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 * * * * *