By: Klick (Senate Sponsor - Perry) H.B. No. 3564
(In the Senate - Received from the House May 10, 2017;
May 12, 2017, read first time and referred to Committee on Health &
Human Services; May 19, 2017, reported favorably by the following
vote: Yeas 8, Nays 0; May 19, 2017, sent to printer.)
Click here to see the committee vote
A BILL TO BE ENTITLED
AN ACT
relating to the office of the state long-term care ombudsman;
affecting the prosecution of a criminal offense.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
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.
SECTION 2. Section 101A.264, Human Resources Code, as
amended by this Act, applies only to an offense committed on or
after the effective date of this Act. An offense committed before
the effective date of this Act is governed by the law in effect on
the date the offense was committed, and the former law is continued
in effect for that purpose. For purposes of this section, an
offense was committed before the effective date of this Act if any
element of the offense occurred before that date.
SECTION 3. This Act takes effect September 1, 2017.
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