Texas Human Resources Code

As effective September 1, 2019

Subchapter F

Sec. 101A.251: Definitions

In this subchapter:

(1) "Commission" means the Health and Human Services Commission.

(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 is licensed or regulated or that is required to be licensed or regulated by the commission 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.

Comments

Added by Acts 2015, 84th Leg., R.S., Ch. 1 (S.B. 219), Sec. 4.361, eff. April 2, 2015.

Amended by:

Acts 2017, 85th Leg., R.S., Ch. 900 (H.B. 3564), Sec. 1, eff. September 1, 2017.

Sec. 101A.252: Operation of Office

(a) The office shall operate and is subject to the commission's oversight in accordance with federal and state statute.

(b) The commission 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 may not use an agency or organization that:

(1) is responsible for licensing or certifying long-term care services;

(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 shall consider the views of residents, provider organizations, advocacy groups, and area agencies on aging in planning and operating the office.

(d) The commission shall ensure that a person involved in designating the state long-term care ombudsman or in designating a representative does not have a conflict of interest.

Comments

Added by Acts 2015, 84th Leg., R.S., Ch. 1 (S.B. 219), Sec. 4.361, eff. April 2, 2015.

Amended by:

Acts 2017, 85th Leg., R.S., Ch. 900 (H.B. 3564), Sec. 1, eff. September 1, 2017.

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 and state statute.

Comments

Added by Acts 2015, 84th Leg., R.S., Ch. 1 (S.B. 219), Sec. 4.361, eff. April 2, 2015.

Amended by:

Acts 2017, 85th Leg., R.S., Ch. 900 (H.B. 3564), Sec. 1, eff. September 1, 2017.

Sec. 101A.254: Powers and Duties of State Long-Term Care Ombudsman and Office

(a) The office has 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 residents as provided by commission 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.

Comments

Added by Acts 2015, 84th Leg., R.S., Ch. 1 (S.B. 219), Sec. 4.361, eff. April 2, 2015.

Amended by:

Acts 2017, 85th Leg., R.S., Ch. 900 (H.B. 3564), Sec. 1, eff. September 1, 2017.

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.

(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.

Comments

Added by Acts 2015, 84th Leg., R.S., Ch. 1 (S.B. 219), Sec. 4.361, eff. April 2, 2015.

Amended by:

Acts 2017, 85th Leg., R.S., Ch. 900 (H.B. 3564), Sec. 1, eff. September 1, 2017.

Sec. 101A.256: Legal Counsel

The commission 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 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.

Comments

Added by Acts 2015, 84th Leg., R.S., Ch. 1 (S.B. 219), Sec. 4.361, eff. April 2, 2015.

Amended by:

Acts 2017, 85th Leg., R.S., Ch. 900 (H.B. 3564), Sec. 1, eff. September 1, 2017.

Sec. 101A.257: Investigations

(a) The office shall have access to residents and shall, in accordance with commission rules, investigate and resolve complaints made by or on behalf of residents.

(b) The state long-term care ombudsman 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.

Comments

Added by Acts 2015, 84th Leg., R.S., Ch. 1 (S.B. 219), Sec. 4.361, eff. April 2, 2015.

Amended by:

Acts 2017, 85th Leg., R.S., Ch. 900 (H.B. 3564), Sec. 1, eff. September 1, 2017.

Sec. 101A.258: Access to Records and Confidentiality

(a) The state long-term care ombudsman and representatives shall have access to patient care records of residents as provided by commission rules. Except as provided by Subsection (b), all records and information created or obtained by the state long-term care ombudsman or a representative remain confidential.

(a-1) The state long-term care ombudsman and representatives shall have access to patient care records of a resident 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 of the resident refuses to consent to the access;

(B) the state long-term care ombudsman or representative has reasonable cause to believe that the legal representative of the resident 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 resident may be disclosed only with the 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.

Comments

Added by Acts 2015, 84th Leg., R.S., Ch. 1 (S.B. 219), Sec. 4.361, eff. April 2, 2015.

Amended by:

Acts 2017, 85th Leg., R.S., Ch. 900 (H.B. 3564), Sec. 1, eff. September 1, 2017.

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.

Comments

Added by Acts 2015, 84th Leg., R.S., Ch. 1 (S.B. 219), Sec. 4.361, eff. April 2, 2015.

Amended by:

Acts 2017, 85th Leg., R.S., Ch. 900 (H.B. 3564), Sec. 1, eff. September 1, 2017.

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.

Comments

Added by Acts 2015, 84th Leg., R.S., Ch. 1 (S.B. 219), Sec. 4.361, eff. April 2, 2015.

Amended by:

Acts 2017, 85th Leg., R.S., Ch. 900 (H.B. 3564), Sec. 1, eff. September 1, 2017.

Sec. 101A.261: Public Information

The office shall provide information and make recommendations to public agencies, legislators, and other persons about the problems and concerns of residents.

Comments

Added by Acts 2015, 84th Leg., R.S., Ch. 1 (S.B. 219), Sec. 4.361, eff. April 2, 2015.

Amended by:

Acts 2017, 85th Leg., R.S., Ch. 900 (H.B. 3564), Sec. 1, eff. September 1, 2017.

Sec. 101A.262: Report

(a) The office shall prepare a report that contains:

(1) information and findings relating to the problems and concerns of residents; and

(2) policy, regulatory, and legislative recommendations to solve the problems, resolve the concerns, and improve the quality of the 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.

Comments

Added by Acts 2015, 84th Leg., R.S., Ch. 1 (S.B. 219), Sec. 4.361, eff. April 2, 2015.

Amended by:

Acts 2017, 85th Leg., R.S., Ch. 900 (H.B. 3564), Sec. 1, eff. September 1, 2017.

Sec. 101A.263: Limitation of Liability

The state long-term care 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.

Comments

Added by Acts 2015, 84th Leg., R.S., Ch. 1 (S.B. 219), Sec. 4.361, eff. April 2, 2015.

Amended by:

Acts 2017, 85th Leg., R.S., Ch. 900 (H.B. 3564), Sec. 1, eff. September 1, 2017.

Sec. 101A.264: Criminal Penalty

(a) A person commits an offense if the person:

(1) by act or omission, wilfully interferes or attempts to interfere with the state long-term care 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 ombudsman or a representative.

(b) An offense under this section is a Class B misdemeanor.

(c) The commission shall ensure that criminal sanctions will be initiated only after all administrative procedures are exhausted.

Comments

Added by Acts 2015, 84th Leg., R.S., Ch. 1 (S.B. 219), Sec. 4.361, eff. April 2, 2015.

Amended by:

Acts 2017, 85th Leg., R.S., Ch. 900 (H.B. 3564), Sec. 1, eff. September 1, 2017.