86R2426 JG-D
By: Kolkhorst S.B. No. 1408
A BILL TO BE ENTITLED
AN ACT
relating to the authority of the office of independent ombudsman
for state supported living centers to oversee community-based
services provided to individuals with an intellectual or
developmental disability.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. The heading to Chapter 555, Health and Safety
Code, is amended to read as follows:
CHAPTER 555. STATE SUPPORTED LIVING CENTERS AND COMMUNITY SERVICE
PROVIDERS
SECTION 2. Section 555.001, Health and Safety Code, is
amended by adding Subdivision (5) and amending Subdivisions (11)
and (14) to read as follows:
(5) "Community service provider" means a service
provider that contracts to provide community-based services to
individuals with an intellectual or developmental disability
through a local intellectual and developmental disability
authority under Subchapter B-1, Chapter 534.
(11) "Independent ombudsman" means the individual who
has been appointed to the office of independent ombudsman for state
supported living centers and community service providers.
(14) "Office" means the office of independent
ombudsman for state supported living centers and community service
providers established under Subchapter C.
SECTION 3. Subchapter C, Chapter 555, Health and Safety
Code, is amended to read as follows:
SUBCHAPTER C. OFFICE OF INDEPENDENT OMBUDSMAN FOR STATE SUPPORTED
LIVING CENTERS AND COMMUNITY SERVICE PROVIDERS
Sec. 555.051. ESTABLISHMENT; PURPOSE. (a) The office of
independent ombudsman is established for the purpose of
investigating, evaluating, and securing the rights of:
(1) residents and clients of state supported living
centers and the ICF-IID component of the Rio Grande State Center;
and
(2) individuals with an intellectual or developmental
disability receiving community services through a local
intellectual and developmental disability authority, including
through a community service provider.
(b) The office is administratively attached to the
commission [department]. The commission [department] shall
provide administrative support and resources to the office as
necessary for the office to perform its duties.
Sec. 555.052. INDEPENDENCE. The independent ombudsman in
the performance of the ombudsman's duties and powers under this
subchapter acts independently of the commission [department].
Sec. 555.053. APPOINTMENT OF INDEPENDENT OMBUDSMAN. (a)
The governor shall appoint the independent ombudsman for a term of
two years expiring February 1 of odd-numbered years.
(b) The governor may appoint as independent ombudsman only
an individual with at least five years of experience managing and
ensuring the quality of care and services provided to individuals
with an intellectual or developmental disability.
(c) A person appointed as independent ombudsman may be
reappointed.
Sec. 555.054. ASSISTANT OMBUDSMEN. (a) The independent
ombudsman shall:
(1) hire assistant ombudsmen to perform, under the
direction of the independent ombudsman, the same duties and
exercise the same powers as the independent ombudsman; [and]
(2) station an assistant ombudsman at each center; and
(3) station an assistant ombudsman at each local
intellectual and developmental disability authority in this state.
(b) The independent ombudsman may hire as assistant
ombudsmen only individuals with at least five years of experience
ensuring the quality of care and services provided to individuals
with an intellectual or developmental disability.
Sec. 555.055. CONFLICT OF INTEREST. A person may not serve
as independent ombudsman or as an assistant ombudsman 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 the
commission [department];
(2) owns or controls, directly or indirectly, any
interest in a business entity or other organization receiving funds
from the commission [department]; or
(3) is required to register as a lobbyist under
Chapter 305, Government Code, because of the person's activities or
compensation on behalf of a profession related to the operation of
the commission [department].
Sec. 555.056. REPORT. (a) The independent ombudsman shall
submit on a biannual basis to the governor, the lieutenant
governor, the speaker of the house of representatives, [and] the
chairs of the standing committees of the senate and the house of
representatives with primary jurisdiction over state supported
living centers, and the chairs of the standing committees of the
senate and the house of representatives with primary jurisdiction
over intellectual and developmental disability issues a report that
is both aggregated and disaggregated by individual center or
community service provider and describes:
(1) the work of the independent ombudsman;
(2) the results of any review or investigation
undertaken by the independent ombudsman, including a review or
investigation of services contracted by the commission
[department];
(3) any recommendations that the independent
ombudsman has in relation to the duties of the independent
ombudsman; and
(4) any recommendations that the independent
ombudsman has for systemic improvements needed to decrease
incidents of abuse, neglect, or exploitation [at an individual
center or at all centers].
(b) The independent ombudsman shall ensure that information
submitted in a report under Subsection (a) does not permit the
identification of an individual.
(c) The independent ombudsman shall immediately report to
the governor, the lieutenant governor, the speaker of the house of
representatives, [and] the chairs of the standing committees of the
senate and the house of representatives having primary jurisdiction
over state supported living centers, and the chairs of the standing
committees of the senate and the house of representatives with
primary jurisdiction over intellectual and developmental
disability issues [the Department of Aging and Disability Services]
any particularly serious or flagrant:
(1) case of abuse or injury of a resident, [or] client,
or individual with an intellectual or developmental disability
about which the independent ombudsman is made aware;
(2) problem concerning the administration of a center
or community service provider program or operation; or
(3) interference by a center, community service
provider, [the department,] or the commission, other than actions
by the commission's office of inspector general in accordance with
the office's duties, with an investigation conducted by the
independent ombudsman.
Sec. 555.057. COMMUNICATION AND CONFIDENTIALITY. (a) The
commission [department] shall allow any resident, [or] client, or
individual with an intellectual or developmental disability,
authorized representative of a resident, [or] client, or
individual, family member of a resident, [or] client, or
individual, or other interested party to communicate with the
independent ombudsman or an assistant ombudsman. The
communication:
(1) may be in person, by mail, or by any other means;
and
(2) is confidential and privileged.
(b) The records of the independent ombudsman are
confidential, except that the independent ombudsman shall:
(1) share with the Department of Family and Protective
Services a communication that may involve the abuse, neglect, or
exploitation of a resident, [or] client, or individual with an
intellectual or developmental disability;
(2) share with the inspector general a communication
that may involve an alleged criminal offense;
(3) share with the regulatory services division of the
commission [department] a communication that may involve a
violation of an ICF-IID standard or condition of participation; and
(4) disclose the ombudsman's nonprivileged records if
required by a court order on a showing of good cause.
(c) The independent ombudsman may make reports relating to
an investigation by the independent ombudsman public after the
investigation is complete but only if the name and any other
personally identifiable information of a resident, [or] client, or
individual with an intellectual or developmental disability,
legally authorized representative of a resident, [or] client, or
individual, family member of a resident, [or] client, or
individual, center, center employee, community service provider,
community service provider employee, or other individual are
redacted from the report and remain confidential. The independent
ombudsman may provide an unredacted report to the center or
community service provider involved in the investigation, the
commission [department], the Department of Family and Protective
Services, and the inspector general.
(d) The name, address, or other personally identifiable
information of a person who files a complaint with the office of
independent ombudsman, information generated by the office of
independent ombudsman in the course of an investigation, and
confidential records obtained by the office of independent
ombudsman are confidential and not subject to disclosure under
Chapter 552, Government Code, except as provided by this section.
Sec. 555.058. PROMOTION OF AWARENESS OF OFFICE. The
independent ombudsman shall promote awareness among the public,
residents, clients, individuals with an intellectual or
developmental disability receiving community services, [and]
center employees, and community service provider employees of:
(1) how the office may be contacted;
(2) the purpose of the office; and
(3) the services the office provides.
Sec. 555.059. DUTIES AND POWERS RELATING TO CENTERS AND
RESIDENTS OR CLIENTS. (a) The independent ombudsman shall:
(1) evaluate the process by which a center
investigates, reviews, and reports an injury to a resident or
client or an unusual incident;
(2) evaluate the delivery of services to residents and
clients to ensure that the rights of residents and clients are fully
observed, including ensuring that each center conducts sufficient
unannounced patrols;
(3) immediately refer a complaint alleging the abuse,
neglect, or exploitation of a resident or client to the Department
of Family and Protective Services;
(4) refer a complaint alleging employee misconduct
that does not involve abuse, neglect, or exploitation or a possible
violation of an ICF-IID standard or condition of participation to
the regulatory services division of the commission [department];
(5) refer a complaint alleging a criminal offense,
other than an allegation of abuse, neglect, or exploitation of a
resident or client, to the inspector general;
(6) conduct investigations of complaints, other than
complaints alleging criminal offenses or the abuse, neglect, or
exploitation of a resident or client, if the office determines
that:
(A) a resident or client or the resident's or
client's family may be in need of assistance from the office; or
(B) a complaint raises the possibility of a
systemic issue in the center's provision of services;
(7) conduct biennial on-site audits at each center of:
(A) the ratio of direct care employees to
residents;
(B) the provision and adequacy of training to:
(i) center employees; and
(ii) direct care employees; and
(C) if the center serves alleged offender
residents, the provision of specialized training to direct care
employees;
(8) conduct an annual audit of each center's policies,
practices, and procedures to ensure that each resident and client
is encouraged to exercise the resident's or client's rights,
including:
(A) the right to file a complaint; and
(B) the right to due process;
(9) prepare and deliver an annual report regarding the
findings of each audit to the:
(A) executive commissioner;
(B) [commissioner;
[(C) Aging and Disability Services Council;
[(D)] governor;
(C) [(E)] lieutenant governor;
(D) [(F)] speaker of the house of
representatives;
(E) [(G)] standing committees of the senate and
house of representatives with primary jurisdiction over state
supported living centers; and
(F) [(H)] state auditor;
(10) require a center to provide access to all
records, data, and other information under the control of the
center that the independent ombudsman determines is necessary to
investigate a complaint or to conduct an audit under this section;
(11) review all final reports produced by the
Department of Family and Protective Services, the regulatory
services division of the commission [department], and the inspector
general regarding a complaint referred by the independent
ombudsman;
(12) provide assistance to a resident, client,
authorized representative of a resident or client, or family member
of a resident or client who the independent ombudsman determines is
in need of assistance, including advocating with an agency,
provider, or other person in the best interests of the resident or
client;
(13) make appropriate referrals under any of the
duties and powers listed in this subsection; and
(14) monitor and evaluate the commission's
[department's] actions relating to any problem identified or
recommendation included in a report received from the Department of
Family and Protective Services relating to an investigation of
alleged abuse, neglect, or exploitation of a resident or client.
(b) The independent ombudsman may apprise a person who is
interested in a resident's or client's welfare of the rights of the
resident or client.
(c) To assess whether a resident's or client's rights have
been violated, the independent ombudsman may, in any matter that
does not involve an alleged criminal offense or the abuse, neglect,
or exploitation of a resident or client, contact or consult with an
administrator, employee, resident, client, family member of a
resident or client, expert, or other individual in the course of the
investigation or to secure information.
(d) Notwithstanding any other provision of this chapter,
the independent ombudsman may not investigate an alleged criminal
offense or the alleged abuse, neglect, or exploitation of a
resident or client.
Sec. 555.0595. DUTIES AND POWERS RELATING TO DELIVERY OF
SERVICES TO INDIVIDUALS WITH INTELLECTUAL OR DEVELOPMENTAL
DISABILITY. (a) The independent ombudsman shall:
(1) evaluate the process by which a community service
provider investigates, reviews, and reports an injury or unusual
incident involving an individual with an intellectual or
developmental disability;
(2) evaluate the delivery of services to individuals
with an intellectual or developmental disability to ensure that the
rights of the individuals are fully observed;
(3) immediately refer a complaint alleging the abuse,
neglect, or exploitation of an individual with an intellectual or
developmental disability to the adult protective services division
of the Department of Family and Protective Services;
(4) refer a complaint alleging employee misconduct
that does not involve abuse, neglect, or exploitation to the
regulatory division of the commission;
(5) refer a complaint alleging a criminal offense,
other than an allegation of abuse, neglect, or exploitation of an
individual with an intellectual or developmental disability, to the
inspector general;
(6) conduct investigations of complaints, other than
complaints alleging a criminal offense or the abuse, neglect, or
exploitation of an individual with an intellectual or developmental
disability, if the office determines that:
(A) an individual or the individual's family may
be in need of assistance from the office; or
(B) a complaint raises the possibility of a
systemic issue in the community service provider's provision of
services;
(7) require a community service provider to provide
access to all records, data, and other information under the
control of the authority or provider that the independent ombudsman
determines is necessary to investigate a complaint or to conduct an
audit under this section;
(8) request aid from the attorney general, as
necessary, to subpoena any records, data, or other information
under Subdivision (7);
(9) review all final reports produced by the adult
protective services division of the Department of Family and
Protective Services, the regulatory services division of the
commission, and the inspector general regarding a complaint
referred by the independent ombudsman;
(10) provide assistance to an individual with an
intellectual or developmental disability, authorized
representative of an individual, or family member of an individual
who the independent ombudsman determines is in need of assistance,
including advocating with an agency, community service provider, or
other person in the best interests of the individual;
(11) make appropriate referrals under any of the
duties and powers listed in this subsection; and
(12) monitor and evaluate the commission's actions
relating to any problem identified or recommendation included in a
report received from the adult protective services division of the
Department of Family and Protective Services relating to an
investigation of alleged abuse, neglect, or exploitation of an
individual with an intellectual or developmental disability.
(b) The independent ombudsman may apprise a person who is
interested in the welfare of an individual with an intellectual or
developmental disability of the rights of the individual.
(c) To assess whether the rights of an individual with an
intellectual or developmental disability have been violated, the
independent ombudsman may, in any matter that does not involve an
alleged criminal offense or the abuse, neglect, or exploitation of
an individual, contact or consult with an administrator, employee,
individual, family member of an individual, expert, or other person
in the course of the investigation or to secure information.
(d) Notwithstanding any other provision of this chapter,
the independent ombudsman may not investigate an alleged criminal
offense or the alleged abuse, neglect, or exploitation of an
individual with an intellectual or developmental disability.
Sec. 555.060. RETALIATION PROHIBITED. The commission,
[department or] a center, or a community service provider may not
retaliate against a commission [department] employee, center
employee, community service provider employee, or any other person
who in good faith makes a complaint to the office of independent
ombudsman or cooperates with the office in an investigation.
Sec. 555.061. TOLL-FREE NUMBER. (a) The office shall
establish a permanent, toll-free number for the purpose of
receiving any information concerning the violation of a right of a
resident, [or] client, or individual with an intellectual or
developmental disability.
(b) The office shall ensure that:
(1) the toll-free number is prominently displayed in
the main administration area and other appropriate common areas of
a center or community service provider; and
(2) a resident, [a] client, individual with an
intellectual or developmental disability, the legally authorized
representative of a resident, [or] client, or individual, [and] a
center employee, and a community service provider employee have
confidential access to a telephone for the purpose of calling the
toll-free number.
SECTION 4. Section 531.853, Government Code, is amended to
read as follows:
Sec. 531.853. MORTALITY REVIEW REPORT. Subject to Section
531.854, a contracted organization shall submit:
(1) to the Department of Aging and Disability
Services, the Department of Family and Protective Services, the
office of independent ombudsman for state supported living centers
and community service providers, and the commission's office of
inspector general a report of the findings of the mortality review;
and
(2) semiannually to the governor, the lieutenant
governor, the speaker of the house of representatives, and the
standing committees of the senate and house of representatives with
primary jurisdiction over the Department of Aging and Disability
Services, the Department of Family and Protective Services, the
office of independent ombudsman for state supported living centers
and community service providers, and the commission's office of
inspector general a report that contains:
(A) aggregate information regarding the deaths
for which the contracted organization performed an independent
mortality review;
(B) trends in the causes of death identified by
the contracted organization; and
(C) any suggestions for system-wide improvements
to address conditions that contributed to deaths reviewed by the
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
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
understanding under this section.
SECTION 6. This Act takes effect immediately if it receives
a vote of two-thirds of all the members elected to each house, as
provided by Section 39, Article III, Texas Constitution. If this
Act does not receive the vote necessary for immediate effect, this
Act takes effect September 1, 2019.