites/default/files/programs/Senior_Nutrition/SNP_ReopeningConsiderations.Final.pdf; and, Congregate or Home-
Delivered Meal Decision Tree (June 2022), available at https://acl.gov/sites/default/files/nutrition/Title%20III%20C1%20and%20C2%20Service%20Delivery%20Decision%20Tree%206.15.22%20508.pdf.
---------------------------------------------------------------------------

    We remove redundant provisions in Sec.  1321.27 that are addressed 
in other more appropriate sections of the revised regulation (such as 
requirements related to State agency policies, voluntary contributions, 
and means testing, which are addressed in Sec.  1321.9). We also make 
minor revisions to the provision to remove outdated references.
    Comment: We received comments expressing support for this provision 
and for service to persons in greatest economic need and greatest 
social need. Commenters also shared concerns about how State agencies 
and AAAs can serve all the populations listed and how they will measure 
whether the targeted populations are being served, given lack of 
funding, incomplete data sources, and data privacy concerns.
    Response: ACL appreciates these comments and concerns related to 
how to provide targeted services given limited funds and how to use 
data appropriately and sensitively. We expect State agencies to: (1) 
identify and consider populations in greatest economic need and 
greatest social need; (2) describe how they target the identified 
populations for service provision; (3) establish priorities to serve 
one or more of the identified target populations, given limited 
availability of funds and other resources; (4) establish methods for 
serving the prioritized populations; and (5) use data to evaluate 
whether and how the prioritized populations are being served.
    For the first step, the State agency must assess and identify 
populations in greatest economic need and greatest social need within 
the State. For example, a State agency may review demographic and 
service data; engage in Tribal consultation; conduct needs assessments 
with older adults, family caregivers, and other community members; hold 
public hearings; and accept other feedback in determining how the State 
agency will define populations in greatest economic need and greatest 
social need. A State agency must establish a definition to include 
those populations identified pursuant to Sec.  1321.27(d)(1) and also 
could include formerly incarcerated individuals as a population in 
greatest social need.
    Next, the State agency must describe how it will target each of the 
populations included in the definitions of greatest social need and 
greatest economic need for service delivery. This description may be 
combined with the determination of priority populations outlined in the 
next paragraph. For example, the State agency might explain that it 
will market the availability of OAA services to statewide advocacy 
groups serving each of the populations identified pursuant to Sec.  
1321.27(d). The State agency could describe its plans to issue a 
monthly newsletter, highlighting a different targeted population each 
month.
    For the third step, the State agency could determine that of the 
populations included in its definition, it will prioritize people 
living at or below 100 percent of the FPL; communities that experience 
isolation due to racial or ethnic status, Native American identity, 
sexual orientation, gender identity, or sex characteristics, and rural 
location; as well as formerly incarcerated individuals. The State 
agency might decide to prioritize these communities because of the 
State's demographics, resources, and needs; information that should be 
collected consistent with the practices established through the State 
agency's policies and procedures (Sec.  1321.9(c)(3)); review of area 
plans (Sec.  1321.27(c)); and public participation process (Sec.  
1321.29).
    For the fourth step (establishing methods to serve the prioritized 
populations), we note that distributing funds under an IFF or funds 
distribution plan is an important strategy, but not a required or 
exclusive one. To clarify this, ACL has modified the provision at Sec.  
1321.27(d)(2) to state, ``The methods the State agency will use to 
target services to the populations identified in Sec.  1321.27(d)(1), 
including how funds under the Act may be distributed to serve 
prioritized populations in accordance with requirements as set forth in 
Sec.  1321.49 or Sec.  1321.51, as appropriate.''
    For example, the State agency might use multiple methods to serve 
the priority populations in the example above. To serve minority 
individuals and people living at or below 100 percent of the FPL, the 
State agency might use an IFF factor based on Census data, along with a 
base amount of funding to ensure service to people living in rural 
areas. In addition, the State agency might target services to formerly 
incarcerated individuals by partnering with organizations providing re-
entry services, developing referral protocols, and amending a statewide 
intake form to include optional disclosure of membership in this 
population. Finally, the State might focus services to LGBTQI+ older 
adults and family caregivers, by conducting trainings for service 
providers, offering outreach events in each PSA in the State, and 
updating their web page, social media accounts, and other materials.
    For the final step, the State agency would collect data to evaluate 
its success in its targeting and prioritization efforts. Data 
collection and analysis efforts may encompass a number of quantitative 
and qualitative methods to determine the success of efforts, such as 
counting leading indicators like the number of new partnerships 
implemented; analyzing output data, such as the number of activities 
taking place in certain settings and/or focused toward prioritized 
populations; reviewing demographic data of individual program 
participants collected (which may or may not be reported in the State 
Program Report or other data collection that the State agency may 
require); conducting focus groups of service recipients and/or service 
providers; and completing outcome surveys with service recipients or 
community leaders. In any such data collection efforts, provisions of 
Sec.  1321.75 (Confidentiality and disclosure of information) apply.
    Comment: One commenter would like to see language added directing 
State agencies to include solo older adults as a target audience in 
their State plan, including how such individuals will be identified and 
served. Additionally, the commenter would like State agencies to 
identify amounts of funds to be directed toward meeting the needs of 
solo older adults.
    Response: ACL appreciates this comment and recognizes that older 
adults living alone are a frequently prioritized population for 
provision of OAA services. In fact, a number of State agencies use the 
number of individuals within a PSA who are ``Living Alone'' as a single 
or combined factor in

[[Page 11596]]

distributing funds under their IFF, consistent with Sec.  1321.49. We 
recognize that persons living alone may be included in the target 
populations that State agencies or AAAs may define under Sec.  
1321.27(d)(1) and Sec.  1321.65(b)(2)(i), respectively. Given that 
State agencies may consider and use various factors in distributing 
funds via an IFF or funds distribution plan (per Sec.  1321.49 or Sec.  
1321.51(b)), and service providers may receive funds to serve various 
priority populations, we do not believe it would be feasible to 
identify specific amounts of funds to be directed toward meeting the 
needs of such individuals. However, we note that if ``solo older 
adults,'' individuals living alone, or some other priority population 
is defined by a State agency or a AAA, the State agency or a AAA should 
explain how such individuals will be served, which may include how 
funds are distributed.
    Comment: In response to ACL's solicitation of input on ways ACL and 
State agencies can support improvements in I&A/R systems, one commenter 
highlighted the potential value of having one I&A/R database system for 
all AAAs and/or the entire aging network in a State, as well as 
potential added enhancements such as an internal referral system from 
one service area to another along with community resources. The 
commenter recommended one-time contract investments to secure such a 
system. Another commenter noted that improvements in I&A/R systems are 
not limited to State agencies and recommended that the contributions of 
AAAs and others be recognized and encouraged.
    Response: ACL appreciates this feedback and notes that such 
investments may be considered match, subject to Sec.  1321.9(c)(2)(ii). 
Additionally, a State agency may establish policies and procedures 
requiring use of a standardized database system as set forth in Sec.  
1321.73. ACL enthusiastically recognizes and encourages the innovations 
of AAAs, service providers, and others in modernization and innovation 
efforts in provision of services under the Act.
    Comment: We received a comment recommending that the State agency 
communicate with Tribes, Tribal organizations, and native communities 
regarding how greatest economic need and greatest social need are 
determined and addressed, including regarding the provision at Sec.  
1321.27(d).
    Response: We appreciate this comment and have revised the provision 
at (g) to add that the determination of greatest economic need and 
greatest social need specific to Native American persons is identified 
pursuant to communication among the State agency and Tribes, Tribal 
organizations, and Native communities.
    Comment: A commenter was concerned that Sec.  1321.27 is overly 
prescriptive.
    Response: 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 of the Act 
sets forth requirements that State plans must meet and content that 
must be included and authorizes the Assistant Secretary for Aging to 
establish criteria for State plan development and content.\185\ State 
agencies have considerable discretion in developing goals, objectives, 
and strategies for the State plan, in establishing the IFF or resource 
allocation plan (as applicable), and in prioritizing and reaching 
targeted populations for service delivery.
---------------------------------------------------------------------------

    \185\ Id. section 3027.
---------------------------------------------------------------------------

    Comment: A commenter recommended we require State agencies to 
demonstrate outreach to older Native Americans who do not live on 
Tribal lands in addition to coordination with Title VI programs.
    Response: ACL appreciates this comment. We note that Sec.  
1321.27(d)(1) requires the inclusion of those who experience isolation 
due to their Native Americans identity in the State agency's definition 
of populations in the greatest economic need and greatest social need 
that must be addressed in the State plan. Native Americans, as defined 
in the rule, are not limited to Native Americans who live on Tribal 
lands. We have revised this provision to read, ``[. . .] where there 
are older Native Americans in any planning and service area, including 
those living outside of reservations and other Tribal lands.''
    Comment: ACL received comments with recommendations of topics that 
should be required to be included in State plans, such as aligning 
State plans with master plans for aging, age-friendly initiatives, and 
No Wrong Door systems; \186\ and encouraging intergenerational 
programming.
---------------------------------------------------------------------------

    \186\ The No Wrong Door (NWD) System initiative is a 
collaborative effort of ACL, the Centers for Medicare & Medicaid 
Services (CMS), and the Veterans Health Administration (VHA). The 
NWD System initiative builds upon the Aging and Disability Resource 
Center (ADRC) program and CMS' Balancing Incentive Program No Wrong 
Door requirements that support state efforts to streamline access to 
long-term services and support (LTSS) options for older adults and 
individuals with disabilities. NWD Systems simplify access to LTSS, 
and are a key component of LTSS systems reform. For more 
information, see: https://acl.gov/programs/connecting-people-services/aging-and-disability-resource-centers-programno-wrong-door.
---------------------------------------------------------------------------

    Response: 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 of the Act 
sets forth requirements that State plans must meet and content that 
must be included and authorizes the Assistant Secretary for Aging to 
establish criteria for State plan development and content.\187\
---------------------------------------------------------------------------

    \187\ 42 U.S.C. 3027.
---------------------------------------------------------------------------

    In response to the RFI and other requests for clarification, we 
establish additional required core elements for the State plan in Sec.  
1321.27, including that the State plan: must provide evidence that it 
is informed by, and based on, area plans in States with multiple PSAs; 
explain how individuals with greatest economic need and greatest social 
need are identified and served; include the State agency's IFF 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, part C-1 funds to be used as described in Sec.  
1321.87(a)(1)(i); 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.
    This provision also clarifies the Assistant Secretary for Aging's 
authority to establish objectives for State plans, including objectives 
related to Title VII of the Act. Significant issues that should be 
addressed through State plans will change over time, and conditions 
will vary from one State to another. For these reasons, we decline to 
establish additional specific content requirements for State plans 
through regulation.
    Comment: Regarding Sec.  1321.27(j), which addresses the permitted 
use, subject to certain terms and conditions, of Title III, part C-1 
funds (funds for

[[Page 11597]]

meals served in a congregate setting) for shelf-stable, pick-up, carry-
out, drive-through, or similar meals, a commenter requested 
clarification as to how to project that the provision of such meals 
will enhance, rather than diminish the congregate meal program.
    Response: ACL will address this comment through technical 
assistance, as needed.
    Comment: A commenter noted that Sec.  1321.27(c) requires that all 
State plans are to be informed by and based on area plans, while single 
PSA States have no area plans.
    Response: We appreciate this comment and have revised the provision 
to clarify.
    Comment: ACL received suggestions, recommendations, and 
implementation questions regarding Sec.  1321.27(h), which addresses 
requirements related to program development and coordination 
activities. Some comments requested that use of funds in this manner 
not be subject to public review and comment requirements.
    Response: This provision does not substantively change the 
requirements for use of Title III-B funds for program development and 
coordination activities in the existing regulation. Because this 
provision allows for use of funds that would otherwise be required to 
be used for direct services to older adults to be used for program 
development and coordination purposes, we believe it is appropriate to 
retain the public review and comment requirement. ACL will address 
other questions regarding this provision through technical assistance, 
as needed.
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.\188\ Subsections 1321.29(a) and (b) set 
forth obligations for public input, including that opportunities for 
public participation should occur periodically (at a minimum, once each 
fiscal year) 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 and the NPRM, we have revised this provision to clarify that the 
public must be given a reasonable minimum period of time (at least 30 
calendar days, unless a waiver has been granted by the Assistant 
Secretary for Aging) 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.
---------------------------------------------------------------------------

    \188\ Id.
---------------------------------------------------------------------------

    Comment: We received comments from individual older adults 
expressing they feel unheard and that there are not sufficient 
opportunities to provide input.
    Response: We appreciate the feedback from individual older adults, 
especially those who wish to be engaged in planning efforts for 
services under the Act. Sections 1321.29 (Public participation) and 
1321.65(b)(4) (Submission of an area plan and plan amendments to the 
State agency for approval) are intended to make clear the importance of 
soliciting and using feedback from individual older adults and family 
caregivers.
    Comment: ACL received several comments requesting more specificity 
and direction regarding the requirement that State agencies obtain 
input on a periodic basis.
    Response: Section 307(a)(4) of the Act requires that State agencies 
procure public input on a ``periodic'' basis.\189\ The final rule 
defines ``periodic'' (at a minimum, once each fiscal year) and sets 
forth minimum requirements related to data collection and client 
assessments, as well as State and area plans and activities thereunder. 
The final rule otherwise affords State agencies flexibility in 
determining how to meet this requirement; ACL declines to impose 
additional conditions for State agencies to meet this requirement, as 
circumstances may vary from one State to another.
---------------------------------------------------------------------------

    \189\ Id. section 3027(a)(4).
---------------------------------------------------------------------------

    Comment: ACL received comments requesting additional direction to 
State agencies in Sec.  1321.29 to ensure that individuals from 
underserved communities, as well as Tribal governments, have an 
opportunity to participate.
    Response: ACL appreciates the comments and confirms Sec.  1321.29 
requires State agencies to focus on those in greatest economic need and 
in greatest social need in seeking public input, and the definition of 
greatest social need includes Native Americans.
    Comment: One commenter requested that the public participation 
requirements of Sec.  1321.29 also apply to area agencies. Another 
commenter recommended that ACL require each State agency to implement 
standard area plan needs assessment and data tools for use by all area 
agencies in the State.
    Response: Section 1321.65 requires State agencies to have in place 
requirements for public input with respect to area plans. ACL declines 
to impose additional requirements as to how State agencies must cause 
area agencies to seek public input, as conditions may vary from one 
State to another and from one region of a State to another. 
Accordingly, ACL maintains the regulatory text in Sec.  1321.29.
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 make 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 for Aging and which only need to be submitted for purposes of 
notification. Amendments requiring prior approval are those necessary 
to reflect new or revised statutes or regulations as determined by the 
Assistant Secretary for Aging; an addition, deletion, or change to a 
State agency's goal, assurance, or information requirement statement; a 
change in the State agency's IFF or funds distribution plan for Title 
III funds; a request to waive State plan requirements; or other 
required changes. 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; distribution of State 
plan administration funds for demonstration projects; a change in a PSA 
designation; a change in AAA designation; or exercising of major 
disaster declaration flexibilities, as set forth in Sec.  1321.101. We 
also make minor revisions to reflect statutory updates.
    Comment: Several commenters expressed concern regarding delayed 
response times due to State plan amendment requirements for funding set 
aside to address disasters. We also received comments requesting that 
we clarify the timeframes for State plan amendment submissions in Sec.  
1321.31(b).
    Response: As set forth in this provision and in Sec.  1321.101, the 
State plan amendment required when using funds set aside to address 
disasters does not require prior approval by the Assistant Secretary 
for Aging. ACL intends this requirement to facilitate

[[Page 11598]]

transparency and communication in times of emergency and disaster and 
does not intend to delay response times. Through this requirement we 
intend to ensure that a State agency's plan on aging accurately 
reflects current circumstances, facilitates communication, and promotes 
transparency. We have revised Sec.  1321.31(b) to read ``[. . .] 
whenever necessary and within 30 days of the action(s) listed in (1) 
through (6) of this paragraph[.]'' For clarity, we have removed the 
redundant provision at Sec.  1321.31(b)(6) and renumbered accordingly. 
We have also amended the other provisions of Sec.  1321.31(b) for 
consistency.
    Comment: ACL received a comment requesting guidance regarding the 
timing for State plan amendments that may be required as a result of 
the implementation of this final rule. One commenter requested 
clarification as to what would constitute ``[a] significant change in a 
State law, organization, policy, or State agency operation'' as set 
forth in Sec.  1321.31(b)(1). ACL also received a comment inquiring as 
to the status of the guidelines prescribed by the Assistant Secretary 
for Aging, referred to in Sec.  1321.31(c), regarding the submission of 
information required by Sec.  1321.31.
    Response: This final rule is effective 30 days after publication in 
the Federal Register. In consideration of comments related to the time 
required for implementation of the rule, we have decided to delay the 
compliance date of this rule until October 1, 2025. This will allow 
time for State agencies to incorporate the requirements of this final 
rule into State plan amendments, as needed, by October 1, 2025.
    ACL will address these comments further through technical 
assistance, as needed.
Sec.  1321.33 Submission of the State Plan or Plan Amendment to the 
Assistant Secretary for Aging for Approval
    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 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. Previously, the regulations 
required State agencies to submit a plan or amendment for approval, 
signed by the Governor or the Governor's designee, 45 calendar days 
prior to its proposed effective date. This 45-day period does not 
provide adequate time for proper Regional Office review and provision 
of appropriate technical assistance, for the State agency then to make 
any changes that are required, and for the State agency 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 agency, such as a lapse in 
funding under the Act. In addition, if a State agency 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 for Aging'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 
aim 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 calendar 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.
    Comment: ACL received several comments expressing concern that the 
requirement under Sec.  1321.33(b) to submit a draft for review at 
least 120 calendar days prior to the proposed effective date is too 
burdensome.
    Response: We appreciate these concerns but retain the requirement 
that drafts be submitted at least 120 calendar days prior to the 
proposed effective date of the plan or amendment. We have added 
clarification that the plan be submitted at least 90 calendar days 
before the proposed effective date of the plan or plan amendment. 
Submission of a draft is necessary to provide sufficient time for 
review and revision before the 90-day deadline to submit the plan or 
plan amendment to the Assistant Secretary for Aging. We understand from 
comments that there may be exceptional circumstances that could prevent 
a State agency from being able to meet the 120- and 90-day time frames. 
In response to these concerns, Sec.  1321.33(b) permits State agencies 
to request a waiver from the Assistant Secretary for Aging in the event 
of exceptional circumstances. We have added similar language to allow 
for a similar waiver with respect to the 90-day time frame.
Sec.  1321.35 Notification of State Plan or State Plan Amendment 
Approval or Disapproval for Changes Requiring Assistant Secretary for 
Aging Approval
    The provision contained in Sec.  1321.23 of the existing regulation 
(Notification of State plan or State plan amendment approval) is 
retitled and redesignated here as Sec.  1321.35. We also make changes 
to Sec.  1321.35(b) for consistency with other related provisions that 
address appeals to the Assistant Secretary for Aging regarding 
disapproval of State plans or amendments.
    Comment: Several commenters requested that ACL commit to either an 
estimated or a specific response time frame for State plan and State 
plan amendment submissions that require prior approval.
    Response: ACL will use reasonable efforts to respond to State plan 
and State plan amendment submissions that require prior approval within 
90 calendar days of receipt. This general timeframe may not be suitable 
in every case, as there may be conditions that warrant additional time 
for review. Examples of factors that may cause delays beyond these 90 
days include incomplete or incorrect State plan or State plan amendment 
submissions and need for consultation or coordination with parties 
outside of ACL.
Sec.  1321.39 Appeals to the Departmental Appeals Board Regarding State 
Plan on Aging
    Section 1321.77 of the existing regulation (Scope) is redesignated 
here at Sec.  1321.39, retitled, and modified. Sections 305 \190\ and 
307 \191\ 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) \192\ the Assistant Secretary for Aging 
shall not make a final determination disapproving any State plan, or 
any modification thereof, or make a final determination that a State 
agency is ineligible under section 305,\193\ without first affording 
the State agency reasonable notice and opportunity for a hearing.
---------------------------------------------------------------------------

    \190\ 42 U.S.C. 3025.
    \191\ 42 U.S.C. 3027.
    \192\ Id. section 3027(c)(1).
    \193\ 42 U.S.C. 3025.
---------------------------------------------------------------------------

    In the past, the Assistant Secretary for Aging would have 
facilitated the appeals process. Consistent with Sec.  1321.17 and new 
Sec.  1321.23, appeals have been delegated to DAB in

[[Page 11599]]

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 agency 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
    In this section, redesignated from existing Sec.  1321.79, 
retitled, and modified, we remove reference to the ``Commissioner for 
Aging'' and replace it with ``the Departmental Appeals Board'' to align 
with changes made to Sec.  1321.39.
Sec.  1321.43 How the State Agency May Appeal the Departmental Appeals 
Board's Decision
    In this section, redesignated from Sec.  1321.81 and retitled, we 
remove reference to the ``Commissioner for Aging'' and replace it with 
``the Departmental Appeals Board'' to align with changes made to Sec.  
1321.39.
Sec.  1321.45 How the Assistant Secretary for Aging May Reallot the 
State Agency's Withheld Payments
    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 have been made to the provision to 
reflect statutory 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. In 
states with multiple PSAs, State agencies provide funding to AAAs 
through the IFF. Section 305 of the Act sets forth requirements for the 
IFF while, at the same time, affording State agencies some 
flexibilities in its development and implementation.\194\ The changes 
to this provision are designed to assist State agencies in developing 
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 specify that the State agency must include 
the IFF in the State plan, in accordance with guidelines issued by the 
Assistant Secretary for Aging 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 per 
section 362 of the Act.\195\
---------------------------------------------------------------------------

    \194\ Id.
    \195\ 42 U.S.C. 3030n.
---------------------------------------------------------------------------

    In paragraph (b) we clarify the elements of the IFF. The elements 
include a descriptive statement and application of the State agency's 
definitions of greatest economic need and greatest social need; a 
statement that discloses any funds deducted for allowable purposes of 
State plan administration, the Ombudsman program, or disaster set aside 
funds, as set forth in Sec.  1321.99; whether a separate formula for 
evidence-based disease prevention and health promotion is used; how the 
NSIP 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 of the data to be used for 
each PSA in the State; a statement of the allocation of funds to each 
PSA in the State; and the source of the best available data used to 
allocate the funding.
    In paragraph (c) we identify prohibitions related to the IFF. 
Prohibitions include that the State agency may not: withhold funds from 
distribution through the formula, except where expressly allowed for 
State plan administration, disaster set aside funds as set forth at 
Sec.  1321.99, or the Ombudsman program; exceed State plan and area 
plan administration caps as detailed at Sec.  1321.9(c)(2)(iv); use 
Title III, part 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, part B 
Ombudsman program funds, and disaster set-aside funds as set forth in 
Sec.  1321.99; and use funds in a manner that is in conflict with the 
Act.
    In paragraph (d) we specify other requirements that apply to 
distribution of NSIP 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 
state that Title VII funds or Title III, part 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, part 
B Ombudsman program and disaster set-aside funds. We include 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. Revisions to paragraph (f) reflect statutory 
updates and cross-reference to other provisions within the regulation.
    Comment: A commenter observed that Sec.  1321.49(a) states, ``The 
formula shall reflect the proportion among the planning and service 
areas of persons age 60 and over in greatest economic need or greatest 
social need[.]'' The commenter noted that the phrase should read 
instead ``greatest economic need and greatest social need.''
    Response: ACL appreciates this comment and has made the revision.
    Comment: Some commenters expressed that ACL should consider 
allowing other examples of ``best available data'' that capture 
experiences of LGBTQI+ populations.
    Response: ACL appreciates the comment but does not believe any 
changes to the rule are necessary. Section 1321.49(b)(5) allows for 
``[o]ther high quality data available to the State agency'' to be used 
in the IFF.
    Comment: Some commenters expressed a need for a transparent process 
for the development of the IFF in a State, and more transparency in the 
content of the IFF. Other commenters requested clarification when a AAA 
serves more than one PSA.
    Response: ACL appreciates these comments. The provision at Sec.  
1321.49 requires the IFF to be developed in consultation with the 
State's area agencies, requires the proposed IFF to be published for 
public review and comment, and includes a list of specific information 
that must be included in an IFF. In response to comments, we have 
clarified that the public must be given a reasonable minimum period of 
time (at least 30 calendar days, unless a waiver has been granted by 
the Assistant Secretary for Aging) for review and comment. ACL declines 
to further dictate a specific process for the procurement of public 
input in a proposed IFF, as conditions may vary from one State to 
another. Instead, ACL leaves it to the discretion of each State agency 
to determine an appropriate public input process. ACL further believes 
the information required by

[[Page 11600]]

Sec.  1321.49 to be included in the IFF provides for adequate 
transparency. Aside from clarifying the minimum reasonable period of 
time for public comment, ACL maintains the regulatory language as 
proposed.
    We expect that State agencies will exercise appropriate oversight 
of each PSA, and we agree that additional clarification of expectations 
for area agencies on aging that serve more than one PSA could be 
helpful. Therefore, we have clarified that the requirements under Sec.  
1321.49 should be, ``specific to each planning and service area.'' For 
consistency, we have similarly revised Sec.  1321.19 (Designation of 
and designation changes to area agencies), Sec.  1321.61 (Advocacy 
responsibilities of the area agency), Sec.  1321.63 (Area agency 
advisory council), and Sec.  1321.65 (Submission of an area plan and 
plan amendments to the State agency for approval) regarding specificity 
to each PSA.
    Comment: Some commenters expressed concerns as to particular 
populations that they felt should be considered in an IFF. One 
commenter suggested prohibiting State agencies from considering OAA 
Title VI awards in their States in considering how to allocate Title 
III funding via the IFF.
    Response: ACL appreciates these comments but declines to revise 
Sec.  1321.49, because it already contains a mechanism to address these 
concerns via the IFF development process and the requirement for public 
input. However, ACL confirms that Title III funds must supplement, not 
supplant, Title VI funds and that Title VI funds should not be 
considered to be ``in place of'' or a substitute for Title III funding 
to serve those prioritized as being in the greatest economic need and 
greatest social need.
    Comment: ACL received comments and questions related to the process 
involved in revising an IFF, how often IFF demographic data should be 
updated, and the disbursement of NSIP funds.
    Response: ACL will address these comments and questions through 
technical assistance, as needed.
Sec.  1321.51 Single Planning and Service Area States
    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 PSA, to continue as a single 
PSA if the State agency met certain requirements. Only State agencies 
currently designated as a single PSA State may have such status; 
accordingly, we remove this language and clarify the specific 
requirements that apply to operating as a single PSA State. Single PSA 
States are addressed elsewhere in our final regulations, including 
definitions in Sec.  1321.3 and regarding designation of and changes to 
PSAs in Sec.  1321.13.
    Based on questions we have received from such State agencies, we 
detail clarifications that single PSA State agencies must meet 
requirements for AAAs, unless otherwise specified. In paragraph (b), we 
clarify that single PSA State agencies, as part of their State plan, 
must include a funds distribution plan that mirrors many of the 
requirements of the IFF for States with multiple PSAs, minus 
distribution to AAAs. The State agency 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).\196\ In paragraph (c) we set forth that single PSA State 
agencies may revise their funds distribution plans, subject to their 
policies and procedures and prior approval of the Assistant Secretary 
for Aging. In response to comments, we have specified that the public 
be given a reasonable minimum period of time (at least 30 calendar 
days, unless a waiver has been granted by the Assistant Secretary for 
Aging) for review and comment of any proposed changes to the funds 
distribution plan. We include these changes to promote transparency and 
good stewardship of public funds. Revisions also are made to reflect 
statutory updates.
---------------------------------------------------------------------------

    \196\ 42 U.S.C. 3027(a)(8)(A).
---------------------------------------------------------------------------

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 PSA 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 a 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) of the Act.\197\ Focal points in previous 
Sec.  1321.53(c) focused on the need for brick-and-mortar facilities 
such as multipurpose senior centers. In light of the social service 
systems climate in which AAAs operate today, the existing language 
limiting these focal points to facilities could impede a AAA's ability 
to develop and enhance comprehensive and coordinated community-based 
systems in, or serving, its PSA, as contemplated by the Act. 
Accordingly, we remove the language from this paragraph related to a 
AAA's obligations with respect to focal points.
---------------------------------------------------------------------------

    \197\ 42 U.S.C. 3026(a).
---------------------------------------------------------------------------

    We also make 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 amendments) and to emphasize the Act's aim that 
priority be given to serving older adults with greatest economic need 
and greatest social need.
    Comment: ACL received several comments about the redesignation of 
Sec.  1321.53 to Sec.  1321.55 and the removal of focal points, which 
in prior regulations were identified as facilities ``[. . .] 
established to encourage the maximum collocation and coordination of 
services for older individuals[.]'' Many of these commenters voiced 
support for the removal of focal points to encourage maximum 
flexibility for area agencies to engage a broad range of community-
based partners to provide OAA services. Additional commenters expressed 
concern about the removal of the language because of concerns about the 
impact on current brick-and-mortar multipurpose senior centers. One 
commenter specifically requested retaining ``special consideration'' of 
multipurpose senior centers and updating to provide flexibility to 
designate an entity rather than a facility, which can include virtual 
focal points.
    Response: As commenters noted, the removal of focal points 
recognizes the shifting social services environment and promotes 
flexibility surrounding the development of community-based systems that 
reflect the needs of a AAA's PSA. The rule removes an obligation for 
all AAAs to establish and maintain brick-and-mortar facilities, though 
it does not preclude any AAA from operating multipurpose senior centers 
based upon a determination of the needs of their individual PSAs.

[[Page 11601]]

Thus, we maintain the regulatory language for Sec.  1321.55 to provide 
AAAs the flexibility to develop and enhance a comprehensive and 
coordinated community-based system, which may include multipurpose 
senior centers, that meets the needs of their PSA.
    Comment: Some commenters requested a definition of ``community-
based system'' in Sec.  1321.55(a). Other commenters recommended adding 
``implementation'' to the mission of the area agency on aging and 
voiced concern that consumers will not be impacted unless 
implementation also occurs.
    Response: We appreciate these comments, but retain the text as 
proposed. Section 1321.55(b) details general requirements for 
comprehensive and coordinated community-based systems and give an area 
agency the discretion to decide additional details of their 
comprehensive and coordinated community-based system as it pertains to 
the needs of their PSA.
    Comment: Some commenters sought more clarity in Sec.  1321.55(b)(3) 
and asked what it means to assure that the range of available public 
and private long-term care services and support options are readily 
accessible to all older persons and their family caregivers, no matter 
their income. Others shared concerns about assuring resources given 
that the accessibility of publicly funded services and programs is 
dependent upon available funding. One commenter specifically requested 
that ACL shift the language from ``[a]ssure that these options are 
readily accessible [. . .]'' to ``prioritize making these options 
readily accessible.''
    Response: ACL appreciates comments regarding assurances that the 
range of available public and private long-term care services and 
support options are readily accessible to all older persons and their 
family caregivers, no matter their income. We are maintaining the 
regulatory language and emphasize that the language applies to 
available public and private long-term care services and support 
options.
    Comment: Some commenters asked ACL to clarify what it means to 
``offer special help or targeted resources'' for the most vulnerable 
older persons, family caregivers, and those in danger of losing their 
independence under Sec.  1321.55(b)(6).
    Response: ACL appreciates these comments and reiterates that an 
area agency must prioritize services and supports for eligible 
populations with the greatest economic and greatest social need. ACL 
will provide technical assistance related to offering special help or 
targeted resources to people with the greatest economic and greatest 
social need, including those who are most vulnerable and in danger of 
losing their independence.
    Comment: Many commenters shared concerns about Sec.  1321.55(b)(10) 
related to an area agency board of directors. Several commenters 
recommended that ACL amend the provision to eliminate the phrase 
``board of directors'' and to instead require area agencies to have an 
advisory council or to ``engage with'' leaders in the community, 
including leaders from groups identified as in the greatest economic 
need and greatest social need. Some commenters noted that many area 
agencies are part of local governments and may not have the authority 
to establish a board of directors. Other commenters recommended that 
ACL remove the requirement for a board of directors to include leaders 
from groups identified as in greatest economic and greatest social 
need.
    Response: ACL appreciates the comments related to the regulatory 
text in Sec.  1321.55(b)(10) and notes that both governmental and not-
for-profit area agencies need an entity to be responsible for 
governance, including legal and fiduciary responsibilities. The OAA 
requires area agencies to establish advisory councils which have 
distinct responsibilities related to the responsibilities of an area 
agency that are separate and apart from the governance responsibilities 
of a board of directors.\198\ We note that this provision contains only 
minor changes from the existing rule which stated, ``(10) Be directed 
by leaders in the community who have the respect, capacity and 
authority necessary to convene all interested persons, assess needs, 
design solutions, track overall success, stimulate change and plan 
community responses for the present and for the future.''
---------------------------------------------------------------------------

    \198\ Id. section 3026(a)(6)(D).
---------------------------------------------------------------------------

    Thus, we decline to eliminate the regulatory text which states, 
``(10) Have a board of directors comprised of leaders in the community, 
including leaders from groups identified as in greatest economic need 
and greatest social need, who have the respect, capacity and authority 
necessary to convene all interested persons, assess needs, design 
solutions, track overall success, stimulate change, and plan community 
responses for the present and for the future.''
    We acknowledge that governance responsibilities for government-
based area agencies often reside with an elected Board of Commissioners 
or other elected officials. In this specific governance structure, an 
area agency may not have authority to establish a separate board of 
directors for the area agency or to broaden the composition of an 
elected board to include leaders from groups identified as in the 
greatest economic and greatest social need. For this reason, ACL will 
provide technical assistance regarding government-based area agencies 
who do not have the authority to establish a separate board of 
directors that includes leaders of groups identified as in greatest 
economic need and greatest social need to ensure the needs of these 
populations are reflected in the composition of the board of directors 
for the AAA.
    Comment: Some commenters shared concerns related to the feasibility 
of monitoring an area agency under Sec.  1321.55(d) to ensure that it 
is not engaging in activities that are inconsistent with the mission of 
the Act or State agency policies.
    Response: ACL appreciates comments related to ensuring that area 
agencies activities are in alignment with the provisions detailed in 
Sec. Sec.  1321.55 and 1321.9. We decline to amend the regulatory 
language because subpart C is specific to the responsibilities of an 
area agency. The State agency's responsibilities include monitoring the 
programs and activities initiated under part 1321, including AAA 
activities under this part.
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 multipurpose agency 
which functions as the AAA from having any purpose other than serving 
as a AAA. The Act promotes AAAs as innovative, collaborative 
organizations which adapt to ever-evolving social service, health, and 
economic climates. We 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 regulation (such as requirements with respect to COI) to 
render this restriction unnecessary.
    We also make a minor revision to paragraph (a)(1) to take into 
account the addition of family caregivers as a service population 
pursuant to the 2000 amendments to the Act (Pub. L. 106-501). We also 
include minor revisions to this provision to update cross-references to 
other sections of the regulation.

[[Page 11602]]

    Comment: ACL received many comments about the proposed elimination 
of the requirement in the prior regulation (Sec.  1321.55(a)(2)), which 
prohibited a separate organizational unit within a multipurpose agency 
which functions as the AAA from having any purpose other than serving 
as an area agency. Most of these commenters expressed support for the 
proposed elimination of this requirement and observed that this change 
reflects the range of area agency governance structures and provides an 
area agency the flexibility to expand service offerings and funding 
sources. Other commenters shared concerns about the potential for the 
proposed language to restrict State agency approval authority and the 
importance of policies and procedures for area agencies within larger 
multipurpose agencies.
    Response: As commenters noted, the elimination of the requirement 
referred to in the paragraph above in the prior regulation at Sec.  
1321.55(a)(2) and re-numbered in this final rule as Sec.  1321.57(a)(2) 
reflects the current range of area agency governance structures. It 
also promotes AAAs as innovative, collaborative organizations which 
adapt to ever-evolving social service, health, and economic climates. 
The elimination of this requirement provides more flexibility to AAAs 
to conduct their operations. ACL maintains that adequate safeguards 
exist in the Act and the regulations, such as requirements with respect 
to COI and adherence to State agency policies and procedures, to ensure 
that area agency activities align with the provisions detailed in Sec.  
1321.55.
    Comment: Some commenters requested that Sec.  1321.57(a)(1) be 
amended to provide flexibility to an area agency to provide programs to 
other populations, beyond older adults and family caregivers, including 
adults with disabilities.
    Response: The Act provides area agencies with the statutory 
authority to serve adults aged 60 years and older, including those with 
disabilities, and their family caregivers. ACL made a minor revision to 
Sec.  1321.57(a)(1) to account for the addition of family caregivers as 
a service population pursuant to the 2000 amendments to the Act (Pub. 
L. 106-501) and declines to add additional service populations because 
we do not have the statutory authority to do so.
    Comment: One commenter recommended the elimination of Sec.  
1321.57(b) due to concerns regarding the costs associated with 
administrative functions for area agencies.
    Response: ACL appreciates comments regarding the financial costs 
associated with administrative functions of area agencies. However, in 
light of the area agency responsibilities detailed throughout subpart 
C, area agencies need adequate and qualified staff to implement the 
provisions throughout this subpart. For this reason, we maintain this 
provision as proposed.
Sec.  1321.61 Advocacy Responsibilities of the Area Agency
    We make 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 amendments to the Act (Pub. L. 106-501).
    Comment: We received one comment asserting that the AAA's role is 
to investigate abuses in government and asking for AAAs to have the 
right to administrative hearings with ACL.
    Response: ACL disagrees with the commenter that the advocacy role 
of AAAs is to investigate abuses in government. As stated in the Act, 
the role of the State agency is to, ``serve as an effective and visible 
advocate for older individuals by reviewing and commenting upon all 
State plans, budgets, and policies which affect older individuals and 
providing technical assistance to any agency, organization, 
association, or individual representing the needs of older 
individuals[.]'' \199\ Subsequently, the Act states that the AAA will, 
``serve as the advocate and focal point for older individuals within 
the community by (in cooperation with agencies, organizations, and 
individuals participating in activities under the plan) monitoring, 
evaluating, and commenting upon all policies, programs, hearings, 
levies, and community actions which will affect older individuals[.]'' 
\200\
---------------------------------------------------------------------------

    \199\ 42 U.S.C. 3025(a)(1)(D).
    \200\ 42 U.S.C. 3026(a)(6)(B).
---------------------------------------------------------------------------

    Under Title III of the Act, the State agency is the grantee of 
ACL.\201\ Title III of the Act provides for appeals by the grantee (the 
State agency), for which provisions are set forth at Sec.  1321.39 and 
Sec.  1321.43. Title III of the Act also provides for appeal by 
applicants seeking designation as a PSA, as set forth at Sec.  1321.17, 
and if a State agency initiates an action or proceeding to withdraw 
designation of an area agency on aging, as set forth at Sec.  1321.23.
---------------------------------------------------------------------------

    \201\ 42 U.S.C. 3025.
---------------------------------------------------------------------------

    Under Sec.  1321.9, the State agency is responsible for developing, 
implementing, monitoring, and enforcing policies and procedures 
governing all aspects of part 1321 and part 1324. Such policies and 
procedures may include appeals processes at the State level. The intent 
of the Act is to foster a cooperative approach between State and 
community-based entities. When conflicts occur, we expect that 
application of State agency policies and procedures, in addition to 
technical assistance and robust discussion, will assist all parties in 
finding resolution that maximizes the intent of the Act.
    Comment: Several commenters expressed support for the additional 
clarity surrounding the advocacy responsibilities of an area agency in 
Sec.  1321.61, including the addition of family caregivers as a service 
population. One commenter asked for the definition of family caregiver 
to be expanded to include older relative caregivers. Several commenters 
noted barriers to successfully implementing the advocacy 
responsibilities of the area agency, including representing the 
interests of older persons and family caregivers to local level and 
executive branch officials, public and private agencies, or 
organizations, as required by the Act and this regulation. Other 
commenters requested clarification about the application of this 
provision when a AAA serves more than one PSA.
    Response: ACL appreciates the comments related to the advocacy 
responsibilities of an area agency and notes that the definition of 
family caregiver in Sec.  1321.3 includes older relative caregivers to 
ensure the consideration of older relative caregivers as advisory 
council members. ACL will also continue to provide technical assistance 
surrounding best practices related to serving as a public advocate for 
the development or enhancement of comprehensive and coordinated 
community-based systems of services, including consistently conducting 
outreach to the public related to the needs of older persons and family 
caregivers in PSAs.
    We expect that State agencies will exercise appropriate oversight 
of each PSA, and we agree that additional clarification of expectations 
for area agencies on aging that serve more than one PSA could be 
helpful. Therefore, we have added clarification at Sec.  1321.61 
(Advocacy responsibilities of the area agency) to state, ``and specific 
to each'' in reference to the PSA. For consistency, we have similarly 
revised Sec.  1321.19 (Designation of and designation changes to area 
agencies), Sec.  1321.49 (Intrastate funding formula), Sec.  1321.63 
(Area agency advisory council), and Sec.  1321.65 (Submission of an 
area plan and plan amendments to the State agency for approval) 
regarding specificity to each PSA.

[[Page 11603]]

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 of the Act \202\ requires AAAs to seek public input with 
respect to the area plan; accordingly, we include new language in this 
section clarifying the AAA's advisory council duties with regard to 
soliciting and incorporating public input. Minor changes are made 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 PSA, including individuals identified as in greatest 
economic need and individuals identified as in 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 representatives from Indian Tribes and older 
relative caregivers, should be represented in the council.
---------------------------------------------------------------------------

    \202\ 42 U.S.C. 3026.
---------------------------------------------------------------------------

    We also make minor revisions to this provision to take into account 
the addition of family caregivers as a service population pursuant to 
the 2000 amendments to the Act (Pub. L. 106-501).
    Comment: Commenters shared concerns that service providers on a 
council may inappropriately influence decisions related to awarding OAA 
funds, even if they abstain from voting on funding decisions. ACL 
received many comments on Sec.  1321.63(b), Sec.  1321.63(b)(4), and 
Sec.  1321.63(b)(5) regarding the inclusion of Title III service 
delivery representatives and representatives of health care provider 
organizations as members of an area agency advisory council. Most 
commenters expressed concern about the participation of service 
providers or representatives of health care provider organizations on 
an area agency advisory council due to the potential for COI and the 
perception that participation may benefit one service provider over a 
different potential service provider. Some commenters expressed support 
for the inclusion of Title III service delivery representatives, 
including volunteer service delivery providers, on an area agency 
advisory council.
    Response: ACL appreciates the comments regarding the inclusion of 
Title III service delivery representatives and health care 
representatives as members of an area agency advisory council. We 
decline to revise the regulatory text at Sec.  1321.63(b) introductory 
text and (b)(4) and (5) because the primary focus of the council should 
be to assist the area agency in developing and coordinating community-
based systems of services, including targeting individuals of the 
greatest economic and greatest social need. Service providers and 
health care provider representatives are fundamental to developing 
community-based systems of services that reach these populations. To 
clarify, the advisory council is required to function as a separate 
body from the AAA's governing body. The governing body is responsible 
for making funding decisions and other matters related AAA leadership. 
In contrast, the advisory council is responsible for providing local 
feedback from the community to assist the governing body's leadership 
in developing, administering, and operating the area plan on aging. The 
OAA requires that service providers be among the members of the AAA's 
advisory council.\203\ ACL recognizes the concerns regarding COI and 
has established COI requirements at Sec.  1321.47 (Conflicts of 
interest policies and procedures for State agencies) and Sec.  1321.67 
(Conflicts of interest policies and procedures for area agencies on 
aging). These provisions specifically list advisory council members 
among the individuals to whom these provisions apply.
---------------------------------------------------------------------------

    \203\ Id. section 3026.
---------------------------------------------------------------------------

    Further, Sec.  1321.67 of this rule requires area agencies to 
develop and maintain COI policies, including related to governing 
boards and advisory councils, to avoid actual, perceived, or potential 
COI. We believe the COI policy requirement serves as an adequate 
guardrail against the concern raised by commenters related to service 
providers and health care provider organizations serving on area agency 
advisory councils.
    Comment: Several commenters requested revisions to clarify the role 
of an area agency advisory council and the distinction between an 
advisory council and a board of directors. Specifically, commenters 
recommended adding language restricting an advisory council from also 
operating as a board of directors and prohibiting members from serving 
on both the area agency advisory council and the board of directors. 
Some commenters requested guidance on the decision-making authority of 
advisory councils, especially regarding the development and submission 
of the area plan. Other commenters questioned whether an AAA that is 
designated to serve multiple PSAs as allowed by Sec.  1321.19(a) is 
required to have an advisory council for each PSA or may have an 
advisory council subcommittee for each PSA.
    Response: ACL appreciates the requests for clarity related to the 
role of an area agency advisory council. The primary focus of the area 
agency advisory council should be to assist the area agency in 
developing community-based systems of services targeting individuals 
with the greatest social need and greatest economic need. Section 
1321.63(a)(1) through (5) details how the advisory council can assist 
an area agency in ensuring that individuals with the greatest social 
need and greatest economic need are prioritized in an advisory 
capacity. Except for the change noted below, we are maintaining the 
language as is in Sec.  1321.63(a)(1) through (5) because it details 
the primary functions of an advisory council as advisors to an area 
agency.
    Regarding AAAs which serve multiple PSAs, we have revised Sec.  
1321.63(a) to specify, ``The council shall carry out advisory functions 
which further the area agency's mission of developing and coordinating 
community-based systems of services for all older persons and family 
and older relative caregivers specific to each planning and service 
area.'' We decline to provide further detail in the rule regarding how 
each PSA will be addressed and leave this to State and area agency 
policies and procedures to accomplish.
    In light of the comments received regarding both the role of an 
advisory council and the role of a board of directors, ACL will provide 
technical assistance regarding the functions of an advisory council, 
the functions of a board of directors or governing body, corresponding 
best practices regarding AAAs serving multiple PSAs, and COI policies 
and procedures for advisory and governing bodies. In response to 
comments, we have added new Sec.  1321.63(d), clarifying that an 
advisory council may not operate as a board of directors, and 
prohibiting members from serving on both the advisory council and the 
board of directors.
    Comment: A couple of commenters requested revisions to clarify the 
requirements for public hearings related to the area plan and the role 
of the advisory council. Other commenters requested expansion of the 
language in Sec.  1321.63(a)(3) to include ``or otherwise ensuring 
community engagement and obtaining community input.'' Some

[[Page 11604]]

noted support for the additional clarity surrounding the advisory 
council's role in soliciting and incorporating public input into the 
area plan.
    Response: ACL appreciates comments related to public hearings 
related to the area plan, and the role of the advisory council in 
soliciting and incorporating public input into the area plan. Section 
306 of the Act requires area agencies to seek public input with respect 
to the area plan.\204\ The rule at Sec.  1321.63 clarifies that the 
council must advise the area agency in conducting public hearings, 
among other activities. For example, the advisory council may advise 
the area agency on how to ensure that individuals of the greatest 
social and greatest economic need are included in the hearings. We 
maintain the language in Sec.  1321.63(a)(3) and reference in Sec.  
1321.63(c) which clarifies that the advisory council shall review and 
provide comments related to the area plan to the area agency prior to 
the area agency's submission of the plan to the State agency for 
approval. In light of the comments received, ACL will provide technical 
assistance related to the parameters for public hearings, the role of 
the advisory council in soliciting and incorporating public input, and 
best practices soliciting and incorporating public input, especially 
from individuals with the greatest social and greatest economic need, 
into the area plan.
---------------------------------------------------------------------------

    \204\ Id.
---------------------------------------------------------------------------

    Comment: A couple of commenters asked us to clarify the meaning of 
``[r]epresentatives from Indian Tribes, Pueblos, or Tribal aging 
programs'' as proposed in Sec.  1321.63(b)(9)(i) and one specifically 
recommended that the proposed provision be revised to include both 
unofficial and official representatives.
    Response: In Sec.  1321.63(b) ACL lists the individuals and 
representatives of community organizations who shall comprise the AAA's 
advisory council. These may include both official and unofficial 
representatives. For example, a AAA serving a large metropolitan area 
may serve Native Americans from multiple Indian Tribes, including those 
a far distance from the AAA's service area. The provision at Sec.  
1321.63(b)(9)(i) encourages individuals who represent Indian Tribes, 
Pueblos, or Tribal aging programs, whether formally or informally, to 
be considered as members of the AAA's advisory council. We encourage 
official representation by Indian Tribes, Pueblos, or Tribal aging 
programs to be provided in AAA advisory council composition.
    Comment: ACL received many comments regarding proposed Sec.  
1321.63(b)(1) which requires that the majority, or more than 50 
percent, of area agency advisory council members be older persons, 
including minority individuals who are participants or who are eligible 
to participate in the programs. Most of these commenters expressed 
support for this requirement and noted the importance of ensuring that 
the service populations' perspectives are included in area agency plans 
and policies. Some commenters specifically supported the inclusion of 
older adults with the greatest economic or greatest social need, 
including LGBTQI+ older adults and people with HIV. Other commenters 
requested flexibility surrounding advisory council composition because 
of concerns related to recruiting volunteer advisory council members, 
including those in rural communities, and with the greatest economic or 
greatest social need. One commenter specifically requested that we 
define the term ``efforts'' in relation to including those identified 
as in the greatest economic need and greatest social need.
    Response: ACL appreciates comments regarding the proposed 
requirements that the majority of advisory council members be older 
persons who are eligible to participate in area agency programming and 
that area agencies must intentionally seek to include those in the 
greatest economic and greatest social need. The primary focus of the 
advisory council is to assist the area agency in coordinating 
community-based systems of services for all older persons and family 
and older relative caregivers in the PSA. The inclusion of older adult 
members who have the greatest economic or greatest social need will 
help to ensure that the perspectives of these communities are 
represented in the area plan. For this reason, we are maintaining Sec.  
1321.63(b)(1) as proposed and emphasize that the language encourages 
but does not require area agencies to appoint advisory council members 
representing those identified as in the greatest economic or greatest 
social need. This provides area agencies the flexibility sought by 
several commenters regarding council composition due to concerns about 
volunteer recruitment. ACL will continue to provide technical 
assistance regarding recruiting older adult advisory council member 
volunteers in diverse geographical settings, including those identified 
as in the greatest economic or greatest social need, including how an 
area agency can demonstrate ``effort'' to recruit older adult advisory 
council members with the greatest economic or greatest social need.
    Comment: Several commenters voiced support for the inclusion of 
family caregivers in area agency advisory council membership, as 
proposed in Sec.  1321.63(b)(3) and Sec.  1321.63(b)(9)(ii). Some 
commenters specifically requested that ACL add ``kinship caregivers'' 
to Sec.  1321.63(b)(3) to ensure that older relative caregivers raising 
grandchildren are included in an area agency's advisory council.
    Response: ACL appreciates comments related to the inclusion of 
family caregivers and older relative caregivers as members of area 
agency advisory councils. The 2000 amendments to the Act (Pub. L. 106-
501) added family caregivers as a service population and the revision 
at Sec.  1321.63(b)(3) reflects this addition. As commenters noted, 
many older adults are kin or grandparent caregivers, and Sec.  1321.3 
includes older relative caregivers in the definition of family 
caregiver. We further specify ``Older relative caregivers, including 
kin and grandparent caregivers of children or adults age 18 to 59 with 
a disability'' in Sec.  1321.63(b)(9)(ii). Therefore, we are 
maintaining the language for Sec.  1321.63(b)(3).
Sec.  1321.65 Submission of an Area Plan and Plan Amendments to the 
State Agency 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 responsible for 
ensuring that area plans comply with the requirements of section 306 of 
the Act.\205\ The final rule includes revisions to this provision to 
clarify for State agencies the area plan requirements that should be 
addressed by State agency policies and procedures. These include 
identification of populations in the PSA 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) \206\ of 
the Act; minimum adequate proportion requirements per section 306(a)(2) 
\207\ of

[[Page 11605]]

the Act; and requirements for program development and coordination 
activities as set forth in Sec.  1321.27(h). State agencies may include 
other requirements that meet State-specific needs.
---------------------------------------------------------------------------

    \205\ Id.
    \206\ 42 U.S.C. 3027(a)(8).
    \207\ 42 U.S.C. 3026(a)(2).
---------------------------------------------------------------------------

    We make an addition to area plan requirements to reflect changes in 
the nutrition program, as discussed above. Consistent with Sec.  
1321.87, if State agency policies and procedures allow for the service 
option to provide shelf-stable, pick-up, carry-out, drive-through, or 
similar meals under Title III, part C-1, 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, part C-1 funds for new service 
delivery methods.
    In paragraphs (c) and (d) we include 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 clarify in 
paragraph (e) that area plans must be coordinated with and reflect 
State plan goals. This provision parallels Sec.  1321.27(c), which 
requires the State plan to provide evidence the plan is informed by and 
based on area plans. State plans and area plans may have cycles that 
align or vary, based on multiple considerations. With this provision, 
we clarify that State plans and area plans processes should be 
iterative, where each informs the other.
    Comment: One commenter expressed support for the clarified 
requirements for area plans and associated activities. Other commenters 
requested that we clarify application of this provision to AAAs that 
serve more than one PSA.
    Response: We appreciate these comments. We expect that State 
agencies will exercise appropriate oversight of each PSA, and we agree 
that additional clarification of expectations for area agencies that 
serve more than one PSA would be helpful. Therefore, we have revised 
Sec.  1321.65 (Submission of an area plan and plan amendments to the 
State agency for approval) to state, ``specific to each planning and 
service area.'' For consistency, we have made similar revisions to 
Sec.  1321.19 (Designation of and designation changes to area 
agencies), Sec.  1321.49 (Intrastate funding formula), Sec.  1321.61 
(Advocacy responsibilities of the area agency), and Sec.  1321.63 (Area 
agency advisory council) regarding specificity to each PSA.
    Comment: ACL received many comments about the proposed regulatory 
language for Sec.  1321.65(b)(2) which requires an area agency to 
identify populations at the greatest economic need and greatest social 
need within the PSA. Most of the commenters expressed support for area 
agencies identifying populations at the greatest economic need and 
greatest social need in their PSAs as part of the area plan process. 
Some commenters observed that it may be difficult for area agencies to 
identify and collect data related to populations at the greatest 
economic need and greatest social need. Other commenters argued for 
broader language to encourage local flexibility in determining those 
with the greatest economic and greatest social need.
    A few commenters recommended that ACL require area agencies to work 
in partnership with organizations that serve populations with the 
greatest economic need and greatest social need to determine 
prioritization of programs and services for these populations. 
Specifically, a couple of commenters recommended that ACL require State 
agencies to grant area agencies and Centers for Independent Living 
(CILs) equal responsibility for determining and prioritizing 
populations with the greatest economic need and greatest social need 
for an area plan.
    Response: ACL appreciates the comments regarding identifying older 
adults with the greatest economic need and greatest social need as part 
of the area plan. As commenters noted, the rule at Sec.  1321.65(b) 
provides area agencies with the flexibility to identify populations 
within their individual PSAs and ensures that area plans prioritize 
serving older individuals with the greatest economic need and greatest 
social need. We require the area agency to identify select populations 
and encourage area agencies to select additional populations as needed 
based upon the unique characteristics of their PSAs for the area plan. 
We have revised the regulatory text at Sec.  1321.65(b)(2)(i) to 
clarify our expectations for area plans. In accordance with policies 
and procedures established by the State agency, we expect AAAs to: (1) 
identify and consider populations in greatest economic need and 
greatest social need; (2) describe how they target the identified 
populations for service provision; (3) establish priorities to serve 
one or more of the identified target populations, given limited 
availability of funds and other resources; (4) establish methods for 
serving the prioritized populations; and (5) use data to evaluate 
whether and how the prioritized populations are being served.
    ACL also appreciates comments related to ensuring that 
representatives from groups with the greatest economic need and 
greatest social need are involved in the identification of these groups 
and in the related prioritization of programs and services. The Act 
requires area agencies to form advisory councils and Sec.  1321.63 
clarifies the role of the council, including in assisting area agencies 
in targeting individuals of greatest economic need and greatest social 
need, and requires the majority of members be older adults, including 
older adults with disabilities. The advisory council should seek to 
ensure that the area plan accurately identifies communities of greatest 
economic need and greatest social need and that public input from these 
individuals be incorporated into the area plan.
    As the responsibility for the area plan is statutorily required to 
be with the State agency and the area agency, we cannot assign such 
responsibilities to other entities. However, we encourage area agencies 
to work collaboratively with other entities in the community in 
development and administration of the area plan on aging.
    Comment: ACL received many comments related to proposed Sec.  
1321.65(b)(3) which requires area plans to provide an assessment and 
evaluation of unmet need for supportive services, nutrition services, 
evidence-based disease prevention and health promotion, family 
caregiver support, and multipurpose senior centers. Most commenters 
specifically expressed appreciation for the inclusion of an assessment 
and evaluation of unmet needs in area plans and noted that the 
requirement may enable area agencies to address local need more 
intentionally. Some commenters recommended that area agencies support 
culturally responsive outreach and data collection programming to 
ensure that the needs of populations with the greatest economic need 
and greatest social need, including LGBTQI+ persons and people with 
HIV, be included in the assessment and evaluation. Other commenters 
recommended that ACL expand the proposed assessment and evaluation to 
include other programs and service areas that impact older adults, 
including supportive services that disseminate information and provide 
access to assistive technology devices through a State assistive 
technology entity.
    A variety of commenters shared concerns about the capacity and 
training needed to develop specific data collection strategies to 
implement

[[Page 11606]]

proposed Sec.  1321.65(b)(3). These commenters generally recommended 
that ACL provide area agencies flexibility surrounding strategies for 
conducting assessment and evaluation.
    Response: ACL appreciates the comments related to assessment and 
evaluation of unmet need. As commenters noted, Sec.  1321.65(b)(3) 
equips area agencies with the data needed to prioritize resources and 
to address need more intentionally within the PSA. In recognition of 
the challenges of collecting statistically valid data, we modify the 
language to read, ``[. . .] objectively collected, and where possible, 
statistically valid, data with evaluative conclusions[.]'' The language 
also broadly includes ``supportive services'' which provides area 
agencies the flexibility to conduct assessments and evaluation of unmet 
need based upon considerations within the PSA. Additionally, Sec.  
1321.65(c) requires area plans to incorporate services which address 
the incidence of hunger, food insecurity and malnutrition, social 
isolation, and physical and mental health conditions. Further, the 
language does not limit the evaluation to programs exclusively funded 
by the Act. Therefore, we are making no further changes to Sec.  
1321.65(b)(3). However, in light of the comments received regarding the 
training and capacity needed to develop specific data collection 
strategies and to implement this section, ACL will provide technical 
assistance regarding best practices and tools for assessing and 
evaluating unmet need within a PSA.
    Comment: Several commenters voiced support for proposed regulatory 
language at Sec.  1321.65(b)(4) which requires public participation, 
specifically from older adults with the greatest economic need and the 
greatest social need, in area plan development. Comments generally 
supported public participation in area plan development though also 
expressed concern about the proposed ``minimum time period'' and 
effective date of the new area plan requirements. Some comments noted 
concern about the proposed requirements' impact on administrative 
capacity.
    Response: ACL appreciates comments related to public participation 
in area plan development and has revised the regulatory language at 
Sec.  1321.65(b)(4) to specify that the public must be given a 
reasonable minimum period of time (at least 30 calendar days, unless a 
waiver has been granted by the State agency). Area agency advisory 
councils should provide area agencies with additional capacity to 
support the solicitation of public participation in area plan 
development through public hearings and related opportunities for 
feedback, especially for older adults with the greatest economic need 
and greatest social need. In light of the feedback received, we will 
offer technical assistance regarding best practices for timely 
solicitation and reporting related to public participation for area 
agencies and their advisory councils.
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 make 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 updates to the regulation. 
For example, we make 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 
amendments to the Act (Pub. L. 106-501). Additional minor revisions are 
included for clarity, such as distinctions in the manner in which Title 
III funds are awarded between single PSA States and States with AAAs, 
with cross-references to language on IFFs, funds distribution plans, 
and provision of direct services by State agencies and AAAs.
    Comment: We received comments of support for including family 
caregivers as a service population.
    Response: We appreciate these comments.
    Comment: We received comment asking us to clarify whether 
information technology systems that support direct service provision 
may be funded with direct services funding under Title III of the Act.
    Response: ACL appreciates this concern and confirms that Title III 
direct services funds may be used for reasonable, allowable, and 
allocable expenses necessary for the provision of direct services, 
subject to appropriate procurement and other policies and procedures. 
This may include information technology systems; devices, such as 
laptop or tablet computers and smartphones; and training of staff and 
volunteers.
    Comment: We received comment expressing concern that the Ombudsman 
program was not listed as an allowable supportive service.
    Response: As proposed, Sec.  1321.85(a) references the twenty-six 
items listed at section 321 of the Act, of which ombudsman services are 
included.\208\ ACL confirms that ombudsman services are an acceptable 
use of funds appropriated under Title III, part B.
---------------------------------------------------------------------------

    \208\ 42 U.S.C. 3030d.
---------------------------------------------------------------------------

    Comment: We received a suggestion to clarify that the IFF 
referenced in Sec.  1321.71(c) is the one set forth at Sec.  1321.49.
    Response: We are grateful to commenters for noting this and correct 
the provision to read ``[. . .] as set forth in Sec.  1321.49.''
Sec.  1321.73 Policies and Procedures
    The provisions contained in Sec.  1321.65 of the existing 
regulation (Responsibilities of service providers under area plans) are 
redesignated and revised in part here as Sec.  1321.73 and Sec.  
1321.79. Revised Sec.  1321.73 sets forth requirements to ensure AAAs 
and local service providers develop and implement policies and 
procedures to meet requirements set by State agency policies and 
procedures, in accordance with Sec.  1321.9. Accordingly, we move the 
requirements previously set forth in (b)-(g) to other sections. We also 
specify that the State agency and AAAs must develop monitoring 
processes, the results of which are strongly encouraged to be made 
available to the public. Doing so may be one way to ensure 
accountability and stewardship of public funds, as required by the Act.
    Comment: We received comments supporting this provision, as well as 
requesting clarity on the expectations for an ``independent qualitative 
and quantitative monitoring process.'' We received other comments 
requesting clarification on whether assessments and assessment policies 
must be made available to the public. Other comments requested 
development of a core set of services to be provided by all AAAs with 
standardized quality measures.
    Response: ACL expects that the State agency and AAAs will conduct 
qualitative and quantitative monitoring of the programs and services 
funded under the Act. Use of funds provided for State and area plan 
administration for such monitoring is appropriate. ACL acknowledges the 
wide range of circumstances and resources for conducting monitoring and 
determining independence of those conducting monitoring. We believe 
this provision strikes the appropriate balance between providing 
sufficient guidance to State agencies and AAAs for implementation while 
maintaining flexibility to respond to local needs and circumstances. 
This includes determinations regarding whether to make quality 
monitoring and

[[Page 11607]]

measurement results available to the public. ACL is available to 
provide technical assistance on these topics.
    Title III of the Act contains certain core required services and 
standards (such as the provision of meals that meet mandated dietary 
guidelines in accordance with requirements of Title III-C of the Act 
and the provision of evidence-based health promotion programs with 
Title III-D funds; reporting standards and requirements; establishment 
by the State agency of a minimum proportion of funds that will be spent 
on access services, in-home supportive services, and legal assistance; 
prohibition against means testing; and voluntary contribution 
requirements, etc.). At the same time, the Act provides latitude to 
State agencies to determine how best to implement the Act in order to 
respond to local needs and circumstances. The State agency may also, in 
turn, offer such flexibility to AAAs. Conditions can vary from one 
State to another and from one region of a State to another, and State 
agencies also are required, and are in the best position, to monitor 
the quality and effectiveness of services provided under the Act. ACL 
believes that the Act and this final rule strike an appropriate balance 
between required services and standards and flexibilities offered to 
State agencies in implementation of the Act. ACL declines to impose 
requirements beyond what is contemplated by the Act regarding required 
services and standards.
    Comment: We received various comments requesting improvements in 
services, such as meal presentation.
    Response: ACL recognizes the importance of meals and other services 
provided under the Act being appealing to participants. Services must 
be person-centered, as set forth in Sec.  1321.77. Additionally, we 
expect that feedback from service participants will be solicited and 
used to the greatest extent possible in the ongoing provision of 
services as set forth in Sec.  1321.73(c). To further clarify the 
importance of the participant experience, we have added ``[. . .] and 
preferences,'' to this provision under the expectations for monitoring 
participant needs.
Sec.  1321.75 Confidentiality and Disclosure of Information
    Section 1321.75 reorganizes and redesignates existing Sec.  
1321.51. The revised section sets forth 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 revisions will enhance the 
protections afforded to OAA participants. Revised Sec.  1321.75 also 
adds ``family caregivers'' as a service population under the Act to 
reflect the 2000 amendments to the Act (Pub. L. 106-501).
    We 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 services to 
reveal any information protected under the provisions in 45 CFR part 
1324, subpart A. Similarly, State agencies, AAAs, and others subject to 
this provision shall 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.\209\
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    \209\ Model Rules of Professional Conduct: Rule 1.6 
Confidentiality of Information, The Am. Bar Assn. (1983), https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct.
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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 services, including the right to confidentiality of their 
records. We require that the policies and procedures comply with all 
applicable Federal requirements. The State 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.
    Section 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. The final rule also allows disclosure for program 
monitoring and evaluation by authorized Federal, State, or local 
monitoring agencies. State and area agencies that are covered entities 
under the Health Insurance Portability and Accountability Act of 1996 
(HIPAA) \210\ are also required to disclose records to the Secretary 
for the purpose of assessing compliance with the HIPAA Rules.\211\ 
Under the revised 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.
---------------------------------------------------------------------------

    \210\ Public Law 104-191; 110 Stat. 1936.
    \211\ 45 CFR 160.310.
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    Comment: We received a comment encouraging organizations to abide 
by Tribal data sovereignty policies.
    Response: ACL appreciates this comment and encourages organizations 
to coordinate and to abide by Tribal data sovereignty policies where 
appropriate. In response to this comment, we have added a statement at 
Sec.  1321.75(f) that State agencies are encouraged to consult with 
Tribes regarding any Tribal data sovereignty expectations that may 
apply.
    Comment: We received comments expressing support for inclusion-
focused language and highlighting the importance of protecting PII and 
personal health information. Another commenter requested more guidance 
regarding criteria for the definitions, including reporting 
requirements. Other commenters responded to ACL's request for comment 
on whether ACL sufficiently set forth exceptions to OAA confidentiality 
requirements, offering strong support of the new language in (b), 
including that the language helps clarify the Ombudsman's obligation to 
protect program records and not disclose them to any State agency, area 
agency, or auditing agency.
    Response: ACL is committed to the protection of confidential 
information collected in the provision of services under the Act and 
believes this provision will reduce confusion, including regarding the 
Ombudsman program. In recognition of these comments, ACL notes that 
Sec.  1321.9(b) states that, ``[P]olicies and procedures are aligned 
with periodic data collection and reporting requirements, including 
ensuring service and unit definitions are consistent with definitions 
set forth in these regulations, policy guidance, and other information 
developed by the Assistant Secretary for Aging.'' ACL anticipates 
providing training and technical assistance upon promulgation of the 
final rule to support effective implementation of these provisions. We 
believe that State agencies should be allowed to place restrictions on 
information sharing when necessary and appropriate, and this final rule 
provides that discretion.
    Comment: One commenter noted that expressly including HIPAA in this 
provision may cause confusion and might imply that all OAA-funded 
activities are implicated under that law.
    Response: ACL appreciates this comment. To avoid confusion, we have 
removed the reference to HIPAA and have clarified that State agencies' 
policies and procedures must comply with all applicable Federal

[[Page 11608]]

requirements. However, we note that it is increasingly common for OAA 
recipients to be engaged in activities that make them HIPAA-covered 
entities and we encourage grantees and subrecipients to be aware of any 
associated legal obligations.
Sec.  1321.79 Responsibilities of Service Providers Under State and 
Area Plans
    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 made 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 encourage providers to offer self-directed 
services to the extent feasible and acknowledge service provider 
responsibility to comply with local adult protective services (APS) 
requirements, as appropriate. The final rule sets forth that this 
provision applies 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 PSA 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.
    Comment: We received comment questioning the provisions at Sec.  
1321.79(d) allowing for sharing of information with local APS without 
the consent of the older person or their legal representative, 
especially for legal assistance and ombudsman services.
    Response: We appreciate this comment and have clarified Sec.  
1321.79(d) to state, ``[. . .] in accordance with local adult 
protective services requirements, except as set forth at Sec.  1321.93, 
part 1324, subpart A, and where appropriate, bring to the attention 
of[.]''
    Comment: We received other comments discussing importance of 
sharing information for purposes of program analysis, research, and 
other worthwhile endeavors. Other commenters provided program 
management and implementation recommendations regarding this provision.
    Response: We appreciate these comments and decline to make further 
changes to this provision. We intend to address other suggestions and 
requests for clarification through technical assistance.
Sec.  1321.83 Client and Service Priority
    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 PHE. 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.
    Section 1321.83 clarifies that entities may prioritize services and 
that they have flexibility to set their own policies in this regard. It 
also clarifies that State agencies are responsible for setting services 
priorities, but may establish policies and procedures to grant AAAs 
and/or service providers the discretion to set service priorities at 
the local level. We also include revisions to this provision to account 
for 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 amendments to the Act (Pub. L. 
106-501).
    Comment: Some commenters expressed support of this provision. 
Others stated confusion regarding the priorities proposed in (c) of 
this provision.
    Response: We appreciate these comments. To reflect that service to 
older relative caregivers is at the option of the State agency and/or a 
AAA, we have replaced the word ``When'' in Sec.  1321.83(c)(3) with 
``If'' for clarity. Given limited availability of resources, service to 
older relative caregivers is not required by the Act. However, in this 
provision we clarify that if older relative caregivers are to be 
served, older relative caregivers of those with severe disabilities are 
to be given priority.
    Comment: Some commenters questioned whether funds for the Ombudsman 
program provided under Title III, part B are subject to the 
requirements at Sec.  1321.83(b).
    Response: We appreciate this comment and have revised Sec.  
1321.83(b) to read, ``[. . .] services under Title III, parts B (except 
for Ombudsman program services which are subject to provisions at part 
1324), C, and D[.]''
    Comment: We received other suggestions, program management 
recommendations, and implementation questions regarding this provision.
    Response: We decline to make further changes to this provision and 
intend to address other suggestions and requests for clarification 
through sub-regulatory guidance and technical assistance.
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 
modifying Sec.  1321.93 to better reflect the purpose of the Act, 
including the application of section 101 \212\ 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), 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.'' \213\ Legal assistance programs funded 
under Title III, part 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) by 
serving the needs of those with greatest economic need or greatest 
social need, including, historically underrepresented, and underserved 
populations, such as minority older individuals, 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.\214\
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    \212\ 42 U.S.C. 3001.
    \213\ Id. section 3001(10).
    \214\ 42 U.S.C. 3002(23) and (24).
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    ACL intends to offer technical assistance, pursuant to section 
202(a)(6) of the Act,\215\ to State agencies, 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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    \215\ 42 U.S.C. 3012(a)(6).

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[[Page 11609]]

    The final rule combines 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 
include a technical correction to change the reference to statutory 
language in section (a) of the prior regulation from section 307(a)(15) 
\216\ to 307(a)(11),\217\ which sets forth State plan requirements for 
legal assistance. Section 307(a)(15) sets forth requirements for 
serving older people with LEP.\218\
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    \216\ 42 U.S.C. 3027(a)(15).
    \217\ Id. section 3027(a)(11).
    \218\ Id. section 3027(a)(15).
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    Section 1321.93(a) provides a general definition of legal 
assistance based on the definition in section 102(33) of the Act.\219\ 
Section 1321.93(b) sets forth the requirements for the State agency to 
add clarity about its responsibilities. The State agency 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 agency 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 (LSC). The State agency 
is also obligated to provide advice, training, and technical assistance 
support for the provision of legal assistance as provided in revised 
Sec.  1321.93 and section 420(a)(1) of the Act.\220\ As part of its 
oversight role, the State agency must ensure that the statutorily 
required contractual awards by AAAs to legal assistance providers meet 
the requirements of Sec.  1321.93(c).
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    \219\ 42 U.S.C. 3002(33).
    \220\ 42 U.S.C. 3032i(a)(1).
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    Section 1321.93(c) sets forth the requirements for the AAA 
regarding legal assistance. Similar to the State agency requirement to 
designate a minimum percentage of Title III, part B funds to be 
directed toward 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 final 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(e) 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 areas of law given priority in 
section 307(a)(11)(E) of the Act.\221\ 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 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. Regarding expertise around alternatives to 
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.
---------------------------------------------------------------------------

    \221\ 42 U.S.C. 3027(a)(11)(E).
---------------------------------------------------------------------------

    The other area of focus is guardianship and alternatives to 
guardianship. Section 307(a)(11)(E) of the Act also states: ``[. . .] 
area agencies on aging will give priority to legal assistance related 
to [. . .] defense of guardianship[.]'' \222\ We interpret this 
provision to include advice to and representation of older individuals 
at risk of guardianship to oppose appointment of a guardian and 
representation to seek revocation of or limitations on 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.
---------------------------------------------------------------------------

    \222\ Id.
---------------------------------------------------------------------------

    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) also states Title III, part 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[.]'' \223\ The 
language in section 321(a)(6)(B)(ii) \224\ and the language in section 
307(a)(11)(E) \225\ 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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    \223\ 42 U.S.C. 3030d(a)(6)(B)(ii).
    \224\ Id.
    \225\ 42 U.S.C. 3027(a)(11)(E).
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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. 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' basic rights 
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.

[[Page 11610]]

    The final rule includes the statutory exception in the regulations, 
and it will 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 many States have established, through bar associations 
and other pro bono services, or through hospitals, nursing homes, APS, 
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 APS would not satisfy our interpretation of the limited 
applicability of the exception. These parties have access to counsel 
for representation in petitioning for guardianship.
    Section 1321.93(d) sets forth the requirements for selecting 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 final 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. A AAA that contracted 
with such a provider would also not meet their obligations under 
revised Sec.  1321.93(c) and under the Act.
    We describe 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.\226\ Legal assistance 
programs are required to collaborate with other programs that address 
and protect elder rights. We encourage coordination and collaboration 
with APS programs, State Health Insurance Assistance Programs, 
Protection and Advocacy systems, AAAs and ADRC 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 LSC grantee entities to coordinate their 
services with existing LSC 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 these required practices.
---------------------------------------------------------------------------

    \226\ 42 U.S.C. 3058g(h)(8).
---------------------------------------------------------------------------

    As indicated in 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 requesting contributions from legal assistance clients before 
or during representation. Only after the conclusion of representation 
may a request for a contribution be made. If a client chooses to 
voluntarily contribute, the proceeds must be applied to expanding the 
service category.
    The final 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 final 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 final 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 final 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.
    Comment: Proposed Sec.  1321.93(a) provides the general definition 
for the provision of legal assistance under the Act. We received 
several comments asking us to amend proposed Sec.  1321.93(a)(2), where 
we define legal

[[Page 11611]]

assistance as ``[. . .] legal advice and/or representation provided by 
an attorney[.]'' \227\ The commenters pointed out that non-lawyers, 
including paralegals and law students, may engage in legal advice and/
or even legal representation in certain circumstances, and that State 
law may permit such representation.
---------------------------------------------------------------------------

    \227\ 88 FR 39628 (June 16, 2023).
---------------------------------------------------------------------------

    Response: ACL appreciates these comments and notes that Sec.  
1321.93(a)(2) currently states that ``[l]egal assistance may include, 
to the extent feasible, counseling, or other appropriate assistance by 
a paralegal or law student under the direct supervision of an attorney, 
and counseling or representation by a non-lawyer as permitted by law.'' 
Additionally, we acknowledge such representation in Sec.  
1321.93(b)(1)(vi), (e)(2)(v) where we require non-lawyer personnel 
under the supervision of attorneys to adhere to the same Rules of 
Professional Conduct as an attorney. We understand the important role 
that paralegals and law students and other non-legal professionals play 
in providing legal representation to older people. Our goal is to 
assure high quality legal representation by requiring such 
professionals to be supervised by attorneys and to be bound by the same 
rules of conduct, as provided in the Older Americans Act. One commenter 
requested that we provide more detail about the Rules of Professional 
Conduct established by State judicial systems and bar associations. We 
decline to do so as this is beyond the scope of these regulations.
    AAA information and referral services, State Health Insurance 
Assistance Programs, ADRCs, Long-Term Care Ombudsman Programs, and 
Centers for Independent Living (CIL) may work with legal assistance 
programs to provide information, education, and referral services. One 
commenter suggested that where a particular service of a legal nature 
might be able to be facilitated through a non-legal provider, a AAA 
should be allowed to do so, provided its actions are documented, 
accountable, and demonstrate that the AAA has made the best effort to 
provide the most comprehensive legal services. We believe our 
regulations encourage collaboration, especially in areas of education, 
cross-training of professionals and referrals to appropriate services 
and allowing older individuals to decide where and how to receive the 
services they want or need. AAAs may want to consider maintaining 
documentation of such collaboration as a best practice. However, as we 
note below, the Act requires that every AAA make an assessment that the 
selected legal assistance program is the entity best able to provide 
legal assistance services. Many legal interventions related to the OAA-
designated priority case types require the full representational 
services of attorneys and non-lawyers under the supervision of 
attorneys to appropriately redress the legal problems experienced by 
older adults, and may not be provided by community partners, in 
accordance with applicable Rules of Professional Conduct. An example is 
representation opposing guardianship in judicial proceedings of an 
older adult who has been proposed for guardianship.
    Comment: Another commenter raised concerns about the ability to 
continue to use pro bono attorneys.
    Response: Section 307(a)(11) of the Act specifically requires 
contracts for legal assistance services to encourage coordination with 
the private bar for pro bono or reduced fee services for older 
Americans.\228\ Section 1321.93(e)(2)(iv) requires, as a standard for 
contracting, that the selected legal assistance provider undertake 
reasonable efforts to engage the private bar to furnish services on a 
pro bono or reduced fee basis. While pro bono attorneys are an 
important resource to increase the amount of representation for OAA 
clients, we remind State agencies and AAAs that section 307(a)(2)(C) of 
the Act also requires State agencies to designate a minimum proportion 
of Title III, part B funds for direct legal services.\229\ See also 
Sec.  1321.93(b)(2), (c)(1) of these regulations. AAAs that receive 
these allotments must dedicate this amount, the ``adequate proportion'' 
per section 306(a)(2)(C) of the Act, to contracting for the provision 
of legal assistance.\230\ A AAA that relies only on pro bono attorneys 
to provide legal assistance would not meet the requirement to fund 
legal assistance programs. Additionally, Sec.  1321.93(d)(1), standards 
for legal assistance provider selection, requires the providers to 
exhibit the capacity to retain staff with requisite expertise. A 
program that utilizes only pro bono attorneys does not meet this 
requirement.
---------------------------------------------------------------------------

    \228\ 42 U.S.C. 3027(a)(11).
    \229\ Id. section 3027(a)(2)(C).
    \230\ Id. section 3026(a)(2)(C).
---------------------------------------------------------------------------

    Comment: As stated above, proposed Sec.  1321.93(b)(2) and (c)(1) 
require AAAs or State agencies in a State with a single planning area 
to establish and spend a minimum proportion of Title III, part B funds 
for legal assistance. We received comments concerning the variation in 
the amount of funding set aside by each State agency, making it 
difficult for legal assistance providers to represent those with the 
greatest economic and greatest social needs across the range of 
priority areas set forth in the OAA and in the regulations. Several 
commenters discussed the need for adequate funding, not minimum 
funding. Commenters suggested that the regulations provide clear 
guidance on how States should establish an adequate minimum proportion 
of funding for legal assistance to ensure a reasonable number of full-
time attorneys are supported across the State.
    Response: In this final rule, we require adequate minimum funding 
to maintain a robust legal assistance program as required by the OAA. 
We decline to provide detailed processes for State agencies in this 
regulation, given the variations and size of the older population in 
each State, and because we do not provide similar requirements in the 
rule for the proportion of funding to go to other services. However, we 
will provide technical assistance to State agencies on how to achieve 
the goal of adequate minimum funding for legal assistance. We also 
received comments about the lack of sufficient funding for legal 
assistance programs. We thank the commenters for these observations; 
however, such comments are beyond the scope of this regulation.
    Comment: Commenters supported the requirements for formalized 
agreements for coordination and collaboration among other aging 
providers, citing work with long-term care ombudsmen, APS programs, 
Senior Health Insurance Programs (SHIPs), law enforcement, States 
Attorneys, CILs, and others. They particularly agreed with Sec.  
1321.93(b)(1), which lays out requirements for legal services. One 
commenter, however, asked that we require OAA funds to be used as a 
last resort to provide services to older people so that OAA funds could 
not be used if the provider had LSC funding available.
    Response: We decline to make the change. Section 307(a)(11)(D) of 
the OAA provides that ``to the extent practicable'' OAA-supported legal 
assistance will be provided ``in addition to any legal assistance for 
older individuals being furnished with funds from sources other than 
this Act[.]'' \231\ This provision recognizes the flexibilities needed 
to assure adequate and high-quality legal assistance is available to 
all older Americans with economic or social need. It does not set up a 
standard of OAA legal assistance

[[Page 11612]]

as ``a last resort.'' Moreover, the same provision of the Act goes on 
to require, ``that reasonable efforts will be made to maintain existing 
levels of legal assistance for older individuals;'' which is consistent 
with many comments we received. Finally, LSC funding has more 
restrictive eligibility criteria, and different priorities along with 
additional restrictions. We agree, instead, with a legal services 
provider who described the importance of OAA Title III, part B funding 
for legal aid and noted how such funding enabled them to double the 
number of older clients served. The commenter appreciated deference to 
the legal assistance program in how to use funds for each case and in 
coordination with other funding. We thank commenters for these 
comments.
---------------------------------------------------------------------------

    \231\ Id. section 3027(a)(11)(D).
---------------------------------------------------------------------------

    Comment: ACL sets forth in Sec.  1321.93(d) that the selected legal 
assistance provider must retain staff with expertise in specific areas 
of law affecting older persons with economic or social need, including 
public benefits, resident rights, and alternatives to 
institutionalization. ACL also requires the providers to demonstrate 
expertise in specific areas of law given priority in the OAA, including 
income and public entitlement benefits, health care, long-term care, 
nutrition, housing, utilities, protectives services, abuse, neglect, 
age discrimination, and defense of guardianship.
    Many commenters agreed with the list of statutorily mandated 
substantive areas in which legal assistance providers should be 
knowledgeable. One commenter suggested we amend Sec.  1321.93(d)(1) to 
include all the legal priority areas in section 307(a)(11)(E) of the 
Act, rather than the three priority areas listed.\232\ Other commenters 
raised questions about the list of statutorily mandated substantive 
areas. These commenters suggest that AAAs should consider the greatest 
needs of those in their community, or that it may be hard to find 
attorneys with requisite knowledge in rural areas. One commenter asked 
that we add consumer law as a priority to the specific areas of law, 
consistent with the goal of helping older adults who desire to age in 
their own home. Another commenter suggested we add pensions as a 
priority area. Other commenters raised concerns that, by further 
defining defense of guardianship in Sec.  1321.93(d)(2)(i), ACL 
intended that priority be given to those cases over other priority 
areas.
---------------------------------------------------------------------------

    \232\ Id. section 3027(a)(11)(E).
---------------------------------------------------------------------------

    Response: We appreciate the comment regarding Sec.  1321.93(d)(1) 
and have amended the subsection as requested.
    The list of substantive focus areas in Sec.  1391.93(d)(2) sets 
forth the priority legal areas in section 307(a)(11)(E) of the OAA; the 
proposed rule did not expand upon these areas as one commenter 
stated.\233\ However, within each community the AAA-contracted legal 
assistance provider may determine, in communication with the State 
agency, AAA, and others within their community, how to focus on 
implementing the required case priorities to meet the needs of older 
individuals with economic or social need within their community. 
Moreover, the balancing of priorities could change over time as 
circumstances evolve. For example, a legal assistance provider in a 
community where many older people are losing their Medicaid because of 
the Medicaid renewal process may focus on Medicaid fair hearings. In 
another community where many older people are sued for medical debt, 
the provider may decide to prioritize representation in those cases. 
Still another community may focus on a growing trend of evictions and 
homelessness among older adults, representing individuals facing 
eviction and fighting homelessness, while another community could be on 
an Indian reservation in a very isolated area with legal issues related 
to other federal laws. Our objective is that, as the Act requires, the 
legal assistance providers contracted by AAAs have expertise in 
specified areas of importance to older people with greatest economic or 
greatest social need who receive services under the OAA. Most private 
practitioners of law for example, generally do not have such expertise. 
We note, also, that ACL provides technical assistance to legal 
assistance programs, as well as to AAAs and ADRCs, the Ombudsman 
program, general legal services programs, and disability programs, on 
legal problems included in the priority areas, including assistance in 
representation of individuals in administrative and court hearings. The 
technical assistance can provide support to help ensure high quality 
representation in the areas of focus under the OAA. Finally, 
particularly in rural areas, for services that cannot be provided by 
non-legal providers, the AAA may be able to facilitate delivery of the 
required legal assistance through arrangements with legal assistance 
programs in other parts of the State, using available technological 
solutions to fulfill the requirements of the Act. Technical assistance 
has been and will continue to be available from ACL to assist legal 
assistance providers, AAAs, and collaborating partners in rural areas. 
Legal assistance programs are encouraged to develop and strategically 
disseminate self-help materials, in areas where appropriate, developed 
by knowledgeable and respected expert consumer-facing organizations. 
Additionally, as noted in several comments and discussed above, State 
law may permit a nonlawyer to engage in counseling or representation in 
certain circumstances.
---------------------------------------------------------------------------

    \233\ Id.
---------------------------------------------------------------------------

    In response to these comments, we have modified Sec.  1321.93(d)(2) 
as follows. We have added ``consumer law'' to the list of legal areas 
in which legal assistance providers demonstrate expertise. Consumer law 
issues can fall within the statutory case priority categories related 
to income, housing, health care, long-term care, and abuse, for 
example. We have not added ``pensions,'' as requested by a commenter, 
since pensions are income, which is already included. We note that ACL 
funds pension counseling services in accordance with section 215 of the 
Act.\234\ We have also corrected the numbering of provisions of Sec.  
1321.93(d)(3) though (5). We have also revised Sec.  1321.93(e)(2)(i), 
which requires the selected legal assistance provider to maintain 
expertise in the specific areas described in Sec.  1321.93(d)(2). We 
have also clarified, as noted above, that legal assistance providers 
may prioritize their work from among the focus areas identified in the 
regulations based on the needs of the community they serve.
---------------------------------------------------------------------------

    \234\ 42 U.S.C. 3020e-1.
---------------------------------------------------------------------------

    Comment: In Sec.  1321.93(d)(2)(i) we define what is meant by the 
term ``defense of guardianship.'' Several commenters were confused by 
the term ``defense of guardianship,'' and interpreted it as being 
inconsistent with the intent of the proposed rule to promote self-
determination and alternatives to guardianship. One commenter suggested 
changing the language to defense against guardianship, while another 
suggested using the funding to promote guardianship prevention 
measures. Another commenter suggested we clarify that the term 
guardianship includes conservatorship and other similar fiduciary 
proceedings analogous to guardianship. Several commenters suggested we 
update the terms ``proposed protected persons'' and ``protected 
persons'' to ``older individual at risk of guardianship'' and ``older 
individual subject to guardianship'' as more in keeping with the 
Uniform Guardianship,

[[Page 11613]]

Conservatorship, and Other Protective Arrangements Act (UGCOPAA).\235\
---------------------------------------------------------------------------

    \235\ Nat'l. Conference of Comm'rs. on Unif. State Laws, Uniform 
Guardianship, Conservatorship, and Other Protective Arrangements Act 
(2017), https://www.uniformlaws.org/committees/community-home?CommunityKey=2eba8654-8871-4905-ad38-aabbd573911c.
---------------------------------------------------------------------------

    Response: We reiterate that we use ``defense of guardianship'' in 
these regulations because it is the language used in section 
307(a)(11)(E) of the OAA.\236\ We also agree that, unlike the other 
priority areas of law set forth in Sec.  1321.93(d)(2), the term is 
very confusing. That is why while we will keep the term to retain 
consistency with the Act, we have chosen to include a separate 
subsection, Sec.  1321.93(d)(2)(i), to define defense of guardianship. 
Our definition includes what commenters described as guardianship 
prevention, including execution of advance directives and supportive 
decision arrangements as chosen by older individuals. We agree with the 
commenter that the term guardianship includes conservatorship and other 
similar fiduciary proceedings analogous to guardianship. We have also 
revised Sec.  1321.93(d)(2)(i) and replace ``proposed protected 
persons'' and ``protected persons'' with ``older individuals at risk of 
guardianship'' and ``older individuals subject to guardianship.'' We 
have made a technical correction at Sec.  1321.93(e)(2)(i) to correct 
the cross-reference from ``paragraph (c)(1)(ii)(B)(1)(ii)'' to 
``paragraph (d)(1), (2).''
---------------------------------------------------------------------------

    \236\ 42 U.S.C. 3027(a)(11)(E).
---------------------------------------------------------------------------

    Comment: Several commenters asked us to go beyond the proposed 
definition of defense of guardianship. For example, they asked that we 
require someone's beliefs about guardianship be memorialized in their 
person-centered plan. Other commenters asked that we require the person 
subject to guardianship be involved to the maximum extent possible. 
Others asked that we require all people subject to guardianship 
proceedings be represented by an attorney.
    Response: ACL is very supportive of person-centered planning. In 
Sec.  1321.77(b), we give older adults and family caregivers an 
opportunity to develop a person-centered plan that discusses the 
services they may receive under the Act, where appropriate. Service 
providers who assist in developing these plans may want to include the 
view of older adults and family caregivers on guardianship and whether 
they have alternatives in place. Person-centered plans as developed in 
the context of receipt of certain Medicaid benefits are outside the 
scope of this regulation, as it does not address Medicaid requirements. 
The request to involve the person subject to guardianship to the 
maximum extent possible is consistent with the existing obligations of 
attorneys under Rules of Professional Conduct in representing someone 
who is the subject of a guardianship proceeding or who seeks to modify 
or revoke a guardianship. State law, not Federal law, governs how the 
individual under guardianship will be involved in working with the 
guardian, and accordingly this request is beyond the scope of these 
regulations. We note that attorneys representing persons under 
guardianship retain all the requisite duties of loyalty to the client 
imposed by the ethical obligations of the Rules of Professional Conduct 
of their State. Similarly, State law, not Federal law, governs whether 
the person subject to a guardianship petition is entitled to have an 
attorney appointed to represent them.
    Comment: Another commenter requested that we modify Sec.  
1321.93(d)(2)(i) to require that limitation of guardianship be sought 
both when a guardianship is initially established and in subsequent 
petitions to modify the guardianship. The same commenter recommended 
amending Sec.  1321.93(d)(2)(ii)(A), (B) to reference promoting limited 
guardianship.
    Response: We appreciate the comments and have revised these 
provisions. While attorneys representing persons proposed for and 
subject to guardianship are generally expected to seek diversion from 
and alternatives to guardianship, we recognize and agree that 
limitations on guardianship may be appropriate in certain cases.
    Comment: We received many comments from organizations that 
represent older people or people with disabilities on guardianship 
itself in response to our discussion about the meaning of the term 
``defense of guardianship'' in the proposed rule. All commenters agreed 
that guardianship should be avoided. Some commenters discussed 
alternatives to guardianship, including those referenced in the 
proposed regulations, as discussed above. Others suggested 
complimentary approaches, such as increased education about advance 
planning and expressing each person's preferences. Many discussed the 
role that aging and disability organizations play in representing and 
protecting the interests of older people.
    Regarding our request for comments on the role of legal assistance 
and AAAs in defense of guardianship, one commenter agreed that public 
guardianship is a last resort and that it is critical to have firewalls 
between AAA functions and guardianship functions to avoid COIs or the 
appearance of COIs. The commenter objected, however, to precluding AAAs 
from serving as guardians, particularly for older adults with 
significant barriers to functioning and without other supports.
    Response: We appreciate the concerns raised by the commenter. Our 
regulatory approach is to promote alternatives to guardianship and to 
support limitations on the imposition of guardianship. Our COI 
provisions are designed to prevent conflicts that could arise if a AAA 
receives outside funding to serve as a guardian, while at the same time 
contracting with legal assistance entities that represent people to 
oppose, divert from, or find alternatives to guardianship or who want 
to revoke an existing guardianship. Similar conflicts may arise if a 
Title III, part B legal assistance program is housed in a program 
funded by the LSC, and the LSC program brings a petition for 
guardianship while the OAA-funded component is asked to represent the 
individual over whom the guardianship is sought. Rules of Professional 
Conduct would apply to that conflict, as would standard legal services 
processes for checking conflicts among clients.
    Comment: Several commenters provided examples of when OAA-funded 
legal services programs might appropriately petition for guardianship. 
Examples include petitioning for guardianship over a minor grandchild 
or other relative; or where appealing a Social Security termination or 
reduction may require a decision-maker, yet there is no authorized 
representative on file and the older individual lacks decisional 
capability to consent to the representation; or similarly where there 
is a need to assert rights by appealing Medicaid denials where appeal 
may only be brought by a power of attorney or guardian and there is no 
agent under a power of attorney; preventing eviction or foreclosure; or 
taking action against someone engaged in adult maltreatment. According 
to the commenters, all the examples resulted in an older person 
continuing to serve as primary care giver for a minor; or as a 
caregiver of another older individual endeavoring to retain public 
benefits; to live in the individual's preferred residence; and/or to 
remain in the community. One commenter pointed out that, although pro 
bono attorneys may be willing to file for guardianship, they may feel 
uncomfortable or unknowledgeable about bringing a Medicaid or Social 
Security appeal and may not be equipped to explain to the court why

[[Page 11614]]

the temporary guardianship is needed to appeal the public benefit 
denial. Other commenters said that they petition for guardianship 
because there are no attorneys available to bring the petition in the 
rural area they serve. Several CILs asked that CILs be added to the 
list of entities available to bring guardianship petitions.
    Response: We thank the commenters for their responses. We emphasize 
the imperative of identifying the least restrictive means of pursuing 
rights such as those described above. OAA-funded legal assistance 
providers should consistently strive to avoid guardianship as a remedy 
in these circumstances, unless they can document that no other option 
is available. Additionally, however, we believe that the CILs who asked 
to identify CILs as entities available to bring guardianship petitions 
misunderstood the context of the discussion and therefore, we decline 
to make the change. Petitioning for guardianship is inconsistent with 
the mission of CILs to promote autonomy and self-direction. We intend 
to offer technical assistance to provide additional clarification based 
on the comment responses.
    Comment: Section 1321.93(d)(2)(ii)(A) contains an exception to 
defense of guardianship in limited circumstances involving guardianship 
proceedings of older individuals who seek to become guardians when no 
other alternatives to guardianship are appropriate, and only if other 
adequate representation is unavailable in the proceeding. The exception 
is stated in section 321(a)(6)(B)(ii) of the Act.\237\ In addition to 
the comments discussed above that provide examples of when legal 
assistance providers use this exception, we received comments asking us 
to strengthen the language to ensure the exception is used only in 
limited circumstances. Several commenters said the language could be 
strengthened by requiring providers to document the efforts they made 
to explore less restrictive alternatives, why none of those options 
were appropriate or available, and how the provider determined that no 
other adequate representation was available.
---------------------------------------------------------------------------

    \237\ 42 U.S.C. 3030d(a)(6)(B)(ii).
---------------------------------------------------------------------------

    Response: Many State statutes require this kind of documentation 
from all parties to guardianship proceedings; \238\ we accept the 
comments and have modified the language accordingly. Commenters also 
suggested making the exception to defense of guardianship a separate 
section to clarify what we mean by defense of guardianship. We accept 
these comments as well. Accordingly, we have modified Sec.  
1321.93(d)(2)(ii)(A) to create a new Sec.  1321.93(d)(2)(ii)(C) that 
sets forth the limited circumstances in which a legal assistance 
program may bring a guardianship petition on behalf of an older 
individual, i.e., only if other adequate representation is unavailable; 
and the provider documents the circumstances as described above.
---------------------------------------------------------------------------

    \238\ See e.g. Tex. Estate Code Ann. Sec.  1101.001; Ariz. Rev. 
Stat. Ann. section 14-5303; Wash. Rev. Code Ann. section 11.130.265.
---------------------------------------------------------------------------

    Comment: Section 1321.93(e) establishes standards for contracting 
between AAAs and legal assistance providers. We received comments from 
legal assistance providers that support the provision. They strongly 
supported Sec.  1321.93(e)(3)(i), clarifying that area agencies are 
precluded from requiring a pre-screening to receive legal services or 
from being the sole and exclusive referral pathway for older adults to 
access legal assistance, to avoid creating unnecessary barriers to such 
assistance. They found the provision consistent with the Rules of 
Professional Conduct, as well as a means to avoid potential COI with 
the area agency. Commenters also cited the requirement in Sec.  
1321.93(e)(1)(v) referencing adherence to the Rules of Professional 
Conduct as helpful, particularly when AAAs with which they contract 
want them to provide confidential information about their clients 
without authorization from the client in contravention of the Rules of 
Professional Conduct.
    Regarding OAA-funded legal assistance programs that are located 
within a LSC grantee entity, commenters were particularly appreciative 
of Sec.  1321.93(e)(3)(v)(c). That section enables the Assistant 
Secretary for Aging to exempt additional restrictions on activities and 
client representation that would otherwise be prohibited for legal 
assistance providers housed within a LSC grantee entity. This provision 
implements section 307(a)(11)(A) of the Act.\239\ The commenters noted 
that such restrictions can prevent legal assistance providers from 
advocating for individuals in the greatest social and economic need and 
require assistance in the very areas that the OAA identified as 
priorities.
---------------------------------------------------------------------------

    \239\ 42 U.S.C. 3027(a)(11)(A).
---------------------------------------------------------------------------

    Response: We thank commenters for their comments.
    Comment: Section 1321.93(f) sets out legal assistance provider 
requirements. These requirements include taking reasonable steps to 
ensure meaningful access to legal assistance by older individuals with 
LEP and other communication needs, including providing access to 
interpretation, translation, and auxiliary aids and services. Several 
commenters raised concerns that people who are deaf and rely on 
American Sign Language (ASL) or who rely on Communication Real Time 
Access (CART), as well as people with visual impairments and other 
sensory disabilities, have had difficulties accessing legal assistance.
    Response: We appreciate the concerns raised by these commenters and 
reiterate that the regulations require the legal assistance provider to 
provide the necessary accommodations. We agree with commenters that 
interpretation and translation services must be provided through 
qualified individuals. The use of qualified individuals is particularly 
critical, given the technical nature of discussions about legal rights. 
The use of untrained laypersons for interpretation and translation 
could lead to dangerous or detrimental outcomes, and conflicts with 
civil rights obligations.
    Comment: Section 1321.93(f) also prohibits the use of funds for 
lobbying. Subsection 1321.93(f)(4)(ii)(A)(5) clarifies that the section 
is not intended to prohibit legal assistance providers from testifying 
before a government agency, legislative body, or committee at the 
request of the government agency, legislative body, or committee. One 
commenter asked that we remove the requirement that the legal 
assistance provider may testify when requested to do so by the entity 
before which they propose to testify. The commenter pointed out that 
the legal assistance provider may have important information to share 
and a technical understanding of older adults' experience with the 
issue but may not be able to obtain a timely request from the 
government agency, legislative body, or committee.
    Response: We decline to make the edit, as the language is 
consistent with other requirements for recipients of Federal funding.

B. New Provisions Added To Clarify Responsibilities and Requirements 
Under Grants to State and Community Programs on Aging

    We include the following new provisions to provide direction in 
response to inquiries and feedback received from grantees and other 
interested parties and changes in the provision of services, and to 
clarify requirements under the Act.

[[Page 11615]]

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) of the Act empowers State agencies to 
designate eligible entities as AAAs.\240\ Section 305(b)(5)(C)(i) of 
the Act affords a AAA the right to appeal a State agency's decision to 
revoke its designation including up to the Assistant Secretary for 
Aging.\241\ Per section 305(b)(5)(C)(iv) the Assistant Secretary for 
Aging may affirm or set aside the State agency's decision.\242\ 
Historically, appeals of AAA designation to the Assistant Secretary for 
Aging have been extremely rare.
---------------------------------------------------------------------------

    \240\ 42 U.S.C. 3025(a)(2)(A).
    \241\ Id. section 3025(b)(5)(C)(i).
    \242\ Id. section 3025(b)(5)(C)(iv).
---------------------------------------------------------------------------

    Under new 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 Sec. Sec.  1321.17 and 1321.39. The HHS DAB provides 
impartial, independent review of disputed decisions under more than 60 
statutory provisions. We believe this regulation 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, 
redesignated as Sec. Sec.  1321.31 and 1321.35, address submission of 
amendments to the State plan and notification of State plan or 
amendment approval; however, they lack a process for notification of 
receipt of State plan amendments that are required to be submitted, but 
not approved by the Assistant Secretary for Aging. We include this new 
section to provide for notification of receipt of State plan amendments 
that do not require Assistant Secretary for Aging approval.
Sec.  1321.47 Conflicts of Interest Policies and Procedures for State 
Agencies
    Section 307(a)(7)(B) of the Act directs State agencies to include 
assurances against COI in their State plans.\243\ As explained earlier, 
Sec.  1321.3 defines 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. State agencies may wish to identify other 
COI based on State law or other requirements.
---------------------------------------------------------------------------

    \243\ 42 U.S.C. 3027(a)(7)(B).
---------------------------------------------------------------------------

    Section 1321.47 requires State agencies to have policies and 
procedures that establish mechanisms to avoid both actual and perceived 
COI and to identify, remove, and remedy any existing COI at 
organizational and individual levels. They include providing a 
mechanism for informing relevant parties of COI responsibilities and 
identifying and addressing conflicts when they arise. 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 solutions that preserve the 
integrity of the mission of the Act.
    Comment: Many commenters supported proposed Sec.  1321.47 and 
appreciated the clarification related to COI for OAA grantees and 
subrecipients. Several commenters provided suggestions to strengthen 
the rule. One commenter suggested requiring provisions related to COI 
in State plans on aging. Another commenter suggested establishing an 
appeals process for entities should a State agency identify a COI. A 
commenter suggested requiring training for individuals, including 
leadership, on COI. One commenter recommended a two-year timeframe for 
review and implementation of the rule's COI provisions.
    Response: We appreciate these suggestions for strengthening the 
rule. Section 307(a)(7)(B) of the Act requires assurances related to 
COI in State plans, including that no officer, employee, or other 
representative of the State or area agency is subject to a COI 
prohibited under this Act.\244\ We decline to require additional COI 
provisions in State plans in this regulation because such provisions, 
if determined appropriate by the State agency, are best determined at 
the State level. State agencies may include such provisions in their 
State plans if they believe it will assist in implementation and 
enforcement of the rule's COI requirements. We likewise decline to 
require the establishment of an appeals process. Such a process, if 
determined appropriate by the State agency, is best developed at the 
State level. We agree training for staff on COI is necessary and 
appropriately incorporated in the training required by Sec.  1321.5(a). 
We intend to provide State agencies with technical assistance on this 
final rule's COI provisions. We believe the timeframe specified for 
implementation of the rule is sufficient for State agencies to come 
into compliance.
---------------------------------------------------------------------------

    \244\ Id. section 3027(a)(7)(B).
---------------------------------------------------------------------------

    Comment: A few commenters pointed out the potential for COI when a 
State agency or a AAA is lobbied by private interest or establishes 
contracts and commercial relationships with private entities.
    Response: We agree that COI may arise in the context of contracts 
and commercial relationships with private entities. As detailed in the 
discussion of Sec.  1321.9(c)(2), a State agency should consider the 
potential for a heightened risk of COI when developing policies and 
procedures for approving such agreements.\245\ ACL will continue to 
provide sub-regulatory guidance and technical assistance related to COI 
in contracts and commercial relationships for grantees and 
subrecipients.
---------------------------------------------------------------------------

    \245\ 88 FR 39572 (June 16, 2023).
---------------------------------------------------------------------------

    Comment: A few commenters sought to clarify that it may not be a 
COI for a State agency to operate both OAA programs and APS or a public 
guardianship program, for example. A commenter noted that such 
arrangements strengthen the ability of an agency to improve the lives 
of older adults and influence policy. Comments reiterated that this 
situation is not uncommon and requested clarity as to whether specific 
scenarios represent COI that cannot be mitigated. We received several 
comments that described how the commenters mitigated the potential COI 
with guardianship programs. For example, they only served as guardian 
of last resort; promoted the use of alternatives to guardianship; 
provided for defense of guardianship through another funding source; 
and generally adhered to the ethical standards for guardians developed 
by the National Guardianship Association.
    Response: Whether a COI exists due to co-location of APS and 
guardianship programs, and whether it can be mitigated, is fact-
dependent. This provision does not suggest that certain programs may 
not be located in State agencies. Rather, State agencies should 
carefully evaluate the potential for COI to arise when programs are co-
located and should create and maintain robust

[[Page 11616]]

polices, firewalls, monitoring, and remediation as necessary. To 
address concerns, however, we have amended Sec.  1321.47 to require the 
State agency to document COI mitigation strategies, as necessary and 
appropriate, when a State agency or Title III program operates an APS 
or guardianship program.
    Comment: A few commenters requested eliminated or revising Sec.  
1321.47(a)(3), which requires ``robust monitoring and oversight.'' 
Commenters asserted that such monitoring would be too costly and 
burdensome to implement. Another commenter suggested that State plans 
on aging include provisions for the State agency to perform continual 
monitoring for COI.
    Response: We appreciate the comments. Given the importance of this 
provision to ensuring access to vital services, we decline to make 
changes.
    Comment: One commenter suggests that ACL add definitions for 
``financial interest'' and ``agent of the State'' or give State 
agencies the discretion to adopt a State law or common definition. The 
commenter also asks whether ``agent of the State'' includes a AAA, 
employees of a AAA, and AAA providers.
    Response: As with all terms not defined in the Act or in this final 
rule, State agencies may use reasonable definitions for ``financial 
interest'' or ``agent of the State'' or any other term the State agency 
chooses to define (or chooses not to define) including State law or 
common definitions.
Sec.  1321.53 State Agency Title III and Title VI Coordination 
Responsibilities
    New 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),\246\ 307(a)(21)(A),\247\ 
614(a)(11),\248\ and 624(a)(3) \249\ of the Act. We received inquiries 
and feedback from grantees and other interested parties 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 clarify that 
coordination is required under the Act and that all entities are 
responsible for coordination, including State agencies, AAAs, service 
providers, and Title VI grantees, and that State agencies must have 
specific policies and procedures to guide coordination efforts within 
the State.
---------------------------------------------------------------------------

    \246\ 42 U.S.C. 3026(a)(11)(B).
    \247\ 42 U.S.C. 3027(a)(21)(A).
    \248\ 42 U.S.C. 3057e(a)(11).
    \249\ 42 U.S.C. 3057j(a)(3).
---------------------------------------------------------------------------

    Comment: Commenters overwhelmingly expressed support for 
coordination between Title III and Title VI programs. Comments 
expressed concern regarding the lack of coordination with Title VI 
grantees by State agencies, low amounts of funding provided under Title 
III to Tribes, and lack of technical assistance on how Tribes can apply 
for available Title III funds. One commenter recommended that any 
entities involved in provision of services under Title III of the Act 
develop their procedures for outreach and coordination with the 
relevant Title VI program director. Another commenter expressed they 
thought the proposed language regarding coordination was too 
permissive. We received a comment recommending specifying that services 
should be delivered in a culturally appropriate and trauma-informed 
manner. Some commenters also requested technical assistance for State 
agencies on their roles and responsibilities. We also received other 
suggestions, program management recommendations, and implementation 
questions regarding this provision, including regarding examples and 
best practices for coordination.
    Response: To make clear the responsibilities of State agencies 
under the Act, explicit expectations for coordination between Title III 
and Title VI programs are specified in this rule. The provision at 
Sec.  1321.53 is complementary with the provisions for AAAs and service 
providers under Title III of the Act as set forth at Sec.  1321.69 
(Area agency on aging Title III and Title VI coordination 
responsibilities) and Sec.  1321.95 (Service provider Title III and 
Title VI coordination responsibilities), as well as for Title VI 
grantees under the Act as set forth at Sec.  1322.31 (Title VI and 
Title III coordination). This rule makes clear that all entities are 
responsible for coordination, including State agencies, AAAs, service 
providers, and Title VI grantees. Based on the comments received, we 
revised each provision to use consistent language, where appropriate. 
We explain the changes made in the following paragraphs.
    We have reordered the opening paragraph in Sec.  1321.53 as Sec.  
1321.53(a) and have reordered the subsequent paragraphs accordingly. 
ACL also recognizes the variability of local circumstances, resources, 
and needs. We appreciate the comment recommending that Title III 
entities work with the relevant Title VI program directors in 
developing their policies and procedures regarding coordination. We 
have further revised the language at reorganized Sec.  1321.53(a) to 
read, ``For States where there are Title VI programs, the State 
agency's policies and procedures, developed in coordination with the 
relevant Title VI program director(s) as set forth in Sec.  1322.13(a), 
must explain how the State's aging network, including area agencies and 
service providers, will coordinate with Title VI programs to ensure 
compliance with sections 306(a)(11)(B) (42 U.S.C. 3026(a)(11)(B)) and 
307(a)(21)(A) (42 U.S.C. 3027(a)(21)(A)) of the Act. State agencies may 
meet these requirements through a Tribal consultation policy that 
includes Title VI programs.''
    We have created a reordered paragraph Sec.  1321.53(b) and have 
revised this provision to clarify the topics that the policies and 
procedures set forth in paragraph (a) ``[. . .] must at a minimum 
address[.]'' As such, we have clarified that coordination is required. 
We further enumerate how outreach and referrals will be provided to 
Tribal elders and family caregivers regarding services for which they 
may be eligible under Title III and/or VII; remove duplicate language 
which was incorporated into revised paragraph (a); revise ``such as'' 
to ``to include'' in reference to meetings, email distribution lists, 
and public hearings and add ``Title III and other funding 
opportunities, technical assistance on how to apply for Title III and 
other funding opportunities,'' to the list of communication 
opportunities; clarify collaboration on and sharing of program 
information and changes; add ``How services will be provided in a 
culturally appropriate and trauma-informed manner;'' and add 
``Opportunities to serve on advisory councils, workgroups, and boards, 
including area agency advisory councils, as set forth in Sec.  
1321.63.''
    Regarding provision of Title III funding to Tribes, the amount of 
available Title III funding is limited to what is appropriated for such 
purposes. State agencies are required to distribute such funding to 
AAAs via an IFF in States with multiple PSAs, as required by the Act 
and as set forth at Sec.  1321.49. In some States, Tribes have been 
designated as AAAs and receive Title III funds. Single PSA State 
agencies are required to distribute funds in accordance with a funds 
distribution plan as set forth at Sec.  1321.51(b), and Title VI 
programs may receive funds under a contract or grant with a State 
agency in such States. State agencies and AAAs are required to 
establish and follow procurement policies in awarding Title III funds 
under the Act,

[[Page 11617]]

which may allow for awarding of funds to Title VI grantees, Tribes, and 
other Tribal organizations. ACL encourages Tribes and Tribal 
organizations to apply to provide Title III-funded services. However, 
the statute does not allow for a requirement that Title III funds be 
provided to Title VI grantees outside of the procurement policies in 
place for awarding of Title III funds under the Act.
    There are multiple successful examples of such coordination that 
ACL is committed to sharing and expanding. As such expectations were 
not explicitly stated in the prior regulation, we believe that the 
promulgation of these regulations will provide a significant 
opportunity to further coordination between Title III and Title VI 
programs, including improving ACL's monitoring of programs for 
compliance. ACL anticipates providing technical assistance on this 
provision and other provisions related to coordination among Title VI 
and Title III programs upon promulgation of the final rule.
Subpart C--Area Agency Responsibilities
Sec.  1321.59 Area Agency Policies and Procedures
    Section 306 of the Act sets forth the responsibilities of AAAs 
regarding programs operated under the Act. \250\ Section 306, in 
conjunction with other language throughout the Title III of the Act, 
establishes the AAA's role with relation to the State agency and 
service providers.\251\ 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 agency versus AAA responsibility.
---------------------------------------------------------------------------

    \250\ 42 U.S.C. 3026.
    \251\ Id.
---------------------------------------------------------------------------

    New Sec.  1321.59 states that AAAs shall develop policies and 
procedures governing all aspects of programs operated under the Act, in 
compliance with State agency 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 
incorporate the provision previously set forth at Sec.  1321.25 
(Restriction of delegation of authority to other agencies) within this 
new provision.
    Comment: ACL received many comments regarding the roles of both 
area agencies and State agencies in developing policies and procedures 
for the area agency. Most of these comments expressed support for the 
proposed provision as detailed in Sec.  1321.59(a) and the 
reinforcement of an area agency's responsibility for developing their 
own policies and procedures, in compliance with the State agency's 
rules. A variety of commenters recommended that State agencies and 
program participants explicitly be consulted with surrounding the 
development of area agency policies and procedures.
    Response: ACL appreciates comments regarding the development of 
area agency policies and procedures. As commenters noted, area agencies 
have the authority and responsibility to develop their own policies and 
procedures. These policies and procedures must be developed in 
compliance with all State agency policies and procedures, including 
those detailed in Sec.  1321.9, and be in alignment with the Act and 
all applicable Federal requirements, and, where appropriate, in 
consultation with other parties in the PSAs. ACL maintains that the 
rule provides area agencies the flexibility to develop policies and 
procedures that align with the needs of their individual PSAs. Area 
agencies have full authority to consult with State agencies in the 
development of policies and procedures, as appropriate. Further, the 
Act requires area agencies to establish advisory councils who help with 
developing and administering the area plan; Sec.  1321.63 requires the 
councils to be representative of program participants or those that are 
eligible to participate and to solicit and incorporate public input 
into the area plan, which will help ensure that the perspectives of 
older adults are incorporated into area agency policies and procedures.
    Comment: Some commenters requested that ACL revise Sec.  1321.59(b) 
to require area agencies to make quality monitoring and measurement 
results publicly available and specifically requested that they be 
available to the public in ``plain language format designed to support 
and provide information and choice.''
    Response: ACL appreciates comments related to the transparency of 
quality monitoring and measurement results and the importance of 
sharing information with the public in a manner that is easily 
accessible and understood. We maintain that Sec.  1321.59(b) encourages 
both transparency and accessibility surrounding quality monitoring and 
measurement results and decline to revise the provision. ACL will 
continue to provide technical assistance to encourage area agencies to 
ensure that quality monitoring and measurement results are available to 
the public and provide technical assistance surrounding best practices 
for communicating in plain language.
    Comment: One commenter voiced concern that Sec.  1321.59(d), which 
clarifies that area agencies may not delegate the authority to award or 
administer funds to another agency, could be understood to prohibit 
provider subgrants which would disrupt program and service delivery. 
The commenter provided a specific example in which an area agency may 
contract with a county-based service provider which then in-turn 
provides subawards for home-delivered meals.
    Response: ACL appreciates the request for clarity surrounding Sec.  
1321.59(d). This section requires the area agency to be responsible for 
approving and administering funding for all subawards; area agencies 
may not delegate the authority to award or administer funds to another 
agency. In the example provided, the area agency would need to approve 
all subawards by the service provider and would be responsible for 
administering all funding under the subawards. ACL will provide 
technical assistance regarding this requirement, as needed.
    Comment: One commenter proposed setting requirements for 
eligibility beyond age and need, assessment, planning, and detailing 
the limitation of the frequency or type of services provided. The 
commenter also stated that if there is a limit of service and hours, 
there would need to be a staffing procedure to allow for the 
circumstances when additional hours are necessary.
    Response: Given the wide variation in resources, needs, and 
available services, ACL believes that this regulation sufficiently 
requires establishment of policies and procedures at the AAA level, in 
accordance with State agency policies and procedures. State agencies 
and AAAs may establish additional policies and procedures, as long as 
they are in accordance with the Act and all applicable Federal 
requirements.
Sec.  1321.67 Conflicts of Interest Policies and Procedures for Area 
Agencies on Aging
    As previously discussed, Sec.  1321.3 defines COI, and Sec.  
1321.47 explains the responsibilities of State agencies to avoid and 
mitigate COI. Similarly, Sec.  1321.67 explains the responsibilities of 
AAAs to meet the requirements of section 307(a)(7)(B) of the Act.\252\ 
AAAs must have policies and procedures to identify both organizational 
and individual COI. The policies must

[[Page 11618]]

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. AAAs have 
expanded their business activities over the last decade, necessitating 
additional guidance on preventing and mitigating COI so they may engage 
in the new activities and carry out the objectives of the Act.
---------------------------------------------------------------------------

    \252\ 42 U.S.C. 3027(a)(7)(B).
---------------------------------------------------------------------------

    Comment: Several commenters requested more information and 
assistance in identifying and addressing COI, including examples, 
training, tools, and best practices. Commenters noted that there is 
currently no process in place for Title III providers or AAA 
administrators to comply with the proposed rule to ``ensure that no 
individual or immediate family of and individual involved in Title III 
program has a conflict of interest'' and noted that the additional 
screening could be burdensome for programs. One commenter emphasized 
the need for flexibility as State agencies and AAAs address and 
mitigate COI.
    Response: We intend to provide technical assistance to AAAs and 
State agencies on COI requirements. We welcome ongoing feedback as we 
develop these materials. In policies involving COI, and throughout this 
rule, we recognize the need to balance flexibility and ease of 
administration for grantees and subrecipients while adhering to the 
requirements of the Act.
    Comment: We received numerous comments on COI related to 
guardianship programs administered by AAAs. Several commenters wrote in 
support of allowing AAAs to serve as public guardians. Some noted that 
such programs are a last resort. A commenter offered that allowing a 
AAA to serve as a guardian was preferable to relying on a for-profit 
entity, where the presence of a profit motive heightens the risk of 
abuse. One commenter wrote that guardianship programs hosted by AAAs 
were particularly important in rural communities, where other options 
may not be readily available.
    Many commenters stressed the necessity of appropriate safeguards 
and firewalls for guardianship programs co-located in or administered 
by AAAs. Some commenters provided examples of successful guardianship 
programs administered by AAAs. Commenters stressed that such programs 
can be ethically and efficiently administered alongside other Title III 
programs with appropriate measures to protect from COI and further 
detailed the process by which their State agency or a AAA establishes 
firewalls to protect against conflicts. As discussed in response to 
comments to Sec.  1321.47, commenters described mitigation strategies 
such as serving as guardian of last resort; promoting the use of 
alternatives to guardianship; and providing for defense of guardianship 
through another funding source.
    A number of other commenters, however, held that it is in the 
public interest to prohibit AAAs from being appointed as guardians and 
that an inherent and irremediable COI exists for a AAA hosting a 
guardianship program. One commenter offered an example wherein 
individuals remained in a nursing home when they should have received 
care in the community due to a COI in a AAA guardianship program.
    Response: We appreciate commenters who responded to our request for 
input regarding AAAs conducting guardianship programs or being 
appointed the guardian for an older person.
    We recognize the potential for COI and are sensitive to the gravity 
of such situations and concerns of commenters who believe such 
conflicts are irredeemable. However, we decline to completely prohibit 
AAAs from hosting guardianship programs or serving as guardians to 
older adults. As noted by some commenters, oftentimes these programs 
and appointments exist because no other alternative is available. 
Furthermore, some State statutes appoint the AAA or State agency to 
serve as guardian in cases where no other entity is available or 
appropriate.
    We agree that policies and procedures including firewalls and other 
safeguards are necessary to protect against COI for AAAs that serve as 
guardians. Therefore, we have amended both Sec.  1321.47 and Sec.  
1321.67 to require documentation of COI mitigation strategies, as 
necessary and appropriate, when a State agency, AAA, or Title III 
program operates an Adult Protective Services or guardianship program. 
We will continue to provide technical assistance to State agencies and 
AAAs.
    Comment: A commenter expressed support for APS and Ombudsman 
programs co-located within AAAs provided there are appropriate 
safeguards and firewalls in place. Another commenter sought to clarify 
whether an organizational COI necessarily exists when a AAA provides 
both OAA and non-OAA services. The commenter noted deeming such a 
situation a COI may create an administrative burden and increase 
programmatic costs.
    Response: Many APS and Ombudsman programs are located in AAAs. We 
agree such placement is advantageous in many situations; however, 
appropriate COI policies and procedures are necessary. As stated in 
response to the previous comment, we have amended Sec. Sec.  1321.47 
and 1321.67 to require documentation of mitigation strategies when a 
State agency or AAA also houses the APS program.
    We also wish to clarify that a AAA providing both OAA and non-OAA 
services is not a per se COI. We recognize this is an extremely common 
occurrence and encourage AAAs to develop dynamic and diverse service 
delivery systems. The COI standards for AAAs in this final rule apply 
across organizations, providers, and service relationships. 
Furthermore, some non-OAA programs offered by a AAA may be governed by 
their own COI rules, for example the State Health Insurance Assistance 
Program or Medicaid managed care plans. Ombudsman program COI 
requirements are governed by this rule at Sec.  1324.21.
    Comment: A few commenters noted that in small communities, 
particularly rural and frontier areas, many AAAs with limited providers 
may be serving family members. Agency staff may be related to staff of 
organizations that receive Title III funding. A commenter noted that 
nearly everyone wears multiple hats and has relationships within the 
organization and community.
    Response: We understand that in smaller communities the possibility 
for individual and organizational COI may be more likely to arise 
simply by nature of communities' size and structure. Whether and how 
actual or potential COI may be remedied through appropriate policies 
and procedures is fact-dependent. Factors to consider include whether 
the individual in question is a decision maker, whether firewalls or 
other safeguards can be erected between organizations and individuals, 
and what monitoring protocols are in place for a potentially conflicted 
situation. Similarly, if a conflict arises, a AAA may ask whether it 
can be remediated and what the likely impact will be on the quality of 
services and the credibility of the AAA, its employees, and agents.
Sec.  1321.69 Area Agency on Aging Title III and Title VI Coordination 
Responsibilities
    Consistent with new Sec.  1321.53 (State agency Title III and Title 
VI coordination responsibilities), new 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),\253\

[[Page 11619]]

307(a)(21)(A),\254\ 614(a)(11),\255\ and 624(a)(3) \256\ of the Act. We 
clarify that coordination is required under the Act and that all 
entities are responsible for coordination, including State agencies, 
AAAs, service providers, and Title VI grantees. The section complements 
the language at Sec.  1321.53 for State agencies, and includes specific 
considerations for AAAs, such as opportunities for representatives of 
Title VI grantees to serve on AAA advisory councils, workgroups, and 
boards and opportunities to receive notice of Title III and other 
funding opportunities.
---------------------------------------------------------------------------

    \253\ 42 U.S.C. 3026(a)(11)(B).
    \254\ 42 U.S.C. 3027(a)(21)(A).
    \255\ 42 U.S.C. 3057e(a)(11).
    \256\ 42 U.S.C. 3057j(a)(3).
---------------------------------------------------------------------------

    Comment: Commenters overwhelmingly expressed support for 
coordination between Title III and Title VI programs. Comments 
expressed concern regarding the lack of coordination with Title VI 
grantees, low amounts of funding provided under Title III to Tribes, 
and lack of technical assistance on how to apply for available Title 
III funds. One commenter recommended that any entities involved in 
provision of services under Title III of the Act develop their 
procedures for outreach and coordination with the relevant Title VI 
program director. Another commenter expressed they thought the proposed 
language regarding coordination was too permissive. We received a 
comment recommending specifying that services should be delivered in a 
culturally appropriate and trauma-informed manner. Some commenters also 
requested technical assistance on roles and responsibilities. We also 
received other suggestions, program management recommendations, and 
implementation questions regarding this provision, including regarding 
examples and best practices for coordination.
    Response: To make clear the responsibilities of area agencies under 
the Act, explicit expectations for coordination between Title III and 
Title VI programs are included as new provisions in this rule. The 
provision at Sec.  1321.69 is complementary with the provisions for 
State agencies and service providers under Title III of the Act as set 
forth at Sec.  1321.53 (State agency Title III and Title VI 
coordination responsibilities) and Sec.  1321.95 (Service provider 
Title III and Title VI coordination responsibilities), as well as for 
Title VI grantees under the Act as set forth at Sec.  1322.31 (Title VI 
and Title III coordination). This rule makes clear that all entities 
are responsible for coordination, including AAAs, State agencies, 
service providers, and Title VI grantees. Based on the comments 
received, we have revised each provision to use consistent language, 
where appropriate. We explain the changes we have made in the following 
paragraphs.
    We have reordered the opening paragraph in Sec.  1321.69 as Sec.  
1321.69(a) and have reordered the subsequent paragraphs accordingly. 
ACL also recognizes the variability of local circumstances, resources, 
and needs. We appreciate the comment recommending that Title III 
entities work with the relevant Title VI program directors in 
developing their policies and procedures regarding coordination. We 
have revised the language at Sec.  1321.69(a) to read, ``For planning 
and service areas where there are Title VI programs, the area agency's 
policies and procedures, developed in coordination with the relevant 
Title VI program director(s) as set forth in Sec.  1322.13(a), must 
explain how the area agency's aging network, including service 
providers, will coordinate with Title VI programs to ensure compliance 
with section 306(a)(11)(B) (42 U.S.C. 3026(a)(11)(B)) of the Act.''
    We have created a reordered paragraph Sec.  1321.69(b) and have 
revised this provision to clarify the topics that the policies and 
procedures set forth in paragraph (a) ``must at a minimum address[.]'' 
As such, we clarify that coordination is required. We have further made 
edits to require how outreach and referrals will be provided to Tribal 
elders and family caregivers regarding services for which they may be 
eligible under Title III; revise ``such as'' to ``to include'' in 
reference to meetings, email distribution lists, presentations, and 
public hearings and add ``Title III and other funding opportunities, 
technical assistance on how to apply for Title III and other funding 
opportunities,'' to the list of communication opportunities; clarify 
collaboration on and sharing of program information and changes to 
include coordinating with service providers where applicable; add how 
services will be provided in a trauma-informed, as well as culturally 
appropriate, manner; and add ``Opportunities to serve on advisory 
councils, workgroups, and boards, including area agency advisory 
councils, as set forth in Sec.  1321.63.'' We have removed duplicate 
provisions that were otherwise incorporated into revised paragraph (b).
    Regarding provision of Title III funding to Tribes, the amount of 
available Title III funding is limited to what is appropriated for such 
purposes. State agencies are required to distribute such funding to 
AAAs via an IFF in States with multiple PSAs, as required by the Act 
and as set forth at Sec.  1321.49. In some States, Tribes have been 
designated as AAAs and receive Title III funds. Single PSA State 
agencies are required to distribute funds in accordance with a funds 
distribution plan as set forth at Sec.  1321.51(b), and Title VI 
programs may receive funds under a contract or grant with a State 
agency in such States. State agencies and AAAs are required to 
establish and follow procurement policies in awarding Title III funds 
under the Act, which may allow for awarding of funds to Title VI 
grantees, Tribes, and other Tribal organizations. ACL encourages Tribes 
and Tribal organizations to apply to provide Title III-funded services. 
However, the statute does not allow for a requirement that Title III 
funds be provided to Title VI grantees outside of the procurement 
policies in place for awarding of Title III funds under the Act.
    There are multiple successful examples of such coordination that 
ACL is committed to sharing and expanding. As such expectations were 
not explicitly stated in the prior regulation, we believe that the 
promulgation of these regulations will provide a significant 
opportunity to further coordination between Title III and Title VI 
programs, including improving ACL's monitoring of programs for 
compliance. ACL anticipates providing sub-regulatory guidance and 
technical assistance on this provision and other provisions related to 
coordination among Title VI and Title III programs upon promulgation of 
the final rule.
Subpart D--Service Requirements
Sec.  1321.77 Purpose of Services--Person- and Family-Centered, Trauma-
Informed
    New 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 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.\257\
---------------------------------------------------------------------------

    \257\ 42 U.S.C. 3001.
---------------------------------------------------------------------------

    Comment: We received comments supporting person-centered and 
trauma-informed services in the regulations, consistent use of these 
terms throughout the regulations, and in-depth training on diversity, 
equity, inclusion, and accessibility being offered to every

[[Page 11620]]

person who provides services and programs for older adults.
    Response: ACL appreciates these comments and notes that training by 
State agencies, AAAs, and service providers is required at Sec.  
1321.77(c). However, we defer to entities to determine the specific 
content of the required training.
    Comment: Another commenter stressed that as part of person-centered 
supports and planning, assistance with activities of daily living and 
independent activities of daily living should be provided, with 
interagency and intergovernmental promotion of these services.
    Response: ACL appreciates these supportive comments and notes that 
assistance with activities of daily living and independent activities 
of daily living may be provided with funds under the Act, as set forth 
at Sec.  1321.85 (Supportive services). Further, coordination and 
interagency collaboration are listed as expectations under Sec.  1321.5 
(Mission of the State agency) and Sec.  1321.55 (Mission of the area 
agency).
    Comment: A commenter suggested edits regarding person-centered 
services.
    Response: We appreciate this suggestion and add the following, 
``Person-centered services may include community-centered and family-
centered approaches consistent with the traditions, practices, beliefs, 
and cultural norms and expectations of older adults and family 
caregivers'' in Sec.  1321.77(a).
    Comment: We received other suggestions, program management 
recommendations, and implementation questions regarding this provision.
    Response: We decline to make further changes to this provision and 
intend to address other suggestions and requests for clarification 
through technical assistance.
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.
    New Sec.  1321.81 clarifies eligibility requirements under the Act 
and explains that State agencies, 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.
    Comment: We received comments asking for the age of eligibility for 
services under Title III to be lowered to allow for service to Tribal 
elders to coincide with the age of eligibility set by the Tribe and to 
allow for service to individuals of young onset of Alzheimer's disease 
and related dementias. We also received comment requesting an increase 
of the age for eligibility of service to 65 years old.
    Response: The Act defines ``older individual'' in section 102(40), 
``The term ``older individual'' means an individual who is 60 years of 
age or older.'' \258\ As such we do not have the authority to modify 
this provision in response to comments. Title III allows for services 
to family caregivers of individuals of any age with Alzheimer's or 
related disorder at section 302(3), ``[t]he term ``family caregiver'' 
means an adult family member, or another individual, who is an informal 
provider of in-home and community care to an older individual or to an 
individual of any age with Alzheimer's disease or a related disorder 
with neurological and organic brain dysfunction,'' \259\ along with 
service to ``older relative caregivers,'' as further defined below.
---------------------------------------------------------------------------

    \258\ Id. section 3001(40).
    \259\ 42 U.S.C. 3021(3).
---------------------------------------------------------------------------

    The regulation for services provided under Title VI at Sec.  1322.3 
provides the following definition, ``Older Indians, means those 
individuals who have attained the minimum age determined by the Indian 
Tribe for services.''
    Comment: One commenter expressed concern that no requirements were 
set forth that address service to unlawfully present individuals.
    Response: There is no requirement that recipients of services be 
citizens of the United States nor be lawfully present to receive 
services under the OAA. In September 2022, the Department of Homeland 
Security (DHS) finalized a rule defining the criteria it uses when 
determining whether a person can be denied a visa and/or legal 
residency because they are likely to become a ``public charge.'' 
Services provided under the OAA are not among those considered in 
determining whether a person is likely to become a ``public charge.'' 
\260\ State agencies, AAAs, and service providers under the Act should 
not require that recipients of services be citizens of the United 
States nor be lawfully present to receive services under the Older 
Americans Act.
---------------------------------------------------------------------------

    \260\ Public Charge Ground of Inadmissibility, 8 CFR 212.20 et 
seq.
---------------------------------------------------------------------------

    Comment: We received comment that Ombudsman program services be 
included among the list of exceptions in Sec.  1321.81(a).
    Response: We appreciate this comment and add (4) to read, 
``Ombudsman program services, as provided in part 1324.''
    Comment: We received comments asking for clarity regarding Sec.  
1321.81(a)(2). We received another comment noting that ``age 55 or 
older'' is redundant in Sec.  1321.81(a)(2)(ii) and (iii), as that is a 
component of the definition of ``older relative caregiver.''
    Response: We appreciate these comments and have revised Sec.  
1321.81(a)(2)(i) to read, ``Adults caring for older adults and adults 
caring for individuals of any age with Alzheimer's or a related 
disorder[.]'' We have also removed the redundant language in Sec.  
1321.81(a)(2)(ii) and (iii). To clarify, ``family caregiver'' does not 
include the following categories of individuals: (1) an individual 
under age 55 caring for an adult under age 60 without Alzheimer's or a 
related disorder; (2) an individual under age 55 caring for a child 
under age 18; and (3) an individual age 55 or older who is caring for a 
child under age 18, where the individual's relationship to the child is 
that of biological or adoptive parent, not including adoptive parents 
who are also grandparents.
    Comment: We received various comments in support of this provision, 
as well as other suggestions, program management recommendations, and 
implementation questions regarding this provision.
    Response: We appreciate the comments of support and decline to make 
further changes to this provision. We intend to address other 
suggestions and requests for clarification through technical 
assistance.
Sec.  1321.85 Supportive Services
    New 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

[[Page 11621]]

an approved IFF or funds distribution plan, as articulated in the State 
plan.\261\
---------------------------------------------------------------------------

    \261\ 42 U.S.C. 3030d.
---------------------------------------------------------------------------

    Comment: We received various comments noting need for the types of 
in-home supportive services that may be provided under this provision, 
including help with housework like cleaning and laundry and home 
maintenance and repairs. Some commenters noted that while needed, such 
services are not available.
    Response: In-home supportive services provided under the Act may 
include homemaker services (to help with routine household tasks like 
cleaning and doing laundry) and repairs to and minor modification of 
homes to allow an older adult to age in place.
    ACL acknowledges that the need for such services is likely to 
exceed the available funding under the Act. With these regulations, ACL 
intends to clarify how funds under the Act may be used, in coordination 
with the other provisions set forth at Sec. Sec.  1321.27 and 1321.65 
regarding identifying persons in greatest economic need and greatest 
social need who should be prioritized in receiving services under the 
Act, as well as the role of public participation in guiding how funds 
under the Act are used in State and area plans on aging.
    Comment: We received a comment noting need for the types of access 
services that may be provided under this provision, including free or 
affordable transportation in rural areas. The commenter noted that 
while needed, such services are not available.
    Response: Access services provided under the Act may include 
transportation. ACL acknowledges that the need for such services is 
likely to exceed the available funding under the Act. With these 
regulations, ACL intends to clarify how funds under the Act may be 
used, in coordination with the other provisions set forth at Sec. Sec.  
1321.27 and 1321.65 regarding identifying persons in greatest economic 
need and greatest social need who should be prioritized in receiving 
services under the Act, as well as the role of public participation in 
guiding how funds under the Act are used in State and area plans on 
aging.
    Comment: Several commenters recommended changes to this section to 
make clear that while expenditures for multipurpose senior centers 
should be allowable, a multipurpose senior center is not in and of 
itself a service.
    Response: In referencing supports which may be provided with funds 
under the Act, multipurpose senior centers are mentioned multiple 
times, including in section 301(a)(1) regarding the purpose of Title 
III,\262\ section 303 regarding authorization of appropriations and 
uses of funds,\263\ section 304 regarding allotment and Federal 
share,\264\ section 306(a)(1) regarding area plans on aging,\265\ and 
in the title of Part B, ``Supportive Services and Senior Centers.'' 
\266\ We note that some in the aging network may implement multipurpose 
senior centers as a service, consistent with section 321(a),\267\ which 
authorizes services that promote or support social connectedness and 
reduce negative health effects associated with social isolation and any 
other services necessary for the general welfare of older individuals.
---------------------------------------------------------------------------

    \262\ 42 U.S.C. 3021(a)(1).
    \263\ 42 U.S.C. 3023.
    \264\ 42 U.S.C. 3024.
    \265\ 42 U.S.C. 3026(a)(1).
    \266\ 42 U.S.C. Ch. 35, Subch. III, Pt. B.
    \267\ 42 U.S.C. 3030d(a).
---------------------------------------------------------------------------

    The service of multipurpose senior centers may track measures such 
as number of visits, number of unduplicated persons served, and hours 
of staff/volunteer time. For the purposes of including multipurpose 
senior centers as an allowable expenditure of funds appropriated under 
Title III, part B as set forth at Sec.  1321.71(a)(1) and an allowable 
access service to meet minimum adequate proportion provisions as set 
forth at Sec.  1321.27(i), we consider multipurpose senior centers to 
be a supportive service and decline to make changes to this provision. 
We have made an edit at Sec.  1321.3 (Definitions) to indicate ``[. . 
.] as used in Sec.  1321.85, facilitation of services in such a 
facility.''
    Comment: We received other suggestions regarding this provision, 
including specifying other services that may be allowable.
    Response: As referenced in this provision, section 321 of the Act 
sets forth twenty-six types of supportive services that may be 
provided.\268\ State agencies and AAAs also have certain flexibility to 
craft service definitions and requirements to reflect their specific 
circumstances and meet local needs. For these reasons, we decline to 
make further changes to this provision and intend to address other 
suggestions and requests for clarification through technical 
assistance.
---------------------------------------------------------------------------

    \268\ Id. section 3030d.
---------------------------------------------------------------------------

Sec.  1321.87 Nutrition Services
    New 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.\269\ Based on experiences during the COVID-19 PHE 
and numerous requests for flexibility in provision of meals, we set 
forth that meals provided under Title III, part 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.
---------------------------------------------------------------------------

    \269\ 42 U.S.C. 3030d; 42 U.S.C. 3030e; 42 U.S.C. 3030f; 42 
U.S.C. 3030g.
---------------------------------------------------------------------------

    We also 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 specify that nutrition education, nutrition counseling, and 
other nutrition services may be provided with funds under Title III, 
parts C-1 or C-2 of the Act. As required by section 331(1), we set 
forth requirements to determine the frequency of meals in areas where 
five or more days a week of service is not feasible.\270\ This 
provision also clarifies that funds must be distributed through an 
approved IFF or funds distribution plan, as articulated in the State 
plan.
---------------------------------------------------------------------------

    \270\ 42 U.S.C. 3030e(1).
---------------------------------------------------------------------------

    Finally, this provision sets forth requirements for NSIP 
allocations. NSIP allocations are based on the number of meals reported 
by the State agency which meet certain requirements, as specified. 
State agencies may choose to receive their allocation grants as cash, 
commodities, or a combination thereof. NSIP funds may only be used to 
purchase domestically produced foods (definition included 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 NSIP.
    Comment: We received many comments for individual participants in 
nutrition programs funded under the Act who shared what they liked 
about the nutrition program and their suggestions for maintaining and 
improving the nutrition program.
    Response: We are grateful for the feedback from individual 
participants and will use their feedback in promulgating these 
regulations, as well

[[Page 11622]]

as in considering other technical assistance.
    Comment: We received comments noting a technical correction needed 
at Sec.  1321.87(a)(1)(ii).
    Response: We are grateful for these comments, and revise this 
provision to read ``Meals provided as set forth in (i) shall[.]''
    Comment: We received various comments requesting improved meal 
presentation.
    Response: ACL recognizes the importance of meals and other services 
provided under the Act being appealing to participants. Such services 
are to be person-centered, as set forth in Sec.  1321.77. Additionally, 
we expect that feedback from service participants will be solicited and 
used to the greatest extent possible in the ongoing provision of 
services as set forth in Sec.  1321.73(c). To further clarify the 
importance of the participant experience, we have added ``[. . .] and 
preferences,'' to the expectations for monitoring participant needs set 
forth in Sec.  1321.73(c).
    Comment: We received many comments expressing support for shelf-
stable, pick-up, carry-out, drive through, ``grab and go,'' and similar 
options. Other commenters disagreed with broadening congregate meal 
program requirements, allowing for virtual congregate meals 
programming, and expanding the circumstances allowable for home-
delivered meal service provision. We also received comment in support 
of groceries being included under other nutrition services.
    Response: ACL appreciates the comments in support of various 
nutrition services and delivery options to meet the purposes and 
requirements of the Act. We also recognize the evolution of service 
models that were initiated during the COVID-19 PHE being adapted into 
ongoing practice. We note that while these regulations set forth the 
types of services that may be provided, State agencies, AAAs, and 
service providers will likely need to make decisions about what 
services are provided and any applicable limitations, due to limited 
resources available, the need to prioritize service to individuals in 
the greatest economic need and greatest social need, and other factors 
as set forth at Sec.  1321.81(b).
    Comment: We received a comment expressing that local program 
requirements hinder the nutrition program.
    Response: Given the wide variation in resources, needs, and 
available services, ACL believes that this regulation sufficiently 
requires establishment of policies and procedures at the State agency, 
AAA, and/or service provider levels as set forth in Sec.  1321.73(a). 
For consistency, we have revised Sec.  1321.87(b) to be clear that AAAs 
may develop policies and procedures regarding this provision as 
delegated by the State agency. State agencies, AAAs, and service 
providers may establish additional policies and procedures, as long as 
they are in accordance with the Act and all applicable Federal 
requirements. Such additional policies and procedures should further 
the purposes of the Act and be consistent with a person-centered manner 
of service provision, as set forth at Sec.  1321.77. Additional 
information on how State agencies, AAAs, and service providers have 
implemented various policies and procedures is available at ACL's 
Nutrition and Aging Resource Center: https://acl.gov/senior-nutrition.
    Comment: We received many comments noting the importance of the 
nutrition programs provided under the Act, as well as culturally 
appropriate meals, medically tailored meals, fresh produce, and locally 
sourced food. Other commenters noted support for the clarifications 
included in this provision.
    Response: We appreciate these comments.
    Comment: We received comments asking to allow State agencies and/or 
AAAs to make decisions on whether to provide shelf-stable, pick-up, 
carry-out, drive-through, or similar meals with Title III, part C-1 
funds as set forth in Sec.  1321.87(a)(1)(i), without AAAs requiring 
the State agency's approval, the provision of such meals statewide, or 
demonstration that such meals complement the congregate meal program.
    Response: Congress appropriates separate funds for congregate and 
home-delivered meals, as set forth by the Act. The State agency is 
responsible for policies and procedures to implement programs under the 
Act, as well as for making the decision about whether or not to permit 
the provision of shelf-stable, pick-up, carry-out, drive-through, or 
similar meals. The State agency is responsible for ensuring program 
requirements are met, including reporting to ACL. We note that nothing 
in this provision requires this option to be offered statewide; if 
State agencies choose to permit the provision of these types of meals 
using Title III, part C-1 funds, that decision must be incorporated 
into the applicable State and area plans. For these reasons, we decline 
to amend the requirements in the final rule. We encourage that if this 
option is pursued, the State agency and area agencies use streamlined 
processes for documenting the use of this option in State and area 
plans, for monitoring the use of this option, and for reporting on the 
use of this option.
    Comment: We received comments asking to modify the 20 percent limit 
on shelf-stable, pick-up, carry-out, drive-through, or similar meals 
with Title III, part C-1 funds as set forth in Sec.  1321.87(a)(1)(ii) 
and to clarify if the 20 percent limit is to be calculated based on the 
original allocation to the State or after completion of any transfers.
    Response: Congress appropriates separate funds for congregate and 
home-delivered meals, as set forth by the Act. ACL believes that 
offering a limited number of shelf-stable, pick-up, carry-out, drive-
through, or similar meals to complement the congregate meals program 
and meet unique needs of program participants in greatest economic need 
and greatest social need is allowable and aligned with the purpose of 
these funds as appropriated. Based on the feedback we received, we 
believe that a limit of up to 25 percent, to be calculated based on the 
final amount of the Title III, part C-1 award after all transfers as 
set forth in Sec.  1321.9(c)(2)(iii), is a reasonable approach to 
provide some flexibility while retaining the important aspects of the 
congregate meals program. As a result, ACL has modified the provisions 
at Sec.  1321.87(a)(1)(ii)(A) to read ``Not exceed 25 percent of the 
funds expended by the State agency under Title III, part C-1, to be 
calculated based on the amount of Title III, part C-1 funds available 
after all transfers as set forth in Sec.  1321.9(c)(2)(iii) are 
completed;'' and at Sec.  1321.87(a)(1)(ii)(B) to read, ``Not exceed 25 
percent of the funds expended by any area agency on aging under Title 
III, part C-1, to be calculated based on the amount of Title III, part 
C-1 funds available after all transfers as set forth in Sec.  
1321.9(c)(2)(iii) are completed.''
    Comment: Several commenters asked ACL to remove distinctions 
between funding for congregate meals and home-delivered meals. We also 
received comments expressing hope that if another pandemic occurs that 
carry-out and similar meals would be allowed without the 20% 
restriction.
    Response: Congress appropriates separate funds for congregate and 
home-delivered meals, as set forth by the Act. ACL is unable to make 
changes to statutory provisions. As they did during the COVID-19 PHE 
through the Coronavirus Aid, Relief, and Economic Security (CARES) Act, 
Congress may also enact measures that allow for flexible use of funds 
for specific disaster situations. Should another pandemic or large-
scale disaster occur, ACL set forth at Sec. Sec.  1321.99 and 1321.101 
additional

[[Page 11623]]

flexibilities that could be exercised. ACL's Nutrition and Aging 
Resource Center at https://acl.gov/senior-nutrition provides many 
useful resources for how existing OAA flexibilities can be utilized to 
manage emergencies.
    Comment: We received request for clarification regarding meals 
meeting the Dietary Guidelines for Americans and Dietary Reference 
Intakes as set forth in section 339 of the OAA.\271\
---------------------------------------------------------------------------

    \271\ 42 U.S.C. 3030g-21.
---------------------------------------------------------------------------

    Response: We appreciate this inquiry and confirm that meals 
provided with funds under the Act must meet the Dietary Guidelines for 
Americans and Dietary Reference Intakes as set forth in section 
339.\272\ We have revised Sec.  1321.87(a)(1) and (2) to read ``[. . .] 
are meals meeting the Dietary Guidelines for Americans and Dietary 
Reference Intakes as set forth in section 339 (42 U.S.C. 3030g-21) 
provided[.]''
---------------------------------------------------------------------------

    \272\ Id.
---------------------------------------------------------------------------

    Comment: Some commenters had questions on the expectations for 
nutrition education and nutrition counseling, including if nutrition 
education and nutrition counseling may also be provided with funding 
under Title III, part B, if these services may be provided to 
individuals not receiving meal services, and whether the requirements 
must adhere to the Nutrition Care Process of the Academy of Nutrition 
and Dietetics.
    Response: ACL differentiates and sets forth requirements for 
nutrition education and nutrition counseling at Sec.  1321.87(a)(3) and 
(4), respectively. We acknowledge that due to various issues, including 
limited resources and local variation, implementation decisions that 
are consistent with the Act and all applicable Federal requirements are 
determined by the State agency, AAA, and/or service provider. The 
provisions in this rule allow for nutrition education and nutrition 
counseling to be provided in various modalities, including telephonic 
and virtual delivery to expand access to the services. Nutrition 
education content is to be consistent with the Dietary Guidelines for 
Americans; accurate, culturally sensitive, regionally appropriate, and 
considerate of personal preferences; and overseen by a registered 
dietitian or individual of comparable expertise, as set forth in 
section 339(1) of the OAA.\273\
---------------------------------------------------------------------------

    \273\ 42 U.S.C. 3030g-21(1).
---------------------------------------------------------------------------

    Section 321 of the Act sets forth supportive services that may be 
provided with funds under Title III, part B of the Act, including 
``(17) health and nutrition education services, including information 
concerning prevention, diagnosis, treatment, and rehabilitation of age-
related diseases and chronic disabling conditions;'' \274\ and ``(26) 
any other services necessary for the general welfare of older 
individuals; if such services meet standards prescribed by the 
Assistant Secretary and are necessary for the general welfare of older 
individuals.'' \275\ Expectations for nutrition education or nutrition 
counseling that are provided as supportive services are set forth in 
this rule at Sec.  1321.85. The Act and these provisions do not require 
individuals receiving nutrition education and nutrition counseling to 
receive meal services, although nutrition education and nutrition 
counseling should be provided based on the needs of meal participants. 
For example, eligible individuals who have significant or multiple 
dietary restrictions for which Title III, part C meals may not be 
appropriate (e.g., medically required tube feedings, severe allergies 
which cannot be reasonably accommodated), may participate in nutrition 
education or nutrition counseling. The Academy of Nutrition and 
Dietetics does not require the Nutrition Care Process approach for 
documenting nutrition counseling sessions. Therefore, we have removed 
the requirement to follow the Nutrition Care Process approach from 
Sec.  1321.87(a)(4) and have made other minor edits in this provision 
for consistency.
---------------------------------------------------------------------------

    \274\ 42 U.S.C. 3030d(a)(17).
    \275\ Id section 3030d(a)(26).
---------------------------------------------------------------------------

    Comment: We received a request for clarification if Sec.  
1321.87(d)(1)(i) means that meals provided to eligible individuals 
receiving family caregiver support services under the Act could be 
reported by the State agency for use in determining the State agency's 
NSIP allocation.
    Response: Yes, we confirm this is allowable, if reported in 
alignment with NSIP reporting requirements, as set forth by the 
Assistant Secretary for Aging.
    Comment: We received comment requesting clarification that a 
voluntary contribution made by an individual receiving nutrition 
program services under the Act is not a ``payment'' for purposes of 
section 170(e)(3) of the Internal Revenue Code, which provides for 
deductions of qualified contributions of food inventory.
    Response: Issues relating to the Internal Revenue Code and 
requirements relating to United States Department of Agriculture 
(USDA)-donated foods are outside the scope of this regulation. While 
ACL does not consider voluntary contributions under the Act to be 
payments, the ACL-funded National Resource Center on Nutrition & Aging 
fact sheet on Partnerships with Foodbanks and Other USDA Programs at 
https://acl.gov/sites/default/files/nutrition/Partnerships-with-Foodbanks-and-Other-United-States-Department-of-Agriculture-non-COVID_508.pdf may be of interest in working with other programs and 
partners.
    Comment: We received comments requesting clarity on the State 
agency's role regarding provision of meals less than five days per 
week.
    Response: In response to this request for clarification, we have 
revised the provision at Sec.  1321.87(b) to be clear regarding the 
State agency's role. The State agency must establish policies and 
procedures that define a nutrition project and include how nutrition 
projects will provide meals and nutrition services five or more days 
per week in accordance with the Act. The definition established by the 
State agency must consider the availability of resources and the 
community's need for nutrition services as described in the State and 
area plans.
    Comment: We received various comments suggesting requirements that 
should be used for eligibility determination, speed of service 
initiation, reporting, and other program management topics.
    Response: Given the wide variation in resources, needs, and 
available services, ACL believes that this regulation sufficiently 
requires establishment of policies and procedures at the State agency, 
AAA, and/or service provider levels as set forth in Sec.  1321.73(a). 
State agencies, AAAs, and service providers may establish additional 
policies and procedures, as long as they are in accordance with the Act 
and all applicable Federal requirements. Additional information on how 
State agencies, AAAs, and service providers have implemented various 
policies and procedures is available at ACL's Nutrition and Aging 
Resource Center: https://acl.gov/senior-nutrition.
    We decline to make further changes to this provision and intend to 
address other suggestions and requests for clarification through 
technical assistance.
Sec.  1321.89 Evidence-Based Disease Prevention and Health Promotion 
Services
    New 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

[[Page 11624]]

clarifies allowable use of funds and that those funds must be 
distributed through an approved IFF or funds distribution plan, as 
articulated in the State plan.
    Comment: We received a comment that programs that are considered to 
be evidence-based often do not include Native American populations. An 
absence of an evidence-base for programs addressing Native American 
populations results in further inequity and lack of service to 
populations in need of disease prevention and health promotion 
services. The commenter recommended that promising practices be allowed 
to serve populations where an evidence base is lacking. We received 
other comments that provision of evidence-based services is challenging 
in rural and frontier communities given the small amount of funding 
appropriated under the Act.
    Response: ACL appreciates this comment. Section 361 of the Act 
requires evidence-based programs and allows the Assistant Secretary for 
Aging to provide technical assistance on the delivery of such services 
in different settings and for different populations.\276\ ACL recently 
commissioned and is evaluating a study of the Evidence-Based Review 
Process to examine the existing review process and explore 
opportunities that would enhance the review process so it is equitable 
and responsive to program needs across different populations and 
settings, including Native American populations. The ACL-funded 
National Chronic Disease Self-Management Education Resource Center and 
National Falls Prevention Resource Center hold a bi-monthly Evidence-
Based Program Advisory Council meeting that includes members of the 
National Resource Center on Native American Aging and Native American 
leadership and organizations on the unique needs of Native American 
populations in evidence-based programming. The ACL-supported Evidence-
Based Program Registry lists health promotion and disease prevention 
programs that may be adapted and culturally tailored for different 
populations and settings. More information is available at https://acl.gov/programs/health-wellness/disease-prevention. Additional 
information on how State agencies, AAAs, and service providers can 
engage rural and frontier communities is available at the ACL-funded 
National Chronic Disease Self-Management Education Resource Center and 
National Falls Prevention Resource Center. ACL also intends to provide 
technical assistance regarding providing services under Title III, part 
D of the Act.
---------------------------------------------------------------------------

    \276\ 42 U.S.C. 3030m(a).
---------------------------------------------------------------------------

    Comment: Some commenters asked what expenses may be covered with 
funds provided under Title III, part D of the Act.\277\
---------------------------------------------------------------------------

    \277\ Id. section 3030m; 42 U.S.C. 3030n.
---------------------------------------------------------------------------

    Response: ACL appreciates this concern and confirms that funds 
provided under Title III, part D of the Act may be used for reasonable, 
allowable, and allocable expenses necessary for the direct provision of 
evidence-based disease prevention and health promotion services, 
subject to appropriate procurement and other policies and procedures. 
This may include information technology systems; devices, such as 
laptop or tablet computers and smartphones; program licensing fees; 
program materials and supplies; and training of staff and volunteers.
    Comment: We received comments recommending education and prevention 
activities to be considered as evidence-based programming. Some 
commenters suggested strategic partnerships with local health and 
public health entities. Other commenters noted challenges with meeting 
evidence-based program expectations. We received other suggestions, 
program management recommendations, and implementation questions 
regarding this provision.
    Response: ACL recently commissioned and concluded an evaluation 
study of the Evidence-Based Review Process to examine the existing 
review process and explore opportunities that would enhance the review 
process. Activities alone may not qualify as evidence-based programs, 
as evidence-based programs must demonstrate improved the health and 
well-being or reduce disease, disability and/or injury among older 
adults over time. Additional information on how States, AAAs, and 
service providers have implemented various policies and procedures is 
available at the ACL-funded National Chronic Disease Self-Management 
Education Resource Center \278\ and National Falls Prevention Resource 
Center.\279\ We decline to make further changes to this provision and 
intend to address other suggestions and requests for clarification 
through technical assistance.
---------------------------------------------------------------------------

    \278\ National CDSME Resource Center for Professionals, The 
Nat'l Council on Aging, https://www.ncoa.org/professionals/health/center-for-healthy-aging/national-cdsme-resource-center (last 
visited October 13, 2023).
    \279\ National Falls Prevention Resource Center for 
Professionals, The Nat'l Council on Aging, https://www.ncoa.org/professionals/health/center-for-healthy-aging/national-falls-prevention-resource-center (last visited Oct. 13, 2023).
---------------------------------------------------------------------------

Sec.  1321.91 Family Caregiver Support Services
    In the 2000 amendments to the Act (Pub. L. 106-501), Congress added 
Title III, part E to set forth allowable expenses for family caregiver 
support services. New Sec.  1321.91 clarifies the family caregiver 
support services available under the Act and eligibility requirements 
for respite care and supplemental services, as set forth in section 
373(c)(1)(B).\280\ It also clarifies allowable use of funds and that 
those funds must be distributed through an approved IFF or funds 
distribution plan, as articulated in the State plan.
---------------------------------------------------------------------------

    \280\ 42 U.S.C. 3030s-1(c)(1)(B).
---------------------------------------------------------------------------

    Comment: One commenter expressed support for clear, consistent, and 
durable regulations regarding the National Family Caregiver Support 
Program. Other commenters stated support for regulations regarding 
caregiver support programs, including caring for someone with 
Alzheimer's disease or related dementia and the special subset of 
caring for someone with young onset of Alzheimer's or related dementia. 
Several commenters also urged ACL to align this rule with the National 
Strategy to Support Family Caregivers.
    Response: We appreciate this support. ACL is committed to aligning 
this rule with the National Strategy to Support Family Caregivers, as 
appropriate.
    Comment: One commenter requested ACL clarify the meaning of 
``limited basis'' in the provision of supplemental services. Other 
commenters expressed support for the flexibility for State agencies and 
AAAs to determine ``limited basis.''
    Response: The rule includes the following, ``State agencies and 
AAAs shall define ``limited basis'' for supplemental services and may 
consider limiting units, episodes or expenditure amounts when making 
this determination.'' ACL agrees this provides sufficient guidance for 
State agencies and AAAs, while maintaining flexibility to respond to 
local needs and circumstances.
    Comment: We received comment expressing concern in providing all 
five services statewide given direct care worker shortages, limited 
funding, and other challenges.
    Response: ACL appreciates the challenges faced by the aging network 
in providing services across the country. ACL's expectation is that 
there is a plan for all five services to be available in each PSA in 
each State with multiple

[[Page 11625]]

PSAs, or that there is a plan for statewide availability of services 
for single PSA States, subject to availability of funds under the Act. 
This plan may include provision of services with funding sources other 
than the OAA, based on the resources and needs of local communities. 
For clarity, we have revised (b) to state, ``State agencies shall 
ensure that there is a plan to provide each of the services authorized 
under this part in each planning and service area, or statewide in 
accordance with a funds distribution plan for single planning and 
service area States, subject to availability of funds under the Act.''
    Comment: Some commenters expressed confusion whether the term 
``family caregiver'' also includes older relative caregivers, and if 
so, recommended it be clear that the same eligibility requirements 
apply.
    Response: Family caregiver support services listed in Sec.  
1321.91(a)(1) through (5) may be provided to family caregivers, 
including older relative caregivers. In other words, ``older relative 
caregivers'' is a subset of ``family caregivers.'' In Sec.  1321.3, 
this rule includes a definition of ``family caregiver'' that includes 
older relative caregivers, as well as a definition of ``older relative 
caregiver,'' since the Act includes requirements specific to services 
provided to non-older relative caregivers at section 373(c)(1)(B).\281\ 
This rule also includes provisions at Sec.  1321.83(c) that state 
service priorities as set forth in at section 373(c)(2).\282\ In the 
rule, we consistently use the term ``family caregiver,'' and we use the 
term ``older relative caregiver'' only when this level of specificity 
is needed. For these reasons, we decline to modify the eligibility and 
priority provisions set forth in this rule.
---------------------------------------------------------------------------

    \281\ Id. section 3030s-1(c)(1)(B).
    \282\ Id. section 3030s-1(c)(2).
---------------------------------------------------------------------------

    Comment: One commenter expressed concern for an increased threshold 
that limits assistance to a caregiver providing support to someone with 
at least two limitations in activities of daily living instead of at 
least two limitations in activities of daily living or independent 
activities of daily living.
    Response: This provision does not represent a change from what is 
required by section 373(c)(1)(B) of the Act.\283\
---------------------------------------------------------------------------

    \283\ Id. section 3030s-1(c)(1)(B).
---------------------------------------------------------------------------

    Comment: One commenter expressed support for the inclusive 
definition of family caregiver to unmarried partners, friends, or 
neighbors, but expressed that the use of ``family'' may deter eligible 
caregivers because they do not consider themselves family. The 
commenter recommended consideration of terms such as ``informal 
caregiver,'' ``natural support caregiver,'' or ``trusted personal 
caregiver.''
    Response: We appreciate this comment and encourage State agencies, 
AAAs, and service providers to use terms that will best reach 
individuals in need of family caregiver support services in their 
outreach, marketing, and service delivery efforts.
    Comment: We received comment requiring a correction to remove an 
extra word in Sec.  1321.91(c).
    Response: We are grateful to the commenters who noted this 
correction and have revised this provision to read, ``[. . .] the 
individual for whom they are caring must be determined to be 
functionally impaired[.]''
    Comment: We received other suggestions, program management 
recommendations, and implementation questions regarding this provision, 
including regarding evidence-informed or evidence-based caregiver 
assessments that may be used.
    Response: We decline to make further changes to this provision and 
intend to address other suggestions and requests for clarification 
through technical assistance.
Sec.  1321.95 Service Provider Title III and Title VI Coordination 
Responsibilities
    Consistent with Sec.  1321.53 (State agency Title III and Title VI 
coordination responsibilities) and Sec.  1321.69 (Area agency on aging 
Title III and Title VI coordination responsibilities), new 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),\284\ 307(a)(21)(A),\285\ 614(a)(11),\286\ and 
624(a)(3) \287\ of the Act. We clarify that coordination is required 
under the Act and that all entities are responsible for coordination, 
including State agencies, AAAs, service providers, and Title VI 
grantees. The section complements the language at Sec.  1321.53 for 
State agencies and Sec.  1321.69 for AAAs and includes those 
requirements specific to service providers.
---------------------------------------------------------------------------

    \284\ 42 U.S.C. 3026(a)(11)(B).
    \285\ 42 U.S.C. 3027(a)(21)(A).
    \286\ 42 U.S.C. 3057e(a)(11).
    \287\ 42 U.S.C. 3057j(a)(3).
---------------------------------------------------------------------------

    Comment: Commenters overwhelmingly expressed support for 
coordination between Title III and Title VI programs. Comments 
expressed concern regarding the lack of coordination with Title VI 
grantees, low amounts of funding provided under Title III to Tribes, 
and lack of technical assistance on how to apply for available Title 
III funds. One commenter recommended that any entities involved in 
provision of services under Title III of the Act to develop their 
procedures for outreach and coordination with the relevant Title VI 
program director. Another commenter expressed they thought the proposed 
language regarding coordination was too permissive. We received a 
comment recommending specifying that services should be delivered in a 
culturally appropriate and trauma-informed manner. Some commenters also 
requested technical assistance on roles and responsibilities. We also 
received other suggestions, program management recommendations, and 
implementation questions regarding this provision, including regarding 
examples and best practices for coordination.
    Response: To make clear the responsibilities of service providers 
under the Act, explicit expectations for coordination between Title III 
and Title VI programs are specified in this rule. The provision at 
Sec.  1321.95 is complementary with the provisions for State agencies 
and area agencies under Title III of the Act as set forth at Sec.  
1321.53 (State agency Title III and Title VI coordination 
responsibilities) and Sec.  1321.69 (Area agency on aging Title III and 
Title VI coordination responsibilities), as well as for Title VI 
grantees under the Act as set forth at Sec.  1322.31 (Title VI and 
Title III coordination). For clarity, we revise each provision to use 
consistent terminology, where appropriate. We explain the changes made 
in the following paragraphs.
    We have reordered the opening paragraph in Sec.  1321.95 as Sec.  
1321.95(a), and we have reordered the subsequent paragraphs 
accordingly. ACL also recognizes the variability of local 
circumstances, resources, and needs. We appreciate the comment 
recommending that Title III entities work with the relevant Title VI 
program directors in developing their policies and procedures regarding 
coordination. We have revised the language at reorganized Sec.  
1321.95(a) to read, ``For locations served by service providers under 
Title III of the Act where there are Title VI programs, the area agency 
on aging's and/or service provider's policies and procedures, developed 
in coordination with the relevant Title VI program director(s), as set 
forth in Sec.  1322.13(a), must explain how the service provider will 
coordinate with Title VI programs.''
    We have created a reordered paragraph Sec.  1321.95(b), and we have 
revised this provision to clarify the

[[Page 11626]]

topics that the policies and procedures set forth in paragraph (a) 
``must at a minimum address[.]'' As such, we clarify that coordination 
is required. We have further made edits to specify how the service 
provider will provide outreach and referrals to tribal elders and 
family caregivers regarding services for which they may be eligible 
under Title III; clarify communication opportunities to include 
meetings, email distribution lists, and presentations; add how services 
will be provided in trauma-informed, as well as culturally appropriate, 
manner; and add ``Opportunities to serve on advisory councils, 
workgroups, and boards.''
    As expectations for this type of coordination are not explicitly 
incorporated in the existing regulation, we believe that the 
promulgation of this final rule will provide a significant opportunity 
to further coordination between Title III and Title VI programs, 
including improving ACL's monitoring programs for compliance. ACL 
anticipates providing technical assistance on this provision and other 
provisions related to coordination among Title VI and Title III 
programs upon promulgation of the final rule.
Subpart E--Emergency and Disaster Requirements
    Based on input from interested parties and our experience, 
particularly during the COVID-19 PHE, we add 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 previous subpart E (Hearing Procedures for 
State Agencies) is no longer necessary since we redesignate and cover 
the provisions in subpart E in subpart B (State Agency 
Responsibilities) of the final rule.
    Although the previous 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,\288\ this MDD triggers certain disaster 
relief authority under section 310 of the Act.\289\ The COVID-19 PHE 
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 PHE, 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.
---------------------------------------------------------------------------

    \288\ Public Law 100-707; 42 U.S.C. 5121-5207.
    \289\ 42 U.S.C. 3030.
---------------------------------------------------------------------------

    Throughout the COVID-19 PHE, we received inquiries and feedback 
that demonstrated a need for clarity on available flexibilities in an 
emergency. RFI and NPRM respondents also provided substantial feedback 
regarding 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 
prior regulatory guidance did 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 and NPRM 
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 
PHE, 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 and disaster 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, part C-2 
funds which are allocated to home-delivered meals for shelf-stable, 
pick-up, carry-out, drive-through, or similar meals, constitute 
innovative ways to deliver services that could be allowable on a 
regular basis within the parameters of Title III, part C-2 and without 
any special authorization by ACL during an emergency. Those 
flexibilities have been incorporated where applicable in the 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) 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.\290\
---------------------------------------------------------------------------

    \290\ Id. section 3030(c).
---------------------------------------------------------------------------

    We also recognize that during an event which results in a MDD, such 
as the COVID-19 PHE, 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 PHE, we discuss 
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 allow in this section, we are 
compelled to list 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.
    Comment: Commenters overwhelmingly expressed support for emergency 
and disaster preparedness and response plans, as well as clearly 
defined expectations and requirements before, during, and after any 
natural disaster.
    We received other suggestions, program management recommendations, 
and implementation questions regarding this provision, including 
allowable provision of goods and services in disaster situations, 
establishing registries of at-risk individuals, ensuring accessible and 
effective communications during emergencies and disasters, and 
connecting with public health departments, emergency response 
organizations, and other long-term services and supports programs and 
providers.
    Response: We appreciate these comments. Other than the changes 
specified in the subsequent paragraphs,

[[Page 11627]]

we decline to make further changes to the provisions under subpart E 
and intend to address other suggestions, program management 
recommendations, implementation questions, and requests for 
clarification through technical assistance.
Sec.  1321.97 Coordination With State, Tribal and Local Emergency 
Management
    New Sec.  1321.97 states that State agencies and AAAs must 
establish emergency plans, per sections 307(a)(28) \291\ and 306(a)(17) 
of the Act,\292\ respectively, and this section specifies requirements 
under the Act that these plans must meet. While the Act requires 
emergency planning by State agencies and AAAs, the Act provides limited 
guidance regarding emergency planning. We also include in this section 
additional guidance in connection with the development of sound 
emergency plans (such as requirements for continuity of operations 
planning, taking an all-hazards approach to planning, and coordination 
with Tribal emergency management and other agencies that have 
responsibility for disaster relief delivery).
---------------------------------------------------------------------------

    \291\ 42 U.S.C. 3027(a)(28).
    \292\ 42 U.S.C. 3026(a)(17).
---------------------------------------------------------------------------

    Comment: We received comments in support of this provision, 
including specifying coordination with Tribal emergency management and 
having policies and procedures in place at all levels of the aging 
network to ensure minimal disruptions to services. We received comment 
requesting that emergencies include climate-related and human-caused 
disasters. Another commenter recommended the definition of ``all-
hazards'' be deferred to the State and that this be specified.
    Response: ACL appreciates these comments of support and notes that 
the regulation specifies an ``all-hazards'' approach. ACL intends that 
includes climate-related, weather-specific, and other natural and 
human-caused disasters, specific to the determination of likely ``all-
hazards'' by the State agency and AAAs.
    Comment: One commenter recommended that service providers under the 
Act be included among those with whom State agencies and AAAs 
coordinate.
    Response: We appreciate this recommendation and have made revisions 
at Sec.  1321.97(a)(1)(ii), (a)(3), and (b)(2) to incorporate service 
providers under the Act.
Sec.  1321.99 Setting Aside Funds To Address Disasters
    New Sec.  1321.99 describes the parameters under which State 
agencies may set aside and use funds during a MDD, per section 310 of 
the Act.\293\
---------------------------------------------------------------------------

    \293\ 42 U.S.C. 3030.
---------------------------------------------------------------------------

    This section also clarifies that State agencies may specify that 
they are setting aside Title III funds for disaster relief in their IFF 
or funds distribution plan. It provides direction as to the process a 
State agency must follow in order to award such funds for use within 
all or part of a PSA covered by a specific MDD where Title III services 
are impacted, as well as requirements with respect to the awarding of 
such funds.
    Comment: We received comments supporting the proposed options for 
State agencies to address disasters as set forth. We received comments 
expressing concern regarding timeframes that apply, recommending 
limitations to proposals to allow State agencies to set aside funds, or 
opposing this proposed provision. Other commenters recommended that 
State agencies be required to consult with AAAs prior to exercising 
this option. Another commenter offered an alternate approach of 
requiring a mandatory input period or having a provision for a AAA 
network appeal of the State agency's plan. One commenter asked for this 
option to be available for State-declared disasters or for additional 
flexibility for State agencies to select the best method for setting 
aside funds.
    Response: ACL agrees that the ideal service delivery mechanism, as 
set forth by the Act, is for regular service provision through AAAs, 
using an approved IFF, or for single PSA States to use their approved 
funds distribution plan. However, we recognize that based on our 
experience during the COVID-19 PHE and in certain other disaster 
situations, circumstances may not allow for the timely and needed 
delivery of services to older adults and family caregivers. For 
example, during the COVID-19 PHE supply chain issues occurred 
relatively quickly and smaller local programs and providers were at a 
disadvantage in procuring food, personal protective equipment, and 
other supplies in comparison to a larger State agency's procurement 
options. It is also possible that a natural disaster might result in 
one or more AAAs or service providers being unable to function. 
Requiring a mandatory input period may not allow for action to be taken 
in the timeframe an emergency may necessitate. We recognize that during 
an event which results in a MDD, statewide procurement or other direct 
expenditures by the State agency may be critical to meeting the mission 
of the Act. Therefore, we propose certain options to be available to 
State agencies to expedite expenditures of Title III funds only in 
exceptional circumstances during a MDD incident period, as set forth in 
paragraph (a) of this provision. ACL sought to balance maintenance of 
the AAAs' role with the need for expedited action in extreme 
circumstances.
    To make clear the requirements that apply in exercising this 
flexibility, we have specified that up to five percent of the total 
Title III allocation may be used if specified in the State agency's 
approved IFF, funds distribution plan, or with prior approval from the 
Assistant Secretary for Aging. We have removed the redundant language 
regarding submitting a State plan amendment at Sec.  1321.99(b)(1) and 
have revised the remaining items under (b) accordingly. We have also 
revised newly ordered Sec.  1321.99(b)(1) to read that the set aside 
funds that are awarded under this provision must comply with the 
requirements under Sec.  1321.101. The provision at reordered Sec.  
1321.101(b)(3)(iii)(B) requires consultation with AAAs prior to 
exercising this flexibility. Further, the provision at Sec.  
1321.101(b)(3)(iii)(C) requires use of set aside funding for services 
provided through AAAs and other aging network partners to the extent 
reasonably practicable.
    To provide appropriate checks on this flexibility, ACL set forth 
the following limitations in Sec.  1321.99 and Sec.  1321.101: (1) this 
flexibility may only be exercised under a MDD, (2) up to five percent 
of the State agency's total Title III allocation or with prior approval 
of the Assistant Secretary for Aging may be set aside, (3) a State 
agency must submit a State plan amendment not requiring prior approval 
detailing various information regarding their use of such a 
flexibility, (4) the State agency must use such funding for services 
provided through AAAs and other aging network partners to the extent 
reasonably practicable in the judgement of the State agency, (5) the 
State agency must report on the clients and units served, and services 
provided with such funds, and (6) if funds are set aside for this 
purpose, the State agency must have policies and procedures in place to 
award the funds through the IFF or funds distribution plan if the funds 
are not awarded within 30 days of the end of the fiscal year in which 
the funds were received, as set forth at Sec.  1321.99(b)(2).

[[Page 11628]]

    As set forth in Sec.  1321.31(b) and this provision, the State plan 
amendment required when using funds set aside to address disasters does 
not require prior approval by the Assistant Secretary for Aging. ACL 
intends this requirement to facilitate transparency and communication 
in times of emergency and disaster and does not intend for response 
times to be hindered. When a State agency obligates funding under this 
provision, they should submit a State plan amendment to include the 
specific entities receiving such funds; the amount, source, and 
intended use for such funds; and other justification of the use of 
these funds. ACL does not find this expectation to be overly 
burdensome.
    As a note, funds awarded within 30 days of the end of the fiscal 
year in which the funds were received may have a project period that 
extends to the length of the State agency's award, subject to the State 
agency's policies and procedures. For example, if FY 2024 funds set 
aside were not used under this provision, they would need to be awarded 
through the IFF or funds distribution plan by August 31, 2024. They 
could have a project period ending up to September 30, 2025, subject to 
the State agency's policies and procedures. As funds provided under 
Title III of the Act typically have a project period of two years, ACL 
believes this provides sufficient time for AAAs and service providers 
to use the funds. ACL encourages the State agency, AAAs, and service 
providers to be in communication regarding the status of and 
expectations for use of these funds. We have added the cross-references 
for the IFF provision (Sec.  1321.49) and funds distribution plan 
(Sec.  1321.51(b)) to Sec.  1321.99(b)(2) for clarity.
    Additionally, use of the flexibility set forth at Sec.  1321.99 is 
not required, and some State agencies may elect not to pursue this 
option given limited availability of funds or for other reasons. Other 
State agencies may provide for emergency and disaster preparedness or 
response through funds awarded through their existing IFFs or funds 
distribution plans. This provision offers an opportunity for State 
agencies to consult with AAAs, service providers, and the general 
public prior to setting aside funds to address disasters. We believe 
that as set forth, these provisions provide the appropriate balance of 
flexibility to State agencies during disaster-related emergencies, and 
decline to make further changes at Sec.  1321.99.
Sec.  1321.101 Flexibilities Under a Major Disaster Declaration
    New Sec.  1321.101 describes disaster relief flexibilities 
available pursuant to Title III under a MDD to provide disaster relief 
services for affected older adults and family caregivers. Recognizing 
that there is no required period of advance notice of the end of a MDD 
incident period, the final rule allows State agencies up to 90 calendar 
days after the end of a MDD incident period to obligate funds for 
disaster relief services or additional time with prior approval from 
the Assistant Secretary for Aging. We also recognize that during an 
event which results in a MDD, such as the COVID-19 PHE, 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 PHE, we set forth additional options to be 
available to State agencies to expedite expenditures of Title III funds 
while under a MDD, including allowing a State agency to procure items 
on a statewide level and allowing a State agency to allocate a portion 
of its State plan administration funds (not to exceed five percent of 
the total Title III grant award) to a PSA covered under a MDD to be 
used for direct service provision without having to allocate the funds 
through the IFF or funds distribution plan. We selected a cap of five 
percent as State agencies are allowed under section 308(b)(2) \294\ of 
the Act to apply the greater of $750,000 or five percent of the total 
Title III grant award to State plan administration. For example, at the 
beginning of the COVID-19 PHE, we provided flexibilities where State 
agencies were able to provide some direct services, like food boxes, to 
areas in the State that were not able to access needed food for older 
adults and their caregivers. This flexibility allowed State agencies to 
quickly provide needed access to food for vulnerable populations where 
access was severely limited at a local level. The terms and conditions 
that will apply to these flexibilities also are set forth in this 
section, such as requirements to submit State plan amendments when a 
State agency intends to exercise such flexibilities (such amendments 
are to include the specific entities receiving the funds, the amount, 
the source, the intended use for the funds, and other justification for 
the use of the funds) and reporting requirements.
---------------------------------------------------------------------------

    \294\ 42 U.S.C. 3028(b)(2).
---------------------------------------------------------------------------

    We received many comments in response to the RFI and NPRM asking 
that various flexibilities allowed during the COVID-19 PHE remain in 
place permanently. We are limited by the Act in the extent to which 
flexibilities may be allowed. For example, a MDD is required in order 
for a State agency to be permitted, pursuant to section 310(c) \295\ 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, and the Act contains limitations on 
the transfer of Title III funds among the various parts of Title III. 
Flexibility was provided for 100 percent of transfer of Title III 
nutrition services funds through separate legislation, the CARES Act, 
which is limited to the period of the declared Public Health Emergency 
for COVID-19.
---------------------------------------------------------------------------

    \295\ 42 U.S.C. 3030(c).
---------------------------------------------------------------------------

    Comment: Many commenters expressed support for allowing flexibility 
in the use of funds as outlined in this provision. Some commenters 
agreed with the timeframe proposed in Sec.  1321.101(g). Other 
commenters expressed concern about the feasibility of fully obligating 
funds under the proposed timeline. We received one comment requesting 
that funds provided for the Ombudsman program under part 1324, subpart 
A, be exempt from use under these flexibilities. One commentor asked 
for clarification regarding the five percent amount of State plan 
administration that the State agency may use and the five percent 
amount for direct expenditures and/or acting to procure items on a 
statewide level that the State agency may use. Other commenters 
expressed confusion regarding the intended use of these provisions.
    Response: We appreciate these comments and have made edits to 
improve the clarity of this provision. We have created new paragraphs 
(b) and (c) and have redesignated the subsequent provisions. In 
paragraph (b) we have specified the flexibilities a State agency may 
exercise under a MDD.
    Through Sec.  1321.101(b), ACL intends to provide three distinct 
flexibilities that a State agency may exercise pursuant to a MDD. 
Section 1321.101(b)(1) allows any portion of open grant awards funds to 
be used for disaster relief services. For example, during the MDD for 
the COVID-19 PHE, this allowed AAAs and service providers to use funds 
originally provided for congregate meals under Title III, part C-1 of 
the Act to be used for home-delivered meals and other purposes that, at 
the time, would

[[Page 11629]]

otherwise have been unallowable absent a MDD.
    Secondly, Sec.  1321.101(b)(2) permits the State agency to redirect 
and use its State plan administration funding for direct service 
provision. For clarity, we have revised this provision to state, 
``Awarding portions of State plan administration, up to a maximum of 
five percent of the Title III grant award or to a maximum of the 
amounts set forth at Sec.  1321.9(c)(2)(iv), for use in a planning and 
service area[.]''
    Thirdly, Sec.  1321.101(b)(3) allows for the State agency's 
awarding of funds set aside to address disasters, as set forth in Sec.  
1321.99, pursuant to a major disaster declaration incident period. This 
provision is in addition to and separate from the provision at Sec.  
1321.101(b)(2). For clarity, we further specify how the State agency 
may use the set aside funds. Section 1321.101(b)(3)(i) provides for 
awarding of funds to an area agency serving a PSA covered in whole or 
in part under a MDD without allocation through the IFF; Sec.  
1321.101(b)(3)(ii) provides for awarding of funds to a service 
provider, in single PSA States, without allocation through the funds 
distribution plan; and Sec.  1321.101(b)(3)(iii) provides for the State 
agency to use funds for direct service provision, direct expenditures, 
and/or procurement of items on a statewide level, subject to 
requirements as specified in Sec.  1321.101(b)(3)(iii)(A) through (D).
    ACL recognizes the importance of the Ombudsman program in 
responding to residents of long-term care facilities in times of 
disasters and other emergencies. ACL also recognizes that there may be 
times when the Ombudsman program is not able to fully use its funding 
during an emergency. The flexibilities described in this provision may 
allow a State agency to meet urgent, time sensitive needs of older 
adults and family caregivers, including residents of long-term care 
facilities. However, in recognition of the importance of proper 
coordination and communication between the State agency and the 
Ombudsman program, we have revised Sec.  1321.101(b)(3)(iii)(B) and (f) 
to better incorporate the Ombudsman program.
    We added a new paragraph (c) to specify the State plan amendment 
requirements that apply. The subsequent provisions are reordered. 
Section 1321.101(c) requires the State agency to submit a State plan 
amendment as set forth in Sec.  1321.31(b) to justify its use of funds 
and to provide transparency about the use of funding flexibilities. 
State plan amendments required under Sec.  1321.31(b) do not require 
prior approval by the Assistant Secretary for Aging. In light of 
commenter concerns about the timeliness of awarding funds and 
submitting the State plan amendment, we have revised Sec.  1321.31(b) 
to clarify timeline for submission of such State plan amendments 
whenever necessary and within 30 calendar days of the action(s) listed 
in the provision.
    The flexibilities under this provision enable State agencies and 
AAAs to provide immediate response in a disaster situation. Extending 
this timeframe would not be aligned with the urgent response time 
expected during disaster response. However, we recognize that 
additional time to obligate funds may be appropriate under certain 
circumstances with prior approval from the Assistant Secretary for 
Aging, as included in the proposed rule.
Sec.  1321.103 Title III and Title VI Coordination for Emergency and 
Disaster Preparedness
    Section 1321.53 (State agency Title III and Title VI coordination 
responsibilities), Sec.  1321.69 (Area agency on aging Title III and 
Title VI coordination responsibilities), and Sec.  1321.95 (Service 
provider Title III and Title VI coordination responsibilities), set 
forth expectations for coordinating activities and delivery of services 
under Title III and Title VI, as articulated in the Act sections 
306(a)(11)(B),\296\ 307(a)(21)(A),\297\ 614(a)(11),\298\ and 
624(a)(3).\299\ New Sec.  1321.103 clarifies that Title III and Title 
VI coordination should extend to emergency and disaster preparedness 
planning, response, and recovery.
---------------------------------------------------------------------------

    \296\ 42 U.S.C. 3026(a)(11)(B).
    \297\ 42 U.S.C. 3027(a)(21)(A).
    \298\ 42 U.S.C. 3057e(a)(11).
    \299\ 42 U.S.C. 3057j(a)(3).
---------------------------------------------------------------------------

    Comment: We received comment in support of this provision. We also 
received recommendation that any entities involved in provision of 
services under Title III of the Act to develop their procedures for 
outreach and coordination with the relevant Title VI program director.
    Response: We appreciate these comments, including recommending that 
Title III entities work with the relevant Title VI program directors in 
developing their policies and procedures regarding coordination. We 
have revised the language at Sec.  1321.103 to read, ``[. . .] policies 
and procedures, developed in communication with the relevant Title VI 
program director(s) as set forth in Sec.  1322.13(c), in place[.]''
    Comment: We received comment requesting that emergencies include 
climate-related and human-caused disasters in Tribal communities.
    Response: ACL appreciates this comment and notes that the 
regulation specifies an ``all-hazards'' approach. ACL intends for 
``all-hazards'' to include climate-related, weather-specific, and other 
natural and human-caused disasters, specific to the determination of 
likely ``all-hazards'' by the State agency, AAAs, and Title VI 
programs.
Sec.  1321.105 Modification During Major Disaster Declaration or Public 
Health Emergency
    New Sec.  1321.105 states that the Assistant Secretary for Aging 
retains the right to modify emergency and disaster-related requirements 
set forth in the regulation under a Major Disaster declared by the U.S. 
President under The Robert T. Stafford Disaster Relief and Emergency 
Assistance Act (Pub. L. 100-707; 42 U.S.C. 5121-5207), or public health 
emergency (PHE) as declared by the U.S. Secretary for Health and Human 
Services.

C. Deleted Provisions

    We remove the following provisions since they are no longer 
necessary and/or applicable, and to avoid potential confusion or 
conflicts due to statutory and/or regulatory changes.
Sec.  1321.5 Applicability of Other Regulations
    We remove Sec.  1321.5, which lists other applicable regulations, 
because the provision is unnecessary and may create confusion or become 
outdated due to statutory or regulatory changes.
Sec.  1321.75 Licenses and Safety
    We remove Sec.  1321.75, which describes State agency and AAA 
responsibilities to ensure that facilities who are awarded funds for 
multipurpose senior center activities obtain appropriate licensing and 
follow required safety procedures, and that proposed alterations or 
renovations of multipurpose senior centers comply with applicable 
ordinances, laws, or building codes. The provision is no longer 
necessary since these responsibilities are addressed by other policies 
and procedures at the State and local levels.

Part 1322--Grants to Indian Tribes for Support and Nutrition Services

Title VI General Comments

    Comment: Many commenters supported the updating and modernizing of 
the regulations. In

[[Page 11630]]

particular, ACL received overwhelmingly positive comments supporting 
the provision of services for Tribal and Hawaiian Native elders and 
family caregivers. Commenters shared the harsh realities for and 
significant needs of Tribal and Hawaiian Native elders and family 
caregivers and requested additional funding for Tribal organizations 
and Hawaiian Native grantees to provide services under the Act.
    Response: ACL appreciates these comments of support. ACL 
anticipates continuing to provide technical assistance to grantees 
under Title VI of the Act in support of Tribal and Hawaiian Native 
elders and family caregivers. We acknowledge comments about funding 
constraints, but funding is outside the scope of this rule.
    Comment: ACL received comments of appreciation for the proposed 
changes to clarify Title VI and other provisions of the Act to better 
allow grantees to serve Native elders and family caregivers. One 
commenter noted that consolidating the sections referencing Title VI 
services to Indian Tribes and Native Hawaiian grantees creates more 
clarity in the regulations, which will permit grantees to better serve 
Native American, Alaskan Native, and Native Hawaiian elders and family 
caregivers.
    Response: ACL appreciates these comments of support.
    Comment: One commenter recommended updating all references from 
``Native Americans'' to ``Indian Tribes.'' Another commenter requested 
use of ``Native Americans'' instead of ``Indians.'' Other commenters 
expressed various beliefs and preferences regarding the appropriate 
terms to use regarding service to American Indian and/or Native 
American elders and family caregivers.
    Response: In this rule, ACL took great care to ensure that the 
terms used are respectful and have appropriate meaning for practical, 
consistent application. We also recognize there is variation in the 
terms used and preferred by different individuals and organizations. In 
this rule, we used the terms as specified in Sec.  1322.3 
(Definitions). We referred to organizations in terms of ``Eligible 
organization,'' ``Hawaiian Native grantee,'' ``Indian tribe,'' \300\ 
and ``Tribal organization.'' \301\ References to ``Hawaiian Native or 
Native Hawaiian,'' \302\ ``Native Americans,'' \303\ and ``Older 
Indians'' are specific to the individual rather than the entity, except 
in the case of referencing a Hawaiian Native grantee. Where existing, 
we used the same definitions as established in the OAA and other 
statutes.
---------------------------------------------------------------------------

    \300\ Section 102(27) of the OAA, 42 U.S.C. 3002(27); sec. 
612(c) of the OAA, 42 U.S.C. 3057c(c).
    \301\ Section 102(56) of the OAA, 42 U.S.C. 3002(56); sec. 
612(c) of the OAA, 42 U.S.C. 3057c(c).
    \302\ Section 102(37)(B) of the OAA, 42 U.S.C. 3002(37)(B); sec. 
625 of the OAA, 42 U.S.C. 3057k.
    \303\ Section 102(37) of the OAA, 42 U.S.C. 3002(37).
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A. Provisions Revised To Reflect Statutory Changes and/or for Clarity

Subpart A--Introduction
Sec.  1322.1 Basis and Purpose of This Part
    Revised Sec.  1322.1 explains the requirements of Title VI of the 
Act to provide grants to Indian Tribes and Native Hawaiian grantees. We 
consolidate 45 CFR part 1322 and 45 CFR part 1323 into 45 CFR part 1322 
and subsequently retitle this part as ``Grants to Indian Tribes and 
Native Hawaiian Grantees for Supportive, Nutrition, and Caregiver 
Services.'' We revise language to affirm the sovereign government to 
government relationship with a Tribal organization, and similar 
considerations, as appropriate for Hawaiian Native grantees 
representing elders and family caregivers, and to ensure consistency 
with statutory terminology and requirements, such as adding reference 
to caregiver services and specifying family caregivers as a service 
population, as set forth in Title VI of the Act. We add language to 
incorporate Native Hawaiians and Native Hawaiian grantees. We also 
clarify that terms not otherwise defined will have meanings ascribed to 
them in the Act.
    Comment: We received multiple comments expressing support for the 
rights of Native Americans and funding to support Native Americans as 
they age.
    Response: We appreciate these comments.
    Comment: One commenter recommended that ACL consider changes to 
Sec.  1322.1(a), specifically the statement ``[. . .] American Indian 
elders on Indian reservations [. . .]'' to instead reference American 
Indians elders and family caregivers from a Federally or State 
recognized Tribe, as not all Tribal elders reside on a reservation.
    Response: ACL acknowledges the population of American Indian elders 
and family caregivers residing outside a reservation. Other Federally 
recognized Tribes do not maintain Tribal reservations. The relevant 
service area for provision of services under Title VI of the Act is 
specified in the definition of ``service area'' in Sec.  1322.3 and 
Sec.  1322.5(b). For clarity, we have revised this provision to read, 
``This program is established to meet the unique needs and 
circumstances of American Indian and Alaskan Native elders and family 
caregivers and of older Native Hawaiians and family caregivers, on 
Indian reservations and/or in service areas as approved in Sec.  
1322.7.''
Sec.  1322.3 Definitions
    Our final rule updates the definitions of significant terms in 
Sec.  1322.3 to reflect current statutory terminology and operating 
practice and to provide clarity. We add several definitions and revise 
several existing definitions. The additions and revisions 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 interested parties. We add definitions of the following 
terms: ``Access to services,'' ``Act,'' ``Area agency on aging,'' 
``Domestically produced foods,'' ``Eligible organization,'' ``Family 
caregiver,'' ``Hawaiian Native or Native Hawaiian,'' Hawaiian Native 
grantee,'' ``In-home supportive services,'' ``Major disaster 
declaration,'' ``Multipurpose senior center,'' ``Native American,'' 
``Nutrition Services Incentive Program,'' ``Older Native Hawaiian,'' 
``Older relative caregiver,'' ``Program income,'' ``Reservation,'' 
``State agency,'' ``Title VI director,'' and ``Voluntary 
contributions.''
    We retain and make minor revisions to the terms: ``Acquiring,'' 
``Altering or renovating,'' ``Constructing,'' ``Department,'' ``Means 
test,'' ``Service area,'' ``Service provider,'' and ``Tribal 
organization.'' We retain with no revisions the terms: ``Budgeting 
period,'' ``Indian reservation,'' ``Indian Tribe,'' ``Older Indians,'' 
and ``Project period.''
    Comment: We received comment expressing support for the added 
definitions to clarify and provide consistency with the intersection of 
Title III and Title VI funding. Other commenters suggested other terms 
for potential definition in this rule.
    Response: ACL appreciates these comments. We have made additional 
edits to definitions for consistency with Title III, where appropriate. 
In lieu of additional definition in this rule, grantees under Title VI 
of the Act may establish their own definitions, as long as they are not 
in conflict with applicable Federal requirements. ACL also intends to 
provide technical assistance to aid in the implementation of this rule.

[[Page 11631]]

    Comment: One commenter recommended changing all references in part 
1322 from ``Tribal Organizations'' to ``Tribal Grantees,'' due to the 
definition of ``Tribal Organization'' set forth in the Indian Self-
Determination and Education Assistance Act (ISDEAA).\304\ The commenter 
stated that the proposed change would reduce the potential of confusing 
a chartered Tribal organization as representing the governing body of 
the Tribe. Another commenter requested that State-recognized Tribes be 
included in the definition of ``eligible organization.''
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    \304\ Public Law 93-638, 88 Stat. 2203 (1975); 25 U.S.C. 5301 et 
seq.
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    Response: Section 612(c) of the Act \305\ expressly provides that, 
for purposes of Title VI, tribal has the same meaning as in section 4 
of the ISDEAA.\306\ Section 612 of the Act \307\ also sets forth the 
criteria for an eligible organization to receive a grant, using the 
criteria in section 4 of the ISDEAA.\308\ Accordingly, ACL uses the 
statutory definitions in this regulation.
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    \305\ 42 U.S.C. 3057(c).
    \306\ 25 U.S.C. 5304.
    \307\ 42 U.S.C. 3057c.
    \308\ 25 U.S.C. 5304.
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    Comment: Commenters requested expansion of the definition of in-
home supportive services and that the definition be consistent with the 
definition in Sec.  1321.3, to allow for collaboration with other 
programs. Commenters also asked for consistency in the example of 
``minor modification of homes'' in part 1321.
    Response: We have revised the definition of in-home supportive 
services in response to the comments. We similarly have amended this 
definition in part 1321 for consistency.
    Comment: We received many comments supporting an inclusive 
definition of family caregiver, as well as suggestions for expanded 
wording of the definition. One commenter recommended ACL consider 
alternatives to the term ``informal'' within the ``family caregiver'' 
definition to avoid minimizing their invaluable role and avoid 
inaccuracy due to some receiving financial compensation.
    Response: ACL appreciates these comments and concurs that the 
definition includes non-traditional families and families of choice. We 
believe that the definition is sufficiently broad to account for the 
concerns raised by commenters. To address family caregivers who may 
receive limited financial compensation, we have revised the definition 
to add, ``For purposes of this part, family caregiver does not include 
individuals whose primary relationship with the older adult is based on 
a financial or professional agreement.'' We have made a similar edit to 
the definition in part 1321.
    Comment: We received comments questioning the use of the term 
``multi-purpose senior centers'' to reference a service. We also 
received comments disagreeing with definition, including with the 
inclusion of virtual facilities. Other commenters expressed 
appreciation for the inclusion of virtual facilities to reflect a 
growing number of programs and services offered online after the 
pandemic, noting this may make programs more accessible and equitable.
    Response: We appreciate these comments and have revised Sec.  
1322.3 to indicate ``[. . .] as used in Sec.  1322.25, facilitation of 
services in such a facility.'' We also agree with commenters that 
allowing virtual facilities ``as practicable'' provides options for 
various service modalities to reflect local circumstances, while 
remaining true to the definition of multipurpose senior center as set 
forth in the Act.
    Comment: One commenter expressed concern about the definition of 
service area and how to serve Tribal elders residing in urban areas 
outside of the reservation.
    Response: Service areas are required by section 614(c)(4) of the 
OAA and are approved through the funding application process.\309\ 
Grantees under Title VI of the Act may facilitate service to elders and 
family caregivers living outside the service area through appropriate 
coordination with Title III and other programs.
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    \309\ 42 U.S.C. 3057e(c)(4).
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    Comment: We received comments and suggestions regarding 
clarification to the definition of ``voluntary contributions.''
    Response: We appreciate these comments and suggestions. We have 
revised the definition of ``voluntary contributions'' to read, ``[. . 
.] means donations of money or other personal resources given freely, 
without pressure or coercion, by individuals receiving services under 
the Act.'' We have made a similar change to the definition in part 1321 
for consistency. We also intend to address other suggestions and 
requests for clarification through technical assistance.
Subpart B--Application
Sec.  1322.5 Application Requirements
    We redesignated Sec.  1322.19 of the existing regulation 
(Application requirements) as Sec.  1322.5 and revised the provisions 
to reflect updates to the Act. We specify that application submissions 
must include program objectives; a map and/or description of the 
geographic boundaries of the proposed service area; documentation of 
supportive and nutrition services capability; certain assurances; a 
tribal resolution; and signature by a principal official.
    Comment: Many commentors expressed concern with Sec.  1322.5(d)(1) 
which requires eligible organizations to represent at least 50 
individuals age 60 and older in order to apply for funding. Several 
asked that the age of an elder as established by the eligible 
organization be used in qualifying to apply for funds under Title VI of 
the Act and that no minimum number of elders be required to apply for 
funds.
    Other commenters expressed need to amend the current funding 
formula for allocation of services to include the population under age 
60 as it results in unfunded eligibility. One commenter noted that 
after COVID-19, life expectancy for American Indians decreased by 6.6 
years. An additional commenter noted that many communities, including 
some Alaskan Tribes, have a great number of elders in need over the 
Tribal elder age of 50 but may not have at least 50 elders who are age 
60. They therefore are not eligible to apply for funding.
    Response: ACL acknowledges the decreased life expectancy and many 
needs of Native American elders and family caregivers. However, we are 
unable to make changes in this provision, as this would require 
statutory changes to section 612(a).\310\ We emphasize that smaller 
Tribes may be eligible to apply for Title VI funding as a consortium. 
ACL is available to provide technical assistance regarding how Tribes 
with a smaller number of elders who are at least 60 years of age may 
apply for funding under Title VI of the Act.
---------------------------------------------------------------------------

    \310\ 25 U.S.C. 5304(a).
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    Comment: Commenters expressed issues with inadequate funding based 
on current funding formula/distribution procedures. They noted that 
Tribal nations only receive 2% of the OAA budget and that Title VI 
funding should be increased and provided directly to Tribal nations 
through ISDEAA Title I contracts and Title V compacts to fulfill trust 
and treaty obligations.
    Response: The amount of OAA funding is determined by Congress and 
beyond the scope of this regulation. The Act sets out the requirements 
for making funding awards to Tribal organizations with approved funding 
applications.

[[Page 11632]]

    Comment: One commenter recommended including Indian Health Service 
maps to identify service areas as an acceptable submission under Sec.  
1322.5(b).
    Response: Indian Health Service maps may be used to describe the 
geographic service area proposed. Section 614(c)(4) of the Act allows 
an applicant to provide an appropriate narrative description of the 
geographic area to be served and an assurance that procedures will be 
adopted to ensure against duplicate services.\311\
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    \311\ 42 U.S.C. 3057e(c)(4).
---------------------------------------------------------------------------

    Comment: One commenter expressed concern that new applicants might 
not be able to meet the requirement Sec.  1322.5(c) of their ability to 
provide supportive and nutrition services effectively or that they have 
provided such services for the past three years. Another commenter 
stated that Title VI programs may lack funding and capacity to develop 
and submit a Title VI application. They suggest adequate training, 
financial resources, and updated guidance document be provided to 
ensure programs fully understand what is expected.
    Response: The application requirements in Sec.  1322.5 are 
consistent with those in effect in the most recent cycle of Title VI 
funding and as set forth in the Act. Documentation of supportive and 
nutrition services capacity is an important application component. The 
rule provides the options of attesting to this capacity either with 
documentation of such services provided within the last three years or 
with documentation of the ability to do so.
    ACL provides significant training and guidance documents on the 
Older Indians website, available at https://olderindians.acl.gov. We 
will continue to provide technical assistance and guidance to grantees 
and prospective grantees.
Sec.  1322.7 Application Approval
    Section 1322.21 of the existing regulation (Application approval) 
is redesignated here as Sec.  1322.7. We make minor revisions to align 
the provision with updates to the Act and to clarify that no less than 
annual performance and fiscal reporting is required.
    Comment: We received numerous comments on the inadequacy of funding 
for Title VI programs.
    Response: The amount of funding for OAA programs is determined by 
Congress and thus is outside the scope of this regulation.
Sec.  1322.9 Hearing Procedures
    Section 1322.23 of the existing regulation (Hearing procedures) is 
redesignated here as Sec.  1322.9. Section 614(d)(3) of the Act 
provides opportunity for a hearing when an organization's application 
under section 614 is denied.\312\ As under Title III, hearings will be 
conducted by the HHS Departmental Appeals Board (DAB).
---------------------------------------------------------------------------

    \312\ 42 U.S.C. 3057e.
---------------------------------------------------------------------------

    We received no comments on Sec.  1322.9. However, we have made 
technical corrections to remove unnecessary words and to align the 
section with 45 CFR part 16.
Subpart C--Service Requirements
Sec.  1322.13 Policies and Procedures
    We combined Sec. Sec.  1322.9 (Contributions), 1322.11 (Prohibition 
against supplantation), and 1322.17 (Access to information) of the 
existing regulation and redesignated them as Sec.  1322.13 (Policies 
and procedures). We also combined into Sec.  1322.13 the areas for 
which a Tribal organization or Hawaiian Native grantee must have 
established policies and procedures.
    Section 1322.13 specifies programmatic and fiscal requirements for 
which a Tribal organization or Hawaiian Native grantee should have 
established policies and procedures. These include identifying an 
individual to serve as the Title VI director; collecting and submission 
of data and other reports to ACL; ensuring that the direct provision of 
services meet requirements of the Act; client eligibility; coordination 
with area agencies on aging and other Title III and VII-funded 
programs; specifying a listing and definitions of services that may be 
provided by the Tribal organization or Hawaiian Native grantee; 
detailing any limitations on the frequency, amount, or type of service 
provided; and the grievance process for older Native Americans and 
family caregivers who are dissatisfied with or denied services under 
the Act.
    We have previously provided technical assistance to Tribal 
organizations or Hawaiian Native grantees that were unaware of certain 
fiscal requirements and/or did not understand their obligations under 
these requirements. We add Sec.  1322.13(c)(2) to provide clarity 
regarding policies and procedures for fiscal requirements such as 
voluntary contributions; buildings and equipment; and supplantation. In 
particular, Sec.  1322.13(c)(2)(ii) addresses the need to ensure that 
the funding is used for allowable costs that support allowable 
activities; to ensure consistency in the guidance provided by ACL; and 
to affirm that altering and renovating activities are allowable for 
facilities providing services under this section.
    Comment: Commenters expressed concern that the number of policies 
and procedures being asked of Title VI programs could be burdensome, 
that they would need additional staff to support the changes, and that 
they lack sufficient funds to meet the requirements of Sec.  1322.13.
    Response: Section 1322.13 responds to requests for technical 
assistance and feedback from listening sessions by clarifying the 
policies and procedures that grantees under Title VI of the Act must 
have. The provisions reflect current expectations for grantees under 
Title VI of the Act. ACL is committed to supporting all grantees with 
technical assistance so that they may comply with the requirements.
    Comment: One commenter noted grievance processes are usually in 
place at the Tribal level, but they can be difficult to navigate.
    Response: Section 1322.13(c)(1)(iv) requires there to be a 
grievance process for elders and family caregivers who are dissatisfied 
with or denied services under the Act. In deference to Tribal 
sovereignty, the grantee under Title VI of the Act is to specify the 
process to be used. ACL will provide technical assistance regarding how 
grievance processes can be designed for appropriate navigation by 
elders and family caregivers.
Sec.  1322.15 Confidentiality and Disclosure of Information
    Section 1322.7 of the existing regulation (Confidentiality and 
disclosure of information) is redesignated here as Sec.  1322.15. We 
make minor revisions to align the provision with updates to definitions 
and consolidation of part 1323 regarding applicability to a Hawaiian 
Native grantee. We also specify that a provider of legal assistance 
shall not be required to reveal any information that is protected by 
attorney client privilege; policies and procedures are in place to 
maintain confidentiality of records; and information may be shared with 
other organizations, as appropriate, in order to provide services. The 
Tribal organization or Hawaiian Native grantee may also require the 
application of other laws and guidance for the collection, use, and 
exchange of both PII and personal health information.
    Comment: A commenter expressed the need for respecting data 
sovereignty regarding Tribal laws and that Tribal

[[Page 11633]]

laws should supersede reporting requirements.
    Response: ACL respects issues relating to sensitivity of data 
ownership and use with respect to Title VI programs. As such, the data 
addressed in Sec.  1322.13(b) is used for program management, fiscal 
accountability, and budget justification purposes. ACL is committed to 
following appropriate data collection requirements, including meeting 
Paperwork Reduction Act requirements. The current data collection 
requirements for performance reporting are approved under OMB Control 
No. 0985-0007.
    Comment: We received comments that expressed strong support for 
ACL's proposal to clarify the obligation of Tribal organizations and 
Hawaiian Native grantees and other providers to protect the 
confidentiality of OAA participants and to specify that policies and 
procedures must comply with all applicable Federal laws, codes, rules, 
and regulations. However, another commenter felt that as sovereign 
nations, Native communities should not be required to enforce the 
National Institutes for Standards Cybersecurity and Privacy Frameworks 
as well as other applicable Federal laws. Instead, they stated that 
Tribal entities should be allowed to determine what works best for 
their respective community.
    Response: ACL appreciates these comments and has removed the 
National Institutes for Standards Cybersecurity and Privacy Frameworks 
requirement from the final rule.
Sec.  1322.25 Supportive Services
    Section 1322.13 of the existing regulation (Supportive services) is 
redesignated here as Sec.  1322.25. Revised Sec.  1322.25 clarifies the 
supportive services available under Title VI, parts A and B of the Act 
are intended to be comparable to such services set forth in Title III 
of the Act. Supportive services under Title III of the Act include in-
home supportive services, access services, and legal services. We 
clarify allowable use of funds, including for acquiring, altering or 
renovating, and constructing multipurpose senior centers.
    We also clarify that inappropriate duplication of services be 
avoided for participants receiving service under both part A or B and 
part C and include minor language revisions for clarity and consistency 
with updated definitions.
    Comment: ACL received comment supporting the proposal to clarify 
the allowable use of funds and that Title VI-funded supportive services 
include in-home supportive, access, and legal services.
    Response: ACL appreciates this comment.
Sec.  1322.27 Nutrition Services
    Section 1322.15 of the existing regulation (Nutrition services) is 
redesignated here as Sec.  1322.27. Revised Sec.  1322.27 clarifies 
that nutrition services available under Title VI, parts A and B of the 
Act are intended to be comparable to services available under Title III 
of the Act. Section 614(a)(8) of the Act requires nutrition services to 
be substantially in compliance with the provisions of part C of Title 
III, which includes congregate meals, home-delivered meals, nutrition 
education, nutrition counseling, and other nutrition services.\313\ 
Based on experiences during the COVID-19 PHE and numerous requests for 
flexibility in provision of meals, we clarify that home-delivered meals 
may be provided via home delivery, pick-up, carry-out, drive-through, 
or as determined by the Tribal organization or Hawaiian Native grantee; 
that eligibility for home-delivered meals is determined by the Tribal 
organization or Hawaiian Native grantee and 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.
---------------------------------------------------------------------------

    \313\ 42 U.S.C. 3057e(a)(8).
---------------------------------------------------------------------------

    We specify that the Tribal organization or Hawaiian Native grantee 
must provide congregate and home-delivered meals, and nutrition 
education, nutrition counseling, and other nutrition services may be 
provided, with funds under Title VI part A or B of the Act. We also 
include minor clarifications for consistency.
    Finally, this provision sets forth requirements for NSIP 
allocations. NSIP allocations are based on the number of meals reported 
by the Tribal organization or Hawaiian Native grantee which meet 
certain requirements, as specified. A Tribal organization or Hawaiian 
Native grantee may choose to receive their allocation grants as cash, 
commodities, or a combination thereof. NSIP funds may only be used to 
purchase domestically produced foods 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 NSIP funds.
    Comment: We received a comment asking to allow Title VI programs to 
use NSIP funds to purchase food directly from Tribes and Tribal 
organizations and for traditional foods.
    Response: Purchase of food from Tribes and Tribal organizations in 
the United States is considered to be domestically produced food and 
consistent with Sec.  1322.27. ACL encourages the purchase of 
traditional foods and other foods from Tribes and Tribal organizations 
in the United States and intends that the promulgation of this rule 
makes this clear.
    Comment: Commenters supported ACL's proposals to clarify the 
provision of nutrition services. One commenter recommended additional 
flexibility for nutrition services requirements that limit service 
options in remote Tribal areas. Another commenter expressed concern 
about the proposed expansion of home-delivered meals to older adults 
who are not homebound due to concerns surrounding funding and staff 
capacity. One commenter noted that aligning services to the 
requirements of Title III may create more barriers to funding 
flexibility. We also received comments regarding reporting and other 
program implementation matters.
    Response: ACL appreciates these comments. The OAA states that 
nutrition services available under Title VI, parts A and B of the Act 
are intended to be comparable to such services set forth in Title III 
of the Act. Based on comments received, we have revised Sec.  
1322.27(a)(4) to remove reference to the Nutrition Care Process, 
consistent with changes in part 1321. We have also made other edits for 
consistency with these similar provisions in part 1321.
    The provisions of Sec.  1322.13, regarding policies and procedures 
to implement Title VI services, offer existing flexibilities to address 
remote areas, as well as to set priorities for how and to whom services 
will be provided given limited funds. We will provide technical 
assistance to address reporting concerns and other program 
implementation matters.

B. New Provisions Added To Clarify Responsibilities and Requirements 
Under Grants to Indian Tribes and Native Hawaiian Grantees for 
Supportive, Nutrition, and Caregiver Services

    The final rule includes the following new provisions to provide 
guidance in response to inquiries and feedback received from grantees 
and other interested parties and changes in the provision of services, 
and to clarify requirements under the Act.

[[Page 11634]]

Subpart C--Service Requirements
Sec.  1322.11 Purpose of Services Allotments Under Title VI
    New Sec.  1322.11 specifies that services provided under Title VI 
consist of supportive, nutrition, and family caregiver support program 
services, and that funds are to assist a Tribal organization or 
Hawaiian Native grantee to develop or enhance comprehensive and 
coordinated community-based systems for older Native Americans and 
family caregivers. We received no comments on this section.
Sec.  1322.17 Purpose of Services--Person- and Family-Centered, Trauma-
Informed
    New Sec.  1322.17 clarifies that services under the Act should be 
provided in a manner that is person-centered and trauma-informed. 
Recipients of services 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.
    Comment: We received many comments expressing support for 
culturally sensitive, person- and family-centered, and trauma-informed 
approaches and practices in working with Native American elders and 
family caregivers. Other comments requested guidance in implementing 
these provisions. We also received comment that the term ``holistic 
traditional care'' would be a more appropriate term, as it implies the 
entire person within a setting which includes familial, cultural, and 
historical components.
    Response: We appreciate these comments and have revised Sec.  
1322.17 to include culturally appropriate holistic traditional care.
    Comment: One commenter expressed concern that the section is not 
clear if this provision is required for all services that are provided, 
given use of the terms ``as appropriate'' and ``if applicable.''
    Response: ACL acknowledges the comment and uses the terms ``as 
appropriate'' and ``if applicable'' to reflect the variety of services 
that may be provided and to maintain the inherent flexibility of the 
OAA to respond to the needs of the local Tribal communities. For 
example, not all services use a person-centered plan; a person-centered 
plan would not be appropriate for a public education service. Grantees 
under Title VI of the Act can implement these provisions to best meet 
their circumstances, as long as implementation is consistent with all 
applicable Federal requirements. We intend to address further questions 
and requests for clarification through technical assistance.
Sec.  1322.19 Responsibilities of Service Providers
    New Sec.  1322.19 specifies the responsibilities of service 
providers to include providing service participants with an opportunity 
to contribute to the cost of the service; providing self-directed 
services to the extent feasible; acknowledging service provider 
responsibility to comply with local APS requirements, as appropriate; 
arranging for weather-related and other emergencies; assisting 
participants to benefit from other programs; and coordinating with 
other appropriate services.
    Comment: We received comment expressing support for specifying the 
responsibilities of service providers and suggesting two 
responsibilities be added: cultural competence training and inclusion 
of nondiscrimination language.
    Response: ACL appreciates this comment. Nondiscrimination policies 
are among the Federal requirements that apply to all service providers 
under the Act. ACL recognizes that cultural competence training is best 
offered locally to honor distinct Tribal and Hawaiian Native 
differences and local availability. As such we have revised the text to 
include, ``Receive training to provide services in a culturally 
competent manner and consistent with Sec. Sec.  1322.13 through 
1322.17.''
Sec.  1322.21 Client Eligibility for Participation
    To be eligible for services under the Act, participants must have 
attained the minimum age determined by the Tribal organization or 
Hawaiian Native grantee, 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 Tribal organizations and Native 
Hawaiian grantees, as well as from others in the aging network, about 
eligibility requirements for Title VI services. For example, we 
received feedback expressing confusion as to whether younger caregivers 
of adults of any age are eligible to receive Title VI part C program 
services, which is not allowable under the Act, as well as the 
circumstances under which non-Native Americans who live within a Tribal 
organization's or Hawaiian Native grantee's approved service area and 
are considered members of the community by the Tribal organization may 
be eligible to receive services under this part.
    New Sec.  1322.21 clarifies eligibility requirements under the Act 
and explains that a Tribal organization or Hawaiian Native grantee 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.
    Comment: One commenter supported ACL clarifying that a Tribal 
organization or Native Hawaiian grantee may adopt eligibility 
requirements beyond those included in the OAA, as long as they don't 
conflict with the OAA or guidance from the Assistant Secretary for 
Aging. Another commenter stressed the importance of upholding Tribal 
sovereignty and favorably cited this provision as honoring sovereignty. 
We received additional comments encouraging ACL to widen the scope of 
service to eligible individuals based on their membership status within 
Federally or State recognized Tribes regardless of having a residence 
on Federally recognized reservations.
    Response: These regulations do not require elders receiving 
services to live on a reservation of a Federally recognized Tribe. In 
fact, there are Federally recognized Tribes that do not have 
reservation lands. ACL respects Tribal sovereignty, and has included 
the following at Sec.  1322.21(b), ``A Tribal organization or Hawaiian 
Native grantee may develop further eligibility requirements for 
implementation of services for older Native Americans and family 
caregivers, consistent with the Act and other applicable Federal 
requirements.'' Among these is ``geographic boundaries'' in Sec.  
1322.21(b)(2). As we believe this offers maximum flexibility to Tribes, 
Tribal organizations, and Hawaiian Native grantees under the Act, we 
make no further edits to this section.
Sec.  1322.23 Client and Service Priority
    We previously received numerous inquiries about how a Tribal 
organization or Hawaiian Native grantee 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 in the wake of the COVID-19 Public Health 
Emergency (PHE). Entities sought clarification on whether they are 
permitted to set priorities, who is permitted to set priorities, and 
the

[[Page 11635]]

degree to which entities have discretion to set their own priority 
parameters.
    New Sec.  1322.23 clarifies that entities may prioritize services 
and that they have flexibility to set their own policies based on their 
assessment of local needs and resources. For clarity and convenience, 
we list the priorities for serving family caregivers as set forth in 
section 631(b) of the Act.\314\
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    \314\ 42 U.S.C. 3057k-11(b).
---------------------------------------------------------------------------

    Comment: Commenters supported the flexibility given to Tribal 
organizations and Native Hawaiian grantees to prioritize services and 
set their own policies based on their assessment of local need and 
resources. One commenter requested that language be added to include 
assessments based on greatest social or economic needs. Another 
commenter recommended that ACL consider the adoption of explicit 
language referring to LGBTQI+ Indian and Native Hawaiian older adults, 
Two-Spirit older adults, and Indian and Native Hawaiian older adults 
with HIV and including such language in all non-discrimination 
provisions and in cultural competency training requirements.
    Response: ACL appreciates these comments and encourages 
prioritization of services to assist elders with the greatest social 
and the greatest economic needs, including the populations referenced 
in the comments. Section 1322.23 directs grantees to conduct their own 
assessment of local needs and resources, as well as to identify 
criteria for prioritizing the delivery of services. In order to 
maintain flexibility of Tribal organizations and Hawaiian Native 
grantees, ACL declines to further specify how this is done in this 
rule. However, ACL will provide technical assistance in implementing 
these provisions.
Sec.  1322.29 Family Caregiver Support Services
    New Sec.  1322.29 implements section 631 of the Act related to 
family caregiver support services.\315\ It clarifies the services 
available; eligibility requirements for respite care and supplemental 
services; and allowable use of funds.
---------------------------------------------------------------------------

    \315\ 42 U.S.C. 3057k-11.
---------------------------------------------------------------------------

    Comment: Commenters supported the breadth of Sec.  1322.29. One 
commenter noted that while they support flexible definitions of family 
caregiving, they are concerned that as more people will be eligible for 
services, this would require additional funds.
    Response: ACL appreciates these comments and notes that funding 
decisions are outside the scope of this rule.
Sec.  1322.31 Title VI and Title III Coordination
    Consistent with Sec.  1321.53 (State agency Title III and Title VI 
coordination responsibilities), Sec.  1321.69 (Area agency on aging 
Title III and Title VI coordination responsibilities), and Sec.  
1321.95 (Service provider Title III and Title VI coordination 
responsibilities), new Sec.  1322.31 outlines expectations for 
coordinating activities and delivery of services under Title VI and 
Title III, as articulated in sections 306(a)(11)(B),\316\ 
307(a)(21)(A),\317\ 614(a)(11),\318\ and 624(a)(3) of the Act.\319\ We 
clarify that coordination is required under the Act and that all 
entities are responsible for coordination, including Tribal 
organizations and a Hawaiian Native grantee, State agencies, AAAs, and 
service providers.
---------------------------------------------------------------------------

    \316\ 42 U.S.C. 3026(a)(11)(B).
    \317\ 42 U.S.C. 3027(a)(21)(A).
    \318\ 42 U.S.C. 3057e(a)(11).
    \319\ 42 U.S.C. 3057j(a)(3).
---------------------------------------------------------------------------

    Comment: Commenters overwhelmingly expressed support for 
coordination between Title VI and Title III programs. They expressed 
concern about the lack of coordination between Title VI grantees and 
State agencies, low amounts of funding provided under Title III to 
Tribes, and lack of technical assistance on how to apply for available 
Title III funds. One commenter recommended that any entities involved 
in provision of services under Title III of the Act develop their 
procedures for outreach and coordination with the relevant Title VI 
program director. Another commenter expressed that the proposed 
language regarding coordination was too permissive. A commenter 
recommended specifying that services should be delivered in a 
culturally appropriate and trauma-informed manner. Some commenters also 
requested technical assistance for State agencies on their roles and 
responsibilities. We also received other suggestions, program 
management recommendations, and implementation questions regarding this 
provision, including regarding examples and best practices for 
coordination.
    Response: ACL expects coordination between Title VI and Title III 
programs. As stated above, Sec.  1322.31 sets forth the same 
requirements for Title VI programs as are set forth in Sec.  1321.53 
for State agencies, in Sec.  1321.69 for AAAs, and in Sec.  1321.95 for 
service providers under Title III of the Act. Based on the comments 
received, we revised each provision to use consistent language, where 
appropriate. We explain the changes made in the following paragraphs.
    We have reordered the opening paragraph in Sec.  1322.31 as Sec.  
1322.31(a) and have reordered the subsequent paragraphs accordingly. We 
have further revised the language in reorganized Sec.  1322.31(a) to 
read, ``A Tribal organization or Hawaiian Native grantee under Title VI 
of the Act must have policies and procedures, developed in coordination 
with the relevant State agency, area agency or agencies, and service 
provider(s) that explain how the Title VI program will coordinate with 
Title III and/or VII funded services [. . .] A Tribal organization or 
Hawaiian Native grantee may meet these requirements by participating in 
tribal consultation with the State agency regarding Title VI 
programs.''
    We have created a reordered paragraph Sec.  1322.53(b) and have 
made revisions to clarify topics that the policies and procedures set 
forth in paragraph (a) ``[. . .] must at a minimum address[.]'' By 
using these words, ACL makes clear that coordination is required. We 
have further made edits to include how outreach and referrals will be 
provided to Tribal elders and family caregivers regarding services for 
which they may be eligible under Title III and/or VII; remove duplicate 
language which was incorporated into revised paragraph (a); revise ``[. 
. .] such as [. . .]'' to ``[. . .] to include [. . .]'' in reference 
to meetings, email distribution lists, and presentations regarding 
communication opportunities; add ``How services will be provided in a 
culturally appropriate and trauma-informed manner;'' and make other 
grammatical edits for consistency.
    We have also added new Sec.  1322.31(c) to state, ``The Title VI 
program director, as set forth in Sec.  1322.13(a), shall participate 
in the development of policies and procedures as set forth in 
Sec. Sec.  1321.53, 1321.69, and 1321.95.''
    There are multiple successful examples of such coordination that 
ACL is committed to sharing and expanding. We believe that the 
promulgation of these regulations will provide a significant 
opportunity to further coordination between Title VI and Title III 
programs, including improving ACL's monitoring programs for compliance. 
ACL anticipates providing technical assistance on this provision and 
other provisions related to coordination among Title VI and Title III 
programs upon promulgation of the final rule.
    Regarding provision of Title III funding to Tribes, the amount of 
available Title III funding is limited to what is appropriated for such 
purposes. State agencies are required to distribute such funding to 
AAAs via an IFF in

[[Page 11636]]

States with multiple PSAs, as required by the Act and as set forth at 
Sec.  1321.49. In some States, Tribes have been designated as AAAs and 
receive Title III funds. Single PSA State agencies are required to 
distribute funds in accordance with a funds distribution plan as set 
forth at Sec.  1321.51(b), and Title VI programs may receive funds 
under a contract or grant with a State agency in such States. State 
agencies and AAAs are required to establish and follow procurement 
policies in awarding Title III funds under the Act, which may allow for 
awarding of funds to Title VI grantees, Tribes, and other Tribal 
organizations.
    ACL emphasizes that this new provision is included based on 
feedback by Tribes and Title VI-funded programs to specify that 
coordination is a requirement. While coordination is a requirement, 
there are various ways for grantees under Title VI and Title III of the 
Act to coordinate. ACL encourages Tribes and Tribal organizations to 
apply to provide Title III-funded services. However, the statute does 
not allow for a requirement that Title III funds be provided to Title 
VI grantees outside of the procurement policies in place for awarding 
of Title III funds under the Act.
Subpart D--Emergency & Disaster Requirements
    The COVID-19 PHE highlighted the importance of the efforts of 
Tribal organizations and the Hawaiian Native grantee to maintain the 
health and wellness of older Native Americans and family caregivers. 
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 emergencies and 
disasters may uniquely affect older Native Americans and family 
caregivers.
    If a State or Indian Tribe (whether directly, or through 
association with the State) receives a MDD by the President under the 
Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 
U.S.C. 5121-5207, section 310 of the Act applies, and provides 
flexibility related to disaster relief.\320\ The COVID-19 PHE for 
example, demonstrated the devastating impact on the target population 
of services under the Act. During the pandemic, all States and some 
Indian Tribes received a MDD, and we provided guidance on flexibilities 
available under the Act while under a MDD to meet the needs of older 
Native Americans and caregivers, 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.
---------------------------------------------------------------------------

    \320\ 42 U.S.C. 3030.
---------------------------------------------------------------------------

    Throughout the COVID-19 PHE we received inquiries and feedback that 
demonstrated a need for clarity on available flexibilities in an 
emergency. RFI and NPRM respondents also provided substantial feedback 
regarding limitations and the need for additional guidance and options 
for serving older adults during emergencies. Multiple RFI respondents 
noted that services under the Act may be impacted by a wide range of 
emergencies and disasters--including natural, human-caused, climate-
related, and viral disasters--and that previous regulatory guidance did 
not provide service providers under the Act the flexibility necessary 
to adequately plan for emergency situations. Accordingly, the aging 
network sought an expansion of the definition of ``emergency'' that 
better reflected their realities regarding service delivery. RFI and 
NPRM 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 the COVID-19 PHE, 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 outlining what is expected of a grantee under the 
Act in an emergency to allow for the development of better emergency 
and disaster preparedness plans at all levels.
    Based on input from interested parties and our experience, 
particularly during the COVID-19 PHE, we add Subpart D--Emergency and 
Disaster Requirements (Sec. Sec.  1322.33-1322.39) to explicitly 
outline expectations and clarify flexibilities that are available in a 
disaster situation. We considered various approaches in developing this 
section. Certain flexibilities, such as allowing 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 VI 
part A or B and without any special authorization by ACL during an 
emergency. Those flexibilities have been incorporated where applicable 
in the revised regulation for clarification purposes (see Sec.  
1322.27, 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 in order for a Tribal organization or Hawaiian Native 
grantee to be permitted, pursuant to section 310(c) of the Act,\321\ to 
use Title VI funds to provide disaster relief services (which must 
consist of allowable services under the Act) for areas of the service 
area where the specific major disaster declaration is authorized and 
where older Native Americans and family caregivers are affected.
---------------------------------------------------------------------------

    \321\ 42 U.S.C. 3030(c).
---------------------------------------------------------------------------

    Comment: We received comment expressing general support for 
inclusion of this subpart and flexibility to innovatively address 
disasters and emergencies.
    Response: ACL appreciates this comment.
Sec.  1322.33 Coordination With Tribal, State, and Local Emergency 
Management
    New Sec.  1322.33 states that Tribal organizations and Hawaiian 
Native grantees must establish emergency plans, and this section 
outlines requirements that these plans must meet. While the Act 
requires emergency planning by State agencies and area agencies on 
aging, the Act provides limited guidance regarding emergency planning 
specific to Title VI grantees. We also include in this section 
additional guidance in connection with the development of sound 
emergency plans (such as requirements for continuity of operations 
planning, taking an all-hazards approach to planning, and coordination 
among Tribal, State, and local emergency management and other agencies 
that have responsibility for disaster relief delivery).
    Comment: We received comments supporting ACL's proposal to require 
Tribal organizations and Hawaiian Native grantees to establish 
emergency plans, to specify the requirements those plans must meet, and 
to provide guidance regarding development of emergency plans. We 
received comment recommending any regulations directing the State 
agency or AAAs to develop procedures for outreach and coordination with 
Tribes be developed in consultation with that community's Title VI 
program directors. Another commenter noted there are existing Tribal 
emergency plans that could be used to comply with the section and that 
in incidences where there is an opportunity to coordinate, it could be 
captured with a memorandum of understanding.
    Response: ACL appreciates these comments. The provisions in part 
1322 are specific to the expectations for

[[Page 11637]]

grantees under Title VI of the Act. Expectations for grantees under 
Title III of the Act are in part 1321. In response to the 
recommendation to consult with the appropriate Title VI program 
directors, we have made this change at Sec.  1321.103. ACL agrees that 
existing Tribal emergency plans that address coordination with the 
services funded under Title VI of the Act, in accordance with these 
provisions, would meet these expectations. Establishing a memorandum of 
understanding is also a reasonable method to meet the expectations as 
set forth. ACL appreciates the comments identifying how implementation 
of these provisions can be accomplished.
Sec.  1322.35 Flexibilities Under a Major Disaster Declaration
    New Sec.  1322.35 outlines disaster relief flexibilities available 
under a MDD to provide disaster relief services for affected older 
Native Americans and family caregivers. Recognizing that there is no 
required period of advance notice of the end of a MDD incident period, 
the final rule allows a Tribal organization or Hawaiian Native grantee 
up to 90 days after the expiration of a MDD to obligate funds for 
disaster relief services.
    We received many comments in response to the RFI and NPRM asking 
that various flexibilities allowed during the COVID-19 PHE remain in 
place following the end of the PHE. We are limited by the Act in the 
extent to which flexibilities may be allowed. For example, a MDD is 
required in order for a Title VI grantee to be permitted, pursuant to 
section 310(c) of the Act,\322\ to use Title VI funds to provide 
disaster relief services (which must consist of allowable services 
under the Act) for areas of the service area where the specific MDD is 
authorized and where older Native Americans and family caregivers are 
affected.
---------------------------------------------------------------------------

    \322\ 42 U.S.C. 3030(c).
---------------------------------------------------------------------------

    Comment: We received comments in support of these changes that will 
better enable OAA-funded programs to serve Native elders in instances 
of disasters or emergencies. We also received comments with questions 
if a Tribal declaration needs to be recognized by the non-Tribal 
entities that are referenced.
    Response: ACL appreciates these comments and intends to provide 
technical assistance regarding various declarations that may apply in 
emergency and disaster situations. We have also made edits to Sec.  
1322.35(b) for consistency with the language used in this similar 
provision in part 1321 and have reordered items accordingly.
Sec.  1322.37 Title VI and Title III Coordination for Emergency and 
Disaster Preparedness
    Section 1321.53 (State agency Title III and Title VI coordination 
responsibilities), Sec.  1321.69 (Area agency on aging Title III and 
Title VI coordination responsibilities), and Sec.  1321.95 (Service 
provider Title III and Title VI coordination responsibilities), outline 
expectations for coordinating activities and delivery of services under 
Title III and Title VI, as articulated in the Act sections 
306(a)(11)(B),\323\ 307(a)(21)(A),\324\ 614(a)(11),\325\ and 
624(a)(3).\326\ New Sec.  1322.37 clarifies that Title VI and Title III 
coordination should extend to emergency and disaster preparedness 
planning and response.
---------------------------------------------------------------------------

    \323\ 42 U.S.C. 3026(a)(11)(B).
    \324\ 42 U.S.C. 3027(a)(21)(A).
    \325\ 42 U.S.C. 3057e(a)(11).
    \326\ 42 U.S.C. 3057j(a)(3).
---------------------------------------------------------------------------

    Comment: We received comments supporting the clarification that 
Title VI and Title III coordination should extend to emergency and 
disaster preparedness and response. We also received comment noting 
geographic, historical, and cultural considerations that are part of 
the preparedness plans developed by the Tribal aging programs that are 
uniquely Tribal.
    Response: ACL appreciates these comments and confirms that specific 
to emergency and disaster coordination, Sec.  1321.97 requires 
coordination by grantees under Title III of the Act with State, Tribal, 
and local emergency management, while Sec.  1321.103 requires that 
State and area agencies coordinate with Title VI programs. These 
provisions complement this provision at Sec.  1322.37.
Sec.  1322.39 Modification During Major Disaster Declaration or Public 
Health Emergency
    New Sec.  1322.39 states that the Assistant Secretary for Aging 
retains the right to modify emergency and disaster-related requirements 
set forth in the regulation under a MDD or PHE.

C. Deleted Provisions

Sec.  1322.5 Applicability of Other Regulations
    The final rule removes Sec.  1322.5, which lists other applicable 
regulations, because the provision is unnecessary and may create 
confusion or become outdated due to statutory or regulatory changes.

Part 1323--Grants for Supportive and Nutritional Services to Older 
Hawaiian Natives

A. Deleted Provisions

    The final rule removes part 1323, which is specific to Title VI, 
part B, which applies to one Hawaiian Native grantee. We include 
requirements specific to Title VI, part B in the revised part 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 thereof.
    Comment: ACL received comments of appreciation for the proposed 
changes to clarify Title VI and other provisions of the Act to better 
allow grantees to serve Native elders and family caregivers. One 
commenter noted that consolidating the sections referencing Title VI 
services to Indian Tribes and Native Hawaiian grantees creates more 
clarity in the regulations, which will permit grantees to better serve 
Native American, Alaskan Native, and Native Hawaiian elders and family 
caregivers.
    Response: ACL appreciates these comments.

Part 1324--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
    The regulation for the State Long-Term Care Ombudsman Program 
(Ombudsman program) was first issued in 2015. In the eight years since, 
ACL has provided technical assistance to State Long-Term Care 
Ombudsmen, State agencies, and designated local Ombudsman entities as 
they work to implement the regulation. The 2016 reauthorization of the 
Act also made changes specific to the Ombudsman program. Changes to the 
regulation are needed to ensure consistency with updates to the Act. 
Additionally, based on requests for technical assistance and comments 
to the NPRM, ACL has determined to clarify certain sections of part 
1324, including the responsibilities and the authority of the State 
Long-Term Care Ombudsman (Ombudsman); duties owed to residents 
regarding confidentiality; and COI requirements.
    Comment: Many commenters stated support in general for the updating 
of the regulations to be consistent with Title VII of the Act.
    Response: ACL appreciates these comments of support. ACL 
anticipates continuing to provide technical assistance to grantees 
under Title VII of

[[Page 11638]]

the Act in support of the individuals served by Title VII programs.
    Comment: A commenter noted a need for increased funding for 
Ombudsman programs and legal services for older adults, adding that 
increased funding would help programs rely less on volunteers. Other 
organizations commented on the utilization of volunteers in the 
Ombudsman program and recommended that we establish multiple levels of 
certification to account for volunteers who desire fewer 
responsibilities, noting that training could be adjusted as well.
    Response: Although program funding is beyond the scope of the rule, 
we acknowledge the decline in volunteers over multiple years and 
understand the impact on program resources. The Act calls for the 
Ombudsman to designate representatives of the Office of the State Long-
Term Care Ombudsman (the Office), without distinguishing between paid 
and volunteer representatives. The rule defines ``representatives of 
the Office'' as the ``[. . .] employees or volunteers designated by the 
Ombudsmanto fulfill the duties set forth in Sec.  1324.19(a)[.]'' 
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.
    Further, the Act requires ACL to develop training standards for 
representatives; in doing so as sub-regulatory guidance, we sought 
input from Ombudsman programs across the country to establish a minimum 
level of training, but several states adjusted their training to 
provide additional hours and content for representatives who are 
assigned more complex responsibilities. We have determined that 
Ombudsman programs have flexibility to assign volunteer duties to meet 
the needs of the program if they are performing duties described in the 
rule.
    Comment: One commenter challenged the accuracy of Frequently Asked 
Questions that ACL published as sub-regulatory guidance, noting that 
they contradict the rule.
    Response: While we respectfully disagree with the concern about the 
guidance in relation to the prior version of the Ombudsman rule, we 
intend to review previous sub-regulatory guidance and adjust where 
necessary to align with this final rule.
Sec.  1324.1 Definitions
    We add a new definition for ``Official duties'' to Sec.  1324.1 for 
consistency with part 1321 of the regulation, which also contains this 
defined term. In both parts 1321 and 1324, this term is used to define 
the duties of representatives of the Office. As currently defined at 
Sec.  1324.1, representatives of the Office are the employees or 
volunteers designated by the Ombudsman to conduct the work of the 
Ombudsman program. The definition of ``Official duties'' is included to 
clarify the role of representatives of the Office. We made 
clarifications to address misunderstandings of the role expressed by 
third parties who deal with the Ombudsman program. We also made minor 
changes to the definition of ``Resident representative.''
    Comment: Most commenters agreed with the added and clarified 
definitions in Sec.  1324.1. Some commenters recommended we add 
language to clarify that representatives of the Office may be carrying 
out the duties ``[. . .] by direct delegation from, the State Long-Term 
Care Ombudsman'' in addition to carrying out duties ``[. . .] under the 
auspices and general direction of, [. . .] the State Long-Term Care 
Ombudsman.''
    Response: We appreciate the comments. We recognize that Ombudsman 
programs operate in a variety of organizational structures and that 
direct delegation is one way that programs are managed. We have 
modified the definition of ``Official duties'' as recommended. The same 
change was made in part 1321.
    Comment: One commenter recommended that we add a definition of 
``resolved'' to support accuracy of data.
    Response: We appreciate the commenter's interest in accuracy. 
Specifying data collection requirements is outside the scope of this 
rule. The National Ombudsman Reporting System includes definitions for 
accurate data collection and is accompanied by training and a series of 
frequently asked questions. We will work with the National Ombudsman 
Resource Center to continue to refine guidance regarding data 
collection requirements.
    Comment: Commenters identified incongruent sentence structure in 
the proposed modification to the definition of resident representative.
    Response: We agree with the commenters' notes about wording and 
have made technical corrections to that definition.
    Comment: One commenter underscored the importance of the Ombudsman 
program being resident-directed and recommended the addition of a 
definition of ``informed consent.'' The commenter noted that some long-
term care facilities, guardians, and others have attempted to limit the 
ability of the Ombudsman program to advocate on behalf of residents and 
that multiple understandings of the term lead to inconsistent 
application. They suggested including that, when seeking consent, 
representatives of the Ombudsman program give residents a full 
explanation of the facts, options, and possible outcomes.
    Response: We agree that consent is a key to successful advocacy for 
residents. We will provide technical assistance for obtaining informed 
consent.
Sec.  1324.11 Establishment of the Office of the State Long-Term Care 
Ombudsman
    Section 1324.11 sets forth requirements related to the 
establishment of the Office of the State Long-Term Care Ombudsman 
(Office). We make minor changes to Sec.  1324.11(a) and to the 
introductory clause of (b), as well as to (e) introductory text, 
(e)(1)(i) and (v); (e)(4)(i) through (iii); (e)(5) and (6); and 
(e)(8)(ii), to clarify the purpose of the section. Other changes to 
this section are discussed in more detail, below.
    In fulfilling their responsibilities, representatives of the Office 
may need access to the medical, social and/or other records of a 
resident, and section 712(b) of the Act requires State agencies to 
ensure that representatives of the Office will have such access, as 
appropriate, including in the circumstance where a resident is unable 
to communicate consent to the review and has no legal 
representative.\327\ Previously, Sec.  1324.11 did not require policies 
and procedures to address access to a resident's records in this 
circumstance by the Ombudsman and the representatives of the Office, 
and we receive many requests for technical assistance as to how to 
address this situation. Accordingly, we add language in Sec.  
1324.11(e)(2) to require policies and procedures to provide direction 
for the Ombudsman and representatives of the Office as to how to 
address a situation where a resident is unable to communicate consent 
to the review of their records and they have no legal representative 
who can communicate consent for them. We add the requirement for 
policies and procedures as Sec.  1324.11(e)(2)(iv)(C) and renumber

[[Page 11639]]

subsequent subsections within Sec.  1324.11(e)(2)(iv).
---------------------------------------------------------------------------

    \327\ 42 U.S.C. 3058g(b).
---------------------------------------------------------------------------

    A major tenet of the Ombudsman program is that it is resident-
directed. This concept extends to if and how information about a 
resident's complaints is disclosed, and section 712(d) of the Act 
requires State agencies to prohibit the disclosure of the identity of a 
resident without their consent.\328\ We have received many requests for 
technical assistance as to how to address a situation when the resident 
is unable to provide consent to disclose; there is no resident 
representative authorized to act on behalf of the resident; or the 
resident representative refuses consent and there is reasonable cause 
to believe the resident's representative has taken an action, failed to 
act, or otherwise made a decision that may adversely affect the 
resident. We add language to Sec.  1324.11(e)(3)(iv) to require State 
agencies to have policies and procedures in place to provide direction 
for representatives of the Office as to how to address these 
situations.
---------------------------------------------------------------------------

    \328\ Id. section 3058g(d).
---------------------------------------------------------------------------

    States may have laws that require mandatory reporting of abuse, 
neglect, and exploitation. We have received questions as to the 
applicability of these requirements to the Ombudsman program, despite 
the prohibitions in section 712(b) of the Act against disclosure of 
resident records and identifying information without resident 
consent.\329\ To clarify existing requirements, we add language to 
Sec.  1324.11(e)(3)(v) to require State agencies to have policies and 
procedures in place to make clear that mandatory reporting of abuse, 
neglect, and exploitation by the Ombudsman program is prohibited. 
Subsequent subsections within Sec.  1324.11(e)(3) have been re-numbered 
to reflect the new language.
---------------------------------------------------------------------------

    \329\ Id. section 3058g(b).
---------------------------------------------------------------------------

    Section 712 of the Act requires the Ombudsman program to represent 
the interests of residents before government agencies and to seek 
administrative, legal, and other remedies to protect the health, 
safety, welfare, and rights of the residents.\330\ Section 712 also 
provides that the Ombudsman, personally or through representatives of 
the Office, is to analyze, comment on, and monitor the development and 
implementation of Federal, State, and local laws, regulations, and 
other governmental policies and actions that pertain to the health, 
safety, welfare, and rights of the residents, with respect to the 
adequacy of long-term care facilities and services in the State; 
recommend any changes in such laws, regulations, policies, and actions 
as the Office determines to be appropriate; and review, and if 
necessary, comment on any existing and proposed laws, regulations, and 
other government policies and actions, that pertain to the rights and 
well-being of residents.\331\ To be a strong advocate, the Ombudsman 
must be able to make determinations and to establish positions of the 
Office independently and without interference and must not be 
constrained by determinations or positions of the agency in which the 
Office is organizationally located.
---------------------------------------------------------------------------

    \330\ Id. section 3058g.
    \331\ Id.
---------------------------------------------------------------------------

    In response to information ACL received about State government 
agencies engaging in interference prohibited under section 712 of the 
Act \332\ (e.g., by requiring prior approval of positions of the Office 
regarding governmental laws, regulations, or policies), we add language 
to the introductory portion of Sec.  1324.11(e)(8) to clarify this 
prohibition. Specifically, we replace the existing phrase ``[. . .] 
without necessarily representing the determinations or positions of the 
State agency or other agency in which the Office is organizationally 
located'' with ``[. . .] without interference and shall not be 
constrained by or necessarily represent the determinations or positions 
of the State agency or other agency in which the Office is 
organizationally located.''
---------------------------------------------------------------------------

    \332\ Id.
---------------------------------------------------------------------------

    Comment: One commenter recommended the addition of language to 
clarify that any work for non-ombudsman services or programs must not 
utilize funding designated for the Ombudsman program and must not 
interfere with the duties and functions of the Ombudsman program.
    Response: Section 1324.13(f) directs the Ombudsman to determine the 
use of fiscal resources appropriated for or otherwise available for the 
operation of the Office, including determining that program budgets and 
expenditures of local Ombudsman entities are consistent with laws, 
policies, and procedures governing the Ombudsman program. Further, 
Sec.  1324.11(e)(1)(vi) provides that procedures that clarify fiscal 
responsibilities of local Ombudsman entities include clarifications 
about access to programmatic fiscal information by appropriate 
representatives of the Office. Therefore, we believe the recommendation 
of the commenter would be most appropriately handled through Ombudsman 
policies and procedures, and we have elected not to make a change to 
the rule.
    Comment: Commenters recommended additional requirements for 
qualification to serve as the State Long-Term Care Ombudsman. 
Recommendations included educational requirements, minimum years of 
experience in the current role or in the field, expertise in the legal 
system and legislative process as well as organizational management and 
program administration, and gaps in employment with a long-term care 
facility.
    Response: The rule includes several areas of expertise required of 
an Ombudsman as well as a one-year cooling off period after employment 
by a long-term care facility, as required by section 712(f)(1)(C)(iii) 
of the Act.\333\ Given the statutory requirement, we have retained this 
provision as proposed.
---------------------------------------------------------------------------

    \333\ 42 U.S.C. 3058g(f)(1)(C)(iii).
---------------------------------------------------------------------------

    Comment: Many commenters recommended ACL clarify in part 1324 the 
authority of the Ombudsman to develop policies and procedures, noting 
that such authority is critical to their responsibility for program 
operation, monitoring, and service delivery. One commenter suggested 
the regulations grant the Ombudsman full legal authority to establish 
policies and procedures.
    Response: We have modified Sec.  1324.11(e) to clarify that the 
agency shall establish Ombudsman program policies and procedures as 
recommended by the Ombudsman. The edit is designed to ensure that the 
Ombudsman leads development of policies and procedures. We decline to 
require that the Ombudsman have full legal authority to establish 
policy and procedures to allow for coordination and cooperation and 
where State law does not provide such authority.
    Comment: One commenter recommended that ACL add a requirement for 
policies and procedures for emergency and disaster preparedness and 
response that would incorporate continuity of operations planning, all-
hazards planning, and coordination with emergency management agencies.
    Response: The COVID-19 PHE provided new opportunities for Ombudsman 
programs to forge relationships with emergency management agencies and 
public health agencies, and we agree that some programs were more 
equipped than others to create and implement continuity of operations 
plans. We appreciate the comment and have added

[[Page 11640]]

a requirement in Sec.  1324.11(e) that policies and procedures related 
to emergency planning include continuity of operations procedures. 
Additionally, we will provide technical assistance to Ombudsman 
programs to implement the new requirement.
    Comment: One commenter recommended that ACL establish a requirement 
for the Ombudsman to collaborate with area agencies on aging to create 
a uniform system for monitoring local Ombudsman entities to assure that 
designated programs are performing duties as required. Another 
commenter noted that varied processes lead to extra requests for 
information that take up limited program resources. Several commenters 
recommended a standard frequency of monitoring, such as every one to 
four years or every two to three years.
    Response: Section 1324.11(e) requires that when local Ombudsman 
entities are designated within area agencies on aging or other 
entities, the Ombudsman shall develop such policies and procedures in 
consultation with the agencies hosting local Ombudsman entities and 
with representatives of the Office. However, the rule does not clearly 
require consultation with area agencies on aging when the area agency 
on aging is not the host agency for the local Ombudsman program. 
Therefore, we have amended Sec.  1324.11(e) to add such consultation.
    Further, we use this rule to make Sec.  1324.11(e) consistent with 
Sec.  1324.13(c), which requires the Ombudsman to monitor local 
Ombudsman entities ``on a regular basis.'' Specifically, we modify 
Sec.  1324.11(e)(1)(iii) to require monitoring ``on a regular basis'' 
defer to the Ombudsman to define ``regular'' in terms of the frequency 
of monitoring, in consultation with area agencies on aging based on the 
revision to Sec.  1324.11(e) described above. Because resources vary 
and there are other factors that would determine an appropriate 
monitoring frequency, we are not prescribing a timeframe.
    Comment: Several commenters recommended edits to Sec.  
1324.11(e)(1)(v) to clarify the standards the Ombudsman must establish 
regarding response times to complaints.
    Response: We appreciate the comments and agree that clarification 
of the rule will assist Ombudsman programs to establish timeframes for 
response to complaints made by or on behalf of residents. Therefore, we 
have revised the section to clarify the standards the Ombudsman must 
establish based on the needs and resources of the program.
    Comment: A few organizations commented on Sec.  1324.11(e)(1)(vi), 
recommending language to ensure that the Ombudsman program manager at 
local Ombudsman entities is involved in the budget and expenditure 
process and receives regular reports of fund balances and expenditures.
    Response: Section Sec.  1324.11(e)(1)(vi) addresses procedures 
regarding fiscal responsibilities of the local Ombudsman entity such as 
access to programmatic fiscal information by appropriate 
representatives of the Office. This subsection provides general 
guidance while allowing State agencies and Ombudsman to devise the 
policies and procedures that fit their specific program structures and 
resources. We are not changing the language but will provide targeted 
technical assistance in the future.
    Comment: Commenters recommended an addition to procedural 
requirements to establish time frames and methods of destruction of 
Ombudsman program records. One commenter also suggested a statement 
that Ombudsman program records are not subject to public records or 
freedom of information requests.
    Response: ACL has received questions from Ombudsman programs about 
record retention requirements and appreciates the comment raising the 
issue in the context of the rule. We agree that requiring Ombudsman 
programs to have policies and procedures regarding timeframes would 
help with consistent response to requests for records. Therefore, we 
have added a requirement at Sec.  1324.11(e)(1)(vii) for Ombudsman 
programs to have procedures regarding record retention. We believe that 
existing provisions in section 712 of the Older Americans Act \334\ and 
at Sec.  1324.11(e)(3) support confidentiality of records. ACL intends 
to provide additional sub-regulatory guidance for implementation of 
existing requirements.
---------------------------------------------------------------------------

    \334\ 42 U.S.C. 3058g.
---------------------------------------------------------------------------

    Comment: Some commenters recommended that Sec.  1324.11(e)(2), 
which addresses procedures for access to facilities, residents, and 
records, be amended to require access to long-term care facilities at 
any time to ensure residents have unrestricted access to 
representatives of the Office. Other recommendations include that ACL 
specify that long-term care facilities must provide the Ombudsman and/
or representatives of the Office with resident names, contact 
information, and room numbers so that representatives can quickly and 
easily locate residents; and to set specific maximum timeframes to 
produce the roster and other requested information. One commenter also 
recommended that ACL clarify that failure to comply would constitute 
willful interference.
    Response: ACL does not have authority to establish requirements for 
long-term care facilities. We have determined that existing 
requirements for policies and procedures coupled with State agency 
requirements about interference at Sec.  1324.15(i) provide sufficient 
guidance for Ombudsmen and State agencies to collaborate on how to 
ensure that representatives of the Office can perform their duties 
effectively. We appreciate the suggestions, and ACL intends to offer 
technical assistance and make best practices available to support 
Ombudsmen and representatives of the Office to fulfill their duties.
    Comment: Many commenters expressed support for the new requirement 
at Sec.  1324.11(e)(3)(iv), that policies and procedures about 
disclosure of files, records, and other information maintained by the 
Ombudsman program must include standard criteria for making 
determinations about disclosure of resident information when the 
resident is unable to provide consent and there is no resident 
representative or the resident representative refuses consent in 
certain circumstances as set forth.
    Response: ACL appreciates the support of this provision. We note 
the related clarification to Sec.  1324.11(e)(2)(iv)(C). When a 
resident is unable to grant or decline consent and there is no legal 
representative, the representative of the Office must seek approval of 
the Ombudsman. The clarification makes Sec.  1324.11(e)(2)(iv)(C) 
consistent with Sec.  1324.11(e)(2)(iv)(D).
    Comment: One commenter requested that we clarify the requirement in 
Sec.  1324.11(e)(3)(iv) regarding policies and procedures for obtaining 
consent to include non-verbal consent as an acceptable method.
    Response: The existing rule provides for consent to be provided 
orally, visually, or through the use of auxiliary aids and services. 
ACL intends that visual or assisted communication includes non-verbal 
forms of communication and will retain the existing language.
    Comment: Many commenters expressed support for the proposed 
clarification of Sec.  1324.11(e)(3)(v). One commenter noted that 
despite long-standing requirements about disclosure and consent, 
mandatory reporting requirements have continued to be an issue in 
States where the Ombudsman program is not exempt from reporting in 
State rules, laws, and professional licensing requirements. One 
commenter

[[Page 11641]]

recommended that we use ``mandated'' as that is the most common term 
for such provisions.
    Response: We appreciate the comment and have made the requested 
modification in the final rule. In reviewing the NPRM we identified a 
technical error; the new provision at Sec.  1324.11(e)(3)(v) should 
have replaced the language in Sec.  1324.11(e)(3)(vi). Paragraphs have 
been merged and renumbered in the final rule.
    Comment: Many commenters expressed support for the change to Sec.  
1324.11(e)(6)(i), which removed ``adequately'' in regard to removing or 
remedying COI, as it allows for less ambiguity.
    Response: We appreciate the support of the modification.
    Comment: One organization recommended adding that the policies and 
procedures regarding grievances in Sec.  1324.11(e)(7); personnel 
management in Sec.  1324.17; and COI in Sec.  1324.21 be ``fair'' if an 
Ombudsman takes adverse action on designation of a local Ombudsman 
entity, noting that removal of designation and certification could be 
arbitrary actions. They additionally recommended a requirement to 
provide the grievance process in writing to covered entities and 
individuals in advance.
    Response: ACL believes that the regulatory language is sufficient 
to address the concern, and will provide technical assistance and 
additional guidance, if necessary, in consultation with interested 
parties.
    Comment: Many commenters raised concerns that the subject of 
determinations identified in Sec.  1324.11(e)(8)(i) through (iii) is 
too narrow and does not include other areas of Ombudsman program 
operations about which the Ombudsman makes determinations (e.g., 
complaint processing, contents of the annual report). Commenters 
suggested that changing ``regarding'' to ``including'' would clarify 
that the areas listed are not all-inclusive but are examples and 
suggested adding the annual report as required in Sec.  1324.13(g). 
They cited instances of host agencies editing determinations. One 
commenter recommended seeking input from representatives of the Office 
when making determinations regarding systems advocacy.
    Response: We appreciate the explanation and information about 
Ombudsman program experiences and note that the examples in the 
existing rule are also included in Sec.  1324.13 (Functions and 
responsibilities of the State Long-Term Care Ombudsman). Therefore, we 
have amended Sec.  1324.11(e)(8) to refer to the functions and 
responsibilities of the Ombudsman. We will provide technical assistance 
on practices for seeking input, including regular review of Ombudsman 
records, data analysis, or direct consultation with representatives of 
the Office.
Sec.  1324.13 Functions and Responsibilities of the State Long-Term 
Care Ombudsman
    Section 712 of the Act sets forth the functions and roles of the 
Ombudsman and provides that the Ombudsman has the authority to make 
independent determinations in connection with these various 
functions.\335\ Through technical assistance inquiries, monitoring 
activities, and RFI comments, we have been made aware of instances 
where a State agency does not understand the authority and independence 
of the Ombudsman, such as with respect to commenting on governmental 
policy. We clarify Sec.  1324.13 to provide that the Ombudsman has the 
authority to lead and manage the Office. Specifically, we change the 
phrase in the first sentence ``[. . .] responsibility for the 
leadership [. . .]'' to ``[. . .] responsibility and authority for the 
leadership [. . .]'' to emphasize the authority of the Ombudsman to 
carry out the statutory functions.
---------------------------------------------------------------------------

    \335\ Id. section 3058g.
---------------------------------------------------------------------------

    Section 201(d) of the Act provides for oversight of the Ombudsman 
program by a Director of the Office of Long-Term Care Ombudsman 
Programs.\336\ We update Sec.  1324.13(c)(2) to take into account 
previous sub-regulatory guidance and require training for certification 
and continuing education procedures to be based on and consistent with 
the standards established by ACL's Director of the Office of Long-Term 
Care Ombudsman Programs, as well as with any standards set forth by the 
Assistant Secretary for Aging.
---------------------------------------------------------------------------

    \336\ 42 U.S.C. 3011(d).
---------------------------------------------------------------------------

    Section 712 of the Act contains detailed requirements with which 
representatives of the Office must comply, such as requirements as to 
confidentiality of resident records, as well as limitations on 
disclosure of such records and on the disclosure of the identity of 
residents.\337\ Section 712 also requires that representatives receive 
adequate training with respect to program requirements.\338\ We have 
been made aware of instances where staff of the Ombudsman program have 
had access to resident records without training or certification as a 
representative of the Office. Pursuant to the statutory requirements, 
and to address instances of noncompliance, Sec.  1324.13(c)(2)(iii) and 
(d) require that all staff and volunteers of the Ombudsman program who 
will have access to resident records, as well as other files, records, 
and information subject to disclosure requirements, be trained and 
certified as designated representatives of the Office, so that 
individuals with access to confidential information will be accountable 
to the Ombudsman for their actions. The subsequent subsection in Sec.  
1324.13(c)(2) is re-numbered accordingly.
---------------------------------------------------------------------------

    \337\ 42 U.S.C. 3058g.
    \338\ Id.
---------------------------------------------------------------------------

    The Act affords the Ombudsman discretion in determining whether to 
disclose the files, records, or other information of the Office. ACL 
often receives requests for technical assistance regarding criteria for 
such determinations. In response, we add to Sec.  1324.13(e)(2) the 
following criteria to assist the Ombudsman in making this 
determination: whether the disclosure has the potential to cause 
retaliation, to undermine the working relationships between the 
Ombudsman program and other entities, or to undermine other official 
duties of the Ombudsman program.
    We are aware of an apparent conflict between provisions of the 
Developmental Disabilities Act, which affords protection and advocacy 
programs access to resident records, and provisions of the OAA which 
prohibit the Ombudsman from disclosing resident-identifying information 
and afford the Ombudsman discretion in determining whether to disclose 
the files, records, or other information of the Office.\339\ Consistent 
with our authority to interpret these two statutes, we have worked with 
protection and advocacy and Long-Term Care Ombudsman programs to 
collect additional information on the experiences and circumstances of 
grantees related to this issue. As a result of these efforts, ACL has 
offered technical assistance to individual States as issues arise to 
assist protection and advocacy and Ombudsman programs to come to an 
agreement on how to handle these questions. ACL technical assistance 
centers have co-branded a toolkit on collaboration between Ombudsman 
programs and protection and advocacy agencies.\340\ We encourage such 
collaboration.
---------------------------------------------------------------------------

    \339\ 42 U.S.C. 15043.
    \340\ Long-Term Care Ombudsman Programs and Protection & 
Advocacy Agencies Collaboration Toolkit, The Nat'l Consumer Voice 
for Long Term Care, https://ltcombudsman.org/omb_support/pm/collaboration/ltcop-protection-and-advocacy-agencies-collaboration-toolkit (last visited Oct. 13, 2023).

---------------------------------------------------------------------------

[[Page 11642]]

    Section 712(h) of the Act provides that the State agency must 
require the Ombudsman program to submit an annual report that, among 
other things, describes the activities carried out by the Office, 
evaluates problems experienced by residents, analyzes the success of 
the Ombudsman program, and makes recommendations to improve the quality 
of life of residents.\341\ This information is separate from and in 
addition to the data reported annually to ACL through the national data 
reporting system known as the National Ombudsman Reporting System 
(NORS). We have found that some Ombudsman programs do not understand 
that the annual report required by section 712 differs from the annual 
NORS reporting. We add language to Sec.  1324.13(g) to clarify the 
distinction between reports required by section 712 and NORS.
---------------------------------------------------------------------------

    \341\ 42 U.S.C. 3058g(h).
---------------------------------------------------------------------------

    The Ombudsman program's effectiveness in advocacy relies on 
relationships with other entities that can assist residents. Section 
712 of the Act also requires that the Ombudsman program will coordinate 
services with legal assistance providers and others, as appropriate, 
and enter into a memorandum of understanding with legal assistance 
providers.\342\ We revise Sec.  1324.13(h)(1)(i) to require the 
adoption of memoranda of understanding with legal assistance programs 
provided under section 306(a)(2)(C) of the Act \343\ that address, at a 
minimum, referral processes and strategies to be used when the 
Ombudsman and a legal assistance programs are both providing services 
to a resident.
---------------------------------------------------------------------------

    \342\ Id. section 3058g.
    \343\ 42 U.S.C. 3026(a)(2)(C).
---------------------------------------------------------------------------

    Further, the final rule requires memoranda of understanding with 
facility and long-term care provider licensing and certification 
programs to address communication protocols and procedures to share 
information, including procedures for access to copies of licensing and 
certification records maintained by the State. Federal nursing home 
regulations require interaction between Ombudsman programs and 
licensing and certification programs. The goal of this requirement is 
to foster consistency in the relationships among Ombudsman programs and 
regulators across the country and support communication about all types 
of long-term care providers regulated by the State. Language regarding 
this requirement is set forth in Sec.  1324.13(h)(1)(ii).
    We also clarify that memoranda of understanding are recommended 
with other organizations, programs and systems as set forth in Sec.  
1324.13(h)(2). Elements of Sec.  1324.13(h) have been re-numbered in 
connection with these changes. We also make minor changes to Sec.  
1324.13(a)(7)(vii) and (h) for clarity.
    Comment: A few commenters expressed support for clarification of 
the Ombudsman's authority to lead and manage the Office, noting that 
the update would increase program effectiveness by limiting barriers in 
program implementation.
    Response: We appreciate the support and have finalized the rule as 
proposed.
    Comment: Commenters expressed support for existing language 
requiring Ombudsman review and approval of plans and contracts 
governing local Ombudsman entities, noting appreciation for oversight 
by the Ombudsman as well as support for the updated language about 
training.
    Response: ACL appreciates the support.
    Comment: Commenters expressed support for the language at Sec.  
1324.13(c)(2)(iii) that removes ambiguity and ensures that staff and 
volunteers who have access to records are trained and designated. One 
commenter asked whether ACL requires the Office to use the training 
curriculum developed by the National Ombudsman Resource Center. One 
commenter recommended that ACL require supervision during training only 
when the trainee is working directly with residents and facility staff 
and not during documentation or administrative duties.
    Response: The rule at Sec.  1324.13(c)(2)(iii) has been finalized 
as proposed. ACL does not require Ombudsman programs to use the model 
training that was developed to assist programs and inform a State-
specific curriculum if the training curriculum used complies with the 
minimum standards developed and issued as sub-regulatory guidance. We 
defer to the Ombudsman to determine implementation of the supervision 
requirement that meets the needs of the program. ACL will provide 
technical assistance as needed.
    Comment: Commenters proposed language requiring the Ombudsman to 
work with designated program coordinators at local Ombudsman entities 
to create and revise local program budgets and to work with host 
agencies to ensure programs have regular access to reports on income 
and expenditures. One commenter recommended that ACL require 
certification from the Ombudsman program manager at local Ombudsman 
entities that they have consulted on and approved the expenditures of 
the local Ombudsman entity.
    Response: Section 1324.11(e)(1) requires that procedures clarify 
access to programmatic fiscal information by appropriate 
representatives of the Office, and Sec. Sec.  1324.11(e)(1)(iii), 
1324.13(c)(1)(iii) require monitoring of local Ombudsman entities on a 
regular basis. ACL will provide technical assistance to programs as 
needed to ensure compliance.
    Comment: Many commenters expressed support for the proposed 
clarification of the annual reporting requirement in addition to the 
data report submitted to ACL. Commenters additionally recommended the 
addition of ``dissemination'' of the report and reference to the 
requirement for independent development.
    Response: We appreciate the suggested edit and have added 
dissemination to Sec.  1324.13(g).
    Comment: Many commenters provided feedback on the proposed new 
requirement at Sec.  1324.13(h) to establish a memorandum of 
understanding with the State entity responsible for licensing and 
certification of long-term care facilities (State survey agencies). 
Some responses supported the proposal without modification. There was 
also a suggestion to include State mental health departments and others 
with a role in providing access to LTC facilities or community-based 
services. Others recommended modification to require State survey 
agencies to provide Ombudsman programs with unredacted records and all 
records. Additionally, some commenters objected to the provision for 
communication protocols and sharing of information to be included in 
the memorandum of understanding.
    Response: We agree with the suggestion to include mental health 
authorities as an optional entity with which to execute a memorandum of 
understanding and have added this at Sec.  1324.13(h)(2)(x). Ombudsman 
programs have reported an increase in residents of LTC facilities who 
have mental illness and substance use disorders.
    ACL does not have authority to require State survey agencies to 
release information to Ombudsman programs. The memorandum of 
understanding, however, will help clarify the information that can be 
shared and how it will be shared, and will support formalized protocols 
for communication to create consistency and to eliminate the gaps that 
Ombudsman programs report. Therefore, we have finalized the

[[Page 11643]]

rule as proposed and will provide technical assistance to address the 
concerns raised by commenters.
    Comment: One commenter asked for clarification of the difference 
between the memorandum of understanding requirement with legal 
assistance providers and the suggested agreement with the legal 
assistance developer. They raised concerns about the need to have a 
separate agreement with each legal assistance provider in a State that 
does not have a centralized legal assistance program.
    Response: Due to the variety of structures of both Ombudsman 
programs and legal assistance programs, we defer to the Ombudsman to 
determine how to implement the requirement within the State-specific 
structure and community resources. We refer commenters to the existing 
toolkit for collaboration between Ombudsman programs and legal 
services. ACL will continue to provide technical assistance through our 
legal assistance and ombudsman resource centers.
    Comment: Commenters expressed concern that Sec.  1324.13(i), which 
defines activities to be performed by the Ombudsman to include 
activities determined by the Assistant Secretary to be appropriate, 
could lead to ``mission drift.'' They recommended qualifying language 
that such other activities must not conflict with the duties and 
responsibilities of the Ombudsman program and must be relevant to the 
program and residents.
    Response: We accept the comment and have revised this provision 
accordingly.
Sec.  1324.15 State Agency Responsibilities Related to the Ombudsman 
Program
    Section 712 of the Act sets forth State agency responsibilities for 
the Ombudsman program.\344\ Section 712(g) of the Act requires the 
State agency to ensure that adequate legal counsel is available with 
respect to the program, and Sec.  1324.15(j) explains those 
requirements.\345\ We include minor changes to this section for 
clarity. For example, the requirements and detail about the scope of 
responsibility of legal counsel are reorganized to clarify that legal 
counsel is to be available for consultation on program matters, as well 
as consultation to the program on the legal needs of residents. The 
regulations modify the provision for attorney-client privilege to 
specify that the privilege applies to communications between the 
Ombudsman and their legal counsel, not between the Ombudsman and 
counsel for the resident.
---------------------------------------------------------------------------

    \344\ 42 U.S.C. 3058g.
    \345\ Id. section 3058g(g).
---------------------------------------------------------------------------

    We receive many requests for technical assistance with respect to 
the requirement in section 712 of the Act that the Ombudsman be 
responsible for fiscal management of the Office.\346\ Revised Sec.  
1324.15(k) addresses specific components of fiscal management and 
codifies best practices. Specifically, the State agency must notify the 
Ombudsman of all sources of funds for the program and requirements for 
those funds and must ensure that the Ombudsman has full authority to 
determine the use of fiscal resources for the Office and to approve 
allocation to designated local Ombudsman entities before distribution 
of funds. In addition, the revised section requires the Ombudsman to 
determine that program budgets and expenditures of the Office and local 
Ombudsman entities are consistent with laws, policies, and procedures 
governing the Ombudsman program. ACL anticipates providing training and 
technical assistance for the implementation of these requirements. The 
section immediately following new Sec.  1324.15(k) is re-numbered 
accordingly.
---------------------------------------------------------------------------

    \346\ Id. section 3058g(a)(2).
---------------------------------------------------------------------------

    We also replace the word ``of'' with ``for'' in the last sentence 
of Sec.  1324.15(e) to correct a typographical error relating to 
reasonable requests ``for'' reports by the State agency as it conducts 
its monitoring responsibilities.
    Comment: Many commenters recommended modification to Sec.  
1324.15(b) to ensure that State agencies implement requirements of part 
1324 in the establishment and operation of the Ombudsman program with 
the necessary authority to perform its functions. The recommended 
amendment would add a requirement for State agencies to ensure that the 
Office acts independent of the State agency, or other agency in which 
the Office is organizationally located, in the performance of the 
Ombudsman program's functions, responsibilities, and duties.
    Another commenter recommended that State agency monitoring include 
a review and documentation of the Ombudsman program's systems advocacy 
activities through a request for examples.
    Response: The rule requires the State agency to ensure that the 
Ombudsman program has sufficient authority and access to fully perform 
all the functions, responsibilities, and duties of the Office. As 
stated earlier Sec.  1324.11 requires establishment of the Office of 
the State Long-Term Care Ombudsman as a distinct, separately 
identifiable entity that authorizes the Ombudsman, as head of the 
Office, to make independent determinations and establish positions that 
do not necessarily represent the determinations or positions of the 
agency in which it is located. We reiterate that we have accepted 
comments to clarify that Sec.  1324.11(e)(8) applies to all 
determinations. Further, Sec.  1324.15(e) requires the State agency to 
assess as part of its monitoring whether the Ombudsman program is 
performing all the functions, responsibilities, and duties set forth in 
Sec. Sec.  1324.13 and 1324.19. Therefore, ACL believes that the rule 
provides both clear requirements for functional autonomy and for 
assurance of implementation. ACL intends to provide technical 
assistance on implementation of monitoring responsibilities.
    Comment: Many commenters expressed support for Sec.  1324.15(j) 
regarding legal counsel and the State agency's role in ensuring that 
effective legal representation and consultation is available. 
Commenters also stated that local representatives of the Office need to 
have an attorney present when participating in legal proceedings such 
as depositions and hearings.
    Response: We appreciate support for Sec.  1324.15(j). ACL will 
defer to the Ombudsman and the attorneys it chooses to work with on 
specific matters related to representation.
    Comment: Many commenters expressed strong support for clarifying 
language at Sec.  1324.15(k) that defines the expectations for the 
State agency to provide critical information for the Ombudsman to 
manage the fiscal components of the Ombudsman program efficiently and 
effectively. One commenter noted that the revision will help eliminate 
confusion and disparities around the country. Another recommended 
adding a requirement for the Ombudsman program manager of the local 
Ombudsman entity to approve initial budgets, expenditures, and changes 
and to certify that the manager has been involved in and approved 
expenditures as well as being provided with access to fiscal 
information throughout the year.
    Response: We believe that the recommendation regarding Sec.  
1324.15(k) is addressed in Sec.  1324.11(e)(1)(vi) and in Sec.  
1324.13(f), which discuss policies and procedures and fiscal 
responsibility. We decline to make the change.
Sec.  1324.17 Responsibilities of Agencies Hosting Local Ombudsman 
Entities
    We did not propose any changes to Sec.  1324.17, which sets forth 
the responsibilities of agencies hosting local

[[Page 11644]]

Ombudsman entities for the personnel management policies and 
procedures. This section prohibits host agencies from establishing 
policies and procedures that prohibit the representative of the Office 
from performing their duties as authorized by law.
    Comment: A few commenters expressed concern that some local host 
agencies do not support representatives of the Office performing 
systems advocacy and recommended explicit language to ensure that local 
representatives of the Office are insulated from interference.
    Response: As noted above, Sec.  1324.17 prohibits policies and 
procedures that would interfere with the representative of the Office's 
performance of their duties. Section 1324.11(e)(5) discusses the duty 
to engage in systems advocacy. Further, Sec.  1324.19(a)(7) requires 
representatives of the Office to carry out other activities that the 
Ombudsman determines to be appropriate. Taken together with Sec. Sec.  
1324.11 and 1324.13, which authorize the Ombudsman to make 
determinations and establish positions of the Office, these sections 
support engaging in systems advocacy related to the determinations and 
positions established by the Ombudsman. The ACL Office of Long-Term 
Care Ombudsman Programs learns about these types of program barriers 
through technical assistance and review of State Ombudsman annual 
reports. As needed, these issues are addressed through additional 
technical assistance, training, and requests for corrective action.
Sec.  1324.19 Duties of the Representatives of the Office
    This section addresses the duties of the representatives of the 
Office and provides detailed instructions as to the processing of 
complaints by representatives of the Office. Minor revisions are made 
to Sec.  1324.19(b)(2)(ii) and (b)(5) for clarity.
    Comment: One commenter recommended editing Sec.  1324.19(a)(7) to 
ensure that representatives of the Office are not required to perform 
activities that are inconsistent with the program requirements.
    Response: We have accepted the comment.
    Comment: One commenter requested that we clarify that providing 
consent to complaint processing includes non-verbal consent.
    Response: The rule allows consent to be provided orally, visually, 
or using auxiliary aids and services. ACL intends that visual or 
assisted communication includes non-verbal forms of communication, and 
we have finalized the rule as written.
    Comment: One commenter identified various mechanisms that authorize 
an individual to serve as a representative for a resident and suggested 
the Ombudsman be required to provide guidance to representatives of the 
Office about these mechanisms.
    Response: We thank the commenter for the suggestion. ACL training 
standards already require training about the role of resident 
representatives, resident decision-making supports and options, State 
laws on third-party decision makers, communication with resident 
representatives, and ascertaining the extent of the resident 
representative's authority.
Sec.  1324.21 Conflicts of Interest
    Section 712(f) of the Act sets forth requirements related to 
individual and organizational COI, and Sec.  1324.21 implements the 
statutory provision. COI provisions promote credibility and 
effectiveness of the Ombudsman program.\347\
---------------------------------------------------------------------------

    \347\ Id. section 3058g(f).
---------------------------------------------------------------------------

    Section 1324.21(a) sets out as organizational conflicts the 
placement of an Ombudsman program in specified organizations. These 
include an organization that is responsible for licensing, surveying, 
or certifying long-term care services, including facilities; that 
provides long-term services and supports under a Medicaid waiver or a 
Medicaid State plan; that conducts preadmission screening for long-term 
care facility admissions; that provides long-term care coordination or 
case management services in settings that include long-term care 
facilities; that sets reimbursement rates for long-term care services; 
or that is responsible for eligibility determinations for the Medicaid 
program carried out under title XIX of the Social Security Act.\348\
---------------------------------------------------------------------------

    \348\ 42 U.S.C. 1396-1396v.
---------------------------------------------------------------------------

    We make minor clarifying changes to Sec.  1324.21(b)(3). We remove 
the last sentence of Sec.  1324.21(b)(5), which repeats language 
included in Sec.  1324.21(b)(3).
    We clarify in Sec.  1324.21(c) situations that create an individual 
COI, consistent with section 712(f)(1)(C) of the Act.\349\
---------------------------------------------------------------------------

    \349\ 42 U.S.C. 3058g(f)(1)(C).
---------------------------------------------------------------------------

    Comment: Most commenters expressed support for aligning the 
regulations regarding COI with the underlying statutory provisions. One 
expressed concern about separating Ombudsman program staff from agency 
staff serving people with greatest economic or social need, noting that 
such separation increases the difficulty of all staff to understand and 
benefit from the valuable role of the Ombudsman program. Another 
commented that it is acceptable for Ombudsman programs and APS to be in 
the same agency with appropriate firewalls. One commenter recommended 
adding a definition of long-term care services and noted that the 
expanded list could narrow the list of entities willing to house the 
program in a decentralized model.
    Response: As stated, Sec.  1324.21 is consistent with the COI 
provisions in section 712 of the Act.\350\ We will update our sub-
regulatory guidance as State agencies and Ombudsman programs work to 
implement the requirements. We refer commenters to section 102 of the 
Older Americans Act and Sec.  1324.1 for definitions.\351\
---------------------------------------------------------------------------

    \350\ 42 U.S.C. 3058g.
    \351\ 42 U.S.C. 3002.
---------------------------------------------------------------------------

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
Sec.  1324.201 State Agency Responsibilities for the Prevention of 
Elder Abuse, Neglect, and Exploitation
    Title VII, chapter 3 of the Act sets forth requirements that State 
agencies must meet with respect to the development and enhancement of 
programs to address elder abuse, neglect, and exploitation.\352\ New 
Sec.  1324.201 clarifies that as a condition of receiving Federal funds 
under this chapter State agencies must comply with all applicable 
provisions of the Act, including those of section 721(c), (d), (e), as 
well as with all other applicable Federal requirements.\353\
---------------------------------------------------------------------------

    \352\ 42 U.S.C. 3058i.
    \353\ Id. section 3058i(c), (d), (e).
---------------------------------------------------------------------------

    Comment: ACL received comments on this section supportive of the 
addition. They also recommended that ACL consider the prevalence of 
elder abuse within LGBTQI+ and HIV positive communities, including 
residents of long-term care facilities. One commenter recommended that 
State agencies partner with and support State and Tribal elder justice 
coalitions to ensure coordination and guidance from interested parties 
in development of the elder justice system, dissemination of 
information and educational resources, and to provide policy 
consultation and research.
    Response: ACL appreciates the support. Section 721 of the Act 
requires

[[Page 11645]]

coordination, and ACL has elected not to repeat statutory 
language.\354\
---------------------------------------------------------------------------

    \354\ Id. section 3058i.
---------------------------------------------------------------------------

Subpart C--State Legal Assistance Development
Sec.  1324.301 Definitions
    New Sec.  1324.301 states definitions set forth in Sec.  1321.3 
apply to subpart C, and terms used in subpart C but not otherwise 
defined will have the meanings ascribed to them in the Act.
Sec.  1324.303 Legal Assistance Developer
    We add a new regulation under Title VII, Sec.  1324.303 to 
implement section 731 of the Act regarding the position of Legal 
Assistance Developer (LAD).\355\ The State agency designates the LAD 
and describes the office and its duties as well as activities in the 
State plan. The regulation sets forth the duties of the LAD, including 
training and technical assistance to legal assistance providers and 
coordination with the Ombudsman program. The final rule includes COI 
prohibitions, including a prohibition against undertaking 
responsibilities that might compromise the performance of duties as 
LAD. COI may arise if the LAD serves as the director of the APS 
program, legal counsel to the Ombudsman program, or counsel or a party 
to administrative appeals related to long-term care settings. COI may 
also arise, for example, if the LAD serves as the administrator of a 
public guardianship program; hearing officer in Medicaid appeals 
related to LTSS delivered under Medicaid authorities including waiver 
programs and Medicaid State plan, and/or nursing home eligibility; or 
serves as the Ombudsman.
---------------------------------------------------------------------------

    \355\ 42 U.S.C. 3058j.
---------------------------------------------------------------------------

    The LAD oversees advice, training, and technical assistance support 
for the provision of legal assistance provided by the State agency; 
coordinates with all legal assistance and representation for all 
priority areas described in the Act; and coordinates with the legal 
assistance resource center established pursuant to section 420 of the 
Act.\356\
---------------------------------------------------------------------------

    \356\ 42 U.S.C. 3032i.
---------------------------------------------------------------------------

    Comment: Section 1324.303 sets forth the requirements for the LAD, 
pursuant to section 731 of the OAA.\357\ Several commenters were 
appreciative of the clarification regarding the roles and 
responsibilities of the LAD. Most, however, discussed challenges facing 
the position, including a lack of adequate funding and its designation 
as a part-time position. Some described the LAD as wearing many hats 
and noted that many LADs are not lawyers, potentially hindering their 
ability to support the needs of the legal assistance program, including 
support for legal assistance and elder rights education, and 
coordination with the Ombudsman program and APS. One commenter stated 
that it is a misnomer to designate subpart C of the regulations as a 
State Legal Assistance Development Program, since the Act refers only 
to the designation of a person as LAD, and to the optional activities a 
State agency may choose to have the LAD undertake. Additionally, most 
LAD positions are not full-time, and section 731 of the Act only refers 
to an individual working as the LAD. Commenters requested that the 
regulations require the LAD to be a full-time position staffed by an 
attorney.
---------------------------------------------------------------------------

    \357\ 42 U.S.C. 3058j.
---------------------------------------------------------------------------

    Response: ACL appreciates the comments. It is our intent to set out 
expectations for the duties of the LAD, including coordination of the 
provision of legal assistance, consistent with the provisions of the 
Act. However, it is outside the scope of the regulations to address 
funding issues. We also cannot mandate that the LAD be a full-time 
position and/or staffed by an attorney. Nevertheless, we remind State 
agencies that Sec.  1324.303(b) requires them to ensure that the LAD 
has the knowledge, resources, and capacity to carry out the functions 
of the position. The Act does not require professional qualifications 
for the individual a State agency designates as the LAD, nor does the 
Act require, as it does for other statutorily designated positions, 
such as the Ombudsman, that the LAD be a full-time position. 
Accordingly, these matters are beyond the scope of our regulatory 
authority.
    We have made one change to the regulatory text in response to the 
comments. Given that section 731 of the OAA \358\ requires the State 
agency to provide the assistance of an individual, rather than a 
program, we have modified the title of subpart C of these regulations 
to State Legal Assistance Development. The title mirrors the title of 
section 731 of the OAA.
---------------------------------------------------------------------------

    \358\ Id.
---------------------------------------------------------------------------

    Comment: Commenters appreciated that Sec.  1324.303(a)(4)(ii) 
requires LADs to promote alternatives to guardianship. One commenter 
noted that supported decision making can be used both formally through 
contractual agreement and informally. The commenter recommended that 
the section refer to supported decision making, rather than supported 
decision making agreements as the proposed regulatory text reads.
    Response: ACL accepts the comment. ACL agrees that decision 
supports are available through a range of tools and approaches and each 
adult has the right to determine which tool or approach suits their 
needs, or to determine that they do not want to adopt such a tool. We 
refer to all such tools and approaches as decision supports.
    Comment: Proposed Sec.  1324.303(d) defines standards to address 
COI. One commenter objected to these provisions related to the legal 
assistance developer, which ``stringently prohibit `dual hatting' of 
the LAD positions with other responsibilities,'' as being unduly 
burdensome, given the lack of dedicated funding authorized in the Act 
for the position. The same commenter was concerned that the lack of 
dedicated funding made it cost-prohibitive for the LAD to carry out the 
roles and responsibilities set forth in the regulation.
    Response: We do not prohibit LADs from assuming additional 
functions, as long as these functions do not pose actual or perceived 
COI. For the reasons stated earlier, we believe that the COI provisions 
are necessary to protect the interests of older people and the 
integrity of the LAD position. We expect State agencies to include 
their conflict mitigation strategies for this position in their 
policies and procedures. State agencies may also review and prioritize 
the roles and responsibilities of the LAD position to meet the needs of 
the State, provided that their priorities are clearly described in the 
State plan.

III. Required Regulatory Analyses

    Comment: ACL received several comments indicating concerns with 
implementation costs and administrative burden in implementing the 
final rule, as well as concerns regarding ongoing costs to monitor 
compliance with the final rule. Some State agencies commented that they 
anticipate that consultants and/or additional staff will need to be 
hired and/or that changes will need to be made to information 
technology systems. Some State agencies asserted that ACL has greatly 
underestimated both the cost, and the amount of time needed, to come 
into compliance with the rule; some have included cost estimates in 
their comments of hundreds of thousands dollars or more (in some cases 
these are expressed as annual costs and not so in others).
    Response: For the reasons discussed below, we maintain the 
Regulatory Impact Analysis (RIA) as proposed, except that we have 
updated the analysis with more recent data.
    As noted in the RIA, the most recent reauthorization of the OAA was 
enacted during Federal Fiscal Year 2020, and the baseline for the 
analysis was Federal

[[Page 11646]]

Fiscal Year 2019. Most of the changes to 45 CFR parts 1321, 1322, and 
1324 modernize the OAA regulations to bring them into conformity with 
reauthorizations of the OAA that were enacted prior to the 2020 
reauthorization and to provide clarity of administration for ACL and 
its grantees with respect to aspects of the OAA that were enacted under 
previous reauthorizations. A limited number of substantive changes were 
made by the 2020 reauthorization to the implementation of programs by 
State agencies and area agencies, and as more particularly discussed in 
the RIA, we anticipate that any costs to a State agency associated with 
these changes will be de minimis. We also note that public comments 
that provided State-specific cost estimates to implement and administer 
the final rule did not clearly differentiate between costs attributable 
to the statute and the incremental costs of implementing the final 
rule, which makes it difficult to incorporate this information in the 
final RIA.
    In addition to areas where we better align regulation with statute, 
as also described in more detail in the RIA below, the final rule 
benefits State agencies by modernizing the regulatory text to provide 
greater flexibility to State agencies and area agencies and to reflect 
ongoing feedback from interested parties and responses to our RFI in 
areas where our prior regulations did not address the evolving needs of 
Title III, VI, and VII grantees and the older adults and family 
caregivers they serve.
    While State agencies and AAAs should review their practices, 
policies, and procedures to ensure they comply with the final rule, we 
note again that a majority of this rule updates prior regulations to 
conform to longstanding statutory requirements. State agencies and AAAs 
also already should be engaging in monitoring activities for compliance 
with the Act. In addition, the final rule grants significant discretion 
to the State or area agency (as applicable) in how to implement many 
provisions. Similarly, a majority of the provisions of this final rule 
that apply to Title VI grantees and to service providers bring the 
prior regulation into conformity with what is already required by the 
Act.
    However, in consideration of comments related to the time required 
for implementation of the rule, we have decided to delay the compliance 
date of this rule until October 1, 2025. This should give all regulated 
entities sufficient time to come into compliance with these 
regulations. It will also allow time for State and area plans on aging 
that will be effective as of October 1, 2025, to incorporate the 
requirements of this final rule into new or amended plans. As noted 
previously, State agencies that need additional time to comply with one 
or more provisions of the rule may submit a request to proceed under a 
corrective action plan. A request should include the reason the State 
needs additional time, the steps the State will take to reach full 
compliance, and how much additional time the State anticipates needing. 
The corrective action plan process is intended to be highly 
collaborative and flexible. Under a corrective action plan, States 
agencies and ACL will jointly identify progress milestones and a 
feasible timeline for the State agency to come into compliance with the 
provision(s) of the rule incorporated into the corrective action plan. 
State agencies must make a good faith effort at compliance to continue 
operating under a corrective action plan. Requests for corrective 
action plans will be reviewed after April 1, 2024, and ACL will provide 
guidance on this process after this rule takes effect.
    Comment: One commenter proposed allowing State agencies to request 
waivers from having to meet the requirements set forth in the final 
rule if they could otherwise meet the intent of the Act.
    Response: ACL has determined not to make any changes to the 
regulatory text in response to this comment. Most of the changes to 45 
CFR part 1321 modernize the OAA regulations to bring them into 
conformity with the requirements of the OAA. Accordingly, we decline to 
allow State agencies to request waivers from meeting provisions in the 
final rule (unless otherwise explicitly allowed).
    Comment: ACL received a comment expressing concern that the rule 
may have Federalism implications.
    Response: Pursuant to Executive Order 13132, ACL has considered the 
impact of the final rule on State and local governments. Our analysis 
of the potential federalism implications of the final rule is set forth 
in Section III.C below.

Regulatory Impact Analysis

1. Overall Impact
    We have examined the impacts of this rule as required by Executive 
Order 12866 on Regulatory Planning and Review (September 30, 1993), 
Executive Order 13563 on Improving Regulation and Regulatory Review 
(January 18, 2011), Executive Order 14094 entitled ``Modernizing 
Regulatory Review'' (April 6, 2023), the Regulatory Flexibility Act 
(RFA) (September 19, 1980, Pub. L. 96-354), section 1102(b) of the 
Social Security Act (42 U.S.C. 1302(b)), section 202 of the Unfunded 
Mandates Reform Act of 1995 (UMRA; March 22, 1995; Pub. L. 104-4), 
Executive Order 13132 on Federalism (August 4, 1999), and the 
Congressional Review Act (CRA; 5 U.S.C. 804(2)).
    Executive Orders 12866 and 13563 direct agencies to assess all 
costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distributive impacts, and equity). The 
Executive Order 14094 entitled ``Modernizing Regulatory Review'' 
(hereinafter, the Modernizing E.O.) amends section 3(f) of Executive 
Order 12866 (Regulatory Planning and Review). The amended section 3(f) 
of Executive Order 12866 defines a ``significant regulatory action'' as 
an action that is likely to result in a rule: (1) having an annual 
effect on the economy of $200 million or more in any 1 year (adjusted 
every 3 years by the Administrator of the Office of Management and 
Budget's (OMB) Office of Information and Regulatory Affairs (OIRA) for 
changes in gross domestic product), or adversely affect in a material 
way the economy, a sector of the economy, productivity, competition, 
jobs, the environment, public health or safety, or State, local, 
territorial, or tribal governments or communities; (2) creating a 
serious inconsistency or otherwise interfering with an action taken or 
planned by another agency; (3) materially altering the budgetary 
impacts of entitlement grants, user fees, or loan programs or the 
rights and obligations of recipients thereof; or (4) raise legal or 
policy issues for which centralized review would meaningfully further 
the President's priorities or the principles set forth in this 
Executive order, as specifically authorized in a timely manner by the 
Administrator of OIRA in each case.
    A RIA must be prepared for significant rules. Based on our 
estimates, OIRA has determined that this rulemaking is ``significant'' 
per section 3(f) of Executive Order 12866. Therefore, OMB has reviewed 
these proposed regulations, and the Departments have provided the 
following assessment of their impact. Pursuant to Subtitle E of the 
Small Business Regulatory Enforcement Fairness Act of 1996 (also known 
as the Congressional Review Act, 5 U.S.C 801 et seq.) OIRA has 
determined that this rule does not meet the criteria set forth in 5 
U.S.C. 804(2).

[[Page 11647]]

1. Summary of Costs and Transfers
    This analysis describes costs and transfers under this final rule 
and quantifies several categories of costs to grantees (State agencies 
under Title III and Title VII and Tribal organizations and Hawaiian 
Native grantees under Title VI) and subrecipients (area agencies and 
service providers under Title III and where applicable, Title VII). 
Specifically, we quantify costs associated with grantees and 
subrecipients revising policies and procedures, conducting staff 
training, and revising State plan documentation accessibility 
practices. As discussed in greater detail in this analysis, we estimate 
that the final rule will result in one-time costs of approximately 
$17.43 million, including costs associated with covered entities 
revising policies and procedures, and costs associated with training.
    The analysis also includes a discussion of costs we do not 
quantify, and a discussion of the potential benefits under the rule 
that we similarly do not quantify.
Baseline Conditions and Changes Due to Reauthorization
    The most recent reauthorization of the OAA was enacted during 
Federal Fiscal Year (FFY) 2020; therefore, the baseline used for the 
analysis is FFY 2019. A main impact of the 2020 reauthorization of the 
OAA was to increase the authorized appropriations available to be 
distributed to the State agencies for the implementation of programs 
and services under Titles III, VI, and VII. A limited number of 
substantive changes were made by the 2020 reauthorization to the 
implementation of programs by State agencies and area agencies, 
including: requiring outreach efforts to Asian-Pacific American, Native 
American, Hispanic, and African-American older individuals, and older 
sexual and gender minority populations and the collection of data with 
respect thereto; requiring State agencies to simplify the process for 
transferring funds for nutrition services to reduce administrative 
barriers and direct resources to where the greatest need is for such 
services; broadening allowable services under Title III, part B, such 
as screening for traumatic brain injury and the negative effects of 
social isolation; clarifying that a purpose of the Title III, part C 
program is to reduce malnutrition; clarifying the allowability of 
reimbursing volunteer Ombudsman representatives under Title VII for 
costs incurred; and expanding the examples of allowable elder justice 
activities under section 721 \359\ to include community outreach and 
education as well as the support and implementation of innovative 
practices, programs, and materials in communities to develop 
partnerships for the prevention, investigation, and prosecution of 
abuse, neglect, and exploitation.
---------------------------------------------------------------------------

    \359\ 42 U.S.C. 3058i.
---------------------------------------------------------------------------

    The OAA initially was passed in 1965. The prior regulations for 
programs authorized under the OAA are from 1988 and have not been 
substantially altered since that time (other than portions of 45 CFR 
part 1321 and 45 CFR part 1324 regarding the State Long-Term Care 
Ombudsman Program, which were promulgated in 2015). Following its 
initial passage, the OAA has been reauthorized and amended sixteen 
times prior to the 2020 reauthorization, including five times since the 
regulations were promulgated in 1988.
    Many changes have been made in the implementation of the OAA since 
1988 as a result of these reauthorizations. State agencies, area 
agencies, and Title VI grantees should already be aware of programmatic 
and fiscal requirements in the reauthorizations and should have 
established policies and procedures to implement them. Accordingly, 
substantially all of the changes to 45 CFR parts 1321, 1322, and 1324 
modernize the OAA regulations to bring them into conformity with 
reauthorizations of the OAA that were enacted prior to the 2020 
reauthorization and provide clarity of administration for ACL and its 
grantees with respect to aspects of the OAA that were enacted under 
previous reauthorizations.
    In addition to areas where we better align regulation with statute, 
we make modifications to regulatory text that modernize our rule to 
provide greater flexibility to State agencies and area agencies and to 
reflect ongoing feedback from interested parties and responses to our 
RFI in areas where our prior regulations did not address the evolving 
needs of Title III, VI, and VII grantees and the older adults and 
family caregivers they serve. For example, we modernize our nutrition 
regulations to better support grantees' efforts to meet the needs of 
older adults. Our previous sub-regulatory guidance has indicated that 
meals are either consumed on-site at a congregate meal setting or 
delivered to a participant's home. This previous 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 PHE. The COVID-19 PHE brought to light limitations in our 
prior nutrition regulations, which we have addressed in Sec.  1321.87 
to allow for shelf-stable, pick-up, carry-out, drive-through, or 
similar meals where a participant will be able to collect their meal 
from a congregate site and return to the community off-site to enjoy 
it. Our final rule is a direct response to feedback from interested 
parties, including as gathered from the RFI and NPRM comment period, 
and appropriately reflects the evolving needs of both grantees and OAA 
participants.
    Another example of a modification to regulatory text that 
modernizes our rule is the new definition of ``greatest economic 
need.'' Focusing OAA services toward individuals who have the greatest 
economic need is one of the basic tenets of the OAA. The definition of 
``greatest economic need'' in the OAA incorporates income and poverty 
status. However, the definition in the OAA is not intended to preclude 
State agencies from taking into consideration populations that 
experience economic need due to other causes. 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 will allow State 
agencies and AAAs to make these determinations.
    A detailed discussion of costs and transfers associated with the 
rule follows.
i. 2020 Reauthorization
a. New Requirements for State Agencies and Area Agencies
    The 2020 reauthorization imposed the following new requirements on 
grantees: required outreach efforts to Asian-Pacific American, Native 
American, Hispanic, and African-American older individuals, and older 
lesbian, gay, bisexual, and transgender (LGBT) populations and the 
collection of data with respect thereto; required State agencies to 
simplify the process for transferring funds for nutrition services to 
reduce administrative barriers and direct resources to where the 
greatest need is for such services; and clarified that reducing 
malnutrition is a purpose of the OAA Title III, part C program.
    We do not associate any additional costs for the agencies with 
respect to these requirements. The agencies were

[[Page 11648]]

required to conduct outreach to minority populations prior to the 2020 
reauthorization, and State agencies already have been reaching out to 
the LGBTQI+ population.\360\ For those agencies that have not been 
reaching out to LGBTQI+ communities, we believe any additional cost to 
conduct outreach to this population will be de minimis, as they already 
have processes in place to reach out to underserved populations. The 
data collection cost likewise will be minimal as agencies already have 
data collection systems and practices in place.
---------------------------------------------------------------------------

    \360\ For example, in its plan on aging that was effective 
October 1, 2018, the California State agency noted a focus on 
developing strategies to better serve LGBTQI+ populations; the Ohio 
State agency sought input regarding the needs of LGBTQI+ populations 
in connection with the preparation of its State plan on aging for 
FFY 2019-2022; and the New York State agency's plan on aging for FFY 
2019-2023 references ongoing efforts to work with area agencies on 
aging to conduct outreach to the LGBTQI+ community.
---------------------------------------------------------------------------

    The cost to State agencies to comply with the requirement that they 
simplify the process for transferring funds for nutrition services to 
reduce administrative barriers and direct resources to where the 
greatest need is for such services is not quantifiable. Each State 
agency must comply with its State-level procurement requirements, and 
it is not possible for us to determine what any State agency may be 
able to change in this regard or at what cost. It is in each State 
agency's interest to improve this process for transferring nutrition 
services funds, and we believe that State agencies engage in ongoing 
efforts to improve their fiscal management processes generally, within 
allowable parameters. Accordingly, we anticipate that any costs to a 
State agency associated with this requirement will be de minimis.
    We do not associate any costs to State agencies, AAAs, or Title VI 
grantees with respect to the clarification that a purpose of the Title 
III, part C program is to reduce malnutrition. Grantees already were 
screening for older adults who are at high nutrition risk and have been 
offering nutrition counseling and nutrition education, as appropriate, 
and this clarification is not expected to impose additional costs on 
OAA grantees or subrecipients.
ii. Final Rule
a. Revising Policies and Procedures
    This analysis anticipates that the final rule will result in one-
time costs to State agencies, AAAs, service providers, and Title VI 
grantees to revise policies and procedures. The obligations of State 
agencies and AAAs under the OAA are more extensive than are those of 
Title VI grantees under the OAA. Accordingly, the Title III rule is 
considerably more extensive than is the Title VI rule, and we address 
State agencies and AAAs separately from Title VI grantees. We also 
address service providers separately, as we anticipate that the scope 
of the review needed for service providers will be narrower than that 
needed for State agencies and AAAs.
    In addition to changes to the existing regulations, we add several 
new provisions to the regulations in the following areas: 45 CFR part 
1321 (Title III): State Agency Responsibilities, Area Agency 
Responsibilities, Service Requirements, Emergency and Disaster 
Requirements; 45 CFR part 1322 (Title VI): Service Requirements, 
Emergency and Disaster Requirements; and 45 CFR part 1324 (Title VII): 
Programs for Prevention of Elder Abuse, Neglect, and Exploitation and 
State Legal Assistance Development. However, substantially all of these 
new provisions update the OAA regulations to bring them into conformity 
with reauthorizations of the OAA that were enacted prior to the 2020 
reauthorization and provide clarity of administration for ACL and its 
grantees with respect to aspects of the OAA that were enacted under 
previous reauthorizations. We associate one-time costs to State 
agencies, AAAs, service providers, and Title VI grantees to update 
their policies and procedures and to train employees on the updated 
policies and procedures, as discussed below. State agencies, AAAs, 
service providers, and Title VI grantees already should be aware of 
these requirements and already should have established policies and 
procedures in place. Accordingly, we otherwise associate no cost to 
them as a result of these new provisions.
State Agencies and AAAs
    In clarifying requirements for State agency and AAA policies and 
procedures under the OAA, ACL anticipates that all 56 State agencies 
and 615 AAAs (671 aggregate State agencies and AAAs) will revise their 
policies and procedures under the final rule, with half of these State 
agencies or AAAs requiring fewer revisions. We estimate that State 
agencies or AAAs with more extensive revisions will spend forty-five 
(45) total hours on revisions per agency. Of these, forty (40) hours in 
the aggregate will be spent by one or more mid-level manager(s) 
equivalent to a first-line supervisor (U.S. Bureau of Labor Statistics 
(BLS) Occupation code 43-1011),\361\ at a cost of $59.02 per hour after 
adjusting for non-wage benefits and indirect costs,\362\ while an 
average of five (5) hours will be spent by executive staff equivalent 
to a general and operations manager (BLS Occupation code 11-1021),\363\ 
at a cost of $94.32 per hour after adjusting for non-wage benefits and 
indirect costs.\364\ For State agencies or AAAs with less extensive 
revisions, we assume that twenty-five (25) total hours will be spent on 
revisions per agency. Of these, twenty (20) hours will be spent by one 
or more mid-level manager(s), and five (5) hours will be spent by 
executive staff.
---------------------------------------------------------------------------

    \361\ U.S. Dep't. of Labor, Bureau of Labor Statistics, 
Occupational Employment and Wages, 43-1011 First-Line Supervisors of 
Office and Administrative Support Workers (May 2022), https://www.bls.gov/oes/current/oes431011.htm.
    \362\ This hourly cost was determined by multiplying the median 
wage of $29.51 by 2.
    \363\ U.S. Dep't. of Labor, Bureau of Labor Statistics, 
Occupational Employment and Wages, 11-1021 General and Operations 
Managers (May 2022), https://www.bls.gov/oes/current/oes111021.htm.
    \364\ This hourly cost was determined by multiplying the median 
wage of $47.16 by 2.
---------------------------------------------------------------------------

    We monetize the time that will be spent by State agencies and AAAs 
on revising policies and procedures by estimating a total cost per 
entity as follows:

336 State agencies/AAAs--more extensive
 revisions:
    First-Line Supervisor: 40 hours @ $59.02/hr:  $2,360.80
    General and Operations Manager: 5 hours @     $471.60
     $94.32/hr:.
                                                 -----------------------
                                                  $2,832.40 per agency.
 


[[Page 11649]]


335 State agencies/AAAs--less extensive
 revisions:
    First-Line Supervisor: 20 hours @ $59.02/hr:  $1,180.40
    General and Operations Manager: 5 hours @     $471.60
     $94.32/hr:.
                                                 -----------------------
                                                  $1,652.00 per agency.
 

    For the approximately 336 State agencies or AAAs with more 
extensive revisions, we estimate a cost of approximately $951,686.40. 
For the 335 State agencies or AAAs with less extensive revisions, we 
estimate a cost of approximately $553,420.00. We estimate the total 
cost associated with revisions with respect to the final rule for State 
agencies and AAAs of $1,505,106.40.
Service Providers
    According to data submitted to ACL by the State agencies, there 
were 17,438 service providers during FFY 2021, and we use that figure 
for this analysis. We anticipate that all 17,438 service providers will 
review their existing policies and procedures to confirm that they 
comply the rule and will update their policies and procedures, as 
needed, in order to bring them into compliance. We estimate that the 
scope of the review needed for service providers will be narrower than 
that needed for State agencies and AAAs and will be limited to areas 
related to their provision of direct services, such as person-centered 
and trauma-informed services, eligibility for services, client 
prioritization, and client contributions. Like State agencies, AAAs and 
Title VI grantees, service providers already should be aware of the 
fiscal and programmatic changes that have been made to the OAA since 
1988, and to the extent required, they already should have established 
policies and procedures with respect to the OAA requirements that apply 
to them.
    We estimate that service providers will spend seven (7) total hours 
on revisions per agency. Of these, five (5) hours in the aggregate will 
be spent by one or more mid-level manager(s) equivalent to a first-line 
supervisor (U.S. Bureau of Labor Statistics (BLS) Occupation code 43-
1011),\365\ at a cost of $59.02 per hour after adjusting for non-wage 
benefits and indirect costs,\366\ while an average of two (2) hours 
would be spent by executive staff equivalent to a general and 
operations manager (BLS Occupation code 11-1021),\367\ at a cost of 
$94.32 per hour after adjusting for non-wage benefits and indirect 
costs.\368\
---------------------------------------------------------------------------

    \365\ U.S. Dep't. of Labor, Bureau of Labor Statistics, 
Occupational Employment and Wages, 43-1011 First-Line Supervisors of 
Office and Administrative Support Workers (May 2022), https://www.bls.gov/oes/current/oes431011.htm.
    \366\ This hourly cost was determined by multiplying the median 
wage of $29.51 by 2.
    \367\ U.S. Dep't of Labor, Bureau of Labor Statistics, 
Occupational Employment and Wages, 11-1021 General and Operations 
Managers (May 2022), https://www.bls.gov/oes/current/oes111021.htm.
    \368\ This hourly cost was determined by multiplying the median 
wage of $47.16 by 2.
---------------------------------------------------------------------------

    We monetize the time spent by service providers on revising 
policies and procedures by estimating a total cost per entity as 
follows:

First-Line Supervisor: 5 hours @ $59.02/hr:.....  $295.10
General and Operations Manager: 2 hours @ $94.32/ 188.64
 hr:.
                                                 -----------------------
                                                  $483.74 per agency.
 

    We estimate the total cost associated with revisions with respect 
to the final rule for 17,438 service providers of $8,435,458.12.
Title VI Grantees
    This analysis anticipates that the final rule also will result in 
one-time costs to Title VI grantees to revise policies and procedures. 
In clarifying requirements for Title VI grantee policies and procedures 
under the OAA, ACL anticipates that all 290 Title VI grantees will 
revise their policies and procedures under the final rule, with 
approximately one-third of these Title VI grantees requiring fewer 
revisions. We estimate that Title VI grantees with more extensive 
revisions will spend thirty (30) total hours on revisions per agency. 
All of these 30 hours will be spent by a mid-level manager equivalent 
to a first-line supervisor (U.S. Bureau of Labor Statistics (BLS) 
Occupation code 43-1011),\369\ at a cost of $59.02 per hour after 
adjusting for non-wage benefits and the indirect costs. For Title VI 
grantees with less extensive revisions, we assume fifteen (15) total 
hours spent on revisions per agency. All of these hours will be spent 
by a mid-level manager equivalent to a first-line supervisor (U.S. 
Bureau of Labor Statistics (BLS) Occupation code 43-1011),\370\ at a 
cost of $59.02 per hour after adjusting for non-wage benefits and 
indirect costs.\371\
---------------------------------------------------------------------------

    \369\ U.S. Dep't of Labor, Bureau of Labor Statistics. 
Occupational Employment and Wages, 43-1011 First-Line Supervisors of 
Office and Administrative Support Workers (May 2022), https://www.bls.gov/oes/current/oes431011.htm.
    \370\ Id.
    \371\ These hourly costs were determined by multiplying the 
median wage of $29.51 by 2.
---------------------------------------------------------------------------

    We monetize the time spent by Title VI grantees on revising 
policies and procedures as follows:

196 Title VI grantees--more extensive revisions:..........
    First-Line Supervisor: 30 hours @ $59.02/hr:..........  $1,770.60 per grantee.
94 Title VI grantees--less extensive revisions:
    First-Line Supervisor: 15 hours @ $59.02/hr:..........  $885.30 per grantee.
 

    For the approximately 196 Title VI grantees with more extensive 
revisions, we estimate a cost of approximately $347,037.60. For the 94 
Title VI grantees with less extensive revisions, we estimate a cost of 
approximately $83,218.20. We estimate the total cost associated with 
revisions of policies and procedures for Title VI grantees with respect 
to the final rule of $430,255.80.
    The above estimates of time and number of State agencies, AAAs and 
Title VI grantees that will revise their policies under the regulation 
are approximate estimates based on ACL's

[[Page 11650]]

extensive experience working with the agencies (including providing 
technical assistance), feedback and inquiries that we have received 
from State agencies, AAAs, and Title VI grantees, as well as ACL 
staff's prior experience working with OAA programs at State agencies 
and AAAs. Due to variation in the types and sizes of State agencies, 
AAAs, and Title VI grantees, the above estimates of time and number of 
entities that will revise their policies under the regulation is 
difficult to calculate precisely.
b. Training
    ACL estimates that State agencies, AAAs, service providers and 
Title VI grantees will incur one-time costs with respect to training or 
re-training employees under the final revised rule. For reasons similar 
to the discussion above with respect to revisions to policies and 
procedures, we address State agencies and AAAs separately from Title VI 
grantees. We also address service providers separately, as we 
anticipate that the training needed for service providers will be less 
extensive than that needed for State agencies and AAAs.

State Agencies and AAAs

Costs To Prepare and Conduct Trainings of Their Own Staff
    Consistent with our estimates relating to the number of agencies 
that will require extensive revision of their policies, we estimate 
that 50 percent of the State agencies and AAAs program management staff 
will require more extensive staff training regarding the rule. Based on 
our experience working with State agencies and AAAs, we estimate that, 
for State agencies and AAAs that need more extensive trainings, one (1) 
employee per agency, equivalent to a first-line supervisor (U.S. Bureau 
of Labor Statistics (BLS) Occupation code 43-1011) \372\ will spend 
three (3) total hours to prepare the training, and five (5) hours to 
provide the training, at a cost of $59.02 per hour after adjusting for 
non-wage benefits and indirect costs, and that for those needing less 
extensive trainings, one (1) employee per agency, equivalent to a 
first-line supervisor (U.S. Bureau of Labor Statistics (BLS) Occupation 
code 43-1011) \373\ will spend two (2) total hours to prepare the 
training, and two (2) hours to provide the training, at a cost of 
$59.02 per hour after adjusting for non-wage benefits and indirect 
costs.\374\
---------------------------------------------------------------------------

    \372\ U.S. Dep't of Labor, Bureau of Labor Statistics. 
Occupational Employment and Wages, 43-1011 First-Line Supervisors of 
Office and Administrative Support Workers (May 2022), https://www.bls.gov/oes/current/oes431011.htm..
    \373\ Id.
    \374\ These hourly costs were determined by multiplying the 
median wage of $29.51 by 2.
---------------------------------------------------------------------------

    We monetize the time spent by State agencies and AAAs to prepare 
and conduct trainings for their own employees as follows:

336 State agencies/AAAs--more extensive trainings: First-   $472.16 per agency.
 Line Supervisor: 8 hours @$59.02/hr:.
335 State agencies/AAAs--less extensive trainings: First-   $236.08 per agency
 Line Supervisor: 4 hours @$59.02/hr:.
 

    For the approximately 336 State agencies or AAAs with more 
extensive needed training, we estimate a cost of approximately 
$158,645.76. For the 335 State agencies or AAAs with less extensive 
training needs, we estimate a cost of approximately $79,086.80. We 
estimate the total cost associated with the preparation and conduct of 
trainings with respect to the final rule for State agencies and AAAs of 
$237,732.56.
Costs To Receive Trainings by Their Own Staff
    As noted above, we estimate that 50 percent of the State agencies 
and AAAs program management staff will require more extensive staff 
training regarding the rule. Based on our experience working with State 
agencies and AAAs, we estimate that State agencies and AAAs with more 
extensive trainings will spend five (5) total hours on trainings per 
agency, and that those with less extensive trainings will spend two (2) 
hours on trainings per agency. We estimate that five (5) employees per 
agency, equivalent to social and community service managers (BLS 
Occupation code 11-9151),\375\ will receive training at a cost of 
$71.38 per hour per employee after adjusting for non-wage benefits and 
indirect costs,\376\ and that one (1) employee per agency, equivalent 
to a business operations specialist (BLS Occupation code 13-1199),\377\ 
will receive training at a cost of $73.06 per hour after adjusting for 
non-wage benefits and indirect costs.\378\
---------------------------------------------------------------------------

    \375\ U.S. Dep't. of Labor, Bureau of Labor Statistics, 
Occupational Employment and Wages, 11-9151 Social and Community 
Service Managers (May 2022), https://www.bls.gov/oes/current/oes119151.htm.
    \376\ This hourly cost was determined by multiplying the median 
wage of $35.69 by 2.
    \377\ U.S. Dep't of Labor, Bureau of Labor Statistics, 
Occupational Employment and Wages, 13-1199 Business Operations 
Sepcialists, All Other (May 2022), https://www.bls.gov/oes/current/oes131199.htm.
    \378\ This hourly cost was determined by multiplying the median 
wage of $36.53 by 2.
---------------------------------------------------------------------------

    We monetize the time spent in the receipt of trainings as follows:

336 State agencies/AAAs--more extensive trainings:
    Social & Community Service Manager: 5 staff x 5 hours      $1,784.50
     @$71.38/hr:............................................
Business Operations Specialist: 1 staff x 5 hours @$73.06/        365.30
 hr:........................................................
                                                             -----------
                                                              $2,149.80/
                                                                 agency.
335 State agencies/AAAs--less extensive trainings:
    Social & Community Service Manager: 5 staff x 2 hours        $713.80
     @$71.38/hr:............................................
    Business Operations Specialist: 1 staff x 2 hours            146.12.
     @$73.06/hr:............................................
                                                             -----------
                                                                $859.92/
                                                                 agency.
 

    For the approximately 336 State agencies or AAAs with more 
extensive trainings, we estimate a cost of approximately $722,332.80. 
For the 335 State agencies or AAAs with less extensive trainings, we 
estimate a cost of approximately $288,073.20. We estimate the total 
cost associated with receipt of training by employees with respect to 
revisions to policies and procedures under the final rule of 
$1,010,406.00.

[[Page 11651]]

Costs To Conduct Trainings of AAAs by State Agencies
    We estimate that each of the forty-seven (47) State agencies that 
have AAAs will conduct one (1) training for their AAAs. We estimate 
that two (2) State agency employees per agency, each equivalent to a 
first-line supervisor (U.S. Bureau of Labor Statistics (BLS) Occupation 
code 43-1011),\379\ will spend three (3) total hours to conduct the 
training, at a cost per employee of $59.02 per hour after adjusting for 
non-wage benefits and indirect costs.\380\ As the State agencies 
already will have created trainings for their own employees, we do not 
associate any costs with the creation of trainings for the AAAs. We 
monetize the time spent by the 47 State agencies to train AAAs by 
estimating a cost per agency of $354.12 (2 staff x 3 hours x $59.02/
hr). We estimate the total cost to the State agencies to train AAAs to 
be $16,643.64.
---------------------------------------------------------------------------

    \379\ U.S. Dep't. of Labor, Bureau of Labor Statistics, 
Occupational Employment and Wages, 43-1011 First-Line Supervisors of 
Office and Administrative Support Workers (May, 2022), https://www.bls.gov/oes/current/oes431011.htm.
    \380\ This hourly cost was determined by multiplying the median 
wage of $29.51 by 2.
---------------------------------------------------------------------------

    We estimate that each of the 615 AAAs will arrange for two (2) AAA 
employees, each equivalent to a first-line supervisor (U.S. Bureau of 
Labor Statistics (BLS) Occupation code 43-1011),\381\ to attend the 
three (3) hour trainings conducted by the State agency, at a cost per 
employee of $59.02 per hour after adjusting for non-wage benefits and 
indirect costs.\382\ We monetize the time spent by the 615 AAAs to 
attend the State agency trainings by estimating a cost per agency of 
$354.12 (2 staff x 3 hours x $59.02/hr). We estimate the total cost 
associated to the AAAs to receive training from the State agencies to 
be $217,783.80. We estimate the total costs associated with the 
training by State agencies of AAAs to be $234,427.44.
---------------------------------------------------------------------------

    \381\ U.S. Dep't. of Labor, Bureau of Labor Statistics, 
Occupational Employment and Wages, 43-1011 First-Line Supervisors of 
Office and Administrative Support Workers (May, 2022), https://www.bls.gov/oes/current/oes431011.htm..
    \382\ This hourly cost was determined by multiplying the median 
wage of $29.51 by 2.
---------------------------------------------------------------------------

Service Providers
Cost To Conduct Trainings
    We estimate that the 615 AAAs, as well as the 9 State agencies in 
single PSA States that do not have AAAs, will provide training to their 
service providers with respect to revisions to policies and procedures 
under the final rule. We estimate that two (2) AAA or State agency 
employees per agency, as applicable, each equivalent to a first-line 
supervisor (U.S. Bureau of Labor Statistics (BLS) Occupation code 43-
1011),\383\ will spend two (2) total hours to conduct one (1) training, 
at a cost of $59.02 per hour after adjusting for non-wage benefits and 
indirect costs.\384\ As the State agencies and AAAs already will have 
created trainings for their own employees, we do not associate any 
costs with the creation of trainings for the service providers. We 
monetize the time spent by the 615 AAAs and the 9 State agencies to 
train service providers by estimating a cost per agency of $236.08 (2 
staff x 2 hours x $59.02/hr). We estimate the total cost associated 
with the conduct of trainings of service providers to be $147,313.92.
---------------------------------------------------------------------------

    \383\ U.S. Dep't. of Labor, Bureau of Labor Statistics, 
Occupational Employment and Wages, 43-1011 First-Line Supervisors of 
Office and Administrative Support Workers (May, 2022), https://www.bls.gov/oes/current/oes431011.htm.
    \384\ This hourly cost was determined by multiplying the median 
wage of 29.51 by 2.
---------------------------------------------------------------------------

Cost To Receive Training
    We estimate that all 17,438 service providers will receive training 
regarding revised policies and procedures in connection with the final 
rule. We estimate that two (2) employees per agency, equivalent to 
social and community service managers (BLS Occupation code 11-
9151),\385\ will receive two (2) hours of training at a cost per 
employee of $71.38 per hour after adjusting for non-wage benefits and 
indirect costs.\386\
---------------------------------------------------------------------------

    \385\ U.S. Dep't. of Labor, Bureau of Labor Statistics, 
Occupational Employment and Wages, 11-9151 Social and Community 
Service Managers (May, 2022), https://www.bls.gov/oes/current/oes119151.htm.
    \386\ This hourly cost was determined by multiplying the median 
wage of $36.59 by 2.
---------------------------------------------------------------------------

    We monetize the time spent by service providers to receive training 
with respect to revised policies and procedures by estimating a total 
cost per entity of $285.52 (2 staff x 2 hours x $71.38/hr). We estimate 
the total cost associated with receipt of training with respect to the 
final rule for 17,438 service providers of $4,978,897.76.
Title VI Grantees
Costs To Prepare and Conduct Trainings of Their Own Staff
    Consistent with our estimates relating to the number of Title VI 
grantees that will require extensive revision of their policies, we 
estimate that two thirds of the Title VI grantees' program management 
staff will require more extensive staff training regarding the rule. 
Based on our experience working with Title VI grantees, we estimate 
that, for Title VI grantees that need more extensive trainings, one (1) 
employee per agency, equivalent to a first-line supervisor (U.S. Bureau 
of Labor Statistics (BLS) Occupation code 43-1011) \387\ will spend 
three (3) total hours to prepare the training, and five (5) hours to 
provide the training, at a cost of $59.02 per hour after adjusting for 
non-wage benefits and indirect costs, and that for those needing less 
extensive trainings one (1) employee per agency, equivalent to a first-
line supervisor (U.S. Bureau of Labor Statistics (BLS) Occupation code 
43-1011) \388\ will spend two (2) total hours to prepare the training, 
and two (2) hours to provide the training, at a cost of $59.02 per hour 
after adjusting for non-wage benefits and indirect costs.\389\
---------------------------------------------------------------------------

    \387\ U.S. Dep't. of Labor, Bureau of Labor Statistics, 
Occupational Employment and Wages, 43-1011 First-Line Supervisors of 
Office and Administrative Support Workers (May, 2022), https://www.bls.gov/oes/current/oes431011.htm.
    \388\ Id.
    \389\ These hourly costs were determined by multiplying the 
median wage of $29.51 by 2.
---------------------------------------------------------------------------

    We monetize the time spent by Title VI grantees to prepare and 
conduct trainings for their own employees by estimating a total cost 
per entity of $472.16 (1 staff x 8 hours x $59.02/hr) or $251.92 (1 
staff x 4 hours x $59.02/hr), depending on the extent of the training 
needed. For the approximately 196 Title VI grantees with more extensive 
needed training, we estimate a cost of approximately $92,543.36. For 
the 94 Title VI grantees with less extensive training needs, we 
estimate a cost of approximately $22,191.52. We estimate the total cost 
associated with the preparation and conduct of trainings with respect 
to the final rule for Title VI grantees of $114,734.88.
Cost To Receive Trainings by Their Own Staff
    As noted above, we estimate that two thirds of the Title VI 
grantees' program management staff will require more extensive staff 
training regarding the rule. Based on our experience working with Title 
VI grantees, we estimate that those grantees with more extensive 
trainings will spend five (5) total hours on the receipt of training 
per agency, and that those with less extensive trainings will spend two 
(2) hours on the receipt of trainings per agency. We estimate that 
three (3) employees per agency, equivalent to social and community 
service managers (BLS Occupation code 11-9151),\390\ will

[[Page 11652]]

receive training at a cost per employee of $71.38 per hour after 
adjusting for non-wage benefits and indirect costs,\391\ and that one 
(1) employee per agency, equivalent to a business operations specialist 
(BLS Occupation code 13-1199),\392\ will receive training at a cost of 
$73.06 per hour after adjusting for non-wage benefits and indirect 
costs.\393\
---------------------------------------------------------------------------

    \390\ U.S. Dep't. of Labor, Bureau of Labor Statistics, 
Occupational Employment and Wages, 11-9151 Social and Community 
Service Managers (May, 2022), https://www.bls.gov/oes/current/oes119151.htm.
    \391\ This hourly cost was determined by multiplying the median 
wage of $35.69 by 2.
    \392\ U.S. Dep't. of Labor, Bureau of Labor Statistics, 
Occupational Employment and Wages, 13-1199 Business Operations 
Specialists, All Other (May, 2022), https://www.bls.gov/oes/current/oes131199.htm.
    \393\ This hourly cost was determined by multiplying the median 
wage of $36.53 by 2.
---------------------------------------------------------------------------

    We monetize the time spent on receipt of training as follows:

196 Title VI Grantees--more extensive trainings:
    Social & Community Service Manager: 3 staff x 5    $1,070.70
     hours @ $71.38/hr:.............................
    Business Operations Specialist: 1 staff x 5           365.30
     hours @ $73.06/hr:.............................
                                                     -------------------
                                                       $1,436.00/grantee
94 Title VI Grantees--less extensive trainings:
    Social & Community Service Manager: 3 staff x 2      $428.28
     hours @ $71.38/hr:.............................
    Business Operations Specialist: 1 staff x 2           146.12
     hours @ $73.06/hr:.............................
                                                     -------------------
                                                         $574.40/grantee
 

    For the approximately 196 Title VI grantees with more extensive 
trainings, we estimate a cost of approximately $281,456.00. For the 94 
Title VI grantees with less extensive trainings, we estimate a cost of 
approximately $53,993.60. We estimate the total cost associated with 
receipt of training of employees with respect to revisions to policies 
and procedures under the final rule of $335,449.60.
    The above estimates of the time needed by State agencies, AAAs, and 
Title VI grantees for training of employees with respect to the final 
rule, as well as the number of employees to be trained, are approximate 
estimates based on ACL's extensive experience working with the 
agencies, including providing technical assistance as well as ACL 
staff's prior experience working with OAA programs at State agencies 
and AAAs. Due to variation in the types and sizes of State agencies, 
AAAs, and Title VI grantees, the above estimates of time needed for 
training and the number of employees to be trained with respect to the 
final rule is difficult to calculate precisely.
c. Making State Plan Documentation Available
    Section 305(a)(2) of the OAA,\394\ together with existing 45 CFR 
1321.27, require State agencies, in the development and administration 
of the State plan, to obtain and consider the input of older adults, 
the public, and recipients of services under the OAA. Section 1321.29 
of the final regulation requires State agencies to ensure that 
documents which are to be available for public review in connection 
with State plans and State plan amendments, as well as final State 
plans and State plan amendments, be available in a public location, as 
well as available in print by request.
---------------------------------------------------------------------------

    \394\ 42 U.S.C. 3025(a)(2).
---------------------------------------------------------------------------

    Based on ACL's extensive experience working with State agencies in 
their development of State plans and State plan amendments, we estimate 
that most State agencies already comply with the requirements to make 
such documentation accessible in a public place. It is common practice 
for State agencies to post the documents on their public websites.\395\ 
For those that do not already post the documents on their websites, we 
estimate that it will take less than one hour of time spent by a 
computer and information system employee to post the documents on their 
websites. Accordingly, we believe this cost will be minimal and do not 
quantify it.
---------------------------------------------------------------------------

    \395\ For example, the State agencies from Alabama, Arizona, 
California, Florida, Georgia, Illinois, Massachusetts, Montana, 
North Dakota, New York, and Ohio, in addition to others, post their 
plans on aging on their websites.
---------------------------------------------------------------------------

    Occasionally, a member of the public may request a print copy of a 
State plan. State plan documents can vary widely in length; based on 
our experience, we estimate that on average each State plan contains 75 
pages, including exhibits. At an estimated cost of $.50 per page for 
copies, each paper copy will cost approximately $37.50. Today, 
documents typically are shared electronically, rather than via print 
copies, and we estimate that each State agency will receive few 
requests for print copies of their State plans. In addition, all States 
have established laws that allow access to public records.\396\ 
Therefore, we also believe this cost will be minimal and do not 
quantify it.
---------------------------------------------------------------------------

    \396\ Public Records, Natl. Assn. of Attorneys General, https://www.naag.org/issues/civil-law/public-records/ (last visited Oct. 24, 
2023); State Public Records Laws, FOIAdvocates, https://www.foiadvocates.com/records.html (last visited Oct. 24, 2023). 
States may charge fees in order to provide copies of public records; 
e.g., New Jersey's Open Public Records Law, N.J.S.A. 47:1A-1 et seq.
---------------------------------------------------------------------------

d. State Plan Amendments and Disaster Flexibilities
    Based on input from interested parties and our experience, 
particularly during the COVID-19 PHE, we add Subpart E--Emergency and 
Disaster Requirements (Sec. Sec.  1321.97-1321.105) to set forth 
expectations and clarify flexibilities that are available in certain 
disaster situations. Similarly, Sec.  1322.35 will provide for 
flexibilities to be available to Title VI grantees during certain 
emergencies and will require Title VI grantees to report separately on 
expenditures of funds when exercising such flexibilities. ACL estimates 
that some State agencies, AAAs, and Title VI grantees will incur costs 
to comply with the new provision. For reasons similar to the discussion 
above with respect to revisions to policies and procedures, we address 
State agencies and area agencies separately from Title VI grantees.
State Agencies and AAAs
    ACL has administrative oversight responsibility with respect to the 
expenditures of Federal funds pursuant to the OAA, and these 
flexibilities involve exceptions to certain programmatic and fiscal 
requirements under the OAA. Accordingly, in addition to the 
flexibilities we allow in this section, we are compelled to set forth 
that State agencies be required to submit State plan amendments when 
they intend to exercise any of these flexibilities, as well to comply 
with reporting requirements. We believe the cost to a State agency to 
prepare and submit a State plan amendment will be quite minimal, in 
particular in comparison to the benefits to older adults in emergency 
situations as a result of these flexibilities. We, therefore, do not 
quantify the cost to a State agency to prepare and submit such a State 
plan amendment. We likewise do not quantify the cost to a State

[[Page 11653]]

agency to comply with reporting requirements, as sound fiscal and data 
tracking policies and principles, outside of the OAA, should be in 
place for all State agency expenditures of Federal funds, regardless of 
the source.
Title VI Grantees
    Similarly, Sec.  1322.35 will provide for flexibilities to be 
available to Title VI grantees during certain emergencies and will 
require Title VI grantees to report separately on expenditures of funds 
when exercising such flexibilities. Again, we do not quantify the cost 
to a Title VI grantee to comply with reporting requirements, as sound 
fiscal and data tracking policies and principles, outside of the OAA, 
should be in place for all Title VI grantee expenditures of Federal 
funds, regardless of the source.
iii. Total Quantified Costs of the Final Rule
    The table below sets forth the total estimated cost of the final 
rule: \397\
---------------------------------------------------------------------------

    \397\ For information regarding the calculations of the amounts 
set forth in this table, please see the RIA discussion above.

----------------------------------------------------------------------------------------------------------------
                                                               State agencies        Service         Title VI
                        Item of cost                            and AAAs ($)      providers ($)    Grantees ($)
----------------------------------------------------------------------------------------------------------------
2020 OAA Reauthorization....................................              0.00              0.00            0.00
Revise Policies and Procedures..............................      1,505,106.40      8,435,458.12      430,255.80
Prepare/Conduct Training for Own Staff......................        237,732.56               N/A      114,734.88
Receipt of Training for Own Staff...........................      1,010,406.00      4,978,897.76      335,449.60
SUA Training of AAAs........................................        234,427.44               N/A             N/A
SUA/AAA Training of Service Providers.......................        147,313.92               N/A             N/A
Available Documentation.....................................
State Plan Amendments for Disaster Flexibilities............
                                                             ---------------------------------------------------
    Total...................................................      3,134,986.32     13,414,355.88      880,440.28
----------------------------------------------------------------------------------------------------------------

    As the table above indicates, the costs attributable to the final 
rule, in the aggregate amount, are estimated at $17,429,782.50. ACL 
estimates quantified costs attributable to the final rule of $3.13 
million for State agencies and AAAs (at an average cost of $4,484 per 
State agency in States that have AAAs, $4,488 per State agency in 
States with no AAAs, and $4,694 per area agency), $13.4 million for 
service providers (at an average cost of $769 per service provider), 
and $0.88 million for Title VI grantees (at an average cost of $3,036 
per Title VI grantee). These costs would consist of staff time to 
revise policies and procedures and to create, provide and receive 
trainings. Assuming annual productive time per full time employee (FTE) 
of 1,650 hours (based on average weekly hours worked of 33 hours per 
week \398\ and 50 weeks worked per annum), these estimated costs would 
equate to approximately four percent of one (1) FTE's annual time for 
each State agency and area agency, three percent of one (1) FTE's 
annual time for each Title VI grantee, and .7 percent of one (1) FTE's 
annual time for each service provider.
---------------------------------------------------------------------------

    \398\ Average weekly hours worked information per U.S. Dep't. of 
Labor, Bureau of Labor and Statistics, Labor Productivity and Cost 
Measures--Major Sectors nonfarm business, business, nonfinancial 
corporate, and manufacturing (Feb. 2, 2023), https://www.bls.gov/productivity/tables/home.htm.
---------------------------------------------------------------------------

2. Discussion of Benefits
    The benefits from this final rule are difficult to quantify. We 
anticipate that the rule will provide clarity of administration for 
State agencies, AAAs, and Title VI grantees with respect to aspects of 
the OAA that were enacted under previous reauthorizations. This clarity 
likely will reduce time spent by grantees in implementing and managing 
OAA programs and services and result in improved program and fiscal 
management.
    Additional benefits are anticipated from our modifications to 
regulatory text that modernize our rule to provide greater flexibility 
to State agencies and AAAs, as well as to reflect ongoing feedback from 
interested parties and responses to our RFI and NPRM in areas where our 
prior regulations did not address the evolving needs of Title III, VI, 
and VII grantees and the older adults and family caregivers they serve. 
The rule's allowance for shelf-stable, pick-up, carry-out, drive-
through, or similar meals, where a participant will be able to collect 
their meal from a congregate site and return to the community off-site 
to enjoy it, is a direct response to feedback from interested parties, 
including as gathered from the RFI, and appropriately reflects the 
evolving needs of both grantees and OAA participants. We anticipate 
increased participation in the Title III nutrition programs, which in 
turn will lead to better nutritional health for a new group of older 
adults that does not currently participate in the program.
    Another example of a modification to regulatory text that will 
modernize our rule is the new definition of ``greatest economic need,'' 
which will allow State agencies and AAAs to take into consideration 
populations that experience economic need due to a variety of local 
conditions and individual situations, other than income, that 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 will allow State 
agencies and AAAs to make these determinations.
    The flexibilities to be afforded to State agencies and Title VI 
grantees in certain emergency and disaster situations will allow 
funding to be directed more efficiently where it is needed most to 
better assist older adults in need.
    We have determined that the many anticipated benefits of the final 
rule are not quantifiable, given the variation in the types and sizes 
of State agencies, AAAs, and Title VI grantees, as well as the 
variation in conditions and situations at the State and local level 
throughout the U.S.

B. Regulatory Flexibility Act

    Under the Regulatory Flexibility Act, as amended by the Small 
Business Regulatory Enforcement Fairness Act (SBREFA) (5 U.S.C. 601 et 
seq.), agencies must consider the impact of regulations on small 
entities and analyze regulatory options that would minimize a rule's 
impacts on these entities. Alternatively, the agency head may certify 
that the final rule will not have a significant economic impact on a 
substantial number of small entities.

[[Page 11654]]

ACL estimates the costs that would result from the final rule to be 
$4,879 per State agency in States that have area agencies, $4,883 per 
State agency in States with no area agencies, $5,104 per area agency, 
$856 per service provider, and $3,247 per Title VI grantee. These costs 
would consist of staff time to revise policies and procedures and to 
create, provide and receive trainings. Assuming annual productive time 
per full time employee (FTE) of 1,650 hours (based on average weekly 
hours worked of 33 hours per week \399\ and 50 weeks worked per annum), 
these estimated costs would equate to approximately four percent of one 
(1) FTE's annual time for each State agency and area agency, three 
percent of one (1) FTE's annual time for each Title VI grantee, and .7 
percent of one (1) FTE's annual time for each service provider. HHS 
certifies that this final rule will not have a significant economic 
impact on a substantial number of small businesses and other small 
entities.
---------------------------------------------------------------------------

    \399\ Id.
---------------------------------------------------------------------------

C. Executive Order 13132 (Federalism)

    Executive Order 13132 requires Federal agencies to consider the 
impact of their regulatory actions on State and local governments. 
Where such actions have federalism implications, agencies are directed 
to provide a statement describing the agency's considerations.
Consultations With State and Local Officials
    Executive Order 13132 requires meaningful and timely input by State 
and local officials in the development of regulatory policies that have 
federalism implications. As discussed in the preamble, the proposed 
regulations were developed with input from interested parties, 
including State and local officials.
    We issued a Request for Information (RFI) 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. ACL received comments from over 
90 entities in response to the RFI.
    In addition, ACL conducted a listening session on April 18, 2022, 
at the national conference for Tribal organization grantees under Title 
VI of the OAA. We also promoted the RFI and the NPRM with Title VI 
grantees and Indian Tribes, and a Tribal consultation meeting took 
place at the National Title VI Conference April 12, 2023.
    On June 16, 2023, the Federal Register published a notice of 
proposed rulemaking (NPRM) regarding OAA Titles III, VI, and VII (88 FR 
39568). Through the NPRM, ACL sought feedback regarding ACL's proposal 
to modernize the implementing regulations of the OAA, which have not 
been substantially altered since their promulgation in 1988. ACL 
received 780 public comments on the NPRM.
    The goal of the processes outlined above was to hear from all 
interested entities, including State and local officials, the public, 
and professional fields about their experience with OAA services and 
about the proposed regulations. Interested parties were provided with 
opportunities to give input as to areas where our prior regulations did 
not address the evolving needs of Title III, VI, and VII grantees and 
the older adults and family caregivers they serve, as well as input 
into the content of the final rule. We carefully reviewed comments 
received in response to the RFI and the NPRM from State and local 
officials, considered concerns raised in developing the final rule, and 
made changes to several of the final rule's provisions based on public 
comments. Our final rule is a direct response to feedback from 
interested parties and reflects the evolving needs of both grantees and 
OAA program participants.
Nature of Concerns and the Need To Issue This Proposed Rule
    The final rule modifies existing OAA regulations 45 CFR parts 1321, 
1322, and 1324 and removes 45 CFR part 1323. Most of these changes 
modernize the OAA regulations to bring them into conformity with the 
reauthorized OAA and to provide clarity of administration for ACL and 
its grantees. In addition to areas where we better align regulation 
with current statute, we make modifications to regulatory text that 
modernize our rule to provide greater flexibility to State agencies.
    Commenters overwhelmingly supported most provisions in the proposed 
rule. Many commenters expressed general support for our updates to 
modernize the regulations. Some commenters appreciated the 
flexibilities in the rule, while others appreciated the additional 
clarity offered by the rule.
    Some commenters asked that ACL be more prescriptive in the final 
rule and that the final rule be revised to allow less discretion to 
State agencies in implementing the Act. The preamble notes several 
instances where ACL declined such requests, in order to provide 
flexibility to State agencies in implementing the final rule.
    We received comments that the final rule would be challenging to 
implement absent additional funding. We seriously considered these 
views in developing the final rule. We also completed a regulatory 
impact analysis to fully assess costs and benefits of the new 
requirements. We recognize that some of the new proposed regulatory 
provisions may create administrative and monetary burden in updating 
policies and procedures, as well as a potential need for changes to 
some States' laws or regulations. However, this burden should be a one-
time expense, some policies are at the States' option to adopt, and 
States will have significant discretion to implement the proposed 
provisions in the manner best suited to State needs. Much of this final 
rule codifies the policies and procedures that State agencies already 
have, or should have, in place to administer programs and deliver 
services under the OAA, and we believe that many State agencies already 
are in substantial compliance with the final rule.
Extent to Which We Meet Those Concerns
    The 2020 OAA reauthorization increased the amount of OAA funding 
that State agencies \400\ may use to administer the Act from the 
greater of (i) 5% of Title III B, C, D, and E funding and (ii) $500,000 
to the greater of (i) 5% of Title III B, C, D, and E funding and (ii) 
$750,000.\401\ In addition, we believe that many States already are in 
substantial compliance with the final rule, most of which brings the 
regulations into conformity with the OAA. We also believe the benefits 
of the final rule will be significant: the rule provides considerable 
latitude to State agencies to determine how best to implement the OAA 
in order to respond to local needs and circumstances, and it increases 
the flexibility available to States in administering the OAA.
---------------------------------------------------------------------------

    \400\ This excludes Guam, American Samoa, the United States 
Virgin Islands, the Trust Territory of the Pacific Islands, and the 
Commonwealth of the Northern Mariana Islands, which have lower 
administrative caps.
    \401\ 42 U.S.C. 3028(b).
---------------------------------------------------------------------------

D. Executive Order 13175 (Consultation and Coordination With Indian 
Tribal Governments)

    ACL will fulfill its responsibilities under Executive Order 13175, 
``Consultation and Coordination with Indian Tribal Governments.'' 
Executive Order 13175 requires Federal agencies to establish procedures 
for meaningful consultation and coordination with

[[Page 11655]]

Tribal officials in the development of Federal policies that have 
Tribal implications. ACL conducted a listening session at the National 
Title VI Conference on April 18, 2022. We also promoted the RFI and 
NPRM with Title VI grantees and Indian Tribes. A Tribal consultation 
meeting took place at the National Title VI Conference April 12, 2023. 
ACL continued to solicit input from affected Federally recognized 
Indian Tribes as we developed these updated regulations. ACL conducted 
a Tribal consultation meeting on Thursday June 22, 2023, from 2:00 p.m. 
to 4:00 p.m. eastern time. Additional details were made available at 
https://olderindians.acl.gov/events/.
    Comment: Commenters expressed concern that proposed service 
policies and procedures were not added through consultation and do not 
honor Tribal sovereignty. Another commenter noted the numerous acts of 
Congress that require Federal agencies to consider the administrative 
burden and infrastructure inequities faced by Tribes. A commenter noted 
that there should be additional Tribal consultation with Alaskan and 
Hawaiian programs given the volume and special circumstances that they 
could speak to on the impact of the proposed regulations.
    Response: ACL honors Tribal sovereignty and offered formal Tribal 
consultation and other engagements with Tribal grantee input prior to 
issuing the NPRM. ACL conducted a listening session at the National 
Title VI Conference on April 18, 2022. We also promoted the RFI with 
Title VI grantees and Indian Tribes until it closed on June 6, 2022. A 
Tribal consultation meeting took place at the National Title VI 
Conference April 12, 2023. ACL also conducted a Tribal briefing on June 
22, 2023. These activities were conducted in addition to the weekly 
announcements made by ACL's Office of American Indian, Alaskan Native, 
and Native Hawaiian Programs once the NPRM was released on June 16, 
2023, and the formal Tribal consultation requested and received on the 
NPRM on August 9, 2023, following a ``Dear Tribal Leader'' sent from 
ACL.
    ACL is committed to honoring Tribal sovereignty while offering 
opportunities to directly engage with program contacts and leaders 
regularly.
    ACL works to maintain a strong government to government 
relationship with opportunities to provide meaningful and timely input 
on areas that have a direct impact to their programs. ACL used comments 
received from Tribal grantees and other commentators through the RFI 
process to ensure that cultural and traditional practices were 
incorporated into the proposed regulations. ACL sent a Tribal Leader 
Letter to Tribal leaders on July 14, 2023, sharing a direct link to 
make comments and hosted a Tribal consultation regarding the proposed 
regulations on August 9, 2023. ACL notes that much of what is in the 
final rule is codifying what is in the Act.

E. Unfunded Mandates Reform Act of 1995

    Section 202 of the Unfunded Mandates Reform Act of 1995 requires 
that a covered agency prepare a budgetary impact statement before 
promulgating a rule that includes any Federal mandate that may result 
in the expenditure by State, local, and Tribal governments, in the 
aggregate, or by the private sector, of $100 million or more in any one 
year. In 2023, that threshold is approximately $177 million. If a 
covered agency must prepare a budgetary impact statement, section 205 
further requires that it select the most cost-effective and least 
burdensome alternative that achieves the objectives of the rule and is 
consistent with the statutory requirements. In addition, section 203 
requires a plan for informing and advising any small governments that 
may be significantly or uniquely impacted by the rule. We have 
determined that this rule would not result in the expenditure by State, 
local, and Tribal governments, in the aggregate, or by the private 
sector, of more than $177 million in any one year. Accordingly, we have 
not prepared a budgetary impact statement, specifically addressed the 
regulatory alternatives considered, or prepared a plan for informing 
and advising any significantly or uniquely impacted small governments.

F. Plain Language in Government Writing

    Pursuant to Executive Order 13563 of January 18, 2011, and 
Executive Order 12866 of September 30, 1993, Executive Departments and 
Agencies are directed to use plain language in all proposed and final 
rules. ACL believes it has used plain language in drafting of the 
proposed and final rule.

G. Paperwork Reduction Act (PRA)

    The final rule contains an information collection in the form of 
State plans on aging under Title III and Title VII of the Act and 
applications for funding by eligible organizations to serve older 
Native Americans and family caregivers under Title VI of the Act. ACL 
intends to update guidance regarding State plans on aging and 
applications for funding under Title VI of the Act when the final rule 
is published.
    The requirement for each State agency to submit a multi-year State 
plan on aging, for a two, three, or four-year period, is a core 
function of State agencies and a long-standing requirement to receive 
funding under the Act. State agencies use funds provided under the Act 
to prepare State plans on aging. In preparing and submitting State 
plans on aging, State agencies compile information and obtain public 
input. They coordinate with State, Tribal, AAA, service providers, 
local government, and other interested parties.
    ACL will submit a PRA request to the Office of Management and 
Budget (OMB) for the development of the State plans on aging. 
Respondents include 55 State agencies located in each of the 50 States 
as well as the District of Columbia, Guam, Puerto Rico, American Samoa, 
and the Mariana Islands. ACL estimates 40 burden hours per response. 
Due to the multi-year nature of the plans, ACL estimates a total of 683 
hours in the aggregate to meet State plan requirements by State 
agencies each year. Based on our years of experience, we anticipate for 
each State agency 171 hours of executive staff time equivalent to a 
general and operations manager (Occupation code 11-1021), at a cost of 
$55.41 per hour unadjusted hourly wage, $110.82 adjusted for non-wage 
benefits and indirect costs, and 512 hours of first-line supervisor 
time (Occupation code 43-1011), at a cost of $30.47 per hour unadjusted 
hourly wage, $60.94 adjusting for non-wage benefits and indirect costs. 
We monetize the cost of meeting State plan requirements at $50,151.50 
per year.
    This final rule contains an information collection under OMB 
control number 0985-0064 Application for Older Americans Act, Title VI 
parts A/B and C Grants with an expiration date of November 30, 2025. 
The OAA requires the Department to promote the delivery of supportive 
services and nutrition services to Native Americans. ACL is responsible 
for administering the Title VI part A/B (Nutrition and Supportive 
Service) and part C (Caregiver) grants. This information collection 
(0985-0064) gathers information on the ability of Federally recognized 
American Indian, Alaskan Native and Native Hawaiian organizations to 
provide nutrition, supportive, and caregiver services to elders within 
their service area. Title VI grant applications are required once every 
three (3) years, with 545 respondents taking 4.25 hours per response. 
ACL estimates the burden

[[Page 11656]]

associated with this collection of information as 395.4 annual burden 
hours.
    Following publication of this rule, ACL will update guidance 
regarding State plans on aging and applications for funding under Title 
VI of the Act. In accordance with the regulations implementing the PRA, 
sections Sec.  1320.11 and Sec.  1320.12, ACL will submit any material 
or substantive revisions under 0985-0064 and 0985-New to the Office of 
Management and Budget for review, comment, and approval.

List of Subjects in 45 CFR Parts 1321, 1322, 1323, and 1324

    Administrative practice and procedure, Aged, Area agencies on 
aging, Elder rights, Family caregivers, Grant programs--social 
programs, Indians, Native Hawaiian programs, Tribal organizations and a 
Native Hawaiian grantee.

    For the reasons discussed in the preamble, ACL amends 45 CFR 
chapter XIII as follows:

0
1. Revise part 1321 to read as follows:

PART 1321--GRANTS TO STATE AND COMMUNITY PROGRAMS ON AGING

Sec.
Subpart A--Introduction
1321.1 Basis and purpose of this part.
1321.3 Definitions.
Subpart B--State Agency Responsibilities
1321.5 Mission of the State agency.
1321.7 Organization and staffing of the State agency.
1321.9 State agency policies and procedures.
1321.11 Advocacy responsibilities.
1321.13 Designation of and designation changes to planning and 
service areas.
1321.15 Interstate planning and service area.
1321.17 Appeal to the Departmental Appeals Board on planning and 
service area designation.
1321.19 Designation of and designation changes to area agencies.
1321.21 Withdrawal of area agency designation.
1321.23 Appeal to the Departmental Appeals Board on area agency on 
aging withdrawal of designation.
1321.25 Duration, format, and effective date of the State plan.
1321.27 Content of State plan.
1321.29 Public participation.
1321.31 Amendments to the State plan.
1321.33 Submission of the State plan or plan amendment to the 
Assistant Secretary for Aging for approval.
1321.35 Notification of State plan or State plan amendment approval 
or disapproval for changes requiring Assistant Secretary for Aging 
approval.
1321.37 Notification of State plan amendment receipt for changes not 
requiring Assistant Secretary for Aging approval.
1321.39 Appeals to the Departmental Appeals Board regarding State 
plan on aging.
1321.41 When a disapproval decision is effective.
1321.43 How the State agency may appeal the Departmental Appeals 
Board's decision.
1321.45 How the Assistant Secretary for Aging may reallot the State 
agency's withheld payments.
1321.47 Conflicts of interest policies and procedures for State 
agencies.
1321.49 Intrastate funding formula.
1321.51 Single planning and service area States.
1321.53 State agency Title III and Title VI coordination 
responsibilities.
Subpart C--Area Agency Responsibilities
1321.55 Mission of the area agency.
1321.57 Organization and staffing of the area agency.
1321.59 Area agency policies and procedures.
1321.61 Advocacy responsibilities of the area agency.
1321.63 Area agency advisory council.
1321.65 Submission of an area plan and plan amendments to the State 
agency for approval.
1321.67 Conflicts of interest policies and procedures for area 
agencies on aging.
1321.69 Area agency on aging Title III and Title VI coordination 
responsibilities.
Subpart D--Service Requirements
1321.71 Purpose of services allotments under Title III.
1321.73 Policies and procedures.
1321.75 Confidentiality and disclosure of information.
1321.77 Purpose of services--person- and family-centered, trauma-
informed.
1321.79 Responsibilities of service providers under State and area 
plans.
1321.81 Client eligibility for participation.
1321.83 Client and service priority.
1321.85 Supportive services.
1321.87 Nutrition services.
1321.89 Evidence-based disease prevention and health promotion 
services.
1321.91 Family caregiver support services.
1321.93 Legal assistance.
1321.95 Service provider Title III and Title VI coordination 
responsibilities.
Subpart E--Emergency and Disaster Requirements
1321.97 Coordination with State, Tribal, and local emergency 
management.
1321.99 Setting aside funds to address disasters.
1321.101 Flexibilities under a major disaster declaration.
1321.103 Title III and Title VI coordination for emergency and 
disaster preparedness.
1321.105 Modification during major disaster declaration or public 
health emergency.

    Authority: 42 U.S.C. 3001 et seq.

Subpart A--Introduction


Sec.  1321.1  Basis and purpose of this part.

    (a) The purpose of this part is to implement Title III of the Older 
Americans Act, as amended (the Act) (42 U.S.C. 3001 et seq.). This part 
prescribes requirements State agencies shall meet to receive grants to 
develop comprehensive and coordinated systems for the delivery of the 
following services: supportive, nutrition, evidence-based disease 
prevention and health promotion, caregiver, legal, and, where 
appropriate, other services. These services are provided via State 
agencies, area agencies on aging, and local service providers under the 
Act. These requirements include:
    (1) Responsibilities of State agencies;
    (2) Responsibilities of area agencies on aging;
    (3) Service requirements; and
    (4) Emergency and disaster requirements.
    (b) The requirements of this part are based on Title III of the 
Act. Title III provides for formula grants to State agencies on aging, 
under approved State plans described in Sec.  1321.27, to develop or 
enhance comprehensive and coordinated community-based systems resulting 
in a continuum of person-centered services to older persons and family 
caregivers, with special emphasis on older individuals with the 
greatest economic need and greatest social need, with particular 
attention to low-income minority older individuals. A responsive 
community-based system of services shall include collaboration in 
planning, resource allocation, and delivery of a comprehensive array of 
services and opportunities for all older adults in the community. Title 
III funds are intended to be used as a catalyst to bring together 
public and private resources in the community to assure the provision 
of a full range of efficient, well-coordinated, and accessible person-
centered services for older persons and family caregivers.
    (c) Each State designates one State agency to:
    (1) Develop and submit a State plan on aging, as set forth in Sec.  
1321.33;
    (2) Administer Title III and VII funds under the State plan and the 
Act;
    (3) Be responsible for planning, policy development, 
administration, coordination, priority setting, monitoring, and 
evaluation of all State activities related to the Act;
    (4) Serve as an advocate for older individuals and family 
caregivers;
    (5) Designate planning and service areas;
    (6) Designate an area agency on aging to serve each planning and 
service area,

[[Page 11657]]

except in single planning and service area States; and
    (7) Provide funds as set forth in the Act to either:
    (i) Area agencies on aging under approved area plans on aging, in 
States with multiple planning and service areas, for their use in 
fulfilling requirements under the Act and distribution to service 
providers to provide direct services,
    (ii) Service providers, in single planning and service area States, 
to provide direct services, or
    (iii) The Ombudsman program, as set forth in part 1324 of this 
chapter.
    (d) Terms used, but not otherwise defined, in this part will have 
the meanings ascribed to them in the Act.


Sec.  1321.3  Definitions.

    Access to services or access services, as used in this part and 
sections 306 and 307 of the Act (42 U.S.C. 3026 and 3027), means 
services which may facilitate connection to or receipt of other direct 
services, including transportation, outreach, information and 
assistance, options counseling, and case management services.
    Acquiring, as used in the Act, means obtaining ownership of an 
existing facility.
    Act, means the Older Americans Act of 1965, as amended.
    Altering or renovating, as used in this part, means making 
modifications to or in connection with an existing facility which are 
necessary for its effective use. Such modifications may include 
alterations, improvements, replacements, rearrangements, installations, 
renovations, repairs, expansions, upgrades, or additions, which are not 
in excess of double the square footage of the original facility and all 
physical improvements.
    Area agency on aging, as used in this part, means a single agency 
designated by the State agency to perform the functions specified in 
the Act for a planning and service area.
    Area plan administration, as used in this part, means funds used to 
carry out activities as set forth in section 306 of the Act (42 U.S.C. 
3026) and other activities to fulfill the mission of the area agency as 
set forth in Sec.  1321.55, including development of private pay 
programs or other contracts and commercial relationships.
    Best available data, as used in section 305(a)(2)(C) of the Act (42 
U.S.C. 3025(a)(2)(C)), with respect to the development of the 
intrastate funding formula, means the most current reliable data or 
population estimates available from the U.S. Decennial Census, American 
Community Survey, or other high-quality, representative data available 
to the State agency.
    Constructing, as used in this part, means building a new facility, 
including the costs of land acquisition and architectural and 
engineering fees, or making modifications to or in connection with an 
existing facility which are in excess of double the square footage of 
the original facility and all physical improvements.
    Conflicts of interest, as used in this part, means:
    (1) One or more conflicts between the private interests and the 
official responsibilities of a person in a position of trust;
    (2) 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; and
    (3) Other conflicts of interest identified in guidance issued by 
the Assistant Secretary for Aging and/or by State agency policies.
    Cost sharing, as used in section 315(a) of the Act (42 U.S.C. 
3030c-2(a)), means requesting payment using a sliding scale, based only 
on an individual's income and the cost of delivering the service, in a 
manner consistent with the exceptions, prohibitions, and other 
conditions laid out in the Act.
    Department, means the U.S. Department of Health and Human Services.
    Direct services, as used in this part, means any activity performed 
to provide services directly to an older person or family caregiver, 
groups of older persons or family caregivers, or to the general public 
by the staff or volunteers of a service provider, an area agency on 
aging, or a State agency whether provided in-person or virtually. 
Direct services exclude State or area plan administration and program 
development and coordination activities.
    Domestically produced foods, as used in this part, means 
Agricultural foods, beverages and other food ingredients which are a 
product of the United States, its Territories or possessions, the 
Commonwealth of Puerto Rico, or the Trust Territories of the Pacific 
Islands (hereinafter referred to as ``the United States''), except as 
may otherwise be required by law, and shall be considered to be such a 
product if it is grown, processed, and otherwise prepared for sale or 
distribution exclusively in the United States except with respect to 
minor ingredients. Ingredients from nondomestic sources will be allowed 
to be utilized as a United States product if such ingredients are not 
otherwise:
    (1) Produced in the United States; and
    (2) Commercially available in the United States at fair and 
reasonable prices from domestic sources.
    Family caregiver, as used in this part, means an adult family 
member, or another individual, who is an informal provider of in-home 
and community care to an older individual; an adult family member, or 
another individual, who is an informal provider of in-home and 
community care to an individual of any age with Alzheimer's disease or 
a related disorder with neurological and organic brain dysfunction; or 
an older relative caregiver. For purposes of this part, family 
caregiver does not include individuals whose primary relationship with 
the older adult is based on a financial or professional agreement.
    Fiscal year, as used in this part, means the Federal fiscal year.
    Governor, as used in this part, means the chief elected officer of 
each State and the mayor of the District of Columbia.
    Greatest economic need, as used in this part, means the need 
resulting from an income level at or below the Federal poverty level 
and as further defined by State and area plans based on local and 
individual factors, including geography and expenses.
    Greatest social need, as used in this part, means the need caused 
by noneconomic factors, which include:
    (1) Physical and mental disabilities;
    (2) Language barriers;
    (3) Cultural, social, or geographical isolation, including due to:
    (i) Racial or ethnic status;
    (ii) Native American identity;
    (iii) Religious affiliation;
    (iv) Sexual orientation, gender identity, or sex characteristics;
    (v) HIV status;
    (vi) Chronic conditions;
    (vii) Housing instability, food insecurity, lack of access to 
reliable and clean water supply, lack of transportation, or utility 
assistance needs;
    (viii) Interpersonal safety concerns;
    (ix) Rural location; or
    (x) Any other status that:
    (A) Restricts the ability of an individual to perform normal or 
routine daily tasks; or
    (B) Threatens the capacity of the individual to live independently; 
or
    (4) Other needs as further defined by State and area plans based on 
local and individual factors.
    Immediate family, as used in this part pertaining to conflicts of 
interest, means a member of the household or a relative with whom there 
is a close personal or significant financial relationship.
    In-home supportive services, as used in this part, references those 
supportive

[[Page 11658]]

services provided in the home as set forth in the Act, to include:
    (1) Homemaker, personal care, home care, home health, and other 
aides;
    (2) Visiting and telephone or virtual reassurance;
    (3) Chore maintenance;
    (4) Respite care for families, including adult day care; and
    (5) Minor modification of homes that is necessary to facilitate the 
independence and health of older individuals and that is not readily 
available under another program.
    Local sources, as used in the Act and local public sources, as used 
in section 309(b)(1) of the Act (42 U.S.C. 3029(b)(1)), means tax-levy 
money or any other non-Federal resource, such as State or local public 
funding, funds from fundraising activities, reserve funds, bequests, or 
cash or third-party in-kind contributions from non-client community 
members or organizations.
    Major disaster declaration, as used in this part and section 310 of 
the Act (42 U.S.C. 3030), means a Presidentially declared disaster 
under the Robert T. Stafford Relief and Emergency Assistance Act (42 
U.S.C. 5121-5207).
    Means test, as used in the Act, means the use of the income, 
assets, or other resources of an older person, family caregiver, or the 
households thereof to deny or limit that person's eligibility to 
receive services under this part.
    Multipurpose senior center, as used in the Act, means a community 
facility for the organization and provision of a broad spectrum of 
services, which shall include provision of health (including mental and 
behavioral health), social, nutritional, and educational services and 
the provision of facilities for recreational activities for older 
individuals, as practicable, including as provided via virtual 
facilities; as used in Sec.  1321.85, facilitation of services in such 
a facility.
    Native American, as used in the Act, means a person who is a member 
of any Indian Tribe, band, nation, or other organized group or 
community of Indians (including any Alaska Native village or regional 
or village corporation as defined in or established pursuant to the 
Alaska Native Claims Settlement Act (43 U.S.C. 1601 et seq.) who:
    (1) Is recognized as eligible for the special programs and services 
provided by the United States to Indians because of their status as 
Indians; or
    (2) Is located on, or in proximity to, a Federal or State 
reservation or rancheria; or is a person who is a Native Hawaiian, who 
is any individual any of whose ancestors were natives of the area which 
consists of the Hawaiian Islands prior to 1778.
    Nutrition Services Incentive Program, as used in the Act, means 
grant funding to State agencies, eligible Tribal organizations, and 
Native Hawaiian grantees to support congregate and home-delivered 
nutrition programs by providing an incentive to serve more meals.
    Official duties, as used in section 712 of the Act (42 U.S.C. 
3058g) with respect to representatives of the Long-Term Care Ombudsman 
Program, means work pursuant to the Long-Term Care Ombudsman Program 
authorized by the Act, 45 CFR part 1324, subpart A, and/or State law 
and carried out under the auspices and general direction of, or by 
direct delegation from, the State Long-Term Care Ombudsman.
    Older relative caregiver, as used in section 372(a)(4) of the Act 
(42 U.S.C. 3030s(a)(4)), means a caregiver who is age 55 or older and 
lives with, is the informal provider of in-home and community care to, 
and is the primary caregiver for, a child or an individual with a 
disability;
    (1) In the case of a caregiver for a child is:
    (i) The grandparent, step-grandparent, or other relative (other 
than the parent) by blood, marriage, or adoption, of the child;
    (ii) Is the primary caregiver of the child because the biological 
or adoptive parents are unable or unwilling to serve as the primary 
caregivers of the child; and
    (iii) Has a legal relationship to the child, such as legal custody, 
adoption, or guardianship, or is raising the child informally; and
    (2) In the case of a caregiver for an individual with a disability, 
is the parent, grandparent, step-grandparent, or other relative by 
blood, marriage, or adoption of the individual with a disability.
    Periodic, as used in this part to refer to the frequency of client 
assessment and data collection, means, at a minimum, once each fiscal 
year, and as used in section 307(a)(4) of the Act (42 U.S.C. 
3027(a)(4)) to refer to the frequency of evaluations of, and public 
hearings on, activities and projects carried out under State and area 
plans, means, at a minimum once each State or area plan cycle.
    Planning and service area, as used in section 305 of the Act (42 
U.S.C. 3025), means an area designated by a State agency under section 
305(a)(1)(E) (42 U.S.C. 3025(a)(1)(E)), for the purposes of local 
planning and coordination and awarding of funds under Title III of the 
Act, including a single planning and service area.
    Private pay programs, as used in section 306(g) of the Act (42 
U.S.C. 3026(g)), are a type of contract or commercial relationship and 
are programs, separate and apart from programs funded under the Act, 
for which the individual consumer agrees to pay to receive services 
under the programs.
    Program development and coordination activities, as used in this 
part, means those actions to plan, develop, provide training, and 
coordinate at a systemic level those programs and activities which 
primarily benefit and target older adult and family caregiver 
populations who have the greatest social needs and greatest economic 
needs, including development of contracts, commercial relationships, or 
private pay programs.
    Program income, means gross income earned by the non-Federal entity 
that is directly generated by a supported activity or earned as a 
result of the Federal award during the period of performance except as 
otherwise provided under Federal grantmaking authorities. Program 
income includes but is not limited to income from fees for services 
performed, the use or rental of real or personal property acquired 
under Federal awards, the sale of commodities or items fabricated under 
a Federal award, license fees and royalties on patents and copyrights, 
and principal and interest on loans made with Federal award funds. 
Interest earned on advances of Federal funds is not program income. 
Except as otherwise provided in Federal statutes, regulations, or the 
terms and conditions of the Federal award, program income does not 
include rebates, credits, discounts, and interest earned on any of 
them. See also 35 U.S.C. 200-212 (which applies to inventions made 
under Federal awards).
    Reservation, as used in section 305(b)(2) of the Act (42 U.S.C. 
3025(b)(2)) with respect to the designation of planning and service 
areas, means any Federally or State recognized American Indian Tribe's 
reservation, pueblo, or colony, including former reservations in 
Oklahoma, Alaska Native regions established pursuant to the Alaska 
Native Claims Settlement Act (43 U.S.C. 1601 et seq.), and Indian 
allotments.
    Service provider, means an entity that is awarded funds, including 
via a grant, subgrant, contract, or subcontract, to provide direct 
services under the State or area plan.
    Severe disability, as used to carry out the provisions of the Act, 
means a severe, chronic disability attributable to mental or physical 
impairment, or a

[[Page 11659]]

combination of mental and physical impairments, that:
    (1) Is likely to continue indefinitely; and
    (2) Results in substantial functional limitation in three or more 
of the following major life activities: self-care, receptive and 
expressive language, learning, mobility, self-direction, capacity for 
independent living, economic self-sufficiency, cognitive functioning, 
and emotional adjustment.
    Single planning and service area State, means a State which was 
approved on or before October 1, 1980, as such and continues to operate 
as a single planning and service area.
    State, as used in this part, means one or more of the 50 States, 
the District of Columbia, and the Territories of Guam, Puerto Rico, the 
United States Virgin Islands, American Samoa, and the Commonwealth of 
the Northern Mariana Islands, unless otherwise specified.
    State agency, as used in this part, means the designated State unit 
on aging for each of the 50 States, the District of Columbia, and the 
Territories of Guam, Puerto Rico, the United States Virgin Islands, 
American Samoa, and the Commonwealth of the Northern Mariana Islands, 
unless otherwise specified.
    State plan administration, as used in this part, means funds used 
to carry out activities as set forth in section 307 of the Act (42 
U.S.C. 3027) and other activities to fulfill the mission of the State 
agency as set forth in Sec.  1321.5.
    Supplemental foods, as used in this part, means foods that assist 
with maintaining health, but do not alone constitute a meal. 
Supplemental foods include liquid nutrition supplements or enhancements 
to a meal, such as additional beverage or food items, and may be 
specified by State agency policies and procedures. Supplemental foods 
may be provided with a meal, or separately, to older adults who 
participate in either congregate or home-delivered meal services.
    Voluntary contributions, as used in section 315(b) of the Act (42 
U.S.C. 3030c-2(b)), means donations of money or other personal 
resources given freely, without pressure or coercion, by individuals 
receiving services under the Act.

Subpart B--State Agency Responsibilities


Sec.  1321.5  Mission of the State agency.

    (a) The Act intends that the State agency shall be a leader on all 
aging issues on behalf of all older individuals and family caregivers 
in the State. The State agency shall proactively carry out a wide range 
of functions, including advocacy, planning, coordination, inter-agency 
collaboration, information sharing, training, monitoring, and 
evaluation. The State agency shall lead the development or enhancement 
of comprehensive and coordinated community-based systems in, or 
serving, communities throughout the State. These systems shall be 
designed to assist older individuals and family caregivers in leading 
independent, meaningful, and dignified lives in their own homes and 
communities.
    (b) In States with multiple planning and service areas, the State 
agency shall designate area agencies on aging to assist in carrying out 
the mission described above for the State agency at the sub-State 
level. The State agency shall designate as area agencies on aging only 
those non-State agencies having the capacity and making the commitment 
to fully carry out the mission described for area agencies in Sec.  
1321.55.
    (c) The State agency shall assure that the resources made available 
to area agencies on aging under the Act are used to carry out the 
mission described for area agencies in Sec.  1321.55.


Sec.  1321.7  Organization and staffing of the State agency.

    (a) The State shall designate a sole State agency to develop and 
administer the State plan required under this part and part 1324 of 
this chapter and to serve as the effective and visible advocate for 
older adults within the State.
    (b) The State agency shall have an adequate number of qualified 
staff to fulfill the functions prescribed in this part.
    (c) The State agency shall establish, contract, or otherwise 
arrange with another agency or organization as permitted by section 
307(a)(9)(A) of the Act (42 U.S.C. 3027(a)(9)(A)), an Office of the 
State Long-Term Care Ombudsman. Such Office must be headed by a full-
time Ombudsman and consist of other staff as appropriate to fulfill 
responsibilities as set forth in part 1324, subpart A, of this chapter.
    (d) If a State statute establishes an Ombudsman program which will 
perform the functions of section 307(a)(9)(A) of the Act (42 U.S.C. 
3027(a)(9)(A)), the State agency continues to be responsible for 
assuring that the requirements of this program under the Act and as set 
forth in part 1324, subpart A, of this chapter, are met, 
notwithstanding any additional requirements or funding related to State 
law. In such cases where State law may conflict with the Act, the 
Governor shall confirm understanding of the State agency's continuing 
obligations under the Act through an assurance in the State plan.
    (e) The State agency shall have as set forth in section 307(a)(13) 
(42 U.S.C. 3027(a)(13)) and section 731 of the Act (42 U.S.C. 3058j) 
and 45 CFR part 1324, subpart C, a Legal Assistance Developer, and such 
other personnel as appropriate to provide State leadership in 
developing legal assistance programs for older individuals throughout 
the State.


Sec.  1321.9  State agency policies and procedures.

    (a) The State agency on aging shall develop policies and procedures 
governing all aspects of programs operated as set forth in this part 
and part 1324 of this chapter. These policies and procedures shall be 
developed in consultation with area agencies on aging, program 
participants, and other appropriate parties in the State. Except for 
the Ombudsman program as set forth in 45 CFR part 1324, subpart A and 
where otherwise indicated, the State agency policies may allow for such 
policies and procedures to be developed at the area agency on aging 
level. The State agency is responsible for implementing, monitoring, 
and enforcing policies and procedures, where:
    (1) The policies and procedures developed by the State agency shall 
address how the State agency will monitor the programmatic and fiscal 
performance of all programs and activities initiated under this part 
for compliance with all requirements, and for quality and 
effectiveness. As set forth in sections 305(a)(2)(A) and 306(a) of the 
Act (42 U.S.C. 3025(a)(2)(A) and 3026(a)), and consistent with section 
305(a)(1)(C) (42 U.S.C. 3025(a)(1)(C)), the State agency shall be 
responsible for monitoring the program and financial activities of 
subrecipients and subgrantees to ensure that grant awards are used for 
the authorized purposes and in compliance with Federal statutes, 
regulations, and the terms and conditions of the grant award, 
including:
    (i) Evaluating each subrecipient's risk of noncompliance to ensure 
proper accountability and compliance with program requirements and 
achievement of performance goals;
    (ii) Reviewing subrecipient policies and procedures; and
    (iii) Ensuring that all subrecipients and subgrantees complete 
audits as required in 2 CFR part 200, subpart F and 45 CFR part 75, 
subpart F.

[[Page 11660]]

    (2) The State agency may not delegate to another agency the 
authority to award or administer funds under this part.
    (3) The State Long-Term Care Ombudsman shall be responsible for 
monitoring the files, records, and other information maintained by the 
Ombudsman program, as set forth in part 1324, subpart A. Such 
monitoring may be conducted by a designee of the Ombudsman. Neither the 
Ombudsman nor a designee shall disclose identifying information of any 
complainant or long-term care facility resident to individuals outside 
of the Ombudsman program, except as otherwise specifically provided in 
Sec.  1324.11(e)(3) of this chapter.
    (b) The State agency shall ensure policies and procedures are 
aligned with periodic data collection and reporting requirements, 
including ensuring service and unit definitions are consistent with 
definitions set forth in these regulations, policy guidance, and other 
information developed by the Assistant Secretary for Aging.
    (c) Policies and procedures developed and implemented by the State 
agency shall address:
    (1) Direct service provision for services as set forth in 
Sec. Sec.  1321.85, 1321.87, 1321.89, 1321.9, and 1321.93, including:
    (i) Requirements for client eligibility, periodic assessment, and 
person-centered planning, where appropriate;
    (ii) A listing and definitions of services that may be provided in 
the State with funds received under the Act;
    (iii) Limitations on the frequency, amount, or type of service 
provided;
    (iv) Definition of those within the State in greatest social need 
and greatest economic need;
    (v) Specific actions the State agency will use or require the area 
agency to use to target services to meet the needs of those in greatest 
social need and greatest economic need;
    (vi) How area agencies on aging may request to provide direct 
services under provisions of Sec.  1321.65(b)(7), where appropriate;
    (vii) Actions to be taken by area agencies and direct service 
providers to implement requirements as set forth in paragraphs 
(c)(2)(x) through (xi) of this section; and
    (viii) The grievance process for older individuals and family 
caregivers who are dissatisfied with or denied services under the Act.
    (2) Fiscal requirements including:
    (i) Intrastate funding formula (IFF). Distribution of Title III 
funds via the intrastate funding formula or funds distribution plan and 
of Nutrition Services Incentive Program funds as set forth in Sec.  
1321.49 or Sec.  1321.51 shall be maintained by the State agency where 
funds must be promptly disbursed.
    (ii) Non-Federal share (match). As set forth in sections 301(d)(1) 
(42 U.S.C. 3021(d)(1)), 304(c) (42 U.S.C. 3024(c)), 304(d)(1)(A) (42 
U.S.C. 3024(d)(1)(A)), 304(d)(1)(D) (42 U.S.C. 3024(d)(1)(D)), 
304(d)(2) (42 U.S.C. 3024(d)(2)), 309(b) (42 U.S.C. 3029(b)), 316(b)(5) 
(42 U.S.C. 3030c-3(b)(5)), and 373(h)(2) (42 U.S.C. 3030s-2(h)(2)) of 
the Act, the State agency shall maintain statewide match requirements, 
where:
    (A) The match may be made by State and/or local public sources 
except as set forth in paragraph (c)(2)(ii)(C) of this section.
    (B) Non-Federal shared costs or match funds and all contributions, 
including cash and third-party in-kind contributions must be accepted 
if the funds meet the specified criteria for match. A State agency may 
not require only cash as a match requirement.
    (C) State or local public resources used to fund a program which 
uses a means test shall not be used to meet the match.
    (D) Proceeds from fundraising activities may be used to meet the 
match as long as no Federal funds were used in the fundraising 
activity. Fundraising activities are unallowable costs without prior 
written approval, as set forth in 2 CFR 200.442.
    (E) A State agency may use State and local funds expended for a 
non-Title III funded program to meet the match requirement for Title 
III expenditures when the non-Title III funded program:
    (1) Is directly administered by the State or area agency;
    (2) Does not conflict with requirements of the Act;
    (3) Is used to match only the Title III program and not any other 
Federal program; and
    (4) Includes procedures to track and account expenditures used as 
match for a Title III program or service.
    (F) Match requirements for area agencies are determined by the 
State agency.
    (G) Match requirements for direct service providers are determined 
by the State and/or area agency.
    (H) A State or area agency may determine a match in excess of 
required amounts.
    (I) Other Federal funds may not be used to meet required match 
unless there is specific statutory authority.
    (J) The required statewide match for grants awarded under Title III 
of the Act is as follows:
    (1) Administration. Federal funding for State, Territory, and area 
plan administration may not account for more than 75 percent of the 
total funding expended and requires a 25 percent match. As set forth in 
2 CFR 200.306(c), prior written approval is hereby granted for 
unrecovered indirect costs to be used as match.
    (2) Supportive services and nutrition services. (i) Federal funding 
for services funded under supportive services as set forth in Sec.  
1321.85, less the portion of funds used for the Ombudsman program, may 
not account for more than 85 percent of the total funding expended, and 
requires a 15 percent match;
    (ii) Federal funding for services funded under nutrition services 
as set forth in Sec.  1321.87, less funds provided under the Nutrition 
Services Incentive Program, may not account for more than 85 percent of 
the total funding expended, and requires a 15 percent match;
    (iii) One-third (\1/3\) of the 15 percent match must be met from 
State resources, and the remaining two-thirds (\2/3\) match may be met 
by State or local resources;
    (iv) The match for supportive services and nutrition services may 
be pooled.
    (3) Family caregiver support services. The Federal funding for 
services funded under family caregiver support services as set forth in 
Sec.  1321.91 may not account for more than 75 percent of the total 
dollars expended and requires a 25 percent match.
    (4) Services not requiring match. Services for which no match is 
required include:
    (i) Evidence-based disease prevention and health promotion services 
as set forth in Sec.  1321.89;
    (ii) The Nutrition Services Incentive Program; and
    (iii) The portion of funds from supportive services used for the 
Ombudsman program.
    (iii) Transfers. Transfer of service allotments elected by the 
State agency which must meet the following requirements:
    (A) A State agency must provide notification of the transfer 
amounts elected pursuant to guidance as set forth by the Assistant 
Secretary for Aging;
    (B) A State agency shall not delegate to an area agency on aging or 
any other entity the authority to make a transfer;
    (C) A State agency may only elect to transfer between the Title 
III, part B Supportive Services and Senior Centers, part C-1 Congregate 
Nutrition Services, and part C-2 Home-Delivered Nutrition Services 
grant awards;
    (1) The State agency may elect to transfer up to 40 percent between 
the Title III, part C-1 and part C-2 grant awards, per section 
308(b)(4)(A) of the Act (42 U.S.C. 3028(b)(4)(A));

[[Page 11661]]

    (i) The State agency must request and receive approval of a waiver 
from the Assistant Secretary for Aging to exceed the 40 percent 
transfer limit.
    (ii) The State agency may request a waiver up to an additional 10 
percent between the Title III part C-1 and part C-2 grant awards, per 
section 308(b)(4)(B) of the Act (42 U.S.C. 3028(b)(4)(B)).
    (2) The State agency may elect to transfer up to 30 percent between 
Title III, parts B and C, per section 308(b)(5)(A) of the Act (42 
U.S.C. 3028(b)(5)(A)); and
    (i) The State agency must request and receive approval of a waiver 
from the Assistant Secretary for Aging to exceed the 30 percent 
limitation between parts B and C, per section 316(b)(4) of the Act (42 
U.S.C. 3030c-3(b)(4));
    (D) Percentages subject to transfer are calculated based on the 
total original Title III award allotted;
    (E) Transfer limitations apply to the State agency in aggregate;
    (F) State agencies, in consultation with area agencies, shall:
    (1) Ensure the process used by the State agencies in transferring 
funds under this section (including requirements relating to the 
authority and timing of such transfers) is simplified and clarified to 
reduce administrative barriers; and
    (2) With respect to transfers between parts C-1 and C-2, direct 
limited resources to the greatest nutrition service needs at the 
community level; and
    (G) State agencies do not have to apply equal limitations on 
transfers to each area agency on aging.
    (iv) State, Territory, and area plan administration. State and 
Territory plan administration maximum allocation requirements must 
align with the approved intrastate funding formula or funds allocation 
plan as set forth in Sec.  1321.49 or Sec.  1321.51, as applicable. In 
addition:
    (A) State and Territory plan administration maximum allocation 
amounts. State and Territory plan administration maximum allocation 
amounts may be taken from any part of the overall allotment to a State 
agency under Title III of the Act. Maximum allocation amounts are 
determined by the State agency's status as set forth in this paragraph 
(c)(2)(iv)(A) and paragraph (c)(2)(iv)(B) of this section:
    (1) A State agency which serves a State with multiple planning and 
service areas may use the greater of $750,000, per section 308(b)(2)(A) 
of the Act (42 U.S.C. 3028(b)(2)(A)), or five percent of the total 
Title III Award.
    (2) A State agency which serves a single planning and service area 
State and is not listed in (3) below may elect to be subject to 
paragraph (c)(2)(iv)(A)(1) of this section or to the area plan 
administration limit of ten percent of the overall allotment to a State 
agency under Title III, as specified in section 308(a)(3) (42 U.S.C. 
3028(a)(3)) of the Act.
    (3) Guam, the United States Virgin Islands, American Samoa, and the 
Commonwealth of the Northern Mariana Islands shall have available the 
greater of $100,000 or five percent of the total final Title III Award, 
as set forth in section 308(b)(2)(B) (42 U.S.C. 3028(b)(2)(B)) of the 
Act.
    (B) Area plan administration maximum allocation amounts. Area plan 
administration maximum allocation amounts may be allocated to any part 
of the overall allotment to the State agency under Title III, with the 
exception of part D, for use by area agencies on aging for activities 
as set forth in sections 304(d)(1)(A) and 308 of the Act (42 U.S.C. 
3024(d)(1)(A) and 3028) and in Sec.  1321.57(b). Single planning and 
service area States may elect amounts for either State plan 
administration or area plan administration, as set forth in the Act and 
paragraph (c)(2)(iv)(A)(2) of this section.
    (1) The State agency will determine the maximum amount of funding 
available for area plan administration from the total Title III 
allocation after deducting the amount of funding allocated for State 
plan administration and calculating a maximum of ten percent of this 
amount;
    (2) The State agency may make no more than the amount calculated in 
paragraph (c)(2)(iv)(B)(1) of this section available to area agencies 
on aging for distribution in accordance with the intrastate funding 
formula as set forth in Sec.  1321.49; and
    (3) Any amounts available to the State agency for State plan 
administration which the State agency determines are not needed for 
that purpose may be used to supplement the amount available for area 
plan administration (42 U.S.C. 3028(a)(2)).
    (v) Minimum adequate proportion. The State agency will meet 
expectations for the minimum adequate proportion of funds expended by 
each area agency on aging and State agency to provide the categories of 
services of access services, in-home supportive services, and legal 
assistance, as identified in the approved State plan as set forth in 
Sec.  1321.27(i).
    (vi) Maintenance of effort. The State agency will meet expectations 
regarding maintenance of effort, where:
    (A) The State agency must expend for both services and 
administration at least the average amount of State funds reported and 
certified as expended under the State plan for these activities for the 
three previous fiscal years for Title III;
    (B) The amount certified must at least meet minimum match 
requirements from State resources;
    (C) Any amount of State resources included in the Title III 
maintenance of effort certification that exceeds the minimum amount 
mandated becomes part of the permanent maintenance of effort; and
    (D) Excess State match reported on the Federal financial report 
does not become part of the maintenance of effort unless the State 
agency certifies the excess.
    (vii) The State Long-Term Care Ombudsman Program. The State agency 
shall maintain State Long-Term Care Ombudsman Program funding 
requirements, where:
    (A) Minimum Certification of Expenditures. The State agency must 
expend annually under Title III and Title VII of the Act, respectively, 
for the Ombudsman program no less than the minimum amounts that are 
required to be expended by section 307(a)(9) of the Act (42 U.S.C. 
3027(a)(9));
    (B) Expenditure Information. The State agency must provide the 
Ombudsman with verifiable expenditure information for the annual 
certification of minimum expenditures and for completion of annual 
reports; and
    (C) Fiscal management and determination of resources. Fiscal 
management and determination of resources appropriated or otherwise 
available for the operation of the Office are in compliance as set 
forth at Sec.  1324.13(f) of this chapter.
    (viii) Rural minimum expenditures. The State agency shall maintain 
minimum expenditures for services for older individuals residing in 
rural areas, where:
    (A) The State agency shall establish a process and control for 
determining the definition of ``rural areas'' within their State;
    (B) For each fiscal year, the State agency must spend on services 
for older individuals residing in rural areas the minimum annual amount 
that is not less than the amount expended for such services, as 
required by the Act; and
    (C) The State agency must project the cost of providing such 
services for each fiscal year (including the cost of providing access 
to such services) and must specify a plan for meeting the

[[Page 11662]]

needs for such services for each fiscal year.
    (ix) Reallotment. The State agency shall maintain requirements for 
reallotment of funds, where:
    (A) The State agency must annually review and notify the Assistant 
Secretary for Aging prior to the end of the fiscal year in which grant 
funds were awarded if there is funding that will not be expended within 
the grant period for Title III or VII that the State agency will 
release to the Assistant Secretary for Aging.
    (B) The State agency must annually review and notify the Assistant 
Secretary for Aging of the amount of any released Title III or VII 
funding from other State agencies that the State agency requests to 
receive and expend within the grant period from the Assistant Secretary 
for Aging.
    (C) The State agency must use its intrastate funding formula or 
funds distribution plan, as set forth in Sec.  1321.49 or Sec.  
1321.51, to distribute any Title III funds that the Assistant Secretary 
for Aging reallots pursuant to the State agency's notification under 
paragraph (c)(2)(ix)(B) of this section.
    (x) Voluntary contributions. Voluntary contributions shall be 
allowed and may be solicited for all services for which funds are 
received under this Act, consistent with section 315(b) (42 U.S.C. 
3030c-2(b)). Policies and procedures related to voluntary contributions 
shall address these requirements:
    (A) Suggested contribution levels. The suggested contribution 
levels shall be based on the actual cost of services;
    (B) Individuals encouraged to contribute. Voluntary contributions 
shall be encouraged for individuals whose self-declared income is at or 
above 185 percent of the Federal poverty level. Assets, savings, or 
other property owned by an older individual or family caregiver may not 
be considered when seeking voluntary contributions from any older 
individual or family caregiver;
    (C) Solicitation. The method of solicitation must be noncoercive, 
and the solicitation:
    (1) Must meet all the requirements of this provision; and
    (2) Be conducted in such a manner so as not to cause a service 
recipient to feel intimidated, or otherwise feel pressured into making 
a contribution.
    (D) Provisions to all service recipients. All recipients of 
services shall be provided:
    (1) An opportunity to voluntarily contribute to the cost of the 
service;
    (2) Clear information, including information in alternative formats 
and in languages other than English in compliance with Federal civil 
rights laws, explaining there is no obligation to contribute, and the 
contribution is voluntary;
    (3) Protection of privacy and confidentiality of each recipient 
with respect to the recipient's income and contribution or lack of 
contribution.
    (E) Prohibition on means testing. Means testing, as defined in 
Sec.  1321.3, is prohibited;
    (F) Prohibition on denial of services. Services shall not be denied 
because the older individual or family caregiver will not or cannot 
make a voluntary contribution;
    (G) Procedures to be established. Appropriate procedures to 
safeguard and account for all contributions are established; and
    (H) Collection of program income. Amounts collected are considered 
program income and are subject to the requirements in 2 CFR 200.307 and 
in Sec.  1321.9(c)(2)(xii).
    (xi) Cost sharing. A State agency is permitted under section 315(a) 
of the Act (42 U.S.C. 3030c-2(a)), to implement cost sharing for 
services funded by the Act by recipients of the services, except as 
provided for in paragraph (c)(2)(xi)(D) of this section. If the State 
agency allows for cost sharing, the State agency shall address these 
requirements:
    (A) Policies and procedures. The State agency shall develop 
policies and procedures to be implemented statewide, including how an 
area agency on aging may request and receive a waiver of cost sharing 
policies, if the area agency on aging adequately demonstrates:
    (1) A significant proportion of persons receiving services under 
the Act have incomes below the threshold established in State agency 
policies and procedures; or
    (2) That cost sharing would be an unreasonable administrative or 
financial burden upon the area agency on aging.
    (B) Sliding contribution scale. The State agency shall establish a 
sliding contribution scale and a description of the criteria to 
participate in cost sharing to be implemented statewide, which shall:
    (1) Meet all the requirements of this provision;
    (2) Be based solely on individual income and the cost of delivering 
services;
    (3) Be communicated including in written materials and in 
alternative formats upon request;
    (4) Explain there is no obligation to contribute, and the 
contribution is voluntary;
    (5) Be conducted in such a manner so as not to cause a service 
recipient to feel intimidated, or otherwise feel pressured into making 
a contribution;
    (6) Protect the privacy and confidentiality of each recipient with 
respect to the recipient's income and contribution or lack of 
contribution.
    (C) Individuals eligible to cost share. Individuals shall be 
determined eligible to cost share based solely on a confidential 
declaration of income and with no requirement for verification;
    (D) Prohibitions on cost sharing. Cost sharing is prohibited as 
follows:
    (1) By a low-income older individual if the income of such 
individual is at or below the Federal poverty level;
    (2) If State agency policies and procedures specify other low-
income individuals within the State excluded from cost sharing;
    (3) For the following services:
    (i) Information and assistance, outreach, benefits counseling, or 
case management services;
    (ii) Ombudsman, elder abuse prevention, legal assistance, or other 
consumer protection services;
    (iii) Congregate and home-delivered meals; and
    (iv) Any services delivered through Tribal organizations.
    (E) Prohibition on means testing. Means testing, as defined in 
Sec.  1321.3, is prohibited;
    (F) Prohibition on denial of services. Services shall not be denied 
because the older individual or family caregiver will not or cannot 
make a cost sharing contribution;
    (G) Procedures to be established. Appropriate procedures to 
safeguard and account for all cost sharing contributions are 
established; and
    (H) Collection of program income. All cost sharing contributions 
collected are considered program income and are subject to the 
requirements of 2 CFR 200.307, 45 CFR 75.307, and in Sec.  
1321.9(c)(2)(xii).
    (xii) Use of program income. Program income is subject to the 
requirements in 2 CFR 200.307 and 45 CFR 75.307 and as follows:
    (A) Voluntary contributions and cost sharing payments are 
considered program income;
    (B) Program income collected must be used to expand a service 
funded under the Title III grant award pursuant to which the income was 
originally collected;
    (C) The State agency must use the addition alternative as set forth 
in 2 CFR 200.307(e)(2) and 45 CFR 75.307(e)(2) when reporting program 
income, and prior approval of the addition alternative from the 
Assistant Secretary for Aging is not required;

[[Page 11663]]

    (D) Program income must be expended or disbursed prior to 
requesting additional Federal funds; and
    (E) Program income may not be used to match grant awards funded by 
the Act without prior approval.
    (xiii) Private pay programs. The State agency shall maintain 
requirements for private pay programs, where:
    (A) State agencies, area agencies on aging, and service providers 
may provide private pay programs, subject to State and/or area agency 
policies and procedures;
    (B) The State agency requires area agencies and service providers 
under the Act that establish private pay programs to develop policies 
and procedures to:
    (1) Promote equity, fairness, inclusion, and adherence to the 
requirements of the Act, including:
    (i) Meeting conflict of interest requirements;
    (ii) Meeting financial accountability requirements;
    (iii) Prohibiting use of funds for direct services under Title III 
to support provision of service via private pay programs, except as a 
part of routine information and assistance or case management 
referrals; and
    (2) Require that persons who receive information about private pay 
programs and who are eligible for services provided with Title III 
funds in the planning and service area be made aware of Title III-
funded and any similar voluntary contributions-based service options, 
even if there is a waiting list for those services, on an initial and 
periodic basis to allow individuals to determine whether they will 
select voluntary contributions-based services or private pay programs.
    (xiv) Contracts and commercial relationships. The State agency 
shall maintain requirements for contracts and commercial relationships, 
where:
    (A) State agencies, area agencies on aging, and service providers 
may enter into contracts and commercial relationships, subject to State 
and/or area agency policies and procedures and guidance as set forth by 
the Assistant Secretary for Aging, including through:
    (1) Contracts with health care payers;
    (2) Private pay programs; or
    (3) Other arrangements with entities or individuals that increase 
the availability of home-and community-based services and supports.
    (B) The State agency shall require area agencies and service 
providers under the Act that establish contracts and commercial 
relationships to develop policies and procedures to:
    (1) Promote fairness, inclusion, and adherence to the requirements 
of the Act, including:
    (i) Meeting conflict of interest requirements; and
    (ii) Meeting financial accountability requirements.
    (2) With the approval of the State and/or area agency, allow use of 
funds for direct services under Title III to support provision of 
service via contracts and commercial relationships when:
    (i) All requirements for direct services provision are maintained, 
as set forth in this part and the Act, or
    (ii) In compliance with the requirements of the Act, as set forth 
in section 212 (42 U.S.C. 3020c), and all other applicable Federal 
requirements.
    (C) The State agency shall, through the area plan or other process, 
develop policies and procedures for area agencies on aging and service 
providers to receive approval to establish contracts and commercial 
relationships and participate in activities related to contracts and 
commercial relationships.
    (xv) Buildings, alterations or renovations, maintenance, and 
equipment. Buildings and equipment, where costs incurred for altering 
or renovating, utilities, insurance, security, necessary maintenance, 
janitorial services, repair, and upkeep (including Federal property 
unless otherwise provided for) to keep buildings and equipment in an 
efficient operating condition, including acquisition and replacement of 
equipment, may be an allowable use of funds, and the following apply:
    (A) Costs are only allowable to the extent not payable by third 
parties through rental or other agreements;
    (B) Costs must be allocated proportionally to the benefiting grant 
program;
    (C) Construction and acquisition activities are only allowable for 
multipurpose senior centers. In addition to complying with the 
requirements of the Act, as set forth in section 312 (42 U.S.C. 3030b), 
as well as with all other applicable Federal laws, the grantee or 
subrecipient as applicable must file a Notice of Federal Interest in 
the appropriate official records of the jurisdiction where the property 
is located at the time of acquisition or prior to commencement of 
construction, as applicable. The Notice of Federal Interest must 
indicate that the acquisition or construction, as applicable, has been 
funded with an award under Title III of the Act, that the requirements 
set forth in section 312 of the Act (42 U.S.C. 3030b) apply to the 
property, and that inquiries regarding the Federal Government's 
interest in the property should be directed in writing to the Assistant 
Secretary for Aging;
    (D) Altering and renovating activities are allowable for facilities 
providing direct services with funds provided as set forth in 
Sec. Sec.  1321.85, 1321.87, 1321.89, and 1321.91 subject to Federal 
grant requirements under 2 CFR part 200 and 45 CFR part 75;
    (E) Altering and renovating activities are allowable for facilities 
used to conduct area plan administration activities with funds provided 
as set forth in paragraph (c)(2)(iv)(B) of this section, subject to 
Federal grant requirements under 2 CFR part 200 and 45 CFR part 75; and
    (F) Prior approval by the Assistant Secretary for Aging does not 
apply.
    (xvi) Supplement, not supplant. Funds awarded under the Act for 
services provided under sections 306(a)(9)(B) (42 U.S.C. 
3026(a)(9)(B)), 315(b)(4)(E) (42 U.S.C. 3030c-2(b)(4)(E)), 321(d) (42 
U.S.C. 3030d(d)), 374 (42 U.S.C. 3030s-2), and 705(a)(4) (42 U.S.C. 
3058d(a)(4)), must be used to supplement, not supplant existing 
Federal, State, and local funds expended to support those activities.
    (xvii) Monitoring of State plan assurances. Monitoring for 
compliance for assurances identified in the approved State plan as set 
forth in Sec.  1321.27.
    (xviii) Advance funding. If the State agency permits the advance of 
funding to meet immediate cash needs of area agencies on aging and 
service providers, the State agency shall have policies and procedures 
which comply with all applicable Federal requirements, including 
timeframes and amount limitations that may apply.
    (xix) Fixed amount subawards. Fixed amount subawards up to the 
simplified acquisition threshold are allowed.
    (3) The State plan process, including compliance with requirements 
as set forth in Sec. Sec.  1321.27 and 1321.29.
    (4) In States with multiple planning and service areas, the area 
plan process, including compliance with requirements as set forth in 
Sec.  1321.65.


Sec.  1321.11  Advocacy responsibilities.

    (a) The State agency shall:
    (1) Review, monitor, evaluate, and comment on Federal, State, and 
local plans, budgets, regulations, programs, laws, levies, hearings, 
policies, and actions which affect or may affect older individuals or 
family caregivers, and recommend any changes in these which the State 
agency considers to be aligned with the interests identified in the 
Act;
    (2) Provide technical assistance and training to agencies, 
organizations, associations, or individuals representing older 
individuals and family caregivers; and

[[Page 11664]]

    (3) Review and comment on applications to State and Federal 
agencies for assistance relating to meeting the needs of older 
individuals and family caregivers.
    (b) No requirement in this section shall be deemed to supersede a 
prohibition contained in a Federal appropriation on the use of Federal 
funds to lobby.


Sec.  1321.13  Designation of and designation changes to planning and 
service areas.

    (a) The State agency is responsible for designating distinct 
planning and service areas within the State.
    (b) No State agency may designate the entire State as a single 
planning and service area, except for States designated as such on or 
before October 1, 1980.
    (c) State agencies must have policies and procedures regarding 
designation of and changes to planning and service areas in accordance 
with the Act. Such policies and procedures should provide due process 
to affected parties, accountability, and transparency. Such policies 
and procedures must address the following:
    (1) The application process to change a planning and service area, 
if initiated outside of the State agency;
    (2) How notice to interested parties will be provided;
    (3) How need for the action will be documented;
    (4) Provisions for conducting a public hearing;
    (5) Provisions for involving area agencies on aging, service 
providers, and older individuals in the action or proceeding, such as 
offering other opportunities for feedback from interested parties;
    (6) The appeals process for affected parties; and
    (7) Timeframes that apply to each of the items under this paragraph 
(c).
    (d) State agencies that seek to change one or more planning and 
service area designations must consider the following:
    (1) The geographical distribution of older individuals in the 
State;
    (2) The incidence of the need for services under the Act;
    (3) The distribution of older individuals who have greatest 
economic need and greatest social need (with particular attention to 
low-income older individuals, including low-income minority older 
individuals, older individuals with limited English proficiency, and 
older individuals residing in rural areas) residing in such areas;
    (4) The distribution of older individuals who are Native Americans 
residing in such areas;
    (5) The distribution of resources available to provide such 
services under the Act;
    (6) The boundaries of existing areas within the State which were 
drawn for the planning or administration of services under the Act;
    (7) The location of units of general purpose local government, as 
defined in section 302(4) of the Act (2 U.S.C. 3022(4)), within the 
State; and
    (8) Any other relevant factors.
    (e) When the State agency issues a decision to change planning and 
service areas, it shall provide an explanation of its consideration of 
the factors in paragraph (d) of this section. Such explanations must be 
included in the State plan amendment submitted as set forth in Sec.  
1321.31(b) or State plan submitted as set forth in Sec.  1321.33.


Sec.  1321.15  Interstate planning and service area.

    (a) An interstate planning and service area is an agreement between 
the State agencies that have responsibility for administering the 
programs within the interstate area, in which the agreement increases 
the allotment of the State agency or agencies with lead responsibility 
and decreases the allotment of the State agency or agencies without the 
lead responsibility. The Governor of any State in which a planning and 
service area crosses State boundaries, or in which an interstate Indian 
reservation is located, may apply to the Assistant Secretary for Aging 
to request redesignation as an interstate planning and service area 
comprising the entire metropolitan area or Indian reservation. If the 
Assistant Secretary for Aging approves such an application, the 
Assistant Secretary for Aging shall adjust the State agency allotments 
of the areas within the planning and service area in which the 
interstate planning and service area is established to reflect the 
number of older individuals within the area who will be served by an 
interstate planning and service area not within the State.
    (b) Before requesting permission of the Assistant Secretary for 
Aging to designate an interstate planning and service area, the 
Governor of each State shall execute a written agreement that specifies 
the State agency proposed to have lead responsibility for administering 
the programs within the interstate planning and service area and lists 
the conditions, agreed upon by each State agency, governing the 
administration of the interstate planning and service area.
    (c) The lead State agency shall request permission of the Assistant 
Secretary for Aging to designate an interstate planning and service 
area by submitting the request, together with a copy of the agreement 
as part of its State plan or as an amendment to its State plan.
    (d) Prior to the Assistant Secretary for Aging's approval for State 
agencies to designate an interstate planning and service area, the 
Assistant Secretary for Aging shall determine that all applicable 
requirements and procedures in Sec. Sec.  1321.27 and 1321.29 are met.
    (e) If the request is approved, the Assistant Secretary for Aging, 
based on the agreement between the State agencies, will increase the 
allocation(s) of the State agency or agencies with lead responsibility 
for administering the programs within the interstate area and will 
reduce the allocation(s) of the State agency or agencies without lead 
responsibility by one of these methods:
    (1) Reallocation of funds in proportion to the number of 
individuals age 60 and over for funding provided under Title III, parts 
B, C, and D and in proportion to the number of individuals age 70 and 
over for funding provided under Title III, part E for that portion of 
the interstate planning and service area located in the State without 
lead responsibility; or
    (2) Reallocation of funds based on the intrastate funding formula 
of the State agency or agencies without lead responsibility.
    (f) Each State agency that is a party to an interstate planning and 
service area agreement shall review and confirm their agreement as a 
part of their State plan on aging as set forth in Sec.  1321.27.


Sec.  1321.17  Appeal to the Departmental Appeals Board on planning and 
service area designation.

    (a) This section sets forth the procedures for providing hearings 
to applicants for designation as a planning and service area under 
Sec.  1321.13, whose application is denied by the State agency or Sec.  
1321.15, whose application is denied by the Assistant Secretary for 
Aging.
    (b) Any applicant for designation as a planning and service area 
whose application is denied, and who has been provided a hearing and a 
written decision by the State agency, may appeal the denial to the 
Departmental Appeals Board (DAB) in writing following receipt of the 
State agency's written decision, in accordance with the procedures set 
forth in 45 CFR part 16. The applicant must, at the time of filing an 
appeal with the DAB, mail a copy of the appeal to the State agency, if 
appealing subject to Sec.  1321.13, or the Assistant Secretary for 
Aging, if appealing subject to Sec.  1321.15, and include a certificate 
of service with its

[[Page 11665]]

initial filing. The DAB may refer an appeal to its Alternative Dispute 
Resolution Division for mediation prior to making a decision.


Sec.  1321.19  Designation of and designation changes to area agencies.

    (a) The State agency is responsible for designating an area agency 
on aging to serve each planning and service area. Only one area agency 
on aging shall be designated to serve each planning and service area. 
An area agency on aging may serve more than one planning and service 
area. An area agency that serves more than one planning and service 
area must maintain separate funding, planning, and advocacy 
responsibilities for each planning and service area. State agencies 
shall have policies and procedures regarding designation of area 
agencies on aging and changes to an agency's designation as an area 
agency on aging in accordance with the Act. Such policies and 
procedures should provide due process to affected parties, 
accountability, and transparency and must address the following:
    (1) Provisions for designating an area agency on aging, including:
    (i) The application process;
    (ii) How notice to interested parties will be provided;
    (iii) How views offered by the unit(s) of general purpose local 
government in such area will be obtained and considered;
    (iv) How the State agency will provide the right of first refusal 
to a unit of general purpose local government if:
    (A) Such unit demonstrates ability to meet the requirements as set 
forth by the State agency, in accordance with the Act; and
    (B) The boundaries of such a unit and the boundaries of the area 
are reasonably contiguous.
    (v) How the State agency shall then give preference to an 
established office on aging if the unit of general purpose local 
government chooses not to exercise the right of first refusal;
    (vi) How the State agency will assume area agency on aging 
responsibilities in the event there are no successful applicants in the 
State agency's application process; and
    (vii) The appeals process for affected parties.
    (2) Provisions for an area agency on aging that voluntarily 
relinquishes their area agency on aging designation, including that the 
State agency's written acceptance of the voluntary relinquishment of 
area agency on aging designation will be considered as the State 
agency's withdrawal of area agency on aging designation, and 
requirements under Sec.  1321.21(b) will apply;
    (3) Provisions for when the State agency takes action to withdraw 
an area agency on aging's designation, in accordance with Sec.  
1321.21;
    (4) Provisions for when the State agency administers area agency on 
aging programs as provided for in section 306(f) (42 U.S.C. 3026(f)), 
where the Assistant Secretary for Aging may extend the 90-day period if 
the State agency requests an extension and demonstrates to the 
satisfaction of the Assistant Secretary for Aging a need for the 
extension; and
    (5) If a State agency previously designated the entire State as a 
single planning and service area, provisions for when the State agency 
designates one or more additional planning and service areas.
    (b) For any of the actions listed in paragraph (a) of this section, 
the State agency must submit a State plan amendment as set forth in 
Sec.  1321.31(b) or State plan as set forth in Sec.  1321.33;
    (c) An area agency may be any of the following types of agencies:
    (1) An established office on aging which is operating within a 
planning and service area;
    (2) Any office or agency of a unit of general purpose local 
government, which is designated to function for the purpose of serving 
as an area agency on aging by the chief elected official of such unit;
    (3) Any office or agency designated by the appropriate chief 
elected officials of any combination of units of general purpose local 
government to act on behalf of such combination for such purpose; or
    (4) Any non-State, local public, or nonprofit private agency in a 
planning and service area, or any separate organizational unit within 
such agency, which is under the supervision or direction for this 
purpose of the designated State agency, and which demonstrates the 
ability and willingness to engage in the planning or provision of a 
broad range of services under the Act within such planning and service 
area.
    (d) A State agency may not designate any regional or local office 
of the State as an area agency.


Sec.  1321.21  Withdrawal of area agency designation.

    (a) In carrying out section 305 of the Act (42 U.S.C. 3025), the 
State agency shall withdraw the area agency designation whenever it, 
after reasonable notice and opportunity for a hearing, finds that:
    (1) An area agency does not meet the requirements of this part;
    (2) An area plan or plan amendment is not approved;
    (3) There is substantial failure in the provisions or 
administration of an approved area plan to comply with any provision of 
the Act, regulations and other guidance as set forth by the Assistant 
Secretary for Aging, terms and conditions of Federal grant awards under 
the Act, or policies and procedures established and published by the 
State agency on aging;
    (4) Activities of the area agency are inconsistent with the 
statutory mission prescribed in the Act;
    (5) The State agency changes one or more planning and service area 
designations; or
    (6) The area agency voluntarily requests the State agency withdraw 
its designation.
    (b) If a State agency withdraws an area agency's designation under 
this section it shall:
    (1) Provide a plan for the continuity of area agency functions and 
services in the affected planning and service area;
    (2) Submit a State plan amendment as set forth in Sec.  1321.31(b) 
or State plan as set forth in Sec.  1321.33; and
    (3) Designate a new area agency in the planning and service area in 
a timely manner.
    (c) If necessary to ensure continuity of services in a planning and 
service area, the State agency may, for a period of up to 180 days 
after its final decision to withdraw designation of an area agency:
    (1) Perform the responsibilities of the area agency; or
    (2) Assign the responsibilities of the area agency to another 
agency in the planning and service area.
    (d) The Assistant Secretary for Aging may extend the 180-day period 
if a State agency:
    (1) Notifies the Assistant Secretary for Aging in writing of its 
action under this section;
    (2) Requests an extension; and
    (3) Demonstrates to the satisfaction of the Assistant Secretary for 
Aging a need for the extension. Need for the extension may include the 
State agency's reasonable but unsuccessful attempts to procure an 
applicant to serve as the area agency.


Sec.  1321.23  Appeal to the Departmental Appeals Board on area agency 
on aging withdrawal of designation.

    (a) This section sets forth hearing procedures afforded to affected 
parties if the State agency initiates an action or proceeding to 
withdraw designation of an area agency on aging.
    (b) Any area agency on aging that has appealed a State agency's 
decision to withdraw area agency on aging designation, and that has 
been provided a hearing and a written decision, may

[[Page 11666]]

appeal the decision to the Departmental Appeals Board in writing 
following receipt of the State agency's written decision, in accordance 
with the procedures set forth in 45 CFR part 16. The applicant must, at 
the time of filing an appeal with the DAB, mail a copy of the appeal to 
the State agency and include a certificate of service with its initial 
filing. The DAB may refer an appeal to its Alternative Dispute 
Resolution Division for mediation prior to making a decision.


Sec.  1321.25  Duration, format, and effective date of the State plan.

    (a) A State agency will follow the guidance issued by the Assistant 
Secretary for Aging regarding duration and formatting of the State 
plan. Unless otherwise indicated, a State agency may determine the 
format, how to collect information for the plan, and whether the plan 
will remain in effect for two, three, or four years.
    (b) An approved State plan or amendment identified in Sec.  
1321.31(a) becomes effective on the date designated by the Assistant 
Secretary for Aging.
    (c) A State agency may not make expenditures under a new plan or 
amendment requiring approval, as identified in Sec.  1321.27 or Sec.  
1321.31(a), until it is approved.


Sec.  1321.27  Content of State plan.

    To receive a grant under this part, a State agency shall have an 
approved State plan as prescribed in section 307 of the Act (42 U.S.C. 
3027). In addition to meeting the requirements of section 307, a State 
plan shall include:
    (a) Identification of the sole State agency that the State has 
designated to develop and administer the plan.
    (b) Statewide program objectives to implement the requirements 
under Title III and Title VII of the Act and any objectives established 
by the Assistant Secretary for Aging.
    (c) Evidence that the State plan is informed by and based on area 
plans, except for single planning and service area States.
    (d) A description of how greatest economic need and greatest social 
need are determined and addressed by specifying:
    (1) How the State agency defines greatest economic need and 
greatest social need, which shall include the populations as set forth 
in the Sec.  1321.3 definitions of greatest economic need and greatest 
social need; and
    (2) The methods the State agency will use to target services to the 
populations identified in paragraph (d)(1) of this section, including 
how funds under the Act may be distributed to serve prioritized 
populations in accordance with requirements as set forth in Sec.  
1321.49 or Sec.  1321.51, as appropriate.
    (e) An intrastate funding formula or funds distribution plan 
indicating the proposed use of all Title III funds administered by a 
State agency, and the distribution of Title III funds to each planning 
and service area, in accordance with Sec.  1321.49 or Sec.  1321.51, as 
appropriate.
    (f) Identification of the geographic boundaries of each planning 
and service area and of area agencies on aging designated for each 
planning and service area, if applicable.
    (g) Demonstration that the determination of greatest economic need 
and greatest social need specific to Native American persons is 
identified pursuant to communication among the State agency and Tribes, 
Tribal organizations, and Native communities, and that the services 
provided under this part will be coordinated, where applicable, with 
the services provided under Title VI of the Act and that the State 
agency shall require area agencies to provide outreach where there are 
older Native Americans in any planning and service area, including 
those living outside of reservations and other Tribal lands.
    (h) Certification that any program development and coordination 
activities shall meet the following requirements:
    (1) The State agency shall not fund program development and 
coordination activities as a cost of supportive services under area 
plans until it has first spent 10 percent of the total of its combined 
allotments under Title III on the administration of area plans;
    (2) Program development and coordination activities must only be 
expended as a cost of State plan administration, area plan 
administration, and/or Title III, part B supportive services;
    (3) State agencies and area agencies on aging shall, consistent 
with the area plan and budgeting cycles, submit the details of 
proposals to pay for program development and coordination as a cost of 
Title III, part B supportive services to the general public for review 
and comment; and
    (4) Expenditure by the State agency and area agency on program 
development and coordination activities are intended to have a direct 
and positive impact on the enhancement of services for older 
individuals and family caregivers in the planning and service area.
    (i) Specification of the minimum proportion of funds that will be 
expended by each area agency on aging and the State agency to provide 
each of the following categories of services:
    (1) Access to services;
    (2) In-home supportive services; and
    (3) Legal assistance, as set forth in Sec.  1321.93.
    (j) If the State agency allows for Title III, part C-1 funds to be 
used as set forth in Sec.  1321.87(a)(1)(i):
    (1) Evidence, using participation projections based on existing 
data, that provision of such meals will enhance and not diminish the 
congregate meals program, and a commitment to monitor the impact on 
congregate meals program participation;
    (2) Description of how provision of such meals will be targeted to 
reach those populations identified as in greatest economic need and 
greatest social need;
    (3) Description of the eligibility criteria for service provision;
    (4) Evidence of consultation with area agencies on aging, nutrition 
and other direct services providers, other interested parties, and the 
general public regarding the provision of such meals; and
    (5) Description of how provision of such meals will be coordinated 
with area agencies on aging, nutrition and other direct services 
providers, and other interested parties.
    (k) How the State agency will use funds for prevention of elder 
abuse, neglect, and exploitation as set forth in 45 CFR part 1324, 
subpart B.
    (l) How the State agency will meet responsibilities for the Legal 
Assistance Developer, as set forth in 45 CFR part 1324, subpart C.
    (m) Description of how the State agency will conduct monitoring 
that the assurances to which they attest are being met.


Sec.  1321.29  Public participation.

    The State agency shall:
    (a) Have mechanisms and varied methods to obtain the views of older 
individuals, family caregivers, service providers, and the public on a 
periodic basis, with a focus on those in greatest economic need and 
greatest social need;
    (b) Consider those views in developing and administering the State 
plan and policies and procedures regarding services provided under the 
plan;
    (c) Establish and comply with a reasonable minimum time period (at 
least 30 calendar days) for public review and comment on new State 
plans as set forth in Sec.  1321.27 and State plan amendments requiring 
approval of the Assistant Secretary for Aging as set forth in Sec.  
1321.31(a). State agencies may request a waiver of the minimum time

[[Page 11667]]

period from the Assistant Secretary for Aging during an emergency or 
when a time sensitive action is otherwise necessary;
    (d) Ensure the documents noted in paragraph (c) of this section and 
final State plans and amendments are available to the public for 
review, as well as available in alternative formats and other languages 
if requested.


Sec.  1321.31  Amendments to the State plan.

    (a) Subject to prior approval by the Assistant Secretary for Aging, 
a State agency shall amend the State plan whenever necessary to 
reflect:
    (1) New or revised statutes or regulations as determined by the 
Assistant Secretary for Aging;
    (2) An addition, deletion, or change to a State agency's goal, 
assurance, or information requirement statement;
    (3) A change in the State agency's intrastate funding formula or 
funds distribution plan for Title III funds, as set forth in Sec.  
1321.49 or Sec.  1321.51;
    (4) A request to waive State plan requirements as set forth in 
section 316 of the Act (42 U.S.C. 3030c-3), or as required by guidance 
as set forth by the Assistant Secretary for Aging; or
    (5) Other changes as required by guidance as set forth by the 
Assistant Secretary for Aging.
    (b) A State agency shall amend the State plan and notify the 
Assistant Secretary for Aging of an amendment not requiring prior 
approval whenever necessary and within 30 days of the action(s) listed 
in paragraphs (b)(1) through (6) of this section:
    (1) A significant change in a State law, organization, policy, or 
State agency operation;
    (2) A change in the name or organizational placement of the State 
agency;
    (3) Distribution of State plan administration funds for 
demonstration projects;
    (4) A change in planning and service area designation, as set forth 
in Sec.  1321.13;
    (5) A change in area agency on aging designation, as set forth in 
Sec.  1321.19; or
    (6) Exercising of major disaster declaration flexibilities, as set 
forth in Sec.  1321.101.
    (c) Information required by this section shall be submitted 
according to guidelines prescribed by the Assistant Secretary for 
Aging.


Sec.  1321.33  Submission of the State plan or plan amendment to the 
Assistant Secretary for Aging for approval.

    (a) Each State plan, or plan amendment which requires approval of 
the Assistant Secretary for Aging as set forth at Sec.  1321.31(a), 
shall be signed by the Governor, or the Governor's designee, and 
submitted to the Assistant Secretary for Aging to be considered for 
approval at least 90 calendar days before the proposed effective date 
of the plan or plan amendment according to guidance as set forth by the 
Assistant Secretary for Aging, except in the case of a waiver provided 
by the Assistant Secretary for Aging. Each State plan amendment which 
does not require the prior approval of the Assistant Secretary for 
Aging shall be submitted as set forth at Sec.  1321.31(b).
    (b) In advance of the submission to the Assistant Secretary for 
Aging to be considered for approval, the State agency shall submit a 
draft of the plan or amendment to the appropriate ACL Regional Office 
at least 120 calendar days before the proposed effective date of the 
plan or plan amendment, except in the case of a waiver request or as 
otherwise provided in guidance as set forth by the Assistant Secretary 
for Aging. The State agency shall work with the ACL Regional Office in 
reviewing the plan or plan amendment for compliance.


Sec.  1321.35  Notification of State plan or State plan amendment 
approval or disapproval for changes requiring Assistant Secretary for 
Aging approval.

    (a) The Assistant Secretary for Aging shall approve a State plan or 
State plan amendment by notifying the Governor or the Governor's 
designee in writing.
    (b) When the Assistant Secretary for Aging proposes to disapprove a 
State plan or amendment, the Assistant Secretary for Aging shall notify 
the Governor in writing, giving the reasons for the proposed 
disapproval, and inform the State agency that it may request a hearing 
on the proposed disapproval following the procedures described in 
guidance issued by the Assistant Secretary for Aging.


Sec.  1321.37  Notification of State plan amendment receipt for changes 
not requiring Assistant Secretary for Aging approval.

    The State agency shall submit an amendment not requiring Assistant 
Secretary for Aging approval as set forth at Sec.  1321.31(b) to the 
appropriate ACL Regional Office. The ACL Regional Office shall review 
the amendment to confirm the contents do not require approval of the 
Assistant Secretary for Aging and will acknowledge receipt of the State 
plan amendment by notifying the head of the State agency in writing.


Sec.  1321.39  Appeal to the Departmental Appeals Board regarding State 
plan on aging.

    If the Assistant Secretary for Aging intends to disapprove a State 
plan or State plan amendment, the Assistant Secretary for Aging shall 
first afford the State agency notice and an opportunity for a hearing. 
Administrative reviews of State plan disapprovals, as provided for in 
sections 307(c) and 307(d) of the Act (42 U.S.C. 3027(c)-(d)) are 
performed by the Department Appeals Board 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 
making a decision.


Sec.  1321.41  When a disapproval decision is effective.

    (a) The Assistant Secretary for Aging shall specify the effective 
date for reduction and withholding of the State agency's grant upon a 
disapproval decision from the Departmental Appeals Board. This 
effective date may not be earlier than the date of the Departmental 
Appeals Board's decision or later than the first day of the next 
calendar quarter.
    (b) A disapproval decision issued by the DAB represents the final 
determination of the Assistant Secretary for Aging and shall remain in 
effect unless reversed or stayed on judicial appeal, or until the 
agency or the plan is changed to meet all Federal requirements, except 
that the Assistant Secretary for Aging may modify or set aside the 
decision before the record of the proceedings under this subpart is 
filed in court.


Sec.  1321.43  How the State agency may appeal the Departmental Appeals 
Board's decision.

    A State agency may appeal the final decision of the Departmental 
Appeals Board disapproving the State plan or plan amendment, finding of 
noncompliance, or finding that a State agency does not meet the 
requirements of this part to the U.S. Court of Appeals for the circuit 
in which the State is located. The State agency shall file the appeal 
within 30 days of the Departmental Appeals Board's final decision.


Sec.  1321.45  How the Assistant Secretary for Aging may reallot the 
State agency's withheld payments.

    The Assistant Secretary for Aging may disburse funds withheld from 
the State agency directly to any public or nonprofit private 
organization or agency, or political subdivision of the State that has 
the authority and capacity to carry out the functions of the State

[[Page 11668]]

agency and submits a State plan which meets the requirements of this 
part, and which contains an agreement to meet the non-Federal share 
requirements.


Sec.  1321.47  Conflicts of interest policies and procedures for State 
agencies.

    (a) State agencies must have policies and procedures regarding 
conflicts of interest, in accordance with the Act and all other 
applicable Federal requirements. These policies and procedures must 
safeguard against conflicts of interest on the part of the State 
agency, employees, and agents of the State who have responsibilities 
relating to Title III programs, including area agencies on aging, 
governing boards, advisory councils, staff, and volunteers. Conflicts 
of interest policies and procedures must establish mechanisms to 
identify, avoid, remove, and remedy conflicts of interest in a Title 
III program at organizational and individual levels, including:
    (1) Ensuring that State agency 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 due to an employee or agent's financial interest 
in a Title III program;
    (3) Establishing robust monitoring and oversight, including 
periodic reviews, to identify conflicts of interest in a Title III 
program;
    (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 a conflict of interest;
    (5) Requiring that other agencies that operate a Title III program 
have policies in place to prohibit the employment or appointment of 
Title III program decision-makers, staff, or volunteers 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 conflict of interest, or who has an immediate family member 
with a conflict of interest, which cannot be adequately removed or 
remedied;
    (7) Ensuring that no organization which provides a Title III 
service is subject to a conflict of interest;
    (8) Prohibiting the officers, employees, or agents of the Title III 
program from soliciting or accepting gratuities, favors, or anything of 
monetary value from grantees, contractors, and/or subrecipients, except 
where policies and procedures allow for situations where the financial 
interest is not substantial, or the gift is an unsolicited item of 
nominal value;
    (9) Establishing the actions the State agency will require a Title 
III program to take in order to remedy or remove such conflicts, as 
well as disciplinary actions to be applied for violations of such 
standards by officers, employees, or agents of the Title III program; 
and
    (10) Documenting conflict of interest mitigation strategies, as 
necessary and appropriate, when a State agency or Title III program 
operates an Adult Protective Services or guardianship program.
    (b) Individual conflicts include:
    (1) An employee, or immediate member of an employee's family, 
maintaining ownership, employment, consultancy, or fiduciary interest 
in a Title III program organization or awardee when that employee or 
immediate family member is in a position to derive personal benefit 
from actions or decisions made in their official capacity;
    (2) One or more conflicts between the private interests and the 
official responsibilities of a person in a position of trust;
    (3) One or more conflicts between competing duties; and
    (4) Other conflicts of interest identified in guidance issued by 
the Assistant Secretary for Aging and/or by State agency policies.
    (c) Organizational conflicts include:
    (1) One or more conflicts between competing duties, programs, and/
or services; and
    (2) Other conflicts of interest identified in guidance issued by 
the Assistant Secretary for Aging and/or by State agency policies.


Sec.  1321.49  Intrastate funding formula.

    (a) The State agency of a State with multiple planning and service 
areas, as part of its State plan, in accordance with guidelines issued 
by the Assistant Secretary for Aging, using the best available data, 
and after consultation with all area agencies on aging in the State, 
shall develop and publish for review and comment by older individuals, 
family caregivers, other appropriate agencies and organizations, and 
the general public, an intrastate funding formula for the allocation of 
funds specific to each planning and service area to area agencies on 
aging under Title III for supportive, nutrition, evidence-based disease 
prevention and health promotion, and family caregiver services prior to 
taking the steps as set forth in Sec.  1321.33. The intrastate funding 
formula shall be made available for public review and comment for a 
reasonable minimum time period (at least 30 calendar days, unless a 
waiver is provided by the Assistant Secretary for Aging during an 
emergency or when a time sensitive action is otherwise necessary). The 
formula shall reflect the proportion among the planning and service 
areas of persons age 60 and over in greatest economic need and greatest 
social need with particular attention to low-income minority older 
individuals. A separate formula may be provided for the evidence-based 
disease prevention and health promotion allocation to target areas that 
are medically underserved and in which there are large numbers of older 
individuals who have the greatest economic need and greatest social 
need for such services. The State agency shall review, update, and 
submit for approval to the Assistant Secretary for Aging its formula as 
needed.
    (b) The publication for review and comment required by the 
preceding paragraph shall include:
    (1) A descriptive statement of the formula's assumptions and goals, 
and the application of the definitions of greatest economic need and 
greatest social need, including addressing the populations identified 
pursuant to Sec.  1321.27(d)(1), which includes the following 
components:
    (i) A statement that discloses if and how, prior to distribution 
under the intrastate funding formula to the area agencies on aging, 
funds are deducted from Title III funds for State plan administration, 
disaster set-aside funds as set forth in Sec.  1321.99, and/or Long-
Term Care Ombudsman Program allocations;
    (ii) A statement that describes if a separate formula will be used 
for evidence-based disease prevention and health promotion allocation; 
and
    (iii) A statement of how the State agency's Nutrition Services 
Incentive Program award will be distributed.
    (2) A numerical mathematical statement of the actual funding 
formula to be used for all supportive, nutrition, evidence-based 
disease prevention and health promotion, and family caregiver 
allocations of Title III funds, including the separate numerical 
mathematical statement that may be provided for the evidence-based 
disease prevention and health promotion allocation, which includes:
    (i) A descriptive statement of each factor and the weight or 
percentage used for each factor; and
    (ii) Definitions of the terms used in the numerical mathematical 
statement.
    (3) A listing of the population, economic, and social data to be 
used for each planning and service area in the State;

[[Page 11669]]

    (4) A demonstration of the allocation of funds, pursuant to the 
funding formula, to each planning and service area in the State by part 
of Title III; and
    (5) The source of the best available data used to allocate funding 
through the intrastate funding formula, which may include:
    (i) The most current U.S. Decennial Census results;
    (ii) The most current and reliable American Community Survey 
results; and/or
    (iii) Other high-quality data available to the State agency.
    (c) In meeting the requirement in paragraph (a) of this section, 
the intrastate funding formula may not allow for:
    (1) The State agency to hold funds at the State level except as 
outlined in paragraph (b)(1)(i) of this section;
    (2) Exceeding the State plan and area plan administration caps set 
in the Act, as set forth at Sec.  1321.9(c)(2)(iv);
    (3) Use of Title III, part D funds for area plan administration;
    (4) A State agency to directly provide Title III funds to any 
entity other than a designated area agency on aging, with the exception 
of State plan administration funds, Title III, part B Ombudsman program 
funds, and disaster set-aside funds as described in Sec.  1321.99; or
    (5) Any other use in conflict with the Act.
    (d) In meeting the requirement in paragraph (b)(1)(iii) of this 
section, the following apply:
    (1) Cash must be promptly and equitably disbursed to recipients of 
grants or contracts for nutrition projects under the Act;
    (2) The statement of distribution of grant funds and procedures for 
determining any commodities election amount must be followed;
    (3) State agencies have the option to receive grant as cash and/or 
agricultural commodities; and
    (4) State agencies may consult with the area agencies on aging to 
determine the amount of the commodities election.
    (e) In meeting the requirements in this section, the following 
apply:
    (1) Title VII funds are not required to be subject to the 
intrastate funding formula;
    (2) Any funds allocated for the Long-Term Care Ombudsman Program 
under Title III, part B are not required to be subject to the 
intrastate funding formula;
    (3) The intrastate funding formula may provide for a separate 
allocation of funds received under Title III, part D for preventive 
health services. In the award of such funds to selected planning and 
service areas, the State agency shall give priority to areas of the 
State:
    (i) Which are medically underserved; and
    (ii) In which there are large numbers of individuals who have the 
greatest economic need and greatest social need for such services, 
including the populations the State agency identifies pursuant to Sec.  
1321.27(d)(1).
    (4) The State agency may determine the amount of funds available 
for area plan administration prior to deducting Title III, part B 
Ombudsman program funds and disaster set-aside funds as described in 
Sec.  1321.99;
    (5) After deducting any State plan administration funds, Title III, 
part B Ombudsman program funds, and disaster set-aside funds as 
described in Sec.  1321.99, the State agency must allocate all other 
Title III funding to area agencies on aging designated to serve each 
planning and service area;
    (6) State agencies may reallocate funding within the State when an 
area agency on aging voluntarily or otherwise returns funds, subject to 
the State agency's policies and procedures which must include the 
following:
    (i) If an area agency voluntarily returns funds, the area agency on 
aging must provide evidence that its governing board or chief elected 
official approves the return of funds;
    (ii) Funds must be made available to all area agencies on aging who 
request funds available for reallocation;
    (iii) The intrastate funding formula shall be proportionally 
adjusted based on area agencies on aging that request redistributed 
allocations; and
    (iv) Title III funds subject to reallocation may only be 
reallocated to area agencies on aging via the proportionally adjusted 
intrastate funding formula described in paragraph (a) of this section.
    (f) The State agency shall submit its proposed intrastate funding 
formula to the Assistant Secretary for Aging for prior approval as part 
of a State plan or State plan amendment as set forth in Sec.  1321.33.


Sec.  1321.51  Single planning and service area States.

    (a) Unless otherwise specified, the State agency in single planning 
and service area States must meet the requirements in the Act and 
subpart C of this part, including maintaining an advisory council as 
set forth in Sec.  1321.63.
    (b) As part of their State plan submission, single planning and 
service area States must provide a funds distribution plan which 
includes:
    (1) A descriptive statement as to how the State agency determines 
the geographical distribution of the Title III and Nutrition Services 
Incentive Program funding;
    (2) How the State agency targets the funding to reach individuals 
with greatest economic need and greatest social need, with particular 
attention to low-income minority older individuals;
    (3) At the option of the State agency, a numerical/mathematical 
statement as a part of their funds distribution plan; and
    (4) Justification if the State agency determines it meets 
requirements to provide services directly where:
    (i) As set forth in section 307(a)(8)(A) of the Act (42 U.S.C. 
3027(a)(8)(A)), no supportive services, except as set forth in 
paragraph (b)(4)(i)(B) of this section, nutrition services, disease 
prevention and health promotion, or family caregiver services will be 
directly provided by the State agency, unless, in the judgment of the 
State agency:
    (A) Provision of such services by the State agency is necessary to 
assure an adequate supply of such services;
    (B) Such services are directly related to such State agency's 
administrative functions; or
    (C) Such services may be provided more economically, and with 
comparable quality, by such State agency.
    (ii) The State agency may directly provide case management, 
information and assistance services, and outreach.
    (iii) Approval of the State agency to provide direct services may 
only be granted for a maximum of the State plan period. For each time 
that approval is granted to a State agency to provide direct services, 
the State agency must demonstrate the State agency's efforts to 
identify service providers prior to being granted a subsequent 
approval.
    (c) Single planning and service area States must adhere to use of 
the funds distribution plan for Title III and Nutrition Services 
Incentive Program funds within the State. If a single planning and 
service area State agency revises their Title III funds distribution 
plan, they may do so by:
    (1) Following their policies and procedures to publish the updated 
funds distribution plan for public review and comment for a reasonable 
minimum time period (30 calendar days or greater, unless a waiver is 
provided by the Assistant Secretary for Aging during an emergency or 
when a time sensitive action is otherwise necessary); and
    (2) Submitting the revised funds distribution plan for Assistant 
Secretary for Aging approval prior to implementing the changes as noted 
at Sec.  1321.33.

[[Page 11670]]

Sec.  1321.53  State agency Title III and Title VI coordination 
responsibilities.

    (a) For States where there are Title VI programs, the State 
agency's policies and procedures, developed in coordination with the 
relevant Title VI program director(s), as set forth in Sec.  
1322.13(a), must explain how the State's aging network, including area 
agencies and service providers, will coordinate with Title VI programs 
to ensure compliance with sections 306(a)(11)(B) and 307(a)(21)(A) of 
the Act (42 U.S.C. 3026(a)(11)(B) and 3027(a)(21)(A)). State agencies 
may meet these requirements through a Tribal consultation policy that 
includes Title VI programs.
    (b) The policies and procedures set forth in paragraph (a) of this 
section must at a minimum address:
    (1) How the State's aging network, including area agencies on aging 
and service providers, will provide outreach to Tribal elders and 
family caregivers regarding services for which they may be eligible 
under Title III and/or VII;
    (2) The communication opportunities the State agency will make 
available to Title VI programs, to include Title III and other funding 
opportunities, technical assistance on how to apply for Title III and 
other funding opportunities, meetings, email distribution lists, 
presentations, and public hearings;
    (3) The methods for collaboration on and sharing of program 
information and changes, including coordinating with area agencies and 
service providers where applicable;
    (4) How Title VI programs may refer individuals who are eligible 
for Title III and/or VII services;
    (5) How services will be provided in a culturally appropriate and 
trauma-informed manner; and
    (6) Opportunities to serve on advisory councils, workgroups, and 
boards, including area agency advisory councils, as set forth in Sec.  
1321.63.

Subpart C--Area Agency Responsibilities


Sec.  1321.55  Mission of the area agency.

    (a) The Act intends that the area agency on aging shall be the lead 
on all aging issues on behalf of all older individuals and family 
caregivers in the planning and service area. The area agency shall 
proactively carry out, under the leadership and direction of the State 
agency, a wide range of functions including advocacy, planning, 
coordination, inter-agency collaboration, information sharing, 
monitoring, and evaluation. The area agency shall lead the development 
or enhancement of comprehensive and coordinated community-based systems 
in, or serving, each community in the planning and service area. These 
systems shall be designed to assist older individuals and family 
caregivers in leading independent, meaningful, healthy, and dignified 
lives in their own homes and communities.
    (b) A comprehensive and coordinated community-based system 
described in of this section shall:
    (1) Have a point of contact where anyone may go or contact for 
help, information, and/or referral on any aging issue;
    (2) Provide information on a range of available public and private 
long-term care services and support options;
    (3) Assure that these options are readily accessible to all older 
individuals and family caregivers, no matter what their income;
    (4) Include a commitment of public, private, voluntary, and 
personal resources committed to supporting the system;
    (5) Involve collaborative decision-making among public, private, 
voluntary, faith-based, civic, and fraternal organizations, including 
trusted leaders of communities in greatest economic need and greatest 
social need, and older individuals and family caregivers in the 
community;
    (6) Offer special help or targeted resources for the most 
vulnerable older individuals, family caregivers, and those in danger of 
losing their independence;
    (7) Provide effective referral from agency to agency to assure that 
information and/or assistance is provided, no matter how or where 
contact is made in the community;
    (8) Evidence sufficient flexibility to respond with appropriate 
individualized assistance, especially for vulnerable older individuals 
or family caregivers;
    (9) Be tailored to the specific nature of the community and the 
needs of older adults in the community; and
    (10) Have a board of directors comprised of leaders in the 
community, including leaders from groups identified as in greatest 
economic need and greatest social need, who have the respect, capacity, 
and authority necessary to convene all interested persons, assess 
needs, design solutions, track overall success, stimulate change, and 
plan community responses for the present and for the future.
    (c) The resources made available to the area agency on aging under 
the Act shall be used consistent with the definition of area plan 
administration as set forth in Sec.  1321.3 to finance those activities 
necessary to achieve elements of a community-based system set forth in 
paragraph (b) of this section and consistent with the requirements for 
provision of direct services as set forth in Sec. Sec.  1321.85 through 
1321.93.
    (d) The area agency may not engage in any activity which is 
inconsistent with its statutory mission prescribed in the Act or 
policies prescribed by the State agency under Sec.  1321.9.


Sec.  1321.57  Organization and staffing of the area agency.

    (a) An area agency may be either:
    (1) An agency whose single purpose is to administer programs for 
older individuals and family caregivers; or
    (2) A separate organizational unit within a multipurpose agency 
which functions as the area agency on aging. Where the State agency 
designates a separate organizational unit of a multipurpose agency that 
has previously been serving as an area agency, the State agency action 
shall not be subject to section 305(b)(5)(B) of the Act (42 U.S.C. 
3025(b)(5)(B)).
    (b) The area agency, once designated, is responsible for providing 
for adequate and qualified staff to facilitate the performance of the 
functions as set forth in this part. Such functions, except for 
provision of direct services, are considered to be area plan 
administration functions.
    (c) The designated area agency shall continue to function in that 
capacity until either:
    (1) The State agency withdraws the designation of the area agency 
as provided in Sec.  1321.21(a)(1) through (5); or
    (2) The area agency informs the State agency that it no longer 
wishes to carry out the responsibilities of an area agency as provided 
in Sec.  1321.21(a)(6).


Sec.  1321.59  Area agency policies and procedures.

    (a) The area agency on aging shall develop policies and procedures 
in compliance with State agency policies and procedures, including 
those required under Sec.  1321.9, governing all aspects of programs 
operated under this part, including those related to conflict of 
interest, and be in alignment with the Act and all other applicable 
Federal requirements. These policies and procedures shall be developed 
in consultation with other appropriate parties in the planning and 
service area.
    (b) The policies and procedures developed by the area agency shall 
address the manner in which the area agency will monitor the 
programmatic and fiscal performance of all programs, direct service 
providers, and activities initiated under this part for quality and

[[Page 11671]]

effectiveness. Quality monitoring and measurement results are 
encouraged to be publicly available in a format that may be understood 
by older individuals, family caregivers, and their families.
    (c) The area agency is responsible for enforcement of these 
policies and procedures.
    (d) The area agency may not delegate to another agency the 
authority to award or administer funds under this part.


Sec.  1321.61  Advocacy responsibilities of the area agency.

    (a) The area agency shall serve as the public advocate for the 
development or enhancement of comprehensive and coordinated community-
based systems of services in each community throughout and specific to 
each planning and service area.
    (b) In carrying out this responsibility, the area agency shall:
    (1) Monitor, evaluate, and comment on policies, programs, hearings, 
levies, and community actions which affect older individuals and family 
caregivers which the area agency considers to be aligned with the 
interests identified in the Act;
    (2) Solicit comments from the public on the needs of older 
individuals and family caregivers;
    (3) Represent the interests of older individuals and family 
caregivers to local level and executive branch officials, public and 
private agencies, or organizations;
    (4) Consult with and support the State's Long-Term Care Ombudsman 
Program; and
    (5) Coordinate with public and private organizations, including 
units of general purpose local government to promote new or expanded 
benefits and opportunities for older individuals and family caregivers.
    (c) Each area agency on aging shall undertake a leadership role in 
assisting communities throughout the planning and service area to 
target resources from all appropriate sources to meet the needs of 
older individuals and family caregivers with greatest economic need and 
greatest social need, with particular attention to low-income minority 
individuals. Such activities may include location of services and 
specialization in the types of services most needed by these groups to 
meet this requirement. However, the area agency shall not permit a 
grantee or contractor under this part to employ a means test for 
services funded under this part.
    (d) No requirement in this section shall be deemed to supersede a 
prohibition contained in the Federal appropriation on the use of 
Federal funds to lobby the Congress; or the lobbying provision 
applicable to private nonprofit agencies and organizations contained in 
OMB Circular A-122.


Sec.  1321.63  Area agency advisory council.

    (a) Functions of council. The area agency shall establish an 
advisory council. The council shall carry out advisory functions which 
further the area agency's mission of developing and coordinating 
community-based systems of services for all older individuals and 
family and older relative caregivers specific to each planning and 
service area. The council shall advise the agency relative to:
    (1) Developing and administering the area plan;
    (2) Ensuring the plan is available to older individuals, family 
caregivers, service providers, and the general public;
    (3) Conducting public hearings;
    (4) Representing the interests of older individuals and family 
caregivers; and
    (5) Reviewing and commenting on community policies, programs and 
actions which affect older individuals and family caregivers with the 
intent of assuring maximum coordination and responsiveness to older 
individuals and family caregivers.
    (b) Composition of council. The council shall include individuals 
and representatives of community organizations from or serving the 
planning and service area who will help to enhance the leadership role 
of the area agency in developing community-based systems of services 
targeting those in greatest economic need and greatest social need. The 
advisory council shall be made up of:
    (1) More than 50 percent older individuals, including minority 
individuals who are participants or who are eligible to participate in 
programs under this part, with efforts to include individuals 
identified as in greatest economic need and individuals identified as 
in greatest social need in Sec.  1321.65(b)(2);
    (2) Representatives of older individuals;
    (3) Family caregivers, which may include older relative caregivers;
    (4) Representatives of health care provider organizations, 
including providers of veterans' health care (if appropriate);
    (5) Representatives of service providers, which may include legal 
assistance, nutrition, evidence-based disease prevention and health 
promotion, caregiver, long-term care ombudsman, and other service 
providers;
    (6) Persons with leadership experience in the private and voluntary 
sectors;
    (7) Local elected officials;
    (8) The general public; and
    (9) As available:
    (i) Representatives from Indian Tribes, Pueblos, or Tribal aging 
programs; and
    (ii) Older relative caregivers, including kin and grandparent 
caregivers of children or adults age 18 to 59 with a disability.
    (c) Review by advisory council. The area agency shall submit the 
area plan and amendments for review and comment to the advisory council 
before it is transmitted to the State agency for approval.
    (d) Conflicts of interest. The advisory council shall not operate 
as a board of directors for the area agency. Individuals may not serve 
on both the advisory council and the board of directors for the same 
entity.


Sec.  1321.65  Submission of an area plan and plan amendments to the 
State agency for approval.

    (a) The area agency shall submit the area plan on aging and 
amendments specific to each planning and service area to the State 
agency for approval following procedures specified by the State agency 
in the State agency policies prescribed by Sec.  1321.9.
    (b) State agency policies and procedures regarding area plan 
requirements will at a minimum address the following:
    (1) Content, duration, and format;
    (2) That the area agency shall identify populations within the 
planning and service area at greatest economic need and greatest social 
need, which shall include the populations as set forth in the Sec.  
1321.3 definitions of greatest economic need and greatest social need.
    (3) Assessment and evaluation of unmet need, such that each area 
agency shall submit objectively collected, and where possible, 
statistically valid, data with evaluative conclusions concerning the 
unmet need for supportive services, nutrition services, evidence-based 
disease prevention and health promotion services, family caregiver 
support services, and multipurpose senior centers. The evaluations for 
each area agency shall consider all services in these categories 
regardless of the source of funding for the services;
    (4) Public participation specifying mechanisms to obtain the 
periodic views of older individuals, family caregivers, service 
providers, and the public with a focus on those in greatest economic 
need and greatest social need, including:
    (i) A reasonable minimum time period (at least 30 calendar days, 
unless a waiver is provided by the State agency during an emergency or 
when a time

[[Page 11672]]

sensitive action is otherwise necessary) for public review and comment 
on area plans and area plan amendments; and
    (ii) Ensuring the documents noted in (b)(4)(i) of this section and 
final area plans and amendments are accessible in a public location, as 
well as available in print by request.
    (5) The services, including a definition of each type of service; 
the number of individuals to be served; the type and number of units to 
be provided; and corresponding expenditures proposed to be provided 
with funds under the Act and related local public sources under the 
area plan;
    (6) Plans for how direct services funds under the Act will be 
distributed within the planning and service area, in order to address 
populations identified as in greatest social need and greatest economic 
need, as identified in Sec.  1321.27(d)(1);
    (7) Process for determining whether the area agency meets 
requirements to provide services directly where:
    (i) As set forth in section 307(a)(8)(A) of the Act (42 U.S.C. 
3027(a)(8)(A)), no supportive services, nutrition services, evidence-
based disease prevention and health promotion services, or family 
caregiver support services will be directly provided by an area agency 
on aging in the State, unless, in the judgment of the State agency:
    (A) Provision of such services by the area agency on aging is 
necessary to assure an adequate supply of such services;
    (B) Such services are directly related to such area agency on 
aging's administrative functions; or
    (C) Such services may be provided more economically, and with 
comparable quality, by such area agency on aging.
    (ii) At its discretion, the State agency may waive the conditions 
set forth in paragraph (b)(7)(i) of this section and allow area 
agencies on aging to directly provide the supportive services of case 
management, information and assistance services, and outreach without 
additional restriction.
    (iii) Approval of the area agency to provide direct services shall 
only be granted for a maximum of the area plan period. For each time 
approval is granted to an area agency to provide direct services, the 
area agency must demonstrate the area agency's efforts to identify 
service providers prior to being granted a subsequent approval.
    (8) Minimum adequate proportion requirements, as identified in the 
approved State plan as set forth in Sec.  1321.27;
    (9) Requirements for program development and coordination 
activities as set forth in Sec.  1321.27(h), if allowed by the State 
agency;
    (10) If the area agency requests to allow Title III, part C-1 funds 
to be used as set forth in Sec.  1321.87(a)(1)(i) through (iii), it 
must provide the following information to the State agency:
    (i) Evidence, using participation projections based on existing 
data, that provision of such meals will enhance and not diminish the 
congregate meals program, and a commitment to monitor impact on 
congregate meals program participation;
    (ii) Description of how provision of such meals will be targeted to 
reach those populations identified as in greatest economic need and 
greatest social need;
    (iii) Description of the eligibility criteria for service 
provision;
    (iv) Evidence of consultation with nutrition and other direct 
services providers, other interested parties, and the general public 
regarding the need for and provision of such meals; and
    (v) Description of how provision of such meals will be coordinated 
with nutrition and other direct services providers and other interested 
parties.
    (11) Initial submission and amendments;
    (12) Approval by the State agency; and
    (13) Appeals regarding area plans on aging.
    (c) Area plans shall incorporate services which address the 
incidence of hunger, food insecurity and malnutrition; social 
isolation; and physical and mental health conditions.
    (d) Pursuant to section 306(a)(16) of the Act (42 U.S.C. 
3026(a)(16)), area plans shall provide, to the extent feasible, for the 
furnishing of services under this Act, through self-direction.
    (e) Area plans on aging shall develop objectives that coordinate 
with and reflect the State plan goals for services under the Act.


Sec.  1321.67  Conflicts of interest policies and procedures for area 
agencies on aging.

    (a) The area agency must have policies and procedures regarding 
conflicts of interest in accordance with the Act, guidance as set forth 
by the Assistant Secretary for Aging, and State agency policies and 
procedures as set forth at Sec.  1321.47. These policies and procedures 
must safeguard against conflicts of interest on the part of the area 
agency, area agency employees, governing board and advisory council 
members, and awardees who have responsibilities relating to the area 
agency's grants and contracts. Conflicts of interest policies and 
procedures must establish mechanisms to avoid both actual and perceived 
conflicts of interest and to identify, remove, and remedy any existing 
or potential conflicts of interest at organizational and individual 
levels, including:
    (1) Reviewing service utilization and financial incentives to 
ensure agency employees, governing board and advisory council members, 
grantees, contractors, and other awardees who serve multiple roles, 
such as assessment and service delivery, are appropriately stewarding 
Federal resources while fostering services to enhance access to 
community living;
    (2) Ensuring that the area agency on aging employees and agents 
administering Title III programs do not have a financial interest in 
Title III programs;
    (3) Complying with Sec.  1324.21 of this chapter regarding the 
Ombudsman program, as appropriate;
    (4) Removing and remedying any actual, perceived, or potential 
conflict between the area agency on aging and the area agency on aging 
employee or contractor's financial interest in a Title III program;
    (5) Establishing robust monitoring and oversight, including 
periodic reviews, to identify conflicts of interest in the Title III 
program;
    (6) Ensuring that no individual, or member of the immediate family 
of an individual, involved in Title III programs has a conflict of 
interest;
    (7) Requiring that agencies to which the area agency provides Title 
III funds have policies in place to prohibit the employment or 
appointment of Title III program decision makers, staff, or volunteers 
with conflicts that cannot be adequately removed or remedied;
    (8) Requiring that Title III programs take reasonable steps to 
refuse, suspend or remove Title III program responsibilities of an 
individual who has a conflict of interest, or who has a member of the 
immediate family with a conflict of interest, that cannot be adequately 
removed or remedied;
    (9) Complying with the State agency's periodic review and 
identification of conflicts of the Title III program;
    (10) Prohibiting the officers, employees, or agents of the Title 
III program from soliciting or accepting gratuities, favors, or 
anything of monetary value from grantees, contractors, and/or 
subrecipients, except where policies and procedures allow for 
situations where the financial interest is not substantial, or the gift 
is an unsolicited item of nominal value;
    (11) Establishing the actions the area agency will require Title 
III programs to take in order to remedy or remove such conflicts, as 
well as disciplinary actions

[[Page 11673]]

to be applied for violations of such standards by officers, employees, 
or agents of the Title III program; and
    (12) Documentation of conflict of interest mitigation strategies, 
as necessary and appropriate, when operating an Adult Protective 
Services or guardianship program.
    (b) [Reserved]


Sec.  1321.69  Area agency on aging Title III and Title VI coordination 
responsibilities.

    (a) For planning and service areas where there are Title VI 
programs, the area agency's policies and procedures, developed in 
coordination with the relevant Title VI program director(s), as set 
forth in Sec.  1322.13(a), must explain how the area agency's aging 
network, including service providers, will coordinate with Title VI 
programs to ensure compliance with section 306(a)(11)(B) of the Act (42 
U.S.C. 3026(a)(11)(B)).
    (b) The policies and procedures set forth in paragraph (a) of this 
section must at a minimum address:
    (1) How the area agency's aging network, including service 
providers, will provide outreach to Tribal elders and family caregivers 
regarding services for which they may be eligible under Title III;
    (2) The communication opportunities the area agency will make 
available to Title VI programs, to include Title III and other funding 
opportunities, technical assistance on how to apply for Title III and 
other funding opportunities, meetings, email distribution lists, 
presentations, and public hearings;
    (3) The methods for collaboration on and sharing of program 
information and changes, including coordinating with service providers 
where applicable;
    (4) How Title VI programs may refer individuals who are eligible 
for Title III services;
    (5) How services will be provided in a culturally appropriate and 
trauma-informed manner; and
    (6) Opportunities to serve on advisory councils, workgroups, and 
boards, including area agency advisory councils as set forth in Sec.  
1321.63.

Subpart D--Service Requirements


Sec.  1321.71  Purpose of services allotments under Title III.

    (a) Title III of the Act authorizes the distribution of Federal 
funds to the State agency on aging for the following services:
    (1) Supportive services;
    (2) Nutrition services;
    (3) Evidence-based disease prevention and health promotion 
services; and
    (4) Family caregiver support services.
    (b) Funds authorized are for the purpose of assisting the State 
agency and its area agencies to develop, provide, or enhance for older 
individuals and family caregivers comprehensive and coordinated 
community-based direct services and systems.
    (c) Except for ombudsman services, State plan administration, 
disaster assistance as noted at Sec. Sec.  1321.99 through 1321.101, or 
as otherwise allowed in the Act, State agencies in States with multiple 
planning and service areas will award the funds made available under 
this section to designated area agencies on aging according to the 
approved intrastate funding formula as set forth in Sec.  1321.49.
    (d) Except for ombudsman services, State plan administration, 
disaster assistance as noted at Sec. Sec.  1321.99 through 1321.101, or 
as otherwise allowed in the Act, State agencies in States with single 
planning and service areas shall award funds by grant or contract to 
community services provider agencies and organizations for direct 
services to older individuals and family caregivers in, or serving, 
communities throughout the planning and service area, except as set 
forth in Sec.  1321.51(b)(4).
    (e) Except where the State agency approves the area agency to 
provide direct services, as set forth in Sec.  1321.65(b)(7), after 
subtracting funds for area plan administration as set forth in Sec.  
1321.9(c)(2)(iv)(B) and program development and coordination 
activities, if allowed by the State agency, as set forth in Sec.  
1321.27(h), area agencies shall award these funds by grant or contract 
to community services provider agencies and organizations for direct 
services to older individuals and family caregivers in, or serving, 
communities throughout the planning and service area.


Sec.  1321.73  Policies and procedures.

    (a) The area agency on aging and/or service provider shall ensure 
the development and implementation of policies and procedures in 
accordance with State agency policies and procedures, including those 
required as set forth in Sec.  1321.9. The State agency may allow for 
policies and procedures to be developed by the subrecipient(s), except 
as set forth at Sec. Sec.  1321.9(a) and 1321.9(c)(2)(xi) and where 
otherwise specified.
    (b) The area agency on aging and/or service provider will provide 
the State agency in a timely manner with statistical and other 
information which the State agency requires to meet its planning, 
coordination, evaluation, and reporting requirements established by the 
State agency under Sec.  1321.9.
    (c) The State agency and/or area agencies on aging must develop an 
independent qualitative and quantitative monitoring process ensuring 
the quality and effectiveness of services regarding meeting participant 
needs and preferences, the goals described within the State and/or area 
plan, and State and local requirements, as well as conflicts of 
interest policies and procedures. Quality monitoring and measurement 
results are encouraged to be made available to the public in plain 
language format designed to support and provide information and choice 
among persons and families receiving services.


Sec.  1321.75  Confidentiality and disclosure of information.

    (a) State agencies and area agencies on aging shall have procedures 
to protect the confidentiality of information about older individuals 
and family caregivers collected in the conduct of their 
responsibilities. The procedures shall ensure that no information about 
an older person or family caregiver, or obtained from an older person 
or family caregiver by a service provider or the State or area 
agencies, is disclosed by the provider or agency in a form that 
identifies the person without the informed consent of the person or of 
their legal representative, unless the disclosure is required by law or 
court order, or for program monitoring and evaluation by authorized 
Federal, State, or local monitoring agencies.
    (b) A State agency, area agency on aging or other contracting or 
granting or auditing agency may not require a provider of long-term 
care ombudsman services under this part to reveal any information that 
is protected by disclosure provisions in 45 CFR part 1324, subpart A. 
State agencies must comply with confidentiality and disclosure of 
information provisions as directed in 45 CFR part 1324, as appropriate.
    (c) A State or area agency on aging shall not require a provider of 
legal assistance under this part to reveal any information that is 
protected by attorney client privilege.
    (d) State agencies must have policies and procedures that ensure 
that entities providing services under this title promote the rights of 
each older individual who receives such services. Such rights include 
the right to confidentiality of records relating to such individual.

[[Page 11674]]

    (e) State agencies' policies and procedures must explain that 
individual information and records may be shared with other State and 
local agencies, community-based organizations, and health care 
providers and payers in order to provide services.
    (f) State agencies' policies and procedures must comply with all 
applicable Federal laws as well as guidance as the State determines, 
for the collection, use, and exchange of both Personal Identifiable 
Information (PII) and personal health information in the provision of 
Title III services under the Act. State agencies are encouraged to 
consult with Tribes regarding any Tribal data sovereignty expectations 
that may apply.


Sec.  1321.77  Purpose of services--person- and family-centered, 
trauma-informed.

    (a) Services must be provided to older adults and family caregivers 
in a manner that is person-centered, trauma-informed, and culturally 
sensitive. Services should be responsive to their interests, physical 
and mental health, social and cultural needs, available supports, and 
desire to live where and with whom they choose. Person-centered 
services may include community-centered and family-centered approaches 
consistent with the traditions, practices, beliefs, and cultural norms 
and expectations of older adults and family caregivers.
    (b) Services should, as appropriate, provide older adults and 
family caregivers with the opportunity to develop a person-centered 
plan that is led by the individual or, if applicable, by the individual 
and the individual's authorized representative. Services should be 
incorporated into existing person-centered plans, as appropriate.
    (c) State and area agencies and service providers should provide 
training to staff and volunteers on person-centered and trauma-informed 
service provision.


Sec.  1321.79  Responsibilities of service providers under State and 
area plans.

    As a condition for receipt of funds under this part, each State 
agency and/or area agency on aging shall assure that service providers 
shall:
    (a) Specify how the service provider intends to satisfy the service 
needs of those identified as in greatest economic need and greatest 
social need, with a focus on low-income minority individuals in the 
area served, including attempting to provide services to low-income 
minority individuals at least in proportion to the number of low-income 
minority older individuals and family caregivers in the population 
serviced by the provider;
    (b) Provide recipients with an opportunity to contribute to the 
cost of the service as provided in Sec.  1321.9(c)(2)(x) or (xi);
    (c) Pursuant to section 306(a)(16) of the Act (42 U.S.C. 
3026(a)(16)), provide, to the extent feasible, for the furnishing of 
services under this Act through self-direction;
    (d) Bring conditions or circumstances which place an older person, 
or the household of an older person, in imminent danger to the 
attention of adult protective services or other appropriate officials 
for follow-up, provided that:
    (1) The older person or their legal representative consents; or
    (2) Such action is in accordance with local adult protective 
services requirements, except as set forth at Sec.  1321.93 and part 
1324, subpart A, of this chapter;
    (e) Where feasible and appropriate, make arrangements for the 
availability of services to older individuals and family caregivers in 
weather-related and other emergencies;
    (f) Assist participants in taking advantage of benefits under other 
programs; and
    (g) Assure that all services funded under this part are coordinated 
with other appropriate services in the community, and that these 
services do not constitute an unnecessary duplication of services 
provided by other sources.


Sec.  1321.81  Client eligibility for participation.

    (a) An individual must be age 60 or older at the time of service to 
be eligible to participate in services under the Act, unless the Act 
otherwise provides an explicit exception. Exceptions are limited to the 
following specific services:
    (1) Nutrition services:
    (i) Services shall be available to spouses of any age of older 
individuals;
    (ii) Services may be available to:
    (A) A person with a disability who lives with an adult age 60 or 
older or who resides in a housing facility that is primarily occupied 
by older adults at which congregate meals are served; and
    (B) A volunteer during meal hours.
    (2) Family caregiver support services for:
    (i) Adults caring for older adults and adults caring for 
individuals of any age with Alzheimer's or a related disorder;
    (ii) Older relative caregivers who are caring for children and are 
not the biological or adoptive parent of the child, where older 
relative caregivers shall no longer be eligible for services under this 
part when the child reaches 18 years of age; or
    (iii) Older relative caregivers who are caring for individuals age 
18 to 59 with disabilities and who may be of any relationship, 
including the biological or adoptive parent.
    (3) Services such as information and assistance and public 
education, where recipients of information may not be age 60 or older, 
but the information is targeted to those who are age 60 or older and/or 
benefits those who are age 60 or older.
    (4) Ombudsman program services, as provided in 45 CFR part 1324.
    (b) State agencies, area agencies on aging, and local service 
providers may develop further eligibility requirements for 
implementation of services for older adults and family caregivers, as 
long as they do not conflict with the Act, this part, or guidance as 
set forth by the Assistant Secretary for Aging. Such requirements may 
include:
    (1) Assessment of greatest social need;
    (2) Assessment of greatest economic need;
    (3) Assessment of functional and support need;
    (4) Geographic boundaries;
    (5) Limitations on number of persons that may be served;
    (6) Limitations on number of units of service that may be provided;
    (7) Limitations due to availability of staff/volunteers;
    (8) Limitations to avoid duplication of services; and
    (9) Specification of settings where services shall or may be 
provided.


Sec.  1321.83  Client and service priority.

    (a) The State agency and/or area agency shall ensure service to 
those identified as members of priority groups through assessment of 
local needs and resources.
    (b) The State agency and/or area agency shall establish criteria to 
prioritize the delivery of services under Title III, parts B (except 
for Ombudsman program services which are subject to provisions in 45 
CFR part 1324), C, and D, in accordance with the Act.
    (c) The State agency and/or area agency shall establish criteria to 
prioritize the delivery of services under Title III, part E, in 
accordance with the Act, to include:
    (1) Caregivers who are older individuals with greatest social need, 
and older individuals with greatest economic need (with particular 
attention to low-income older individuals);
    (2) Caregivers who provide care for individuals with Alzheimer's 
disease and related disorders with neurological and organic brain 
dysfunction; and

[[Page 11675]]

    (3) If serving older relative caregivers, older relative caregivers 
of children or adults with severe disabilities.


Sec.  1321.85  Supportive services.

    (a) Supportive services are community-based interventions set forth 
in the Act under Title III, part B, section 321 (42 U.S.C. 3030d) which 
meet standards established by the Assistant Secretary for Aging. They 
include in-home supportive services, access services, which may include 
multipurpose senior centers, and legal services.
    (b) State agencies may allow use of Title III, part B funds for 
acquiring, altering or renovating, or constructing facilities to serve 
as multipurpose senior centers, in accordance with guidance as set 
forth by the Assistant Secretary for Aging.
    (c) For those Title III, part B services intended to benefit family 
caregivers, such as those provided under sections 321(a)(6)(C), 
321(a)(19), and 321(a)(21) of the Act (42 U.S.C. 3030d(a)(6)(C), 
3030d(a)(19), and 3030d(a)(21)), State and area agencies shall ensure 
that there is coordination and no inappropriate duplication of such 
services available under Title III, part E.
    (d) All funds provided under Title III, part B of the Act must be 
distributed within a State pursuant to Sec.  1321.49 or Sec.  1321.51.


Sec.  1321.87  Nutrition services.

    (a) Nutrition services are community-based interventions as set 
forth in Title III, part C of the Act, and as further defined by the 
Assistant Secretary for Aging. Nutrition services include congregate 
meals, home-delivered meals, nutrition education, nutrition counseling, 
and other nutrition services.
    (1) Congregate meals are meals meeting the Dietary Guidelines for 
Americans and Dietary Reference Intakes as set forth in section 339 of 
the Act (42 U.S.C. 3030g-21) provided under Title III, part C-1 by a 
qualified nutrition service provider to eligible individuals and 
consumed while congregating virtually or in-person, except where:
    (i) If included as part of an approved State plan as set forth in 
Sec.  1321.27 or State plan amendment as set forth in Sec.  1321.31(a) 
and area plan or plan amendment as set forth in Sec.  1321.65 and to 
complement the congregate meals program, shelf-stable, pick-up, carry-
out, drive-through, or similar meals may be provided under Title III, 
part C-1;
    (ii) Meals provided as set forth in paragraph (a)(1)(i) of this 
section shall:
    (A) Not exceed 25 percent of the funds expended by the State agency 
under Title III, part C-1, to be calculated based on the amount of 
Title III, part C-1 funds available after all transfers as set forth in 
Sec.  1321.9(c)(2)(iii) are completed;
    (B) Not exceed 25 percent of the funds expended by any area agency 
on aging under Title III, part C-1, to be calculated based on the 
amount of Title III, part C-1 funds available after all transfers as 
set forth in Sec.  1321.9(c)(2)(iii) are completed.
    (iii) Meals provided as set forth in paragraph (a)(1)(i) of this 
section may be provided to complement the congregate meal program:
    (A) During disaster or emergency situations affecting the provision 
of nutrition services;
    (B) To older individuals who have an occasional need for such meal; 
and/or
    (C) To older individuals who have a regular need for such meal, 
based on an individualized assessment, when targeting services to those 
in greatest economic need and greatest social need.
    (2) Home-delivered meals are meals meeting the Dietary Guidelines 
for Americans and Dietary Reference Intakes as set forth in section 339 
of the Act (42 U.S.C. 3030g-21) provided under Title III, part C-2 by a 
qualified nutrition service provider to eligible individuals and 
consumed at their residence or otherwise outside of a congregate 
setting, as organized by a service provider under the Act. Meals may be 
provided via home delivery, pick-up, carry-out, drive-through, or 
similar meals.
    (i) Eligibility criteria for home-delivered meals may include 
consideration of an individual's ability to leave home unassisted, 
ability to shop for and prepare nutritious meals, degree of disability, 
or other relevant factors pertaining to their need for the service, 
including social need and economic need.
    (ii) Home-delivered meals service providers may encourage meal 
participants to attend congregate meal sites and other health and 
wellness activities, as feasible, based on a person-centered approach 
and local service availability.
    (3) Nutrition education is information provided under Title III, 
parts C-1 or 2 which provides individuals with the knowledge and skills 
to make healthy food and beverage choices. Congregate and home-
delivered nutrition services shall provide nutrition education, as 
appropriate, based on the needs of meal participants.
    (4) Nutrition counseling is a service provided under Title III, 
parts C-1 or 2 which must align with the Academy of Nutrition and 
Dietetics. Congregate and home-delivered nutrition services shall 
provide nutrition counseling, as appropriate, based on the needs of 
meal participants, the availability of resources, and the expertise of 
a Registered Dietitian Nutritionist.
    (5) Other nutrition services include additional services provided 
under Title III, parts C-1 or 2 that may be provided to meet 
nutritional needs or preferences of eligible participants, such as 
weighted utensils, supplemental foods, oral nutrition supplements, or 
groceries.
    (b) State agencies shall establish policies and procedures that 
define a nutrition project and include how a nutrition project will 
provide meals and nutrition services five or more days per week in 
accordance with the Act. The definition of nutrition project 
established by the State agency must consider the availability of 
resources and the community's need for nutrition services as described 
in the State and area plans.
    (c) All funds provided under Title III, part C of the Act must be 
distributed within a State pursuant to Sec.  1321.49 or Sec.  1321.51.
    (d) Nutrition Services Incentive Program allocations are available 
to States and Territories that provide nutrition services where:
    (1) Nutrition Services Incentive Program allocation amounts are 
based on the number of meals reported by the State agency which meet 
the following requirements:
    (i) The meal is served to an individual who is eligible to receive 
services under the Act;
    (ii) The meal is served to an individual who has not been means-
tested to receive the meal;
    (iii) The meal is served to an individual who has been provided the 
opportunity to provide a voluntary contribution to the cost of service;
    (iv) The meal meets the other requirements of the Act, including 
that the meal meets the Dietary Guidelines for Americans and Dietary 
Reference Intakes as set forth in section 339 of the Act (42 U.S.C. 
3030g-21); and
    (v) The meal is served by an agency that has a grant or contract 
with a State agency or area agency.
    (2) The State agency may choose to receive their Nutrition Services 
Incentive Program grant as cash, commodities, or a combination of cash 
and commodities.
    (3) Nutrition Services Incentive Program funds may only be used to 
purchase domestically produced foods used in a meal as set forth under 
the Act.
    (4) Nutrition Services Incentive Program funds are distributed 
within a State pursuant to Sec.  1321.49(b)(1)(iii) and (d) or Sec.  
1321.51(b)(1).

[[Page 11676]]

Sec.  1321.89  Evidence-based disease prevention and health promotion 
services.

    (a) Evidence-based disease prevention and health promotion services 
programs are community-based interventions as set forth in Title III, 
part D of the Act, that have been proven to improve health and well-
being and/or reduce risk of injury, disease, or disability among older 
adults. All programs provided using these funds must be evidence-based 
and must meet the Act's requirements and guidance as set forth by the 
Assistant Secretary for Aging.
    (b) All funds provided under Title III, part D of the Act must be 
distributed within a State pursuant to Sec.  1321.49 or Sec.  1321.51.


Sec.  1321.91  Family caregiver support services.

    (a) Family caregiver support services are community-based 
interventions set forth in Title III, part E of the Act, which meet 
standards set forth by the Assistant Secretary for Aging and which may 
be informed through the use of an evidence-informed or evidence-based 
caregiver assessment, including:
    (1) Information to family caregivers about available services via 
public education;
    (2) Assistance to family caregivers in gaining access to the 
services through:
    (i) Individual information and assistance; or
    (ii) Case management or care coordination.
    (3) Individual counseling, organization of support groups, and 
caregiver training to assist family caregivers in those areas in which 
they provide support, including health, nutrition, complex medical 
care, and financial literacy, and in making decisions and solving 
problems relating to their caregiving roles;
    (4) Respite care to enable family caregivers to be temporarily 
relieved from their caregiving responsibilities; and
    (5) Supplemental services, on a limited basis, to complement the 
care provided by family caregivers. State agencies and AAAs shall 
define ``limited basis'' for supplemental services and may consider 
limiting units, episodes or expenditure amounts when making this 
determination.
    (b) State agencies shall ensure that there is a plan to provide 
each of the services authorized under this part in each planning and 
service area, or statewide in accordance with a funds distribution plan 
for single planning and service area States, subject to availability of 
funds under the Act.
    (c) To provide services listed in paragraphs (a)(4) and (5) of this 
section to family caregivers of adults aged 60 and older or of 
individuals of any age with Alzheimer's disease or a related disorder, 
the individual for whom they are caring must be determined to be 
functionally impaired because the individual:
    (1) Is unable to perform at least two activities of daily living 
without substantial assistance, including verbal reminding, physical 
cueing, or supervision;
    (2) At the option of the State agency, is unable to perform at 
least three such activities without such assistance; or
    (3) Due to a cognitive or other mental impairment, requires 
substantial supervision because the individual poses a serious health 
or safety hazard to themself or others.
    (d) All funds provided under Title III, part E of the Act must be 
distributed within a State pursuant to Sec.  1321.49 or Sec.  1321.51.


Sec.  1321.93  Legal assistance.

    (a) General--definition. (1) The provisions and restrictions in 
this section apply to legal assistance funded by and provided pursuant 
to the Act.
    (2) Legal assistance means legal advice and/or representation 
provided by an attorney to older individuals with economic or social 
needs, per section 102(33) of the Act (42 U.S.C. 3002(33)). Legal 
assistance may include, to the extent feasible, counseling, or other 
appropriate assistance by a paralegal or law student under the direct 
supervision of an attorney, and counseling or representation by a non-
lawyer as permitted by law.
    (b) State agency on aging requirements. (1) Under section 
307(a)(11) of the Act (42 U.S.C. 3027(a)(11)), the roles and 
responsibilities of the State agency shall include assurances for the 
provision of legal assistance in the State plan as follows:
    (i) Legal assistance, to the extent practicable, supplements and 
does not duplicate or supplant legal services provided with funding 
from other sources, including grants made by the Legal Services 
Corporation;
    (ii) Legal assistance supplements existing sources of legal 
services through focusing legal assistance delivery and provider 
capacity in the specific areas of law affecting older adults with 
greatest economic need or greatest social need;
    (iii) Reasonable efforts will be made to maintain existing levels 
of legal assistance for older individuals;
    (iv) Advice, training, and technical assistance support for the 
provision of legal assistance for older adults will be made available 
to legal assistance providers, as provided in Sec.  1324.303 and 
section 420(a)(1) of the Act (42 U.S.C. 3032i(a)(1));
    (v) The State agency in single planning and service area States or 
area agencies on aging in States with multiple planning and service 
areas shall award, through contract funds, only to legal assistance 
providers that meet the standards and requirements as set forth in this 
section and section (c); and
    (vi) Attorneys and personnel under the supervision of attorneys 
providing legal assistance shall adhere to the applicable Rules of 
Professional Conduct including the obligation to preserve the attorney-
client privilege.
    (2) As set forth in section 307(a)(2)(C) of the Act (42 U.S.C. 
3027(a)(2)(C)) and Sec.  1321.27(i)(3), the State agency shall 
designate the minimum proportion of Title III, part B funds and require 
the expenditure of at least that sum for each planning and service area 
for the purpose of procuring contract(s) for legal assistance.
    (3) The State agency in States with a single planning and service 
area shall meet the requirements for area agencies on aging as set 
forth in paragraph (c) of this section.
    (c) Area Agency on Aging requirements--(1) Adequate proportion 
funding. The area agency on aging shall award at a minimum the required 
adequate proportion of Title III, part B funds designated by the State 
agency to procure legal assistance for older residents of the planning 
and service area as set forth in Sec. Sec.  1321.27 and 1321.65.
    (2) Standards for selection of legal assistance providers. Area 
agencies on aging shall adhere to the following standards in selecting 
legal assistance providers:
    (i) The area agency on aging must select and procure through 
contract the legal assistance provider or providers best able to 
provide legal assistance as provided in this paragraph (c)(2) and 
paragraphs (d) through (f) of this section; and
    (ii) The area agency on aging must select the legal assistance 
provider(s) that best demonstrate the capacity to conduct legal 
assistance, which means having the requisite expertise and staff to 
fulfill the requirements of the Act and all applicable Federal 
requirements for provision of legal assistance.
    (d) Standards for legal assistance provider selection. Selected 
legal assistance providers shall exhibit the capacity to:
    (1) Retain staff with expertise in specific areas of law affecting 
older

[[Page 11677]]

individuals with economic or social need, including the priority areas 
identified in the Act;
    (2) Demonstrate expertise in specific areas of law that are given 
priority in the Act, including income and public entitlement benefits, 
health care, long-term care, nutrition, consumer law, housing, 
utilities, protective services, abuse, neglect, age discrimination, and 
defense of guardianship, prioritizing focus from among the areas of law 
based on the needs of the community served;
    (i) Defense of guardianship means advice to and representation of 
older individuals at risk of guardianship and older individuals subject 
to guardianship to divert them from guardianship to less restrictive, 
more person-directed forms of decisional support whenever possible, to 
oppose appointment of a guardian in favor of such less restrictive 
decisional supports, to seek limitation of guardianship and to seek 
revocation of guardianship;
    (ii) Defense of guardianship includes:
    (A) Representation to maintain the rights of individuals at risk of 
guardianship, and to advocate for limited guardianship if a court 
orders guardianship to be imposed; assistance removing or limiting an 
existing guardianship; or assistance to preserve or restore an 
individual's rights or autonomy;
    (B) Representation to advocate for and assert use of least-
restrictive alternatives to guardianship to preserve or restore an 
individual's rights and or autonomy to support decision-making, or to 
limit the scope of guardianship orders when such orders have or will be 
entered by a court; and
    (C) A legal assistance provider shall not represent a petitioner 
for imposition of guardianship except in limited circumstances 
involving guardianship proceedings of older individuals who seek to 
become guardians only if other adequate representation is unavailable 
in the proceedings, and the provider has exhausted, and documents 
efforts made to explore less restrictive alternatives to guardianship.
    (3) Provide effective administrative and judicial advocacy in the 
areas of law affecting older individuals with greatest economic need or 
greatest social need;
    (4) Support other advocacy efforts, for example, the Long-Term Care 
Ombudsman Program, including requiring a memorandum of agreement 
between the State Long-Term Care Ombudsman and the legal assistance 
provider(s) as required by section 712(h)(8) of the Act (42 U.S.C. 
3058g(h)(8)); and
    (5) Effectively provide legal assistance to older individuals 
residing in congregate residential long-term settings as defined in the 
Act in section 102(35) (42 U.S.C. 3002(35)), or who are isolated as 
defined in the Act in section 102(24)(c) (42 U.S.C. 3002(24)(c)), or 
who are restricted to the home due to cognitive or physical 
limitations.
    (e) Standards for contracting between Area Agencies on Aging and 
legal assistance providers. (1) The area agency shall enter into a 
contract(s) with the selected legal assistance provider(s) that 
demonstrate(s) the capacity to deliver legal assistance.
    (2) The contract shall specify that legal assistance provider(s) 
shall demonstrate capacity to:
    (i) Maintain expertise in specific areas of law that are to be 
given priority, as defined in paragraphs (d)(1) and (2) of this 
section.
    (ii) Prioritize representation and advice that focus on the 
specific areas of law that give rise to problems that are disparately 
experienced by older adults with economic or social need.
    (iii) Maintain staff with the expertise, knowledge, and skills to 
deliver legal assistance as described in this section.
    (iv) Engage in reasonable efforts to involve the private bar in 
legal assistance activities authorized under the Act, including groups 
within the private bar furnishing services to older individuals on a 
pro bono and reduced fee basis.
    (v) Ensure that attorneys and personnel under the supervision of 
attorneys providing legal assistance will adhere to the applicable 
Rules of Professional Conduct including, but not limited to, the 
obligation to preserve the attorney-client privilege.
    (3) The contract shall include provisions:
    (i) Describing the duty of the area agency to refer older adults to 
the legal assistance provider(s) with whom the area agency contracts. 
In fulfilling this duty, the area agency 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.
    (ii) Requiring the contracted legal assistance provider(s) to 
maintain capacity to provide legal assistance in the preferred language 
used by older individuals seeking and/or receiving legal assistance who 
are limited English proficient (LEP), including in oral and written 
communication, and to ensure effective communication for individuals 
with disabilities, including by providing appropriate auxiliary aids 
and services where necessary.
    (A) This includes requiring legal assistance providers take 
reasonable steps to ensure meaningful access to legal assistance by 
older individuals with limited-English proficiency, including an 
individualized assessment of an individual's need to understand and 
participate in the legal process (as determined by each individual).
    (B) This includes stating the responsibility of the legal 
assistance provider to provide access to interpretation and translation 
services to meet clients' needs.
    (C) This includes taking appropriate steps to ensure communications 
with persons with disabilities are as effective as communication with 
others, including by providing appropriate auxiliary aids and services 
where necessary to afford qualified persons with disabilities an equal 
opportunity to participate in, and enjoy the benefits of, legal 
assistance.
    (iii) Providing that the area agency will provide outreach 
activities that will include information about the availability of 
legal assistance to address problems experienced by older adults that 
may have legal solutions, such as those referenced in sections 
306(a)(4)(B) and 306(a)(19) of the Act (42 U.S.C. 3026(a)(4)(B) and 
3026(a)(19)). This includes outreach to:
    (A) Older adults with greatest economic need due to low income and 
to those with greatest social need, including minority older 
individuals; and
    (B) Older adults of underserved communities, including:
    (1) Older adults with limited-English proficiency and/or whose 
primary language is not English;
    (2) Older adults with severe disabilities;
    (3) Older adults living in rural areas;
    (4) Older adults at risk for institutional placement; and
    (5) Older adults with Alzheimer's disease and related disorders 
with neurological and organic brain dysfunction and their caregivers.
    (iv) Providing that legal assistance provider attorney staff and 
non-attorney personnel under the supervision of legal assistance 
attorneys must adhere to the applicable State Rules of Professional 
Conduct.
    (v) Requiring that if the legal assistance provider(s) contracted 
by the area agency is located within a Legal Services Corporation 
grantee entity, that the legal assistance provider(s) shall adhere to 
the specific restrictions on activities and client representation in 
the Legal Services Corporation Act (42 U.S.C. 2996 et seq.). Exempted 
from this requirement are:

[[Page 11678]]

    (A) Restrictions governing eligibility for legal assistance under 
such Act;
    (B) Restrictions for membership of governing boards; and
    (C) Any additional provisions as determined appropriate by the 
Assistant Secretary for Aging.
    (f) Legal assistance provider requirements. (1) The provisions and 
restrictions in this section apply to legal assistance provider(s) when 
they are providing legal assistance under section 307(a)(11) of the Act 
(42 U.S.C. 3027(a)(11)).
    (2) Legal assistance providers under contract with the State agency 
in States with single planning and service areas or area agency in 
States with multiple planning and service areas shall adhere to the 
following requirements:
    (i) 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
    (ii) Maintain the capacity for and provision of effective 
administrative and judicial representation.
    (A) Effective administrative and judicial representation means the 
expertise and ability to provide the range of services necessary to 
adequately address the needs of older adults through legal assistance 
in administrative and judicial forums, as required under the Act. This 
includes providing the full range of legal services, from brief service 
and advice through representation in administrative and judicial 
proceedings.
    (B) [Reserved]
    (iii) Conduct administrative and judicial advocacy as is necessary 
to meet the legal needs of older adults with economic or social need, 
focusing on such individuals with the greatest economic need or 
greatest social need:
    (A) Economic need means the need for legal assistance resulting 
from income at or below the Federal poverty level, as defined in 
section 102(44) of the Act (42 U.S.C. 3002(44)), that is insufficient 
to meet the legal needs of an older individual or that causes barriers 
to attaining legal assistance to assert the rights of older individuals 
as articulated in the Act and in the laws, regulations, and 
Constitution.
    (B) Social need means the need for legal assistance resulting from 
social factors, as defined by in section 102(24) of the Act (42 U.S.C. 
3002(24)), that cause barriers to attaining legal assistance to assert 
the rights of older individuals.
    (iv) Maintain the expertise required to capably handle matters 
related to the priority case type areas specified under the Act, 
including income and public entitlement benefits, health care, long-
term care, nutrition, housing, utilities, protective services, abuse, 
neglect, age discrimination and defense of guardianship (as defined in 
paragraph (d)(2)(i) of this section).
    (v) Maintain the expertise required to deliver any matters in 
addition to those specified in paragraph (f)(2)(iv) of this section 
that are related to preserving, maintaining, and restoring an older 
adult's independence, choice, or financial security.
    (vi) Maintain the expertise and capacity to deliver a full range of 
legal assistance, from brief service and advice through representation 
in hearings, trials, and other administrative and judicial proceedings 
in the areas of law affecting such older individuals with economic or 
social need.
    (vii) Maintain the capacity to provide effective legal assistance 
and legal support to other advocacy efforts, including, but not limited 
to, the Long-Term Care Ombudsman Program serving the planning and 
service area, as required by section 712(h)(8) of the Act (42 U.S.C. 
3058g(h)(8)), and maintain the capacity to form, develop and maintain 
partnerships that support older adults' independence, choice, or 
financial security.
    (viii) Maintain and exercise the capacity to effectively provide 
legal assistance to older adults regardless of whether they reside in 
community or congregate settings, and to provide legal assistance to 
older individuals who are confined to their home, and older adults 
whose access to legal assistance may be limited by geography or 
isolation.
    (ix) Maintain the capacity to provide legal assistance in the 
preferred language used by older individuals seeking and/or receiving 
legal assistance who are limited-English proficient (LEP), including in 
oral and written communication.
    (A) Legal assistance provider(s) shall take reasonable steps to 
ensure meaningful access to legal assistance by older individuals with 
limited English-speaking proficiency and other communication needs;
    (B) Such reasonable steps require an individualized assessment of 
the needs of individuals who are seeking legal assistance and legal 
assistance clients to understand and participate in the legal process 
(as determined by each individual); and
    (C) Legal assistance provider(s) are responsible for providing 
access to interpretation, translation, and auxiliary aids and services 
to meet older individuals' legal assistance needs.
    (x) Maintain staff with knowledge of the unique experiences of 
older adults with economic or social need and expertise in areas of law 
affecting such older adults.
    (xi) Meet the following legal assistance provider requirements:
    (A) A legal assistance provider may not require an older person to 
disclose information about income or resources as a condition for 
providing legal assistance under this part.
    (B) A legal assistance provider may ask about the person's 
financial circumstances as a part of the process of providing legal 
advice, counseling, and representation, or for the purpose of 
identifying additional resources and benefits for which an older person 
may be eligible.
    (C) A legal assistance provider and its attorneys may engage in 
other legal activities to the extent that there is no conflict of 
interest nor other interference with their professional 
responsibilities under this Act.
    (D) Legal assistance providers that are not housed within Legal 
Services Corporation grantee entities shall coordinate their services 
with existing Legal Services Corporation projects to concentrate funds 
under this Act in providing legal assistance to older adults with the 
greatest economic need or greatest social need.
    (E) Nothing in this section is intended to prohibit any attorney 
from providing any form of legal assistance to an eligible client, or 
to interfere with the fulfillment of any attorney's professional 
responsibilities to a client.
    (F) Legal assistance provider attorney staff and non-attorney 
personnel under the supervision of legal assistance attorneys must 
adhere to the applicable Rules of Professional Conduct.
    (3) Restrictions on legal assistance.
    (i) No legal assistance provider(s) shall use funds received under 
the Act to provide legal assistance in a fee generating case unless 
other adequate representation is unavailable or there is an emergency 
requiring immediate legal action. All providers shall establish 
procedures for the referral of fee generating cases.
    (A) ``Fee generating case'' means any case or matter which, if 
undertaken on behalf of an eligible client by an attorney in private 
practice, reasonably may be expected to result in a fee for legal 
services from an award to a client, from public funds, or from the 
opposing party.
    (B) [Reserved]
    (ii) Other adequate representation is deemed to be unavailable 
when:
    (A) Recovery of damages is not the principal object of the client; 
or

[[Page 11679]]

    (B) A court appoints a provider or an employee of a provider 
pursuant to a statute or a court rule or practice of equal 
applicability to all attorneys in the jurisdiction; or
    (C) An eligible client is seeking benefits under Title II of the 
Social Security Act (42 U.S.C. 401 et seq.), Federal Old Age, 
Survivors, and Disability Insurance Benefits; or Title XVI of the 
Social Security Act (42 U.S.C. 1381 et seq.), Supplemental Security 
Income for Aged, Blind, and Disabled.
    (iii) A provider may seek and accept a fee awarded or approved by a 
court or administrative body or included in a settlement.
    (iv) When a case or matter accepted in accordance with this section 
results in a recovery of damages, other than statutory benefits, a 
provider may accept reimbursement for out-of-pocket costs and expenses 
incurred in connection with the case or matter.
    (4) Legal assistance provider prohibited activities.
    (i) A provider, employee of the provider, or staff attorney shall 
not engage in the following prohibited political activities:
    (A) No provider or its employees shall contribute or make available 
funds, personnel, or equipment provided under the Act to any political 
party or association or to the campaign of any candidate for public or 
party office; or for use in advocating or opposing any ballot measure, 
initiative, or referendum;
    (B) No provider or its employees shall intentionally identify the 
Title III program or provider with any partisan or nonpartisan 
political activity, or with the campaign of any candidate for public or 
party office; or
    (C) While engaged in legal assistance activities supported under 
the Act, no attorney shall engage in any political activity.
    (ii) No funds made available under the Act shall be used for 
lobbying activities including, but not limited to, any activities 
intended to influence any decision or activity by a nonjudicial 
Federal, State, or local individual or body.
    (A) Nothing in this section is intended to prohibit an employee 
from:
    (1) Communicating with a governmental agency for the purpose of 
obtaining information, clarification, or interpretation of the agency's 
rules, regulations, practices, or policies;
    (2) Informing a client about a new or proposed statute, executive 
order, or administrative regulation relevant to the client's legal 
matter;
    (3) Responding to an individual client's request for advice only 
with respect to the client's own communications to officials unless 
otherwise prohibited by the Act, Title III regulations or other 
applicable law. This provision does not authorize publication or 
training of clients on lobbying techniques or the composition of a 
communication for the client's use;
    (4) Making direct contact with the area agency for any purpose; or
    (5) Testifying before a government agency, legislative body, or 
committee at the request of the government agency, legislative body, or 
committee.
    (B) [Reserved]
    (iii) A provider may use funds provided by private sources to:
    (A) Engage in lobbying activities if a government agency, elected 
official, legislative body, committee, or member thereof is considering 
a measure directly affecting activities of the provider under the Act;
    (B) [Reserved]
    (iv) While carrying out legal assistance activities and while using 
resources provided under the Act, by private entities or by a 
recipient, directly or through a subrecipient, no provider or its 
employees shall:
    (A) Participate in any public demonstration, picketing, boycott, or 
strike, whether in person or online, except as permitted by law in 
connection with the employee's own employment situation;
    (B) Encourage, direct, or coerce others to engage in such 
activities; or
    (C) At any time engage in or encourage others to engage in:
    (1) Rioting or civil disturbance;
    (2) Activity determined by a court to be in violation of an 
outstanding injunction of any court of competent jurisdiction;
    (3) Any illegal activity;
    (4) Any intentional identification of programs funded under the Act 
or recipient with any partisan or nonpartisan political activity, or 
with the campaign of any candidate for public or party office; or
    (v) None of the funds made available under the Act may be used to 
pay dues exceeding a reasonable amount per legal assistance provider 
per annum to any organization (other than a bar association), a purpose 
or function of which is to engage in activities prohibited under these 
regulations. Such dues may not be used to engage in activities for 
which Older Americans Act funds cannot be directly used.


Sec.  1321.95  Service provider Title III and Title VI coordination 
responsibilities.

    (a) For locations served by service providers under Title III of 
the Act where there are Title VI programs, the area agency on aging's 
and/or service provider's policies and procedures, developed in 
coordination with the relevant Title VI program director(s), as set 
forth in Sec.  1322.13(a), must explain how the service provider will 
coordinate with Title VI programs.
    (b) The policies and procedures set forth in paragraph (a) of this 
section must at a minimum address:
    (1) How the service provider will provide outreach to Tribal elders 
and family caregivers regarding services for which they may be eligible 
under Title III;
    (2) The communication opportunities the service provider will make 
available to Title VI programs, to include meetings email distribution 
lists, and presentations;
    (3) The methods for collaboration on and sharing of program 
information and changes;
    (4) How Title VI programs may refer individuals who are eligible 
for Title III services;
    (5) How services will be provided in a culturally appropriate and 
trauma-informed manner; and
    (6) Opportunities to serve on advisory councils, workgroups, and 
boards.

Subpart E--Emergency and Disaster Requirements


Sec.  1321.97  Coordination with State, Tribal, and local emergency 
management.

    (a) State agencies. (1) State agencies shall establish emergency 
plans, as set forth in section 307(a)(28) of the Act (42 U.S.C. 
3027(a)(28)). Such plans must include, at a minimum:
    (i) The State agency's continuity of operations plan and an all-
hazards emergency response plan based on completed risk assessments for 
all hazards and updated annually;
    (ii) A plan to coordinate activities with area agencies on aging, 
service providers, local emergency response agencies, relief 
organizations, local governments, State agencies responsible for 
emergency and disaster preparedness, and any other institutions that 
have responsibility for disaster relief service delivery;
    (iii) Processes for developing and updating long-range emergency 
and disaster preparedness plans; and
    (iv) Other relevant information as determined by the State agency.
    (2) The plan shall include information describing the involvement 
of the head of the State agency in the development, revision, and 
implementation of emergency and disaster preparedness plans, including 
the State Public Health Emergency Preparedness and Response Plan.

[[Page 11680]]

    (3) The plan shall discuss coordination with area agencies on aging 
and service providers and Tribal and local emergency management.
    (b) Area agencies on aging. (1) Area agencies on aging shall 
establish emergency plans. Such plans must include:
    (i) The area agency's continuity of operations plan and an all-
hazards emergency response plan based on completed risk assessments for 
all hazards and updated annually;
    (ii) A description of coordination activities for both development 
and implementation of long-range emergency and disaster preparedness 
plans; and
    (iii) Other information as deemed appropriate by the area agency on 
aging.
    (2) The area agency on aging shall coordinate with Federal, local, 
and State emergency response agencies, service providers, relief 
organizations, local and State governments, and any other entities that 
have responsibility for disaster relief service delivery, as well as 
with Tribal emergency management, as appropriate.


Sec.  1321.99  Setting aside funds to address disasters.

    (a) Section 310 of the Act (42 U.S.C. 3030) authorizes the use of 
funds during Presidentially declared major disaster declarations under 
the Stafford Act (42 U.S.C. 5121-5207) without regard to distribution 
through the State agency's intrastate funding formula or funds 
distribution plan when the following apply:
    (1) Title III services are impacted; and
    (2) Flexibility is needed as determined by the State agency.
    (b) When implementing this authority, State agencies may set aside 
funds, up to five percent of their total Title III allocations, if 
specified as being allowed to be withheld for the purpose in their 
approved intrastate funding formula or funds distribution plan, or with 
prior approval from the Assistant Secretary for Aging. The following 
apply for use of set aside funds:
    (1) Set aside funds that are awarded under this provision must 
comply with the requirements at Sec.  1321.101; and
    (2) The State agency must have policies and procedures in place to 
award funds set aside through the intrastate funding formula, as set 
forth in Sec.  1321.49, or funds distribution plan, as set forth in 
Sec.  1321.51(b), if there are no funds awarded subject to this 
provision within 30 days of the end of the fiscal year in which the 
funds were received.


Sec.  1321.101  Flexibilities under a major disaster declaration.

    (a) If a State or Indian Tribe requests and receives a major 
disaster declaration under the Stafford Act (42 U.S.C. 5121-5207), the 
State agency may use disaster relief flexibilities under Title III as 
set forth in this section to provide disaster relief services for areas 
of the State where the specific major disaster declaration is 
authorized and where older adults and family caregivers are affected.
    (b) Flexibilities a State agency may exercise under a major 
disaster declaration include:
    (1) Allowing use of any portion of the funds of any open grant 
awards under Title III of the Act for disaster relief services for 
older individuals and family caregivers.
    (2) Awarding portions of State plan administration, up to a maximum 
of five percent of the Title III grant award or to a maximum of the 
amounts set forth at Sec.  1321.9(c)(2)(iv), for use in a planning and 
service area covered in whole or part under a major disaster 
declaration without the requirement of allocation through the 
intrastate funding formula or funds distribution plan to be used for 
direct service provision.
    (3) Awarding of funds set aside to address disasters, as set forth 
in Sec.  1321.99, or as determined by the Assistant Secretary for 
Aging, in the following ways:
    (i) to an area agency serving a planning and service area covered 
in whole or part under a major disaster declaration without the 
requirement of allocation through the intrastate funding formula;
    (ii) for single planning and service area States, to a service 
provider without the requirement of allocation through a funds 
distribution plan; or
    (iii) to be used for direct service provision, direct expenditures, 
and/or procurement of items on a statewide level, if the State agency 
adheres to the following:
    (A) The State agency judges that provision of services or 
procurement of supplies by the State agency is necessary to ensure an 
adequate supply of such services and/or that such services can be 
provided/supplies procured more economically, and with comparable 
quality, by the State agency;
    (B) The State agency consults with area agencies on aging prior to 
exercising the flexibility, and includes the Ombudsman as set forth in 
part 1324, subpart A if funding for the Ombudsman program is affected;
    (C) The State agency uses such set aside funding, as provided at 
Sec.  1321.99, for services provided through area agencies on aging and 
other aging network partners to the extent reasonably practicable, in 
the judgment of the State agency; and
    (D) The State agency ensures reporting of any clients, units, and 
services provided through such expenditures.
    (c) A State agency must submit a State plan amendment as set forth 
in Sec.  1321.31(b) if the State agency exercises any of the 
flexibilities as set forth in paragraph (b) of this section. The State 
plan amendment must at a minimum include the specific entities 
receiving funds; the amount, source, and intended use for funds; and 
other such justification of the use of funds.
    (d) Disaster relief services may include any allowable services 
under the Act to eligible older individuals or family caregivers during 
the period covered by the major disaster declaration.
    (e) Expenditures of funds under disaster relief flexibilities must 
be reported separately from the grant where funding was expended. State 
agencies may expend funds from any source within open grant awards 
under Title III and Title VII of the Act but must track the source of 
all expenditures.
    (f) State agencies must have policies and procedures outlining 
communication with area agencies on aging and/or local service 
providers regarding State agency expectations for eligibility, use, and 
reporting of services and funds provided under these flexibilities, and 
include the Ombudsman as set forth in part 1324, subpart A if funding 
for the Ombudsman program is affected.
    (g) A State agency may only make obligations exercising this 
flexibility during the major disaster declaration incident period or 90 
days thereafter or with prior approval from the Assistant Secretary for 
Aging.


Sec.  1321.103  Title III and Title VI coordination for emergency and 
disaster preparedness.

    State agencies, area agencies, and Title VI programs should 
coordinate in emergency and disaster preparedness planning, response, 
and recovery. State agencies and area agencies that have Title VI 
programs in operation within their jurisdictions must have policies and 
procedures, developed in communication with the relevant Title VI 
program director(s) as set forth in Sec.  1322.13(c), in place for how 
they will communicate and coordinate with Title VI programs regarding 
emergency and disaster preparedness planning, response, and recovery.

[[Page 11681]]

Sec.  1321.105  Modification during major disaster declaration or 
public health emergency.

    The Assistant Secretary for Aging retains the right to modify the 
requirements described in these regulations pursuant to a major 
disaster declaration or public health emergency.

0
2. Revise part 1322 to read as follows:

PART 1322--GRANTS TO INDIAN TRIBES AND NATIVE HAWAIIAN GRANTEES FOR 
SUPPORTIVE, NUTRITION, AND CAREGIVER SERVICES

Sec.
Subpart A--Introduction
1322.1 Basis and purpose of this part.
1322.3 Definitions.
Subpart B--Application
1322.5 Application requirements.
1322.7 Application approval.
1322.9 Hearing procedures.
Subpart C--Service Requirements
1322.11 Purpose of services allotments under Title VI.
1322.13 Policies and procedures.
1322.15 Confidentiality and disclosure of information.
1322.17 Purpose of services--person- and family-centered, trauma-
informed.
1322.19 Responsibilities of service providers.
1322.21 Client eligibility for participation.
1322.23 Client and service priority.
1322.25 Supportive services.
1322.27 Nutrition services.
1322.29 Family caregiver support services.
1322.31 Title VI and Title III coordination.
Subpart D--Emergency and Disaster Requirements
1322.33 Coordination with Tribal, State, and local emergency 
management.
1322.35 Flexibilities under a major disaster declaration.
1322.37 Title VI and Title III coordination for emergency and 
disaster preparedness.
1322.39 Modification during major disaster declaration or public 
health emergency.

    Authority:  42 U.S.C. 3001 et seq.

Subpart A--Introduction


Sec.  1322.1  Basis and purpose of this part.

    (a) This program is established to meet the unique needs and 
circumstances of American Indian and Alaskan Native elders and family 
caregivers and of older Native Hawaiians and family caregivers, on 
Indian reservations and/or in service areas as approved in Sec.  
1322.7. This program honors the sovereign government to government 
relationship with a Tribal organization serving elders and family 
caregivers through direct grants to serve the eligible participants and 
similar considerations, as appropriate, for Hawaiian Native grantees 
representing elders and family caregivers. This part implements Title 
VI (parts A, B, and C) of the Older Americans Act, as amended (the 
Act), by establishing the requirements that an Indian Tribal 
organization or Hawaiian Native grantee shall meet in order to receive 
a grant to promote the delivery of services for older Indians, Alaskan 
Native, Native Hawaiians, and Native American family caregivers that 
are comparable to services provided under Title III. This part also 
prescribes application and hearing requirements and procedures for 
these grants.
    (b) Terms used, but not otherwise defined, in this part will have 
the meanings ascribed to them in the Act.


Sec.  1322.3  Definitions.

    Access to services or access services, as used in this part, means 
services which may facilitate connection to or receipt of other direct 
services, including transportation, outreach, information and 
assistance, options counseling, and case management services.
    Acquiring, as used in this part, means obtaining ownership of an 
existing facility.
    Act, means the Older Americans Act of 1965 as amended.
    Altering or renovating, as used in this part, means making 
modifications to or in connection with an existing facility which are 
necessary for its effective use. Such modifications may include 
alterations, improvements, replacements, rearrangements, installations, 
renovations, repairs, expansions, upgrades, or additions, which are not 
in excess of double the square footage of the original facility and all 
physical improvements.
    Area agency on aging, as used in this part, means a single agency 
designated by the State agency to perform the functions specified in 
the Act for a planning and service area.
    Budgeting period, as used in Sec.  1322.19, means the intervals of 
time into which a period of assistance (project period) is divided for 
budgetary and funding purposes.
    Constructing, as used in this part, means building a new facility, 
including the costs of land acquisition and architectural and 
engineering fees, or making modifications to or in connection with an 
existing facility which are in excess of double the square footage of 
the original facility and all physical improvements.
    Department, means the U.S. Department of Health and Human Services.
    Domestically produced foods, as used in this part, means 
agricultural foods, beverages and other food ingredients which are a 
product of the United States, its Territories or possessions, the 
Commonwealth of Puerto Rico, or the Trust Territories of the Pacific 
Islands (hereinafter referred to as ``the United States''), except as 
may otherwise be required by law, and shall be considered to be such a 
product if it is grown, processed, and otherwise prepared for sale or 
distribution exclusively in the United States except with respect to 
minor ingredients. Ingredients from nondomestic sources will be allowed 
to be utilized as a United States product if such ingredients are not 
otherwise:
    (1) Produced in the United States; and
    (2) Commercially available in the United States at fair and 
reasonable prices from domestic sources.
    Eligible organization, means either a Tribal organization or a 
public or nonprofit private organization having the capacity to provide 
services under this part for older Hawaiian Natives.
    Family caregiver, as used in this part, means an adult family 
member, or another individual, who is an informal provider of in-home 
and community care to an older Native American; an adult family member, 
or another individual, who is an informal provider of in-home and 
community care to an individual of any age with Alzheimer's disease or 
a related disorder with neurological and organic brain dysfunction; or 
an older relative caregiver. For purposes of this part, family 
caregiver does not include individuals whose primary relationship with 
the older adult is based on a financial or professional agreement.
    Hawaiian Native or Native Hawaiian, as used in this part, means any 
individual, any of whose ancestors were native of the area which 
consists of the Hawaiian Islands prior to 1778.
    Hawaiian Native grantee, as used in this part, means an eligible 
organization that has received funds under Title VI of the Act to 
provide services to older Hawaiians.
    Indian reservation, means the reservation of any Federally 
recognized Indian Tribe, including any band, nation, pueblo, or 
rancheria, any former reservation in Oklahoma, any community on non-
trust land under the jurisdiction of an Indian Tribe, including a band, 
nation, pueblo, or rancheria, with allotted lands, or lands subject to 
a restriction against alienation imposed by the United States, and 
Alaska Native regions established, pursuant to the Alaska Native Claims 
Settlement Act (43 U.S.C. 1601 et seq.).

[[Page 11682]]

    Indian Tribe, means any Indian Tribe, band, nation, or organized 
group or community, including any Alaska Native village, regional or 
village corporation as defined in or established pursuant to the Alaska 
Native Claims Settlement Act (43 U.S.C. 1601 et seq.) which is 
recognized as eligible for the special programs and services provided 
by the United States to Indians because of their status as Indians (25 
U.S.C. 450b).
    In-home supportive services, as used in this part, references those 
supportive services provided in the home as set forth in the Act, to 
include:
    (1) Homemaker, personal care, home care, home health, and other 
aides;
    (2) Visiting and telephone or virtual reassurance;
    (3) Chore maintenance;
    (4) Respite care for families, including adult day care as a 
respite service for families; and
    (5) Minor modification of homes that is necessary to facilitate the 
independence and health of older Native Americans and that is not 
readily available under another program.
    Major disaster declaration, as used in this part and section 310 of 
the Act (42 U.S.C. 3030), means a Presidentially declared disaster 
under the Robert T. Stafford Relief and Emergency Assistance Act (42 
U.S.C. 5121-5207).
    Means test, as used in this part in the provision of services, 
means the use of the income, assets, or other resources of an older 
Native American, family caregiver, or the households thereof to deny or 
limit that person's eligibility to receive services under this part.
    Multipurpose senior center, as used in the Act, means a community 
facility for the organization and provision of a broad spectrum of 
services, which shall include provision of health (including mental and 
behavioral health), social, nutritional, and educational services and 
the provision of facilities for recreational activities for older 
Native Americans, as practicable, including as provided via virtual 
facilities; as used in Sec.  1322.25, facilitation of services in such 
a facility.
    Native American, as used in the Act, means a person who is a member 
of any Indian Tribe, band, nation, or other organized group or 
community of Indians (including any Alaska Native village or regional 
or village corporation as defined in or established pursuant to the 
Alaska Native Claims Settlement Act (43 U.S.C. 1601 et seq.) who:
    (1) Is recognized as eligible for the special programs and services 
provided by the United States to Indians because of their status as 
Indians; or
    (2) Is located on, or in proximity to, a Federal or State 
reservation or rancheria; or is a person who is a Native Hawaiian, who 
is any individual any of whose ancestors were natives of the area which 
consists of the Hawaiian Islands prior to 1778.
    Nutrition Services Incentive Program, as used in the Act, means 
grant funding to State agencies, eligible Tribal organizations, and 
Native Hawaiian grantees to support congregate and home-delivered 
nutrition programs by providing an incentive to serve more meals.
    Older Indians, means those individuals who have attained the 
minimum age determined by the Indian Tribe for services.
    Older Native Hawaiian, means any individual, age 60 or over, who is 
a Hawaiian Native.
    Older relative caregiver, as used in section 631 of the Act (42 
U.S.C. 3057k-11), means a caregiver who is age 55 or older and lives 
with, is the informal provider of in-home and community care to, and is 
the primary caregiver for, a child or an individual with a disability;
    (1) In the case of a caregiver for a child is:
    (i) The grandparent, step-grandparent, or other relative (other 
than the parent) by blood, marriage, or adoption, of the child;
    (ii) Is the primary caregiver of the child because the biological 
or adoptive parents are unable or unwilling to serve as the primary 
caregivers of the child; and
    (iii) Has a legal relationship to the child, such as legal custody, 
adoption, or guardianship, or is raising the child informally; and
    (2) In the case of a caregiver for an individual with a disability, 
is the parent, grandparent, step-grandparent, or other relative by 
blood, marriage, or adoption of the individual with a disability.
    Program income, as defined in 2 CFR part 200.1 means gross income 
earned by the non-Federal entity that is directly generated by a 
supported activity or earned as a result of the Federal award during 
the period of performance except as provided in 2 CFR 200.307(f). 
Program income includes but is not limited to income from fees for 
services performed, the use or rental of real or personal property 
acquired under Federal awards, the sale of commodities or items 
fabricated under a Federal award, license fees and royalties on patents 
and copyrights, and principal and interest on loans made with Federal 
award funds. Interest earned on advances of Federal funds is not 
program income. Except as otherwise provided in Federal statutes, 
regulations, or the terms and conditions of the Federal award, program 
income does not include rebates, credits, discounts, and interest 
earned on any of them. See also 2 CFR 200.307, 200.407 and 35 U.S.C. 
200-212 (which applies to inventions made under Federal awards).
    Project period, as used in Sec.  1322.19, means the total time for 
which a project is approved including any extensions.
    Reservation, as used in section 305(b)(2) of the Act (42 U.S.C. 
3025(b)(2)) with respect to the designation of planning and service 
areas, means any Federally or State recognized American Indian Tribe's 
reservation, pueblo, or colony, including former reservations in 
Oklahoma, Alaska Native regions established pursuant to the Alaska 
Native Claims Settlement Act (85 Stat. 688), and Indian allotments.
    Service area, as used in Sec.  1322.5(b) and elsewhere in this 
part, means that geographic area approved by the Assistant Secretary 
for Aging in which the Tribal organization or Hawaiian Native grantee 
provides supportive, nutrition, and/or family caregiver support 
services to older Indians or Native Hawaiians residing there. Service 
areas are approved through the funding application process, which may 
include Bureau of Indian Affairs service area maps. A service area may 
include all or part of the reservation or any portion of a county or 
counties which has a common boundary with the reservation. A service 
area may also include a non-contiguous area if the designation of such 
an area will further the purpose of the Act and will provide for more 
effective administration of the program by the Tribal organization.
    Service provider, means an entity that is awarded funds, including 
via a grant, subgrant, contract, or subcontract, from a Tribal 
organization or Native Hawaiian grantee to provide direct services 
under this part.
    State agency, as used in this part, means the designated State unit 
on aging for each of the 50 States, the District of Columbia, and the 
Territories of Guam, Puerto Rico, the United States Virgin Islands, 
American Samoa, and the Commonwealth of the Northern Mariana Islands, 
unless otherwise specified.
    Title VI director, as used in this part, means a single individual 
who is the key personnel responsible for day-to-day management of the 
Title VI program and who serves as a contact point for communications 
regarding the Title VI program.

[[Page 11683]]

    Tribal organization, as used in this part, means the recognized 
governing body of any Indian Tribe, or any legally established 
organization of Indians which is controlled, sanctioned, or chartered 
by such governing body or which is democratically elected by the adult 
members of the Indian community to be served by such organization and 
which includes the maximum participation of Indians in all phases of 
its activities. Provided that in any case where a contract is let or 
grant made to an organization to perform services benefiting more than 
one Indian Tribe, the approval of each Indian Tribe shall be a 
prerequisite to the letting or making of the contract or grant (25 
U.S.C. 450b).
    Voluntary contributions, as used in section 315(b) of the Act (42 
U.S.C. 3030c-2(b)), means donations of money or other personal 
resources given freely, without pressure or coercion, by individuals 
receiving services under the Act.

Subpart B--Application


Sec.  1322.5  Application requirements.

    An eligible organization shall submit an application. The 
application shall be submitted as prescribed in section 614 of the Act 
(42 U.S.C. 3057e) and in accordance with the Assistant Secretary for 
Aging's instructions for the specified project and budget periods. In 
addition to the requirements set out in section 614 of the Act (42 
U.S.C. 3057e), the application shall provide for:
    (a) Program objectives, as set forth in section 614(a)(5) of the 
Act (42 U.S.C. 3057e(a)(5)), and any objectives established by the 
Assistant Secretary for Aging;
    (b) A map and/or description of the geographic boundaries of the 
service area proposed by the eligible organization, which may include 
Bureau of Indian Affairs service area maps;
    (c) Documentation of the ability of the eligible organization to 
deliver supportive and nutrition services to older Native Americans, or 
documentation that the eligible organization has effectively 
administered supportive and nutrition services within the last 3 years;
    (d) Assurances as prescribed by the Assistant Secretary for Aging 
that:
    (1) The eligible organization represents at least 50 individuals 
who have attained 60 years of age or older and reside in the service 
area;
    (2) The eligible organization shall comply with all applicable 
State and local license and safety requirements, if any, for the 
provision of those services;
    (3) If a substantial number of the older Native Americans residing 
in the service area are limited English proficient, the Tribal 
organization shall utilize the services of workers who are fluent in 
the language used by a predominant number of older Native Americans;
    (4) Procedures to ensure that all services under this part are 
provided without use of any means tests;
    (5) The eligible organization shall comply with all requirements 
set forth in Sec. Sec.  1322.7 through 1322.17;
    (6) The services provided under this part shall be coordinated, 
where applicable, with services provided under Title III of the Act as 
set forth in 45 CFR part 1321 and Title VII of the Act as set forth in 
45 CFR part 1324, and the eligible organization shall establish and 
follow policies and procedures as set forth in Sec.  1322.13;
    (7) The eligible organization shall have a completed needs 
assessment within the project period immediately prior to the 
application identifying the need for nutrition and supportive services 
for older Native Americans and, if applying for funds under Title VI 
part C, for family caregivers;
    (8) The eligible organization shall ensure policies and procedures 
are aligned with periodic data collection and reporting requirements, 
including ensuring service and unit definitions are consistent with 
definitions set forth in these regulations, policy guidance, and other 
information developed by the Assistant Secretary for Aging; and
    (9) The eligible organization shall complete a program evaluation 
using data as set forth by the Assistant Secretary for Aging and shall 
use findings of such program evaluation to establish and update program 
goals and objectives.
    (e) A Tribal resolution(s) authorizing the Tribal organization to 
apply for a grant under this part; and
    (f) Signature by the principal official of the Indian Tribe or 
eligible organization.


Sec.  1322.7  Application approval.

    (a) Approval of any application under section 614(e) of the Act (42 
U.S.C. 3057e(e)), shall not commit the Assistant Secretary for Aging in 
any way to make additional, supplemental, continuation, or other awards 
with respect to any approved application.
    (b) The Assistant Secretary for Aging may give first priority in 
awarding grants to grantees that have effectively administered such 
grants in the prior year.
    (c) Upon approval of an application and acceptance of the funding 
award, the Tribal organization or Hawaiian Native grantee is required 
to submit all performance and fiscal reporting as set forth by the 
Assistant Secretary for Aging on a no less than an annual basis.
    (d) If the Assistant Secretary for Aging disapproves of an 
application, the Assistant Secretary for Aging must follow procedures 
outlined in section 614(d) of the Act (42 U.S.C. 3057e(d)).


Sec.  1322.9  Hearing procedures.

    In meeting the requirements of section 614(d)(3) of the Act (42 
U.S.C. 3057e(d)(3)), if the Assistant Secretary for Aging disapproves 
an application from an eligible organization, the eligible organization 
may file a written request for a hearing with the Departmental Appeals 
Board (DAB) in accordance with 45 CFR part 16.
    (a) The request shall be postmarked or delivered in person within 
30 days of the date of the disapproval notice. If it requests a 
hearing, the eligible organization shall submit to the DAB, as part of 
the request, a full written response to each objection specified in the 
notice of disapproval, including the pertinent facts and reasons in 
support of its response, and all documentation to support its position 
as well as any documentation requested by the DAB.
    (b) Upon receipt of appeal for reconsideration of a rejected 
application or activities proposed by an applicant, the DAB will notify 
the applicant by certified mail that the appeal has been received.
    (c) The DAB may refer an appeal to its Alternative Dispute 
Resolution Division for mediation prior to making a decision. After 
consideration of the record, the DAB will issue a written decision, 
based on the record, that sets forth the reasons for the decision and 
the evidence on which it was based. A disapproval decision issued by 
the DAB represents the final determination of the Assistant Secretary 
for Aging and remains in effect unless reversed or stayed on judicial 
appeal, except that the Assistant Secretary for Aging may modify or set 
aside the decision before the record of the proceedings under this 
subpart is filed in court.
    (d) Either the eligible organization or the staff of the 
Administration on Aging may request for good cause an extension of any 
of the time limits specified in this section.

Subpart C--Service Requirements


Sec.  1322.11  Purpose of services allotments under Title VI.

    (a) Title VI of the Act authorizes the distribution of Federal 
funds to Tribal organizations and a Hawaiian Native grantee for the 
following categories of services:

[[Page 11684]]

    (1) Supportive services;
    (2) Nutrition services; and
    (3) Family caregiver support program services.
    (b) Funds authorized under these categories are for the purpose of 
assisting a Tribal organization or Hawaiian Native grantee to develop 
or enhance comprehensive and coordinated community-based systems for 
older Native Americans and family caregivers.


Sec.  1322.13  Policies and procedures.

    The Tribal organization and Hawaiian Native grantee shall ensure 
the development and implementation of policies and procedures, 
including those required as set forth in this part.
    (a) Upon approval of a program application and acceptance of 
funding, the Tribal organization or Hawaiian Native grantee must 
appoint a Title VI Director and provide appropriate contact information 
for the Title VI Director consistent with guidance from the Assistant 
Secretary for Aging.
    (b) The Tribal organization or Hawaiian Native grantee shall 
provide the Assistant Secretary for Aging with statistical and other 
information in order to meet planning, coordination, evaluation and 
reporting requirements in a timely manner and shall ensure policies and 
procedures are aligned with periodic data collection and reporting 
requirements, including ensuring service and unit definitions are 
consistent with definitions set forth in these regulations, policy 
guidance, and other information developed by the Assistant Secretary 
for Aging.
    (c) A Tribal organization or Hawaiian Native grantee must maintain 
program policies and procedures. Policies and procedures shall address:
    (1) Direct service provision, including:
    (i) Requirements for client eligibility, periodic assessment, and 
person-centered planning, where appropriate;
    (ii) Access to information and assistance to minimally address:
    (A) Establishing or having a list of all services that are 
available to older Native Americans in the service area;
    (B) Maintaining a list of services needed or requested by older 
Native Americans;
    (C) Providing assistance to older Native Americans to help them 
take advantage of available services;
    (D) Working with agencies, such as area agencies on aging and other 
programs funded by Title III and Title VII as set forth in Sec. Sec.  
1321.53 and 1321.69 of this chapter, to facilitate participation of 
older Native Americans; and
    (E) A listing and definitions of services that may be provided by 
the Tribal organization or Native Hawaiian grantee with funds received 
under the Act.
    (iii) Limitations on the frequency, amount, or type of service 
provided; and
    (iv) The grievance process for older individuals and family 
caregivers who are dissatisfied with or denied services under the Act.
    (2) Fiscal requirements including:
    (i) Voluntary contributions. Voluntary contributions, where:
    (A) Each Tribal organization or Hawaiian Native grantee shall:
    (1) Provide each older Native American with a voluntary opportunity 
to contribute to the cost of the service;
    (2) Protect the privacy of each older Native American with respect 
to their contribution;
    (3) Establish appropriate procedures to safeguard and account for 
all contributions;
    (4) Use all voluntary contributions to expand comprehensive and 
coordinated services systems supported under this part, while using 
voluntary contributions provided for nutrition services only to expand 
nutrition services, consistent with Sec.  1322.27.
    (B) Each Tribal organization or Native Hawaiian grantee may develop 
a suggested contribution schedule for services provided under this 
part. In developing a contribution schedule, the Tribal organization or 
Native Hawaiian grantee shall consider the income ranges of older 
Native Americans in the service area and the Tribal organization's or 
Hawaiian Native grantee's other sources of income. However, means tests 
may not be used.
    (C) A Tribal organization or Hawaiian Native grantee that receives 
funds under this part may not deny any older Native American a service 
because the older Native American will not or cannot contribute to the 
cost of the service.
    (ii) Buildings and equipment. Buildings and equipment, where costs 
incurred for altering or renovating, utilities, insurance, security, 
necessary maintenance, janitorial services, repair, and upkeep 
(including Federal property unless otherwise provided for) to keep 
buildings and equipment in an efficient operating condition, may be an 
allowable use of funds if:
    (A) Costs are not payable by third parties through rental or other 
agreements;
    (B) Costs support an allowed activity under Title VI part A, B, or 
C of the Act and are allocated proportionally to the benefiting grant 
program;
    (C) Constructing and acquiring activities are only allowable for 
multipurpose senior centers;
    (D) In addition to complying with 2 CFR part 200, the Tribal 
organization or Native Hawaiian grantee (and all other necessary 
parties) must file a Notice of Federal Interest in the appropriate 
official records of the jurisdiction where the property is located at 
the time of acquisition or prior to commencement of construction, as 
applicable. The Notice of Federal Interest must indicate that the 
acquisition or construction has been funded with an award under Title 
VI of the Act and that inquiries regarding the Federal Government's 
interest in the property should be directed in writing to the Assistant 
Secretary for Aging;
    (E) Altering and renovating activities are allowable for facilities 
providing services with funds provided as set forth in this part and as 
subject to 2 CFR part 200.
    (iii) Supplement, not supplant. Funds awarded under this part must 
be used to supplement, not supplant existing Federal, State, and local 
funds expended to support activities.
    (d) The Tribal organization or Hawaiian Native grantee must develop 
a monitoring process ensuring the quality and effectiveness of services 
regarding meeting participant needs, the goals outlined within the 
approved application, and Tribal organization requirements.


Sec.  1322.15  Confidentiality and disclosure of information.

    A Tribal organization or Hawaiian Native grantee shall develop and 
maintain confidentiality and disclosure procedures as follows:
    (a) A Tribal organization or Hawaiian Native grantee shall have 
procedures to ensure that no information about an older Native American 
or obtained from an older Native American by any provider of services 
is disclosed by the provider of such services in a form that identifies 
the person without the informed consent of the person or their legal 
representative, unless the disclosure is required by court order, or 
for program monitoring by authorized Federal or Tribal monitoring 
agencies.
    (b) A Tribal organization or Hawaiian Native grantee is not 
required to disclose those types of information or documents that are 
exempt from disclosure by a Federal agency under the Federal Freedom of 
Information Act (5 U.S.C. 552).
    (c) A Tribal organization or Hawaiian Native grantee shall not 
require a provider of legal assistance under this

[[Page 11685]]

part to reveal any information that is protected by attorney client 
privilege.
    (d) The Tribal organization or Hawaiian Native grantee must have 
policies and procedures that ensure that entities providing services 
under this title promote the rights of each older Native American who 
receives such services. Such rights include the right to 
confidentiality of records relating to such Native American.
    (e) A Tribal organization's or Hawaiian Native grantee's 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, as appropriate, in 
order to provide services.
    (f) A Tribal organization's or Hawaiian Native grantee's policies 
and procedures must comply with all applicable Federal laws, codes, 
rules, and regulations, including the Health Insurance Portability and 
Accountability Act (HIPAA) (42 U.S.C. 1301 et seq.), as well as 
guidance as the Tribal organization or Hawaiian Native grantee 
determines, for the collection, use, and exchange of both Personal 
Identifiable Information (PII) and personal health information in the 
provision of Title VI services under the Act.


Sec.  1322.17  Purpose of services--person- and family-centered, 
trauma-informed.

    (a) Services must be provided to older Native Americans and family 
caregivers in a manner that is person-centered, trauma-informed, and 
culturally sensitive. Services should be consistent with culturally 
appropriate holistic traditional care and responsive to their 
interests, physical and mental health, social and cultural needs, 
available supports, and desire to live where and with whom they choose. 
Person-centered services may include community-centered and family-
centered approaches consistent with the traditions, practices, beliefs, 
and cultural norms and expectations of the Tribal organization or 
Hawaiian Native grantee.
    (b) Services should, as appropriate, be consistent with culturally 
appropriate holistic traditional care and provide older Native 
Americans and family caregivers with the opportunity to develop a 
person-centered plan that is led by the individual or, if applicable, 
by the individual and the individual's authorized representative. 
Services should be incorporated into existing person-centered plans, as 
appropriate.
    (c) Tribal organizations and Hawaiian Native grantees should 
provide training to staff and volunteers on culturally appropriate 
holistic traditional care and person-centered and trauma-informed 
service provision.


Sec.  1322.19  Responsibilities of service providers.

    As a condition for receipt of funds under this part, each Tribal 
organization and Hawaiian Native grantee shall assure that providers of 
services shall:
    (a) Provide service participants with an opportunity to contribute 
to the cost of the service as provided in Sec.  1322.13(c)(2)(i);
    (b) Provide, to the extent feasible, for the furnishing of services 
under this Act, through self-direction;
    (c) With the consent of the older Native American, or their legal 
representative if there is one, or in accordance with local adult 
protective services requirements, bring to the attention of adult 
protective services or other appropriate officials for follow-up, 
conditions or circumstances which place the older Native American, or 
the household of the older Native American, in imminent danger;
    (d) Where feasible and appropriate, make arrangements for the 
availability of services to older Native Americans and family 
caregivers in weather-related and other emergencies;
    (e) Assist participants in taking advantage of benefits under other 
programs;
    (f) Assure that all services funded under this part are coordinated 
with other appropriate services in the community, and that these 
services do not constitute an unnecessary duplication of services 
provided by other sources; and
    (g) Receive training to provide services in a culturally competent 
manner and consistent with Sec. Sec.  1322.13 through 1322.17.


Sec.  1322.21  Client eligibility for participation.

    (a) An individual must have attained the minimum age determined by 
the Tribal organization or Hawaiian Native grantee as specified in 
their approved application, to be eligible to participate in services 
under the Act, unless the Act otherwise provides an explicit exception. 
Exceptions are limited to the following specific services:
    (1) Nutrition services:
    (i) Services shall be available to spouses of any age of older 
Native Americans;
    (ii) Services may be available to:
    (A) A person with a disability who lives with an adult, age 60 or 
older, or who resides in a housing facility that is primarily occupied 
by older adults at which congregate meals are served; and
    (B) A volunteer during meal hours.
    (2) Family caregiver support services for:
    (i) Adults caring for older Native Americans or individuals of any 
age with Alzheimer's or related disorder;
    (ii) Older relative caregivers who are caring for children and are 
not the biological or adoptive parent of the child, where older 
relative caregivers shall no longer be eligible for services under this 
part when the child reaches 18 years of age; or
    (iii) Older relative caregivers who are caring for individuals age 
18 to 59 with disabilities, and who may be of any relationship, 
including the biological or adoptive parent.
    (3) Services such as information and assistance and public 
education, where recipients of information may not be older Native 
Americans, but the information is targeted to those who are older 
Native Americans and/or benefits those who are older Native Americans.
    (b) A Tribal organization or Hawaiian Native grantee may develop 
further eligibility requirements for implementation of services for 
older Native Americans and family caregivers, consistent with the Act 
and all applicable Federal requirements. Such requirements may include:
    (1) Assessment of functional and support needs;
    (2) Geographic boundaries;
    (3) Limitations on number of persons that may be served;
    (4) Limitations on number of units of service that may be provided;
    (5) Limitations due to availability of staff/volunteers;
    (6) Limitations to avoid duplication of services;
    (7) Specification of settings where services shall or may be 
provided;
    (8) Whether to serve Native Americans who have Tribal or Native 
Hawaiian membership other than those who are specified in the Tribal 
organization's or Hawaiian Native grantee's approved application; and
    (9) Whether to serve older individuals or family caregivers who are 
non-Native Americans but live within the approved service area and are 
considered members of the community by the Tribal organization.


Sec.  1322.23  Client and service priority.

    (a) The Tribal organization or Hawaiian Native grantee shall ensure 
service to those identified as members of priority groups through their 
assessment of local needs and resources.
    (b) The Tribal organization or Hawaiian Native grantee shall 
identify criteria for being given priority in the delivery of services 
under Title VI, parts

[[Page 11686]]

A or B, consistent with the Act and all applicable Federal 
requirements.
    (c) The Tribal organization or Hawaiian Native grantee shall 
identify criteria for being given priority in the delivery of services 
under Title VI, part C, consistent with the Act and all applicable 
Federal requirements:
    (1) Caregivers who are older Native Americans with greatest social 
need, and older Native Americans with greatest economic need (with 
particular attention to low-income older individuals);
    (2) Caregivers who provide care for individuals with Alzheimer's 
disease and related disorders with neurological and organic brain 
dysfunction; and
    (3) When serving older relative caregivers, older relative 
caregivers of children or adults with severe disabilities shall be 
given priority.


Sec.  1322.25  Supportive services.

    (a) Supportive services are community-based interventions as set 
forth in Title VI of the Act, are intended to be comparable to such 
services set forth under Title III, and meet standards established by 
the Assistant Secretary for Aging. They include in-home supportive 
services, access services, which may include multipurpose senior 
centers, and legal services.
    (b) A Tribal organization or Hawaiian Native grantee may provide 
any of the supportive services mentioned under Title III of the Act, 
and any other supportive services that are necessary for the general 
welfare of older Native Americans and older Hawaiian Natives.
    (c) A Tribal organization or Hawaiian Native grantee may allow use 
of Title VI, part A and B funds, respectively, for acquiring, altering 
or renovating, or constructing facilities to serve as multipurpose 
senior centers, in accordance with guidance as set forth by the 
Assistant Secretary for Aging.
    (d) For those Title VI, parts A and B services intended to benefit 
family caregivers, a Tribal organization or Hawaiian Native grantee, 
respectively, shall ensure that there is coordination and no 
duplication of such services available under Title VI, part C or Title 
III.
    (e) If a Tribal organization or Hawaiian Native grantee elects to 
provide legal services, it shall comply with the requirements in Sec.  
1321.93 of this chapter and legal services providers shall comply fully 
with the requirements in Sec.  1321.93(f) of this chapter.


Sec.  1322.27  Nutrition services.

    (a) Nutrition services are community-based interventions as set 
forth in Title VI, parts A and B of the Act, and as further defined by 
the Assistant Secretary for Aging. Nutrition services include 
congregate meals, home-delivered meals, nutrition education, nutrition 
counseling, and other nutrition services.
    (1) Congregate meals are meals meeting the Dietary Guidelines for 
Americans and Dietary Reference Intakes as set forth in section 339 of 
the Act (42 U.S.C. 3030g-21) provided by a qualified nutrition service 
provider to eligible individuals and consumed while congregating 
virtually, in-person, or in community off-site.
    (2) Home-delivered meals are meals meeting the Dietary Guidelines 
for Americans and Dietary Reference Intakes as set forth in section 339 
of the Act (42 U.S.C. 3030g-21) provided by a qualified nutrition 
service provider to eligible individuals and consumed at their 
residence or otherwise outside of a congregate setting, as organized by 
a service provider under the Act. Meals may be provided via home 
delivery, pick-up, carry-out or drive-through, or through other service 
as determined by the Tribal organization or Hawaiian Native grantee.
    (i) Eligibility criteria for home-delivered meals, as determined by 
the Tribal organization or Hawaiian Native grantee, may include 
consideration of an individual's ability to leave home unassisted, 
ability to shop for and prepare nutritious meals, degree of disability, 
or other relevant factors pertaining to their need for the service.
    (ii) Home-delivered meals providers may encourage meal participants 
to attend congregate meal sites and other health and wellness 
activities, as feasible, based on a person-centered approach and local 
service availability.
    (3) Nutrition education is information provided which provides 
individuals with the knowledge and skills to make healthy food and 
beverage choices. Congregate and home-delivered nutrition services may 
provide nutrition education, as appropriate, based on the needs of meal 
participants.
    (4) Nutrition counseling is a standardized service provided which 
must align with the Academy of Nutrition and Dietetics. Congregate and 
home-delivered nutrition services may provide nutrition counseling, as 
appropriate, based on the needs of meal participants.
    (5) Other nutrition services include additional services that may 
be provided to meet nutritional needs or preferences, such as weighted 
utensils, supplemental foods, or food items, based on the needs of 
eligible participants.
    (b) The Tribal organization or Hawaiian Native grantee shall 
provide congregate meals and home-delivered meals to eligible 
participants and may provide nutrition education, nutrition counseling, 
and other nutrition services, as available. As set forth in section 
614(a)(8) of the Act (42 U.S.C. 3057e(a)(8)), if the need for nutrition 
services is met from other sources, the Tribal organization or Hawaiian 
Native grantee may use the available funding under the Act for 
supportive services.
    (c) Nutrition Services Incentive Program allocations are available 
to a Tribal organization or Hawaiian Native grantee that provides 
nutrition services where:
    (1) Nutrition Services Incentive Program allocation amounts are 
based on the number of meals reported by the Tribal organization or 
Hawaiian Native grantee which meet the following requirements:
    (i) The meal is served to an individual who is eligible to receive 
services under the Act;
    (ii) The meal is served to an individual who has not been means-
tested to receive the meal;
    (iii) The meal is served to an individual who has been provided the 
opportunity to provide a voluntary contribution to the cost of service;
    (iv) The meal meets the other requirements of the Act, including 
that the meal meets the Dietary Guidelines for Americans and Dietary 
Reference Intakes as set forth in section 339 of the Act (42 U.S.C. 
3030g-21); and
    (v) The meal is served by an agency that is, or has a grant or 
contract with, a Tribal organization or Hawaiian Native grantee.
    (2) The Tribal organization or Hawaiian Native grantee may choose 
to receive their Nutrition Services Incentive Program grant as cash, 
commodities, or a combination of cash and commodities.
    (3) Nutrition Services Incentive Program funds may only be used to 
purchase domestically produced foods used in a meal as set forth under 
the Act.
    (d) Where applicable, the Tribal organization or Hawaiian Native 
grantee shall work with agencies responsible for administering 
nutrition and other programs to facilitate participation of older 
Native Americans.


Sec.  1322.29  Family caregiver support services.

    (a) Family caregiver support services are community-based 
interventions set forth in Title VI, part C of the Act, which meet 
standards set forth by the Assistant Secretary for Aging and which

[[Page 11687]]

may be informed through the use of an evidence-informed or evidence-
based caregiver assessment, including:
    (1) Information to caregivers about available services via public 
education;
    (2) Assistance to caregivers in gaining access to the services 
through:
    (i) Individual information and assistance; or
    (ii) Case management or care coordination.
    (3) Individual counseling, organization of support groups, and 
caregiver training to assist the caregivers in those areas in which 
they provide support, including health, nutrition, complex medical 
care, and financial literacy, and in making decisions and solving 
problems relating to their caregiving roles;
    (4) Respite care to enable caregivers to be temporarily relieved 
from their caregiving responsibilities; and
    (5) Supplemental services, on a limited basis, to complement the 
care provided by caregivers. A Tribal organization or Hawaiian Native 
grantee shall define ``limited basis'' for supplemental services and 
may consider limiting units, episodes or expenditure amounts when 
making this determination.
    (b) The Title VI Native American Family Caregiver Support Program 
is intended to serve unpaid family caregivers and to provide services 
to caregivers, not to the people for whom they care. Its primary 
purpose is not to pay for care for an elder. However, respite care may 
be provided to an unpaid family caregiver.
    (c) To provide services listed in paragraphs (a)(4) and (5) of this 
section to caregivers of older Native Americans or of individuals of 
any age with Alzheimer's disease or a related disorder, the individual 
for whom they are caring must be determined to be functionally impaired 
because the individual:
    (1) Is unable to perform at least two activities of daily living 
without substantial assistance, including verbal reminding, physical 
cueing, or supervision;
    (2) At the option of the Tribal organization or Hawaiian Native 
grantee, is unable to perform at least three such activities without 
such assistance; or
    (3) Due to a cognitive or other mental impairment, requires 
substantial supervision because the individual behaves in a manner that 
poses a serious health or safety hazard to the individual or to another 
individual.


Sec.  1322.31  Title VI and Title III coordination.

    (a) A Tribal organization or Hawaiian Native grantee under Title VI 
of the Act must have policies and procedures, developed in coordination 
with the relevant State agency, area agency or agencies, and service 
provider(s) that explain how the Title VI program will coordinate with 
Title III and/or VII funded services within the Tribal organization's 
or Hawaiian Native grantee's approved service area for which older 
Native Americans and family caregivers are eligible to ensure 
compliance with sections 614(a)(11) and 624(a)(3) of the Act (42 U.S.C. 
3057e(a)(11) and 3057j(a)(3)), respectively. A Tribal organization or 
Hawaiian Native grantee may meet these requirements by participating in 
Tribal consultation with the State agency regarding Title VI programs.
    (b) The policies and procedures set forth in paragraph (a) of this 
section must at a minimum address:
    (1) How the Tribal organization or Hawaiian Native grantee will 
provide outreach to Tribal elders and family caregivers regarding 
services for which they may be eligible under Title III and/or VII of 
the Act;
    (2) The communication opportunities the Tribal organization or 
Hawaiian Native grantee will make available to Title III and VII 
programs, to include meetings, email distribution lists, and 
presentations;
    (3) The methods for collaboration on and sharing of program 
information and changes;
    (4) How Title VI programs may refer individuals who are eligible 
for Title III services;
    (5) How services will be provided in a culturally appropriate and 
trauma-informed manner; and
    (6) Processes the Title VI program will use for providing feedback 
on the State plan on aging and any area plans on aging relevant to the 
Tribal organization's or Hawaiian Native grantee's approved service 
area.
    (c) The Title VI program director, as set forth in Sec.  
1322.13(a), shall participate in the development of policies and 
procedures as set forth in Sec. Sec.  1321.53, 1321.69, and 1321.95 of 
this chapter.

Subpart D--Emergency and Disaster Requirements


Sec.  1322.33  Coordination with Tribal, State, and local emergency 
management.

    A Tribal organization or Hawaiian Native grantee shall establish 
emergency plans. Such plans must include, at a minimum:
    (a) A continuity of operations plan and an all-hazards emergency 
response plan based on completed risk assessments for all hazards and 
updated annually;
    (b) A plan to coordinate activities with the State agency, any area 
agencies on aging providing Title III and VII funded services within 
the Tribal organization's or Hawaiian Native grantee's approved service 
area, local emergency response and management agencies, relief 
organizations, local governments, other State agencies responsible for 
emergency and disaster preparedness, and any other institutions that 
have responsibility for disaster relief service delivery;
    (c) Processes for developing and updating long-range emergency and 
disaster preparedness plans; and
    (d) Other relevant information as determined by the Tribal 
organization or Hawaiian Native grantee.


Sec.  1322.35  Flexibilities under a major disaster declaration.

    (a) If a State or Indian Tribe requests and receives a major 
disaster declaration under the Stafford Act (42 U.S.C. 5121-5207), the 
Tribal organization or Hawaiian Native grantee may use disaster relief 
flexibilities as set forth in this section to provide disaster relief 
services within its approved service area for areas of the State or 
Indian Tribe where the specific major disaster declaration is 
authorized and where older Native Americans and family caregivers are 
affected.
    (b) Flexibilities a Tribal organization or Hawaiian Native grantee 
may exercise under a major disaster declaration include allowing use of 
any portion of the funds of any open grant awards under Title VI of the 
Act for disaster relief services for older individuals and family 
caregivers.
    (c) Disaster relief services may include any allowable services 
under the Act to eligible older Native Americans or family caregivers 
during the period covered by the major disaster declaration.
    (d) Expenditures of funds under disaster relief flexibilities must 
be reported separately from the grant where funding was expended. A 
Tribal organization or Hawaiian Native grantee may expend funds from 
any source within open grant awards under Title VI of the Act but must 
track the source of all expenditures.
    (e) A Tribal organization or Hawaiian Native grantee must have 
policies and procedures outlining eligibility, use, and reporting of 
services and funds provided under these flexibilities.
    (f) A Tribal organization or Hawaiian Native grantee may only make 
obligations exercising this flexibility during the major disaster 
declaration incident period or 90 days thereafter or

[[Page 11688]]

with prior approval from the Assistant Secretary for Aging.


Sec.  1322.37  Title VI and Title III coordination for emergency and 
disaster preparedness.

    A Tribal organization or Hawaiian Native grantee under Title VI of 
the Act and State and area agencies funded under Title III of the Act 
should coordinate in emergency and disaster preparedness planning, 
response, and recovery. A Tribal organization or Hawaiian Native 
grantee must have policies and procedures in place for how they will 
communicate and coordinate with State agencies and area agencies 
regarding emergency and disaster preparedness planning, response, and 
recovery.


Sec.  1322.39  Modification during major disaster declaration or public 
health emergency.

    The Assistant Secretary for Aging retains the right to modify the 
requirements described in these regulations pursuant to a major 
disaster declaration or public health emergency.

PART 1323--[REMOVED]

0
3. Under the authority of 42 U.S.C. 3001 et seq., remove part 1323.


0
4. Revise part 1324 to read as follows:

PART 1324--ALLOTMENTS FOR VULNERABLE ELDER RIGHTS PROTECTION 
ACTIVITIES

Sec.
Subpart A--State Long-Term Care Ombudsman Program
1324.1 Definitions.
1324.11 Establishment of the Office of the State Long-Term Care 
Ombudsman.
1324.13 Functions and responsibilities of the State Long-Term Care 
Ombudsman.
1324.15 State agency responsibilities related to the Ombudsman 
program.
1324.17 Responsibilities of agencies hosting local Ombudsman 
entities.
1324.19 Duties of the representatives of the Office.
1324.21 Conflicts of interest.
Subpart B--Programs for Prevention of Elder Abuse, Neglect, and 
Exploitation
1324.201 State agency responsibilities for the prevention of elder 
abuse, neglect, and exploitation.
Subpart C--State Legal Assistance Development
1324.301 Definitions.
1324.303 Legal Assistance Developer.

    Authority: 42 U.S.C. 3001 et seq.

Subpart A--State Long-Term Care Ombudsman Program


Sec.  1324.1  Definitions.

    The following definitions apply to this part:
    Immediate family, pertaining to conflicts of interest as used in 
section 712 of the Older Americans Act (the Act) (42 U.S.C. 3058g), 
means a member of the household or a relative with whom there is a 
close personal or significant financial relationship.
    Office of the State Long-Term Care Ombudsman, as used in sections 
711 and 712 of the Act (42 U.S.C. 3058f and 3058g), means the 
organizational unit in a State or Territory which is headed by a State 
Long-Term Care Ombudsman.
    Official duties, as used in section 712 of the Act (42 U.S.C. 
3058g) with respect to representatives of the Long-Term Care Ombudsman 
Program, means work pursuant to the Long-Term Care Ombudsman Program 
authorized by the Act, subpart A of this part, and/or State law and 
carried out under the auspices and general direction of, or by direct 
delegation from, the State Long-Term Care Ombudsman.
    Representatives of the Office of the State Long-Term Care 
Ombudsman, as used in sections 711 and 712 of the Act (42 U.S.C. 3058f 
and 3058g), means the employees or volunteers designated by the 
Ombudsman to fulfill the duties set forth in Sec.  1324.19(a), whether 
personnel supervision is provided by the Ombudsman or their designees 
or by an agency hosting a local Ombudsman entity designated by the 
Ombudsman pursuant to section 712(a)(5) of the Act (42 U.S.C. 
3058g(a)(5)).
    Resident representative means any of the following:
    (1) An individual chosen by the resident to act on behalf of the 
resident in order to support the resident in decision-making; access 
the resident's medical, social, or other personal information; manage 
the resident's financial matters; or receive notifications pertaining 
to the resident;
    (2) A person authorized by State or Federal law (including but not 
limited to agents under power of attorney, representative payees, and 
other fiduciaries) to act on behalf of the resident in order to support 
the resident in decision-making; access the resident's medical, social 
or other personal information; manage the resident's financial matters; 
or receive notifications pertaining to the resident;
    (3) Legal representative, as used in section 712 of the Act (42 
U.S.C. 3058g);
    (4) The court-appointed guardian or conservator of a resident;
    (5) Nothing in this rule is intended to expand the scope of 
authority of any resident representative beyond that authority 
specifically authorized by the resident, State or Federal law, or a 
court of competent jurisdiction.
    State Long-Term Care Ombudsman, or Ombudsman, as used in sections 
711 and 712 of the Act (42 U.S.C. 3058f and 3058g), means the 
individual who heads the Office and is responsible to personally, or 
through representatives of the Office, fulfill the functions, 
responsibilities and duties set forth in Sec. Sec.  1324.13 and 
1324.19.
    State Long-Term Care Ombudsman program, Ombudsman program, or 
program, as used in sections 711 and 712 of the Act (42 U.S.C. 3058f 
and 3058g), means the program through which the functions and duties of 
the Office are carried out, consisting of the Ombudsman, the Office 
headed by the Ombudsman, and the representatives of the Office.
    Willful interference means actions or inactions taken by an 
individual in an attempt to intentionally prevent, interfere with, or 
attempt to impede the Ombudsman from performing any of the functions or 
responsibilities set forth in Sec.  1324.13, or the Ombudsman or a 
representative of the Office from performing any of the duties set 
forth in Sec.  1324.19.


Sec.  1324.11  Establishment of the Office of the State Long-Term Care 
Ombudsman.

    (a) The Office of the State Long-Term Care Ombudsman shall be an 
entity headed by the State Long-Term Care Ombudsman, who shall carry 
out all of the functions and responsibilities set forth in Sec.  
1324.13 and, directly and/or through local Ombudsman entities, the 
duties set forth in Sec.  1324.19.
    (b) The State agency shall establish the Office and thereby carry 
out the Long-Term Care Ombudsman Program in either of the following 
ways:
    (1) The Office is a distinct entity, separately identifiable, and 
located within or connected to the State agency; or
    (2) The State agency enters into a contract or other arrangement 
with any public agency or nonprofit organization which shall establish 
a separately identifiable, distinct entity as the Office.
    (c) The State agency shall require that the Ombudsman serve on a 
full-time basis. In providing leadership and management of the Office, 
the functions, responsibilities, and duties, as set forth in Sec. Sec.  
1324.13 and 1324.19 are to constitute the entirety of the Ombudsman's 
work. The State agency or other agency carrying out the Office shall 
not require or request the

[[Page 11689]]

Ombudsman to be responsible for leading, managing or performing the 
work of non-ombudsman services or programs except on a time-limited, 
intermittent basis.
    (1) This provision does not limit the authority of the Ombudsman 
program to provide ombudsman services to populations other than 
residents of long-term care facilities so long as the appropriations 
under the Act are utilized to serve residents of long-term care 
facilities, as authorized by the Act.
    (2) [Reserved]
    (d) The State agency, and other entity selecting the Ombudsman, if 
applicable, shall ensure that the Ombudsman meets minimum 
qualifications which shall include, but not be limited to, demonstrated 
expertise in:
    (1) Long-term services and supports or other direct services for 
older individuals or individuals with disabilities;
    (2) Consumer-oriented public policy advocacy;
    (3) Leadership and program management skills; and
    (4) Negotiation and problem resolution skills.
    (e) Where the Ombudsman has the legal authority to do so, they 
shall establish policies and procedures, in consultation with the State 
agency, to carry out the Ombudsman program in accordance with the Act. 
Where State law does not provide the Ombudsman with legal authority to 
establish policies and procedures, the Ombudsman shall recommend 
policies and procedures to the State agency or other agency in which 
the Office is organizationally located, and such agency shall establish 
Ombudsman program policies and procedures as recommended by the 
Ombudsman. Where local Ombudsman entities are designated within area 
agencies on aging or other entities, the Ombudsman and/or appropriate 
agency shall develop such policies and procedures in consultation with 
the agencies hosting local Ombudsman entities, area agencies on aging, 
and representatives of the Office. The policies and procedures must 
address the following:
    (1) Program administration. Policies and procedures regarding 
program administration must include, but not be limited to:
    (i) A requirement that the agency in which the Office is 
organizationally located must not have personnel policies or practices 
that prohibit the Ombudsman from performing the functions and 
responsibilities of the Ombudsman, as set forth in Sec.  1324.13, or 
from adhering to the requirements of section 712 of the Act (42 U.S.C. 
3058g). Nothing in this provision shall prohibit such agency from 
requiring that the Ombudsman, or other employees or volunteers of the 
Office, adhere to the personnel policies and procedures of the entity 
which are otherwise lawful.
    (ii) A requirement that an agency hosting a local Ombudsman entity 
must not have personnel policies or practices which prohibit a 
representative of the Office from performing the duties of the 
Ombudsman program or from adhering to the requirements of section 712 
of the Act (42 U.S.C. 3058g). Nothing in this provision shall prohibit 
such agency from requiring that representatives of the Office adhere to 
the personnel policies and procedures of the host agency which are 
otherwise lawful.
    (iii) A requirement that the Ombudsman shall, on a regular basis, 
monitor the performance of local Ombudsman entities which the Ombudsman 
has designated to carry out the duties of the Office.
    (iv) A description of the process by which the agencies hosting 
local Ombudsman entities will coordinate with the Ombudsman in the 
employment or appointment of representatives of the Office.
    (v) Standards to ensure that the Office and/or local Ombudsman 
entities provide prompt response to complaints, with priority given to 
complaints regarding abuse, neglect, exploitation, and complaints that 
are time sensitive. At a minimum, the standards shall require 
consideration of the severity of the risk to the resident, the 
imminence of the threat of or potential harm to the resident, and the 
opportunity for mitigating harm to the resident through provision of 
Ombudsman program services.
    (vi) Procedures that clarify appropriate fiscal responsibilities of 
the local Ombudsman entity, including but not limited to clarifications 
regarding access to programmatic fiscal information by appropriate 
representatives of the Office.
    (vii) Procedures that establish standard retention periods for 
files, records, and other information maintained by the Ombudsman 
program and allowable methods of storage and destruction.
    (2) Procedures for access. Policies and procedures regarding timely 
access to facilities, residents, and appropriate records (regardless of 
format and including, upon request, copies of such records) by the 
Ombudsman and representatives of the Office must include, but not be 
limited to:
    (i) Access to enter all long-term care facilities at any time 
during a facility's regular business hours or regular visiting hours, 
and at any other time when access may be required by the circumstances 
to be investigated;
    (ii) Access to all residents to perform the functions and duties 
set forth in Sec. Sec.  1324.13 and 1324.19;
    (iii) Access to the name and contact information of the resident 
representative, if any, where needed to perform the functions and 
duties set forth in Sec. Sec.  1324.13 and 1324.19;
    (iv) Access to review the medical, social, and other records 
relating to a resident, if:
    (A) The resident or resident representative communicates informed 
consent to the access and the consent is given in writing or through 
the use of auxiliary aids and services;
    (B) The resident or resident representative communicates informed 
consent orally, visually, or through the use of auxiliary aids and 
services, and such consent is documented contemporaneously by a 
representative of the Office in accordance with such procedures;
    (C) The resident is unable to communicate consent to the review and 
has no legal representative, and the representative of the Office 
obtains the approval of the Ombudsman; or
    (D) Access is necessary in order to investigate a complaint, the 
resident representative refuses to consent to the access, a 
representative of the Office has reasonable cause to believe that the 
resident representative is not acting in the best interests of the 
resident, and the representative of the Office obtains the approval of 
the Ombudsman.
    (v) Access to the administrative records, policies, and documents, 
to which the residents have, or the general public has access, of long-
term care facilities;
    (vi) Access of the Ombudsman to, and, upon request, copies of all 
licensing and certification records maintained by the State with 
respect to long-term care facilities; and
    (vii) Reaffirmation that the Health Insurance Portability and 
Accountability Act of 1996 (HIPAA) Privacy Rule (42 U.S.C. 1301 et 
seq.), 45 CFR part 160 and 45 CFR part 164, subparts A and E, does not 
preclude release by covered entities of resident private health 
information or other resident identifying information to the Ombudsman 
program, including but not limited to residents' medical, social, or 
other records, a list of resident names and room numbers, or 
information collected in the course of a State or Federal survey or 
inspection process.
    (3) Disclosure. Policies and procedures regarding disclosure of 
files, records, and other information

[[Page 11690]]

maintained by the Ombudsman program must include, but not be limited 
to:
    (i) Provision that the files, records, and information maintained 
by the Ombudsman program may be disclosed only at the discretion of the 
Ombudsman or designee of the Ombudsman for such purpose and in 
accordance with the criteria developed by the Ombudsman, as required by 
Sec.  1324.13(e);
    (ii) Prohibition of the disclosure of identifying information of 
any resident with respect to whom the Ombudsman program maintains 
files, records, or information, except as otherwise provided by Sec.  
1324.19(b)(5) through (8), unless:
    (A) The resident or the resident representative communicates 
informed consent to the disclosure and the consent is given in writing 
or through the use of auxiliary aids and services;
    (B) The resident or resident representative communicates informed 
consent orally, visually, or through the use of auxiliary aids and 
services and such consent is documented contemporaneously by a 
representative of the Office in accordance with such procedures; or
    (C) The disclosure is required by court order.
    (iii) Prohibition of the disclosure of identifying information of 
any complainant with respect to whom the Ombudsman program maintains 
files, records, or information, unless:
    (A) The complainant communicates informed consent to the disclosure 
and the consent is given in writing or through the use of auxiliary 
aids and services;
    (B) The complainant communicates informed consent orally, visually, 
or through the use of auxiliary aids and services and such consent is 
documented contemporaneously by a representative of the Office in 
accordance with such procedures; or
    (C) The disclosure is required by court order.
    (iv) Standard criteria for making determinations about disclosure 
of resident information when the resident is unable to provide consent 
and there is no resident representative or the resident representative 
refuses consent as set forth in Sec.  1324.19(b)(5) through (8);
    (v) Prohibition on requirements for mandatory reporting abuse, 
neglect, or exploitation to adult protective services or any other 
entity, long-term care facility, or other concerned person, including 
when such reporting would disclose identifying information of a 
complainant or resident without appropriate consent or court order, 
except as otherwise provided in Sec.  1324.19(b)(5) through (8); and
    (vi) Adherence to the provisions of paragraph (e)(3) of this 
section, regardless of the source of the request for information or the 
source of funding for the services of the Ombudsman program, 
notwithstanding section 705(a)(6)(C) of the Act (42 U.S.C. 
3058d(a)(6)(C)).
    (4) Conflicts of interest. Policies and procedures regarding 
conflicts of interest must establish mechanisms to identify and remove 
or remedy conflicts of interest as provided in Sec.  1324.21, 
including:
    (i) Ensuring that no individual, or member of the immediate family 
of an individual, involved in the employment or appointment of the 
Ombudsman has or may have a conflict of interest;
    (ii) Requiring that other agencies in which the Office or local 
Ombudsman entities are organizationally located have policies in place 
to prohibit the employment or appointment of an Ombudsman or a 
representative of the Office who has or may have a conflict that cannot 
be adequately removed or remedied;
    (iii) Requiring that the Ombudsman take reasonable steps to refuse, 
suspend, or remove designation of an individual who has a conflict of 
interest, or who has a member of the immediate family who has or may 
have a conflict of interest, which cannot be removed or remedied;
    (iv) Establishing the methods by which the Office and/or State 
agency will periodically review and identify conflicts of the Ombudsman 
and representatives of the Office; and
    (v) Establishing the actions the Office and/or State agency will 
require the Ombudsman or representatives of the Office to take in order 
to remedy or remove such conflicts.
    (5) Systems advocacy. Policies and procedures related to systems 
advocacy must assure that the Office is required and has sufficient 
authority to carry out its responsibility to analyze, comment on, and 
monitor the development and implementation of Federal, State, and local 
laws, regulations, and other government policies and actions that 
pertain to long-term care facilities and services and to the health, 
safety, welfare, and rights of residents, and to recommend any changes 
in such laws, regulations, and policies as the Office determines to be 
appropriate.
    (i) Such procedures must exclude the Ombudsman and representatives 
of the Office from any State lobbying prohibitions to the extent that 
such requirements are inconsistent with section 712 of the Act (42 
U.S.C. 3058g).
    (ii) Nothing in this part shall prohibit the Ombudsman or the State 
agency or other agency in which the Office is organizationally located 
from establishing policies which promote consultation regarding the 
determinations of the Office related to recommended changes in laws, 
regulations, and policies. However, such a policy shall not require a 
right to review or pre-approve positions or communications of the 
Office.
    (6) Designation. Policies and procedures related to designation 
must establish the criteria and process by which the Ombudsman shall 
designate and/or refuse, suspend, or remove designation of local 
Ombudsman entities and representatives of the Office.
    (i) Such criteria should include, but not be limited to, the 
authority to refuse, suspend, or remove designation of a local 
Ombudsman entity or representative of the Office in situations in which 
an identified conflict of interest cannot be removed or remedied as set 
forth in Sec.  1324.21.
    (ii) [Reserved]
    (7) Grievance process. Policies and procedures related to 
grievances must establish a grievance process for the receipt and 
review of grievances regarding the determinations or actions of the 
Ombudsman and representatives of the Office.
    (i) Such process shall include an opportunity for reconsideration 
of the Ombudsman decision to refuse, suspend, or remove designation of 
a local Ombudsman entity or representative of the Office. 
Notwithstanding the grievance process, the Ombudsman shall make the 
final determination to designate or to refuse, suspend, or remove 
designation of a local Ombudsman entity or representative of the 
Office.
    (ii) [Reserved]
    (8) Determinations of the Office. Policies and procedures related 
to the determinations of the Office must ensure that the Ombudsman, as 
head of the Office, shall be able to independently make determinations 
and establish positions of the Office, and carry out the functions and 
responsibilities authorized by Sec.  1324.13 without interference and 
shall not be constrained by or necessarily represent the determinations 
or positions of the State agency or other agency in which the Office is 
organizationally located.
    (9) Emergency planning. Policies and procedures related to 
emergency planning must include continuity of operations procedures 
using an all-hazards approach, and coordination with emergency 
management agencies.

[[Page 11691]]

Sec.  1324.13  Functions and responsibilities of the State Long-Term 
Care Ombudsman.

    The Ombudsman, as head of the Office, shall have responsibility and 
authority for the leadership and management of the Office in 
coordination with the State agency, and, where applicable, any other 
agency carrying out the Ombudsman program, as follows.
    (a) Functions. The Ombudsman shall, personally or through 
representatives of the Office:
    (1) Identify, investigate, and resolve complaints that:
    (i) Are made by, or on behalf of, residents; and
    (ii) Relate to action, inaction, or decisions, that may adversely 
affect the health, safety, welfare, or rights of residents (including 
the welfare and rights of residents with respect to the appointment and 
activities of resident representatives) of:
    (A) Providers, or representatives of providers, of long-term care;
    (B) Public agencies; or
    (C) Health and social service agencies.
    (2) Provide services to protect the health, safety, welfare, and 
rights of the residents;
    (3) Inform residents about means of obtaining services provided by 
the Ombudsman program;
    (4) Ensure that residents have regular and timely access to the 
services provided through the Ombudsman program and that residents and 
complainants receive timely responses from representatives of the 
Office to requests for information and complaints;
    (5) Represent the interests of residents before governmental 
agencies, assure that individual residents have access to, and pursue 
(as the Ombudsman determines as necessary and consistent with resident 
interests) administrative, legal, and other remedies to protect the 
health, safety, welfare, and rights of residents;
    (6) Provide administrative and technical assistance to 
representatives of the Office and agencies hosting local Ombudsman 
entities;
    (7)(i) Analyze, comment on, and monitor the development and 
implementation of Federal, State, and local laws, regulations, and 
other governmental policies and actions, that pertain to the health, 
safety, welfare, and rights of the residents, with respect to the 
adequacy of long-term care facilities and services in the State;
    (ii) Recommend any changes in such laws, regulations, policies, and 
actions as the Office determines to be appropriate;
    (iii) Facilitate public comment on the laws, regulations, policies, 
and actions;
    (iv) Provide leadership to statewide systems advocacy efforts of 
the Office on behalf of long-term care facility residents, including 
coordination of systems advocacy efforts carried out by representatives 
of the Office;
    (v) Provide information to public and private agencies, 
legislators, the media, and other persons, regarding the problems and 
concerns of residents and recommendations related to the problems and 
concerns;
    (vi) Such determinations and positions shall be those of the Office 
and shall not necessarily represent the determinations or positions of 
the State agency or other agency in which the Office is 
organizationally located;
    (vii) In carrying out systems advocacy efforts of the Office on 
behalf of long-term care facility residents and pursuant to the receipt 
of grant funds under the Act, the provision of information, 
recommendations of changes of laws to legislators, and recommendations 
of changes to government agency regulations and policies by the 
Ombudsman or representatives of the Office do not constitute lobbying 
activities as defined by 45 CFR part 93.
    (8) Coordinate with and promote the development of citizen 
organizations consistent with the interests of residents; and
    (9) Promote, provide technical support for the development of, and 
provide ongoing support as requested by resident and family councils to 
protect the well-being and rights of residents.
    (b) Responsibilities. The Ombudsman shall be the head of a unified 
statewide Long-Term Care Ombudsman Program and shall:
    (1) Establish or recommend policies, procedures, and standards for 
administration of the Ombudsman program pursuant to Sec.  1324.11(e);
    (2) Require representatives of the Office to fulfill the duties set 
forth in Sec.  1324.19 in accordance with Ombudsman program policies 
and procedures.
    (c) Designation. The Ombudsman shall determine designation and 
refusal, suspension, or removal of designation, of local Ombudsman 
entities and representatives of the Office pursuant to section 
712(a)(5) of the Act (42 U.S.C. 3058g(a)(5)) and the policies and 
procedures set forth in Sec.  1324.11(e)(6).
    (1) If an Ombudsman chooses to designate local Ombudsman entities, 
the Ombudsman shall:
    (i) Designate local Ombudsman entities to be organizationally 
located within public or non-profit private entities;
    (ii) Review and approve plans or contracts governing local 
Ombudsman entity operations, including, where applicable, through area 
agency on aging plans, in coordination with the State agency; and
    (iii) Monitor, on a regular basis, the Ombudsman program 
performance of local Ombudsman entities.
    (2) The Ombudsman shall establish procedures for training for 
certification and continuing education of the representatives of the 
Office, based on and consistent with standards established by the 
Director of the Office of Long-Term Care Ombudsman Programs as 
described in section 201(d) of the Act (42 U.S.C. 3011(d)) and set 
forth by the Assistant Secretary for Aging, in consultation with 
residents, resident representatives, citizen organizations, long-term 
care providers, and the State agency, that:
    (i) Specify a minimum number of hours of initial training;
    (ii) Specify the content of the training, including training 
relating to Federal, State, and local laws, regulations, and policies, 
with respect to long-term care facilities in the State; investigative 
and resolution techniques; and such other matters as the Office 
determines to be appropriate;
    (iii) Specify that all program staff or volunteers who have access 
to residents, files, records, and other information of the Ombudsman 
program subject to disclosure requirements shall undergo training and 
certification to be designated as representatives of the Office; and
    (iv) Specify an annual number of hours of in-service training for 
all representatives of the Office.
    (3) Prohibit any representative of the Office from carrying out the 
duties described in Sec.  1324.19 unless the representative:
    (i) Has received the training required under paragraph (c)(2) of 
this section or is performing such duties under supervision of the 
Ombudsman or a designated representative of the Office as part of 
certification training requirements; and
    (ii) Has been approved by the Ombudsman as qualified to carry out 
the activity on behalf of the Office.
    (4) The Ombudsman shall investigate allegations of misconduct by 
representatives of the Office in the performance of Ombudsman program 
duties and, as applicable, coordinate such investigations with the 
State agency in which the Office is organizationally located, agency 
hosting the local Ombudsman entity and/or the local Ombudsman entity.
    (5) Policies, procedures, or practices which the Ombudsman 
determines to be in conflict with the laws, policies, or

[[Page 11692]]

procedures governing the Ombudsman program shall be sufficient grounds 
for refusal, suspension, or removal of designation of the 
representative of the Office and/or the local Ombudsman entity.
    (d) Ombudsman program information. The Ombudsman shall manage the 
files, records, and other information of the Ombudsman program, whether 
in physical, electronic, or other formats, including information 
maintained by representatives of the Office and local Ombudsman 
entities pertaining to the cases and activities of the Ombudsman 
program. Such files, records, and other information are the property of 
the Office. Nothing in this provision shall prohibit a representative 
of the Office or a local Ombudsman entity from maintaining such 
information in accordance with Ombudsman program requirements. All 
program staff or volunteers who access the files, records, and other 
information of the Ombudsman program subject to disclosure requirements 
shall undergo training and certification to be designated as 
representatives of the Office.
    (e) Disclosure. In making determinations regarding the disclosure 
of files, records, and other information maintained by the Ombudsman 
program, the Ombudsman shall:
    (1) Have the sole authority to make or delegate determinations 
concerning the disclosure of the files, records, and other information 
maintained by the Ombudsman program. The Ombudsman shall comply with 
section 712(d) of the Act (42 U.S.C. 3058g(d)) in responding to 
requests for disclosure of files, records, and other information, 
regardless of the format of such file, record, or other information, 
the source of the request, and the sources of funding to the Ombudsman 
program;
    (2) Develop and adhere to criteria to guide the Ombudsman's 
discretion in determining whether to disclose the files, records, or 
other information of the Office. Criteria for disclosure of records 
shall consider if the disclosure has the potential to:
    (i) Cause retaliation against residents, complainants, or 
witnesses;
    (ii) Undermine the working relationships between the Ombudsman 
program, facilities, and/or other agencies; or
    (iii) Undermine other official duties of the program.
    (3) Develop and adhere to a process for the appropriate disclosure 
of information maintained by the Office, including:
    (i) Classification of at least the following types of files, 
records, and information: medical, social, and other records of 
residents; administrative records, policies, and documents of long-term 
care facilities; licensing and certification records maintained by the 
State with respect to long-term care facilities; and data collected in 
the Ombudsman program reporting system;
    (ii) Identification of the appropriate individual designee or 
category of designee, if other than the Ombudsman, authorized to 
determine the disclosure of specific categories of information in 
accordance with the criteria described in this paragraph (e).
    (f) Fiscal management. The Ombudsman shall determine the use of the 
fiscal resources appropriated or otherwise available for the operation 
of the Office. Where local Ombudsman entities are designated, the 
Ombudsman shall approve the allocations of Federal and State funds 
provided to such entities, subject to applicable Federal and State laws 
and policies. The Ombudsman shall determine that program budgets and 
expenditures of the Office and local Ombudsman entities are consistent 
with laws, policies, and procedures governing the Ombudsman program.
    (g) Annual report. In addition to the annual submission of the 
National Ombudsman Reporting System report, the Ombudsman shall 
independently develop, provide final approval of, and disseminate an 
annual report as set forth in section 712(h)(1) of the Act (42 U.S.C. 
3058g(h)(1)) and as otherwise required by the Assistant Secretary for 
Aging.
    (1) Such report shall:
    (i) Describe the activities carried out by the Office in the year 
for which the report is prepared;
    (ii) Contain analysis of Ombudsman program data;
    (iii) Describe evaluation of the problems experienced by, and the 
complaints made by or on behalf of, residents;
    (iv) Contain policy, regulatory, and/or legislative recommendations 
for improving quality of the care and life of the residents; protecting 
the health, safety, welfare, and rights of the residents; and resolving 
resident complaints and identified problems or barriers;
    (v) Contain analysis of the success of the Ombudsman program, 
including success in providing services to residents of assisted 
living, board and care facilities, and other similar adult care 
facilities; and
    (vi) Describe barriers that prevent the optimal operation of the 
Ombudsman program.
    (2) The Ombudsman shall make such report available to the public 
and submit it to the Assistant Secretary for Aging, the chief executive 
officer of the State, the State legislature, the State agency 
responsible for licensing or certifying long-term care facilities, and 
other appropriate governmental entities.
    (h) Memoranda of understanding. Through adoption of memoranda of 
understanding or other means, the Ombudsman shall lead State-level 
coordination and support appropriate local Ombudsman entity 
coordination, between the Ombudsman program and other entities with 
responsibilities relevant to the health, safety, well-being, or rights 
of residents of long-term care facilities, including:
    (1) The required adoption of memoranda of understanding between the 
Ombudsman program and:
    (i) Legal assistance programs provided under section 306(a)(2)(C) 
of the Act (42 U.S.C. 3026(a)(2)(C)), addressing at a minimum referral 
processes and strategies to be used when the Ombudsman program and a 
legal assistance program are both providing program services to a 
resident;
    (ii) Facility and long-term care provider licensure and 
certification programs, addressing at minimum communication protocols 
and procedures to share information including procedures for access to 
copies of licensing and certification records maintained by the State 
with respect to long-term care facilities.
    (2) The recommended adoption of memoranda of understanding or other 
means between the Ombudsman program and:
    (i) Area agency on aging programs;
    (ii) Aging and disability resource centers;
    (iii) Adult protective services programs;
    (iv) Protection and advocacy systems, as designated by the State, 
and as established under the Developmental Disabilities Assistance and 
Bill of Rights Act of 2000 (42 U.S.C. 15001 et seq.);
    (v) The State Medicaid fraud control unit, as defined in section 
1903(q) of the Social Security Act (42 U.S.C. 1396b(q));
    (vi) Victim assistance programs;
    (vii) State and local law enforcement agencies;
    (viii) Courts of competent jurisdiction;
    (ix) The State Legal Assistance Developer as provided under section 
731 of the Act (42 U.S.C. 3058j) and as set forth in subpart C to this 
part; and
    (x) The State mental health authority.
    (i) Other activities. The Ombudsman shall carry out such other 
activities as the Assistant Secretary for Aging determines to be 
appropriate and are

[[Page 11693]]

consistent with the functions of the State Long-Term Care Ombudsman 
Program as authorized by the Older Americans Act.


Sec.  1324.15  State agency responsibilities related to the Ombudsman 
program.

    (a) Compliance. In addition to the responsibilities set forth in 
part 1321 of this chapter, the State agency shall ensure that the 
Ombudsman complies with the relevant provisions of the Act and of this 
rule.
    (b) Authority and access. The State agency shall ensure, through 
the development of policies, procedures, and other means, consistent 
with Sec.  1324.11(e)(2), that the Ombudsman program has sufficient 
authority and access to facilities, residents, and information needed 
to fully perform all of the functions, responsibilities, and duties of 
the Office.
    (c) Training. The State agency shall provide opportunities for 
training for the Ombudsman and representatives of the Office in order 
to maintain expertise to serve as effective advocates for residents. 
The State agency may utilize funds appropriated under Title III and/or 
Title VII of the Act designated for direct services in order to provide 
access to such training opportunities.
    (d) Personnel supervision and management. The State agency shall 
provide personnel supervision and management for the Ombudsman and 
representatives of the Office who are employees of the State agency. 
Such management shall include an assessment of whether the Office is 
performing all of its functions under the Act.
    (e) State agency monitoring. The State agency shall provide 
monitoring, as required by Sec.  1321.9(b) of this chapter, including 
but not limited to fiscal monitoring, where the Office and/or local 
Ombudsman entity is organizationally located within an agency under 
contract or other arrangement with the State agency. Such monitoring 
shall include an assessment of whether the Ombudsman program is 
performing all of the functions, responsibilities and duties set forth 
in Sec. Sec.  1324.13 and 1324.19. The State agency may make reasonable 
requests for reports, including aggregated data regarding Ombudsman 
program activities, to meet the requirements of this provision.
    (f) Disclosure limitations. The State agency shall ensure that any 
review of files, records, or other information maintained by the 
Ombudsman program is consistent with the disclosure limitations set 
forth in Sec. Sec.  1324.11(e)(3) and 1324.13(e).
    (g) State and area plans on aging. The State agency shall integrate 
the goals and objectives of the Office into the State plan and 
coordinate the goals and objectives of the Office with those of other 
programs established under Title VII of the Act and other State elder 
rights, disability rights, and elder justice programs, including, but 
not limited to, legal assistance programs provided under section 
306(a)(2)(C) of the Act (42 U.S.C. 3026(a)(2)(C)), to promote 
collaborative efforts and diminish duplicative efforts. Where 
applicable, the State agency shall require inclusion of goals and 
objectives of local Ombudsman entities into area plans on aging.
    (h) Elder rights leadership. The State agency shall provide elder 
rights leadership. In so doing, it shall require the coordination of 
Ombudsman program services with the activities of other programs 
authorized by Title VII of the Act, as well as other State and local 
entities with responsibilities relevant to the health, safety, well-
being, or rights of older adults, including residents of long-term care 
facilities as set forth in Sec.  1324.13(h).
    (i) Interference, retaliation, and reprisals. The State agency 
shall:
    (1) Ensure that it has mechanisms to prohibit and investigate 
allegations of interference, retaliation, and reprisals:
    (i) By a long-term care facility, other entity, or individual with 
respect to any resident, employee, or other person for filing a 
complaint with, providing information to, or otherwise cooperating with 
any representative of the Office; or
    (ii) By a long-term care facility, other entity or individual 
against the Ombudsman or representatives of the Office for fulfillment 
of the functions, responsibilities, or duties enumerated at Sec. Sec.  
1324.13 and 1324.19; and
    (2) Provide for appropriate sanctions with respect to interference, 
retaliation, and reprisals.
    (j) Legal counsel. (1) The State agency shall ensure that:
    (i) Legal counsel for the Ombudsman program is adequate, available, 
is without conflict of interest (as defined by the State ethical 
standards governing the legal profession), and has competencies 
relevant to the legal needs of:
    (A) The program, in order to provide consultation and/or 
representation as needed to assist the Ombudsman and representatives of 
the Office in the performance of their official functions, 
responsibilities, and duties, including complaint resolution and 
systems advocacy. Legal representation, arranged by or with the 
approval of the Ombudsman, is provided to the Ombudsman or 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 official duties.
    (B) Residents, in order to provide consultation and representation 
as needed for the Ombudsman program to protect the health, safety, 
welfare, and rights of residents.
    (ii) The Ombudsman and representatives of the Office assist 
residents in seeking administrative, legal, and other appropriate 
remedies. In so doing, the Ombudsman shall coordinate with the Legal 
Assistance Developer, legal services providers, and victim assistance 
services to promote the availability of legal counsel to residents.
    (2) Such legal counsel may be provided by one or more entities, 
depending on the nature of the competencies and services needed and as 
necessary to avoid conflicts of interest (as defined by the State 
ethical standards governing the legal profession). At a minimum, the 
Office shall have access to an attorney knowledgeable about the Federal 
and State laws protecting the rights of residents and governing long-
term care facilities.
    (3) Legal representation of the Ombudsman program by the Ombudsman 
or representative of the Office who is a licensed attorney shall not by 
itself constitute sufficiently adequate legal counsel.
    (4) The communications between the Ombudsman and their legal 
counsel are subject to attorney-client privilege.
    (k) Fiscal management. The State agency shall ensure that:
    (1) The Ombudsman receives notification of all sources of funds 
received by the State agency that are allocated or appropriated to the 
Ombudsman program and provides information on any requirements of the 
funds, and the Ombudsman is supported in their determination of the use 
of funds;
    (2) The Ombudsman has full authority to determine the use of fiscal 
resources appropriated or otherwise available for the operation of the 
Office;
    (3) Where local Ombudsman entities are designated, the Ombudsman 
approves the allocations of Federal and State funds to such entities, 
prior to any distribution of such funds, subject to applicable Federal 
and State laws and policies; and
    (4) The Ombudsman determines that program budgets and expenditures 
of the Office and local Ombudsman entities are consistent with laws,

[[Page 11694]]

policies, and procedures governing the Ombudsman program.
    (l) State agency requirements of the Office. The State agency shall 
require the Office to:
    (1) Develop and provide final approval of an annual report as set 
forth in section 712(h)(1) of the Act (42 U.S.C. 3058g(h)(1)) and Sec.  
1324.13(g) and as otherwise required by the Assistant Secretary for 
Aging;
    (2) Analyze, comment on, and monitor the development and 
implementation of Federal, State, and local laws, regulations, and 
other government policies and actions that pertain to long-term care 
facilities and services, and to the health, safety, welfare, and rights 
of residents, in the State, and recommend any changes in such laws, 
regulations, and policies as the Office determines to be appropriate;
    (3) Provide such information as the Office determines to be 
necessary to public and private agencies, legislators, the media, and 
other persons, regarding the problems and concerns of individuals 
residing in long-term care facilities; and recommendations related to 
such problems and concerns;
    (4) Establish procedures for the training of the representatives of 
the Office, as set forth in Sec.  1324.13(c)(2); and
    (5) Coordinate Ombudsman program services with entities with 
responsibilities relevant to the health, safety, welfare, and rights of 
residents of long-term care facilities, as set forth in Sec.  
1324.13(h).


Sec.  1324.17  Responsibilities of agencies hosting local Ombudsman 
entities.

    (a) The agency in which a local Ombudsman entity is 
organizationally located shall be responsible for the personnel 
management, but not the programmatic oversight, of representatives, 
including employee and volunteer representatives, of the Office.
    (b) The agency in which a local Ombudsman entity is 
organizationally located shall not have personnel policies or practices 
which prohibit the representatives of the Office from performing the 
duties, or from adhering to the access, confidentiality, and disclosure 
requirements of section 712 of the Act (42 U.S.C. 3058g), as 
implemented through this rule and the policies and procedures of the 
Office.
    (1) Policies, procedures, and practices, including personnel 
management practices of the host agency, which the Ombudsman determines 
conflict with the laws or policies governing the Ombudsman program 
shall be sufficient grounds for the refusal, suspension, or removal of 
the designation of local Ombudsman entity by the Ombudsman.
    (2) Nothing in this provision shall prohibit the host agency from 
requiring that the representatives of the Office adhere to the 
personnel policies and procedures of the agency which are otherwise 
lawful.


Sec.  1324.19  Duties of the representatives of the Office.

    In carrying out the duties of the Office, the Ombudsman may 
designate an entity as a local Ombudsman entity and may designate an 
employee or volunteer of the local Ombudsman entity as a representative 
of the Office. Representatives of the Office may also be designated 
employees or volunteers within the Office.
    (a) Duties. An individual so designated as a representative of the 
Office shall, in accordance with the policies and procedures 
established by the Office and the State agency:
    (1) Identify, investigate, and resolve complaints made by or on 
behalf of residents that relate to action, inaction, or decisions, that 
may adversely affect the health, safety, welfare, or rights of the 
residents;
    (2) Provide services to protect the health, safety, welfare, and 
rights of residents;
    (3) Ensure that residents in the service area of the local 
Ombudsman entity have regular and timely access to the services 
provided through the Ombudsman program and that residents and 
complainants receive timely responses to requests for information and 
complaints;
    (4) Represent the interests of residents before government agencies 
and assure that individual residents have access to, and pursue (as the 
representative of the Office determines necessary and consistent with 
resident interest) administrative, legal, and other remedies to protect 
the health, safety, welfare, and rights of the residents;
    (5)(i) Review, and if necessary, comment on any existing and 
proposed laws, regulations, and other government policies and actions, 
that pertain to the rights and well-being of residents;
    (ii) Facilitate the ability of the public to comment on the laws, 
regulations, policies, and actions.
    (6) Promote, provide technical support for the development of, and 
provide ongoing support as requested by resident and family councils; 
and
    (7) Carry out other activities that the Ombudsman determines to be 
appropriate and are consistent with the functions of the State Long-
Term Care Ombudsman Program as authorized by the Older Americans Act.
    (b) Complaint processing. (1) With respect to identifying, 
investigating, and resolving complaints, and regardless of the source 
of the complaint (i.e., complainant), the Ombudsman and the 
representatives of the Office serve the resident of a long-term care 
facility. The Ombudsman or representative of the Office shall 
investigate a complaint, including but not limited to a complaint 
related to abuse, neglect, or exploitation, for the purposes of 
resolving the complaint to the resident's satisfaction and of 
protecting the health, welfare, and rights of the resident. The 
Ombudsman or representative of the Office may identify, investigate, 
and resolve a complaint impacting multiple residents or all residents 
of a facility.
    (2) Regardless of the source of the complaint (i.e., the 
complainant), including when the source is the Ombudsman or 
representative of the Office, the Ombudsman or representative of the 
Office must support and maximize resident participation in the process 
of resolving the complaint as follows:
    (i) The Ombudsman or representative of the Office shall offer 
privacy to the resident for the purpose of confidentially providing 
information and hearing, investigating, and resolving complaints.
    (ii) The Ombudsman or representative of the Office shall discuss 
the complaint with the resident (and, if the resident is unable to 
communicate informed consent, the resident's representative) in order 
to:
    (A) Determine the perspective of the resident (or resident 
representative, where applicable) of the complaint;
    (B) Request the resident (or resident representative, where 
applicable) to communicate informed consent in order to investigate the 
complaint;
    (C) Determine the wishes of the resident (or resident 
representative, where applicable) with respect to resolution of the 
complaint, including whether the allegations are to be reported and, if 
so, whether the Ombudsman or representative of the Office may disclose 
resident identifying information or other relevant information to the 
facility and/or appropriate agencies. Such report and disclosure shall 
be consistent with paragraph (b)(3) of this section;
    (D) Advise the resident (and resident representative, where 
applicable) of the resident's rights;
    (E) Work with the resident (or resident representative, where 
applicable) to develop a plan of action for resolution of the 
complaint;

[[Page 11695]]

    (F) Investigate the complaint to determine whether the complaint 
can be verified; and
    (G) Determine whether the complaint is resolved to the satisfaction 
of the resident (or resident representative, where applicable).
    (iii) Where the resident is unable to communicate informed consent, 
and has no resident representative, the Ombudsman or representative of 
the Office shall:
    (A) Take appropriate steps to investigate and work to resolve the 
complaint in order to protect the health, safety, welfare and rights of 
the resident; and
    (B) Determine whether the complaint was resolved to the 
satisfaction of the complainant.
    (iv) In determining whether to rely upon a resident representative 
to communicate or make determinations on behalf of the resident related 
to complaint processing, the Ombudsman or representative of the Office 
shall ascertain the extent of the authority that has been granted to 
the resident representative under court order (in the case of a 
guardian or conservator), by power of attorney or other document by 
which the resident has granted authority to the representative, or 
under other applicable State or Federal law.
    (3) The Ombudsman or representative of the Office may provide 
information regarding the complaint to another agency in order for such 
agency to substantiate the facts for regulatory, protective services, 
law enforcement, or other purposes so long as the Ombudsman or 
representative of the Office adheres to the disclosure requirements of 
section 712(d) of the Act (42 U.S.C. 3058g(d)) and the procedures set 
forth in Sec.  1324.11(e)(3).
    (i) Where the goals of a resident or resident representative are 
for regulatory, protective services or law enforcement action, and the 
Ombudsman or representative of the Office determines that the resident 
or resident representative has communicated informed consent to the 
Office, the Office must assist the resident or resident representative 
in contacting the appropriate agency and/or disclose the information 
for which the resident has provided consent to the appropriate agency 
for such purposes.
    (ii) Where the goals of a resident or resident representative can 
be served by disclosing information to a facility representative and/or 
referrals to an entity other than those referenced in paragraph 
(b)(3)(i) of this section, and the Ombudsman or representative of the 
Office determines that the resident or resident representative has 
communicated informed consent to the Ombudsman program, the Ombudsman 
or representative of the Office may assist the resident or resident 
representative in contacting the appropriate facility representative or 
the entity, provide information on how a resident or representative may 
obtain contact information of such facility representatives or 
entities, and/or disclose the information for which the resident has 
provided consent to an appropriate facility representative or entity, 
consistent with Ombudsman program procedures.
    (iii) In order to comply with the wishes of the resident, (or, in 
the case where the resident is unable to communicate informed consent, 
the wishes of the resident representative), the Ombudsman and 
representatives of the Office shall not report suspected abuse, neglect 
or exploitation of a resident when a resident or resident 
representative has not communicated informed consent to such report 
except as set forth in paragraphs (b)(5) through (7) of this section, 
notwithstanding State laws to the contrary.
    (4) For purposes of paragraphs (b)(1) through (3) of this section, 
communication of informed consent may be made in writing, including 
through the use of auxiliary aids and services. Alternatively, 
communication may be made orally or visually, including through the use 
of auxiliary aids and services, and such consent must be documented 
contemporaneously by the Ombudsman or a representative of the Office, 
in accordance with the procedures of the Office.
    (5) For purposes of paragraphs (b)(1) through (3) of this section, 
if a resident is unable to communicate their informed consent, or 
perspective on the extent to which the matter has been satisfactorily 
resolved, the Ombudsman or representative of the Office may rely on the 
communication by a resident representative of informed consent and/or 
perspective regarding the resolution of the complaint if the Ombudsman 
or representative of the Office has no reasonable cause to believe that 
the resident representative is not acting in the best interests of the 
resident.
    (6) For purposes of paragraphs (b)(1) through (3) of this section, 
the procedures for disclosure, as required by Sec.  1324.11(e)(3), 
shall provide that the Ombudsman or representative of the Office may 
refer the matter and disclose resident-identifying information to the 
appropriate agency or agencies for regulatory oversight; protective 
services; access to administrative, legal, or other remedies; and/or 
law enforcement action in the following circumstances:
    (i) The resident is unable to communicate informed consent to the 
Ombudsman or representative of the Office;
    (ii) The resident has no resident representative;
    (iii) The Ombudsman or representative of the Office has reasonable 
cause to believe that an action, inaction, or decision may adversely 
affect the health, safety, welfare, or rights of the resident;
    (iv) The Ombudsman or representative of the Office has no evidence 
indicating that the resident would not wish a referral to be made;
    (v) The Ombudsman or representative of the Office has reasonable 
cause to believe that it is in the best interest of the resident to 
make a referral; and
    (vi) The representative of the Office obtains the approval of the 
Ombudsman or otherwise follows the policies and procedures of the 
Office described in paragraph (b)(9) of this section.
    (7) For purposes of paragraphs (b)(1) through (3) of this section, 
the procedures for disclosure, as required by Sec.  1324.11(e)(3), 
shall provide that, the Ombudsman or representative of the Office may 
refer the matter and disclose resident-identifying information to the 
appropriate agency or agencies for regulatory oversight; protective 
services; access to administrative, legal, or other remedies; and/or 
law enforcement action in the following circumstances:
    (i) The resident is unable to communicate informed consent to the 
Ombudsman or representative of the Office and the Ombudsman or 
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;
    (ii) The Ombudsman or representative of the Office has no evidence 
indicating that the resident would not wish a referral to be made;
    (iii) The Ombudsman or representative of the Office has reasonable 
cause to believe that it is in the best interest of the resident to 
make a referral; and
    (iv) The representative of the Office obtains the approval of the 
Ombudsman.
    (8) The procedures for disclosure, as required by Sec.  
1324.11(e)(3), shall provide that, if the Ombudsman or representative 
of the Office personally witnesses suspected abuse, gross neglect, or 
exploitation of a resident, the Ombudsman or representative of the 
Office shall seek communication of

[[Page 11696]]

informed consent from such resident to disclose resident-identifying 
information to appropriate agencies.
    (i) Where such resident is able to communicate informed consent, or 
has a resident representative available to provide informed consent, 
the Ombudsman or representative of the Office shall follow the 
direction of the resident or resident representative as set forth in 
paragraphs (b)(1) through (3) of this section; and
    (ii) Where the resident is unable to communicate informed consent, 
and has no resident representative available to provide informed 
consent, the Ombudsman or representative of the Office shall open a 
case with the Ombudsman or representative of the Office as the 
complainant, follow the Ombudsman program's complaint resolution 
procedures, and shall refer the matter and disclose identifying 
information of the resident to the management of the facility in which 
the resident resides and/or to the appropriate agency or agencies for 
substantiation of abuse, gross neglect or exploitation in the following 
circumstances:
    (A) The Ombudsman or representative of the Office has no evidence 
indicating that the resident would not wish a referral to be made;
    (B) The Ombudsman or representative of the Office has reasonable 
cause to believe that disclosure would be in the best interest of the 
resident; and
    (C) The representative of the Office obtains the approval of the 
Ombudsman or otherwise follows the policies and procedures of the 
Office described in paragraph (b)(9) of this section.
    (iii) In addition, the Ombudsman or representative of the Office, 
following the policies and procedures of the Office described in 
paragraph (b)(9) of this section, may report the suspected abuse, gross 
neglect, or exploitation to other appropriate agencies for regulatory 
oversight; protective services; access to administrative, legal, or 
other remedies; and/or law enforcement action.
    (9) Prior to disclosing resident-identifying information pursuant 
to paragraph (b)(6) or (8) of this section, a representative of the 
Office must obtain approval by the Ombudsman or, alternatively, follow 
policies and procedures of the Office which provide for such 
disclosure.
    (i) Where the policies and procedures require Ombudsman approval, 
they shall include a time frame in which the Ombudsman is required to 
communicate approval or disapproval in order to assure that the 
representative of the Office has the ability to promptly take actions 
to protect the health, safety, welfare or rights of residents.
    (ii) Where the policies and procedures do not require Ombudsman 
approval prior to disclosure, they shall require that the 
representative of the Office promptly notify the Ombudsman of any 
disclosure of resident-identifying information under the circumstances 
set forth in paragraph (b)(6) or (8) of this section.
    (iii) Disclosure of resident-identifying information under 
paragraph (b)(7) of this section shall require Ombudsman approval.


Sec.  1324.21  Conflicts of interest.

    The State agency and the Ombudsman shall consider both the 
organizational and individual conflicts of interest that may impact the 
effectiveness and credibility of the work of the Office. In so doing, 
both the State agency and the Ombudsman shall be responsible to 
identify actual and potential conflicts and, where a conflict has been 
identified, to remove or remedy such conflict as set forth in 
paragraphs (b) and (d) of this section.
    (a) Identification of organizational conflicts. In identifying 
conflicts of interest pursuant to section 712(f) of the Act (42 U.S.C. 
3058g(f)), the State agency and the Ombudsman shall consider the 
organizational conflicts that may impact the effectiveness and 
credibility of the work of the Office. Organizational conflicts of 
interest include, but are not limited to, placement of the Office, or 
requiring that an Ombudsman or representative of the Office perform 
conflicting activities, in an organization that:
    (1) Is responsible for licensing, surveying, or certifying long-
term care services, including facilities;
    (2) Is an association (or an affiliate of such an association) of 
long-term care facilities, or of any other residential facilities for 
older individuals or individuals with disabilities;
    (3) Has any ownership or investment interest (represented by 
equity, debt, or other financial relationship) in, or receives grants 
or donations from, a long-term care facility;
    (4) Has governing board members with any ownership, investment, or 
employment interest in long-term care facilities;
    (5) Provides long-term care to residents of long-term care 
facilities, including the provision of personnel for long-term care 
facilities or the operation of programs which control access to or 
services for long-term care facilities;
    (6) Provides long-term care services, including programs carried 
out under a Medicaid waiver approved under section 1115 of the Social 
Security Act (42 U.S.C. 1315) or under subsection (b) or (c) of section 
1915 of the Social Security Act (42 U.S.C. 1396n), or under a Medicaid 
State plan under section 1905(a) or subsection (i), (j), or (k) of 
section 1915 of the Social Security Act (42 U.S.C. 1396d(a); 42 U.S.C. 
1396n(i)-(k));
    (7) Provides long-term care coordination or case management, 
including for residents of long-term care facilities;
    (8) Sets reimbursement rates for long-term care facilities;
    (9) Sets reimbursement rates for long-term care services;
    (10) Provides adult protective services;
    (11) Is responsible for eligibility determinations for the Medicaid 
program carried out under title XIX of the Social Security Act (42 
U.S.C. 1396-1396v);
    (12) Is responsible for eligibility determinations regarding 
Medicaid or other public benefits for residents of long-term care 
facilities;
    (13) Conducts preadmission screening for long-term care facility 
admission;
    (14) Makes decisions regarding admission or discharge of 
individuals to or from long-term care facilities; or
    (15) Provides guardianship, conservatorship or other fiduciary or 
surrogate decision-making services for residents of long-term care 
facilities.
    (b) Removing or remedying organizational conflicts. The State 
agency and the Ombudsman shall identify and take steps to remove or 
remedy conflicts of interest between the Office and the State agency or 
other agency carrying out the Ombudsman program.
    (1) The Ombudsman shall identify organizational conflicts of 
interest in the Ombudsman program and describe steps taken to remove or 
remedy conflicts within the annual report submitted to the Assistant 
Secretary for Aging through the National Ombudsman Reporting System.
    (2) Where the Office is located within or otherwise 
organizationally attached to the State agency, the State agency shall:
    (i) Take reasonable steps to avoid internal conflicts of interest;
    (ii) Establish a process for review and identification of internal 
conflicts;
    (iii) Take steps to remove or remedy conflicts;
    (iv) Ensure that no individual, or member of the immediate family 
of an individual, involved in designating, appointing, otherwise 
selecting, or terminating the Ombudsman is subject to a conflict of 
interest; and

[[Page 11697]]

    (v) Assure that the Ombudsman has disclosed such conflicts and 
described steps taken to remove or remedy conflicts within the annual 
report submitted to the Assistant Secretary for Aging through the 
National Ombudsman Reporting System.
    (3) Where a State agency is unable to adequately remove or remedy a 
conflict, it shall carry out the Ombudsman program by contract or other 
arrangement with a public agency or nonprofit private organization, 
pursuant to section 712(a)(4) of the Act (42 U.S.C. 3058g(a)(4)). The 
State agency may not enter into a contract or other arrangement to 
carry out the Ombudsman program if the other entity, and may not 
operate the Office directly if it:
    (i) Is responsible for licensing, surveying, or certifying long-
term care facilities;
    (ii) Is an association (or an affiliate of such an association) of 
long-term care facilities, or of any other residential facilities for 
older individuals or individuals with disabilities; or
    (iii) Has any ownership, operational, or investment interest 
(represented by equity, debt, or other financial relationship) in a 
long-term care facility.
    (4) Where the State agency carries out the Ombudsman program by 
contract or other arrangement with a public agency or nonprofit private 
organization, pursuant to section 712(a)(4) of the Act (42 U.S.C. 
3058g(a)(4)), the State agency shall:
    (i) Prior to contracting or making another arrangement, take 
reasonable steps to avoid conflicts of interest in such agency or 
organization which is to carry out the Ombudsman program and to avoid 
conflicts of interest in the State agency's oversight of the contract 
or arrangement;
    (ii) Establish a process for periodic review and identification of 
conflicts;
    (iii) Establish criteria for approval of steps taken by the agency 
or organization to remedy or remove conflicts;
    (iv) Require that such agency or organization have a process in 
place to:
    (A) Take reasonable steps to avoid conflicts of interest; and
    (B) Disclose identified conflicts and steps taken to remove or 
remedy conflicts to the State agency for review and approval.
    (5) Where an agency or organization carrying out the Ombudsman 
program by contract or other arrangement develops a conflict and is 
unable to adequately remove or remedy a conflict, the State agency 
shall either operate the Ombudsman program directly or by contract or 
other arrangement with another public agency or nonprofit private 
organization.
    (6) Where local Ombudsman entities provide ombudsman services, the 
Ombudsman shall:
    (i) Prior to designating or renewing designation, take reasonable 
steps to avoid conflicts of interest in any agency which may host a 
local Ombudsman entity;
    (ii) Establish a process for periodic review and identification of 
conflicts of interest with the local Ombudsman entity in any agencies 
hosting a local Ombudsman entity;
    (iii) Require that such agencies disclose identified conflicts of 
interest with the local Ombudsman entity and steps taken to remove or 
remedy conflicts within such agency to the Ombudsman;
    (iv) Establish criteria for approval of steps taken to remedy or 
remove conflicts in such agencies; and
    (v) Establish a process for review of and criteria for approval of 
plans to remove or remedy conflicts with the local Ombudsman entity in 
such agencies.
    (7) Failure of an agency hosting a local Ombudsman entity to 
disclose a conflict to the Office or inability to adequately remove or 
remedy a conflict shall constitute grounds for refusal, suspension, or 
removal of designation of the local Ombudsman entity by the Ombudsman.
    (c) Identifying individual conflicts of interest. (1) In 
identifying conflicts of interest pursuant to section 712(f) of the Act 
(42 U.S.C. 3058g(f)), the State agency and the Ombudsman shall consider 
individual conflicts that may impact the effectiveness and credibility 
of the work of the Office.
    (2) Individual conflicts of interest for an Ombudsman, 
representatives of the Office, and members of their immediate family 
include, but are not limited to:
    (i) Direct involvement in the licensing or certification of a long-
term care facility or of a provider of a long-term care service;
    (ii) Ownership, operational, or investment interest (represented by 
equity, debt, or other financial relationship) in an existing or 
proposed long-term care facility or a long-term care service;
    (iii) Employment of an individual by, or participation in the 
management of, a long-term care facility or a related organization, in 
the service area or by the owner or operator of any long-term care 
facility in the service area;
    (iv) Receipt of, or right to receive, directly or indirectly, 
remuneration (in cash or in kind) under a compensation arrangement with 
an owner or operator of a long-term care facility;
    (v) Accepting gifts or gratuities of significant value from a long-
term care facility or its management, a resident, or a resident 
representative of a long-term care facility in which the Ombudsman or 
representative of the Office provides services (except where there is a 
personal relationship with a resident or resident representative which 
is separate from the individual's role as Ombudsman or representative 
of the Office);
    (vi) Accepting money or any other consideration from anyone other 
than the Office, or an entity approved by the Ombudsman, for the 
performance of an act in the regular course of the duties of the 
Ombudsman or the representatives of the Office without Ombudsman 
approval;
    (vii) Serving as guardian, conservator or in another fiduciary or 
surrogate decision-making capacity for a resident of a long-term care 
facility in which the Ombudsman or representative of the Office 
provides services;
    (viii) Serving residents of a facility in which an immediate family 
member resides;
    (ix) Management responsibility for, or operating under the 
supervision of, an individual with management responsibility for, adult 
protective services; and
    (x) Serving as a guardian or in another fiduciary capacity for 
residents of long-term care facilities in an official capacity (as 
opposed to serving as a guardian or fiduciary for a family member, in a 
personal capacity).
    (d) Removing or remedying individual conflicts. (1) The State 
agency or Ombudsman shall develop and implement policies and 
procedures, pursuant to Sec.  1324.11(e)(4), to ensure that no 
Ombudsman or representatives of the Office are required or permitted to 
hold positions or perform duties that would constitute a conflict of 
interest as set forth in Sec.  1324.21(c). This rule does not prohibit 
a State agency or Ombudsman from having policies or procedures that 
exceed these requirements.
    (2) When considering the employment or appointment of an individual 
as the Ombudsman or as a representative of the Office, the State agency 
or other employing or appointing entity shall:
    (i) Take reasonable steps to avoid employing or appointing an 
individual who has an unremedied conflict of interest or who has a 
member of the immediate family with an unremedied conflict of interest;
    (ii) Take reasonable steps to avoid assigning an individual to 
perform

[[Page 11698]]

duties which would constitute an unremedied conflict of interest;
    (iii) Establish a process for periodic review and identification of 
conflicts of the Ombudsman and representatives of the Office; and
    (iv) Take steps to remove or remedy conflicts.
    (3) In no circumstance shall the entity, which appoints or employs 
the Ombudsman, appoint or employ an individual as the Ombudsman who:
    (i) Has direct involvement in the licensing or certification of a 
long-term care facility;
    (ii) Has an ownership or investment interest (represented by 
equity, debt, or other financial relationship) in a long-term care 
facility. Divestment within a reasonable period may be considered an 
adequate remedy to this conflict;
    (iii) Has been employed by or participated in the management of a 
long-term care facility within the previous twelve months; and
    (iv) Receives, or has the right to receive, directly or indirectly, 
remuneration (in cash or in kind) under a compensation arrangement with 
an owner or operator of a long-term care facility.
    (4) In no circumstance shall the State agency, other agency which 
carries out the Office, or an agency hosting a local Ombudsman entity 
appoint or employ an individual, nor shall the Ombudsman designate an 
individual, as a representative of the Office who:
    (i) Has direct involvement in the licensing or certification of a 
long-term care facility;
    (ii) Has an ownership or investment interest (represented by 
equity, debt, or other financial relationship) in a long-term care 
facility. Divestment within a reasonable period may be considered an 
adequate remedy to this conflict;
    (iii) Receives, directly or indirectly, remuneration (in cash or in 
kind) under a compensation arrangement with an owner or operator of a 
long-term care facility; or
    (iv) Is employed by, or participating in the management of, a long-
term care facility.
    (A) An agency which appoints or employs representatives of the 
Office shall make efforts to avoid appointing or employing an 
individual as a representative of the Office who has been employed by 
or participated in the management of a long-term care facility within 
the previous twelve months.
    (B) Where such individual is appointed or employed, the agency 
shall take steps to remedy the conflict.

Subpart B--Programs for Prevention of Elder Abuse, Neglect, and 
Exploitation


Sec.  1324.201  State agency responsibilities for the prevention of 
elder abuse, neglect, and exploitation.

    (a) In accordance with Title VII, chapter 3 of the Act, the 
distribution of Federal funds to the State agency on aging by formula 
is authorized to carry out activities to develop, strengthen, and carry 
out programs for the prevention, detection, assessment, and treatment 
of, intervention in, investigation of, and response to elder abuse, 
neglect, and exploitation.
    (b) All programs using these funds must meet requirements as set 
forth in the Act, including those of section 721(c), (d), (e) (42 
U.S.C. 3058i(c)-(e)) and guidance as set forth by the Assistant 
Secretary for Aging.

Subpart C--State Legal Assistance Development


Sec.  1324.301  Definitions.

    (a) Definitions as set forth in Sec.  1321.3 of this chapter apply 
to this part.
    (b) Terms used, but not otherwise defined in this part will have 
the meanings ascribed to them in the Act.


Sec.  1324.303  Legal Assistance Developer.

    (a) State Legal Assistance Developer. In accordance with section 
731 of the Act (42 U.S.C. 3058j), the State agency shall designate an 
individual who shall be known as a State Legal Assistance Developer, 
and other personnel, sufficient to ensure:
    (1) State leadership in securing and maintaining the legal rights 
of older individuals;
    (2) State capacity for coordinating the provision of legal 
assistance, in accordance with section 102(23) and (24) and consistent 
with section 102(33) of the Act (42 U.S.C. 3002(23), (24), (33)), to 
include prioritizing such services provided to individuals with 
greatest economic need, or greatest social need;
    (3) State capacity to provide technical assistance, training, and 
other supportive functions to area agencies on aging, legal assistance 
providers, Long-Term Care Ombudsman programs, adult protective 
services, and other service providers under the Act;
    (i) The Legal Assistance Developer shall utilize the trainings, 
case consultations, and technical assistance provided by the support 
and technical assistance entity established pursuant to section 420(c) 
of the Act (42 U.S.C. 3032i(c)).
    (ii) [Reserved]
    (4) State capacity to promote financial management services to 
older individuals at risk of guardianship, conservatorship, or other 
fiduciary proceedings;
    (i) In so doing, the Legal Assistance Developer shall take into 
consideration promotion of activities to increase awareness of and 
access to self-directed financial management services and legal 
assistance and;
    (ii) The Legal Assistance Developer shall also take into 
consideration promotion of activities that proactively enable older 
adults and those they designate as decisional supporters through powers 
of attorney, health care proxies, supported decision making and similar 
instruments or approaches to be connected to resources and education to 
manage their finances and the decisions they make about their lives so 
as to limit their risk for guardianship, conservatorship, or more 
restrictive fiduciary proceedings.
    (5) State capacity to assist older individuals in understanding 
their rights, exercising choices, benefiting from services and 
opportunities authorized by law, and maintaining the rights of older 
individuals at risk of guardianship, conservatorship, or other 
fiduciary proceedings;
    (i) In so doing, the Legal Assistance Developer shall take into 
consideration engaging in activities aimed at preserving an 
individual's rights or autonomy, including, but not limited to, 
increasing awareness of and access to least-restrictive alternatives to 
guardianship, conservatorship, or more restrictive fiduciary 
proceedings, such as supported decision making, and legal assistance;
    (ii) In so doing, the Legal Assistance Developer shall adhere to 
the restrictions contained in section 321(a)(6)(B)(i) of the Act (42 
U.S.C. 3030d(a)(6)(B)(i)) regarding the involvement of legal assistance 
providers in guardianship proceedings, and shall apply these 
restrictions to conservatorship and other fiduciary proceedings;
    (iii) In undertaking this activity, the Legal Assistance Developer 
shall take into consideration coordination of efforts with legal 
assistance providers funded under the Act contracted by area agencies 
on aging, any Bar Association Elder Law section, and other elder rights 
or entities active in the State.
    (6) State capacity to improve the quality and quantity of legal 
services provided to older individuals.
    (b) State plan. The activities designated by the State agency for 
the Legal Assistance Developer, in accordance with paragraphs (a)(1)

[[Page 11699]]

through (6) of this section, shall be contained in the State plan, per 
section 307 of the Act (42 U.S.C. 3027) and as set forth in Sec.  
1321.27 of this chapter.
    (c) Knowledge, resources, and capacity. The State agency shall 
ensure that the Legal Assistance Developer has the knowledge, 
resources, and capacity to conduct the activities outlined in paragraph 
(a) of this section.
    (d) Conflicts of interest. (1) In designating a Legal Assistance 
Developer, the State agency shall consider any potential conflicts of 
interest posed by any candidate for the role, and take steps to 
prevent, remedy, or remove such conflicts of interest.
    (2) In designating a Legal Assistance Developer, the State agency 
shall consider both organizational and individual interests that may 
impact the effectiveness and credibility of the work of the Legal 
Assistance Developer to coordinate legal assistance and work to secure, 
protect, and promote the legal rights of older adults in the State.
    (i) This includes holding a position or performing duties that 
could lead to decisions that are or have the appearance of being 
contrary to the Legal Assistance Developer's duties as defined in this 
section and contained in the State plan as set forth in Sec.  1321.27 
of this chapter.
    (ii) [Reserved]
    (3) The State agency shall not designate as Legal Assistance 
Developer any individual who is:
    (i) Serving as a director of adult protective services, or as legal 
counsel to adult protective services;
    (ii) Serving as a State Long-Term Care Ombudsman, or as legal 
counsel to a State Long-Term Care Ombudsman Program;
    (iii) Serving as a hearing officer, administrative law judge, trier 
of fact or counsel to these positions in an administrative proceeding 
related to the legal rights of older adults, such as one in which a 
legal assistance provider might appear;
    (iv) Serving as legal counsel or a party to an administrative 
proceeding related to long-term care settings, including residential 
settings;
    (v) Conducting surveys of and licensure certifications for long-
term care settings, including residential settings, or serving as 
counsel or advisor to such positions;
    (vi) Serving as a public or private guardian, conservator, or 
fiduciary or operating such a program, or serving as counsel to these 
positions or programs.
    (4) The State agency and the Legal Assistance Developer shall be 
responsible for identifying any other actual and potential conflicts of 
interest and circumstances that may lead to the appearance of a 
conflict of interest; identifying processes for preventing conflicts of 
interest and, where a conflict of interest has been identified, for 
removing or remedying the conflict.
    (5) The State agency shall develop and implement policies and 
procedures to ensure that the Legal Assistance Developer is not 
required or permitted to hold positions or perform duties that would 
constitute a conflict of interest.

Xavier Becerra,
Secretary, Department of Health and Human Services.
[FR Doc. 2024-01913 Filed 2-6-24; 8:45 am]
BILLING CODE 4154-01-P

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