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A BILL TO BE ENTITLED
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AN ACT
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relating to the authority of the office of independent ombudsman |
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for state supported living centers to oversee community-based |
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services provided to individuals with an intellectual or |
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developmental disability. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. The heading to Chapter 555, Health and Safety |
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Code, is amended to read as follows: |
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CHAPTER 555. STATE SUPPORTED LIVING CENTERS AND COMMUNITY SERVICE |
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PROVIDERS |
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SECTION 2. Section 555.001, Health and Safety Code, is |
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amended by adding Subdivision (5) and amending Subdivisions (11) |
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and (14) to read as follows: |
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(5) "Community service provider" means a service |
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provider that contracts to provide community-based services to |
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individuals with an intellectual or developmental disability |
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through a local intellectual and developmental disability |
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authority under Subchapter B-1, Chapter 534. |
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(11) "Independent ombudsman" means the individual who |
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has been appointed to the office of independent ombudsman for state |
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supported living centers and community service providers. |
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(14) "Office" means the office of independent |
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ombudsman for state supported living centers and community service |
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providers established under Subchapter C. |
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SECTION 3. Subchapter C, Chapter 555, Health and Safety |
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Code, is amended to read as follows: |
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SUBCHAPTER C. OFFICE OF INDEPENDENT OMBUDSMAN FOR STATE SUPPORTED |
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LIVING CENTERS AND COMMUNITY SERVICE PROVIDERS |
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Sec. 555.051. ESTABLISHMENT; PURPOSE. (a) The office of |
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independent ombudsman is established for the purpose of |
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investigating, evaluating, and securing the rights of: |
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(1) residents and clients of state supported living |
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centers and the ICF-IID component of the Rio Grande State Center; |
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and |
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(2) individuals with an intellectual or developmental |
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disability receiving community services through a local |
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intellectual and developmental disability authority, including |
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through a community service provider. |
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(b) The office is administratively attached to the |
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commission [department]. The commission [department] shall |
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provide administrative support and resources to the office as |
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necessary for the office to perform its duties. |
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Sec. 555.052. INDEPENDENCE. The independent ombudsman in |
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the performance of the ombudsman's duties and powers under this |
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subchapter acts independently of the commission [department]. |
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Sec. 555.053. APPOINTMENT OF INDEPENDENT OMBUDSMAN. (a) |
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The governor shall appoint the independent ombudsman for a term of |
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two years expiring February 1 of odd-numbered years. |
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(b) The governor may appoint as independent ombudsman only |
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an individual with at least five years of experience managing and |
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ensuring the quality of care and services provided to individuals |
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with an intellectual or developmental disability. |
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(c) A person appointed as independent ombudsman may be |
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reappointed. |
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Sec. 555.054. ASSISTANT OMBUDSMEN. (a) The independent |
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ombudsman shall: |
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(1) hire assistant ombudsmen to perform, under the |
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direction of the independent ombudsman, the same duties and |
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exercise the same powers as the independent ombudsman; [and] |
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(2) station an assistant ombudsman at each center; and |
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(3) station an assistant ombudsman at each local |
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intellectual and developmental disability authority in this state. |
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(b) The independent ombudsman may hire as assistant |
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ombudsmen only individuals with at least five years of experience |
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ensuring the quality of care and services provided to individuals |
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with an intellectual or developmental disability. |
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Sec. 555.055. CONFLICT OF INTEREST. A person may not serve |
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as independent ombudsman or as an assistant ombudsman if the person |
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or the person's spouse: |
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(1) is employed by or participates in the management |
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of a business entity or other organization receiving funds from the |
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commission [department]; |
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(2) owns or controls, directly or indirectly, any |
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interest in a business entity or other organization receiving funds |
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from the commission [department]; or |
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(3) is required to register as a lobbyist under |
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Chapter 305, Government Code, because of the person's activities or |
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compensation on behalf of a profession related to the operation of |
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the commission [department]. |
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Sec. 555.056. REPORT. (a) The independent ombudsman shall |
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submit on a biannual basis to the governor, the lieutenant |
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governor, the speaker of the house of representatives, [and] the |
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chairs of the standing committees of the senate and the house of |
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representatives with primary jurisdiction over state supported |
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living centers, and the chairs of the standing committees of the |
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senate and the house of representatives with primary jurisdiction |
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over intellectual and developmental disability issues a report that |
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is both aggregated and disaggregated by individual center or |
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community service provider and describes: |
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(1) the work of the independent ombudsman; |
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(2) the results of any review or investigation |
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undertaken by the independent ombudsman, including a review or |
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investigation of services contracted by the commission |
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[department]; |
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(3) any recommendations that the independent |
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ombudsman has in relation to the duties of the independent |
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ombudsman; and |
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(4) any recommendations that the independent |
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ombudsman has for systemic improvements needed to decrease |
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incidents of abuse, neglect, or exploitation [at an individual
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center or at all centers]. |
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(b) The independent ombudsman shall ensure that information |
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submitted in a report under Subsection (a) does not permit the |
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identification of an individual. |
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(c) The independent ombudsman shall immediately report to |
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the governor, the lieutenant governor, the speaker of the house of |
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representatives, [and] the chairs of the standing committees of the |
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senate and the house of representatives having primary jurisdiction |
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over state supported living centers, and the chairs of the standing |
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committees of the senate and the house of representatives with |
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primary jurisdiction over intellectual and developmental |
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disability issues [the Department of Aging and Disability Services] |
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any particularly serious or flagrant: |
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(1) case of abuse or injury of a resident, [or] client, |
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or individual with an intellectual or developmental disability |
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about which the independent ombudsman is made aware; |
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(2) problem concerning the administration of a center |
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or community service provider program or operation; or |
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(3) interference by a center, community service |
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provider, [the department,] or the commission, other than actions |
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by the commission's office of inspector general in accordance with |
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the office's duties, with an investigation conducted by the |
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independent ombudsman. |
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Sec. 555.057. COMMUNICATION AND CONFIDENTIALITY. (a) The |
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commission [department] shall allow any resident, [or] client, or |
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individual with an intellectual or developmental disability, |
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authorized representative of a resident, [or] client, or |
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individual, family member of a resident, [or] client, or |
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individual, or other interested party to communicate with the |
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independent ombudsman or an assistant ombudsman. The |
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communication: |
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(1) may be in person, by mail, or by any other means; |
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and |
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(2) is confidential and privileged. |
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(b) The records of the independent ombudsman are |
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confidential, except that the independent ombudsman shall: |
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(1) share with the Department of Family and Protective |
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Services a communication that may involve the abuse, neglect, or |
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exploitation of a resident, [or] client, or individual with an |
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intellectual or developmental disability; |
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(2) share with the inspector general a communication |
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that may involve an alleged criminal offense; |
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(3) share with the regulatory services division of the |
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commission [department] a communication that may involve a |
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violation of an ICF-IID standard or condition of participation; and |
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(4) disclose the ombudsman's nonprivileged records if |
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required by a court order on a showing of good cause. |
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(c) The independent ombudsman may make reports relating to |
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an investigation by the independent ombudsman public after the |
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investigation is complete but only if the name and any other |
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personally identifiable information of a resident, [or] client, or |
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individual with an intellectual or developmental disability, |
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legally authorized representative of a resident, [or] client, or |
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individual, family member of a resident, [or] client, or |
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individual, center, center employee, community service provider, |
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community service provider employee, or other individual are |
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redacted from the report and remain confidential. The independent |
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ombudsman may provide an unredacted report to the center or |
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community service provider involved in the investigation, the |
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commission [department], the Department of Family and Protective |
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Services, and the inspector general. |
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(d) The name, address, or other personally identifiable |
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information of a person who files a complaint with the office of |
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independent ombudsman, information generated by the office of |
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independent ombudsman in the course of an investigation, and |
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confidential records obtained by the office of independent |
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ombudsman are confidential and not subject to disclosure under |
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Chapter 552, Government Code, except as provided by this section. |
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Sec. 555.058. PROMOTION OF AWARENESS OF OFFICE. The |
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independent ombudsman shall promote awareness among the public, |
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residents, clients, individuals with an intellectual or |
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developmental disability receiving community services, [and] |
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center employees, and community service provider employees of: |
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(1) how the office may be contacted; |
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(2) the purpose of the office; and |
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(3) the services the office provides. |
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Sec. 555.059. DUTIES AND POWERS RELATING TO CENTERS AND |
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RESIDENTS OR CLIENTS. (a) The independent ombudsman shall: |
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(1) evaluate the process by which a center |
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investigates, reviews, and reports an injury to a resident or |
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client or an unusual incident; |
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(2) evaluate the delivery of services to residents and |
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clients to ensure that the rights of residents and clients are fully |
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observed, including ensuring that each center conducts sufficient |
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unannounced patrols; |
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(3) immediately refer a complaint alleging the abuse, |
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neglect, or exploitation of a resident or client to the Department |
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of Family and Protective Services; |
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(4) refer a complaint alleging employee misconduct |
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that does not involve abuse, neglect, or exploitation or a possible |
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violation of an ICF-IID standard or condition of participation to |
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the regulatory services division of the commission [department]; |
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(5) refer a complaint alleging a criminal offense, |
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other than an allegation of abuse, neglect, or exploitation of a |
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resident or client, to the inspector general; |
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(6) conduct investigations of complaints, other than |
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complaints alleging criminal offenses or the abuse, neglect, or |
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exploitation of a resident or client, if the office determines |
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that: |
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(A) a resident or client or the resident's or |
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client's family may be in need of assistance from the office; or |
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(B) a complaint raises the possibility of a |
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systemic issue in the center's provision of services; |
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(7) conduct biennial on-site audits at each center of: |
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(A) the ratio of direct care employees to |
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residents; |
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(B) the provision and adequacy of training to: |
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(i) center employees; and |
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(ii) direct care employees; and |
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(C) if the center serves alleged offender |
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residents, the provision of specialized training to direct care |
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employees; |
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(8) conduct an annual audit of each center's policies, |
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practices, and procedures to ensure that each resident and client |
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is encouraged to exercise the resident's or client's rights, |
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including: |
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(A) the right to file a complaint; and |
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(B) the right to due process; |
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(9) prepare and deliver an annual report regarding the |
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findings of each audit to the: |
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(A) executive commissioner; |
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(B) [commissioner;
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[(C) Aging and Disability Services Council;
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[(D)] governor; |
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(C) [(E)] lieutenant governor; |
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(D) [(F)] speaker of the house of |
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representatives; |
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(E) [(G)] standing committees of the senate and |
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house of representatives with primary jurisdiction over state |
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supported living centers; and |
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(F) [(H)] state auditor; |
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(10) require a center to provide access to all |
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records, data, and other information under the control of the |
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center that the independent ombudsman determines is necessary to |
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investigate a complaint or to conduct an audit under this section; |
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(11) review all final reports produced by the |
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Department of Family and Protective Services, the regulatory |
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services division of the commission [department], and the inspector |
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general regarding a complaint referred by the independent |
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ombudsman; |
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(12) provide assistance to a resident, client, |
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authorized representative of a resident or client, or family member |
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of a resident or client who the independent ombudsman determines is |
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in need of assistance, including advocating with an agency, |
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provider, or other person in the best interests of the resident or |
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client; |
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(13) make appropriate referrals under any of the |
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duties and powers listed in this subsection; and |
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(14) monitor and evaluate the commission's |
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[department's] actions relating to any problem identified or |
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recommendation included in a report received from the Department of |
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Family and Protective Services relating to an investigation of |
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alleged abuse, neglect, or exploitation of a resident or client. |
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(b) The independent ombudsman may apprise a person who is |
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interested in a resident's or client's welfare of the rights of the |
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resident or client. |
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(c) To assess whether a resident's or client's rights have |
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been violated, the independent ombudsman may, in any matter that |
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does not involve an alleged criminal offense or the abuse, neglect, |
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or exploitation of a resident or client, contact or consult with an |
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administrator, employee, resident, client, family member of a |
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resident or client, expert, or other individual in the course of the |
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investigation or to secure information. |
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(d) Notwithstanding any other provision of this chapter, |
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the independent ombudsman may not investigate an alleged criminal |
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offense or the alleged abuse, neglect, or exploitation of a |
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resident or client. |
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Sec. 555.0595. DUTIES AND POWERS RELATING TO DELIVERY OF |
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SERVICES TO INDIVIDUALS WITH INTELLECTUAL OR DEVELOPMENTAL |
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DISABILITY. (a) The independent ombudsman shall: |
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(1) evaluate the process by which a community service |
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provider investigates, reviews, and reports an injury or unusual |
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incident involving an individual with an intellectual or |
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developmental disability; |
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(2) evaluate the delivery of services to individuals |
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with an intellectual or developmental disability to ensure that the |
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rights of the individuals are fully observed; |
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(3) immediately refer a complaint alleging the abuse, |
|
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neglect, or exploitation of an individual with an intellectual or |
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developmental disability to the adult protective services division |
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of the Department of Family and Protective Services; |
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(4) refer a complaint alleging employee misconduct |
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that does not involve abuse, neglect, or exploitation to the |
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regulatory division of the commission; |
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(5) refer a complaint alleging a criminal offense, |
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other than an allegation of abuse, neglect, or exploitation of an |
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individual with an intellectual or developmental disability, to the |
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inspector general; |
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(6) conduct investigations of complaints, other than |
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complaints alleging a criminal offense or the abuse, neglect, or |
|
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exploitation of an individual with an intellectual or developmental |
|
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disability, if the office determines that: |
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(A) an individual or the individual's family may |
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be in need of assistance from the office; or |
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(B) a complaint raises the possibility of a |
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systemic issue in the community service provider's provision of |
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services; |
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(7) require a community service provider to provide |
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access to all records, data, and other information under the |
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control of the authority or provider that the independent ombudsman |
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determines is necessary to investigate a complaint or to conduct an |
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audit under this section; |
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(8) request aid from the attorney general, as |
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necessary, to subpoena any records, data, or other information |
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under Subdivision (7); |
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(9) review all final reports produced by the adult |
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protective services division of the Department of Family and |
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Protective Services, the regulatory services division of the |
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commission, and the inspector general regarding a complaint |
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referred by the independent ombudsman; |
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(10) provide assistance to an individual with an |
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intellectual or developmental disability, authorized |
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representative of an individual, or family member of an individual |
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who the independent ombudsman determines is in need of assistance, |
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including advocating with an agency, community service provider, or |
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other person in the best interests of the individual; |
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(11) make appropriate referrals under any of the |
|
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duties and powers listed in this subsection; and |
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(12) monitor and evaluate the commission's actions |
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relating to any problem identified or recommendation included in a |
|
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report received from the adult protective services division of the |
|
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Department of Family and Protective Services relating to an |
|
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investigation of alleged abuse, neglect, or exploitation of an |
|
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individual with an intellectual or developmental disability. |
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(b) The independent ombudsman may apprise a person who is |
|
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interested in the welfare of an individual with an intellectual or |
|
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developmental disability of the rights of the individual. |
|
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(c) To assess whether the rights of an individual with an |
|
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intellectual or developmental disability have been violated, the |
|
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independent ombudsman may, in any matter that does not involve an |
|
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alleged criminal offense or the abuse, neglect, or exploitation of |
|
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an individual, contact or consult with an administrator, employee, |
|
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individual, family member of an individual, expert, or other person |
|
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in the course of the investigation or to secure information. |
|
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(d) Notwithstanding any other provision of this chapter, |
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the independent ombudsman may not investigate an alleged criminal |
|
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offense or the alleged abuse, neglect, or exploitation of an |
|
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individual with an intellectual or developmental disability. |
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Sec. 555.060. RETALIATION PROHIBITED. The commission, |
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[department or] a center, or a community service provider may not |
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retaliate against a commission [department] employee, center |
|
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employee, community service provider employee, or any other person |
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who in good faith makes a complaint to the office of independent |
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ombudsman or cooperates with the office in an investigation. |
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Sec. 555.061. TOLL-FREE NUMBER. (a) The office shall |
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establish a permanent, toll-free number for the purpose of |
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receiving any information concerning the violation of a right of a |
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resident, [or] client, or individual with an intellectual or |
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developmental disability. |
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(b) The office shall ensure that: |
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(1) the toll-free number is prominently displayed in |
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the main administration area and other appropriate common areas of |
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a center or community service provider; and |
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(2) a resident, [a] client, individual with an |
|
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intellectual or developmental disability, the legally authorized |
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representative of a resident, [or] client, or individual, [and] a |
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center employee, and a community service provider employee have |
|
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confidential access to a telephone for the purpose of calling the |
|
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toll-free number. |
|
|
SECTION 4. Section 531.853, Government Code, is amended to |
|
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read as follows: |
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|
Sec. 531.853. MORTALITY REVIEW REPORT. Subject to Section |
|
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531.854, a contracted organization shall submit: |
|
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(1) to the Department of Aging and Disability |
|
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Services, the Department of Family and Protective Services, the |
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office of independent ombudsman for state supported living centers |
|
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and community service providers, and the commission's office of |
|
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inspector general a report of the findings of the mortality review; |
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and |
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(2) semiannually to the governor, the lieutenant |
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governor, the speaker of the house of representatives, and the |
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standing committees of the senate and house of representatives with |
|
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primary jurisdiction over the Department of Aging and Disability |
|
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Services, the Department of Family and Protective Services, the |
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office of independent ombudsman for state supported living centers |
|
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and community service providers, and the commission's office of |
|
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inspector general a report that contains: |
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(A) aggregate information regarding the deaths |
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for which the contracted organization performed an independent |
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mortality review; |
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(B) trends in the causes of death identified by |
|
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the contracted organization; and |
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(C) any suggestions for system-wide improvements |
|
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to address conditions that contributed to deaths reviewed by the |
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contracted organization. |
|
|
SECTION 5. Section 48.007, Human Resources Code, is amended |
|
|
to read as follows: |
|
|
Sec. 48.007. MEMORANDUM OF UNDERSTANDING REGARDING CERTAIN |
|
|
ABUSE, NEGLECT, OR EXPLOITATION INVESTIGATIONS. The commission, |
|
|
the department, the Department of Aging and Disability Services, |
|
|
the office of independent ombudsman for state supported living |
|
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centers and community service providers, and the commission's |
|
|
office of inspector general shall enter into a memorandum of |
|
|
understanding regarding investigations of alleged abuse, neglect, |
|
|
or exploitation of residents or clients of state supported living |
|
|
centers or the ICF-IID component of the Rio Grande State Center that |
|
|
delineates the responsibilities of each agency and office under |
|
|
this chapter, Chapter 261, Family Code, and Chapter 555, Health and |
|
|
Safety Code, and amend the memorandum of understanding as necessary |
|
|
to reflect changes in those responsibilities. During the |
|
|
negotiation of the memorandum of understanding, the agencies and |
|
|
offices shall jointly determine whether the forensic training |
|
|
received by relevant staff of the Department of Family and |
|
|
Protective Services is adequate. Specifically, the agencies and |
|
|
offices shall assess and, if necessary, develop a plan to enhance |
|
|
the ability of department staff to identify and report incidences |
|
|
that constitute a potential criminal offense. The commission is |
|
|
the final arbiter of any dispute regarding the memorandum of |
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understanding under this section. |
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SECTION 6. This Act takes effect immediately if it receives |
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a vote of two-thirds of all the members elected to each house, as |
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provided by Section 39, Article III, Texas Constitution. If this |
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Act does not receive the vote necessary for immediate effect, this |
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Act takes effect September 1, 2019. |