Proposed Rules Title 26

TITLE 26. HEALTH AND HUMAN SERVICES

PART 1. HEALTH AND HUMAN SERVICES COMMISSION

CHAPTER 88. STATE LONG-TERM CARE OMBUDSMAN PROGRAM

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes amendments to §§88.2, 88.101, 88.102, 88.104, 88.105, 88.201, 88.305, 88.307, 88.403, 88.404, 88.406, and 88.501; new §§88.106, 88.107, 88.202, 88.405, 88.407, 88.408, 88.409, 88.601, 88.602, and 88.603; and the repeal of §§88.309, 88.405, and 88.407.

BACKGROUND AND PURPOSE

The State Long-Term Care Ombudsman Program (Ombudsman Program) is a federally and state funded program authorized by §711 and §712 of the Older Americans Act (Title 42 United States Code §3058f and §3058g). The Ombudsman program protects and advocates for the health, safety, welfare, and rights of residents of nursing facilities and assisted living facilities.

The proposed rules implement a recent change to §306(a)(9) of the Older Americans Act regarding the minimum expenditure an Area Agency on Aging must make under its area plan in carrying out the Ombudsman Program. The proposed rules also provide that certain state general revenue funds allocated for Ombudsman Program functions may not be included in determining the amount of funds spent to meet this expenditure requirement to ensure that a larger amount of funds is used for the Ombudsman Program. In addition, because the State Ombudsman has excluded these funds from the calculation of the minimum expenditure requirement since 2013, the proposed rule further ensures that host agencies do not reduce the funds used for the Ombudsman Program.

The proposed rules address Title 45, Code of Federal Regulations (45 CFR), §1324.19(b)(7) regarding a certified ombudsman's referral of a complaint about actions of a resident's legally authorized representative to the appropriate agency for investigation. The proposed rules address 45 CFR §1324.11(e) and §1324.19(b) regarding documentation of consent.

The proposed rules address a requirement in 45 CFR §1324.11(e)(2), regarding the Office of the State Long-Term Care Ombudsman (the Office) and a certified ombudsman obtaining a copy of a record from a long-term care facility upon request.

The proposed rules include the term "informed consent" to be consistent with 45 CFR Part 1324.

The proposed rules require a certified ombudsman to, at the request of a long-term care facility, provide a completed HHSC form to the facility at the time the certified ombudsman is requesting access to a confidential record concerning a facility resident to help ensure a record of the request for access exists.

The proposed rules require a host agency to submit a plan of correction to the Office for review and approval by the Office if, as the result of a desk review, the Office sends a written report containing a finding to the host agency and local ombudsman entity.

The proposed rules describe the actions taken if the Office determines that a host agency is not in compliance with Chapter 88, Subchapter E and the determination is not based on onsite monitoring or a desk review.

The proposed rules describe the sanctions that may be imposed on a host agency if the host agency does not complete an action in accordance with an approved plan of correction or an approved modified plan of correction resulting from onsite monitoring, a desk review, or a determination of non-compliance not based on onsite monitoring or a desk review.

The proposed rules include additional performance measures that relate to current Ombudsman Program requirements so that the Office can more thoroughly monitor the progress of a local ombudsman entity's compliance with the requirements. In addition, the proposed rules remove a performance measure regarding the number of assisted living facilities that will receive at least one visit by a certified ombudsman. This performance measure is being removed because it is not as meaningful a marker of compliance as the performance measure regarding the number of visits to assisted living facilities by certified ombudsmen that will occur during a federal fiscal year.

The proposed rules remove the process that allows a host agency to request that an approved performance measure projection be revised. This process was established by the HHSC Office of Area Agencies on Aging and is being removed because the process is no longer in place.

The proposed rules change the term "state fiscal year" to "federal fiscal year" to make time periods consistent and to make compliance with requirements related to the time periods less complicated. The proposed rules increase the variance that measures whether a local ombudsman entity is in compliance with certain performance measures and performance measure projections. This increase in variance will help compensate for unforeseen circumstances that hinder compliance by a local ombudsman entity.

The proposed rules include a process for the submission of a grievance about the performance of the State Ombudsman or a representative of the Office who is an employee or volunteer of HHSC.

The proposed rules change the timeframe by which a local ombudsman entity must enter information about activities and casework into the ombudsman database to help ensure the accuracy and completeness of the information entered.

The proposed rules incorporate current policies and procedures related to the Ombudsman Program, including the submission and review of an Ombudsman Staffing Plan form and not reimbursing a host agency if the form is not approved by the Office, the process for investigating a complaint about the conduct of a legally authorized representative, and documentation of consent related to a complaint.

The proposed rules restructure and reorganize some of the current rules to consolidate subject matters.

The proposed rules repeal several rules and replace them with new rules.

SECTION-BY-SECTION SUMMARY

The proposed amendment to §88.2, Definitions, adds definitions for the following new terms: "grievance;" "grievant;" "informed consent;" and "ombudsman database." The proposed amendment removes the term "state fiscal year" because this term is no longer used in the rules. The proposed amendment also renumbers the definitions.

The proposed amendment to §88.101, Responsibilities of the State Ombudsman and the Office, references Subchapter G related to Grievances instead of §88.309 relating to Grievances Regarding Performance of a Representative of the Office or Certification Decisions by the State Ombudsman because §88.309 is proposed for repeal. The proposed amendment makes minor editorial changes.

The proposed amendment to §88.102, Certification of an Ombudsman, makes edits to clarify the type of employee or independent contractor the State Ombudsman certifies as a staff ombudsman. The proposed amendment also corrects a rule reference regarding §88.2 because the proposed amendment to §88.2 renumbers the definitions.

The proposed amendment to §88.104, Designation of a Local Ombudsman Entity, in subsection (b)(1) and (2) of the rule updates references regarding §88.2 because the proposed amendment to §88.2 renumbers the definitions. The proposed amendment in subsection (c)(2) references proposed new §§88.106, 88.107, and 88.409 instead of §88.105 because the content in §88.105 related to onsite monitoring, desk review, and non-compliance is addressed in proposed new §§88.106, 88.107, and 88.409. The proposed amendment in subsection (c)(2)(B) of the rule adds "written" before "plan of correction" and reformats the rule for clarity. The proposed amendment in subsection (c)(2)(C) clarifies that the State Ombudsman may remove the designation of a local ombudsman entity if the local ombudsman entity does not complete the actions in accordance with an approved plan of correction or an approved modified plan of correction. The proposed amendment in subsection (f) of the rule updates a rule reference.

The proposed amendment to §88.105, Fiscal Management and Monitoring of a Local Ombudsman Entity, retitles the rule as "Fiscal Management of a Local Ombudsman Entity." The proposed amendment in subsection (b) of the rule adds "through the HHSC Office of the Area Agencies on Aging" to clarify how the State Ombudsman distributes funds to a host agency, corrects a reference to the Older Americans Act, removes outdated funding formulas, clarifies the description of state general revenue funds and their allocation by the State Ombudsman for the performance of Ombudsman Program functions, changes the term "state fiscal year" to "federal fiscal year" and reformats the rule to improve readability and clarity. The proposed amendment removes subsections (c) - (k) related to onsite monitoring, desk review, and non-compliance because these topics are addressed in proposed new §§88.106, 88.107, and 88.409.

Proposed new §88.106, Onsite Monitoring of a Local Ombudsman Entity and a Host Agency, describes what the Office monitors when it conducts an onsite visit of a local ombudsman entity and a host agency. The proposed rule specifies that the Office conducts at least one onsite visit every three years and describes the activities performed in an onsite visit. The proposed rule describes how the Office schedules a date for an onsite visit and notifies the host agency of a scheduled visit at least 30 days before the visit. The proposed rule provides that the Office gives the local ombudsman entity and the host agency a written report that may contain findings and recommendations from the onsite visit within 45 days after the visit. Currently, §88.105(e)(3) allows the Office 30 days after the onsite visit to provide the report. The proposed rule extends the time frame to 45 days to give the Office adequate time to review information obtained from the visit. The proposed rule requires the host agency to submit a written plan of correction to the Office within 45 days after receipt of the written report that contains one or more findings, instead of within 30 days after receipt of the report as provided by the current rule. This change in timeframe allows the host agency adequate time to develop a plan of correction. The proposed rule provides that the Office notifies the local ombudsman entity and host agency of whether the plan is approved or requires modification within 45 days after receipt of the plan of correction, instead of 30 days after receipt of the plan of correction. This change in timeframe allows the Office adequate time to review the plan of correction. The proposed rule requires the local ombudsman entity or host agency to complete the actions contained in the plan of correction by the dates in the plan and requires the host agency to, if the Office determines that the plan requires modification, submit a modified written plan of correction within a time period determined by the Office for approval by the Office. The proposed rule describes the actions the Office may take to determine if the local ombudsman or host agency entity has completed the actions in accordance with an approved plan of correction or approved modified plan of correction. The proposed rule provides that if the Office determines that the local ombudsman entity or host agency did not complete an action in accordance with an approved plan of correction or an approved modified plan of correction, the Office may allow the local ombudsman entity or host agency additional time to complete the action, HHSC may impose a Level Two sanction in accordance with 26 TAC §213.5, or the State Ombudsman may remove the designation of a local ombudsman entity. The proposed rule provides that if the Office allows a local ombudsman entity or host agency additional time to complete an action and the Office determines that the local ombudsman entity did not complete the action within the time allowed, HHSC may impose a Level Two sanction in accordance with 26 TAC §213.5, or the State Ombudsman may remove the designation of a local ombudsman entity. The proposed rule provides that, at the request of a local ombudsman entity or host agency, the Office provides technical assistance to a local ombudsman entity or host agency regarding developing a plan of correction.

Proposed new §88.107, Desk Review Monitoring of a Local Ombudsman Entity, describes the purpose of a desk review, which includes determining if a local ombudsman entity has conducted at least one visit to each long-term care (LTC) facility in the ombudsman service area each quarter of a federal fiscal year. The proposed rule also describes how often the Office conducts a desk review and that if the Office identifies a finding from a desk review, the Office provides to the local ombudsman entity and the host agency a written report that contains the finding and may include recommendations. Currently, §88.105(j) allows the Office to provide the report within 30 days after the desk review. The proposed rule does not include a time frame to allow the Office a flexible timeline to provide the report. The proposed rule requires a host agency to submit a written plan of correction containing certain information to the Office within 14 days after receipt of a report. The proposed rule provides a time frame for the Office to notify the local ombudsman entity and host agency of whether the plan is approved or requires modification. The proposed rule requires the local ombudsman entity to complete the actions contained in the plan of correction by the dates in the plan if the Office approves the plan. The proposed rule requires the host agency to submit a modified written plan of correction within a time period determined by the Office for approval by the Office, if the Office determines that the plan requires modification. The proposed rule describes the actions the Office takes to determine if the local ombudsman entity has completed the actions in an approved plan of correction or approved modified plan of correction. The proposed rule provides that, if the Office determines that the local ombudsman entity did not complete an action in an approved plan of correction or a modified plan of correction, the Office may allow the local ombudsman entity additional time to complete the action, HHSC may impose a Level Two sanction in accordance with 26 TAC §213.5, or the State Ombudsman may remove the designation of a local ombudsman entity. The proposed rule also provides that if the Office allows a local ombudsman entity additional time to complete an action in the approved plan and the Office determines that the local ombudsman entity did not complete the action within the time allowed, HHSC may impose a Level Two sanction in accordance with 26 TAC §213.5 or the State Ombudsman may remove the designation of the local ombudsman entity. The proposed rule also provides that upon request by a local ombudsman entity or host agency, the Office provides technical assistance to a local ombudsman entity or host agency regarding developing a plan of correction.

The proposed amendment to §88.201, Access to Facilities, Residents, and Resident Records, in subsection (c)(1) of the rule adds a reference to 45 CFR §1324.11(e)(2) and uses language from 45 CFR §1324.11(e)(2) instead of the Older Americans Act for a more specific description of the records to which a certified ombudsman has access, including that a certified ombudsman has access to records regardless of format. The proposed amendment in subsection (c)(1)(A) and (B) of the rule uses the term "informed consent" instead of "consent" to be consistent with 45 CFR Part 1324. The proposed amendment adds a new subsection (d) to provide that, in accordance with 45 CFR §1324.11(e)(2), access by the State Ombudsman and a certified ombudsman to a record as described in subsection (c) of this section, includes obtaining a copy of the record upon request.

Proposed new §88.202, Notification to LTC Facility of Authorization to Access Resident Records, requires a certified ombudsman to, at the request of an LTC facility, provide a completed HHSC form "Acknowledgement of Ombudsman Access to Confidential Record" to the facility at the time the certified ombudsman is requesting access to a confidential record concerning a resident of the facility to help to ensure a record of the request for access exists.

The proposed amendment to §88.305, Complaints, in subsection (b)(1) and (2) of the rule uses the term "informed consent" instead of "consent" to be consistent with 45 CFR Part 1324. The proposed amendment requires a certified ombudsman to inform a complainant that one of the situations in which a complaint will be investigated is when the resident is unable to communicate informed consent to investigate the complaint, has a legally authorized representative, and (1) the complaint relates to an action, inaction, or decision of the legally authorized representative that may adversely affect the health, safety, welfare, or rights of the resident; (2) the certified ombudsman does not have evidence that the resident would object to the complaint being investigated; (3) the certified ombudsman has reasonable cause to believe that it is in the best interest of the resident to investigate the complaint; and (4) the State Ombudsman approves the request of the certified ombudsman to investigate the complaint. The proposed amendment requires a certified ombudsman to request approval from the State Ombudsman to investigate the complaint if this situation exists. The proposed amendment adds a new paragraph (5) in subsection (b) of the rule to require a certified ombudsman to, if the State Ombudsman gives approval, make the referral to the appropriate agency; and determine whether the complaint is satisfactorily resolved. The proposed amendment requires the certified ombudsman to follow the instruction of the State Ombudsman if the State Ombudsman does not approve the request to investigate the complaint. The proposed amendment also requires a certified ombudsman to document the type of consent or authority that allows for a complaint to be investigated. The amendments related to requesting approval from the State Ombudsman to investigate a complaint, making a referral to an appropriate agency, following State Ombudsman instruction if approval is not given, and documenting consent or authority reflect current policies of the Ombudsman Program. The proposed amendment renumbers the paragraphs in subsection (b) because a new paragraph (5) is added.

The proposed amendment to §88.307, changes the title of the rule from "Requirements Regarding LTC Visits and Submitting Information to the Office" to "Requirements Regarding LTC Facility Visits and Submitting Information to the Office." The change is made to use the defined term "LTC facility" in the title of this rule. The proposed amendment requires a local ombudsman entity to enter activities and casework into the ombudsman database within 14 days after completion of the activity or receipt of the complaint instead of on the 16th day of each month if the 16th is a business day or the first business day after the 16th if the 16th is not a business day. This change in the deadline to enter the information was made to help ensure the accuracy and completeness of the information entered.

The proposed repeal of §88.309, Grievances Regarding Performance of a Representative of the Office or Certification Decisions by the State Ombudsman, deletes the rule as no longer necessary, because the content of the rule is addressed in proposed new Subchapter G.

The proposed amendment to §88.403, Conflicts of Interest Regarding a Host Agency, updates references regarding §88.2 because the proposed amendment to §88.2 renumbers the definitions. The proposed amendment also changes a reference to "§88.2(19)(B)" to specify a governmental entity or nonprofit organization contracting with a host agency.

The proposed amendment to §88.404, Provision of Records to the Office, Disclosure of Confidential Information, and Allegations of Abuse, Neglect, or Exploitation, updates a reference regarding §88.2 because the proposed amendment to §88.2 renumbers the definitions. The proposed amendment also changes a reference to "§88.2(19)(B)" to specify a governmental entity or nonprofit organization contracting with a host agency.

Proposed new §88.405, Performance Measures, describes the performance measures of a local ombudsman entity in proposed subsection (a) including the number of visits to nursing facilities by certified ombudsmen that will occur during a state fiscal year; compliance with the complaint response requirements; compliance with the requirement to submit activities and casework; and compliance with the minimum expenditure requirement. Proposed subsection (b) of the rule requires a host agency to work with the local ombudsman entity to develop projections for certain performance measures for a state fiscal year as directed by the HHSC Office of the Area Agencies on Aging and submit the projections to the Office by July 31st of each year using the HHSC form "Ombudsman Performance Measure Projections." The proposed rule provides that the Office reviews a form submitted by the host agency and approves the form or recommends modifications to the form. If the Office recommends modifications to the form, the proposed rule requires the host agency to submit a revised form to the Office for approval within a time period determined by the Office. The current rule requires that a host agency submit the performance measure projections to the HHSC Office of the Area Agencies on Aging but the proposed rule makes the recipient of the projections the Office because the projections concern the Ombudsman Program. Proposed subsections (c) and (d) of the rule require a host agency to ensure that a local ombudsman entity, by the end of each state fiscal year, meets the performance measure projections approved by the Office as described in subsection (b) and certain performance measures by (1) being within a variance of minus ten percent of the projections or performance measures; or (2) exceeding the projections or performance measures. Proposed subsection (e) of the rule requires that a host agency meets or exceeds the performance measure in subsection (a)(7) of the rule regarding the minimum funding requirement because this requirement is in §306(a)(9) of the Older Americans Act. The term "state fiscal year" is changed to "federal fiscal year" in all subsections of the rule.

The proposed repeal of §88.405, Meeting Performance Measure Projections, deletes the rule as no longer necessary because the content of the rule has been addressed in proposed new §88.405.

The proposed amendment to §88.406, Requirements Regarding Expenditures for the Ombudsman Program, requires a host agency to expend for a federal fiscal year at least the amount of federal funds expended in federal fiscal year 2019, instead of in federal fiscal year 2000, to be in compliance with §306(a)(9) of the Older Americans Act. The proposed amendment provides that in determining the amount of funds expended, the host agency may include all funds except the state general revenue funds allocated to the host agency described in proposed §88.105(b)(3). The proposed amendment also removes a title to a federal regulation for brevity.

Proposed new §88.407, Requirement for Approval of Ombudsman Staffing Plan Form, provides that the Office sends a host agency an Ombudsman Staffing Plan form each year and requires a host agency to complete and submit the Ombudsman Staffing Plan form as specified in the form. The proposed rule also provides that the Office reviews the form and notifies the host agency if the staffing plan form is approved. The proposed rule provides that the Office will not reimburse a host agency for expenditures made by the host agency for Ombudsman Program functions until the Office approves an Ombudsman Staffing Plan form submitted by the host agency.

The proposed repeal of §88.407, Prohibition of Interference and Retaliation by a Host Agency, deletes the rule as no longer necessary because the content of the rule is addressed in proposed new §88.408.

Proposed new §88.408, Prohibition of Interference and Retaliation by a Host Agency, in proposed subsection (a) of the rule, prevents a host agency from willfully interfering with the State Ombudsman or a representative of the Office performing any of the functions of the Ombudsman Program, retaliating against the State Ombudsman or a representative of the Office, and having personnel policies or practices that prohibit a representative of the Office from performing the functions of the Ombudsman Program or from adhering to the requirements of the Older Americans Act, §712. Proposed subsection (b) of the rule requires a host agency to ensure that a governmental entity or nonprofit organization contracting with a host agency, complies with §88.408(a) of this section as if the entity or organization is a host agency. Proposed subsection (c) of the rule allows a host agency to require a representative of the Office to notify the host agency of comments or recommendations made in accordance with §88.302(a)(1)(F) and of certain information relating to a legislator or the media.

Proposed new §88.409, Noncompliance by a Host Agency, in proposed subsection (a) of the rule provides that if the Office determines that a host agency is not in compliance with Subchapter E, relating to Requirements of a Host Agency, and the determination is not based on onsite monitoring or a desk review, the Office sends the local ombudsman entity and host agency a written notice describing the determination of non-compliance. Proposed subsection (b) of the rule requires the host agency or local ombudsman entity to respond to the written notice within 14 days with a plan of correction describing the action that will be taken to address the non-compliance and the date the action will be completed. Proposed subsection (c) of the rule provides that the Office will notify the host agency within 14 days if the plan of correction is approved or requires modification. Proposed subsection (d) of the rule provides that the Office will determine compliance with the plan of correction by reviewing information in the ombudsman database, requesting that the host agency submit evidence of correction to the Office, or visiting the host agency or local ombudsman entity. Proposed subsection (e) of the rule provides that if the Office determines that the host agency did not complete an action in accordance with an approved plan of correction or an approved modified plan of correction, the Office may allow the host agency additional time to complete the action, HHSC may impose a Level Two or Level Three sanction in accordance with 26 TAC §213.5, or the State Ombudsman may remove the designation of a local ombudsman entity. Proposed subsection (f) of the rule provides that if the Office allows a host agency additional time to complete an action and the Office determines that the host agency did not complete the action within the time allowed, HHSC may impose a Level Two or Level Three sanction in accordance with §213.5 of this title, or the State Ombudsman may remove the designation of the local ombudsman entity. Proposed subsection (g) of the rule provides that the Office will provide technical assistance, upon request, to the host agency or local ombudsman entity regarding the plan of correction.

The proposed amendment to §88.501, HHSC Responsibilities Regarding Individual Conflicts of Interest, corrects a rule reference regarding §88.2 because the proposed amendment to §88.2 renumbers the definitions.

New Subchapter G, Grievances

Proposed new §88.601, Grievances Regarding Performance of a Representative of the Office Who is an Employee, Independent Contractor, or Volunteer of a Host Agency, Including a Managing Local Ombudsman, describes the process and requirements for a local ombudsman entity in receiving and investigating a grievance about the performance of Ombudsman Program functions by a representative of the Office, other than a grievance about a managing local ombudsman. The proposed rule also describes the actions the Office takes regarding a grievance about the performance of Ombudsman Program functions by a managing local ombudsman.

Proposed new §88.602, Grievances Regarding the Performance of the State Ombudsman or a Representative of the Office Who Is an Employee or Volunteer of HHSC, describes the actions taken by the Office for a grievance about the performance of Ombudsman Program functions by the State Ombudsman. The proposed rule requires a grievance about the State Ombudsman that is not related to fraud, waste, or abuse to be submitted to the Director of the Office of the Ombudsman and a grievance about the State Ombudsman related to fraud, waste, or abuse to be submitted to the Office of the Inspector General. The proposed rule also describes the actions taken by the Office for a grievance about the performance of Ombudsman Program functions by a representative of the Office who is an employee or volunteer of HHSC.

Proposed new §88.603, Grievances Regarding Certification Decisions by the State Ombudsman, provides that if the State Ombudsman refuses, suspends, or terminates certification of a representative of the Office, the person whose certification was refused, suspended, or terminated may file a grievance to request a reconsideration of the decision. The proposed rule describes how the grievance must be submitted and the actions the Office takes in reviewing the grievance.

FISCAL NOTE

Trey Wood, HHSC Chief Financial Officer, has determined that for each year of the first five years that the rules will be in effect, enforcing or administering the rules does not have foreseeable implications relating to costs or revenues of state or local governments.

GOVERNMENT GROWTH IMPACT STATEMENT

HHSC has determined that during the first five years that the rules will be in effect:

(1) the proposed rules will not create or eliminate a government program;

(2) implementation of the proposed rules will not affect the number of HHSC employee positions;

(3) implementation of the proposed rules will result in no assumed change in future legislative appropriations;

(4) the proposed rules will not affect fees paid to HHSC;

(5) the proposed rules will create new regulations;

(6) the proposed rules will expand and repeal existing regulations;

(7) the proposed rules will not change the number of individuals subject to the rules; and

(8) the proposed rules will not affect the state's economy.

SMALL BUSINESS, MICRO-BUSINESS, AND RURAL COMMUNITY IMPACT ANALYSIS

HHSC does not expect an adverse economic effect on small businesses, micro-businesses, or rural communities from this proposal because there are no small businesses, micro-businesses, or rural communities included in those required to comply.

LOCAL EMPLOYMENT IMPACT

The proposed rules will not affect a local economy.

COSTS TO REGULATED PERSONS

Texas Government Code §2001.0045 does not apply to these rules because the rules are necessary to protect the health, safety, and welfare of the residents of Texas; do not impose a cost on regulated persons; and are necessary to receive a source of federal funds or comply with federal law.

PUBLIC BENEFIT AND COSTS

Hailey Kemp, Chief Public Affairs Officer, has determined that for each year of the first five years the rules are in effect, the public will benefit from the implementation of federal requirements regarding the Ombudsman Program that help ensure the protection of and advocacy for the health, safety, welfare, and rights of long-term care facility residents. The public will also benefit from clearer rules regarding the requirements of the Ombudsman Program.

Trey Wood has also determined that for the first five years the rules are in effect, there are no anticipated economic costs to persons who are required to comply with the proposed rules because there are no new fees or costs imposed on those required to comply.

TAKINGS IMPACT ASSESSMENT

HHSC has determined that the proposal does not restrict or limit an owner's right to his or her property that would otherwise exist in the absence of government action and, therefore, does not constitute a taking under Texas Government Code §2007.043.

PUBLIC COMMENT

Questions about the content of this proposal may be directed to Alexa Schoeman (512) 438-4281 in the Office of the State Long-Term Care Ombudsman.

Written comments on the proposal may be submitted to Alexa Schoeman, Deputy State Ombudsman, P.O. Box 149030, Mail Code W250, Austin, Texas 78714, or street address 4601 W. Guadalupe Street, Austin, Texas 78751; or by e-mail to ltc.ombudsman@hhs.texas.gov.

To be considered, comments must be submitted no later than 31 days after the date of this issue of the Texas Register. Comments must be (1) postmarked or shipped before the last day of the comment period; (2) hand-delivered before 5:00 p.m. on the last working day of the comment period; or (3) emailed before midnight on the last day of the comment period. If the last day to submit comments falls on a holiday, comments must be postmarked, shipped, or emailed before midnight on the following business day to be accepted. When emailing comments, please indicate "Comments on Proposed Rule 23R030" in the subject line.

SUBCHAPTER A. PURPOSE AND DEFINITIONS

26 TAC §88.2

STATUTORY AUTHORITY

The amendment is authorized by Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services agencies, and Texas Human Resources Code §101A.051, which provides that the HHSC Executive Commissioner shall adopt rules regarding the administration by HHSC of programs and services for older individuals.

The amendment affects Texas Government Code §531.0055 and Texas Human Resources Code, §101A.051.

§88.2.Definitions.

The following words and terms, when used in this chapter, have the following meanings unless the context clearly indicates otherwise.

(1) Business day--Any day except a Saturday, Sunday, or legal holiday listed in Texas Government Code, §662.021.

(2) Certified ombudsman--A staff ombudsman or a volunteer ombudsman.

(3) CFR--Code of Federal Regulations.

(4) Complainant--A person who makes a complaint.

(5) Complaint--A statement of dissatisfaction or concern made by or on behalf of a resident, that relates to action, inaction, or a decision by any of the following entities or persons, that may adversely affect the health, safety, welfare, or rights of the resident:

(A) a long-term care (LTC) [~~an LTC~~] facility or LTC facility staff;

(B) a governmental entity, including a health and human services agency; or

(6) DAHS facility--A day activity and health services facility. A facility licensed in accordance with Texas Human Resources Code, Chapter 103.

(7) Day--A calendar day.

(8) Federal fiscal year--A 12-month period of time from October 1 through September 30.

(9) Governmental entity--An entity that is:

(A) a state agency;

(B) a district, authority, county, municipality, regional planning commission, or other political subdivision of the state; or

(10) Grievance--A statement of dissatisfaction or concern regarding a representative of the Office of the State Long-Term Care Ombudsman (Office) or the State Ombudsman and the performance of their functions, responsibilities, and duties described in 45 CFR §1324.13, 45 CFR §1324.19, and this chapter.

(11) Grievant--A person who makes a grievance.

(12) [~~(10)~~] HCSSA--Home and community support services agency. An entity licensed in accordance with Texas Health and Safety Code [,] Chapter 142.

(13) [~~(11)~~] HHSC--The Texas Health and Human Services Commission or its designee.

(14) [~~(12)~~] Host agency--A governmental entity or nonprofit organization that contracts with HHSC to ensure that the local ombudsman entity implements the State Long-Term Care Ombudsman Program (Ombudsman Program) [~~Ombudsman Program~~] in an ombudsman service area.

(15) [~~(13)~~] Immediate family member--A member of the same household or a relative with whom there is a close personal or significant financial relationship.

(16) Informed consent--Consent from a resident or legally authorized representative after the State Ombudsman or a representative of the Office explains the options for ombudsman action and possible outcomes of such options in a manner and language in which the resident or legally authorized representative understands, as determined by the State Ombudsman or a representative of the Office.

(17) [~~(14)~~] Individual conflict of interest--A situation in which a person is involved in multiple interests, financial or otherwise, that could affect the effectiveness and credibility of the Ombudsman Program and includes a person:

(A) having direct involvement in the licensing, surveying, or certification of an LTC facility, a HCSSA, a DAHS facility, a nursing facility administrator, or a nurse aide;

(B) having ownership or investment interest (represented by equity, debt, or other financial relationship) in an LTC facility, a HCSSA, or a DAHS facility;

(D) being employed by an LTC facility within the 12 months before performing functions of the Ombudsman Program;

(E) accepting gifts, gratuities, or other consideration from an LTC facility or from a resident of such an LTC facility or the resident's family;

(F) accepting money or any other consideration from anyone other than the local ombudsman entity or host agency for performing functions of the Ombudsman Program;

(G) receiving or having the right to receive, directly or indirectly, remuneration (in cash or in kind) under a compensation arrangement with an owner or operator of an LTC facility, a HCSSA, or a DAHS facility;

(H) being involved in PASRR screenings for LTC facility placements other than responding to a complaint made to the Ombudsman Program;

(I) determining eligibility regarding Medicaid or other public benefits for residents;

(J) being employed by a managed care organization that provides services to residents;

(K) serving as a representative of the Office for an LTC facility in the ombudsman service area and in which a relative of the representative resides or works;

(L) acting as a decision-maker or legally authorized representative for a resident in the ombudsman service area, including providing adult protective services as described in Texas Human Resources Code, Chapter 48;

(M) being a resident;

(N) being a member of a board or council that represents the interests of an LTC facility; or

(O) having an immediate family member who meets any of the descriptions in subparagraphs (A) - (N) of this paragraph.

(18) [~~(15)~~] Legally authorized representative--A person authorized by law to act on behalf of another person with regard to a matter described in this chapter, including:

(A) a parent, guardian, or managing conservator of a minor;

(B) the guardian of an adult;

(C) an agent to whom authority to make health care decisions is delegated under a medical power of attorney or durable power of attorney in accordance with state law; or

(D) the representative of a deceased person.

(19) [~~(16)~~] Local ombudsman entity--One of the following:

(A) an identifiable unit of a host agency that:

(i) consists of representatives of the Office who are employees, independent contractors, or volunteers of the host agency; and

(ii) implements the Ombudsman Program in an ombudsman service area; or

(B) an identifiable unit of a governmental entity or nonprofit organization that:

(i) consists of representatives of the Office who are employees, independent contractors, or volunteers of the governmental entity or nonprofit organization; and

(ii) contracts with a host agency to implement the Ombudsman Program in an ombudsman service area.

(20) [~~(17)~~] LTC facility--Long-term care facility. A nursing facility licensed or required to be licensed in accordance with Texas Health and Safety Code, Chapter 242, and or an assisted living facility licensed or required to be licensed in accordance with Texas Health and Safety Code, Chapter 247.

(21) [~~(18)~~] Managing local ombudsman--A person who:

(A) is certified as a staff ombudsman to serve as a managing local ombudsman in accordance with §88.102 of this chapter (relating to Certification of an Ombudsman); and

(B) works with a host agency and the Office to oversee the implementation of the Ombudsman Program in an ombudsman service area.

(22) [~~(19)~~] Office--The Office of the State Long-Term Care Ombudsman. An organizational unit within HHSC that:

(A) is headed by the State Ombudsman;

(B) consists of representatives of the Office who are employees of HHSC; and

(23) [~~(20)~~] Older Americans Act--A federal law (Title 42, United States Code, §3011 et seq.) that establishes and funds a comprehensive service system for persons 60 years of age or older and certain caregivers and family members of persons 60 years of age or older.

(24) Ombudsman database--The statewide reporting system required by §712(c) of the Older Americans Act that is a web-based application in which Ombudsman Program data is entered, stored, maintained, and analyzed.

(25) [~~(21)~~] Ombudsman intern--A person who is being trained to be a volunteer ombudsman in accordance with the Ombudsman Certification Training Manual but has not been certified as a volunteer ombudsman.

(26) [~~(22)~~] Ombudsman Program--The State Long-Term Care Ombudsman Program as defined in 45 CFR §1324.1. The program through which the functions of the Office are carried out by the State Ombudsman and representatives of the Office.

(27) [~~(23)~~] Ombudsman Program records--The files, records, and other information created or maintained by the State Ombudsman or a representative of the Office in the performance of functions of the Ombudsman Program, including:

(A) information relating to complaint investigations;

(B) emails and documentation of phone conversations;

(D) information contained in the ombudsman database.

(28) [~~(24)~~] Ombudsman service area--The county or counties, specified in the contract between HHSC and a host agency, in which the local ombudsman entity performs functions of the Ombudsman Program.

(29) [~~(25)~~] Organizational conflict of interest-- A situation in which an organization is involved in multiple interests, financial or otherwise, that could affect the effectiveness and credibility of the Ombudsman Program and includes an organization:

(A) having any ownership, operational, or investment interest in, or receiving grants or donations from, an LTC facility;

(B) being an association of LTC facilities or an affiliate of such an association;

(D) having a governing board member with an ownership, investment, or employment interest in an LTC facility;

(E) providing long-term care to residents of LTC facilities, including the provision of personnel for LTC facilities or the operation of programs that control access to, or services of, LTC facilities;

(F) providing long-term care coordination or case management for residents of LTC facilities;

(G) setting reimbursement rates for LTC facilities;

(H) providing adult protective services, as described in Texas Human Resources Code, Chapter 48;

(I) determining eligibility regarding Medicaid or other public benefits for residents of LTC facilities;

(J) conducting PASRR screening for LTC facility placements;

(K) making decisions regarding admission of residents to, or discharge of residents from, LTC facilities; or

(L) providing guardianship, conservatorship, or other fiduciary or surrogate decision-making services for residents of LTC facilities.

(30) [~~(26)~~] PASRR--Preadmission Screening and Resident Review. A review performed in accordance with 42 CFR Part 483, Subpart C.

(31) [~~(27)~~] Private and unimpeded access--Has the following meanings:

(A) as used in §88.201(a)(1) of this chapter (relating to Access to Facilities, Residents, and Resident Records), access to enter an LTC facility without interference or obstruction from facility employees, volunteers, or contractors; and

(B) as used in §88.201(a)(2) of this chapter, access to communicate with a resident outside of the hearing and view of other persons without interference or obstruction from facility employees, volunteers, or contractors.

(32) [~~(28)~~] Representative of the Office--A staff ombudsman, volunteer ombudsman, or ombudsman intern.

(33) [~~(29)~~] Resident--A person of any age who resides in an LTC facility.

(34) [~~(30)~~] Resident representative--A person chosen by a resident, through formal or informal means, to act on behalf of the resident to:

(A) support the resident in decision-making;

(B) access medical, social, or other personal information of the resident;

(D) receive notifications.

(35) [~~(31)~~] Staff ombudsman--A person who meets the following criteria, including a managing local ombudsman:

(A) is certified as a staff ombudsman in accordance with §88.102 of this chapter;

(B) performs functions of the Ombudsman Program; and

(i) a host agency;

(ii) a governmental entity or nonprofit organization that contracts with a host agency, as described in paragraph (16)(B) of this section; or

(iii) HHSC.

~~[(32) State fiscal year--A 12-month period of time from September 1 through August 31.]~~

(36) [~~(33)~~] State Ombudsman--The State Long-term Care Ombudsman, as defined in 45 CFR §1324.1. The person who heads the Office and performs the functions, responsibilities, and duties described in §88.101 of this chapter (relating to Responsibilities of the State Ombudsman and the Office).

(37) [~~(34)~~] Volunteer ombudsman--A person who:

(A) is certified as a volunteer ombudsman in accordance with §88.102 of this chapter;

(B) performs functions of the Ombudsman Program; and

(i) HHSC;

(ii) a host agency; or

(iii) a governmental entity or nonprofit organization that contracts with a host agency, as described in paragraph (16)(B) of this section.

(38) [~~(35)~~] Willfully interfere--To act or not act to intentionally prevent, interfere with, or impede or to attempt to intentionally prevent, interfere with, or impede.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on January 18, 2024.

TRD-202400160

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: March 3, 2024

For further information, please call: (512) 438-4281

SUBCHAPTER B. ESTABLISHMENT OF THE OFFICE

26 TAC §§88.101, 88.102, 88.104 - 88.107

STATUTORY AUTHORITY

The amendments and new sections are authorized by Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services agencies, and Texas Human Resources Code §101A.051, which provides that the HHSC Executive Commissioner shall adopt rules regarding the administration by HHSC of programs and services for older individuals.

The amendments and new sections affect Texas Government Code §531.0055 and Texas Human Resources Code, §101A.051.

§88.101.Responsibilities of the State Ombudsman and the Office.

(a) The Office is headed by the State Ombudsman.

(b) The State Ombudsman, directly or through a designee:

(1) may designate a local ombudsman entity to perform the functions of the Ombudsman Program in an ombudsman service area;

(2) certifies ombudsmen as described in §88.102 of this subchapter (relating to Certification of an Ombudsman), and refuses, suspends, and terminates certification, as described in §88.103 of this subchapter (relating to Refusal, Suspension, and Termination of Certification of an Ombudsman);

(3) designates local ombudsman entities, and refuses, suspends, or terminates designation in accordance with §88.104 of this subchapter (relating to Designation of a Local Ombudsman Entity);

(4) approves the allocation of federal and state funds provided to a host agency for the local ombudsman entity and determines that program budgets and expenditures of the Office, host agency, and local ombudsman entities are consistent with laws, rules, policies, and procedures governing the Ombudsman Program;

(5) is responsible for the programmatic oversight of a representative of the Office, which includes:

(A) screening a representative of the Office who is employed by HHSC for individual conflicts of interest as described in subsection (d) of this section;

(B) screening a host agency for organizational conflicts of interest, as described in §88.403 of this chapter (relating to Conflicts of Interest Regarding a Host Agency) at least once a year;

(D) providing advice and consultation to a representative of the Office in the performance of functions of the Ombudsman Program;

(6) identifies, investigates, and resolves complaints, made by or on behalf of residents, that relate to action, inaction, or decisions that may adversely affect the health, safety, welfare, and rights of residents;

(7) represents the interests of residents before governmental agencies and pursues administrative, legal, and other remedies to protect residents;

(8) provides administrative and technical assistance to representatives of the Office, local ombudsman entities, and host agencies regarding performance of the functions of the Ombudsman Program;

(9) consults with host agencies and representatives of the Office in the establishment of Ombudsman Program policies and procedures;

(10) monitors the performance of local ombudsman entities, including providing information to a host agency regarding the performance of a staff ombudsman;

(11) investigates grievances made against a representative of the Office regarding the performance of the functions of the Ombudsman Program, as described in Subchapter G [~~§88.309~~] of this chapter (relating to Grievances [~~Regarding Performance of a Representative of the Office or Certification Decisions by the State Ombudsman~~]);

(12) coordinates with a local ombudsman entity and, if appropriate, a host agency about concerns the State Ombudsman has regarding a representative of the Office, as described in §88.103(e) of this subchapter (relating to Refusal, Suspension, and Termination of Certification of an Ombudsman); and

(13) publishes an annual report in accordance with 45 CFR §1324.13(g).

(c) For purposes of determining if a representative of the Office has an individual conflict of interest in accordance with this section, the state of Texas is the ombudsman service area.

(d) The State Ombudsman:

(1) requires an applicant for a position within the Office to complete HHSC form "Individual Conflict of Interest Screening of a Representative of the Office" to identify an individual conflict of interest of the applicant;

(2) requires a representative of the Office employed by HHSC to complete HHSC form "Individual Conflict of Interest Screening of a Representative of the Office" at least once a year and if the representative of the Office identifies an individual conflict of interest; and

(3) reviews a form required by paragraphs (1) and (2) of this subsection to determine if an identified conflict of interest can be removed or remedied.

(e) The Office makes decisions independent of HHSC, including decisions about:

(1) the disclosure of confidential information maintained by the Ombudsman Program;

(2) recommendations to changes in federal, state, and local laws, rules, regulations, and other governmental policies and actions that relate to the health, safety, welfare, and rights of residents; and

(3) the provision of information to public and private agencies, legislators, the media, and other persons regarding problems and concerns about residents and recommendations related to the problems and concerns.

(f) In accordance with the Older Americans Act, §712(a)(3), [~~and~~] 45 CFR §1324.11(e)(5), and §1324.13(a)(7) - (9), the Office is responsible for:

(1) analyzing, commenting on, and monitoring the development and implementation of federal, state, and local laws, regulations, and other governmental policies and actions that pertain to LTC facilities and services and to the health, safety, welfare, and rights of residents;

(2) recommending any changes in such laws, rules, regulations, policies, and actions as the Office determines to be appropriate;

(3) providing information to public and private agencies, legislators, the media, and other persons regarding problems and concerns about residents and providing recommendations related to the problems and concerns;

(4) overseeing activities described in paragraphs (1) - (3) of this subsection, including coordination of such activities carried out by representatives of the Office, as described in §88.302(a)(2)(A) of this chapter (relating to Requirement to Ensure a Representative of the Office Performs Functions of the Ombudsman Program);

(5) coordinating with and promoting the development of citizen organizations that have a purpose consistent with the interests of residents;

(6) promoting and providing technical support for the development of resident and family councils; and

(7) providing ongoing support as requested by resident and family councils to protect the well-being and rights of residents.

§88.102.Certification of an Ombudsman.

(a) The State Ombudsman initially certifies a person described in §88.2(35)(C)(i) or (ii) of this chapter (relating to Definitions) as a staff ombudsman [~~described in §88.2(31)(C)(i) or (ii) of this chapter (relating to Definitions)~~] , other than a managing local ombudsman, if:

(1) the person has one of the following:

(A) a bachelor's or advanced degree from an accredited college or university; or

(B) a high school diploma or a certificate recognized by the state in which it was issued as the equivalent of a high school diploma and at least four years of one, or a combination, of the following:

(i) paid experience in a social, behavioral, health, or human service field; or

(ii) experience as a certified ombudsman;

(2) the person has not been convicted of an offense listed under Texas Health and Safety Code §250.006 during the time periods set forth in Texas Health and Safety Code §250.006, according to a criminal history record of the person obtained by the Office from the Texas Department of Public Safety;

(3) the person:

(A) does not have an individual conflict of interest according to HHSC form "Individual Conflict of Interest Screening of a Representative of the Office" completed by the person; or

(B) has an individual conflict of interest that has been remedied, as described in §88.303 of this chapter (relating to Individual Conflicts of Interest Regarding a Local Ombudsman Entity);

(4) the person successfully completes the certification training provided by the local ombudsman entity in accordance with the Ombudsman Policies and Procedures Manual; and

(5) the local ombudsman entity recommends to the Office, using HHSC form "Certified Ombudsman Application," that the person be approved as a certified ombudsman in accordance with §88.301(a) of this chapter (relating to Requirements to Recommend Certification as an Ombudsman).

(b) The State Ombudsman initially certifies a person as a staff ombudsman to serve as the managing local ombudsman if:

(1) the person meets the criteria in subsection (a)(1) - (3) of this section;

(2) the person successfully completes certification training provided by the Office; and

(3) the person demonstrates competency to serve as a managing local ombudsman.

(1) the person meets the criteria in subsection (a)(2) - (4) of this section;

(2) the local ombudsman entity recommends to the Office, using HHSC form "Certified Ombudsman Application," that the person be approved as a certified ombudsman in accordance with §88.301(b) of this chapter; and

(3) the person successfully completes an internship in accordance with the Ombudsman Policies and Procedures Manual.

(d) The State Ombudsman initially certifies a person to be a staff ombudsman or volunteer ombudsman by signing HHSC form "Certified Ombudsman Application."

(e) The State Ombudsman certifies a person to be a staff ombudsman or volunteer ombudsman for a period of two years. After initial certification, the Office renews the certification of a staff ombudsman or volunteer ombudsman if:

(1) for a staff ombudsman, the staff ombudsman:

(A) meets the requirements in subsection (a)(1) - (3) of this section;

(B) completes continuing education provided by the Office; and

(C) demonstrates compliance with the Ombudsman Certification Training Manual and the Ombudsman Policies and Procedures Manual; and

(2) for a volunteer ombudsman, the volunteer ombudsman:

(A) meets the requirements in subsection (a)(2) and (3) of this section;

(B) completes continuing education provided by the local ombudsman entity in accordance with the Ombudsman Policies and Procedures Manual; and

(C) demonstrates compliance with the Ombudsman Certification Training Manual and the Ombudsman Policies and Procedures Manual.

(f) The State Ombudsman certifies a person described in §88.2(35)(C)(iii) of this chapter as a staff ombudsman [~~described in §88.2(31)(C)(iii) of this chapter~~] if the person:

(1) has not been convicted of an offense listed under Texas Health and Safety Code §250.006 during the time periods set forth in Texas Health and Safety Code §250.006, according to a criminal history record of the person obtained by the Office from the Texas Department of Public Safety;

(2) meets one of the following;

(A) does not have an individual conflict of interest according to HHSC form "Individual Conflict of Interest Screening of a Representative of the Office" completed by the person; or

(B) has an individual conflict of interest that has been remedied by the State Ombudsman; and

(3) successfully completes the certification training provided by the Office.

§88.104.Designation of a Local Ombudsman Entity.

(a) The State Ombudsman may designate a local ombudsman entity to perform the functions of the Ombudsman Program in an ombudsman service area.

(b) The State Ombudsman does not designate a local ombudsman entity if the host agency or a governmental entity or nonprofit organization contracting with the host agency, as described in §88.2(19)(B) [~~§88.2(16)(B)~~] of this chapter (relating to Definitions):

(1) has an organizational conflict of interest described in §88.2(29)(A) - (C) [~~§88.2(25)(A) - (C)~~] of this chapter; or

(2) has an organizational conflict of interest described in §88.2(29)(D) - (L) [~~§88.2(25)(D) - (L)~~] of this chapter that has not been removed or remedied as approved by the State Ombudsman in accordance with §88.403(d) of this chapter (relating to Conflicts of Interest Regarding a Host Agency).

(1) the host agency or local ombudsman entity has policies, procedures, or practices that the State Ombudsman determines to be in conflict with the laws, rules, policies, or procedures governing the Ombudsman Program; or

(2) the host agency or local ombudsman entity fails to comply with the requirements of this chapter including:

(A) not removing or remedying an organizational or individual conflict of interest as described in §88.303 of this chapter (relating to Individual Conflicts of Interest Regarding a Local Ombudsman Entity) and §88.403 of this chapter;

(B) not submitting: [ a plan of correction required by §88.105(f) of this subchapter (relating to Fiscal Management and Monitoring of a Local Ombudsman Entity) or a modified plan of correction required by §88.105(g) of this subchapter; or]

(i) a written plan of correction required by:

(I) §88.106(d) of this subchapter (relating to Onsite Monitoring of a Local Ombudsman Entity and a Host Agency);

(II) §88.107(d) of this subchapter (relating to Desk Review Monitoring of a Local Ombudsman Entity); and

(III) 88.409(b) of this chapter (relating to Noncompliance by a Host Agency); or

(ii) a modified written plan of correction required by:

(I) §88.106(e) of this subchapter;

(II) §88.107(e) of this subchapter; and

(III) §88.409(c) of this chapter; or

(C) not completing actions in accordance with an approved [~~obtaining approval by the Office of a~~] plan of correction or an approved modified plan of correction as required by: [~~§88.105(f) of this subchapter or a modified plan of correction required by §88.105(g) of this subchapter~~]

(i) §88.106(d) of this subchapter;

(ii) §88.107(d) of this subchapter; and

(iii) §88.409(b) of this chapter.

(d) If the State Ombudsman removes the designation of a local ombudsman entity, the Office notifies the local ombudsman entity and host agency, in writing, of the decision to remove the designation.

(e) A host agency may request reconsideration of the State Ombudsman's decision to remove the designation of the local ombudsman entity. To request a reconsideration of the decision, the host agency must, within 10 days after receiving the notification of removal of the designation, submit a written request for reconsideration and additional information supporting the request to the State Ombudsman.

(f) If the removal of designation of a local ombudsman entity results in termination of the contract between HHSC and the host agency, the host agency may appeal the termination in accordance with §213.7 of this title [~~40 TAC §81.15~~] (relating to Appeal Procedures for Area Agency on Aging Contractors).

§88.105.Fiscal Management [~~and Monitoring~~ ] of a Local Ombudsman Entity.

(a) The State Ombudsman:

(1) determines the use of the federal and state funds appropriated for the operation of the Office;

(2) approves the allocation of federal and state funds to a host agency for the operation of the Ombudsman Program in accordance with subsection (b) of this section; and

(3) determines that Ombudsman Program budgets and expenditures are for an appropriate amount and relate to functions of the Ombudsman Program.

(b) The [~~This subsection describes how the~~] State Ombudsman distributes funds through the HHSC Office of the Area Agencies on Aging to a host agency for the operation of the Ombudsman Program in accordance with the Older Americans Act, §712(a)(2) [~~§306(a)(9)~~]. Annually, a host agency is allocated:

(1) [~~A host agency is allocated~~] a base amount of $3,000 from federal funds appropriated or otherwise available for the Ombudsman Program; [~~. Additional federal funds are allocated as follows:~~]

~~[(A) for state fiscal year 2019:]~~

~~[(i) 55 percent of the additional funds is allocated based on the licensed capacity of nursing facilities in the ombudsman service area;]~~

~~[(ii) 20 percent of the additional funds is allocated based on the number of assisted living facilities in the ombudsman service area; and]~~

[(iii) 25 percent of the additional funds is allocated based on the number of certified ombudsmen in the ombudsman service area who actively performed functions of the Ombudsman Program during the previous state fiscal year;]

~~[(B) for state fiscal year 2020:]~~

~~[(i) 65 percent of the additional funds is allocated based on the licensed capacity of nursing facilities in the ombudsman service area;]~~

~~[(ii) 10 percent of the additional funds is allocated based on the number of assisted living facilities in the ombudsman service area; and]~~

~~[(C) for state fiscal year 2021 and later:]~~

~~[(i) 75 percent of the additional funds is allocated based on the licensed capacity of nursing facilities in the ombudsman service area; and]~~

[(ii) 25 percent of the additional funds is allocated based on the number of certified ombudsmen in the ombudsman service area who actively performed functions of the Ombudsman Program during the previous state fiscal year.]

(2) additional federal funds:

(A) 75 percent of which is based on the licensed capacity of nursing facilities in the ombudsman service area; and

(B) 25 percent of which is based on the number of certified ombudsmen in the ombudsman service area who actively performed functions of the Ombudsman Program during the previous federal fiscal year; and

(3) [~~(2) A host agency is allocated funds from~~] state general revenue funds for the performance of [~~appropriated or otherwise available for the~~] Ombudsman Program functions based on the following factors:

(A) the number of assisted living facilities in the ombudsman service area on or about July 1 of each year;

(B) the number of assisted living facilities in the ombudsman service area located in a rural area, as determined by the State Ombudsman, on or about July 1 of each year; and

(C) the type and licensed capacity of assisted living facilities in the ombudsman service area on or about July 1 of each year.

~~[(c) The Office conducts an onsite visit or a desk review to monitor:]~~

~~[(1) the performance of functions of the Ombudsman Program by a representative of the Office;]~~

~~[(2) the compliance by a local ombudsman entity with Subchapter D of this chapter (relating to Requirements of a Local Ombudsman Entity); and]~~

~~[(3) the compliance by a host agency with Subchapter E of this chapter (relating to Requirements of a Host Agency).]~~

~~[(d) The Office conducts at least one onsite visit every three years. An onsite visit includes:]~~

~~[(1) observing and evaluating a visit of a managing local ombudsman to an LTC facility; and]~~

~~[(2) reviewing information regarding a local ombudsman entity's compliance with subchapter D of this chapter, including documentation regarding:]~~

~~[(A) the training of representatives of the Office;]~~

~~[(B) identification of individual conflicts of interest; and]~~

~~[(C) expenditures for the Ombudsman Program, such as timesheets and evidence supporting mileage reimbursement for representatives of the Office.]~~

~~[(e) The Office:]~~

~~[(1) selects a date for an onsite visit in consultation with the managing local ombudsman;]~~

~~[(2) notifies the host agency of a scheduled onsite visit at least 30 days before the visit; and]~~

~~[(3) within 30 days after the Office completes an onsite visit, provides to the local ombudsman entity and the host agency a written report containing findings from the visit.]~~

~~[(f) The host agency must, within 30 days after receipt of the written report described in subsection (e)(3) of this section, submit a written plan of correction to the Office that describes:]~~

~~[(1) the action that will be taken to correct each finding; and]~~

~~[(2) the date by which each action will be completed.]~~

[(g) Within 30 days after the date the Office receives the plan of correction required by subsection (f) of this section, the Office notifies the local ombudsman entity and host agency of whether the plan is approved or requires modification. If the Office approves the plan, the local ombudsman entity must complete the actions contained in the plan of correction by the dates in the plan. If the Office determines that the plan requires modification, the host agency must submit a modified written plan of correction within a time period determined by the Office for approval by the Office.]

[(h) The Office may take one or both of the following actions to determine if the local ombudsman entity has completed the actions in accordance with an approved plan of correction or approved modified plan of correction:]

~~[(1) request that the local ombudsman entity submit evidence of correction to the Office; or]~~

~~[(2) visit the local ombudsman entity.]~~

~~[(i) The Office:]~~

~~[(1) may conduct a desk review at any time; and]~~

~~[(2) conducts at least one desk review every three months to determine if a local ombudsman entity:]~~

[(A) is in compliance with §88.305(a)(3) and (c)(2) of this chapter (relating to Complaints) and §88.307(a) of this chapter (relating to Requirements Regarding LTC Visits and Submitting Information to the Office); and]

~~[(B) is making progress toward meeting performance measure projections required by §88.405(a) of this chapter (relating to Meeting Performance Measure Projections).]~~

[(j) If the Office identifies an issue of non-compliance or other concern from a desk review, the Office sends the local ombudsman entity and host agency written results of the desk review within 30 days after the Office completes the desk review.]

[(k) Upon request by a local ombudsman entity or host agency, the Office provides technical assistance to a local ombudsman entity or host agency regarding developing a plan of correction or addressing an issue of non-compliance or other concern from a desk review.]

§88.106.Onsite Monitoring of a Local Ombudsman Entity and a Host Agency.

(a) The Office conducts an onsite visit of a local ombudsman entity and a host agency to monitor:

(1) the performance of functions of the Ombudsman Program by a representative of the Office;

(2) the compliance by a local ombudsman entity with Subchapter D of this chapter (relating to Requirements of a Local Ombudsman Entity);

(3) the compliance by a host agency with Subchapter E of this chapter (relating to Requirements of a Host Agency);and

(4) the compliance by a local ombudsman entity and a host agency with Subchapter G of this chapter (relating to Grievances).

(b) The Office conducts at least one onsite visit every three years. An onsite visit includes:

(1) observing and evaluating a visit of a managing local ombudsman to an LTC facility; and

(2) reviewing information regarding a local ombudsman entity's compliance with Subchapter D of this chapter, including documentation regarding:

(A) the training of representatives of the Office;

(B) identification of individual conflicts of interest; and

(C) expenditures for the Ombudsman Program, such as timesheets and evidence supporting mileage reimbursement for representatives of the Office.

(1) selects a date for an onsite visit in consultation with the managing local ombudsman;

(2) notifies the host agency of a scheduled onsite visit at least 30 days before the visit; and

(3) within 45 days after the Office completes an onsite visit, provides to the local ombudsman entity and the host agency a written report that may contain findings and recommendations from the visit.

(d) The host agency must, within 45 days after receipt of the written report described in subsection (c)(3) of this section that contains one or more findings, submit a written plan of correction to the Office that describes:

(1) the action that will be taken to correct each finding; and

(2) the date by which each action will be completed.

(e) Within 45 days after the date the Office receives the plan of correction required by subsection (d) of this section, the Office notifies the local ombudsman entity and host agency of whether the plan is approved or requires modification. If the Office approves the plan, the local ombudsman entity must complete the actions contained in the plan of correction by the dates in the plan. If the Office determines that the plan requires modification, the host agency must submit a modified written plan of correction within a time period determined by the Office for approval by the Office.

(f) To determine if the local ombudsman entity or host agency has completed the actions in accordance with an approved plan of correction or approved modified plan of correction, the Office takes one or more of the following actions:

(1) reviews information in the ombudsman database;

(2) requests that the local ombudsman entity or host agency submit evidence of correction to the Office; and

(3) visits the local ombudsman entity.

(g) If the Office determines that the local ombudsman entity or host agency did not complete an action in accordance with an approved plan of correction or an approved modified plan of correction:

(1) the Office may allow the local ombudsman entity or host agency additional time to complete the action;

(2) HHSC may impose a Level Two sanction in accordance with §213.5 of this title (relating to Compliance with Contractor Responsibilities, Rewards and Sanctions); or

(3) the State Ombudsman may remove the designation of the local ombudsman entity as described in §88.104(c)(2)(B) of this subchapter (relating to Designation of a Local Ombudsman Entity).

(h) If the Office allows a local ombudsman entity additional time to complete an action as described in subsection (g)(1) of this section and the Office determines that the local ombudsman entity or host agency did not complete the action within the time allowed:

(1) HHSC may impose a Level Two sanction in accordance with §213.5 of this title; or

(2) the State Ombudsman may remove the designation of the local ombudsman entity as described in §88.104(c)(2)(B) of this subchapter.

(i) Upon request by a local ombudsman entity or host agency, the Office provides technical assistance to a local ombudsman entity or host agency regarding developing a plan of correction.

§88.107.Desk Review Monitoring of a Local Ombudsman Entity.

(a) The Office conducts a desk review of a local ombudsman entity to determine if the local ombudsman entity:

(1) is in compliance with §88.305(a)(3) and (c)(2) of this chapter (relating to Complaints) and §88.307(a) of this chapter (relating to Requirements Regarding LTC Facility Visits and Submitting Information to the Office);

(2) is making progress toward meeting:

(A) performance measures required by §88.405(a)(3) - (6) of this chapter (relating to Performance Measures); and

(B) performance measure projections required by §88.405(b) of this chapter; and

(3) has conducted at least one visit to each LTC facility in the ombudsman service area each quarter of a federal fiscal year as required by the Ombudsman Policies and Procedures Manual.

(b) The Office:

(1) conducts at least one desk review of a local ombudsman entity every three months; and

(2) may conduct a desk review of a local ombudsman entity at any time.

(c) If the Office identifies a finding from a desk review, the Office provides to the local ombudsman entity and the host agency a written report that contains the finding and may include recommendations.

(d) If a local ombudsman entity or host agency receives a written report described in subsection (c) of this section, the host agency, within 14 days after receipt of the report, must submit a written plan of correction to the Office that describes:

(1) the action that will be taken to correct each finding in the report; and

(2) the date by which each action will be completed.

(e) Within 14 days after the date the Office receives the plan of correction required by subsection (d) of this section, the Office notifies the local ombudsman entity and host agency of whether the plan is approved or requires modification. If the Office approves the plan, the local ombudsman entity must complete the actions contained in the plan of correction by the dates in the plan. If the Office determines that the plan requires modification, the host agency must submit a modified written plan of correction within a time period determined by the Office for approval by the Office.

(f) To determine if the local ombudsman entity has completed the actions in accordance with an approved plan of correction or approved modified plan of correction, the Office takes one or more of the following actions:

(1) reviews information in the ombudsman database;

(2) requests that the local ombudsman entity submit evidence of correction to the Office; and

(3) visits the local ombudsman entity.

(g) If the Office determines that the local ombudsman entity did not complete an action in accordance with an approved plan of correction or a modified plan of correction:

(1) the Office may allow the local ombudsman entity additional time to complete the action;

(2) HHSC may impose a Level Two sanction in accordance with §213.5 of this title (relating to Compliance with Contractor Responsibilities, Rewards and Sanctions); or

(3) the State Ombudsman may remove the designation of the local ombudsman entity as described in §88.104(c)(2)(B) of this subchapter (relating to Designation of a Local Ombudsman Entity).

(h) If the Office allows a local ombudsman entity additional time to complete an action as described in subsection (g)(1) of this section and the Office determines that the local ombudsman entity did not complete the action within the time allowed:

(1) HHSC may impose a Level Two sanction in accordance with §213.5 of this title; or

(2) the State Ombudsman may remove the designation of the local ombudsman entity as described in §88.104(c)(2)(B) of this subchapter.

(i) Upon request by a local ombudsman entity or host agency, the Office provides technical assistance to a local ombudsman entity or host agency regarding developing a plan of correction.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on January 18, 2024.

TRD-202400161

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: March 3, 2024

For further information, please call: (512) 438-4281

SUBCHAPTER C. ACCESS BY THE STATE OMBUDSMAN AND REPRESENTATIVES OF THE OFFICE

26 TAC §88.201, §88.202

STATUTORY AUTHORITY

The amendment and new section are authorized by Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services agencies, and Texas Human Resources Code §101A.051, which provides that the HHSC Executive Commissioner shall adopt rules regarding the administration by HHSC of programs and services for older individuals.

The amendment and new section affect Texas Government Code §531.0055 and Texas Human Resources Code, §101A.051.

§88.201.Access to Facilities, Residents, and Resident Records.

(a) The State Ombudsman and a representative of the Office have:

(1) immediate, private, and unimpeded access to enter an LTC facility, in accordance with the Older Americans Act, §712(b)(1)(A) and 45 CFR §1324.11(e)(2)(i):

(A) at any time during a facility's regular business hours or regular visiting hours; and

(B) at a time other than regular business hours or visiting hours, if the State Ombudsman or a certified ombudsman determines access may be required by the circumstances to be investigated;

(2) immediate, private, and unimpeded access to a resident, in accordance with the Older Americans Act, §712(b)(1)(A) and 45 CFR §1324.11(e)(2)(ii); and

(3) access to the name and contact information of a resident representative, if any, when the State Ombudsman or representative of the Office determines the information is needed to perform functions of the Ombudsman Program, in accordance with 45 CFR §1324.11(e)(2)(iii).

(b) Disclosure of information by the State Ombudsman or a representative of the Office related to any complaint, including a description of the circumstances to be investigated, is subject to requirements in the Ombudsman Policies and Procedures Manual related to disclosure of confidential information.

(1) in accordance with the Older Americans Act, §712(b)(1)(B) and 45 CFR §1324.11(e)(2), to all medical, social and other [~~files,~~] records relating to a resident regardless of format, [~~and other information concerning a resident,~~] including an incident report involving the resident, if:

(A) in accordance with 45 CFR §1324.11(e)(2)(iv)(A) or (B), the State Ombudsman or certified ombudsman has the informed consent of the resident or legally authorized representative;

(B) in accordance with the Older Americans Act, §712(b)(1)(B)(i)(II), the resident is unable to communicate informed consent to access and has no legally authorized representative; or

(C) in accordance with 45 CFR §1324.11(e)(2)(iv)(C), such access is necessary to investigate a complaint and the following occurs:

(i) the resident's legally authorized representative refuses to give consent to access to the records, files, and other information;

(ii) the State Ombudsman or certified ombudsman has reasonable cause to believe that the legally authorized representative is not acting in the best interests of the resident; and

(iii) if it is the certified ombudsman seeking access to the records, files, or other information the certified ombudsman obtains the approval of the State Ombudsman to access the records, files, or other information without the legally authorized representative's consent; and

(2) in accordance with 45 CFR §1324.11(e)(2)(v), to the administrative records, policies, and documents of an LTC facility to which the residents or general public have access.

(d) In accordance with 45 CFR §1324.11(e)(2), access by the State Ombudsman and a certified ombudsman to a record, as described in subsection (c) of this section, includes obtaining a copy of the record upon request.

(e) [~~(d)~~] The rules adopted under the Health Insurance Portability and Accountability Act of 1996 (HIPAA), 45 CFR Part 160 and 45 CFR Part 164, subparts A and E, do not preclude an LTC facility from releasing protected health information or other identifying information regarding a resident to the State Ombudsman or a certified ombudsman if the requirements of subsections (a)(3) and (c) of this section are otherwise met. The State Ombudsman and a certified ombudsman are each a "health oversight agency" as that phrase is defined in 45 CFR §164.501.

§88.202.Notification to LTC Facility of Authorization to Access Resident Records.

A certified ombudsman must, at the request of an LTC facility, provide a completed HHSC form "Acknowledgement of Ombudsman Access to Confidential Record" to the facility at the time the certified ombudsman is requesting access to a confidential record concerning a resident from the facility as described in §88.201(c) of this subchapter (relating to Access to Facilities, Residents, and Resident Records).

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on January 18, 2024.

TRD-202400162

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: March 3, 2024

For further information, please call: (512) 438-4281

SUBCHAPTER D. REQUIREMENTS OF A LOCAL OMBUDSMAN ENTITY

26 TAC §88.305, §88.307

STATUTORY AUTHORITY

The amendment and new section affect Texas Government Code §531.0055 and Texas Human Resources Code, §101A.051.

§88.305.Complaints.

(a) A local ombudsman entity must:

(1) ensure that a person is allowed to make a complaint as follows:

(A) in writing, including by email;

(B) in person; and

(2) initiate a complaint if the local ombudsman entity becomes aware of circumstances that may adversely affect the health, safety, welfare, or rights of a resident;

(3) respond to the complainant within two business days after receipt of the complaint, except as provided in subsection (c)(2) of this section regarding a complaint that is an allegation of abuse, neglect, or exploitation of a resident; and

(4) ensure that a certified ombudsman initiates an investigation of a complaint as soon as practicable after receipt of the complaint.

(b) A local ombudsman entity must ensure that a certified ombudsman investigates complaints in accordance with this subsection.

(1) If a certified ombudsman receives a complaint, the certified ombudsman must:

(A) document the nature of the complaint;

(B) determine:

(i) whether the complaint is appropriate for the certified ombudsman to investigate;

(ii) if any attempts have been made to resolve the complaint; and

(iii) the outcome sought by the complainant;

(i) the resident or legally authorized representative communicates informed consent [~~consents~~] to the investigation; [or]

(ii) in accordance with 45 CFR §1324.19(b)(2)(iii), the resident is unable to communicate informed consent and has no legally authorized representative; or [~~and~~]

(iii) in accordance with 45 CFR §1324.19(b)(7), the resident is unable to communicate informed consent to investigate the complaint, has a legally authorized representative, and:

(I) the complaint relates to an action, inaction, or decision of the legally authorized representative that may adversely affect the health, safety, welfare, or rights of the resident;

(II) the certified ombudsman does not have evidence that the resident would object to the complaint being investigated;

(III) the certified ombudsman has reasonable cause to believe that it is in the best interest of the resident to investigate the complaint; and

(IV) the State Ombudsman approves the request of the certified ombudsman to investigate the complaint; and

(D) in accordance with the Ombudsman Policies and Procedures Manual:

(i) seek the informed consent of the resident or legally authorized representative to investigate the complaint; [or]

(ii) determine if authority exists to investigate the complaint because, in accordance with 45 CFR §1324.19(b)(2)(iii), the resident is unable to communicate informed consent and has no legally authorized representative; [.]

(iii) request approval from the State Ombudsman for the certified ombudsman to investigate the complaint by making a referral to the appropriate agency for investigation in accordance with 45 CFR §1324.19(b)(7), if:

(I) the resident has a legally authorized representative;

(II) based on the reasonable belief of the certified ombudsman, the complaint relates to an action, inaction or decision by the legally authorized representative that may adversely affect the health, safety, welfare, or rights of the resident;

(III) the resident is unable to communicate informed consent to investigate the complaint;

(IV) the certified ombudsman does not have evidence that the resident would object to the complaint being investigated; and

(V) the certified ombudsman has reasonable cause to believe that it is in the best interest of the resident to investigate the complaint; and

(iv) document one of the following in the ombudsman database:

(I) whether a resident who is able to communicate informed consent communicated informed consent to investigate the complaint;

(II) whether the legally authorized representative communicated informed consent to investigate the complaint;

(III) whether the certified ombudsman has authority to investigate the complaint without consent because the resident is unable to communicate informed consent and does not have a legally authorized representative; or

(IV) whether the State Ombudsman has given approval to investigate the complaint in accordance with clause (iii) of this subparagraph.

(2) If the complainant is the resident and the certified ombudsman has determined the complaint is appropriate for ombudsman investigation and has obtained informed consent to investigate the complaint or has authority to investigate the complaint in accordance with 45 CFR §1324.19(b)(2)(iii), the certified ombudsman must:

(A) determine what, if any, federal or state law or rule applies to the complaint;

(B) observe the environment of the resident and situations in the LTC facility related to the complaint;

(D) review relevant records, if necessary, including confidential information if consent or other authority is obtained in accordance with the Ombudsman Policies and Procedures Manual;

(E) if the complaint relates to a regulatory violation, inform the resident of the option to report the complaint to the appropriate regulatory or law enforcement authority;

(F) work with the resident to develop a plan of action for resolution of the complaint;

(G) encourage the resident to participate in the process to resolve the complaint; and

(H) determine the resident's satisfaction with the outcome of the investigation.

(3) If the complainant is not the resident and the certified ombudsman has determined the complaint is appropriate for ombudsman investigation and has obtained consent to investigate the complaint, the certified ombudsman must:

(A) communicate with the resident about the complaint and obtain the resident's perspective about the complaint, if the resident is able to communicate;

(B) determine what, if any, federal or state law or rule applies to the complaint;

(C) inform the resident or legally authorized representative of the residents' rights and other law related to the complaint;

(D) observe the environment of the resident and situations in the LTC facility related to the complaint;

(E) interview relevant witnesses;

(F) review relevant records, if necessary, including confidential records if consent or other authority is obtained in accordance with the Ombudsman Policies and Procedures Manual;

(G) if the complaint relates to a regulatory violation, inform the resident or the legally authorized representative of the option to report the complaint to the appropriate regulatory or law enforcement authority;

(H) work with the resident or legally authorized representative to develop a plan of action for resolution of the complaint;

(I) encourage the resident or legally authorized representative to participate in the process to resolve the complaint; and

(J) determine the resident's or legally authorized representative's satisfaction with the outcome.

(4) If the complainant is not the resident and the certified ombudsman has determined the complaint is appropriate for ombudsman investigation and has authority to investigate the complaint in accordance with 45 CFR §1324.19(b)(2)(iii), the certified ombudsman must:

(A) determine what, if any, federal or state law, regulation, or rule applies to the complaint;

(B) determine how many residents are potentially affected by the complaint;

(D) interview relevant witnesses;

(E) review relevant records, if necessary, including confidential records if consent or other authority is obtained in accordance with the Ombudsman Policies and Procedures Manual; and

(F) determine whether the complaint is satisfactorily resolved.

(5) As described in paragraph (1)(D)(iii) of this subsection, if the complainant is not the resident and the certified ombudsman requests approval to investigate the complaint by making a referral to the appropriate agency for investigation in accordance with 45 CFR §1324.19(b)(7), the certified ombudsman must:

(A) if the State Ombudsman approves the request:

(i) make the referral to the appropriate agency; and

(ii) determine whether the complaint is satisfactorily resolved; or

(B) if the State Ombudsman does not approve the request, follow the instruction of the State Ombudsman.

(6) [~~(5)~~] If the resident or legally authorized representative declines to consent to have the complaint investigated, the certified ombudsman must:

(A) not investigate the complaint;

(B) inform the complainant that the complaint will not be investigated because the resident or legally authorized representative declined to consent; and

(7) [~~(6)~~] If a certified ombudsman identifies a complaint that affects a substantial number of residents in an LTC facility, the certified ombudsman may investigate and work to resolve the complaint without obtaining consent from each resident to investigate the complaint. In investigating the complaint, a certified ombudsman may review confidential records only if consent or other authority is obtained in accordance with the Ombudsman Policies and Procedures Manual.

(8) [~~(7)~~] A certified ombudsman must document the complaint investigation in the ombudsman database in accordance with the Ombudsman Policies and Procedures Manual.

(1) must not investigate whether abuse, neglect, or exploitation of a resident has occurred;

(2) within one business day after receipt of the complaint, inform the complainant of the appropriate investigative authority to report the allegation; and

(3) comply with the Ombudsman Policies and Procedures Manual.

(d) In accordance with 45 CFR §1324.11(e)(3)(iv), a representative of the Office must not, except as provided in §1324.19(b)(5) - (8), report allegations of abuse, neglect, or exploitation under state law, including Texas Human Resources Code, Chapter 48, without appropriate consent or court order.

(e) Confidential information described in §88.304(a) of this subchapter (relating to Disclosure of Confidential Information; Exclusion from Reporting Requirements Regarding Abuse, Neglect, or Exploitation; and Provision of Records to the Office) may only be disclosed in accordance with §88.304 of this subchapter.

§88.307.Requirements Regarding LTC Facility Visits and Submitting Information to the Office.

(a) A local ombudsman entity must ensure each LTC facility in the ombudsman service area is visited by a certified ombudsman in accordance with the Ombudsman Policies and Procedures Manual during each federal fiscal year to:

(1) monitor residents' health, safety, welfare, and rights; and

(2) receive, investigate, and resolve complaints on behalf of residents.

(b) A local ombudsman entity must submit activities and casework, as described in the Ombudsman Policies and Procedures Manual, to the Office by entering information into the ombudsman database within 14 days after completion of the activity or receipt of a complaint. [~~by 8:00 a.m. on:~~]

~~[(1) the 16th day of each month if the 16th is a business day; or]~~

~~[(2) if the 16th day of the month is not a business day, the first business day immediately following the 16th.]~~

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on January 18, 2024.

TRD-202400163

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: March 3, 2024

For further information, please call: (512) 438-4281

26 TAC §88.309

STATUTORY AUTHORITY

The repeal is authorized by Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services agencies, and Texas Human Resources Code §101A.051, which provides that the HHSC Executive Commissioner shall adopt rules regarding the administration by HHSC of programs and services for older individuals.

The repeal affects Texas Government Code §531.0055 and Texas Human Resources Code, §101A.051.

§88.309.Grievances Regarding Performance of a Representative of the Office or Certification Decisions by the State Ombudsman.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on January 18, 2024.

TRD-202400164

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: March 3, 2024

For further information, please call: (512) 438-4281

SUBCHAPTER E. REQUIREMENTS OF A HOST AGENCY

26 TAC §§88.403 - 88.409

STATUTORY AUTHORITY

The amendments and new sections authorized by Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services agencies, and Texas Human Resources Code §101A.051, which provides that the HHSC Executive Commissioner shall adopt rules regarding the administration by HHSC of programs and services for older individuals.

The amendments and new sections affect Texas Government Code §531.0055 and Texas Human Resources Code, §101A.051.

§88.403.Conflicts of Interest Regarding a Host Agency.

(a) If a host agency, or a governmental entity or nonprofit organization contracting with a host agency, as described in §88.2(19)(B) [~~§88.2(16)(B)~~] of this chapter (relating to Definitions), has an organizational conflict of interest, the host agency must, within 30 days after identifying the conflict of interest:

(1) complete HHSC form "Conflict of Interest Identification, Removal, and Remedy," including a recommended action to:

(A) remove a conflict of interest described in §88.2(29)(A) - (C) [~~§88.2(25)(A) - (C)~~] of this chapter (relating to Definitions); and

(B) remove or remedy a conflict of interest described in §88.2(29)(D) - (L) [~~§88.2(25)(D) - (L)~~] of this chapter; and

(2) submit the completed form to the Office.

(b) A host agency must ensure that HHSC form "Individual Conflict of Interest Screening of a Representative of the Office," is completed by a managing local ombudsman:

(1) at least once a year; and

(2) if the host agency identifies an individual conflict of interest involving the managing local ombudsman.

(c) Within five business days after identifying an individual conflict of interest regarding a managing local ombudsman, the host agency must:

(1) complete HHSC form "Conflict of Interest Identification, Removal, and Remedy," including a recommended action to remove or remedy the conflict of interest; and

(2) submit the completed form to the Office.

(d) If the Office receives a completed form described in subsection (a) or (c) of this section, the State Ombudsman reviews the form and approves, modifies, or rejects the recommended action to remove or remedy the conflict of interest.

(1) If it is not possible to remove or remedy an organizational conflict of interest of the host agency, the State Ombudsman removes the designation of the local ombudsman entity, as described in §88.104(c)(2)(A) of this chapter (relating to Designation of a Local Ombudsman Entity).

(2) If it is not possible to remove or remedy an individual conflict of interest of the managing local ombudsman, the State Ombudsman refuses to initially certify or terminates certification of the managing local ombudsman as described in §88.103(a)(2) and (d)(4) of this chapter (relating to Refusal, Suspension, and Termination of Certification of an Ombudsman).

§88.404.Provision of Records to the Office, Disclosure of Confidential Information, and Allegations of Abuse, Neglect, or Exploitation.

(a) In accordance with the Older Americans Act, §712(d)(2)(A) and 45 CFR §1324.13(e)(1), the State Ombudsman has the sole authority to make determinations concerning the disclosure of confidential information, as described in §88.304(a) of this chapter (relating to Disclosure of Confidential Information, Exclusion from Reporting Requirements Regarding Abuse, Neglect, and Exploitation, and Provision of Records to the Office).

(b) A request to disclose written confidential information is responded to in accordance with this subsection.

(1) If a person who is not a representative of the Office but works for a host agency or governmental entity or nonprofit organization contracting with a host agency, as described in §88.2(19)(B) [~~§88.2(16)(B)~~] of this chapter (relating to Definitions), receives a request to disclose written confidential information, as described in §88.304(a) of this chapter, the host agency must ensure that the State Ombudsman is immediately:

(A) notified of the request; and

(B) provided any communication from the requestor.

(2) If the State Ombudsman receives a request to disclose written confidential information, the State Ombudsman:

(A) sends written acknowledgement of receipt of the request to the host agency;

(B) reviews the request and responds to the requestor within a time frame required by applicable state or federal law; and

(c) A host agency must ensure that, except as provided in 45 CFR §1324.19(b)(5) - (8), a representative of the Office is not required to report allegations of abuse, neglect, or exploitation under state law, including Texas Human Resources Code, Chapter 48, without appropriate consent or court order.

(d) A host agency must, at the request of the Office, immediately provide Ombudsman Program records that do not contain confidential information, such as timesheets and evidence supporting mileage reimbursement for representatives of the Office, to the Office. §88.405.Performance Measures.

(a) The performance measures of a local ombudsman entity are described in this subsection.

(1) The number of certified ombudsmen who will, during a federal fiscal year:

(A) conduct visits at LTC facilities; and

(B) identify and investigate complaints.

(2) The percentage of complaints that will be resolved or partially resolved in a federal fiscal year.

(3) The number of visits to assisted living facilities by certified ombudsmen that will occur during a federal fiscal year, as required by the Ombudsman Policies and Procedures Manual.

(4) The number of visits to nursing facilities by certified ombudsmen that will occur during a federal fiscal year, as required by the Ombudsman Policies and Procedures Manual.

(5) Compliance with the complaint response requirements described in §88.305(a)(3) and §88.305(c)(2) of this chapter (relating to Complaints).

(6) Compliance with the requirement described in §88.307(b) of this chapter (relating to Requirements Regarding LTC Facility Visits and Submitting Information to the Office).

(7) Compliance with the minimum expenditure requirement described in §88.406(a) of this subchapter (relating to Requirements Regarding Expenditures for the Ombudsman Program).

(b) A host agency must work with the local ombudsman entity to develop projections for the performance measures described in subsection (a)(1) - (2) of this section for a federal fiscal year and submit the projections to the Office by July 31st of each year using the HHSC form "Ombudsman Performance Measure Projections." The Office reviews a form submitted by the host agency and approves the form or recommends modifications to the form. If the Office recommends modifications to the form, the host agency must submit a revised form to the Office for approval within a time period determined by the Office.

(c) A host agency must ensure that a local ombudsman entity, by the end of each federal fiscal year, meets the performance measure projections approved by the Office as described in subsection (b) of this section by:

(1) being within a variance of minus ten percent of the projections; or

(2) exceeding the projections.

(d) A host agency must ensure that a local ombudsman entity, by the end of each federal fiscal year, meets the performance measures required by subsection (a)(3) - (6) of this section by:

(1) being within a variance of minus ten percent of the measures; or

(2) exceeding the measures.

(e) A host agency must ensure that a local ombudsman entity, by the end of each federal fiscal year, meets or exceeds the performance measure required by subsection (a)(7) of this section.

§88.406.Requirements Regarding Expenditures for the Ombudsman Program.

(a) A host agency must, for the Ombudsman Program implemented by a local ombudsman entity, expend for a federal fiscal year at least the amount of federal funds expended in the federal fiscal year 2019 [~~2000~~]. In determining the amount of funds expended, the host agency may include all funds except the state general revenue funds allocated to the host agency described in §88.105(b)(3) of this chapter (relating to Fiscal Management of a Local Ombudsman Entity).

(b) A function of the Ombudsman Program performed by a local ombudsman entity that is paid for with funds allocated by HHSC must be an allowable activity in accordance with the Ombudsman Policies and Procedures Manual.

(c) A purchase of a service, material, equipment, or good by a host agency for the Ombudsman Program implemented by a local ombudsman entity with funds allocated by HHSC must meet the criteria described in 45 CFR Part 75 [~~(relating to Uniform Administrative Requirements, Cost Principles, and Audit Requirements for HHS Awards)~~].

§88.407.Requirement for Approval of Ombudsman Staffing Plan Form.

(a) The Office sends a host agency an Ombudsman Staffing Plan form on or about July 31st of each year.

(b) A host agency must complete and submit the Ombudsman Staffing Plan form sent to the host agency by the Office as specified in the form.

(c) The Office reviews a completed Ombudsman Staffing Plan form submitted by the host agency and notifies the host agency in writing of whether the form is approved. If the form is not approved by the Office, a host agency may submit a revised form to the Office.

(d) The Office will not reimburse a host agency for expenditures made by the host agency for Ombudsman Program functions until the Office approves an Ombudsman Staffing Plan form submitted by the host agency.

§88.408.Prohibition of Interference and Retaliation by a Host Agency.

(a) A host agency must not:

(1) willfully interfere with the State Ombudsman or a representative of the Office performing any of the functions of the Ombudsman Program, which includes:

(A) prohibiting a representative of the Office from:

(i) commenting or recommending changes, as described in §88.302(a)(1)(F) of this chapter (relating to Requirement to Ensure a Representative of the Office Performs Functions of the Ombudsman Program);

(ii) submitting comments to the Office regarding proposed legislation; or

(iii) responding to a question from a legislator or the media regarding a problem that pertains to an LTC facility or service, or to the health, safety, welfare, and rights of residents; and

(B) requiring a representative of the Office to obtain approval from the host agency before submitting testimony at a legislative hearing;

(2) retaliate against the State Ombudsman or a representative of the Office:

(A) with respect to a resident, employee of an LTC facility, or other person filing a complaint with, providing information to, or otherwise cooperating with, a representative of the Office; or

(B) for performance of the functions, responsibilities, or duties described in 45 CFR §1324.13 and §1324.19 and this chapter; or

(3) have personnel policies or practices that prohibit a representative of the Office from performing the functions of the Ombudsman Program or from adhering to the requirements of the Older Americans Act, §712.

(b) A host agency must ensure that a governmental entity or nonprofit organization contracting with a host agency, as described in §88.2(19)(B) of this chapter (relating to Definitions), complies with subsection (a) of this section as if the entity or organization is a host agency.

(1) comments or recommendations made in accordance with §88.302(a)(1)(F) of this chapter; and

(2) subject to disclosure requirements in §88.304 of this chapter (relating to Disclosure of Confidential Information; Exclusion from Reporting Requirements Regarding Abuse, Neglect, or Exploitation; and Provision of Records to the Office):

(A) information being sent to a legislator or the media regarding a problem or concern about a resident or a recommendation related to the problem or concern, as described in §88.302(a)(2)(A)(ii) of this chapter; and

(B) a response to a request for information from a legislator or the media, as described in §88.302(a)(2)(C) of this chapter.

§88.409.Noncompliance by a Host Agency.

(a) If the Office determines that a host agency is not in compliance with this subchapter and the determination is not based on onsite monitoring or a desk review, the Office sends the local ombudsman entity and host agency a written notice describing the determination of non-compliance.

(b) If a local ombudsman entity or host agency receives a written notice described in subsection (a) of this section, the host agency, within 14 days after the date of the receipt of the notice, must submit a written plan of correction to the Office that describes:

(1) the action that will be taken to correct the noncompliance described in the notice; and

(2) the date by which each action will be completed.

(c) Within 14 days after the date the Office receives the plan of correction required by subsection (b) of this section, the Office notifies the local ombudsman entity and host agency of whether the plan is approved or requires modification. If the Office approves the plan, the host agency must complete the actions contained in the plan of correction by the dates in the plan. If the Office determines that the plan requires modification, the host agency must submit a modified written plan of correction within a time period determined by the Office for approval by the Office.

(d) To determine if the host agency has completed the actions in accordance with an approved plan of correction or approved modified plan of correction, the Office takes one or more of the following actions:

(1) reviews information in the ombudsman database;

(2) requests that the host agency submit evidence of correction to the Office; and

(3) visits the host agency or local ombudsman entity.

(e) If the Office determines that the host agency did not complete an action in accordance with an approved plan of correction or a modified plan of correction:

(1) the Office may allow the host agency additional time to complete the action;

(2) HHSC may impose a Level Two sanction in accordance with §213.5 of this title (relating to Compliance with Contractor Responsibilities, Rewards and Sanctions);

(3) HHSC may impose a Level Three sanction in accordance with §213.5 of this title; or

(4) the State Ombudsman may remove the designation of the local ombudsman entity as described in §88.104(c)(2)(B) of this chapter (relating to Designation of a Local Ombudsman Entity).

(f) If the Office allows a host agency additional time to complete an action as described in subsection (e)(1) of this section and the Office determines that the host agency did not complete the action within the time allowed, HHSC may:

(1) impose a Level Two sanction in accordance with §213.5 of this title;

(2) impose a Level Three sanction in accordance with §213.5 of this title; or

(3) the State Ombudsman may remove the designation of the local ombudsman entity as described in §88.104(c)(2)(B) of this chapter.

(g) Upon request by a local ombudsman entity or host agency, the Office provides technical assistance to a local ombudsman entity or host agency regarding developing a plan of correction.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on January 18, 2024.

TRD-202400165

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: March 3, 2024

For further information, please call: (512) 438-4281

26 TAC §88.405, §88.407

STATUTORY AUTHORITY

The repeals are authorized by Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services agencies, and Texas Human Resources Code §101A.051, which provides that the HHSC Executive Commissioner shall adopt rules regarding the administration by HHSC of programs and services for older individuals.

The repeals affect Texas Government Code §531.0055 and Texas Human Resources Code, §101A.051.

§88.405.Meeting Performance Measure Projections.

§88.407.Prohibition of Interference and Retaliation by a Host Agency.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on January 18, 2024.

TRD-202400166

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: March 3, 2024

For further information, please call: (512) 438-4281

SUBCHAPTER F. REQUIREMENTS OF HHSC

26 TAC §88.501

STATUTORY AUTHORITY

The amendment affects Texas Government Code §531.0055 and Texas Human Resources Code, §101A.051.

§88.501.HHSC Responsibilities Regarding Individual Conflicts of Interest.

(a) For purposes of determining if the State Ombudsman or a representative of the Office has an individual conflict of interest, the state of Texas is the ombudsman service area.

(b) HHSC requires an applicant for the position of State Ombudsman to complete HHSC form "Individual Conflict of Interest Screening of a Representative of the Office" to identify an individual conflict of interest of the applicant.

(c) HHSC requires the State Ombudsman to complete HHSC form "Individual Conflict of Interest Screening of a Representative of the Office" on or about January 15th of each year and if the State Ombudsman identifies an individual conflict of interest.

(d) The Executive Commissioner or designee reviews a form completed by an applicant or the State Ombudsman as described in subsection (b) or (c) of this section to determine if an identified conflict of interest can be removed or remedied.

(e) Except as provided in subsection (f) of this section, HHSC does not employ the State Ombudsman or a representative of the Office who has an individual conflict of interest.

(f) HHSC may employ the State Ombudsman or a representative of the Office who has an individual conflict of interest described in §88.2(16)(K), [~~§88.2(14)(K),~~] (L), or (O) of this chapter (relating to Definitions) if:

(1) the Executive Commissioner or designee approves a remedy for the conflict of interest of the State Ombudsman; or

(2) the State Ombudsman approves a remedy for the conflict of interest of a representative of the Office.

(g) HHSC ensures that no person involved in selecting or terminating the State Ombudsman has an individual conflict of interest.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on January 18, 2024.

TRD-202400167

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: March 3, 2024

For further information, please call: (512) 438-4281

SUBCHAPTER G. GRIEVANCES

26 TAC §§88.601 - 88.603

STATUTORY AUTHORITY

The new sections are authorized by Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services agencies, and Texas Human Resources Code §101A.051, which provides that the HHSC Executive Commissioner shall adopt rules regarding the administration by HHSC of programs and services for older individuals.

The new sections affect Texas Government Code 531.0055 and Texas Human Resources Code, §101A.051.

§88.601.Grievances Regarding Performance of a Representative of the Office Who is an Employee, Independent Contractor, or Volunteer of a Host Agency, Including a Managing Local Ombudsman.

(a) A grievance regarding the performance of functions of the Ombudsman Program by a representative of the Office, other than a grievance about the managing local ombudsman, is addressed in accordance with this subsection. A host agency must ensure that a local ombudsman entity complies with this section.

(1) The local ombudsman entity must:

(A) ensure that a grievance may be submitted:

(i) in writing, in person, or by telephone; and

(ii) anonymously;

(B) request, but not require disclosure of, the name and contact information of a grievant;

(D) document the name of the person who conducted the investigation required by subparagraph (F)(ii) of this paragraph;

(E) document the name of persons contacted during the investigation; and

(F) within 30 days after receiving the grievance:

(i) notify the representative of the Office who is the subject of the grievance that a grievance was submitted;

(ii) investigate the grievance;

(iii) develop a proposed response to the grievant, including actions to be taken, if any; and

(iv) submit the following information to the Office:

(I) the information described in subparagraphs (C) - (E) of this paragraph;

(II) a description of the activities conducted during the investigation; and

(III) the proposed response to the grievant as required by clause (iii) of this subparagraph.

(2) If the Office receives the information regarding a grievance described in paragraph (1)(F)(iv) of this subsection, the State Ombudsman:

(A) reviews the information; and

(B) approves or modifies the proposed response to the grievant developed by the local ombudsman entity.

(3) The local ombudsman entity must send a response to the grievant as approved or modified by the State Ombudsman.

(b) A grievance regarding the performance of functions of the Ombudsman Program by a managing local ombudsman is addressed in accordance with this subsection.

(1) A grievance about the managing local ombudsman must be submitted to the Office.

(2) If the Office receives a grievance about a managing local ombudsman, the Office, within 90 days after receiving the grievance:

(A) investigates the grievance;

(B) informs the host agency of the actions to be taken, if any; and

§88.602.Grievances Regarding the Performance of the State Ombudsman or a Representative of the Office Who is an Employee or Volunteer of HHSC.

(a) A grievance regarding the performance of functions of the Ombudsman Program by the State Ombudsman is addressed in accordance with this subsection.

(1) A grievance about the State Ombudsman that is not related to fraud, waste, or abuse must be submitted to the Director of the Office of the Ombudsman.

(2) A grievance about the State Ombudsman related to fraud, waste, or abuse must be submitted to the Office of the Inspector General.

(b) A grievance regarding the performance of functions of the Ombudsman Program by a representative of the Office who is an employee or volunteer of HHSC is addressed in accordance with this subsection.

(1) The State Ombudsman:

(A) ensures that a grievance may be submitted:

(i) in writing, in person, or by telephone; and

(ii) anonymously;

(B) requests, but does not require disclosure of, the name and contact information of a grievant;

(D) documents the name of persons contacted during the investigation; and

(E) within 30 days after receiving the grievance:

(i) notifies the representative of the Office who is the subject of the grievance that a grievance was submitted;

(ii) investigates the grievance; and

(iii) develops and submits a response to the grievant, including actions to be taken, if any.

(2) The State Ombudsman submits a grievance about a representative of the Office who is an employee or volunteer of HHSC related to fraud, waste, or abuse to the Office of the Inspector General.

§88.603.Grievances Regarding Certification Decisions by the State Ombudsman.

If the State Ombudsman refuses, suspends, or terminates certification of a representative of the Office, the person whose certification was refused, suspended, or terminated may file a grievance to request that the State Ombudsman reconsider the decision to refuse, suspend, or terminate certification in accordance with this section.

(1) To request a grievance under this section, the grievant must complete HHSC form "Grievance Regarding Ombudsman Certification Decision" and submit the completed form to the Office within 30 days of a decision.

(2) If the Office receives a completed form described in paragraph (1) of this section, the State Ombudsman:

(A) reviews the form;

(B) determines whether the decision to refuse, suspend, or terminate certification is affirmed, modified, or reversed;

(D) takes any necessary action in accordance with the determination.

(3) In accordance with 45 CFR §1324.11(e)(7), the State Ombudsman makes the final determination regarding the refusal, suspension, or termination of certification of a representative of the Office.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on January 18, 2024.

TRD-202400168

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: March 3, 2024

For further information, please call: (512) 438-4281