By Jones of Dallas, Chavez H.B. No. 3100
75R508 CLG-D
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to rights of the elderly.
1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-4 SECTION 1. Chapter 102, Human Resources Code, is amended to
1-5 read as follows:
1-6 CHAPTER 102. RIGHTS OF THE ELDERLY
1-7 Sec. 102.001. DEFINITIONS. In this chapter:
1-8 (1) "Convalescent and nursing home" means an
1-9 institution licensed by the Texas Department of Human Services
1-10 under Chapter 242, Health and Safety Code.
1-11 (2) "Home health services" means the provision of
1-12 health service for pay or other consideration in a patient's
1-13 residence regulated under Chapter 142, Health and Safety Code.
1-14 (3) "Alternate care" means services [for the elderly]
1-15 provided [by the Texas Department of Human Services] within an
1-16 [the] elderly individual's own home, neighborhood, or community,
1-17 including:
1-18 (A) day care;
1-19 (B) foster care;
1-20 (C) alternative living plans, including personal
1-21 care services; and
1-22 (D) supportive living services, including
1-23 attendant care, residential repair, or emergency response services.
1-24 (4) "Person providing services" means an individual,
2-1 corporation, association, partnership, or other private or public
2-2 entity providing convalescent and nursing home services, home
2-3 health services, or alternate care services.
2-4 (5) "Elderly individual" means an individual 60 [55]
2-5 years of age or older.
2-6 Sec. 102.002. PROHIBITION. (a) A person providing services
2-7 to the elderly may not deny an elderly individual a right
2-8 guaranteed by this chapter.
2-9 (b) Each agency that licenses, registers, or certifies [If]
2-10 a person providing services [receives funds from the Texas
2-11 Department of Human Services, the department] shall require the
2-12 person to implement and enforce this chapter. A violation of this
2-13 chapter is grounds for suspension or revocation of the license,
2-14 registration, or certification of a person providing services.
2-15 Sec. 102.003. RIGHTS OF THE ELDERLY. (a) An [In addition
2-16 to other rights an] elderly individual has all the rights,
2-17 benefits, responsibilities, and privileges granted by the
2-18 constitution and laws of this state and the United States, except
2-19 where lawfully restricted. The elderly individual has the right to
2-20 be free of interference, coercion, discrimination, and reprisal in
2-21 exercising these civil rights [as a citizen, an elderly individual
2-22 has the rights provided by this section].
2-23 (b) An elderly individual has the right to be treated with
2-24 dignity and respect for the personal integrity of the individual,
2-25 without regard to race, religion, national origin, sex, age,
2-26 disability, marital status, or source of payment. This means that
2-27 the elderly individual:
3-1 (1) has the right to make the individual's own choices
3-2 regarding the individual's personal affairs, care, benefits, and
3-3 services;
3-4 (2) has the right to be free from abuse, neglect, and
3-5 exploitation; and
3-6 (3) if protective measures are required, has the right
3-7 to designate a guardian or representative to ensure the right to
3-8 quality stewardship of the individual's affairs [may not be
3-9 physically or mentally abused or exploited].
3-10 (c) An elderly individual has the right to be free from
3-11 physical and mental abuse, including corporal punishment or
3-12 physical or chemical restraints that are administered for the
3-13 purpose of discipline or convenience and not required to treat the
3-14 individual's medical symptoms. A person providing services may use
3-15 physical or chemical restraints only if the use is authorized in
3-16 writing by a physician or the use is necessary in an emergency to
3-17 protect the elderly individual or others from injury. A physician's
3-18 written authorization for the use of restraints must specify the
3-19 circumstances under which the restraints may be used and the
3-20 duration for which the restraints may be used. Except in an
3-21 emergency, restraints may only be administered by qualified medical
3-22 personnel. [may not be physically or chemically restrained unless
3-23 the restraint:]
3-24 [(1) is necessary in an emergency to protect the
3-25 elderly individual or others from injury after the individual harms
3-26 or threatens to harm himself or another; or]
3-27 [(2) is authorized in writing by a physician for a
4-1 limited and specified period of time.]
4-2 (d) A mentally retarded elderly individual with a
4-3 court-appointed guardian of the person may participate in a
4-4 behavior modification program involving use of restraints or
4-5 adverse stimuli only with the informed consent of the [a] guardian.
4-6 (e) [An elderly individual should be treated with respect,
4-7 consideration, and recognition of the individual's dignity and
4-8 individuality. An elderly individual receives personal care and
4-9 private treatment.]
4-10 [(f) An elderly individual may not be denied appropriate
4-11 care on the basis of the individual's race, religion, color,
4-12 national origin, sex, age, handicap, marital status, or source of
4-13 payment.]
4-14 [(g)] An elderly individual may not be prohibited from
4-15 communicating in the individual's native language with other
4-16 individuals or employees for the purpose of acquiring or providing
4-17 any type of treatment, care, or services.
4-18 (f) [(h)] An elderly individual may complain about the
4-19 individual's care or treatment. The complaint may be made
4-20 anonymously or communicated by a person designated by the elderly
4-21 individual. The person providing service shall promptly respond to
4-22 resolve the complaint. The person providing services may not
4-23 discriminate or take other punitive action against an elderly
4-24 individual who makes a complaint [is encouraged and assisted in the
4-25 exercise of an individual's rights. An elderly individual may
4-26 voice grievances or recommend changes in policy or service without
4-27 restraint, interference, coercion, discrimination, or reprisal.
5-1 The person providing services shall develop procedures for
5-2 submitting complaints and recommendations by elderly individuals
5-3 and for assuring a response by the person providing services].
5-4 (g) [(i)] An elderly individual is entitled to privacy
5-5 while attending to personal needs and a private place for receiving
5-6 visitors or associating [may associate, communicate, and meet
5-7 privately] with other individuals unless providing privacy [to do
5-8 so] would infringe on the rights of other individuals. This right
5-9 applies to medical treatment, written communications, telephone
5-10 conversations, meeting with family, and access to resident
5-11 councils. An elderly person may send and receive unopened mail, and
5-12 the person providing services shall ensure that the individual's
5-13 mail is sent and delivered promptly. If an elderly individual is
5-14 married and the spouse is receiving similar services, the couple
5-15 may share a room. [An elderly individual's mail may not be opened
5-16 unless authorized in writing by a physician.]
5-17 (h) [(j)] An elderly individual may participate in
5-18 activities of social, religious, or community groups unless the
5-19 participation interferes with the rights of other persons [a
5-20 physician determines that participation would harm the individual.
5-21 The physician must record the determination in the elderly
5-22 individual's record].
5-23 (i) [(k)] An elderly individual may manage the individual's
5-24 [his] personal financial affairs. The elderly individual may
5-25 authorize in writing another person to manage the individual's
5-26 money. The elderly individual may choose the manner in which the
5-27 individual's money is managed, including a money management
6-1 program, a representative payee program, a financial power of
6-2 attorney, a trust, or a similar method, and the individual may
6-3 choose the least restrictive of these methods. A person designated
6-4 to manage an elderly individual's money shall do so in accordance
6-5 with each applicable program policy, law, or rule. On request of
6-6 the elderly individual or the individual's representative, the
6-7 person designated to manage the elderly individual's money shall
6-8 make available the related financial records and provide an
6-9 accounting of the money. An elderly individual's designation of
6-10 another person to manage the individual's money does not affect the
6-11 individual's ability to exercise another right described by this
6-12 chapter. If an elderly individual is unable to designate another
6-13 person to manage the individual's affairs and a guardian is
6-14 designated by a court, the guardian shall manage the individual's
6-15 money in accordance with the Probate Code and other applicable laws
6-16 [If the elderly individual authorizes in writing the person
6-17 providing services to assist in managing the finances, the person
6-18 providing services shall deposit the elderly individual's funds in
6-19 a separate trust fund and provide the individual with a written
6-20 receipt; provided, however, if federal regulations prescribe a
6-21 different procedure, federal regulations prevail].
6-22 (j) [(l)] An elderly individual is entitled to access to the
6-23 individual's personal and clinical records. These records are
6-24 confidential and may not be released without the elderly
6-25 individual's consent, except the records may be released:
6-26 (1) to another person providing services at the time
6-27 the elderly individual is transferred; or
7-1 (2) if the release is required by another law
7-2 [individual's records are confidential and may not be released
7-3 without the individual's written permission. An elderly individual
7-4 may inspect the individual's personal records maintained by the
7-5 person providing services].
7-6 (k) [(m)] A person providing services shall fully inform an
7-7 elderly individual, in language that the individual can understand,
7-8 of the individual's total medical condition and shall notify the
7-9 individual whenever there is a significant change in the person's
7-10 medical condition [shall answer an elderly individual's questions
7-11 concerning the individual's health, treatment, and condition unless
7-12 a physician determines that the knowledge would harm the
7-13 individual. The physician must record the determination in the
7-14 individual's record].
7-15 (l) [(n)] An elderly individual may choose and retain a
7-16 personal physician and is entitled to be fully informed in advance
7-17 about treatment or care that may affect the individual's
7-18 well-being.
7-19 (m) [(o)] An elderly individual may participate in an
7-20 individual plan of care that describes the individual's medical,
7-21 nursing, and psychological needs and how the needs will be met
7-22 [planning the individual's total care and medical treatment].
7-23 (n) [(p)] An elderly individual may [shall be given the
7-24 opportunity to] refuse medical treatment after the elderly
7-25 individual:
7-26 (1) is advised by the person providing services of the
7-27 possible consequences of refusing treatment; and
8-1 (2) acknowledges that the individual clearly
8-2 understands the consequences of refusing treatment [are fully
8-3 explained].
8-4 [(q) If an area is available, a person providing services
8-5 shall, on request, provide the elderly individual with a private
8-6 area to receive visitors. If the elderly individual is married and
8-7 the spouse is receiving similar services, the couple may share a
8-8 room.]
8-9 [(r) An elderly individual's visitors may not be restricted
8-10 unless a physician determines that a restriction is medically
8-11 necessary.]
8-12 (o) [(s)] An elderly individual may retain and use personal
8-13 [clothing and] possessions, including clothing and furnishings, as
8-14 space permits. The number of personal possessions may be limited
8-15 for [health and safety reasons which are documented in the
8-16 patient's medical record. The number of personal possessions may
8-17 be limited for] the health and safety of other individuals
8-18 [patients].
8-19 (p) [(t)] An elderly individual may refuse [not be required]
8-20 to perform services for the person providing services.
8-21 (q) Not later than the 30th day after the date the elderly
8-22 individual is admitted for service, a [(u) A] person providing
8-23 services shall inform the [an elderly] individual:
8-24 (1) whether the individual is entitled to benefits
8-25 under Medicare or Medicaid; and
8-26 (2) which items and services are covered by these
8-27 benefits, including items or services for which the elderly
9-1 individual may not be charged [in writing of available services and
9-2 the applicable charges if the services are not covered by medicare,
9-3 medicaid, or other form of health insurance].
9-4 (r) [(v)] A person providing services may not transfer or
9-5 discharge an elderly individual unless:
9-6 (1) the transfer is for the elderly individual's
9-7 welfare, and the individual's needs cannot be met by the person
9-8 providing services [medical needs require transfer];
9-9 (2) the elderly individual's health is improved
9-10 sufficiently so that services are no longer needed;
9-11 (3) the elderly individual's health and safety or the
9-12 health and safety of another individual would be endangered if the
9-13 [requires] transfer or discharge was not made;
9-14 (4) the person providing services ceases to operate or
9-15 to participate in the program that reimburses the person providing
9-16 services for the elderly individual's treatment or care; or
9-17 (5) [(3)] the elderly individual fails, after
9-18 reasonable and appropriate notices, to pay for services[, except as
9-19 prohibited by federal law].
9-20 (s) Except in an emergency, a person providing services may
9-21 not transfer or discharge an elderly individual from a residential
9-22 facility until the 30th day after the date the person providing
9-23 services provides written notice to the elderly individual, the
9-24 individual's legal representative, or a member of the individual's
9-25 family stating:
9-26 (1) that the person providing services intends to
9-27 transfer or to discharge the elderly individual;
10-1 (2) the reason for the transfer or discharge listed in
10-2 Subsection (r);
10-3 (3) the effective date of the transfer or discharge;
10-4 (4) if the individual is to be transferred, the
10-5 location to which the individual will be transferred; and
10-6 (5) the individual's right to appeal the action and
10-7 the person to whom the appeal should be directed [(w) Except in an
10-8 emergency situation, if a person providing services intends to
10-9 transfer or discharge an elderly person, the person providing
10-10 services shall notify the individual, the responsible party of the
10-11 patient, and attending physician not later than five days before
10-12 the date on which the individual will be transferred or
10-13 discharged].
10-14 (t) An elderly individual may:
10-15 (1) make a living will by executing a directive under
10-16 the Natural Death Act (Chapter 672, Health and Safety Code);
10-17 (2) execute a durable power of attorney for health
10-18 care under Chapter 135, Civil Practice and Remedies Code; or
10-19 (3) designate a guardian in advance of need to make
10-20 decisions regarding the individual's health care should the
10-21 individual become incapacitated.
10-22 Sec. 102.004. LIST OF RIGHTS. (a) A person providing
10-23 services shall provide each elderly individual with a written list
10-24 of the individual's rights and responsibilities, including each
10-25 provision of Section 102.003 [the rights prescribed by this
10-26 chapter], before providing services or as soon after providing
10-27 services as possible, and shall post the list in a conspicuous
11-1 location.
11-2 (b) A person providing services must inform an elderly
11-3 individual of changes or revisions in the list.
11-4 Sec. 102.005. RIGHTS CUMULATIVE. The rights described in
11-5 this chapter are cumulative of other rights or remedies to which an
11-6 elderly individual may be entitled under law.
11-7 SECTION 2. (a) This Act takes effect September 1, 1997.
11-8 (b) The application of Chapter 102, Human Resources Code, to
11-9 a person who on August 31, 1997, is considered to be an "elderly
11-10 individual" under Chapter 102 is not affected by the change made by
11-11 this Act in the age requirement under that chapter, and Chapter 102
11-12 continues to apply to such a person as if the age requirement had
11-13 not changed.
11-14 SECTION 3. The importance of this legislation and the
11-15 crowded condition of the calendars in both houses create an
11-16 emergency and an imperative public necessity that the
11-17 constitutional rule requiring bills to be read on three several
11-18 days in each house be suspended, and this rule is hereby suspended.