Texas 2017 - 85th Regular

Texas House Bill HB3564 Compare Versions

Version 1 (Old)

Version 2 (New)

Old	New		Differences
1		-	H.B. No. 3564
	1	+	By: Klick (Senate Sponsor - Perry) H.B. No. 3564
	2	+	(In the Senate - Received from the House May 10, 2017;
	3	+	May 12, 2017, read first time and referred to Committee on Health &
	4	+	Human Services; May 19, 2017, reported favorably by the following
	5	+	vote: Yeas 8, Nays 0; May 19, 2017, sent to printer.)
	6	+	Click here to see the committee vote
2	7
3	8
	9	+	A BILL TO BE ENTITLED
4	10		AN ACT
5	11		relating to the office of the state long-term care ombudsman;
6	12		affecting the prosecution of a criminal offense.
7	13		BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
8	14		SECTION 1. Subchapter F, Chapter 101A, Human Resources
9	15		Code, is amended to read as follows:
10	16		SUBCHAPTER F. OFFICE OF STATE LONG-TERM CARE OMBUDSMAN
11	17		Sec. 101A.251. DEFINITIONS. In this subchapter:
12	18		(1) "Commission" means the Health and Human Services
13	19		Commission ["Elderly resident" means a resident of a long-term care
14	20		facility who is 60 years of age or older].
15	21		(1-a) "Local ombudsman entity" means a distinct unit
16	22		or entity, consisting of representatives, designated by the state
17	23		long-term care ombudsman to carry out the ombudsman program in a
18	24		service area of the state.
19	25		(2) "Long-term care facility" means a facility that
20	26		[serves persons who are 60 years of age or older and that] is
21	27		licensed or regulated or that is required to be licensed or
22	28		regulated by the commission [department] under Chapter 242 or 247,
23	29		Health and Safety Code.
24	30		(3) "Office" means the office of the state long-term
25	31		care ombudsman, consisting of the state long-term care ombudsman
26	32		and representatives who are employed by the commission.
27	33		(3-a) "Ombudsman program" means the program through
28	34		which the functions and duties of the office are carried out,
29	35		consisting of the office and all representatives.
30	36		(4) "Representative" means an employee or volunteer
31	37		specifically designated by the office as a representative of the
32	38		office.
33	39		(4-a) "Resident" means a resident of a long-term care
34	40		facility.
35	41		(5) "State long-term care ombudsman" means the chief
36	42		administrator of the office.
37	43		Sec. 101A.252. OPERATION OF OFFICE. (a) The office
38	44		[department] shall operate and is subject to the commission's
39	45		oversight in accordance with federal and state statute [the office
40	46		of the state long-term care ombudsman].
41	47		(b) The commission [department] may operate the office
42	48		directly or by contract or memorandum of agreement with a public
43	49		agency or other appropriate private nonprofit organization. The
44	50		commission, agency, or organization may not implement a policy that
45	51		prohibits the office from performing its duties under this
46	52		subchapter. The commission [department] may not use an agency or
47	53		organization that [is]:
48	54		(1) is responsible for licensing or certifying
49	55		long-term care services; [or]
50	56		(2) is an association of long-term care facilities or
51	57		of any other residential facility that serves persons with
52	58		disabilities or who are 60 years of age or older, or that is an
53	59		affiliate of such an association; or
54	60		(3) has an ownership, operational, or investment
55	61		interest in a long-term care facility.
56	62		(c) The commission [department] shall consider the views of
57	63		residents [elderly persons], provider organizations, advocacy
58	64		groups, and area agencies on aging in planning and operating the
59	65		office.
60	66		(d) The commission [department] shall ensure that a person
61	67		involved in designating the state long-term care ombudsman or in
62	68		designating a [an employee or] representative [of the office] does
63	69		not have a conflict of interest.
64	70		Sec. 101A.253. ROLE OF OFFICE. The office and the ombudsman
65	71		program shall operate in cooperation with any regulatory agency
66	72		funded and mandated by federal [the Older Americans Act of 1965 (42
67	73		U.S.C. Section 3001 et seq.)] and state statute.
68	74		Sec. 101A.254. POWERS AND DUTIES OF STATE LONG-TERM CARE
69	75		OMBUDSMAN AND OFFICE. (a) The [state ombudsman and the] office has
70	76		[have] the powers and duties authorized and required by state and
71	77		federal law.
72	78		(b) The office may use appropriate administrative, legal,
73	79		and other remedies to assist [elderly] residents as provided by
74	80		commission [department] rules.
75	81		(c) The office acts independently of the commission in the
76	82		performance of its powers and duties under this subchapter.
77	83		(d) The state long-term care ombudsman has the authority to
78	84		designate a local ombudsman entity or representative and to suspend
79	85		or revoke that designation.
80	86		Sec. 101A.255. OMBUDSMEN. (a) The office shall recruit
81	87		volunteers and citizen organizations to participate in the
82	88		ombudsman program. A paid staff member of an area agency on aging
83	89		network or a nonprofit social service agency may be an ombudsman.
84	90		An ombudsman is a representative [of the office].
85	91		(b) The office shall provide training to ombudsmen as
86	92		required by this subchapter and federal law.
87	93		(c) The office shall coordinate ombudsman services with the
88	94		protection and advocacy systems that exist for persons with
89	95		developmental disabilities or mental illness.
90	96		(d) The office shall coordinate ombudsman services with
91	97		state and local law enforcement agencies and courts of competent
92	98		jurisdiction. The office is not authorized to compel those law
93	99		enforcement agencies or courts to coordinate ombudsman services or
94	100		other activities with the office.
95	101		Sec. 101A.256. LEGAL COUNSEL [ASSISTANCE]. The commission
96	102		[department] shall ensure that the office receives adequate legal
97	103		advice and representation without conflict of interest as defined
98	104		by the Texas Disciplinary Rules of Professional Conduct. The
99	105		attorney general shall represent the state long-term care ombudsman
100	106		and [or] a representative if a suit or other legal action is brought
101	107		or threatened to be brought against that person in connection with
102	108		the person's performance of the official duties of the ombudsman
103	109		program [office].
104	110		Sec. 101A.257. INVESTIGATIONS. (a) The office shall have
105	111		access to [elderly] residents and shall, in accordance with
106	112		commission rules, investigate and resolve complaints made by or on
107	113		behalf of [elderly] residents.
108	114		(b) The state long-term care ombudsman [department] shall
109	115		ensure that each ombudsman designated under Section 101A.255 who
110	116		investigates complaints has received proper training and has been
111	117		approved by the office as qualified to investigate complaints.
112	118		(c) The office shall investigate a grievance made against a
113	119		representative in accordance with commission rules and inform the
114	120		person who made the grievance of the outcome of the investigation
115	121		when the investigation is concluded.
116	122		(d) A long-term care facility shall cooperate with an
117	123		investigation conducted by the state long-term care ombudsman or a
118	124		representative, including an ombudsman designated under Section
119	125		101A.255.
120	126		Sec. 101A.258. ACCESS TO RECORDS AND CONFIDENTIALITY. (a)
121	127		The state long-term care ombudsman and representatives [or the
122	128		state ombudsman's designee, specifically identified by the
123	129		commissioner,] shall have access to patient care records of
124	130		[elderly] residents as provided by commission rules. Except as
125	131		provided by Subsection (b), all [of long-term care facilities as
126	132		provided by Subsection (a-1). The executive commissioner by rule
127	133		shall establish procedures for obtaining access to the records.
128	134		All] records and information created or obtained by [to which] the
129	135		state long-term care ombudsman or a representative [the state
130	136		ombudsman's designee obtains access] remain confidential.
131	137		(a-1) The state long-term care ombudsman and
132	138		representatives [or the state ombudsman's designee, specifically
133	139		identified by the commissioner,] shall have access to patient care
134	140		records of a resident [elderly residents of long-term care
135	141		facilities] if:
136	142		(1) the resident or the resident's legal
137	143		representative consents to the access;
138	144		(2) the resident is unable to consent to the access and
139	145		the resident has no legal representative; or
140	146		(3) access to the records is necessary to investigate
141	147		a complaint and:
142	148		(A) a legal representative [guardian] of the
143	149		resident refuses to consent to the access;
144	150		(B) the state long-term care ombudsman or
145	151		representative [the state ombudsman's designee] has reasonable
146	152		cause to believe that the legal representative of the resident
147	153		[guardian] is not acting in the best interests of the resident; and
148	154		(C) the state long-term care ombudsman approves
149	155		the access.
150	156		(b) The office shall ensure that the identity of a
151	157		complainant or any [facility] resident may be disclosed only with
152	158		the [written] consent of the person or the person's legal
153	159		representative or on court order.
154	160		(c) Files, records, and other information maintained as
155	161		part of the ombudsman program may be disclosed only at the
156	162		discretion of the state long-term care ombudsman. [The information
157	163		in files maintained by the office may be disclosed only by the
158	164		ombudsman who has authority over the disposition of the files.]
159	165		Sec. 101A.259. REPORTING SYSTEM. The office shall maintain
160	166		a statewide ombudsman uniform reporting system to collect and
161	167		analyze information relating to complaints and conditions in
162	168		long-term care facilities as long as such system does not duplicate
163	169		other state reporting systems. The office shall provide the
164	170		information to the commission in accordance with federal law
165	171		[department and the Health and Human Services Commission].
166	172		Sec. 101A.260. ANALYSIS OF LAWS. (a) The office shall
167	173		analyze and monitor the development and implementation of federal,
168	174		state, and local laws, rules, regulations, and policies relating to
169	175		long-term care facilities and services and shall recommend any
170	176		changes the office considers necessary.
171	177		(b) To the extent necessary to perform any duties under this
172	178		subchapter, Section 556.006(a), Government Code, and Section
173	179		391.0116, Local Government Code, do not apply to the state
174	180		long-term care ombudsman or a representative.
175	181		Sec. 101A.261. PUBLIC INFORMATION. The office shall
176	182		provide information and make recommendations to public agencies,
177	183		legislators, and other persons about [others that relates to] the
178	184		problems and concerns of [elderly] residents.
179	185		Sec. 101A.262. [ANNUAL] REPORT. (a) The office shall
180	186		prepare a [an annual] report that contains:
181	187		(1) information and findings relating to the problems
182	188		and concerns [complaints] of [elderly] residents; and
183	189		(2) policy, regulatory, and legislative
184	190		recommendations to solve the problems, resolve the concerns
185	191		[complaints], and improve the quality of the [elderly] residents'
186	192		care and lives.
187	193		(b) The report must be submitted to the governor and the
188	194		presiding officer of each house of the legislature not later than
189	195		November 1 of each even-numbered year.
190	196		Sec. 101A.263. LIMITATION OF LIABILITY. The state
191	197		long-term care [An] ombudsman or a representative is not liable for
192	198		civil damages or subject to criminal prosecution for performing
193	199		official duties unless the state long-term care ombudsman or
194	200		representative acts in bad faith or with a malicious purpose.
195	201		Sec. 101A.264. CRIMINAL PENALTY. (a) A person commits an
196	202		offense if the person:
197	203		(1) by act or omission, wilfully [intentionally]
198	204		interferes or attempts to interfere with the state long-term care
199	205		[an] ombudsman or a representative attempting to perform official
200	206		duties; or
201	207		(2) commits or attempts to commit an act of
202	208		retaliation or reprisal against any resident or employee of a
203	209		long-term care facility for filing a complaint or providing
204	210		information to the state long-term care [an] ombudsman or a
205	211		representative.
206	212		(b) An offense under this section is a Class B misdemeanor.
207	213		(c) The commission [department] shall ensure [assure] that
208	214		criminal sanctions will be initiated only after all administrative
209	215		procedures are exhausted.
210	216		SECTION 2. Section 101A.264, Human Resources Code, as
211	217		amended by this Act, applies only to an offense committed on or
212	218		after the effective date of this Act. An offense committed before
213	219		the effective date of this Act is governed by the law in effect on
214	220		the date the offense was committed, and the former law is continued
215	221		in effect for that purpose. For purposes of this section, an
216	222		offense was committed before the effective date of this Act if any
217	223		element of the offense occurred before that date.
218	224		SECTION 3. This Act takes effect September 1, 2017.
219		-	______________________________ ______________________________
220		-	President of the Senate Speaker of the House
221		-	I certify that H.B. No. 3564 was passed by the House on May 9,
222		-	2017, by the following vote: Yeas 145, Nays 0, 2 present, not
223		-	voting.
224		-	______________________________
225		-	Chief Clerk of the House
226		-	I certify that H.B. No. 3564 was passed by the Senate on May
227		-	24, 2017, by the following vote: Yeas 31, Nays 0.
228		-	______________________________
229		-	Secretary of the Senate
230		-	APPROVED: _____________________
231		-	Date
232		-	_____________________
233		-	Governor
	225	+	* * * * *