Texas 2019 - 86th Regular

Texas Senate Bill SB1408 Compare Versions

Only one version of the bill is available at this time.

Old	New	Differences
1	1	86R2426 JG-D
2	2	By: Kolkhorst S.B. No. 1408
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to the authority of the office of independent ombudsman
8	8	for state supported living centers to oversee community-based
9	9	services provided to individuals with an intellectual or
10	10	developmental disability.
11	11	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
12	12	SECTION 1. The heading to Chapter 555, Health and Safety
13	13	Code, is amended to read as follows:
14	14	CHAPTER 555. STATE SUPPORTED LIVING CENTERS AND COMMUNITY SERVICE
15	15	PROVIDERS
16	16	SECTION 2. Section 555.001, Health and Safety Code, is
17	17	amended by adding Subdivision (5) and amending Subdivisions (11)
18	18	and (14) to read as follows:
19	19	(5) "Community service provider" means a service
20	20	provider that contracts to provide community-based services to
21	21	individuals with an intellectual or developmental disability
22	22	through a local intellectual and developmental disability
23	23	authority under Subchapter B-1, Chapter 534.
24	24	(11) "Independent ombudsman" means the individual who
25	25	has been appointed to the office of independent ombudsman for state
26	26	supported living centers and community service providers.
27	27	(14) "Office" means the office of independent
28	28	ombudsman for state supported living centers and community service
29	29	providers established under Subchapter C.
30	30	SECTION 3. Subchapter C, Chapter 555, Health and Safety
31	31	Code, is amended to read as follows:
32	32	SUBCHAPTER C. OFFICE OF INDEPENDENT OMBUDSMAN FOR STATE SUPPORTED
33	33	LIVING CENTERS AND COMMUNITY SERVICE PROVIDERS
34	34	Sec. 555.051. ESTABLISHMENT; PURPOSE. (a) The office of
35	35	independent ombudsman is established for the purpose of
36	36	investigating, evaluating, and securing the rights of:
37	37	(1) residents and clients of state supported living
38	38	centers and the ICF-IID component of the Rio Grande State Center;
39	39	and
40	40	(2) individuals with an intellectual or developmental
41	41	disability receiving community services through a local
42	42	intellectual and developmental disability authority, including
43	43	through a community service provider.
44	44	(b) The office is administratively attached to the
45	45	commission [department]. The commission [department] shall
46	46	provide administrative support and resources to the office as
47	47	necessary for the office to perform its duties.
48	48	Sec. 555.052. INDEPENDENCE. The independent ombudsman in
49	49	the performance of the ombudsman's duties and powers under this
50	50	subchapter acts independently of the commission [department].
51	51	Sec. 555.053. APPOINTMENT OF INDEPENDENT OMBUDSMAN. (a)
52	52	The governor shall appoint the independent ombudsman for a term of
53	53	two years expiring February 1 of odd-numbered years.
54	54	(b) The governor may appoint as independent ombudsman only
55	55	an individual with at least five years of experience managing and
56	56	ensuring the quality of care and services provided to individuals
57	57	with an intellectual or developmental disability.
58	58	(c) A person appointed as independent ombudsman may be
59	59	reappointed.
60	60	Sec. 555.054. ASSISTANT OMBUDSMEN. (a) The independent
61	61	ombudsman shall:
62	62	(1) hire assistant ombudsmen to perform, under the
63	63	direction of the independent ombudsman, the same duties and
64	64	exercise the same powers as the independent ombudsman; [and]
65	65	(2) station an assistant ombudsman at each center; and
66	66	(3) station an assistant ombudsman at each local
67	67	intellectual and developmental disability authority in this state.
68	68	(b) The independent ombudsman may hire as assistant
69	69	ombudsmen only individuals with at least five years of experience
70	70	ensuring the quality of care and services provided to individuals
71	71	with an intellectual or developmental disability.
72	72	Sec. 555.055. CONFLICT OF INTEREST. A person may not serve
73	73	as independent ombudsman or as an assistant ombudsman if the person
74	74	or the person's spouse:
75	75	(1) is employed by or participates in the management
76	76	of a business entity or other organization receiving funds from the
77	77	commission [department];
78	78	(2) owns or controls, directly or indirectly, any
79	79	interest in a business entity or other organization receiving funds
80	80	from the commission [department]; or
81	81	(3) is required to register as a lobbyist under
82	82	Chapter 305, Government Code, because of the person's activities or
83	83	compensation on behalf of a profession related to the operation of
84	84	the commission [department].
85	85	Sec. 555.056. REPORT. (a) The independent ombudsman shall
86	86	submit on a biannual basis to the governor, the lieutenant
87	87	governor, the speaker of the house of representatives, [and] the
88	88	chairs of the standing committees of the senate and the house of
89	89	representatives with primary jurisdiction over state supported
90	90	living centers, and the chairs of the standing committees of the
91	91	senate and the house of representatives with primary jurisdiction
92	92	over intellectual and developmental disability issues a report that
93	93	is both aggregated and disaggregated by individual center or
94	94	community service provider and describes:
95	95	(1) the work of the independent ombudsman;
96	96	(2) the results of any review or investigation
97	97	undertaken by the independent ombudsman, including a review or
98	98	investigation of services contracted by the commission
99	99	[department];
100	100	(3) any recommendations that the independent
101	101	ombudsman has in relation to the duties of the independent
102	102	ombudsman; and
103	103	(4) any recommendations that the independent
104	104	ombudsman has for systemic improvements needed to decrease
105	105	incidents of abuse, neglect, or exploitation [at an individual
106	106	center or at all centers].
107	107	(b) The independent ombudsman shall ensure that information
108	108	submitted in a report under Subsection (a) does not permit the
109	109	identification of an individual.
110	110	(c) The independent ombudsman shall immediately report to
111	111	the governor, the lieutenant governor, the speaker of the house of
112	112	representatives, [and] the chairs of the standing committees of the
113	113	senate and the house of representatives having primary jurisdiction
114	114	over state supported living centers, and the chairs of the standing
115	115	committees of the senate and the house of representatives with
116	116	primary jurisdiction over intellectual and developmental
117	117	disability issues [the Department of Aging and Disability Services]
118	118	any particularly serious or flagrant:
119	119	(1) case of abuse or injury of a resident, [or] client,
120	120	or individual with an intellectual or developmental disability
121	121	about which the independent ombudsman is made aware;
122	122	(2) problem concerning the administration of a center
123	123	or community service provider program or operation; or
124	124	(3) interference by a center, community service
125	125	provider, [the department,] or the commission, other than actions
126	126	by the commission's office of inspector general in accordance with
127	127	the office's duties, with an investigation conducted by the
128	128	independent ombudsman.
129	129	Sec. 555.057. COMMUNICATION AND CONFIDENTIALITY. (a) The
130	130	commission [department] shall allow any resident, [or] client, or
131	131	individual with an intellectual or developmental disability,
132	132	authorized representative of a resident, [or] client, or
133	133	individual, family member of a resident, [or] client, or
134	134	individual, or other interested party to communicate with the
135	135	independent ombudsman or an assistant ombudsman. The
136	136	communication:
137	137	(1) may be in person, by mail, or by any other means;
138	138	and
139	139	(2) is confidential and privileged.
140	140	(b) The records of the independent ombudsman are
141	141	confidential, except that the independent ombudsman shall:
142	142	(1) share with the Department of Family and Protective
143	143	Services a communication that may involve the abuse, neglect, or
144	144	exploitation of a resident, [or] client, or individual with an
145	145	intellectual or developmental disability;
146	146	(2) share with the inspector general a communication
147	147	that may involve an alleged criminal offense;
148	148	(3) share with the regulatory services division of the
149	149	commission [department] a communication that may involve a
150	150	violation of an ICF-IID standard or condition of participation; and
151	151	(4) disclose the ombudsman's nonprivileged records if
152	152	required by a court order on a showing of good cause.
153	153	(c) The independent ombudsman may make reports relating to
154	154	an investigation by the independent ombudsman public after the
155	155	investigation is complete but only if the name and any other
156	156	personally identifiable information of a resident, [or] client, or
157	157	individual with an intellectual or developmental disability,
158	158	legally authorized representative of a resident, [or] client, or
159	159	individual, family member of a resident, [or] client, or
160	160	individual, center, center employee, community service provider,
161	161	community service provider employee, or other individual are
162	162	redacted from the report and remain confidential. The independent
163	163	ombudsman may provide an unredacted report to the center or
164	164	community service provider involved in the investigation, the
165	165	commission [department], the Department of Family and Protective
166	166	Services, and the inspector general.
167	167	(d) The name, address, or other personally identifiable
168	168	information of a person who files a complaint with the office of
169	169	independent ombudsman, information generated by the office of
170	170	independent ombudsman in the course of an investigation, and
171	171	confidential records obtained by the office of independent
172	172	ombudsman are confidential and not subject to disclosure under
173	173	Chapter 552, Government Code, except as provided by this section.
174	174	Sec. 555.058. PROMOTION OF AWARENESS OF OFFICE. The
175	175	independent ombudsman shall promote awareness among the public,
176	176	residents, clients, individuals with an intellectual or
177	177	developmental disability receiving community services, [and]
178	178	center employees, and community service provider employees of:
179	179	(1) how the office may be contacted;
180	180	(2) the purpose of the office; and
181	181	(3) the services the office provides.
182	182	Sec. 555.059. DUTIES AND POWERS RELATING TO CENTERS AND
183	183	RESIDENTS OR CLIENTS. (a) The independent ombudsman shall:
184	184	(1) evaluate the process by which a center
185	185	investigates, reviews, and reports an injury to a resident or
186	186	client or an unusual incident;
187	187	(2) evaluate the delivery of services to residents and
188	188	clients to ensure that the rights of residents and clients are fully
189	189	observed, including ensuring that each center conducts sufficient
190	190	unannounced patrols;
191	191	(3) immediately refer a complaint alleging the abuse,
192	192	neglect, or exploitation of a resident or client to the Department
193	193	of Family and Protective Services;
194	194	(4) refer a complaint alleging employee misconduct
195	195	that does not involve abuse, neglect, or exploitation or a possible
196	196	violation of an ICF-IID standard or condition of participation to
197	197	the regulatory services division of the commission [department];
198	198	(5) refer a complaint alleging a criminal offense,
199	199	other than an allegation of abuse, neglect, or exploitation of a
200	200	resident or client, to the inspector general;
201	201	(6) conduct investigations of complaints, other than
202	202	complaints alleging criminal offenses or the abuse, neglect, or
203	203	exploitation of a resident or client, if the office determines
204	204	that:
205	205	(A) a resident or client or the resident's or
206	206	client's family may be in need of assistance from the office; or
207	207	(B) a complaint raises the possibility of a
208	208	systemic issue in the center's provision of services;
209	209	(7) conduct biennial on-site audits at each center of:
210	210	(A) the ratio of direct care employees to
211	211	residents;
212	212	(B) the provision and adequacy of training to:
213	213	(i) center employees; and
214	214	(ii) direct care employees; and
215	215	(C) if the center serves alleged offender
216	216	residents, the provision of specialized training to direct care
217	217	employees;
218	218	(8) conduct an annual audit of each center's policies,
219	219	practices, and procedures to ensure that each resident and client
220	220	is encouraged to exercise the resident's or client's rights,
221	221	including:
222	222	(A) the right to file a complaint; and
223	223	(B) the right to due process;
224	224	(9) prepare and deliver an annual report regarding the
225	225	findings of each audit to the:
226	226	(A) executive commissioner;
227	227	(B) [commissioner;
228	228	[(C) Aging and Disability Services Council;
229	229	[(D)] governor;
230	230	(C) [(E)] lieutenant governor;
231	231	(D) [(F)] speaker of the house of
232	232	representatives;
233	233	(E) [(G)] standing committees of the senate and
234	234	house of representatives with primary jurisdiction over state
235	235	supported living centers; and
236	236	(F) [(H)] state auditor;
237	237	(10) require a center to provide access to all
238	238	records, data, and other information under the control of the
239	239	center that the independent ombudsman determines is necessary to
240	240	investigate a complaint or to conduct an audit under this section;
241	241	(11) review all final reports produced by the
242	242	Department of Family and Protective Services, the regulatory
243	243	services division of the commission [department], and the inspector
244	244	general regarding a complaint referred by the independent
245	245	ombudsman;
246	246	(12) provide assistance to a resident, client,
247	247	authorized representative of a resident or client, or family member
248	248	of a resident or client who the independent ombudsman determines is
249	249	in need of assistance, including advocating with an agency,
250	250	provider, or other person in the best interests of the resident or
251	251	client;
252	252	(13) make appropriate referrals under any of the
253	253	duties and powers listed in this subsection; and
254	254	(14) monitor and evaluate the commission's
255	255	[department's] actions relating to any problem identified or
256	256	recommendation included in a report received from the Department of
257	257	Family and Protective Services relating to an investigation of
258	258	alleged abuse, neglect, or exploitation of a resident or client.
259	259	(b) The independent ombudsman may apprise a person who is
260	260	interested in a resident's or client's welfare of the rights of the
261	261	resident or client.
262	262	(c) To assess whether a resident's or client's rights have
263	263	been violated, the independent ombudsman may, in any matter that
264	264	does not involve an alleged criminal offense or the abuse, neglect,
265	265	or exploitation of a resident or client, contact or consult with an
266	266	administrator, employee, resident, client, family member of a
267	267	resident or client, expert, or other individual in the course of the
268	268	investigation or to secure information.
269	269	(d) Notwithstanding any other provision of this chapter,
270	270	the independent ombudsman may not investigate an alleged criminal
271	271	offense or the alleged abuse, neglect, or exploitation of a
272	272	resident or client.
273	273	Sec. 555.0595. DUTIES AND POWERS RELATING TO DELIVERY OF
274	274	SERVICES TO INDIVIDUALS WITH INTELLECTUAL OR DEVELOPMENTAL
275	275	DISABILITY. (a) The independent ombudsman shall:
276	276	(1) evaluate the process by which a community service
277	277	provider investigates, reviews, and reports an injury or unusual
278	278	incident involving an individual with an intellectual or
279	279	developmental disability;
280	280	(2) evaluate the delivery of services to individuals
281	281	with an intellectual or developmental disability to ensure that the
282	282	rights of the individuals are fully observed;
283	283	(3) immediately refer a complaint alleging the abuse,
284	284	neglect, or exploitation of an individual with an intellectual or
285	285	developmental disability to the adult protective services division
286	286	of the Department of Family and Protective Services;
287	287	(4) refer a complaint alleging employee misconduct
288	288	that does not involve abuse, neglect, or exploitation to the
289	289	regulatory division of the commission;
290	290	(5) refer a complaint alleging a criminal offense,
291	291	other than an allegation of abuse, neglect, or exploitation of an
292	292	individual with an intellectual or developmental disability, to the
293	293	inspector general;
294	294	(6) conduct investigations of complaints, other than
295	295	complaints alleging a criminal offense or the abuse, neglect, or
296	296	exploitation of an individual with an intellectual or developmental
297	297	disability, if the office determines that:
298	298	(A) an individual or the individual's family may
299	299	be in need of assistance from the office; or
300	300	(B) a complaint raises the possibility of a
301	301	systemic issue in the community service provider's provision of
302	302	services;
303	303	(7) require a community service provider to provide
304	304	access to all records, data, and other information under the
305	305	control of the authority or provider that the independent ombudsman
306	306	determines is necessary to investigate a complaint or to conduct an
307	307	audit under this section;
308	308	(8) request aid from the attorney general, as
309	309	necessary, to subpoena any records, data, or other information
310	310	under Subdivision (7);
311	311	(9) review all final reports produced by the adult
312	312	protective services division of the Department of Family and
313	313	Protective Services, the regulatory services division of the
314	314	commission, and the inspector general regarding a complaint
315	315	referred by the independent ombudsman;
316	316	(10) provide assistance to an individual with an
317	317	intellectual or developmental disability, authorized
318	318	representative of an individual, or family member of an individual
319	319	who the independent ombudsman determines is in need of assistance,
320	320	including advocating with an agency, community service provider, or
321	321	other person in the best interests of the individual;
322	322	(11) make appropriate referrals under any of the
323	323	duties and powers listed in this subsection; and
324	324	(12) monitor and evaluate the commission's actions
325	325	relating to any problem identified or recommendation included in a
326	326	report received from the adult protective services division of the
327	327	Department of Family and Protective Services relating to an
328	328	investigation of alleged abuse, neglect, or exploitation of an
329	329	individual with an intellectual or developmental disability.
330	330	(b) The independent ombudsman may apprise a person who is
331	331	interested in the welfare of an individual with an intellectual or
332	332	developmental disability of the rights of the individual.
333	333	(c) To assess whether the rights of an individual with an
334	334	intellectual or developmental disability have been violated, the
335	335	independent ombudsman may, in any matter that does not involve an
336	336	alleged criminal offense or the abuse, neglect, or exploitation of
337	337	an individual, contact or consult with an administrator, employee,
338	338	individual, family member of an individual, expert, or other person
339	339	in the course of the investigation or to secure information.
340	340	(d) Notwithstanding any other provision of this chapter,
341	341	the independent ombudsman may not investigate an alleged criminal
342	342	offense or the alleged abuse, neglect, or exploitation of an
343	343	individual with an intellectual or developmental disability.
344	344	Sec. 555.060. RETALIATION PROHIBITED. The commission,
345	345	[department or] a center, or a community service provider may not
346	346	retaliate against a commission [department] employee, center
347	347	employee, community service provider employee, or any other person
348	348	who in good faith makes a complaint to the office of independent
349	349	ombudsman or cooperates with the office in an investigation.
350	350	Sec. 555.061. TOLL-FREE NUMBER. (a) The office shall
351	351	establish a permanent, toll-free number for the purpose of
352	352	receiving any information concerning the violation of a right of a
353	353	resident, [or] client, or individual with an intellectual or
354	354	developmental disability.
355	355	(b) The office shall ensure that:
356	356	(1) the toll-free number is prominently displayed in
357	357	the main administration area and other appropriate common areas of
358	358	a center or community service provider; and
359	359	(2) a resident, [a] client, individual with an
360	360	intellectual or developmental disability, the legally authorized
361	361	representative of a resident, [or] client, or individual, [and] a
362	362	center employee, and a community service provider employee have
363	363	confidential access to a telephone for the purpose of calling the
364	364	toll-free number.
365	365	SECTION 4. Section 531.853, Government Code, is amended to
366	366	read as follows:
367	367	Sec. 531.853. MORTALITY REVIEW REPORT. Subject to Section
368	368	531.854, a contracted organization shall submit:
369	369	(1) to the Department of Aging and Disability
370	370	Services, the Department of Family and Protective Services, the
371	371	office of independent ombudsman for state supported living centers
372	372	and community service providers, and the commission's office of
373	373	inspector general a report of the findings of the mortality review;
374	374	and
375	375	(2) semiannually to the governor, the lieutenant
376	376	governor, the speaker of the house of representatives, and the
377	377	standing committees of the senate and house of representatives with
378	378	primary jurisdiction over the Department of Aging and Disability
379	379	Services, the Department of Family and Protective Services, the
380	380	office of independent ombudsman for state supported living centers
381	381	and community service providers, and the commission's office of
382	382	inspector general a report that contains:
383	383	(A) aggregate information regarding the deaths
384	384	for which the contracted organization performed an independent
385	385	mortality review;
386	386	(B) trends in the causes of death identified by
387	387	the contracted organization; and
388	388	(C) any suggestions for system-wide improvements
389	389	to address conditions that contributed to deaths reviewed by the
390	390	contracted organization.
391	391	SECTION 5. Section 48.007, Human Resources Code, is amended
392	392	to read as follows:
393	393	Sec. 48.007. MEMORANDUM OF UNDERSTANDING REGARDING CERTAIN
394	394	ABUSE, NEGLECT, OR EXPLOITATION INVESTIGATIONS. The commission,
395	395	the department, the Department of Aging and Disability Services,
396	396	the office of independent ombudsman for state supported living
397	397	centers and community service providers, and the commission's
398	398	office of inspector general shall enter into a memorandum of
399	399	understanding regarding investigations of alleged abuse, neglect,
400	400	or exploitation of residents or clients of state supported living
401	401	centers or the ICF-IID component of the Rio Grande State Center that
402	402	delineates the responsibilities of each agency and office under
403	403	this chapter, Chapter 261, Family Code, and Chapter 555, Health and
404	404	Safety Code, and amend the memorandum of understanding as necessary
405	405	to reflect changes in those responsibilities. During the
406	406	negotiation of the memorandum of understanding, the agencies and
407	407	offices shall jointly determine whether the forensic training
408	408	received by relevant staff of the Department of Family and
409	409	Protective Services is adequate. Specifically, the agencies and
410	410	offices shall assess and, if necessary, develop a plan to enhance
411	411	the ability of department staff to identify and report incidences
412	412	that constitute a potential criminal offense. The commission is
413	413	the final arbiter of any dispute regarding the memorandum of
414	414	understanding under this section.
415	415	SECTION 6. This Act takes effect immediately if it receives
416	416	a vote of two-thirds of all the members elected to each house, as
417	417	provided by Section 39, Article III, Texas Constitution. If this
418	418	Act does not receive the vote necessary for immediate effect, this
419	419	Act takes effect September 1, 2019.