1-1     By:  Jones of Dallas, Chavez (Senate Sponsor - Truan) H.B. No. 3100

 1-2           (In the Senate - Received from the House May 12, 1997;

 1-3     May 13, 1997, read first time and referred to Committee on Health

 1-4     and Human Services; May 16, 1997, reported favorably by the

 1-5     following vote:  Yeas 10, Nays 0; May 16, 1997, sent to printer.)

 1-6                            A BILL TO BE ENTITLED

 1-7                                   AN ACT

 1-8     relating to rights of the elderly.

 1-9           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

1-10           SECTION 1.  Chapter 102, Human Resources Code, is amended to

1-11     read as follows:

1-12                     CHAPTER 102.  RIGHTS OF THE ELDERLY

1-13           Sec. 102.001.  DEFINITIONS.  In this chapter:

1-14                 (1)  "Convalescent and nursing home" means an

1-15     institution licensed by the Texas Department of Human Services

1-16     under Chapter 242, Health and Safety Code.

1-17                 (2)  "Home health services" means the provision of

1-18     health service for pay or other consideration in a patient's

1-19     residence regulated under Chapter 142, Health and Safety Code.

1-20                 (3)  "Alternate care" means services [for the elderly]

1-21     provided [by the Texas Department of Human Services] within an

1-22     [the] elderly individual's own home, neighborhood, or community,

1-23     including:

1-24                       (A)  day care;

1-25                       (B)  foster care;

1-26                       (C)  alternative living plans, including personal

1-27     care services; and

1-28                       (D)  supportive living services, including

1-29     attendant care, residential repair, or emergency response services.

1-30                 (4)  "Person providing services" means an individual,

1-31     corporation, association, partnership, or other private or public

1-32     entity providing convalescent and nursing home services, home

1-33     health services, or alternate care services.

1-34                 (5)  "Elderly individual" means an individual 60 [55]

1-35     years of age or older.

1-36           Sec. 102.002.  PROHIBITION.  (a)  A person providing services

1-37     to the elderly may not deny an elderly individual a right

1-38     guaranteed by this chapter.

1-39           (b)  Each agency that licenses, registers, or certifies [If]

1-40     a person providing services [receives funds from the Texas

1-41     Department of Human Services, the department] shall require the

1-42     person to implement and enforce this chapter. A violation of this

1-43     chapter is grounds for suspension or revocation of the license,

1-44     registration, or certification of a person providing services.

1-45           Sec. 102.003.  RIGHTS OF THE ELDERLY.  (a)  An [In addition

1-46     to other rights an] elderly individual has all the rights,

1-47     benefits, responsibilities, and privileges granted by the

1-48     constitution and laws of this state and the United States, except

1-49     where lawfully restricted.  The elderly individual has the right to

1-50     be free of interference, coercion, discrimination, and reprisal in

1-51     exercising these civil rights [as a citizen, an elderly individual

1-52     has the rights provided by this section].

1-53           (b)  An elderly individual has the right to be treated with

1-54     dignity and respect for the personal integrity of the individual,

1-55     without regard to race, religion, national origin, sex, age,

1-56     disability, marital status, or source of payment.  This means that

1-57     the elderly individual:

1-58                 (1)  has the right to make the individual's own choices

1-59     regarding the individual's personal affairs, care, benefits, and

1-60     services;

1-61                 (2)  has  the right to be free from abuse, neglect, and

1-62     exploitation; and

1-63                 (3)  if protective measures are required, has the right

1-64     to designate a guardian or representative to ensure the right to

 2-1     quality stewardship of the individual's affairs [may not be

 2-2     physically or mentally abused or exploited].

 2-3           (c)  An elderly individual has the right to be free from

 2-4     physical and mental abuse, including corporal punishment or

 2-5     physical or chemical restraints that are administered for the

 2-6     purpose of discipline or convenience and not required to treat the

 2-7     individual's medical symptoms.  A person providing services may use

 2-8     physical or chemical restraints only if the use is authorized in

 2-9     writing by a physician or the use is necessary in an emergency to

2-10     protect the elderly individual or others from injury. A physician's

2-11     written authorization for the use of restraints must specify the

2-12     circumstances under which the restraints may be used and the

2-13     duration for which the restraints may be used.  Except in an

2-14     emergency, restraints may only be administered by qualified medical

2-15     personnel.  [may not be physically or chemically restrained unless

2-16     the restraint:]

2-17                 [(1)  is necessary in an emergency to protect the

2-18     elderly individual or others from injury after the individual harms

2-19     or threatens to harm himself or another; or]

2-20                 [(2)  is authorized in writing by a physician for a

2-21     limited and specified period of time.]

2-22           (d)  A mentally retarded elderly individual with a

2-23     court-appointed guardian of the person may participate in a

2-24     behavior modification program involving use of restraints or

2-25     adverse stimuli only with the informed consent of the [a] guardian.

2-26           (e)  [An elderly individual should be treated with respect,

2-27     consideration, and recognition of the individual's dignity and

2-28     individuality.  An elderly individual receives personal care and

2-29     private treatment.]

2-30           [(f)  An elderly individual may not be denied appropriate

2-31     care on the basis of the individual's race, religion, color,

2-32     national origin, sex, age, handicap, marital status, or source of

2-33     payment.]

2-34           [(g)]  An elderly individual may not be prohibited from

2-35     communicating in the individual's native language with other

2-36     individuals or employees for the purpose of acquiring or providing

2-37     any type of treatment, care, or services.

2-38           (f) [(h)]  An elderly individual may complain about the

2-39     individual's care or treatment.  The complaint may be made

2-40     anonymously or communicated by a person designated by the elderly

2-41     individual. The person providing service shall promptly respond to

2-42     resolve the complaint.  The person providing services may not

2-43     discriminate or take other punitive action against an elderly

2-44     individual who makes a complaint [is encouraged and assisted in the

2-45     exercise of an individual's rights.  An elderly individual may

2-46     voice grievances or recommend changes in policy or service without

2-47     restraint, interference, coercion, discrimination, or reprisal.

2-48     The person providing services shall develop procedures for

2-49     submitting complaints and recommendations by elderly individuals

2-50     and for assuring a response by the person providing services].

2-51           (g) [(i)]  An elderly individual is entitled to privacy

2-52     while attending to personal needs and a private place for receiving

2-53     visitors or associating [may associate,  communicate, and meet

2-54     privately] with other individuals unless providing privacy [to do

2-55     so] would infringe on the rights of other individuals. This right

2-56     applies to medical treatment, written communications, telephone

2-57     conversations, meeting with family, and access to resident

2-58     councils. An elderly person may send and receive unopened mail, and

2-59     the person providing services shall ensure that the individual's

2-60     mail is sent and delivered promptly.  If an elderly individual is

2-61     married and the spouse is receiving similar services, the couple

2-62     may share a room.  [An elderly individual's mail may not be opened

2-63     unless authorized in writing by a physician.]

2-64           (h) [(j)]  An elderly individual may participate in

2-65     activities of social, religious, or community groups unless the

2-66     participation interferes with the rights of other persons [a

2-67     physician determines that participation would harm the individual.

2-68     The physician must record the determination in the elderly

2-69     individual's record].

 3-1           (i) [(k)]  An elderly individual may manage the individual's

 3-2     [his] personal financial affairs. The elderly individual may

 3-3     authorize in writing another person to manage the individual's

 3-4     money.  The elderly individual may choose the manner in which the

 3-5     individual's money is managed, including a money management

 3-6     program, a representative payee program, a financial power of

 3-7     attorney, a trust, or a similar method, and the individual may

 3-8     choose the least restrictive of these methods.  A person designated

 3-9     to manage an elderly individual's money shall do so in accordance

3-10     with each applicable program policy, law, or rule. On request of

3-11     the elderly individual or the individual's representative, the

3-12     person designated to manage the elderly individual's money shall

3-13     make available the related financial records and provide an

3-14     accounting of the money. An elderly individual's designation of

3-15     another person to manage the individual's money does not affect the

3-16     individual's ability to exercise another right described by this

3-17     chapter.  If an elderly individual is unable to designate another

3-18     person to manage the individual's affairs and a guardian is

3-19     designated by a court, the guardian shall manage the individual's

3-20     money in accordance with the Probate Code and other applicable laws

3-21     [If the elderly individual authorizes in writing the person

3-22     providing services to assist in managing the finances, the person

3-23     providing services shall deposit the elderly individual's funds in

3-24     a separate trust fund and provide the individual with a written

3-25     receipt; provided, however, if federal regulations prescribe a

3-26     different procedure, federal regulations prevail].

3-27           (j) [(l)]  An elderly individual is entitled to access to the

3-28     individual's personal and clinical records.  These records are

3-29     confidential and may not be released without the elderly

3-30     individual's consent, except the records may be released:

3-31                 (1)  to another person providing services at the time

3-32     the elderly individual is transferred; or

3-33                 (2)  if the release is required by another law

3-34     [individual's records are confidential and may not be released

3-35     without the individual's written permission.  An elderly individual

3-36     may inspect the individual's personal records maintained by the

3-37     person providing services].

3-38           (k) [(m)]  A person providing services shall fully inform an

3-39     elderly individual, in language that the individual can understand,

3-40     of the individual's total medical condition and shall notify the

3-41     individual whenever there is a significant change in the person's

3-42     medical condition [shall answer an elderly individual's questions

3-43     concerning the individual's health, treatment, and condition unless

3-44     a physician determines that the knowledge would harm the

3-45     individual.  The physician must record the determination in the

3-46     individual's record].

3-47           (l) [(n)]  An elderly individual may choose and retain a

3-48     personal physician and is entitled to be fully informed in  advance

3-49     about treatment or care that may affect the individual's

3-50     well-being.

3-51           (m) [(o)]  An elderly individual may participate in an

3-52     individual plan of care that describes the individual's medical,

3-53     nursing, and psychological needs and how the needs will be met

3-54     [planning the individual's total care and medical treatment].

3-55           (n) [(p)]  An elderly individual may [shall be given the

3-56     opportunity to] refuse medical treatment after the  elderly

3-57     individual:

3-58                 (1)  is advised by the person providing services of the

3-59     possible consequences of refusing treatment; and

3-60                 (2)  acknowledges that the individual clearly

3-61     understands the consequences of refusing treatment [are fully

3-62     explained].

3-63           [(q)  If an area is available, a person providing services

3-64     shall, on request, provide the elderly individual with a private

3-65     area to receive visitors.  If the elderly individual is married and

3-66     the spouse is receiving similar services, the couple may share a

3-67     room.]

3-68           [(r)  An elderly individual's visitors may not be restricted

3-69     unless a physician determines that a restriction is medically

 4-1     necessary.]

 4-2           (o) [(s)]  An elderly individual may retain and use personal

 4-3     [clothing and] possessions, including clothing and furnishings, as

 4-4     space permits.  The number of personal possessions may be limited

 4-5     for [health and safety reasons which are documented in the

 4-6     patient's medical record.  The number of personal possessions may

 4-7     be limited for] the health and safety of other individuals

 4-8     [patients].

 4-9           (p) [(t)]  An elderly individual may refuse [not be required]

4-10     to perform services for the person providing services.

4-11           (q)  Not later than the 30th day after the date the elderly

4-12     individual is admitted for service, a [(u) A] person providing

4-13     services shall inform the [an elderly] individual:

4-14                 (1)  whether the individual is entitled to benefits

4-15     under Medicare or Medicaid; and

4-16                 (2)  which items and services are covered by these

4-17     benefits, including items or services for which the elderly

4-18     individual may not be charged [in writing of available services and

4-19     the applicable charges if the services are not covered by medicare,

4-20     medicaid,  or other form of health insurance].

4-21           (r) [(v)]  A person providing services may not transfer or

4-22     discharge an elderly individual unless:

4-23                 (1)  the transfer is for the elderly individual's

4-24     welfare, and the individual's needs cannot be met by the person

4-25     providing  services [medical needs require transfer];

4-26                 (2)  the elderly individual's health is improved

4-27     sufficiently so that services are no longer needed;

4-28                 (3)  the elderly individual's health and safety or the

4-29     health and safety of another individual would be endangered if the

4-30     [requires] transfer or discharge was not made;

4-31                 (4)  the person providing services ceases to operate or

4-32     to participate in the program that reimburses the person providing

4-33     services for the elderly individual's treatment or care; or

4-34                 (5) [(3)]  the elderly individual fails, after

4-35     reasonable and appropriate notices, to pay for services[, except as

4-36     prohibited by federal law].

4-37           (s)  Except in an emergency, a person providing services may

4-38     not transfer or discharge an elderly individual from a residential

4-39     facility until the 30th day after the date the person providing

4-40     services provides written notice to the elderly individual, the

4-41     individual's legal representative, or a member of the individual's

4-42     family stating:

4-43                 (1)  that the person providing services intends to

4-44     transfer or to discharge the elderly individual;

4-45                 (2)  the reason for the transfer or discharge listed in

4-46     Subsection (r);

4-47                 (3)  the effective date of the transfer or discharge;

4-48                 (4)  if the individual is to be transferred, the

4-49     location to which the individual will be transferred; and

4-50                 (5)  the individual's right to appeal the action and

4-51     the person to whom the appeal should be directed [(w)  Except in an

4-52     emergency situation, if a person providing services intends to

4-53     transfer or discharge an elderly person, the person providing

4-54     services shall notify the individual, the responsible party of the

4-55     patient, and attending physician not later than five days before

4-56     the date on which the individual will be transferred or

4-57     discharged].

4-58           (t)  An elderly individual may:

4-59                 (1)  make a living will by executing a directive under

4-60     the Natural Death Act (Chapter 672, Health and Safety Code);

4-61                 (2)  execute a durable power of attorney for health

4-62     care under Chapter 135, Civil Practice and Remedies Code; or

4-63                 (3)  designate a guardian in advance of need to make

4-64     decisions regarding the individual's health care should the

4-65     individual become incapacitated.

4-66           Sec. 102.004.  LIST OF RIGHTS.  (a)  A person providing

4-67     services shall provide each elderly individual with a written list

4-68     of the individual's rights and responsibilities, including each

4-69     provision of Section 102.003 [the rights prescribed by this

 5-1     chapter], before providing services or as soon after providing

 5-2     services as possible, and shall post the list in a conspicuous

 5-3     location.

 5-4           (b)  A person providing services must inform an elderly

 5-5     individual of changes or revisions in the list.

 5-6           Sec. 102.005.  RIGHTS CUMULATIVE.  The rights described in

 5-7     this chapter are cumulative of other rights or remedies to which an

 5-8     elderly individual may be entitled under law.

 5-9           SECTION 2.  (a)  This Act takes effect September 1, 1997.

5-10           (b)  The application of Chapter 102, Human Resources Code, to

5-11     a person who on August 31, 1997, is considered to be an "elderly

5-12     individual" under Chapter 102 is not affected by the change made by

5-13     this Act in the age requirement under that chapter, and Chapter 102

5-14     continues to apply to such a person as if the age requirement had

5-15     not changed.

5-16           SECTION 3.  The importance of this legislation and the

5-17     crowded condition of the calendars in both houses create an

5-18     emergency and an imperative public necessity that the

5-19     constitutional rule requiring bills to be read on three several

5-20     days in each house be suspended, and this rule is hereby suspended.

5-21                                  * * * * *