By Zaffirini S.B. No. 374
76R827 MXM-D
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the creation of and transfer of certain programs to a
1-3 long-term care agency on human services, aging, health, and
1-4 rehabilitation and the transfer of certain functions from the
1-5 Department on Aging to the Independent Aging Policy Council.
1-6 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-7 SECTION 1. Title 2, Health and Safety Code, is amended by
1-8 adding Subtitle I to read as follows:
1-9 SUBTITLE I. LONG-TERM CARE
1-10 CHAPTER 181. DEPARTMENT OF LONG-TERM CARE SERVICES
1-11 SUBCHAPTER A. GENERAL PROVISIONS; ORGANIZATION OF DEPARTMENT
1-12 Sec. 181.001. DEFINITIONS. In this chapter:
1-13 (1) "Board" means the Texas Board of Long-term Care
1-14 Services.
1-15 (2) "Commissioner" means the Commissioner of Long-term
1-16 Care Services.
1-17 (3) "Department" means the Texas Department of
1-18 Long-term Care Services.
1-19 (4) "Elderly person" means an individual who is 60
1-20 years of age or older.
1-21 Sec. 181.002. TEXAS DEPARTMENT OF LONG-TERM CARE. The Texas
1-22 Department of Long-term Care Services is an agency of this state.
1-23 Sec. 181.003. SUNSET PROVISION. The Texas Department of
1-24 Long-term Care Services is subject to Chapter 325, Government Code
2-1 (Texas Sunset Act). Unless continued in existence as provided by
2-2 that chapter, the department is abolished and this subtitle expires
2-3 September 1, 2007.
2-4 Sec. 181.004. BOARD OF LONG-TERM CARE SERVICES. (a) The
2-5 Texas Board of Long-term Care Services is responsible for the
2-6 adoption of policies and rules for the government of the
2-7 department.
2-8 (b) The board is composed of six members appointed by the
2-9 governor with the advice and consent of the senate. To qualify for
2-10 appointment to the board, a person must have demonstrated an
2-11 interest in and knowledge of long-term care services.
2-12 (c) At least two members must be representatives of the
2-13 general public. A person may not be a public member of the board
2-14 if the person or the person's spouse:
2-15 (1) is registered, certified, or licensed by a
2-16 regulatory agency in the field of long-term care services;
2-17 (2) is employed by or participates in the management
2-18 of a business entity or other organization regulated by or
2-19 receiving money from the department;
2-20 (3) owns or controls, directly or indirectly, more
2-21 than a 10 percent interest in a business entity or other
2-22 organization regulated by or receiving money from the department;
2-23 or
2-24 (4) uses or receives a substantial amount of tangible
2-25 goods, services, or money from the department other than
2-26 compensation or reimbursement authorized by law for board
2-27 membership, attendance, or expenses.
3-1 (d) Members of the board serve for staggered terms of six
3-2 years with the terms of one-third of the members expiring on
3-3 February 1 of each odd-numbered year.
3-4 (e) The governor shall designate a member of the board as
3-5 the presiding officer of the board to serve in that capacity at the
3-6 will of the governor.
3-7 (f) Appointments to the board shall be made without regard
3-8 to the race, color, disability, sex, religion, age, or national
3-9 origin of the appointees.
3-10 (g) A member is not entitled to compensation but is entitled
3-11 to reimbursement of the travel expenses incurred by the member
3-12 while conducting the business of the board, as provided in the
3-13 General Appropriations Act.
3-14 Sec. 181.005. COMMISSIONER. (a) The board shall appoint a
3-15 commissioner of long-term care services with the approval of the
3-16 Health and Human Services Commissioner and the governor. The
3-17 commissioner is the executive and administrative officer of the
3-18 department and shall serve at the will of the board.
3-19 (b) The commissioner shall be appointed without regard to
3-20 race, color, disability, sex, religion, age, or national origin.
3-21 Sec. 181.006. ELIGIBILITY. (a) In this section, "Texas
3-22 trade association" means a cooperative and voluntarily joined
3-23 association of business or professional competitors in this state
3-24 designed to assist its members and its industry or profession in
3-25 dealing with mutual business or professional problems and in
3-26 promoting their common interest.
3-27 (b) A person may not be a member of the board and may not be
4-1 a department employee employed in a "bona fide executive,
4-2 administrative, or professional capacity," as that phrase is used
4-3 for purposes of establishing an exemption to the overtime
4-4 provisions of the federal Fair Labor Standards Act of 1938 (29
4-5 U.S.C. Section 201 et seq.) and its subsequent amendments, if:
4-6 (1) the person is an officer, employee, or paid
4-7 consultant of a Texas trade association in the field of long-term
4-8 care services; or
4-9 (2) the person's spouse is an officer, manager, or
4-10 paid consultant of a Texas trade association in the field of
4-11 long-term care services.
4-12 (c) A person may not be a member of the board or act as the
4-13 general counsel to the board or the department if the person is
4-14 required to register as a lobbyist under Chapter 305, Government
4-15 Code, because of the person's activities for compensation on behalf
4-16 of a profession related to the operation of the department.
4-17 Sec. 181.007. REMOVAL. (a) It is a ground for removal from
4-18 the board that a member:
4-19 (1) does not have at the time of taking office the
4-20 qualifications required by Section 181.004;
4-21 (2) does not maintain during service on the board the
4-22 qualifications required by Section 181.004;
4-23 (3) is ineligible for membership under Section
4-24 181.006;
4-25 (4) cannot, because of illness or disability,
4-26 discharge the member's duties for a substantial part of the
4-27 member's term; or
5-1 (5) is absent from more than half of the regularly
5-2 scheduled board meetings that the member is eligible to attend
5-3 during a calendar year without an excuse approved by a majority
5-4 vote of the board.
5-5 (b) The validity of an action of the board is not affected
5-6 by the fact that it is taken when a ground for removal of a board
5-7 member exists.
5-8 (c) If the commissioner has knowledge that a potential
5-9 ground for removal exists, the commissioner shall notify the
5-10 presiding officer of the board of the potential ground. The
5-11 presiding officer shall then notify the governor and the attorney
5-12 general that a potential ground for removal exists. If the
5-13 potential ground for removal involves the presiding officer, the
5-14 commissioner shall notify the next highest ranking officer of the
5-15 board, who shall then notify the governor and the attorney general
5-16 that a potential ground for removal exists.
5-17 Sec. 181.008. BOARD TRAINING. (a) A person who is
5-18 appointed to and qualifies for office as a member of the board may
5-19 not vote, deliberate, or be counted as a member in attendance at a
5-20 meeting of the board until the person completes a training program
5-21 that complies with this section.
5-22 (b) The training program must provide the person with
5-23 information regarding:
5-24 (1) the legislation that created the department and
5-25 the board;
5-26 (2) the programs operated by the department;
5-27 (3) the role and functions of the department;
6-1 (4) the rules of the department with an emphasis on
6-2 the rules that relate to disciplinary and investigatory authority;
6-3 (5) the current budget for the department;
6-4 (6) the results of the most recent formal audit of the
6-5 department;
6-6 (7) the requirements of:
6-7 (A) the open meetings law, Chapter 551,
6-8 Government Code;
6-9 (B) the public information law, Chapter 552,
6-10 Government Code;
6-11 (C) the administrative procedure law, Chapter
6-12 2001, Government Code; and
6-13 (D) other laws relating to public officials,
6-14 including conflict-of-interest laws; and
6-15 (8) any applicable ethics policies adopted by the
6-16 department or the Texas Ethics Commission.
6-17 (c) A person appointed to the board is entitled to
6-18 reimbursement, as provided by the General Appropriations Act, for
6-19 the travel expenses incurred in attending the training program
6-20 regardless of whether the attendance at the program occurs before
6-21 or after the person qualifies for office.
6-22 Sec. 181.009. SEPARATION OF RESPONSIBILITIES. The board
6-23 shall develop and implement policies that clearly separate the
6-24 policymaking responsibilities of the board and the management
6-25 responsibilities of the commissioner and staff of the department.
6-26 Sec. 181.010. DIVISIONS OF DEPARTMENT. (a) The
6-27 commissioner may establish divisions within the department as
7-1 necessary for effective administration and for the discharge of the
7-2 department's functions.
7-3 (b) The commissioner may allocate and reallocate functions
7-4 among the department's divisions.
7-5 Sec. 181.011. PERSONNEL. (a) The commissioner may employ
7-6 personnel necessary to administer the department's duties.
7-7 (b) The commissioner or the commissioner's designated
7-8 representative shall develop an intra-agency career ladder program,
7-9 one part of which must require the intra-agency posting of all
7-10 non-entry-level positions concurrently with any public posting.
7-11 Sec. 181.012. EQUAL EMPLOYMENT OPPORTUNITY. (a) The
7-12 commissioner or the commissioner's designee shall prepare and
7-13 maintain a written policy statement that implements a program of
7-14 equal employment opportunity to ensure that all personnel decisions
7-15 are made without regard to race, color, disability, sex, religion,
7-16 age, or national origin.
7-17 (b) The policy statement must include:
7-18 (1) personnel policies, including policies relating to
7-19 recruitment, evaluation, selection, training, and promotion of
7-20 personnel, that show the intent of the department to avoid the
7-21 unlawful employment practices described by Chapter 21, Labor Code;
7-22 and
7-23 (2) an analysis of the extent to which the composition
7-24 of the department's personnel is in accordance with state and
7-25 federal law and a description of reasonable methods to achieve
7-26 compliance with state and federal law.
7-27 (c) The policy statement must:
8-1 (1) be updated annually;
8-2 (2) be reviewed by the state Commission on Human
8-3 Rights for compliance with Subsection (b)(1); and
8-4 (3) be filed with the governor's office.
8-5 Sec. 181.013. STANDARDS OF CONDUCT. The commissioner or the
8-6 commissioner's designee shall provide to members of the board and
8-7 to department employees, as often as necessary, information
8-8 regarding the requirements for office or employment under this
8-9 chapter, including information regarding a person's
8-10 responsibilities under applicable laws relating to standards of
8-11 conduct for state officers or employees.
8-12 Sec. 181.014. MERIT SYSTEM. (a) The department may
8-13 establish a merit system for its employees.
8-14 (b) The merit system may be maintained in conjunction with
8-15 other state agencies that are required by federal law to operate
8-16 under a merit system.
8-17 Sec. 181.015. PUBLIC INPUT INFORMATION AND COMPLAINTS. (a)
8-18 The department shall develop and implement policies that provide
8-19 the public a reasonable opportunity to appear before the board and
8-20 to speak on any issue under the department's jurisdiction.
8-21 (b) The department shall maintain a file on each written
8-22 complaint filed with the department. The file must include:
8-23 (1) the name of the person who filed the complaint;
8-24 (2) the date the complaint is received by the
8-25 department;
8-26 (3) the subject matter of the complaint;
8-27 (4) the name of each person contacted in relation to
9-1 the complaint;
9-2 (5) a summary of the results of the review or
9-3 investigation of the complaint; and
9-4 (6) an explanation of the reason the file was closed
9-5 if the agency closed the file without taking action other than to
9-6 investigate the complaint.
9-7 (c) The department shall provide to the person filing the
9-8 complaint and to each person who is a subject of the complaint a
9-9 copy of the department's policies and procedures relating to
9-10 complaint investigation and resolution.
9-11 (d) The department, at least quarterly until final
9-12 disposition of the complaint, shall notify the person filing the
9-13 complaint and each person who is a subject of the complaint of the
9-14 status of the investigation unless the notice would jeopardize an
9-15 undercover investigation.
9-16 Sec. 181.016. ADVISORY COMMITTEES. The board may appoint,
9-17 on the commissioner's recommendation, advisory committees as
9-18 needed.
9-19 (Sections 181.017-181.030 reserved for expansion
9-20 SUBCHAPTER B. POWERS AND DUTIES
9-21 Sec. 181.031. GENERAL POWERS AND DUTIES. (a) The
9-22 department has all the powers and duties necessary to administer
9-23 this chapter.
9-24 (b) The department shall:
9-25 (1) administer this state's long-term care services
9-26 programs; and
9-27 (2) conduct a statewide needs assessment for long-term
10-1 care services.
10-2 Sec. 181.032. RULES. The board shall adopt rules necessary
10-3 to carry out the department's powers and duties under this chapter.
10-4 Sec. 181.033. CONTRACTS. The department may enter into
10-5 contracts as necessary to perform any of the department's powers or
10-6 duties.
10-7 Sec. 181.034. LONG-TERM CARE SERVICES. The department is
10-8 responsible for long-term care regulation and rate setting,
10-9 including licensing, certification, surveys, and investigations of
10-10 abuse, neglect, or exploitation.
10-11 Sec. 181.035. INVESTIGATIONS AND ENFORCEMENT. The
10-12 department is responsible for the investigation of fraud in the
10-13 provision of long-term care services and the enforcement of state
10-14 law relating to the provision of those services.
10-15 Sec. 181.036. SERVICES FOR ELDERLY PERSONS. The department
10-16 shall develop, strengthen, extend, and expand services available
10-17 for elderly persons to the extent funds are appropriated and
10-18 available for that purpose.
10-19 Sec. 181.037. AREA AGENCIES ON AGING. (a) The department
10-20 shall encourage, promote, and aid in the establishment and
10-21 maintenance of area agencies on aging for the development of
10-22 programs and services on a local level that improve the living
10-23 conditions of the aged by enabling them to more fully enjoy and
10-24 participate in family and community life.
10-25 (b) The department must receive approval from the Health and
10-26 Human Services Commission before it may alter an area agency
10-27 planning service area in effect on September 1, 1999.
11-1 Sec. 181.038. TRUSTS FOR CERTAIN RECIPIENTS OF MEDICAL
11-2 ASSISTANCE. (a) An area agency on aging may contract with one or
11-3 more private attorneys to establish trusts described by 42 U.S.C.
11-4 Section 1396p(d)(4)(B), as amended, for the benefit of recipients
11-5 of medical assistance under Chapter 32, Human Resources Code, who,
11-6 without the establishment of these trusts, would become ineligible
11-7 for medical assistance.
11-8 (b) The department shall allocate available state funds to
11-9 the area agencies on aging for use in contracting for the
11-10 establishment of trusts under Subsection (a).
11-11 Sec. 181.039. INFORMATION ON COMMUNITY SERVICES. (a) If
11-12 the department determines that a person is not eligible for a level
11-13 of care in a nursing home, the department shall inform the person
11-14 that community services might be available under the community care
11-15 for the aged and disabled program administered by the department.
11-16 (b) The department shall provide to the person a list of
11-17 services available under the program and information on the
11-18 services.
11-19 (Sections 181.040-181.060 reserved for expansion
11-20 SUBCHAPTER C. FINANCIAL PROVISIONS
11-21 Sec. 181.061. ANNUAL REPORT. The department shall file
11-22 annually with the governor and the presiding officer of each house
11-23 of the legislature a report accounting for money received and
11-24 disbursed by the department during the preceding fiscal year.
11-25 Sec. 181.062. FINANCIAL AUDIT. The financial transactions
11-26 of the department are subject to audit by the state auditor in
11-27 accordance with Chapter 321, Government Code.
12-1 Sec. 181.063. DONATIONS. The department may accept a
12-2 donation from any source to perform any of the department's powers
12-3 or duties.
12-4 Sec. 181.064. REVIEW OF ADMINISTRATIVE COSTS AND PROGRAMS.
12-5 (a) The board by rule shall define "administrative costs" as used
12-6 in this section. However, if a standard definition of
12-7 administrative costs is required by law to be used by state
12-8 agencies, the board shall use that definition.
12-9 (b) To determine the administrative costs incurred by an
12-10 entity, including an area agency on aging and including an entity
12-11 that spends money distributed by the department under Section
12-12 312.001, Labor Code, or Section 181.104, in engaging in a program
12-13 that is funded in any part by money derived from the department,
12-14 the department shall request appropriate information from the
12-15 entity.
12-16 (c) The board shall establish the maximum amount of
12-17 administrative costs that may be incurred by the entity in engaging
12-18 in the program.
12-19 Sec. 181.065. REPORT ON UNIT COSTS. The department shall
12-20 file with the Legislative Budget Board and the Governor's Office of
12-21 Budget and Planning a report that clearly identifies the unit cost
12-22 of each service, other than services related to community service
12-23 volunteering and subsidized employment services, provided by an
12-24 area agency on aging. The report must be filed twice each year on
12-25 or before the date specified by the Legislative Budget Board. The
12-26 report must be in the form required by the Legislative Budget
12-27 Board.
13-1 (Sections 181.066-181.100 reserved for expansion
13-2 SUBCHAPTER D. PROGRAMS
13-3 Sec. 181.101. GENERAL. The department is responsible for
13-4 administering the programs in this subchapter as well as any other
13-5 programs designated for the department in other laws.
13-6 Sec. 181.102. COOPERATION WITH FEDERAL AND STATE AGENCIES.
13-7 (a) The department is the state agency designated to handle
13-8 federal programs relating to the aged that require action within
13-9 the state and that are not the specific responsibility of another
13-10 state agency under federal or state law.
13-11 (b) The department is not intended to supplant or to take
13-12 over from the counties and municipalities of this state or from
13-13 other state agencies or facilities any of the specific
13-14 responsibilities that they hold. The department shall cooperate
13-15 with federal and state agencies, counties, and municipalities and
13-16 private agencies or facilities in this state to accomplish the
13-17 purposes of this chapter.
13-18 (c) The department shall cooperate with the Texas Department
13-19 of Housing and Community Affairs to provide affordable housing for
13-20 elderly individuals and for families in which an elderly individual
13-21 is head of the household and shall:
13-22 (1) assess the need for housing for elderly
13-23 individuals and for families in which an elderly individual is head
13-24 of the household in different localities;
13-25 (2) set standards relating to the design and
13-26 construction of housing for elderly individuals;
13-27 (3) provide planning assistance to builders; and
14-1 (4) publicize the availability of the housing program
14-2 to potential developers and residents.
14-3 Sec. 181.103. WORK GROUP. (a) In this section, "long-term
14-4 care facilities" includes nursing facilities, personal care homes,
14-5 group homes, and intermediate care facilities and other
14-6 institutional care facilities for persons with mental retardation.
14-7 (b) A work group is created to assist the department and the
14-8 Texas Department of Mental Health and Mental Retardation in
14-9 studying coordination of planning and services between the two
14-10 agencies in providing long-term care services.
14-11 (c) The work group is composed of:
14-12 (1) representatives of the department, appointed by
14-13 the commissioner;
14-14 (2) representatives of the Texas Department of Mental
14-15 Health and Mental Retardation, appointed by the commissioner of
14-16 mental health and mental retardation;
14-17 (3) consumers of long-term care, jointly appointed by
14-18 the commissioner and the commissioner of mental health and mental
14-19 retardation;
14-20 (4) advocates for the elderly, appointed by the
14-21 commissioner; and
14-22 (5) long-term care providers, jointly appointed by the
14-23 commissioner and the commissioner of mental health and mental
14-24 retardation.
14-25 (d) A member of the work group serves at the will of the
14-26 appointing agency.
14-27 (e) The commissioner and the commissioner of mental health
15-1 and mental retardation shall jointly appoint a member of the work
15-2 group to serve as presiding officer, and members of the work group
15-3 shall elect any other necessary officers.
15-4 (f) The work group shall meet at the call of the presiding
15-5 officer.
15-6 (g) A member of the work group receives no additional
15-7 compensation for serving on the work group.
15-8 (h) The work group shall study and report on coordination of
15-9 planning and services between the two agencies in providing
15-10 long-term care services. As part of its study and report on
15-11 coordination, the work group shall additionally study and make
15-12 recommendations on the development of consistent and standardized:
15-13 (1) regulation of residential and community long-term
15-14 care facilities;
15-15 (2) rate-setting processes for long-term care
15-16 providers and facilities;
15-17 (3) contractor monitoring for long-term care providers
15-18 and facilities; and
15-19 (4) intake, assessment, referral, and coordinated case
15-20 management procedures for Medicaid waiver programs.
15-21 (i) The work group shall report annually to the commissioner
15-22 and the commissioner of mental health and mental retardation. The
15-23 report must include any recommendations on subjects the work group
15-24 has studied.
15-25 (j) The work group is not subject to Chapter 2110,
15-26 Government Code.
15-27 Sec. 181.104. VOLUNTARY COMMUNITY SERVICES PROGRAMS. (a)
16-1 The department shall disburse state funds appropriated for that
16-2 purpose to local public agencies or private, nonprofit corporations
16-3 that operate programs to recruit retired persons to perform
16-4 voluntary community services or that operate Foster Grandparent
16-5 Programs.
16-6 (b) A public agency or private, nonprofit corporation may
16-7 not receive state money under this section if it is not able to
16-8 qualify for federal matching money for the same purpose.
16-9 (c) The board by rule shall establish guidelines or formulas
16-10 to determine the proportion of state money distributed to each
16-11 public agency or private, nonprofit corporation. The board by rule
16-12 may establish additional qualifications to receive the state money.
16-13 (d) State funds disbursed under this section may not be used
16-14 to pay compensation to volunteer workers, except for participants
16-15 in the Foster Grandparent Programs, or for purposes other than
16-16 financing the operation or administration of the volunteer
16-17 programs, but it may be used to defray expenses incurred by
16-18 volunteers in the performance of volunteer work. The board by rule
16-19 may further limit the purposes for which the state money may be
16-20 spent.
16-21 Sec. 181.105. PUBLIC INFORMATION ON COST OF LONG-TERM CARE.
16-22 The department shall develop programs to provide information to the
16-23 public relating to:
16-24 (1) the cost of long-term care;
16-25 (2) the limits on Medicaid eligibility;
16-26 (3) the adequacy or inadequacy of other financing
16-27 options, including Medicare; and
17-1 (4) possible methods of financing long-term care,
17-2 including group insurance policies and other methods designed to
17-3 assist individuals.
17-4 Sec. 181.106. PROGRAMS FOR DEAF-BLIND MULTIHANDICAPPED
17-5 INDIVIDUALS AND THEIR PARENTS. (a) The department shall establish
17-6 programs to serve deaf-blind multihandicapped individuals by
17-7 helping them attain self-sufficiency and independent living.
17-8 (b) The department shall establish a program of parental
17-9 counseling for the parents of deaf-blind multihandicapped
17-10 individuals. The counseling program may be provided on an
17-11 individual or group basis and must include programs, activities,
17-12 and services necessary to foster greater understanding and to
17-13 improve relationships among professionals, parents, and deaf-blind
17-14 multihandicapped individuals.
17-15 (c) The department shall establish a summer outdoor training
17-16 program for deaf-blind multihandicapped individuals. The outdoor
17-17 training program must be designed to help meet the unique needs of
17-18 deaf-blind multihandicapped individuals for the purpose of
17-19 broadening their educational experiences and improving their
17-20 ability to function more independently.
17-21 (d) The department shall adopt rules for implementing and
17-22 administering the programs.
17-23 (e) The department may contract for services or goods with
17-24 private or public entities for purposes of this section.
17-25 (f) From information collected from the programs, the
17-26 department shall determine the need for related future services and
17-27 the most efficient and effective method of delivering the future
18-1 services.
18-2 (Sections 181.107-181.200 reserved for expansion
18-3 SECTION 2. Effective September 1, 2000, Subchapter C,
18-4 Chapter 101, Human Resources Code, is transferred to Chapter 181,
18-5 Health and Safety Code, as added by this Act, is redesignated as
18-6 Subchapter E, Chapter 181, Health and Safety Code, and is amended
18-7 to read as follows:
18-8 SUBCHAPTER E [C]. OPTIONS FOR INDEPENDENT LIVING
18-9 Sec. 181.201 [101.041]. DEFINITIONS. In this subchapter:
18-10 (1) "Case management" means the process of assessing
18-11 service needs, developing a plan of care, and arranging for and
18-12 monitoring delivery of care to an elderly person under this
18-13 subchapter.
18-14 (2) "Case management unit" is an entity that
18-15 coordinates and administers case management.
18-16 (3) "Elderly person" means a person who is 60 years of
18-17 age or older.
18-18 (4) "Service area" means a geographical area of the
18-19 state designated for purposes of planning, development, and overall
18-20 administration of services provided under this subchapter.
18-21 Sec. 181.202 [101.042]. OPTIONS FOR INDEPENDENT LIVING. (a)
18-22 The department shall establish a statewide program entitled Options
18-23 for Independent Living to help elderly persons remain at home
18-24 despite limited self-care capacities and to prevent
18-25 institutionalization.
18-26 (b) The Options for Independent Living program shall provide
18-27 short-term support services to elderly persons for the purposes of:
19-1 (1) restoring functional capacities after illness or
19-2 hospitalization; and
19-3 (2) educating and preparing elderly persons and their
19-4 caregivers to provide self-care.
19-5 Sec. 181.203 [101.043]. PERSONS TO BE SERVED. (a) The
19-6 program shall give priority to an elderly person who:
19-7 (1) has recently suffered a major illness or health
19-8 care crisis or has recently been hospitalized;
19-9 (2) lives in a rural area;
19-10 (3) has insufficient caregiver support;
19-11 (4) has a mild to moderate impairment or a temporary
19-12 severe impairment; and
19-13 (5) is in great economic or social need, with
19-14 particular attention to low-income minority older persons.
19-15 (b) [The department shall maintain a memorandum of agreement
19-16 with the Texas Department of Human Services assuring that there is
19-17 no duplication of services to persons served by the community care
19-18 for aged and disabled program of the Texas Department of Human
19-19 Services.]
19-20 [(c)] In awarding funding the department shall serve
19-21 priority populations consistent with the Older Americans Act of
19-22 1965 (42 U.S.C. Section 3001 et seq.), as amended.
19-23 Sec. 181.204 [101.044]. PROVISION OF SERVICES. (a) Support
19-24 services shall include:
19-25 (1) case management;
19-26 (2) homemaking assistance, including personal care;
19-27 (3) residential repair and modification;
20-1 (4) benefits counseling;
20-2 (5) respite care;
20-3 (6) emergency response;
20-4 (7) education and training for caregivers;
20-5 (8) home-delivered meals;
20-6 (9) transportation; and
20-7 (10) other appropriate services identified by the case
20-8 manager and client through the assessment and care planning
20-9 process.
20-10 (b) A case manager shall conduct an individual assessment of
20-11 an elderly person's needs and shall, in consultation with the
20-12 elderly person and the elderly person's family, create a plan of
20-13 care that specifies the type, amount, frequency, and duration of
20-14 support services the elderly person needs.
20-15 (c) A plan of care must coordinate the available public and
20-16 private services and resources that are most appropriate to meet
20-17 the elderly person's needs.
20-18 (d) An area agency on aging may not directly provide
20-19 homemaker, home health, residential repair, respite, meal delivery,
20-20 or transportation service unless the area agency:
20-21 (1) receives no response to a request for proposals
20-22 that meets department standards; and
20-23 (2) has exhausted all other procurement options
20-24 available under department rules.
20-25 (e) An area agency on aging that wants to provide directly a
20-26 service not available through a local public or private entity must
20-27 obtain approval from the department in accordance with department
21-1 rules governing the granting of such approval.
21-2 Sec. 181.205 [101.045]. CASE MANAGEMENT UNITS. (a) The
21-3 department shall designate one or more case management units for
21-4 each service area to provide case management services according to
21-5 department rules and standards.
21-6 (b) The department shall designate an area agency on aging
21-7 as a case management unit for a service area. The area agency on
21-8 aging may act as the case management unit, after obtaining approval
21-9 from the department in accordance with department rules governing
21-10 the granting of such approval, or the area agency on aging may
21-11 subcontract with a local service agency or hospital to act as the
21-12 case management unit.
21-13 (c) The department may contract with another public or
21-14 private entity to act as a case management unit for a service area
21-15 if the area agency on aging cannot provide or subcontract for case
21-16 management services.
21-17 (d) A case manager must be an employee of a case management
21-18 unit.
21-19 (e) The department shall periodically review a case
21-20 management unit.
21-21 Sec. 181.206 [101.046]. ADMINISTRATION OF PROGRAM. (a)
21-22 The department, with the advice of an advisory committee, shall
21-23 administer the program through grants to area agencies on aging.
21-24 (b) Area agencies on aging shall maintain their service
21-25 provision levels in effect on September 1, 1989, independent of the
21-26 Options for Independent Living program. Funds made available under
21-27 this program may not be used to supplant service funds for services
22-1 provided on September 1, 1989.
22-2 (c) An area agency on aging that receives funds under this
22-3 section shall ensure the availability of the services for which the
22-4 funds were granted.
22-5 Sec. 181.207 [101.047]. ADVISORY COMMITTEE. (a) The
22-6 department shall appoint a statewide advisory committee that
22-7 includes hospital discharge planners, hospital administrators, home
22-8 health agency representatives, nurses, and physicians to advise the
22-9 department in administering the program. The department shall
22-10 appoint as many members as the department considers necessary to
22-11 assist the department in performing its duties.
22-12 (b) The advisory committee shall elect its own presiding
22-13 officer and shall meet and serve according to department rules.
22-14 (c) A member of an advisory committee receives no
22-15 compensation but is entitled to reimbursement for transportation
22-16 and the per diem allowance for state employees in accordance with
22-17 the General Appropriations Act.
22-18 Sec. 181.208 [101.048]. FEES. (a) The department by rule
22-19 shall establish a copayment system using a sliding scale that is
22-20 based on an elderly person's income.
22-21 (b) An elderly person whose income exceeds the basic income
22-22 and resources requirements for eligibility for the department's
22-23 community care for aged and disabled program [of the Texas
22-24 Department of Human Services], but whose income is less than 200
22-25 percent of that level shall pay a portion of the cost of support
22-26 services provided to the person by a case management unit according
22-27 to the fee scale.
23-1 (c) An elderly person whose income exceeds 200 percent of
23-2 the level established by the department [Texas Department of Human
23-3 Services] for the community care for aged and disabled program
23-4 shall pay the full cost of support services provided by a case
23-5 management unit.
23-6 (d) A local case management unit shall collect and account
23-7 for all fees imposed for services provided by the case management
23-8 unit and shall submit reports to the department as prescribed by
23-9 department rules.
23-10 (e) Fees collected shall be used to defray program costs and
23-11 to expand the program.
23-12 Sec. 181.209 [101.049]. ANNUAL REPORT. (a) The department
23-13 shall annually report on the program to the governor and the
23-14 presiding officer of each house of the legislature.
23-15 (b) The report must include information concerning the
23-16 manner in which the department has provided services under the
23-17 program to elderly persons entitled to priority under Section
23-18 181.203(a) [101.043(a)].
23-19 (c) The report must be submitted not later than November 1
23-20 of each even-numbered year. [The report may be combined with the
23-21 report required by Section 101.008.]
23-22 SECTION 3. Subtitle I, Title 2, Health and Safety Code, as
23-23 added by this Act, is amended by adding Chapter 182 to read as
23-24 follows:
23-25 CHAPTER 182. INDEPENDENT AGING POLICY COUNCIL
23-26 SUBCHAPTER A. GENERAL PROVISIONS
23-27 Sec. 182.001. DEFINITIONS. In this chapter:
24-1 (1) "Board" means the Texas Board of Long-term Care
24-2 Services.
24-3 (2) "Commissioner" means the Commissioner of Long-term
24-4 Care Services.
24-5 (3) "Council" means the Independent Aging Policy
24-6 Council.
24-7 (4) "Department" means the Texas Department of
24-8 Long-term Care Services.
24-9 (5) "Elderly person" means an individual who is 60
24-10 years of age or older.
24-11 Sec. 182.002. SUNSET PROVISION. The Independent Aging
24-12 Policy Council is subject to Chapter 325, Government Code (Texas
24-13 Sunset Act). Unless continued in existence as provided by that
24-14 chapter, the council is abolished and this chapter expires
24-15 September 1, 2007.
24-16 Sec. 182.003. INDEPENDENT AGING POLICY COUNCIL. (a) The
24-17 Independent Aging Policy Council is created to provide expertise
24-18 and advice to the department on aging, long-term care, and
24-19 community policy issues relating to the needs of elderly persons
24-20 and to recommend actions by the department to meet the needs of the
24-21 state's elderly population.
24-22 (b) The council is administratively attached to the
24-23 department and the department shall provide the facilities for the
24-24 council, but the council is independent of the department or
24-25 board's direction.
24-26 (c) The council is composed of six members appointed by the
24-27 governor with the advice and consent of the senate. To qualify for
25-1 appointment to the council, a person must have demonstrated an
25-2 interest in and knowledge of the special needs of elderly persons
25-3 and aging issues, including persons who have been active in
25-4 organizations that advocate on behalf of elderly persons. The
25-5 members must include the following:
25-6 (1) an expert in geriatrics;
25-7 (2) a medical professional;
25-8 (3) a consumer advocate;
25-9 (4) a demographer; and
25-10 (5) two members of the general public.
25-11 (d) A person may not be a public member of the council if
25-12 the person or the person's spouse:
25-13 (1) is registered, certified, or licensed by a
25-14 regulatory agency in the field of services for elderly persons;
25-15 (2) is employed by or participates in the management
25-16 of a business entity or other organization regulated by or
25-17 receiving money from the department;
25-18 (3) owns or controls, directly or indirectly, more
25-19 than a 10 percent interest in a business entity or other
25-20 organization regulated by or receiving money from the department;
25-21 or
25-22 (4) uses or receives a substantial amount of tangible
25-23 goods, services, or money from the department other than
25-24 compensation or reimbursement authorized by law for council
25-25 membership, attendance, or expenses.
25-26 (e) Members of the council serve for staggered terms of six
25-27 years with the terms of one-third of the members expiring on
26-1 February 1 of each odd-numbered year.
26-2 (f) Appointments to the council shall be made without regard
26-3 to the race, color, disability, sex, religion, age, or national
26-4 origin of the appointees.
26-5 (g) A member is not entitled to compensation but is entitled
26-6 to reimbursement of the travel expenses incurred by the member
26-7 while conducting the business of the council, as provided in the
26-8 General Appropriations Act.
26-9 Sec. 182.004. PRESIDING OFFICER OF THE COUNCIL. (a) The
26-10 governor shall designate a presiding officer from among council
26-11 members.
26-12 (b) A member holds the position of presiding officer at the
26-13 will of the governor.
26-14 Sec. 182.005. RESTRICTIONS ON COUNCIL MEMBERSHIP AND
26-15 EMPLOYMENT. (a) In this section, "Texas trade association" means
26-16 a cooperative and voluntarily joined association of business or
26-17 professional competitors in this state designed to assist its
26-18 members and its industry or profession in dealing with mutual
26-19 business or professional problems and in promoting their common
26-20 interest.
26-21 (b) A person may not be a member of the council and may not
26-22 be a council employee employed in a "bona fide executive,
26-23 administrative, or professional capacity," as that phrase is used
26-24 for purposes of establishing an exemption to the overtime
26-25 provisions of the federal Fair Labor Standards Act of 1938 (29
26-26 U.S.C. Section 201 et seq.) and its subsequent amendments, if:
26-27 (1) the person is an officer, employee, or paid
27-1 consultant of a Texas trade association in the field of services
27-2 for elderly persons; or
27-3 (2) the person's spouse is an officer, manager, or
27-4 paid consultant of a Texas trade association in the field of
27-5 services for elderly persons.
27-6 (c) A person may not be a member of the council or act as
27-7 the general counsel to the council if the person is required to
27-8 register as a lobbyist under Chapter 305, Government Code, because
27-9 of the person's activities for compensation on behalf of a
27-10 profession related to the operation of the council or department.
27-11 Sec. 182.006. REMOVAL. (a) It is a ground for removal from
27-12 the council that a member:
27-13 (1) does not have at the time of taking office the
27-14 qualifications required by Section 182.003;
27-15 (2) does not maintain during service on the council
27-16 the qualifications required by Section 182.003;
27-17 (3) is ineligible for membership under Section 182.003
27-18 or 182.005;
27-19 (4) cannot, because of illness or disability,
27-20 discharge the member's duties for a substantial part of the
27-21 member's term; or
27-22 (5) is absent from more than half of the regularly
27-23 scheduled council meetings that the member is eligible to attend
27-24 during a calendar year without an excuse approved by a majority
27-25 vote of the council.
27-26 (b) The validity of an action of the council is not affected
27-27 by the fact that it is taken when a ground for removal of a council
28-1 member exists.
28-2 (c) If the executive director has knowledge that a potential
28-3 ground for removal exists, the executive director shall notify the
28-4 presiding officer of the council of the potential ground. The
28-5 presiding officer shall then notify the governor and the attorney
28-6 general that a potential ground for removal exists. If the
28-7 potential ground for removal involves the presiding officer, the
28-8 executive director shall notify the next highest ranking officer of
28-9 the council, who shall then notify the governor and the attorney
28-10 general that a potential ground for removal exists.
28-11 Sec. 182.007. STANDARDS OF CONDUCT. The commissioner or the
28-12 commissioner's designee shall provide to members of the council
28-13 and to council employees, as often as necessary, information
28-14 regarding the requirements for office or employment under this
28-15 chapter, including information regarding a person's
28-16 responsibilities under applicable laws relating to standards of
28-17 conduct for state officers or employees.
28-18 Sec. 182.008. COUNCIL TRAINING. (a) A person who is
28-19 appointed to and qualifies for office as a member of the council
28-20 may not vote, deliberate, or be counted as a member in attendance
28-21 at a meeting of the council until the person completes a training
28-22 program that complies with this section.
28-23 (b) The training program must provide the person with
28-24 information regarding:
28-25 (1) the legislation that created the department and
28-26 the council;
28-27 (2) the programs operated by the department that
29-1 relate to the council;
29-2 (3) the role and functions of the council and the
29-3 department;
29-4 (4) the rules of the council with an emphasis on the
29-5 rules that relate to disciplinary and investigatory authority;
29-6 (5) the current budget for the council;
29-7 (6) the results of the most recent formal audit of the
29-8 council;
29-9 (7) the requirements of:
29-10 (A) the open meetings law, Chapter 551,
29-11 Government Code;
29-12 (B) the public information law, Chapter 552,
29-13 Government Code;
29-14 (C) the administrative procedure law, Chapter
29-15 2001, Government Code; and
29-16 (D) other laws relating to public officials,
29-17 including conflict-of-interest laws; and
29-18 (8) any applicable ethics policies adopted by the
29-19 department or the Texas Ethics Commission.
29-20 (c) A person appointed to the council is entitled to
29-21 reimbursement, as provided by the General Appropriations Act, for
29-22 the travel expenses incurred in attending the training program
29-23 regardless of whether the attendance at the program occurs before
29-24 or after the person qualifies for office.
29-25 Sec. 182.009. EXECUTIVE DIRECTOR; PERSONNEL. (a) The
29-26 council may hire an executive director or request the commissioner
29-27 to act as the executive director.
30-1 (b) The council may hire persons necessary to carry out the
30-2 purposes of this chapter.
30-3 (c) Salaries and other office expenses are paid with funds
30-4 appropriated to the council or department for those purposes.
30-5 (d) The council may accept services performed by other
30-6 agencies to accomplish the purposes of this chapter.
30-7 Sec. 182.010. SEPARATION OF RESPONSIBILITIES. The council
30-8 shall develop and implement policies that clearly separate the
30-9 policymaking responsibilities of the council from the management
30-10 responsibilities of the executive director and staff of the
30-11 council.
30-12 Sec. 182.011. PUBLIC INPUT INFORMATION AND COMPLAINTS. (a)
30-13 The council shall develop and implement policies that provide the
30-14 public a reasonable opportunity to appear before the council and to
30-15 speak on any issue under the council's jurisdiction.
30-16 (b) The council shall maintain a file on each written
30-17 complaint filed with the council. The file must include:
30-18 (1) the name of the person who filed the complaint;
30-19 (2) the date the complaint is received by the council;
30-20 (3) the subject matter of the complaint;
30-21 (4) the name of each person contacted in relation to
30-22 the complaint;
30-23 (5) a summary of the results of the review or
30-24 investigation of the complaint; and
30-25 (6) an explanation of the reason the file was closed,
30-26 if the agency closed the file without taking action other than to
30-27 investigate the complaint.
31-1 (c) The council shall provide to the person filing the
31-2 complaint and to each person who is a subject of the complaint a
31-3 copy of the council's policies and procedures relating to complaint
31-4 investigation and resolution.
31-5 (d) The council, at least quarterly until final disposition
31-6 of the complaint, shall notify the person filing the complaint and
31-7 each person who is a subject of the complaint of the status of the
31-8 investigation unless the notice would jeopardize an undercover
31-9 investigation.
31-10 Sec. 182.012. CITIZENS ADVISORY COUNCIL. (a) The Citizens
31-11 Advisory Council is composed of one member appointed by the council
31-12 from each designated area agency on aging. Each Citizens Advisory
31-13 Council member must also be a member of the local advisory council
31-14 advising the area agency. Citizens Advisory Council members are
31-15 entitled to the compensatory per diem authorized by the General
31-16 Appropriations Act for each day spent engaged in the performance of
31-17 their duties as directed by the council and are entitled to the
31-18 same travel allowance authorized by the General Appropriations Act
31-19 for state employees.
31-20 (b) The council shall appoint one member of the Citizens
31-21 Advisory Council to serve as the presiding officer.
31-22 (c) The Citizens Advisory Council shall work under the
31-23 council's direction. The Citizens Advisory Council shall inform
31-24 policymakers and administrators at the state level of local needs
31-25 and concerns relating to the aged.
31-26 (d) The Citizens Advisory Council shall meet at least
31-27 quarterly and may hold other meetings called by the presiding
32-1 officer.
32-2 (e) Citizens Advisory Council members serve for staggered
32-3 terms of three years with the terms of one-third of the membership
32-4 expiring on January 31 of each year.
32-5 (Sections 182.013-182.030 reserved for expansion
32-6 SUBCHAPTER B. POWERS AND DUTIES
32-7 Sec. 182.031. GENERAL POWERS AND DUTIES. (a) The council
32-8 has all the powers and duties necessary to administer this chapter.
32-9 (b) The council shall:
32-10 (1) advocate for the elderly as provided by in the
32-11 federal Older Americans Act of 1965 (42 U.S.C. 3001 et seq.) and
32-12 its subsequent amendments;
32-13 (2) conduct research and long-range planning regarding
32-14 long-term care, community care, and other issues that affect
32-15 elderly persons;
32-16 (3) study programs and budgets of all state agencies
32-17 that affect elderly persons; and
32-18 (4) make recommendations to the governor, the
32-19 legislature, and state agencies regarding:
32-20 (A) opportunities to coordinate programs for
32-21 elderly persons;
32-22 (B) unnecessary duplication in providing
32-23 services to elderly persons; and
32-24 (C) gaps in services to elderly persons.
32-25 (c) The council shall work with area agencies on aging as
32-26 necessary to carry out the purposes of this chapter.
32-27 Sec. 182.032. COOPERATION WITH FEDERAL AND STATE AGENCIES.
33-1 The council shall cooperate with state and federal agencies and
33-2 other organizations in conducting studies and surveys on the
33-3 special problems of the aged in matters such as mental and physical
33-4 health, housing, family relationships, employment, income,
33-5 vocational rehabilitation, recreation, and education. The council
33-6 shall make appropriate reports and recommendations to the governor
33-7 and to the department and other state or federal agencies.
33-8 Sec. 182.033. RULES. The council may adopt rules necessary
33-9 to carry out the council's powers and duties under this chapter.
33-10 Sec. 182.034. OLDER AMERICANS ACT: STATE UNIT AND PLAN;
33-11 MONEY. (a) The council is the state unit on aging under the
33-12 federal Older Americans Act of 1965 (42 U.S.C. 3001 et seq.) and
33-13 its subsequent amendments.
33-14 (b) The council shall develop this state's plan on aging as
33-15 required by the federal Older Americans Act. The department shall
33-16 provide information to the council and otherwise assist as
33-17 requested by the council in developing this plan.
33-18 (c) The council shall determine priorities for money
33-19 received under the Older Americans Act. The council shall transfer
33-20 money for services to the department within guidelines established
33-21 by the General Appropriations Act.
33-22 Sec. 182.035. FUNDING TO AREA AGENCIES ON AGING. (a) The
33-23 council by rule shall adopt a formula that meets the intent of the
33-24 Older Americans Act, as amended, for allocating among area agencies
33-25 on aging funds that the department receives under Title III,
33-26 federal Older Americans Act (42 U.S.C. Section 3021 et seq.) and
33-27 its subsequent amendments.
34-1 (b) The formula must provide for the allocation of the funds
34-2 among the area agencies according to the most recent population
34-3 estimates available from the U.S. Bureau of the Census or the Texas
34-4 Department of Health.
34-5 (c) The council shall update the formula biennially and
34-6 shall include the formula and the population estimates in each
34-7 state plan on aging.
34-8 (d) Unless otherwise provided for by council rules regarding
34-9 the carryover of unexpended Title III funds, at the end of a fiscal
34-10 year unexpended Title III funds of an area agency on aging's
34-11 allocations for that fiscal year shall be deducted from the
34-12 allocation for the new fiscal year and that same amount of new
34-13 fiscal year funds shall be reallocated. The council by rule shall
34-14 adopt a reallocation formula that includes performance as a
34-15 criterion, in addition to other criteria adopted by the department.
34-16 (e) The funds that the council receives under Title III,
34-17 federal Older Americans Act, on or after September 1, 1999, shall
34-18 be allocated and reallocated to area agencies on aging under the
34-19 formulas adopted under this section.
34-20 SECTION 4. Section 531.001(4), Government Code, is amended
34-21 to read as follows:
34-22 (4) "Health and human services agencies" includes the:
34-23 (A) Interagency Council on Early Childhood
34-24 Intervention [Services];
34-25 (B) Texas Department of Long-term Care Services
34-26 [on Aging];
34-27 (C) Texas Commission on Alcohol and Drug Abuse;
35-1 (D) Texas Commission for the Blind;
35-2 (E) Texas Commission for the Deaf and Hard of
35-3 Hearing;
35-4 (F) Texas Department of Health;
35-5 (G) Texas Department of Human Services;
35-6 (H) Texas Juvenile Probation Commission;
35-7 (I) Texas Department of Mental Health and Mental
35-8 Retardation;
35-9 (J) Texas Rehabilitation Commission; and
35-10 (K) Department of Protective and Regulatory
35-11 Services.
35-12 SECTION 5. Effective September 1, 2000, Subchapter D,
35-13 Chapter 101, Human Resources Code, is transferred to Chapter 40,
35-14 Human Resources Code, is redesignated as Subchapter D, Chapter 40,
35-15 Human Resources Code, and is amended to read as follows:
35-16 SUBCHAPTER D. OFFICE OF LONG-TERM CARE OMBUDSMAN
35-17 Sec. 40.071 [101.051]. DEFINITIONS. In this subchapter:
35-18 (1) "Elderly resident" means a resident of a long-term
35-19 care facility who is 60 years of age or older.
35-20 (2) "Long-term care facility" means a facility that
35-21 serves persons who are 60 years of age or older and that is
35-22 licensed or regulated or that is required to be licensed or
35-23 regulated by the Texas Department of Long-term Care [Human]
35-24 Services under Chapter 242, Health and Safety Code.
35-25 (3) "Office" means the office of the state long-term
35-26 care ombudsman.
35-27 (4) "Representative" means an employee or volunteer
36-1 specifically designated by the office as a representative of the
36-2 office.
36-3 (5) "State ombudsman" means the chief administrator of
36-4 the office.
36-5 Sec. 40.072 [101.052]. ESTABLISHMENT OF OFFICE. (a) The
36-6 department shall establish and operate the office of the state
36-7 long-term care ombudsman.
36-8 (b) The department may operate the office directly or by
36-9 contract or memorandum of agreement with a public agency or other
36-10 appropriate private nonprofit organization. The department may not
36-11 use an agency or organization that is:
36-12 (1) responsible for licensing or certifying long-term
36-13 care services; or
36-14 (2) an association of long-term care facilities or of
36-15 any other residential facility that serves persons who are 60 years
36-16 of age or older, or an affiliate of such an association.
36-17 (c) The department shall consider the views of elderly
36-18 persons, provider organizations, advocacy groups, and area agencies
36-19 on aging in planning and operating the office.
36-20 (d) The department shall ensure that a person involved in
36-21 designating the state ombudsman or in designating an employee or
36-22 representative of the office does not have a conflict of interest.
36-23 Sec. 40.073 [101.053]. ROLE OF OFFICE. (a) The office and
36-24 the ombudsman program shall operate in cooperation with any
36-25 regulatory agency funded and mandated by the Older Americans Act of
36-26 1965 (42 U.S.C. Section 3001 et seq.), and state statute.
36-27 (b) This subchapter does not affect the authority of the
37-1 Texas Department of Long-term Care [Health and the Texas Department
37-2 of Human] Services to regulate long-term care facilities.
37-3 Sec. 40.074 [101.054]. POWERS AND DUTIES. (a) The state
37-4 ombudsman and the office have the powers and duties required by
37-5 state and federal law.
37-6 (b) The office may use appropriate administrative, legal,
37-7 and other remedies to assist elderly residents as provided by
37-8 department rules.
37-9 Sec. 40.075 [101.055]. LEGAL ASSISTANCE. The department
37-10 shall ensure that the office receives adequate legal advice and
37-11 representation. The attorney general shall represent the ombudsman
37-12 or a representative if a suit or other legal action is brought or
37-13 threatened to be brought against that person in connection with the
37-14 person's performance of the official duties of the office.
37-15 Sec. 40.076 [101.056]. OMBUDSMEN. (a) The office shall
37-16 recruit volunteers and citizen organizations to participate in the
37-17 ombudsman program. A paid staff member of an area agency on aging
37-18 network or a nonprofit social service agency may be an ombudsman.
37-19 An ombudsman is a representative of the office.
37-20 (b) The office shall provide training to ombudsmen as
37-21 required by this subchapter and federal law.
37-22 (c) The office shall coordinate ombudsman services with the
37-23 protection and advocacy systems that exist for persons with
37-24 developmental disabilities or mental illness.
37-25 Sec. 40.077 [101.057]. INVESTIGATIONS. (a) The office
37-26 shall have access to elderly residents and shall investigate and
37-27 resolve complaints made by or on behalf of elderly residents.
38-1 (b) The department shall ensure that each ombudsman who
38-2 investigates complaints has received proper training and has been
38-3 approved by the office as qualified to investigate complaints.
38-4 Sec. 40.078 [101.058]. ACCESS TO RECORDS AND
38-5 CONFIDENTIALITY. (a) The state ombudsman or the ombudsman's [his]
38-6 designee, specifically identified by the executive director [of
38-7 aging], shall have access to patient care records of elderly
38-8 residents of long-term care facilities [defined in Section
38-9 101.051(2) of this code]. Certified volunteer ombudsmen are not
38-10 entitled access to medical or other confidential information from
38-11 the patient care records. The department, by rule, shall establish
38-12 procedures for obtaining access to the records. All records and
38-13 information to which the state ombudsman or the ombudsman's [his]
38-14 designee obtains access remain confidential.
38-15 (b) The office shall ensure that the identity of a
38-16 complainant or any facility resident may be disclosed only with the
38-17 written consent of the person or the person's legal representative
38-18 or on court order.
38-19 (c) The information in files maintained by the office may be
38-20 disclosed only by the ombudsman who has authority over the
38-21 disposition of the files.
38-22 Sec. 40.079 [101.059]. REPORTING SYSTEM. The office shall
38-23 establish a statewide ombudsman uniform reporting system to collect
38-24 and analyze information relating to complaints and conditions in
38-25 long-term care facilities as long as such system does not duplicate
38-26 other state reporting systems and shall provide the information to
38-27 the department and the[,] Texas Department of Long-term Care
39-1 [Health, and Texas Department of Human] Services.
39-2 Sec. 40.080 [101.060]. ANALYSIS OF LAWS. The office shall
39-3 analyze and monitor the development and implementation of federal,
39-4 state, and local laws, rules, regulations, and policies relating to
39-5 long-term care facilities and services and shall recommend any
39-6 changes the office considers necessary.
39-7 Sec. 40.081 [101.061]. PUBLIC INFORMATION. The office shall
39-8 provide information to public agencies, legislators, and others
39-9 that relates to the problems and concerns of elderly residents.
39-10 Sec. 40.082 [101.062]. ANNUAL REPORT. (a) The office shall
39-11 prepare an annual report that contains:
39-12 (1) information and findings relating to the problems
39-13 and complaints of elderly residents; and
39-14 (2) policy, regulatory, and legislative
39-15 recommendations to solve the problems, resolve the complaints, and
39-16 improve the quality of the elderly residents' care and lives.
39-17 (b) The report must be submitted to the governor and the
39-18 presiding officer of each house of the legislature not later than
39-19 November 1 of each even-numbered year. The report may be combined
39-20 with the report required by Section 40.0565 [101.008].
39-21 Sec. 40.083 [101.063]. LIMITATION OF LIABILITY. An
39-22 ombudsman or a representative is not liable for civil damages or
39-23 subject to criminal prosecution for performing official duties
39-24 unless the ombudsman or representative acts in bad faith or with a
39-25 malicious purpose.
39-26 Sec. 40.084 [101.064]. CRIMINAL PENALTY. (a) A person
39-27 commits an offense if the person:
40-1 (1) intentionally interferes with an ombudsman
40-2 attempting to perform official duties; or
40-3 (2) commits or attempts to commit an act of
40-4 retaliation or reprisal against any resident or employee of a
40-5 long-term care facility for filing a complaint or providing
40-6 information to an ombudsman.
40-7 (b) An offense under this section is a Class B misdemeanor.
40-8 (c) The department shall assure that criminal sanctions will
40-9 be initiated only after all administrative procedures are
40-10 exhausted.
40-11 SECTION 6. Effective September 1, 2000, Section 101.023,
40-12 Human Resources Code, is redesignated as Chapter 312, Labor Code,
40-13 and amended to read as follows:
40-14 CHAPTER 312. COMMUNITY SENIOR CITIZENS EMPLOYMENT
40-15 Sec. 312.001 [101.023]. COMMUNITY SENIOR CITIZENS EMPLOYMENT
40-16 PROGRAMS. (a) In this section, "suitable employment" means
40-17 employment which is commensurate with the individual's skills and
40-18 ability and for which compensation is paid equal to the federal
40-19 minimum wage rate.
40-20 (b) The commission [Texas Workforce Commission] may
40-21 establish and administer a community program for persons 55 years
40-22 of age or older who lack suitable employment and have family
40-23 incomes under federal poverty guidelines.
40-24 (c) The commission [Texas Workforce Commission] may contract
40-25 with a public agency or a private, nonprofit organization with
40-26 experience in managing similar programs to employ persons under
40-27 this program in providing recreation, beautification, conservation,
41-1 or restoration services, or public service employment positions for
41-2 state, county, city, or regional governments or school districts.
41-3 The commission [Texas Workforce Commission] may not contract with
41-4 an organization that is not a subscriber under the state workers'
41-5 compensation law or that does not pay the federal minimum wage rate
41-6 or the prevailing wage rate for the particular job, whichever is
41-7 greater.
41-8 (d) The state shall finance 80 percent of the cost of the
41-9 program, and the governments receiving the services shall finance
41-10 20 percent of the cost.
41-11 SECTION 7. Effective September 1, 2000, the following are
41-12 repealed:
41-13 (1) Section 12.015, Health and Safety Code;
41-14 (2) Chapter 101, Human Resources Code; and
41-15 (3) Chapter 113, Human Resources Code.
41-16 SECTION 8. (a) The Texas Department of Long-term Care
41-17 Services shall study the feasibility of a subacute care pilot
41-18 project. The Health and Human Services Commission and the Texas
41-19 Department of Health shall cooperate with and assist the department
41-20 in this study. In conducting the study, the Texas Department of
41-21 Long-term Care Services shall consider:
41-22 (1) estimates of the potential fiscal impact,
41-23 including the potential to save money;
41-24 (2) the impact of subacute care on quality of care;
41-25 (3) reimbursement under the state's reimbursement and
41-26 regulatory policies;
41-27 (4) the capacity of facilities in this state to
42-1 provide subacute care; and
42-2 (5) the impact of subacute care reimbursement on
42-3 Medicaid, including managed care initiatives.
42-4 (b) Not later than September 1, 2000, the department shall
42-5 submit to the Health and Human Services Commission a report on the
42-6 feasibility of a subacute care pilot project.
42-7 (c) This section expires September 1, 2001.
42-8 SECTION 9. (a) The commissioners of the Texas Department of
42-9 Long-term Care Services and the Texas Department of Mental Health
42-10 and Mental Retardation shall appoint the members of the work group
42-11 created by Section 181.103, Health and Safety Code, as added by
42-12 this Act, not later than December 1, 1999.
42-13 (b) The work group shall report on the study and
42-14 recommendations required by Section 181.103(h), Health and Safety
42-15 Code, as added by this Act, to the commissioners of the Texas
42-16 Department of Long-term Care Services and the Texas Department of
42-17 Mental Health and Mental Retardation not later than September 1,
42-18 2000.
42-19 SECTION 10. Not later than September 30, 1999, the governor
42-20 shall appoint the initial members of the Texas Board of Long-term
42-21 Care Services created by Section 181.004, Health and Safety Code,
42-22 as added by this article. The governor shall designate two members
42-23 for a term expiring on February 1, 2001, two members for a term
42-24 expiring on February 1, 2003, and two members for a term expiring
42-25 on February 1, 2005.
42-26 SECTION 11. Not later than September 30, 1999, the governor
42-27 shall appoint the initial members of the Independent Aging Policy
43-1 Council created by Section 182.003, Health and Safety Code, as
43-2 added by this Act. The governor shall designate two members for a
43-3 term expiring on February 1, 2001, two members for a term expiring
43-4 on February 1, 2003, and two members for a term expiring on
43-5 February 1, 2005.
43-6 SECTION 12. Not later than December 1, 2000, the state
43-7 auditor shall evaluate and report to the governor, the lieutenant
43-8 governor, the speaker of the house of representatives, and the
43-9 Health and Human Services Commission on its recommendations for
43-10 improvements in the management and fiscal control systems of the
43-11 Texas Department of Long-term Care Services.
43-12 SECTION 13. (a) The Health and Human Services Commission
43-13 shall study:
43-14 (1) the creation and integrated structure of the Texas
43-15 Department of Long-term Care Services added by this Act, including
43-16 the programs transferred to the department under this Act; and
43-17 (2) a timetable and transition plan for the transfer
43-18 of programs to the Texas Department of Long-term Care Services.
43-19 (b) Based on the study in Subsection (a) of this section,
43-20 and not later than December 1, 1999, the commission shall report
43-21 its recommendations to the governor, lieutenant governor, speaker
43-22 of the house of representatives, and the Health and Human Services
43-23 Legislative Oversight Committee.
43-24 (c) After review of the report required by Subsection (b) of
43-25 this section by the governor, lieutenant governor, speaker of the
43-26 house of representatives, and the Health and Human Services
43-27 Legislative Oversight Committee, the Department of Long-term Care
44-1 Services shall, to the extent practicable, implement the programs
44-2 transferred to it under this Act in a manner consistent with the
44-3 commission's report.
44-4 (d) Consistent with the report required by Subsection (b) of
44-5 this section, the Commissioner of Long-term Care Services shall,
44-6 for each program, determine the date on which a program
44-7 administered by another state agency must be transferred to the
44-8 Texas Department of Long-term Care Services or the Department of
44-9 Protective and Regulatory Services, as required by this Act. The
44-10 date on which a program must be transferred may not be later than
44-11 September 1, 2000.
44-12 (e) Each state agency affected by this Act shall cooperate
44-13 with the Health and Human Services Commission and the Texas
44-14 Department of Long-term Care Services in formulating and
44-15 implementing the study required by Subsection (a) of this section,
44-16 the report required by Subsection (b) of this section, and the
44-17 transition under Subsection (d) of this section. This cooperation
44-18 shall include assistance in program transition plans, the creation
44-19 of an interim operating budget, and the temporary assignment of
44-20 staff as necessary to ensure an orderly transition.
44-21 SECTION 14. (a) On September 1, 2000, or an earlier date as
44-22 determined by the Health and Human Services Commission under
44-23 Section 13(d) of this Act:
44-24 (1) all powers, duties, functions, and activities
44-25 relating to the following programs assigned to or performed by the
44-26 Texas Department of Human Services immediately before that date,
44-27 are transferred to the Texas Department of Long-term Care Services:
45-1 (A) community care for the aged and disabled;
45-2 (B) Medicaid and state-funded long-term care
45-3 services, including certification, licensure, surveys, and
45-4 investigations of nursing homes;
45-5 (C) Medicaid waiver programs relating to
45-6 community care and long-term care services; and
45-7 (D) the pilot program for treatment of
45-8 Alzheimer's patients;
45-9 (2) all employees of the Texas Department of Human
45-10 Services who primarily perform duties related to a program listed
45-11 under Subdivision (1) of this subsection become employees of the
45-12 Texas Department of Long-term Care Services, to be assigned duties
45-13 by the commissioner of that department;
45-14 (3) a rule or form adopted by the Texas Department of
45-15 Human Services that relates to a program listed in Subdivision (1)
45-16 of this subsection is a rule or form of the Texas Department of
45-17 Long-term Care Services and remains in effect until altered by the
45-18 agency;
45-19 (4) a reference in law or an administrative rule to
45-20 the Texas Department of Human Services that relates to a program
45-21 listed in Subdivision (1) of this subsection means the Texas
45-22 Department of Long-term Care Services;
45-23 (5) a license, permit, or certification in effect that
45-24 was issued by the Texas Department of Human Services for a program
45-25 listed in Subdivision (1) of this subsection is continued in effect
45-26 as a license, permit, or certification of the Texas Department of
45-27 Long-term Care Services; and
46-1 (6) a complaint, investigation, or other proceeding
46-2 pending before the Texas Department of Human Services that is
46-3 related to a program listed in Subdivision (1) of this subsection
46-4 is transferred without change in status to the Texas Department of
46-5 Long-term Care Services.
46-6 (b) On the 30th day after the date specified in Subsection
46-7 (a) of this section:
46-8 (1) all funds, obligations, and contracts of the Texas
46-9 Department of Human Services related to a program listed in
46-10 Subsection (a) of this section are transferred to the Texas
46-11 Department of Long-term Care Services; and
46-12 (2) all property and records in the custody of the
46-13 Texas Department of Human Services related to a program listed in
46-14 Subsection (a) of this section and all funds appropriated by the
46-15 legislature for a program listed in Subsection (a) of this section
46-16 are transferred to the Texas Department of Long-term Care Services.
46-17 SECTION 15. (a) On September 1, 2000, or an earlier date
46-18 as determined by the Health and Human Services Commission under
46-19 Section 13(d) of this Act:
46-20 (1) all powers, duties, functions, and activities
46-21 relating to the following programs assigned to or performed by the
46-22 Texas Department of Health immediately before that date are
46-23 transferred to the Texas Department of Long-term Care Services:
46-24 (A) Chronically Ill and Disabled Children's
46-25 Services Program;
46-26 (B) Home and Community Support Services Agencies
46-27 Regulation; and
47-1 (C) Medically Dependent Children's Waiver
47-2 Program;
47-3 (2) all employees of the Texas Department of Health
47-4 who primarily perform duties related to a program listed in
47-5 Subdivision (1) of this subsection become employees of the Texas
47-6 Department of Long-term Care Services, to be assigned duties by the
47-7 commissioner of that department;
47-8 (3) a rule or form adopted by the Texas Department of
47-9 Health that relates to a program listed in Subdivision (1) of this
47-10 subsection is a rule or form of the Texas Department of Long-term
47-11 Care Services and remains in effect until altered by the agency;
47-12 (4) a reference in law or an administrative rule to
47-13 the Texas Department of Health that relates to a program listed in
47-14 Subdivision (1) of this subsection means the Texas Department of
47-15 Long-term Care Services;
47-16 (5) a license, permit, or certification in effect that
47-17 was issued by the Texas Department of Health for a program listed
47-18 in Subdivision (1) of this subsection is continued in effect as a
47-19 license, permit, or certification of the Texas Department of
47-20 Long-term Care Services; and
47-21 (6) a complaint, investigation, or other proceeding
47-22 pending before the Texas Department of Health that is related to a
47-23 program listed in Subdivision (1) of this subsection is transferred
47-24 without change in status to the Texas Department of Long-term Care
47-25 Services.
47-26 (b) On the 30th day after the date specified in Subsection
47-27 (a) of this section:
48-1 (1) all funds, obligations, and contracts of the Texas
48-2 Department of Health related to a program listed in Subsection (a)
48-3 of this section are transferred to the Texas Department of
48-4 Long-term Care Services; and
48-5 (2) all property and records in the custody of the
48-6 Texas Department of Health related to a program listed in
48-7 Subsection (a) of this section and all funds appropriated by the
48-8 legislature for a program listed in Subsection (a) of this section
48-9 are transferred to the Texas Department of Long-term Care Services.
48-10 SECTION 16. (a) On September 1, 2000, or an earlier date
48-11 as determined by the Health and Human Services Commission under
48-12 Section 13(d) of this Act:
48-13 (1) all powers, duties, functions, and activities
48-14 relating to the following programs assigned to or performed by the
48-15 Texas Rehabilitation Commission immediately before that date are
48-16 transferred to the Texas Department of Long-term Care Services:
48-17 (A) Blind/Deaf/Multiple Disability Waiver
48-18 Program;
48-19 (B) Personal Attendant Services Program; and
48-20 (C) the Voucher Pilot Project program
48-21 established under Sections 22.032 and 22.033, Human Resources Code;
48-22 (2) all employees of the Texas Rehabilitation
48-23 Commission who primarily perform duties related to a program listed
48-24 in Subdivision (1) of this subsection become employees of the Texas
48-25 Department of Long-term Care Services, to be assigned duties by the
48-26 commissioner of that department;
48-27 (3) a rule or form adopted by the Texas Rehabilitation
49-1 Commission that relates to a program listed in Subdivision (1) of
49-2 this subsection is a rule or form of the Texas Department of
49-3 Long-term Care Services and remains in effect until altered by the
49-4 agency;
49-5 (4) a reference in law or an administrative rule to
49-6 the Texas Rehabilitation Commission that relates to a program
49-7 listed in Subdivision (1) of this subsection means the Texas
49-8 Department of Long-term Care Services;
49-9 (5) a license, permit, or certification in effect that
49-10 was issued by the Texas Rehabilitation Commission for a program
49-11 listed in Subdivision (1) of this subsection is continued in effect
49-12 as a license, permit, or certification of the Texas Department of
49-13 Long-term Care Services; and
49-14 (6) a complaint, investigation, or other proceeding
49-15 pending before the Texas Rehabilitation Commission that is related
49-16 to a program listed in Subdivision (1) of this subsection is
49-17 transferred without change in status to the Texas Department of
49-18 Long-term Care Services.
49-19 (b) On the 30th day after the date specified in Subsection
49-20 (a) of this section:
49-21 (1) all funds, obligations, and contracts of the Texas
49-22 Rehabilitation Commission related to a program listed in Subsection
49-23 (a) of this section are transferred to the Texas Department of
49-24 Long-term Care Services; and
49-25 (2) all property and records in the custody of the
49-26 Texas Rehabilitation Commission related to a program listed in
49-27 Subsection (a) of this section and all funds appropriated by the
50-1 legislature for a program listed in Subsection (a) of this section
50-2 are transferred to the Texas Department of Long-term Care Services.
50-3 SECTION 17. (a) On September 1, 2000, or an earlier date as
50-4 determined by the Health and Human Services Commission under
50-5 Section 13(d) of this Act:
50-6 (1) all powers, duties, functions, and activities
50-7 relating to the Office of Long-term Care Ombudsman program
50-8 administered by the Texas Department on Aging immediately before
50-9 that date, are transferred to the Texas Department of Protective
50-10 and Regulatory Services;
50-11 (2) all employees of the Texas Department on Aging who
50-12 primarily perform duties related to the ombudsman program described
50-13 by Subdivision (1) of this subsection become employees of the Texas
50-14 Department of Protective and Regulatory Services, to be assigned
50-15 duties by the commissioner of that department;
50-16 (3) a rule or form adopted by the Texas Department on
50-17 Aging that relates to the ombudsman program described by
50-18 Subdivision (1) of this subsection is a rule or form of the Texas
50-19 Department of Protective and Regulatory Services and remains in
50-20 effect until altered by the agency;
50-21 (4) a reference in law or an administrative rule to
50-22 the Texas Department on Aging that relates to the ombudsman program
50-23 described by Subdivision (1) of this subsection means the Texas
50-24 Department of Protective and Regulatory Services;
50-25 (5) a license, permit, or certification in effect that
50-26 was issued by the Texas Department on Aging that relates to the
50-27 ombudsman program described by Subdivision (1) of this subsection
51-1 is continued in effect as a license, permit, or certification of
51-2 the Texas Department of Protective and Regulatory Services; and
51-3 (6) a complaint, investigation, or other proceeding
51-4 pending before the Texas Department on Aging that relates to the
51-5 ombudsman program described by Subdivision (1) of this subsection
51-6 is transferred without change in status to the Texas Department of
51-7 Protective and Regulatory Services.
51-8 (b) On the 30th day after the date specified in Subsection
51-9 (a) of this section:
51-10 (1) all funds, obligations, and contracts of the Texas
51-11 Department on Aging related to the ombudsman program described by
51-12 Subsection (a) of this section are transferred to the Texas
51-13 Department of Protective and Regulatory Services; and
51-14 (2) all property and records in the custody of the
51-15 Texas Department on Aging related to the ombudsman program
51-16 described by Subsection (a) of this section and all funds
51-17 appropriated by the legislature for the program are transferred to
51-18 the Texas Department of Protective and Regulatory Services.
51-19 SECTION 18. (a) This section takes effect on September 1,
51-20 2000, or an earlier date as determined by the Health and Human
51-21 Services Commission under Section 13(d) of this Act.
51-22 (b) The Texas Department on Aging is abolished.
51-23 (c) Except as provided by Section 17 of this Act:
51-24 (1) all powers, duties, functions, and activities
51-25 performed by the Texas Department on Aging immediately before this
51-26 section's effective date are transferred to the Texas Department of
51-27 Long-term Care Services;
52-1 (2) all employees of the Texas Department on Aging
52-2 become employees of the Texas Department of Long-term Care
52-3 Services, to be assigned duties by the commissioner of that
52-4 department;
52-5 (3) a rule or form adopted by the Texas Department on
52-6 Aging is a rule or form of the Texas Department of Long-term Care
52-7 Services and remains in effect until altered by the agency;
52-8 (4) a reference in law or an administrative rule to
52-9 the Texas Department on Aging means the Texas Department of
52-10 Long-term Care Services;
52-11 (5) a license, permit, or certification in effect that
52-12 was issued by the Texas Department on Aging is continued in effect
52-13 as a license, permit, or certification of the Texas Department of
52-14 Long-term Care Services; and
52-15 (6) a complaint, investigation, or other proceeding
52-16 pending before the Texas Department on Aging is transferred without
52-17 change in status to the Texas Department of Long-term Care
52-18 Services.
52-19 (d) Except as provided by Section 17 of this Act, on the
52-20 30th day after the effective date of this section:
52-21 (1) all funds, obligations, and contracts of the Texas
52-22 Department on Aging are transferred to the Texas Department of
52-23 Long-term Care Services; and
52-24 (2) all property and records in the custody of the
52-25 Texas Department on Aging and all funds appropriated by the
52-26 legislature for the Texas Department on Aging are transferred to
52-27 the Texas Department of Long-term Care Services.
53-1 SECTION 19. If, before implementing any provision of this
53-2 Act, the Texas Department of Long-term Care Services or another
53-3 state agency determines that a waiver or authorization from a
53-4 federal agency is necessary for implementation, the department or
53-5 other state agency shall request the waiver or authorization and
53-6 may delay implementing that provision until the waiver or
53-7 authorization is granted.
53-8 SECTION 20. Except as otherwise provided by this Act, this
53-9 Act takes effect September 1, 1999.
53-10 SECTION 21. The importance of this legislation and the
53-11 crowded condition of the calendars in both houses create an
53-12 emergency and an imperative public necessity that the
53-13 constitutional rule requiring bills to be read on three several
53-14 days in each house be suspended, and this rule is hereby suspended.