85R11170 JG-F     By: Klick H.B. No. 3564       A BILL TO BE ENTITLED   AN ACT   relating to the office of the state long-term care ombudsman;   amending provisions subject to a criminal penalty.          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 local 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 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 adopt a policy that   interferes with the role, powers, and duties of the office.  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, suspend, or remove a local ombudsman entity or   representative.          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.          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 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.          (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 or representative [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 [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 or representative   [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.          (b-1)  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.          [(c)     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 executive commissioner, subject to Section   101A.258 [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)  Section 556.006(a), Government Code, does 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.