BILL ANALYSIS

Senate Research Center	C.S.H.B. 3462
88R29570 KKR-F	By: Noble (Sparks)
	Health & Human Services
	5/17/2023
	Committee Report (Substituted)

AUTHOR'S / SPONSOR'S STATEMENT OF INTENT

Following the Sunset Advisory Commission's (commission) review of the Health and Human Services Commission (HHSC), the 84th Texas Legislature enacted legislation implementing the commission's recommendation to consolidate the various ombudsman offices administered by HHSC. While the offices were consolidated, the various statutes that governed these offices remained unconsolidated. This has resulted in conflicting statutory authority and procedures for the ombudsman programs administered by HHSC and has led to confusion among clients needing the assistance of an ombudsman, as well as among ombudsman staff and HHSC program staff. H.B. 3462 seeks to consolidate the statutes governing the five ombudsman offices into one centralized location and standardize provisions to ensure certainty around basic ombudsman standards that deal with independence, neutrality, confidentiality, and review processes.

(Original Author's/Sponsor's Statement of Intent)

C.S.H.B. 3462 amends current law relating to the consolidation of ombudsman programs administered by the Health and Human Services Commission.

RULEMAKING AUTHORITY

This bill does not expressly grant any additional rulemaking authority to a state officer, institution, or agency.

SECTION BY SECTION ANALYSIS

SECTION 1. Amends the heading to Subchapter Y, Chapter 531, Government Code, to read as follows:

SUBCHAPTER Y. COMMISSION OMBUDSMAN PROGRAMS

SECTION 2. Reenacts Section 531.991(2), Government Code, as amended by Chapter 906 (S.B. 213), Acts of the 85th Legislature, Regular Session, 2017, and amends it to define "ombudsman."

SECTION 3. Amends Section 531.991, Government Code, by adding Subdivision (3) to define "ombudsman program."

SECTION 4. Amends Subchapter Y, Chapter 531, Government Code, by adding Section 531.9912, as follows:

Sec. 531.9912. ESTABLISHMENT OF OMBUDSMAN PROGRAMS. Requires the executive commissioner of the Health and Human Services Commission (executive commissioner) to establish the following ombudsman programs:

(1) the health and human services office of the ombudsman in accordance with Section 531.9915 (Office of Ombudsman);

(2)� the ombudsman for children and youth in foster care in accordance with Section 531.9931 (Division of Ombudsman for Children and Youth in Foster Care);

(3)� the ombudsman for managed care assistance in accordance with Section 531.9932;

(4)� the ombudsman for behavioral health access to care in accordance with Section 531.9933; and

(5)� the ombudsman for individuals with an intellectual or developmental disability in accordance with Section 531.9934.

SECTION 5. Transfers Section 531.0171, Government Code, to Subchapter Y, Chapter 531, Government Code, redesignates it as Section 531.9915, Government Code, and makes no further changes.

SECTION 6. Reenacts Section 531.992, Government Code, as amended by Chapter 906 (S.B. 213), Acts of the 85th Legislature, Regular Session, 2017, and amends it, as follows:

Sec. 531.992. New heading. APPOINTMENT OF OMBUDSMAN. Requires the executive commissioner to appoint ombudsman for each ombudsman program to serve at the will of the executive commissioner. Deletes existing text requiring the governor to appoint an ombudsman for the Department of Family and Protective Services (DFPS) to serve at the will of the governor. Deletes existing Subsection (b) providing that the ombudsman is administratively attached to the office of the ombudsman for the Health and Human Services Commission (HHSC). Deletes existing Subsection (c) authorizing the ombudsman, subject to the appropriation of money for that purpose, to employ staff to assist the ombudsman in performing the ombudsman's duties under Subchapter Y (Ombudsman for the Department of Family and Protective Services). Deletes existing Subsection (d) prohibiting the ombudsman from using the name or any logo of DFPS on any forms or other materials produced and distributed by the ombudsman.

SECTION 7. Reenacts Section 531.9921, Government Code, as added by Chapter 906 (S.B. 213), Acts of the 85th Legislature, Regular Session, 2017, and amends it, as follows:

Sec. 531.9921. CONFLICT OF INTEREST. Prohibits a person from serving as ombudsman in an ombudsman program if the person or the person's spouse:

(1) is employed by or participates in the management of a business entity or other organization receiving funds from HHSC, rather than DFPS; or

(2)-(3) makes conforming changes to these subdivisions.

SECTION 8. Reenacts Section 531.993, Government Code, as amended by Chapter 906 (S.B. 213), Acts of the 85th Legislature, Regular Session, 2017, and amends it, as follows:

Sec. 531.993.� DUTIES OF OMBUDSMAN. (a) Provides that an ombudsman serves as an impartial party, rather than a neutral party, in assisting:

(1) children and youth in the conservatorship of DFPS with complaints regarding issues within the authority of HHSC or DFPS, as applicable, rather than DFPS or another health and human services agency; and

(2) persons with a complaint against HHSC regarding case-specific activities of the programs within the health and human services system, rather than against DFPS regarding case-specific activities of the programs of DFPS, including adult protective services, child protective services, child-care licensing, and statewide intake.

Makes a nonsubstantive change.

(b) Requires an ombudsman to:

(1) develop and implement statewide procedures to:

(A) receive complaints from:

(i) children and youth in the conservatorship of DFPS; and

(ii) other persons with a complaint against a program within the health and human services system;

(B) review complaints filed with an ombudsman and take appropriate action, including:

(i) conducting an investigation into individual complaints that allege violations of HHSC or DFPS procedures or policies or other violations; and

(ii) referring to HHSC or DFPS for resolution any trends or systemic issues identified in complaints;

(C) provide any necessary assistance to:

(i) children and youth in the conservatorship of DFPS in making complaints and reporting allegations of abuse, neglect, or exploitation under Chapter 48 (Investigations and Protective Services for Elderly Persons and Persons With Disabilities), Human Resources Code; and

(ii) any other person in making complaints against a program within the health and human services system or reporting allegations of abuse, neglect, or exploitation under Chapter 48, Human Resources Code;

(D) maintain the confidentiality of:

(i) an ombudsman's communications and records;

(ii) records of another person that have been provided to an ombudsman; and

(iii) communications of another person with an ombudsman; and

(E) ensure that any person who files a complaint with an ombudsman is informed of the results of the ombudsman's investigation of the complaint, including whether the ombudsman was able to substantiate the complaint;

(2) collaborate with HHSC to develop and implement an annual outreach plan to promote awareness of the ombudsman programs among the public and stakeholders that includes:

(A)� how an ombudsman is authorized to be contacted;

(B)� the purpose of an ombudsman; and

(C)� the services an ombudsman provides;

(3) issue and file with HHSC or DSHS, as applicable, a report that contains an ombudsman's final determination regarding a complaint and any recommended corrective actions to be taken as a result of the complaint;

(4) establish a secure form of communication with any individual who files a complaint with an ombudsman;

(5) collaborate with HHSC or DSHS, as applicable, to identify consequences for any retaliatory action related to a complaint filed with an ombudsman, in accordance with Section 531.997; and

(6) monitor and evaluate the corrective actions taken in response to a recommendation by an ombudsman.

Deletes existing text requiring the ombudsman to:

(1) develop and implement statewide procedures to:

(A) receive complaints from children and youth in the conservatorship of DFPS and other persons with a complaint against DFPS;

(B) review complaints filed with the ombudsman and take appropriate action, including:

(i) conducting an investigation into individual complaints that allege violations of DFPS or agency procedure or policy or other violations; and

(ii) referring to DFPS or agency management for resolution any trends or systemic issues identified in complaints;

(C) provide any necessary assistance to children and youth in the conservatorship of DFPS in making complaints and reporting allegations of abuse or neglect to DFPS;

(D) maintain the confidentiality of:

(i)� the ombudsman's communications and records;

(ii)� records of another person that have been provided to the ombudsman; and

(iii)� communications of another person with the ombudsman; and

(E) ensure that DFPS and any person or a child or youth in the conservatorship of DFPS who files a complaint with the ombudsman are informed of the results of the ombudsman's investigation of the complaint, including whether the ombudsman was able to substantiate the person's, child's, or youth's complaint;

(2) collaborate with DFPS to develop and implement an annual outreach plan to promote awareness of the ombudsman among the public, children and youth in the conservatorship of DFPS, family members and caretakers of those children, and facilities licensed by DFPS and that includes:

(A) how the office is authorized to be contacted;

(B) the purpose of the office; and

(C) the services the office provides;

(3) issue and file with DFPS and any applicable health and human services agency a report that contains the ombudsman's final determination regarding a complaint and any recommended corrective actions to be taken as a result of the complaint;

(4) establish a secure form of communication with any individual who files a complaint with the ombudsman;

(5) collaborate with DFPS to identify consequences for any retaliatory action related to a complaint filed with the ombudsman, in accordance with Section 40.0041(g) (relating to requiring DFPS to cooperate with the ombudsman for children and youth in foster care to create consequences for any person who is found to have retaliated against a child or youth in the conservatorship of DFPS because of a complaint made to the ombudsman), Human Resources Code; and

(6) monitor and evaluate DFPS' corrective actions taken in response to a recommendation by the ombudsman.

(c) Makes conforming and nonsubstantive changes to this subsection.

(c-1) Requires DFPS and HHSC to provide written notice to an ombudsman on whether DFPS or HHSC adopted or rejected the ombudsman's recommended corrective action. Requires DFPS or HHSC, if DFPS or HHSC rejects a recommended corrective action, to include in the notice the reason for the rejection.

(d) Makes conforming and nonsubstantive changes to this subsection.

SECTION 9. Reenacts Section 531.9931, Government Code, as added by Chapter 906 (S.B. 213), Acts of the 85th Legislature, Regular Session, 2017, and amends it, as follows:

Sec. 531.9931. New heading: OMBUDSMAN FOR CHILDREN AND YOUTH IN FOSTER CARE. (a) Requires HHSC to establish an ombudsman program to provide support and information services to children and youth in foster care. Deletes existing text providing that the division of the ombudsman for children and youth in foster care is created within the office of the ombudsman for certain purposes, including for receiving complaints from children and youth in the conservatorship of DFPS as provided under Section 531.993(a)(1). Makes nonsubstantive changes.

(b) Creates this subsection from existing text. Requires an ombudsman appointed under this section to:

�(1) receive complaints from children and youth in the conservatorship of DFPS as provided under Section 531.993(b)(1)(A)(i);

(2)� inform children and youth in the conservatorship of DFPS who file a complaint under this subchapter about the result of an ombudsman's investigation of the complaint, including whether the ombudsman was able to substantiate the child's or youth's complaint; and

(3) collaborate with DFPS to develop an outreach plan for children and youth in the conservatorship of DFPS to promote awareness of the ombudsman program.

Deletes existing Subsection (b) requiring that a telephone call, if a child or youth in the conservatorship of DFPS contacts the ombudsman by telephone call to report a complaint under this subchapter, be transferred directly to a person employed by the division of the ombudsman created under this section.

SECTION 10. Transfers Section 531.0213, Government Code, to Subchapter Y, Chapter 531, Government Code, redesignates it as Section 531.9932, Government Code, and amends it, as follows:

Sec. 531.9932. New heading: OMBUDSMAN FOR MANAGED CARE ASSISTANCE. (a) Requires HHSC to establish an ombudsman program to provide support and information services to a person enrolled in or applying for Medicaid coverage who experiences barriers to receiving health care services.

(b) Requires an ombudsman appointed under this section, rather than HHSC, to give emphasis to assisting a person with an urgent or immediate medical or support need.

(c) Redesignates existing Subsection (b-1) as Subsection (c). Requires HHSC to provide support and information services required by this section through a network of entities coordinated by HHSC's ombudsman, rather than HHSC's office of the ombudsman or other division of HHSC designated by the executive commissioner, and composed of:

(1) makes a conforming change to this subdivision;

(2)-(5) makes no changes to these subdivisions; and

(6) any other entity the executive commissioner determines appropriate, rather than any other entity the executive commissioner determines appropriate including nonprofit organizations with which HHSC contracts under Subsection (c).

Deletes existing Subsection (c) authorizing HHSC to provide support and information services by contracting with nonprofit organizations that are not involved in providing health care, health insurance, or health benefits.

(d) Requires the ombudsman program, rather than HHSC, as a part of the support and information services required by this section, to:

(1)-(4) makes no changes to these subdivisions;

(5) redesignates existing Subdivision (6) as Subdivision (5). Deletes existing text requiring HHSC to collect and maintain statistical information on a regional basis regarding calls received by the assistance lines and publish quarterly reports that list the number of calls received by region, identify trends in delivery and access problems, identify recurring barriers in the Medicaid system, and indicate other problems identified with Medicaid managed care;

(6) redesignates existing Subdivision (7) as Subdivision (6). Deletes existing text requiring HHSC to meet the needs of other recipients receiving benefits under the STAR Medicaid managed care program; STAR + PLUS Medicaid managed care program, including the Texas Dual Eligibles Integrated Care Demonstration Project provided under that program; STAR Kids managed care program established under Section 533.00253 (STAR Kids Medicaid Managed Care Program); and STAR Health program; and

(7)-(8) redesignates existing Subdivisions (8)-(9) as Subdivisions (7)-(8).

(e) Requires that the ombudsman program be sufficiently independent from other aspects of Medicaid managed care to represent the best interests of recipients in problem resolution. Deletes existing text requiring HHSC's office of the ombudsman, or other division of HHSC designated by the executive commissioner to coordinate the network of entities responsible for providing support and information services under this section, be sufficiently independent from other aspects of Medicaid managed care to represent the best interests of recipients in problem resolution.

SECTION 11. Transfers Section 531.02251, Government Code, to Subchapter Y, Chapter 531, Government Code, redesignates it as Section 531.9933, Government Code, and amends it, as follows:

Sec. 531.9933. OMBUDSMAN FOR BEHAVIORAL HEALTH ACCESS TO CARE. (a) Requires HHSC to establish an ombudsman program to provide support and information services to a consumer enrolled in or applying for a behavioral health program. Deletes existing definition of "ombudsman."

(b) Redesignates existing Subsection (d) as Subsection (b). Deletes existing text requiring the executive commissioner to designate an ombudsman for behavioral health access to care.

(c) Redesignates existing Subsection (e) as Subsection (c). Deletes existing text providing that the ombudsman is administratively attached to the office of the ombudsman for HHSC. Makes conforming and nonsubstantive changes.

(d) Redesignates existing Subsection (f) as Subsection (d), and makes a nonsubstantive change.

(e) Redesignates existing Subsection (h) as Subsection (e). Makes conforming and nonsubstantive changes.

SECTION 12. Amends Subchapter Y, Chapter 531, Government Code, by adding Section 531.9934, as follows:

Sec. 531.9934. OMBUDSMAN FOR INDIVIDUALS WITH AN INTELLECTUAL OR DEVELOPMENTAL DISABILITY. Requires the executive commissioner to appoint an ombudsman to assist a client, or a person acting on behalf of an individual with an intellectual or developmental disability or a group of individuals with an intellectual or developmental disability, with a complaint or grievance regarding the infringement of the rights of an individual with an intellectual or developmental disability or the delivery of intellectual disability services submitted under Section 592.039 (Grievances), Health and Safety Code.

SECTION 13. Amends Section 531.994, Government Code, as follows:

Sec. 531.994. INVESTIGATION OF UNREPORTED COMPLAINTS. Requires an ombudsman, if, during the investigation of a complaint, an ombudsman discovers unreported violations of HHSC's or DFPS' rules and policies, rather than DFPS' or a health and human services agency's rules and policies, to open a new investigation for each unreported violation. Makes a nonsubstantive change.

SECTION 14. Amends Sections 531.995 and 531.996, Government Code, as follows:

Sec. 531.995. ACCESS TO INFORMATION. Makes conforming and nonsubstantive changes.

Sec. 531.996. COMMUNICATION AND CONFIDENTIALITY. (a) Authorizes a person to communicate with an� ombudsman relating to a complaint by telephone, by mail, by electronic mail, or by any other means the ombudsman determines to be feasible, secure, and accessible, rather than accessible to children and youth. Makes a nonsubstantive change.

(b)-(c) Makes nonsubstantive changes to these subdivisions.

(d) Provides that the disclosure of confidential information to an ombudsman under this subchapter, rather than under this section or Section 531.995, does not constitute a waiver of confidentiality. Makes conforming and nonsubstantive changes.

(e) Makes conforming changes to this subsection.

(f) Makes a nonsubstantive change to this subsection.

SECTION 15. Reenacts Sections 531.997 and 531.998, Government Code, as amended by Chapter 906 (S.B. 213), Acts of the 85th Legislature, Regular Session, 2017, and amends them, as follows:

Sec. 531.997. RETALIATION PROHIBITED. Makes conforming and nonsubstantive changes.

Sec. 531.998.� REPORT. (a) Requires each ombudsman, rather than the ombudsman, to prepare an annual report that contains:

(1) makes no changes to this subdivision;

(2) makes a conforming change to this subdivision;

(3) a description of any trends in the nature of complaints received by the ombudsman or any systemic issues identified by the ombudsman in the investigation of individual complaints, any recommendations related to addressing those trends and issues, and an evaluation of the feasibility of the ombudsman's recommendations; and

(4)-(6) makes no changes to these subdivisions.

(b) Requires that each report, rather than the report, be submitted to the governor, the lieutenant governor, each standing committee of the legislature with jurisdiction over matters involving HHSC, each member of the legislature, and the executive commissioner, rather than the executive commissioner and the commissioner of DFPS, not later than December 1 of each year. Makes conforming and nonsubstantive changes.

SECTION 16. Amends Section 592.039, Health and Safety Code, as follows:

Sec. 592.039.� GRIEVANCES. Provides that a client, or a person acting on behalf of a person with an intellectual disability or a group of persons with an intellectual disability, has the right to submit complaints or grievances regarding the infringement of the rights of a person with an intellectual disability or the delivery of intellectual disability services against a person, group of persons, organization, or business to HHSC's ombudsman for individuals with an intellectual or developmental disability as provided under Section 531.9934, Government Code, rather than to DFPS' Office of Consumer Rights and Services for investigation and appropriate action.

SECTION 17. Repealer: Section 531.9941 (Disputes Regarding Foster Children), Government Code.

SECTION 18. Requires a state agency, if necessary for implementation of a provision of this Act, to request a waiver or authorization from a federal agency, and authorizes a delay of implementation until such a waiver or authorization is granted.

SECTION 19. Effective date: upon passage or September 1, 2023.