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) adopts 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.
The amendments to §§88.101, 88.305, 88.307, new §§88.106, 88.107, 88.202, 88.405, 88.407, 88.409, 88.601, 88.602, and 88.603, and repeal of §§88.309, 88.405, and 88.407 are adopted without changes to the proposed text as published in the February 2, 2024, issue of the Texas Register (49 TexReg 466). These rules will not be republished.
The amendments to §§88.2, 88.102, 88.104, 88.105, 88.201, 88.403, 88.404, 88.406, and 88.501, and new §88.408, are adopted with changes to the proposed text as published in the February 2, 2024, issue of the Texas Register (49 TexReg 466). These rules will be republished.
BACKGROUND AND JUSTIFICATION
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 adopted 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 adopted rules also provide that, at the discretion of the State Ombudsman, 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 response to a public comment, the adopted rules add a nursing facility component to the funding formula for allocation of state general revenue funds to allow for a more equitable distribution of funds to host agencies.
The adopted 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 rules address 45 CFR §1324.11(e) and §1324.19(b) regarding documentation of consent.
The adopted 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 (LTC) facility upon request.
The adopted rules include the term "informed consent," including a description of how informed consent may be given, to be consistent with 45 CFR Part 1324.
In response to a public comment, the adopted rules add a definition of "incident report" to clarify the meaning of the term.
The adopted rules require a certified ombudsman to, at the request of an LTC 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 adopted 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 adopted 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 adopted 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 adopted 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 adopted 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 adopted 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 adopted 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 adopted 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 adopted 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 adopted 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 adopted 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, and the process for investigating a complaint about the conduct of a legally authorized representative. In response to a public comment, the adopted rules incorporate the process for documentation of consent related to accessing a resident record, and investigating a complaint, including disclosing confidential information to investigate the complaint.
The adopted rules restructure and reorganize some rules to consolidate subject matter. The adopted rules repeal several rules and replace them with new rules.
COMMENTS
The 31-day comment period ended March 4, 2024.
During this period, HHSC received comments from nine commenters, including a representative of the North Central Texas Council of Governments, Texas Caregivers for Compromise, Texas Assisted Living Association, Capital Area Council of Governments, Leading Age of Texas, South East Texas Council of Governments, the Dallas County local ombudsman entity, family member advocates, and a nursing facility resident. A summary of comments relating to the rules and HHSC responses follows.
Comment: Commenters expressed support for the Ombudsman Program and the proposed rules. Commenters expressed support for several amendments and additions to the definitions in §88.2; the amendments to the description of the records a representative of the Office has access to and a representative of the Office's access to obtain a copy of a record in §88.201; the process for an LTC facility, upon request, to receive a form confirming the certified ombudsman's consent to access a confidential record in §88.202; and a certified ombudsman's requirement to comply with the Ombudsman Policies and Procedures Manual (OPPM) regarding complaints of abuse, neglect, or exploitation in §88.305. Commenters also expressed support for changes made to make the rules to make consistent with federal law and regulations and for changes made for reorganization and clean-up purposes.
Response: HHSC appreciates the support.
Comment: Two commenters suggested that certain new policies in the rules be included in the OPPM rather than in Texas Administrative Code (TAC). One commenter expressed concern that describing requirements in TAC will limit the ability of the State Ombudsman to make changes to the requirements.
Response: HHSC did not make changes to the rules in response to this comment. The commenters did not specify which policies they suggest be included in the OPPM instead of the rules. The amendments and new rules in Chapter 88 address or clarify topics and processes currently in the rules.
Comment: One commenter stated that "informed consent" has a specific meaning within federal regulations other than those related to the Ombudsman Program and recommended that if this term is needed in the rules, it should be defined in the rules.
Response: HHSC declines to make changes in response to this comment. The rules include the term "informed consent" in various sections and define the term in §88.2(16), renumbered as §88.2(17), to be consistent with 45 CFR Part 1324.
Comment: Two commenters requested amending the definition of "informed consent" in §88.2(16), renumbered as §88.2(17), by adding language to identify the action the person is consenting to.
Response: HHSC declines to make the requested change because the rules include a description of the action that the person is consenting to when this term is used. For example, in §88.201(c) informed consent allows a certified ombudsman to access a resident's records. In §88.305(b), informed consent allows a certified ombudsman to investigate a complaint regarding a resident.
Comment: One commenter requested that, based on federal regulations, the rules be revised to allow informed consent to be communicated in writing, orally, visually, or through the use of auxiliary aids and services and to require informed consent to be documented by an ombudsman.
Response: HHSC agrees with the commenter and revised the definition of "informed consent" in §88.2(16), renumbered as §88.2(17), to provide that informed consent may be communicated in writing, orally, visually, or through the use of auxiliary aids and services. Section 88.305(b)(1)(D)(iv) requires a certified ombudsman to document information about consent obtained to investigate a complaint. Although §620(f) of the OPPM requires a certified ombudsman to document consent for a certified ombudsman to access a resident record and disclose confidential information, HHSC revised rules in Chapter 88 to include these requirements. Specifically, HHSC revised §88.201 to add a new subsection (e) to require a certified ombudsman to document information about consent obtained to access a resident record and revised §88.305(b)(2) to add new subparagraph (E) and §88.305(b)(3) to add new subparagraph (G) to require a certified ombudsman to document information about consent to disclose confidential information to investigate a complaint.
Comment: One commenter recommended including a person who was an applicant for a position at an LTC facility in the definition of an "individual conflict of interest" in §88.2(18). The commenter expressed concern that this person, if later hired as an ombudsman for the LTC facility, could retaliate or harass the person hired for the facility position.
Response: HHSC declines to make the requested change. The definition of an "individual conflict of interest" in §88.2(18) is based on 45 CFR §1324.21(c). Further, the situation presented by the commenter does not constitute a conflict of interest but may be a performance concern that should be brought to the attention of the certified ombudsman's supervisor.
Comment: One commenter requested that, in §88.104(d), the notification from the Office to the local ombudsman entity and host agency of a decision to remove the designation of a local ombudsman entity include the rationale for the decision.
Response: HHSC agrees with the comment and revised §88.104(d) to provide that the Office includes the reasons for the decision to remove the designation of a local ombudsman entity in the written notification of the decision to the local ombudsman entity and host agency.
Comment: Two commenters requested that §88.105(b)(3) be revised to include the number of nursing facilities in the ombudsman service area and in the ombudsman service area located in a rural area as factors upon which state funding for a host agency is based. One commenter explained that the current formula disadvantages regions without assisted living facilities. The other commenter explained that since the rule allows state funds to be used for both nursing facilities and assisted living facilities, the funding formula should have a factor for both settings.
Response: HHSC agrees with the commenters and revised §88.105(b)(3)(A) and (B) to include the number of nursing facilities in the ombudsman service area and the number of nursing facilities in the ombudsman service area located in a rural area as factors upon which state general revenue funding for a host agency is based.
Comment: One commenter requested that §88.105(b) be revised to provide that host agencies are allocated federal funding under Title VII and Title III-B of the Older Americans Act in the amounts required to fulfill the minimum expenditure requirements in §88.405(e) and §88.406(a). The commenter also requested that §88.105(b) be revised to provide that host agencies are allocated any additional Title VII funding and state general revenue needed to provide additional ombudsman services beyond what the minimum expenditure requirements would accomplish.
Response: HHSC declines to make changes in response to this comment because the requested change requires additional analysis and stakeholder input.
Comment: One commenter requested that HHSC allow state general revenue funds described in §88.105(b)(3) that are restricted for use in assisted living facilities to be used for ombudsman functions performed in assisted living facilities and nursing facilities.
Response: HHSC declines to make the changes in response to this comment. Prior to the effective date of these rules, the Office prohibited host agencies from using state general revenue funding described in §88.105(b)(3) for the performance of ombudsman program functions in nursing facilities. Beginning the effective date of these rules, host agencies may use state general revenue funds for the performance of ombudsman program functions in nursing facilities and assisted living facilities. The Office informed host agency representatives of this change during a Texas Association of Regional Councils Meeting in September 2023 and will issue a memo with more specific information to all host agencies in September 2024.
Comment: One commenter expressed opposition to §88.106(g) and §88.107(g), which allow HHSC to impose a level two or level three sanction if a host agency or local ombudsman entity does not complete an action in accordance with an approved plan of correction. The commenter was concerned that allowing HHSC to sanction a host agency by restricting the host agency's ability to draw down administrative funds would impact the host agency's ability to provide services. Also, the commenter stated that administrative funds cannot be used for the Ombudsman Program and, therefore, a sanction restricting a host agency's ability to draw on administrative funds could decimate Title-III community based-services on the basis of unrelated Ombudsman Program issues. The commenter indicated that failure of the local ombudsman entity to comply with a plan of correction should be addressed by the Office, not the host agency. The commenter recommended that HHSC not be allowed to impose sanctions but instead remove the designation of a local ombudsman entity for failing to complete an action in accordance with an approved plan of correction.
Response: HHSC declines to make changes in response to the comment. HHSC is authorized under 26 TAC §213.5 to impose sanctions for failure of a host agency to complete an action in accordance with an approved plan of correction. The provisions in §88.106(g) and §88.107(g) allowing HHSC to impose a level two or level three sanction for such failure are a clarification of current HHSC authority in 26 TAC §213.5. Removing HHSC authority in 26 TAC §213.5 to impose sanctions for failure of a host agency to complete an action in accordance with an approved plan of correction is outside the scope of this rule project. The position of HHSC is that removal of a local ombudsman entity's designation is a more severe penalty than imposition of a level two or level three sanction. Removal of a local ombudsman entity's designation prevents the local ombudsman entity from providing any Ombudsman Program services and results in residents of long-term facilities in the local ombudsman entity's service area being deprived of certified ombudsman assistance. In addition, while the Office has programmatic oversight of the Ombudsman Program, 45 CFR §1324.17(a) provides that the host agency is responsible for personnel management. Because the issues that may result in sanctions relate to personnel performance, the host agency is responsible for resolving these issues. Host agencies are allowed a percentage of allocated funds for administrative costs and these funds may be used to support the Ombudsman Program.
Comment: One commenter recommended including in §88.107(i) the timeframe for which the Office will provide technical assistance to a local ombudsmen entity or host agency related to a plan of correction.
Response: HHSC declines to make this requested change because the amount of time the Office needs to provide technical assistance to a local ombudsmen entity or host agency will vary depending on the request.
Comment: One commenter recommended revising §88.201(c)(1) to remove a reference to an incident report as an example of resident record that a certified ombudsman may access from an LTC facility and prevent a certified ombudsman from obtaining an incident report from an LTC facility. The commenter expressed concern that an incident report is not defined in the rules and that the term "incident report" could refer to a variety of documents. The commenter stated that a certified ombudsman's access to incident reports is not included in federal regulations or statute. The commenter asserted that incident reports are quality assurance documents and, therefore, are excepted from disclosure requirements. The commenter further expressed concern that an incident report may include information about a resident other than the resident who gave consent to the certified ombudsman to obtain the report. The commenter stated that, to obtain information about an incident at an LTC facility, a certified ombudsman should request HHSC Form 3613-A from HHSC Long-term Care Regulation because LTC facilities report incidents to HHSC on that form. The commenter stated that certified ombudsmen accessing incident reports is irresponsible as it encourages certified ombudsmen to involve themselves in lawsuits.
Response: HHSC agrees with the commenter's suggestion to define "incident report" and has added a definition of "incident report" to §88.2, based on the definition of "incident" in §554.101(53). HHSC declines to revise §88.201(c)(1) to prevent a certified ombudsman from obtaining an incident report from an LTC facility or remove a reference to an incident report as an example of resident record that an ombudsman may access from an LTC facility. The provision in §88.201(c)(1) allowing the State Ombudsman and a certified ombudsman immediate access to all medical, social, and other records relating to a resident, regardless of format if certain criteria are met, is based on the Older Americans Act, §712(b)(1)(B) and 45 CFR §1324.11(e)(2). An incident report is a record relating to a resident. HHSC disagrees with the commenter's statement that incident reports are quality assurance documents and, therefore, are not subject to disclosure. Based on the state court decision of Parkview Nursing and Rehabilitation Center v. Texas Department of Aging and Disability Services, 03-11-00480-CV (Tex. App. 2014), an incident report may be reviewed by a quality assessment and assurance committee, but it is not created by or a product of the committee and, therefore, is not a record of the committee.
Regarding the commenter's concern that an incident report may include information about a resident other than the resident who gave consent to the certified ombudsman to obtain the report, an LTC facility may redact the name and information of any resident for whom the certified ombudsman does not have consent. Regarding the commenter's concern that the certified ombudsman would be encouraged to become involved in a lawsuit by obtaining an incident report, ombudsmen are rarely involved in lawsuits but, a certified ombudsman's responsibility to investigate and resolve complaints is not preempted by a potential involvement in litigation.
Comment: Several commenters expressed support for a certified ombudsman's access to incident reports in §88.201(c)(1). These commenters expressed opposition to any changes that would make resident records less available to a certified ombudsman. The commenters said that a certified ombudsman's access to an incident report is not a new provision in the rules. Two commenters asserted that the state has the ability to create more specific rules than what is in federal regulation. These commenters stated that they have experience with an LTC facility withholding records and concern that removal of the term "incident report" will allow LTC facilities to attempt to withhold records.
Response: HHSC appreciates the statement of support for a certified ombudsman to access an incident report.
Comment: Several commenters expressed concerns regarding the requirement in §88.202 for a certified ombudsman, upon request, to provide a form to an LTC facility confirming the certified ombudsman's consent to access a confidential resident record. One commenter stated that the form should only be used to document an ombudsman's access to a resident record, including an incident report. Two commenters expressed concern that the HHSC form would require a witness, certification, notary, or third-party notification or approval by an administrator or corporate office and impede a certified ombudsman's investigation. One commenter stated that facilities will need to be trained on the new form.
Response: HHSC did not make changes to the rules in response to these comments. The requirement in §88.202 was added to help to ensure a record of the request for access exists when a certified ombudsman provides a form to an LTC facility, upon request, at the time the certified ombudsman is requesting access to a confidential record concerning a resident. The Office will create a simple form for a certified ombudsman to use. The form will not require a witness, notary, or third-party notification. As provided by §88.202, the form is provided only when requesting access to a confidential record of a resident. Completing the form will not delay or impede a certified ombudsman's investigation. HHSC plans to provide training to LTC facilities on the requirement regarding the form in §88.202.
Comment: One commenter requested that §88.305(b)(2)(F), renumbered as §88.305(b)(2)(G), be revised to allow plans of action for complaint resolution to be shared with LTC facilities, upon request by a facility, and that the shared plans of action not contain information identifying a complainant.
Response: HHSC declines to make the requested change. A plan of action to resolve a complaint required by §88.305(b)(2)(F), renumbered as §88.305(b)(2)(G), is a confidential Ombudsman Program record and may only be disclosed to an LTC facility in accordance with §88.305(b).
Comment: One commenter requested that §88.305(b)(3)(G) be revised to require a certified ombudsman to inform the resident or legally authorized representative of the option to report a potential crime to the appropriate regulatory or law enforcement agency.
Response: HHSC did not make changes in response to this comment. HHSC declines to require ombudsmen to routinely determine if a complaint relates to a potential crime because certified ombudsmen may not have the knowledge base to make that determination.
Comment: One commenter requested that HHSC revise §88.305(b)(5)(A)(ii) to require a certified ombudsman to report the resolution of a complaint to HHSC and the LTC facility.
Response: HHSC declines to make the requested change. Complaint resolution information is a confidential ombudsman program record and may only be disclosed to an LTC facility in accordance with consent and disclosure requirements.
Comment: One commenter requested that HHSC revise §88.405(a)(5) to require a certified ombudsman to report the number of complaints that did not result in regulatory violations or violations of law.
Response: HHSC declines to make a change in response to this comment. Section 88.405 addresses performance measures for local ombudsman entities and subsection (a)(5) of that section is a performance measure for a local ombudsman entity to comply with the complaint response requirements described in §88.305(a)(3) and §88.305(c)(2). Requiring a local ombudsman entity to report the number of complaints that did not result in regulatory violations or violations of law is not a performance measure.
Comment: One commenter requested that HHSC revise §88.405(a)(3) and (4) to allow host agencies to develop their own performance measure regarding number of visits to LTC facilities instead of complying with the minimum visit requirements in the OPPM. The commenter stated that the Ombudsman Program is the only Older Americans Act program in Texas that has performance measures not based on funding and that performance measures should be based on the amount of funding provided to a host agency. The commenter expressed concern that the minimum visit requirements in the OPPM prevent a host agency from complying with §88.405(b) to develop their own projections for the performance measures in §88.405(a)(3) and (4) regarding visits to LTC facilities.
Response: HHSC declines to make changes in response to this comment. The performance measures in §88.405(a)(3) and (4) are indirectly based on the funding a host agency receives. The performance measure regarding number of required visits is based on the number of LTC facilities in a host agency's service area and the funding allocated to a host agency is based on the number of LTC facilities in a host agency service area. In addition, §88.405(b) requires a host agency to develop its own projection for the performance measures §88.405(a)(1) and (2) but does not require a host agency to develop a projection for the performance measures in §88.405(a)(3) and (4) because those performance measures are established in the OPPM.
Comment: One commenter requested that HHSC revise §88.405(b) to include the Office of the Area Agencies on Aging (OAAA) in the approval of projections of performance measures developed by the host agency to provide consistency in the review and approval of a host agency's performance measure projections for all Older Americans Act services. Also, the commenter requested that §88.405(b) be revised to give host agencies the opportunity to appeal a rejection of a performance measure projection to the OAAA.
Response: HHSC declines to make a change in response to the comment. The State Ombudsman's authority to approve or not approve a host agency's performance measure projects is based on 45 CFR §1324.13 and §1324.11(e)(1)(iii), which gives the State Ombudsman the responsibility to establish standards for the administration of the Ombudsman Program, including monitoring the performance of the local ombudsman entities.
Comment: One commenter requested that HHSC revise §88.406(a) to allow HHSC to waive, as needed, the requirement that a host agency must, for the Ombudsman Program, expend for a federal fiscal year at least the amount of federal funds expended as required by the Older Americans Act, §306(a)(9). Further, the commenter requested that HHSC revise §88.405(e) to allow a variance of minus 10 percent of the performance measure in §88.405(a)(7) regarding the minimum expenditure requirement.
Response: HHSC declines to make changes in response to this comment. The minimum expenditure requirement in §88.406(a) implements §306(a)(9) of the Older Americans Act, which requires an Area Agency on Aging's (AAA) (host agency's) area plan to provide an assurance that, in carrying out the State Long-Term Care Ombudsman program, the AAA (host agency) will expend not less than the total amount of funds appropriated under this Act and expended by the AAA (host agency) in fiscal year 2019 in carrying out such a program. The Older Americans Act does not allow for any exceptions to the requirement in §306(a)(9).
Comment: One commenter asked for clarification regarding 45 CFR §1321.9(c)(2)(vii)(A).
Response: The federal regulation at 45 CFR §1321.9(c)(2)(vii)(A) concerns Ombudsman Program minimum expenditure requirements for a state agency and is outside the scope of this rule project.
Comment: One commenter requested that HHSC revise §88.406(a) to either allow flexibility for state funding to be counted toward the amount of funds expended for the Ombudsman Program for a federal fiscal year or to include the new language in 45 CFR §1321.9(c)(2)(vii)(A) regarding minimum expenditures by state agencies. Further, the commenter suggested that §88.406(a) be revised to replace the year 2019 with a reference to §306(a)(9) of the Older Americans Act.
Response: HHSC agrees with the commenter and revised §88.406(a) to provide that the State Ombudsman has discretion to determine an amount of state general revenue funds that may be included to meet the minimum expenditure requirement. Further, HHSC revised §88.406 to use a reference to the Older Americans Act §306(a)(9) instead of the specific federal fiscal year.
Comment: One commenter suggested rewording §88.408(a)(2)(A) because the language requires a grammatical change.
Response: HHSC declines to make the requested change. Section 88.408(a)(2)(A) is grammatically correct and provides that "A host agency must not retaliate against the State Ombudsman or a representative of the Office 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."
In addition to the changes made to the rules in response to comments, HHSC made changes to the rules that are not in response to comments. HHSC revised the definition of "individual conflict of interest" in §88.2(17)(B), renumbered as §88.2(18)(B), to provide that a conflict of interest may include a person having an ownership or investment interest in "an association of LTC facilities, HCSSAs, or DAHS facilities" in addition to having an ownership or investment interest in an LTC facility, a HCSSA, a DAHS facility. HHSC revised the definition in §88.2(17)(C), renumbered as §88.2(18)(C), to provide that a conflict of interest may include a person managing or being employed in "an association of LTC facilities, HCSSAs, or DAHS facilities" in addition to managing or being employed in an LTC facility, a HCSSA, a DAHS facility. HHSC revised the definition in §88.2(17)(L), renumbered as §88.2(18)(M), to provide that a conflict of interest may include a person "having management responsibility for, or operating under the supervision of, a person with management responsibility for adult protective services, as described in Texas Human Resources Code, Chapter 48." These changes were made to be consistent with §712(f)(1)(C)(iii) of the Older Americans Act and 45 CFR §1324.21(c).
SUBCHAPTER A. PURPOSE AND DEFINITIONS
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.
§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) facility or LTC facility staff;
(B) a governmental entity, including a health and human services agency; or
(C) any other person who provides care or makes decisions related to a resident.
(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
(C) an institution of higher education, as defined in Texas Education Code, §61.003.
(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) HCSSA--Home and community support services agency. An entity licensed in accordance with Texas Health and Safety Code Chapter 142.
(13) HHSC--The Texas Health and Human Services Commission or its designee.
(14) 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) in an ombudsman service area.
(15) Incident report--A document created by an LTC facility about an abnormal event involving a resident, including an accident or injury.
(16) Immediate family member--A member of the same household or a relative with whom there is a close personal or significant financial relationship.
(17) 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. Informed consent may be communicated in writing, orally, visually, or through the use of auxiliary aids and services.
(18) 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, a DAHS facility, or an association of LTC facilities, HCSSAs, or DAHS facilities;
(C) managing or being employed in an LTC facility, a HCSSA, a DAHS facility, or an association of LTC facilities, HCSSAs, or DAHS facilities;
(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;
(M) having management responsibility for, or operating under the supervision of, a person with management responsibility for adult protective services as described in Texas Human Resources Code, Chapter 48;
(N) being a resident;
(O) being a member of a board or council that represents the interests of an LTC facility; or
(P) having an immediate family member who meets any of the descriptions in subparagraphs (A) - (O) of this paragraph.
(19) 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.
(20) 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.
(21) 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.
(22) 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.
(23) 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
(C) oversees the statewide implementation of the Ombudsman Program.
(24) 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.
(25) 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.
(26) 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.
(27) 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.
(28) 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;
(C) documentation related to the budget and expenditures for the Ombudsman Program; and
(D) information contained in the ombudsman database.
(29) 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.
(30) 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;
(C) having responsibility for licensing, surveying, or certifying LTC facilities;
(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.
(31) PASRR--Preadmission Screening and Resident Review. A review performed in accordance with 42 CFR Part 483, Subpart C.
(32) 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.
(33) Representative of the Office--A staff ombudsman, volunteer ombudsman, or ombudsman intern.
(34) Resident--A person of any age who resides in an LTC facility.
(35) 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;
(C) manage financial matters; or
(D) receive notifications.
(36) 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
(C) is an employee or independent contractor of:
(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.
(37) 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).
(38) 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
(C) is not an employee or independent contractor of:
(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.
(39) 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 adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on May 2, 2024.
TRD-202401973
Karen Ray
Chief Counsel
Health and Human Services Commission
Effective date: May 22, 2024
Proposal publication date: February 2, 2024
For further information, please call: (512) 438-4281
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.
§88.102.Certification of an Ombudsman.
(a) The State Ombudsman initially certifies a person described in §88.2(36)(C)(i) or (ii) of this chapter (relating to Definitions) as a staff ombudsman, 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.
(c) The State Ombudsman initially certifies a person as a volunteer ombudsman if:
(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(36)(C)(iii) of this chapter as a staff ombudsman 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(20)(B) of this chapter (relating to Definitions):
(1) has an organizational conflict of interest described in §88.2(30)(A) - (C) of this chapter; or
(2) has an organizational conflict of interest described in §88.2(30)(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).
(c) The State Ombudsman may remove the designation of a local ombudsman entity if:
(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:
(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 plan of correction or an approved modified plan of correction as required by:
(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 and includes the reasons for the decision in the notification.
(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 (relating to Appeal Procedures for Area Agency on Aging Contractors).
§88.105.Fiscal Management 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 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). Annually, a host agency is allocated:
(1) a base amount of $3,000 from federal funds appropriated or otherwise available for the Ombudsman Program;
(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) state general revenue funds for the performance of Ombudsman Program functions based on the following factors:
(A) the number of assisted living facilities and nursing facilities in the ombudsman service area on or about July 1 of each year;
(B) the number of assisted living facilities and nursing 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.
The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on May 2, 2024.
TRD-202401974
Karen Ray
Chief Counsel
Health and Human Services Commission
Effective date: May 22, 2024
Proposal publication date: February 2, 2024
For further information, please call: (512) 438-4281
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.
§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.
(c) The State Ombudsman and a certified ombudsman have immediate access:
(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 records relating to a resident regardless of format, 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 the medical, social, and other records;
(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 medical, social, and other records the certified ombudsman obtains the approval of the State Ombudsman to access the medical, social, and other records, 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) In accordance with the Ombudsman Policies and Procedures Manual, a certified ombudsman must document one of the following in the ombudsman database:
(1) whether a resident who is able to communicate informed consent communicated informed consent for the ombudsman to access a record described in subsection (c)(1) of this section;
(2) whether the legally authorized representative communicated informed consent to access a record described in subsection (c)(1) of this section;
(3) whether the certified ombudsman has authority to access a record described in subsection (c)(1) of this section without consent because the resident is unable to communicate informed consent and does not have a legally authorized representative; or
(4) whether the State Ombudsman has given approval to access a record described in subsection (c)(1) of this section accordance with subsection (c)(1)(C) of this section.
(f) 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.
The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on May 2, 2024.
TRD-202401975
Karen Ray
Chief Counsel
Health and Human Services Commission
Effective date: May 22, 2024
Proposal publication date: February 2, 2024
For further information, please call: (512) 438-4281
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 agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on May 2, 2024.
TRD-202401976
Karen Ray
Chief Counsel
Health and Human Services Commission
Effective date: May 22, 2024
Proposal publication date: February 2, 2024
For further information, please call: (512) 438-4281
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 agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on May 2, 2024.
TRD-202401977
Karen Ray
Chief Counsel
Health and Human Services Commission
Effective date: May 22, 2024
Proposal publication date: February 2, 2024
For further information, please call: (512) 438-4281
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.
§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(20)(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(30)(A) - (C) of this chapter (relating to Definitions); and
(B) remove or remedy a conflict of interest described in §88.2(30)(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(20)(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) sends a copy of the response to the host agency.
(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.
§88.406.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 as required by the Older Americans Act, §306(a)(9). In determining the amount of funds expended, the host agency may include all funds except, in the discretion of the State Ombudsman, an amount of 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). The State Ombudsman will notify host agencies of the specific amount of state general revenue funds to be excepted from the determination of funds expended by a communication published on the Long-Term Care Ombudsman website.
(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.
§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(20)(B) of this chapter (relating to Definitions), complies with subsection (a) of this section as if the entity or organization is a host agency.
(c) A host agency may require a representative of the Office to notify the host agency of:
(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.
The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on May 2, 2024.
TRD-202401978
Karen Ray
Chief Counsel
Health and Human Services Commission
Effective date: May 22, 2024
Proposal publication date: February 2, 2024
For further information, please call: (512) 438-4281
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 agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on May 2, 2024.
TRD-202401979
Karen Ray
Chief Counsel
Health and Human Services Commission
Effective date: May 22, 2024
Proposal publication date: February 2, 2024
For further information, please call: (512) 438-4281
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.
§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(17)(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 adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on May 2, 2024.
TRD-202401980
Karen Ray
Chief Counsel
Health and Human Services Commission
Effective date: May 22, 2024
Proposal publication date: February 2, 2024
For further information, please call: (512) 438-4281
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 agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on May 2, 2024.
TRD-202401981
Karen Ray
Chief Counsel
Health and Human Services Commission
Effective date: May 22, 2024
Proposal publication date: February 2, 2024
For further information, please call: (512) 438-4281