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June 15 [press release] -- The U.S. Administration for Community Living is seeking input on proposed updates to the regulations for its Older Americans Act (OAA) programs. The proposed rule is the first substantial update to most OAA program regulations in 35 years.

The world has changed dramatically since the current OAA regulations were established. The population of older adults has nearly doubled, and older adults are living longer than ever before. Their expectations for aging are different from those of earlier generations. Increased understanding of the impact of the social determinants of health is reshaping health care, as non-medical services that help people avoid hospitalization and institutional care – like those provided through OAA programs – are increasingly being incorporated into health care service delivery models. In addition, the OAA has been amended by Congress seven times since 1988.  The proposed rule aims to align regulations to the current statute and reflect the needs of today’s older adults. . . .

The proposed rule clarifies requirements across many programs and establishes regulations for those that have been authorized by the OAA since the last update of the rule, such as ACL’s state and tribal caregiver support programs. It also addresses issues that have emerged over the last three decades, such as a need for clarification of requirements and flexibilities for serving older adults during national disasters and other emergencies. It is intended to better support the national aging services network that delivers OAA services and improve program implementation, with an ultimate goal of better serving older adults.

The proposed rule is the culmination of many years of engagement with the national aging network. It also reflects input received through a formal request for information and a series of listening sessions, including formal tribal consultations and other engagement with tribal grantees.

Instructions for submitting comments can be found on ACL’s website and in the Notice of Proposed Rulemaking posted on the Federal Register website today. Comments may be submitted starting tomorrow, June 16, and must be received by 11:59 p.m. (Eastern) on Tuesday, August 15. An informational webinar  will be held on Thursday, June 22 at 12:30 p.m. (Eastern).

Press release: https://www.hhs.gov/about/news/2023/06/15/acl-proposes-update-older-americans-act-program-regulations.html

2) June 16 [FRN] -- The Administration for Community Living (ACL) within The Department of Health and Human Services (“the Department” or HHS) is issuing this notice of proposed rulemaking (NPRM) to modernize the implementing regulations of the Older Americans Act of 1965 (“the Act” or OAA), which have not been substantially altered since their promulgation in 1988. These changes advance the policy goals of the Older Americans Act as articulated by Congress, including equity in service delivery, accountability for funds expended, and clarity of administration for the Administration for Community Living and its grantees. Our proposals will ultimately facilitate improved service delivery and enhanced benefits for OAA participants, particularly those in greatest economic need and greatest social need consistent with the statute. To be assured consideration, comments must be received at the address provided below, no later than August 15, 2023.

The OAA has been amended seven times since 1988 and twice since 2015. Other than Title VII regulations 45 CFR part 1324 Allotments for Vulnerable Elder Rights Protection Activities, Subpart A and portions of 45 CFR part 1321—Grants to State and Community Programs on Aging regarding the Ombudsman program which were promulgated in 2015, these OAA regulations have not been amended since 1988. As a result, the OAA statute and regulations are no longer in alignment. The entire National Family Caregiver Support Program has been created by OAA reauthorizing legislation for which there is no conforming rule. Similarly, portions of the Act have been significantly altered since 1988, with no analogous updates to regulation. This discordance creates confusion for grantees, sub-grantees, and service providers, inhibiting their ability to most effectively serve OAA participants. In addition to areas where we propose to better align statute with regulation, we are proposing modifications to regulatory text that will modernize our rules to reflect ongoing stakeholder feedback and responses to our Request for Information in areas where our current regulations do not address the evolving needs of Title III, VI, and VII grantees and the older adults and family caregivers they serve.

The National Caregiver Support Act, passed as a part of the 2000 Amendments, created Title III part E and Title VI part C of the OAA. The programs had a combined budget of nearly $200 million in FY 2022; in FY 2021, the most recent year for which data is available, nearly 800,000 caregivers received services. However, there are currently no regulations implementing this far-reaching program. Consequently, we have proposed regulatory text at Subpart D § 1321.91 (Title III part E) and Subpart C§ 1322.29 (Title VI part C) to implement statutory mandates and clarify areas related to required family caregiver support services, allowable use of funds, and the method of funds distribution. These additions provide necessary direction to grantees in meeting their fiscal and programmatic responsibilities under the Act, and alleviating inefficiencies and uncertainties caused by reliance on sub-regulatory guidance rather than on regulations.

Additionally, newly proposed section 1321, subpart E, and section 1322, subpart D provide direction on emergency and disaster requirements under the Act. There is very limited guidance in § 1321.65 of the current regulations, which only address weather-related emergencies, and no mention of emergency or disaster requirements in current section 1322 or 1323. Our proposals take into account lessons from the COVID–19 public health emergency (PHE), which demonstrated that emergencies beyond those discussed in the current regulations could have a devastating effect on older adults, Native American elders, and family caregivers. In developing the proposed rule, we considered the evolution of what may constitute an “emergency” or “disaster;” how emergencies and disasters may uniquely affect older adults, Native American elders, and family caregivers; and how best to meet the needs of OAA grantees and participants. The proposed provisions allow Title VI grantees, States, AAAs, and service providers to have the flexibility in funding requirements to adequately plan for emergency situations, as contemplated by the Act.

We are likewise proposing to modernize our nutrition rules to better support grantees' efforts to meet the needs of older adults. Our previous sub-regulatory guidance required that meals must either be consumed on-site at a congregate meal setting or delivered to a participant's residence. This guidance does not take into account those who may leave their homes to pick up a meal but are not able to consume the meal in the congregate setting for various reasons, including safety concerns such as those experienced during the COVID–19 pandemic. Again, the COVID–19 pandemic brought to light limitations in our current nutrition regulations, which we have sought to address in proposed § 1321.87 to allow for “grab and go” meals as part of a congregate site where participants can collect their meal and return to the community off-site to enjoy it. Our proposal is a direct response to stakeholder feedback, including as gathered from the RFI, and appropriately reflects the evolving needs of both grantees and OAA participants.

Finally, in response to robust comment, we also propose to include greater detail on the programmatic fiscal policies and procedures State agencies must develop and implement under the Act, including in areas of sub-awardee monitoring, data collection and reporting, direct service provision, matching, contribution requirements, transfer allowances between and among Title III part B, C–1 and/or C–2 funds, allowable administration funding, voluntary contributions/cost sharing, and required annual certification, among others. The lack of detailed instruction in this area to date has created administrative confusion and programmatic inefficiencies for both States and ACL.

Specific to services for Native American elders and caregivers, we propose a number of changes to improve coordination and clarify requirements. Title VI of the Act is titled “Grants for Native Americans,” and states a purpose of providing supportive services, including nutrition services, to American Indians, Alaskan Natives, and Native Hawaiians that are comparable to the services provided under Title III. Current section 1323 applies to one Native Hawaiian grantee who receives funds under Title VI part B of the Act. To more clearly and consistently specify requirements, we propose to combine sections 1322 and 1323 and incorporate requirements specific to Title VI, part B in the proposed § 1322. By so doing we anticipate reducing confusion and improving appropriate consistency in service provision to both older Indians and Native Hawaiians and family caregivers.

The Act sets forth expectations that States, area agencies on aging, Tribal organizations, and a Native Hawaiian grantee will coordinate regarding provision of services. We propose to include requirements for coordination between Title III and Title VI in each applicable Subpart of sections 1321 and 1322.

To further improve service provision to Native American elders and family caregivers, we propose to specify service requirements, where appropriate, similar to those for services funded under Title III of the Act. Our approach is to identify issues relating to service provision about which the grantee under Title VI of the Act must have policies and procedures, while affirming tribal sovereignty regarding the responsibility for decision-making, development, and implementation of such policies and procedures.

We propose updates to regulatory guidance for Ombudsman programs that receive funding under Title VII of the Act. There has been significant variation in the interpretation and implementation of the provisions of the Act and our 2015 implementing regulations. For example, some State agencies have incorrectly interpreted the 2015 regulations to mean they may still access the files and records of the Ombudsman program that are subject to strict disclosure requirements for monitoring purposes. This has resulted in inconsistent protection of resident identities and Ombudsman records based on residents' State of residence.

We issued a Request for Information 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. We received over 900 individual comments, most of which focused on a few topic areas including: equitably serving older adults and family caregivers from underserved and marginalized communities, the Ombudsman program, area plans on aging, and flexibilities within the nutrition and other programs. We have sought to address these areas of focus in our proposed rulemaking.

OAA: https://acl.gov/about-acl/authorizing-statutes/older-americans-act
FRN: https://www.federalregister.gov/d/2023-12829 [83 pages]

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