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SECTION 1. Subchapter F,
Chapter 101A, Human Resources Code, is amended to read as follows:
SUBCHAPTER F. OFFICE OF
STATE LONG-TERM CARE OMBUDSMAN
Sec. 101A.251. DEFINITIONS.
In this subchapter:
(1) "Commission"
means the Health and Human Services Commission ["Elderly
resident" means a resident of a long-term care facility who is 60
years of age or older].
(1-a) "Local
ombudsman entity" means a local
entity, consisting of representatives, designated by the state
long-term care ombudsman to carry out the ombudsman program in a service
area of the state.
(2) "Long-term care
facility" means a facility that [serves persons who are 60 years of
age or older and that] is licensed or regulated or that is required to
be licensed or regulated by the commission [department] under
Chapter 242 or 247, Health and Safety Code.
(3) "Office" means
the office of the state long-term care ombudsman, consisting of the
state long-term care ombudsman and representatives who are employed by the
commission.
(3-a) "Ombudsman
program" means the program through which the functions and duties of
the office are carried out, consisting of the office and all
representatives.
(4)
"Representative" means an employee or volunteer specifically
designated by the office as a representative of the office.
(4-a)
"Resident" means a resident of a long-term care facility.
(5) "State long-term
care ombudsman" means the chief administrator of the office.
Sec. 101A.252. OPERATION OF
OFFICE. (a) The office [department] shall operate in
accordance with federal and state statute [the office of the state
long-term care ombudsman].
(b) The commission [department]
may operate the office directly or by contract or memorandum of agreement
with a public agency or other appropriate private nonprofit organization. The
commission, agency, or organization may not adopt
a policy that interferes with the role,
powers, and duties of the office. The commission [department]
may not use an agency or organization that [is]:
(1) is responsible
for licensing or certifying long-term care services; [or]
(2) is an association
of long-term care facilities or of any other residential facility that
serves persons with disabilities or who are 60 years of age or
older, or that is an affiliate of such an association; or
(3) has an ownership,
operational, or investment interest in a long-term care facility.
(c) The commission [department]
shall consider the views of residents [elderly persons],
provider organizations, advocacy groups, and area agencies on aging in
planning and operating the office.
(d) The commission [department]
shall ensure that a person involved in designating the state long-term
care ombudsman or in designating a [an employee or]
representative [of the office] does not have a conflict of interest.
Sec. 101A.253. ROLE OF
OFFICE. The office and the ombudsman program shall operate in cooperation
with any regulatory agency funded and mandated by federal [the
Older Americans Act of 1965 (42 U.S.C. Section 3001 et seq.)] and state
statute.
Sec. 101A.254. POWERS AND
DUTIES OF STATE LONG-TERM CARE OMBUDSMAN AND OFFICE. (a) The [state
ombudsman and the] office has [have] the powers and
duties authorized and required by state and federal law.
(b) The office may use
appropriate administrative, legal, and other remedies to assist [elderly]
residents as provided by commission [department] rules.
(c) The office acts
independently of the commission in the performance of its powers and duties
under this subchapter.
(d) The state long-term
care ombudsman has the authority to designate,
suspend, or remove a local ombudsman entity or representative.
Sec. 101A.255. OMBUDSMEN.
(a) The office shall recruit volunteers and citizen organizations to
participate in the ombudsman program. A paid staff member of an area
agency on aging network or a nonprofit social service agency may be an
ombudsman. An ombudsman is a representative [of the office].
(b) The office shall provide
training to ombudsmen as required by this subchapter and federal law.
(c) The office shall
coordinate ombudsman services with the protection and advocacy systems that
exist for persons with developmental disabilities or mental illness.
(d) The office shall
coordinate ombudsman services with state and local law enforcement agencies
and courts of competent jurisdiction.
Sec. 101A.256. LEGAL COUNSEL
[ASSISTANCE]. The commission [department] shall
ensure that the office receives adequate legal advice and representation without
conflict of interest as defined by the Texas Disciplinary Rules of
Professional Conduct. The attorney general shall represent the state
long-term care ombudsman and [or] a representative if a
suit or other legal action is brought or threatened to be brought against
that person in connection with the person's performance of the official
duties of the ombudsman program [office].
Sec. 101A.257.
INVESTIGATIONS. (a) The office shall have access to [elderly]
residents and shall investigate and resolve complaints made by or on behalf
of [elderly] residents.
(b) The state long-term
care ombudsman [department] shall ensure that each ombudsman designated
under Section 101A.255 who investigates complaints has received proper
training and has been approved by the office as qualified to investigate
complaints.
(c) The office shall
investigate a grievance made against a representative.
(d) A long-term care
facility shall cooperate with an investigation conducted by the state
long-term care ombudsman or a representative, including an ombudsman
designated under Section 101A.255.
Sec. 101A.258. ACCESS TO
RECORDS AND CONFIDENTIALITY. (a) The state long-term care ombudsman
or representative [the
state ombudsman's designee, specifically identified by the commissioner,]
shall have access to patient care records of [elderly] residents as
provided by commission rules [of long-term care facilities as
provided by Subsection (a-1). The executive commissioner by rule shall
establish procedures for obtaining access to the records]. All records
and information created or obtained by [to which] the state long-term
care ombudsman or a representative [the state ombudsman's
designee obtains access] remain confidential.
(a-1) The state long-term
care ombudsman or representative
[the state ombudsman's designee, specifically identified by the
commissioner,] shall have access to patient care records of a
resident [elderly residents of long-term care facilities] if:
(1) the resident or the
resident's legal representative consents to the access;
(2) the resident is unable
to consent to the access and the resident has no legal representative; or
(3) access to the records is
necessary to investigate a complaint and:
(A) a legal representative
[guardian] of the resident refuses to consent to the access;
(B) the state long-term
care ombudsman or representative [the state ombudsman's
designee] has reasonable cause to believe that the legal
representative of the resident [guardian] is not acting in the
best interests of the resident; and
(C) the state long-term
care ombudsman approves the access.
(b) The office shall ensure
that the identity of a complainant or any [facility] resident may be
disclosed only with the [written] consent of the person or the
person's legal representative or on court order.
(b-1) Files, records, and
other information maintained as part of the ombudsman program may be
disclosed only at the discretion of the state long-term care ombudsman.
[(c) The information in
files maintained by the office may be disclosed only by the ombudsman who
has authority over the disposition of the files.]
Sec. 101A.259. REPORTING
SYSTEM. The office shall maintain a statewide ombudsman uniform reporting
system to collect and analyze information relating to complaints and
conditions in long-term care facilities as long as such system does not
duplicate other state reporting systems. The office shall provide the
information to the executive
commissioner, subject to Section 101A.258 [department and the
Health and Human Services Commission].
Sec. 101A.260. ANALYSIS OF
LAWS. (a) The office shall analyze and monitor the development and
implementation of federal, state, and local laws, rules, regulations, and
policies relating to long-term care facilities and services and shall
recommend any changes the office considers necessary.
(b) Section 556.006(a),
Government Code, does not apply to the state long-term care ombudsman or a
representative.
Sec. 101A.261. PUBLIC
INFORMATION. The office shall provide information and make
recommendations to public agencies, legislators, and other persons
about [others that relates to] the problems and concerns of [elderly]
residents.
Sec. 101A.262. [ANNUAL]
REPORT. (a) The office shall prepare a [an annual] report
that contains:
(1) information and findings
relating to the problems and concerns [complaints] of [elderly]
residents; and
(2) policy, regulatory, and
legislative recommendations to solve the problems, resolve the concerns
[complaints], and improve the quality of the [elderly]
residents' care and lives.
(b) The report must be
submitted to the governor and the presiding officer of each house of the
legislature not later than November 1 of each even-numbered year.
Sec. 101A.263. LIMITATION OF
LIABILITY. The state long-term care [An] ombudsman or a
representative is not liable for civil damages or subject to criminal
prosecution for performing official duties unless the state long-term
care ombudsman or representative acts in bad faith or with a malicious
purpose.
Sec. 101A.264. CRIMINAL
PENALTY. (a) A person commits an offense if the person:
(1) by act or omission,
wilfully [intentionally] interferes or attempts to interfere
with the state long-term care [an] ombudsman or a
representative attempting to perform official duties; or
(2) commits or attempts to
commit an act of retaliation or reprisal against any resident or employee
of a long-term care facility for filing a complaint or providing
information to the state long-term care [an] ombudsman or
a representative.
(b) An offense under this
section is a Class B misdemeanor.
(c) The commission [department]
shall ensure [assure] that criminal sanctions will be
initiated only after all administrative procedures are exhausted.
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SECTION 1. Subchapter F,
Chapter 101A, Human Resources Code, is amended to read as follows:
SUBCHAPTER F. OFFICE OF
STATE LONG-TERM CARE OMBUDSMAN
Sec. 101A.251. DEFINITIONS.
In this subchapter:
(1) "Commission"
means the Health and Human Services Commission ["Elderly
resident" means a resident of a long-term care facility who is 60
years of age or older].
(1-a) "Local
ombudsman entity" means a distinct
unit or entity, consisting of representatives, designated by the
state long-term care ombudsman to carry out the ombudsman program in a
service area of the state.
(2) "Long-term care
facility" means a facility that [serves persons who are 60 years of
age or older and that] is licensed or regulated or that is required to
be licensed or regulated by the commission [department] under
Chapter 242 or 247, Health and Safety Code.
(3) "Office" means
the office of the state long-term care ombudsman, consisting of the
state long-term care ombudsman and representatives who are employed by the
commission.
(3-a) "Ombudsman
program" means the program through which the functions and duties of
the office are carried out, consisting of the office and all representatives.
(4)
"Representative" means an employee or volunteer specifically
designated by the office as a representative of the office.
(4-a)
"Resident" means a resident of a long-term care facility.
(5) "State long-term
care ombudsman" means the chief administrator of the office.
Sec. 101A.252. OPERATION OF
OFFICE. (a) The office [department] shall operate and is subject to the commission's oversight
in accordance with federal and state statute [the office of the
state long-term care ombudsman].
(b) The commission [department]
may operate the office directly or by contract or memorandum of agreement
with a public agency or other appropriate private nonprofit organization. The
commission, agency, or organization may not implement
a policy that prohibits the
office from performing its duties under
this subchapter. The commission [department] may
not use an agency or organization that [is]:
(1) is responsible
for licensing or certifying long-term care services; [or]
(2) is an association
of long-term care facilities or of any other residential facility that
serves persons with disabilities or who are 60 years of age or
older, or that is an affiliate of such an association; or
(3) has an ownership,
operational, or investment interest in a long-term care facility.
(c) The commission [department]
shall consider the views of residents [elderly persons],
provider organizations, advocacy groups, and area agencies on aging in
planning and operating the office.
(d) The commission [department]
shall ensure that a person involved in designating the state long-term
care ombudsman or in designating a [an employee or]
representative [of the office] does not have a conflict of interest.
Sec. 101A.253. ROLE OF
OFFICE. The office and the ombudsman program shall operate in cooperation
with any regulatory agency funded and mandated by federal [the
Older Americans Act of 1965 (42 U.S.C. Section 3001 et seq.)] and state
statute.
Sec. 101A.254. POWERS AND
DUTIES OF STATE LONG-TERM CARE OMBUDSMAN AND OFFICE. (a) The [state
ombudsman and the] office has [have] the powers and
duties authorized and required by state and federal law.
(b) The office may use
appropriate administrative, legal, and other remedies to assist [elderly]
residents as provided by commission [department] rules.
(c) The office acts
independently of the commission in the performance of its powers and duties
under this subchapter.
(d) The state long-term
care ombudsman has the authority to designate a local ombudsman entity or
representative and to suspend or revoke
that designation.
Sec. 101A.255. OMBUDSMEN.
(a) The office shall recruit volunteers and citizen organizations to
participate in the ombudsman program. A paid staff member of an area
agency on aging network or a nonprofit social service agency may be an
ombudsman. An ombudsman is a representative [of the office].
(b) The office shall provide
training to ombudsmen as required by this subchapter and federal law.
(c) The office shall
coordinate ombudsman services with the protection and advocacy systems that
exist for persons with developmental disabilities or mental illness.
(d) The office shall
coordinate ombudsman services with state and local law enforcement agencies
and courts of competent jurisdiction. The
office is not authorized to compel those law enforcement agencies or courts
to coordinate ombudsman services or other activities with the office.
Sec. 101A.256. LEGAL COUNSEL
[ASSISTANCE]. The commission [department] shall
ensure that the office receives adequate legal advice and representation without
conflict of interest as defined by the Texas Disciplinary Rules of
Professional Conduct. The attorney general shall represent the state
long-term care ombudsman and [or] a representative if a
suit or other legal action is brought or threatened to be brought against
that person in connection with the person's performance of the official
duties of the ombudsman program [office].
Sec. 101A.257.
INVESTIGATIONS. (a) The office shall have access to [elderly]
residents and shall, in accordance
with commission rules, investigate and resolve complaints made
by or on behalf of [elderly] residents.
(b) The state long-term
care ombudsman [department] shall ensure that each ombudsman designated
under Section 101A.255 who investigates complaints has received proper
training and has been approved by the office as qualified to investigate
complaints.
(c) The office shall
investigate a grievance made against a representative in accordance with commission rules and inform
the person who made the grievance of the outcome of the investigation when
the investigation is concluded.
(d) A long-term care
facility shall cooperate with an investigation conducted by the state
long-term care ombudsman or a representative, including an ombudsman
designated under Section 101A.255.
Sec. 101A.258. ACCESS TO
RECORDS AND CONFIDENTIALITY. (a) The state long-term care
ombudsman and representatives [or the state ombudsman's
designee, specifically identified by the commissioner,] shall have
access to patient care records of [elderly] residents as provided
by commission rules. Except as provided
by Subsection (b), all [of long-term care facilities as
provided by Subsection (a-1). The executive commissioner by rule shall
establish procedures for obtaining access to the records. All] records
and information created or obtained by [to which] the state long-term
care ombudsman or a representative [the state ombudsman's
designee obtains access] remain confidential.
(a-1) The state long-term
care ombudsman and
representatives [or the state ombudsman's designee,
specifically identified by the commissioner,] shall have access to
patient care records of a resident [elderly residents of
long-term care facilities] if:
(1) the resident or the resident's
legal representative consents to the access;
(2) the resident is unable
to consent to the access and the resident has no legal representative; or
(3) access to the records is
necessary to investigate a complaint and:
(A) a legal representative
[guardian] of the resident refuses to consent to the access;
(B) the state long-term
care ombudsman or representative [the state ombudsman's
designee] has reasonable cause to believe that the legal
representative of the resident [guardian] is not acting in the
best interests of the resident; and
(C) the state long-term
care ombudsman approves the access.
(b) The office shall ensure
that the identity of a complainant or any [facility] resident may be
disclosed only with the [written] consent of the person or the
person's legal representative or on court order.
(c) Files, records, and
other information maintained as part of the ombudsman program may be
disclosed only at the discretion of the state long-term care ombudsman.
[The information in files maintained by the office may be disclosed only
by the ombudsman who has authority over the disposition of the files.]
Sec. 101A.259. REPORTING
SYSTEM. The office shall maintain a statewide ombudsman uniform reporting
system to collect and analyze information relating to complaints and
conditions in long-term care facilities as long as such system does not
duplicate other state reporting systems. The office shall provide the
information to the commission in
accordance with federal law [department and the Health and
Human Services Commission].
Sec. 101A.260. ANALYSIS OF
LAWS. (a) The office shall analyze and monitor the development and
implementation of federal, state, and local laws, rules, regulations, and
policies relating to long-term care facilities and services and shall
recommend any changes the office considers necessary.
(b) To the extent necessary to perform any duties
under this subchapter, Section 556.006(a), Government Code, and Section 391.0116, Local Government Code,
do not apply to the state long-term care ombudsman or a representative.
Sec. 101A.261. PUBLIC
INFORMATION. The office shall provide information and make
recommendations to public agencies, legislators, and other persons
about [others that relates to] the problems and concerns of [elderly]
residents.
Sec. 101A.262. [ANNUAL]
REPORT. (a) The office shall prepare a [an annual] report
that contains:
(1) information and findings
relating to the problems and concerns [complaints] of [elderly]
residents; and
(2) policy, regulatory, and
legislative recommendations to solve the problems, resolve the concerns
[complaints], and improve the quality of the [elderly]
residents' care and lives.
(b) The report must be
submitted to the governor and the presiding officer of each house of the
legislature not later than November 1 of each even-numbered year.
Sec. 101A.263. LIMITATION OF
LIABILITY. The state long-term care [An] ombudsman or a
representative is not liable for civil damages or subject to criminal
prosecution for performing official duties unless the state long-term
care ombudsman or representative acts in bad faith or with a malicious
purpose.
Sec. 101A.264. CRIMINAL
PENALTY. (a) A person commits an offense if the person:
(1) by act or omission,
wilfully [intentionally] interferes or attempts to interfere
with the state long-term care [an] ombudsman or a
representative attempting to perform official duties; or
(2) commits or attempts to
commit an act of retaliation or reprisal against any resident or employee
of a long-term care facility for filing a complaint or providing
information to the state long-term care [an] ombudsman or
a representative.
(b) An offense under this
section is a Class B misdemeanor.
(c) The commission [department]
shall ensure [assure] that criminal sanctions will be
initiated only after all administrative procedures are exhausted.
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