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AN ACT
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relating to the office of the state long-term care ombudsman; |
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affecting the prosecution of a criminal offense. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Subchapter F, Chapter 101A, Human Resources |
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Code, is amended to read as follows: |
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SUBCHAPTER F. OFFICE OF STATE LONG-TERM CARE OMBUDSMAN |
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Sec. 101A.251. DEFINITIONS. In this subchapter: |
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(1) "Commission" means the Health and Human Services |
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Commission ["Elderly resident" means a resident of a long-term care
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facility who is 60 years of age or older]. |
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(1-a) "Local ombudsman entity" means a distinct unit |
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or entity, consisting of representatives, designated by the state |
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long-term care ombudsman to carry out the ombudsman program in a |
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service area of the state. |
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(2) "Long-term care facility" means a facility that |
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[serves persons who are 60 years of age or older and that] is |
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licensed or regulated or that is required to be licensed or |
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regulated by the commission [department] under Chapter 242 or 247, |
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Health and Safety Code. |
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(3) "Office" means the office of the state long-term |
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care ombudsman, consisting of the state long-term care ombudsman |
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and representatives who are employed by the commission. |
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(3-a) "Ombudsman program" means the program through |
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which the functions and duties of the office are carried out, |
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consisting of the office and all representatives. |
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(4) "Representative" means an employee or volunteer |
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specifically designated by the office as a representative of the |
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office. |
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(4-a) "Resident" means a resident of a long-term care |
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facility. |
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(5) "State long-term care ombudsman" means the chief |
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administrator of the office. |
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Sec. 101A.252. OPERATION OF OFFICE. (a) The office |
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[department] shall operate and is subject to the commission's |
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oversight in accordance with federal and state statute [the office
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of the state long-term care ombudsman]. |
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(b) The commission [department] may operate the office |
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directly or by contract or memorandum of agreement with a public |
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agency or other appropriate private nonprofit organization. The |
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commission, agency, or organization may not implement a policy that |
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prohibits the office from performing its duties under this |
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subchapter. The commission [department] may not use an agency or |
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organization that [is]: |
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(1) is responsible for licensing or certifying |
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long-term care services; [or] |
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(2) is an association of long-term care facilities or |
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of any other residential facility that serves persons with |
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disabilities or who are 60 years of age or older, or that is an |
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affiliate of such an association; or |
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(3) has an ownership, operational, or investment |
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interest in a long-term care facility. |
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(c) The commission [department] shall consider the views of |
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residents [elderly persons], provider organizations, advocacy |
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groups, and area agencies on aging in planning and operating the |
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office. |
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(d) The commission [department] shall ensure that a person |
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involved in designating the state long-term care ombudsman or in |
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designating a [an employee or] representative [of the office] does |
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not have a conflict of interest. |
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Sec. 101A.253. ROLE OF OFFICE. The office and the ombudsman |
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program shall operate in cooperation with any regulatory agency |
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funded and mandated by federal [the Older Americans Act of 1965 (42
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U.S.C. Section 3001 et seq.)] and state statute. |
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Sec. 101A.254. POWERS AND DUTIES OF STATE LONG-TERM CARE |
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OMBUDSMAN AND OFFICE. (a) The [state ombudsman and the] office has |
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[have] the powers and duties authorized and required by state and |
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federal law. |
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(b) The office may use appropriate administrative, legal, |
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and other remedies to assist [elderly] residents as provided by |
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commission [department] rules. |
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(c) The office acts independently of the commission in the |
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performance of its powers and duties under this subchapter. |
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(d) The state long-term care ombudsman has the authority to |
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designate a local ombudsman entity or representative and to suspend |
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or revoke that designation. |
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Sec. 101A.255. OMBUDSMEN. (a) The office shall recruit |
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volunteers and citizen organizations to participate in the |
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ombudsman program. A paid staff member of an area agency on aging |
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network or a nonprofit social service agency may be an ombudsman. |
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An ombudsman is a representative [of the office]. |
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(b) The office shall provide training to ombudsmen as |
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required by this subchapter and federal law. |
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(c) The office shall coordinate ombudsman services with the |
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protection and advocacy systems that exist for persons with |
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developmental disabilities or mental illness. |
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(d) The office shall coordinate ombudsman services with |
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state and local law enforcement agencies and courts of competent |
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jurisdiction. The office is not authorized to compel those law |
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enforcement agencies or courts to coordinate ombudsman services or |
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other activities with the office. |
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Sec. 101A.256. LEGAL COUNSEL [ASSISTANCE]. The commission |
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[department] shall ensure that the office receives adequate legal |
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advice and representation without conflict of interest as defined |
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by the Texas Disciplinary Rules of Professional Conduct. The |
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attorney general shall represent the state long-term care ombudsman |
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and [or] a representative if a suit or other legal action is brought |
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or threatened to be brought against that person in connection with |
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the person's performance of the official duties of the ombudsman |
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program [office]. |
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Sec. 101A.257. INVESTIGATIONS. (a) The office shall have |
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access to [elderly] residents and shall, in accordance with |
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commission rules, investigate and resolve complaints made by or on |
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behalf of [elderly] residents. |
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(b) The state long-term care ombudsman [department] shall |
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ensure that each ombudsman designated under Section 101A.255 who |
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investigates complaints has received proper training and has been |
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approved by the office as qualified to investigate complaints. |
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(c) The office shall investigate a grievance made against a |
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representative in accordance with commission rules and inform the |
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person who made the grievance of the outcome of the investigation |
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when the investigation is concluded. |
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(d) A long-term care facility shall cooperate with an |
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investigation conducted by the state long-term care ombudsman or a |
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representative, including an ombudsman designated under Section |
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101A.255. |
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Sec. 101A.258. ACCESS TO RECORDS AND CONFIDENTIALITY. (a) |
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The state long-term care ombudsman and representatives [or the
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state ombudsman's designee, specifically identified by the
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commissioner,] shall have access to patient care records of |
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[elderly] residents as provided by commission rules. Except as |
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provided by Subsection (b), all [of long-term care facilities as
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provided by Subsection (a-1).
The executive commissioner by rule
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shall establish procedures for obtaining access to the records.
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All] records and information created or obtained by [to which] the |
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state long-term care ombudsman or a representative [the state
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ombudsman's designee obtains access] remain confidential. |
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(a-1) The state long-term care ombudsman and |
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representatives [or the state ombudsman's designee, specifically
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identified by the commissioner,] shall have access to patient care |
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records of a resident [elderly residents of long-term care
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facilities] if: |
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(1) the resident or the resident's legal |
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representative consents to the access; |
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(2) the resident is unable to consent to the access and |
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the resident has no legal representative; or |
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(3) access to the records is necessary to investigate |
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a complaint and: |
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(A) a legal representative [guardian] of the |
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resident refuses to consent to the access; |
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(B) the state long-term care ombudsman or |
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representative [the state ombudsman's designee] has reasonable |
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cause to believe that the legal representative of the resident |
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[guardian] is not acting in the best interests of the resident; and |
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(C) the state long-term care ombudsman approves |
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the access. |
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(b) The office shall ensure that the identity of a |
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complainant or any [facility] resident may be disclosed only with |
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the [written] consent of the person or the person's legal |
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representative or on court order. |
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(c) Files, records, and other information maintained as |
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part of the ombudsman program may be disclosed only at the |
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discretion of the state long-term care ombudsman. [The information
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in files maintained by the office may be disclosed only by the
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ombudsman who has authority over the disposition of the files.] |
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Sec. 101A.259. REPORTING SYSTEM. The office shall maintain |
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a statewide ombudsman uniform reporting system to collect and |
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analyze information relating to complaints and conditions in |
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long-term care facilities as long as such system does not duplicate |
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other state reporting systems. The office shall provide the |
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information to the commission in accordance with federal law |
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[department and the Health and Human Services Commission]. |
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Sec. 101A.260. ANALYSIS OF LAWS. (a) The office shall |
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analyze and monitor the development and implementation of federal, |
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state, and local laws, rules, regulations, and policies relating to |
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long-term care facilities and services and shall recommend any |
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changes the office considers necessary. |
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(b) To the extent necessary to perform any duties under this |
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subchapter, Section 556.006(a), Government Code, and Section |
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391.0116, Local Government Code, do not apply to the state |
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long-term care ombudsman or a representative. |
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Sec. 101A.261. PUBLIC INFORMATION. The office shall |
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provide information and make recommendations to public agencies, |
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legislators, and other persons about [others that relates to] the |
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problems and concerns of [elderly] residents. |
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Sec. 101A.262. [ANNUAL] REPORT. (a) The office shall |
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prepare a [an annual] report that contains: |
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(1) information and findings relating to the problems |
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and concerns [complaints] of [elderly] residents; and |
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(2) policy, regulatory, and legislative |
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recommendations to solve the problems, resolve the concerns |
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[complaints], and improve the quality of the [elderly] residents' |
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care and lives. |
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(b) The report must be submitted to the governor and the |
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presiding officer of each house of the legislature not later than |
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November 1 of each even-numbered year. |
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Sec. 101A.263. LIMITATION OF LIABILITY. The state |
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long-term care [An] ombudsman or a representative is not liable for |
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civil damages or subject to criminal prosecution for performing |
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official duties unless the state long-term care ombudsman or |
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representative acts in bad faith or with a malicious purpose. |
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Sec. 101A.264. CRIMINAL PENALTY. (a) A person commits an |
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offense if the person: |
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(1) by act or omission, wilfully [intentionally] |
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interferes or attempts to interfere with the state long-term care |
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[an] ombudsman or a representative attempting to perform official |
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duties; or |
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(2) commits or attempts to commit an act of |
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retaliation or reprisal against any resident or employee of a |
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long-term care facility for filing a complaint or providing |
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information to the state long-term care [an] ombudsman or a |
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representative. |
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(b) An offense under this section is a Class B misdemeanor. |
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(c) The commission [department] shall ensure [assure] that |
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criminal sanctions will be initiated only after all administrative |
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procedures are exhausted. |
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SECTION 2. Section 101A.264, Human Resources Code, as |
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amended by this Act, applies only to an offense committed on or |
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after the effective date of this Act. An offense committed before |
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the effective date of this Act is governed by the law in effect on |
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the date the offense was committed, and the former law is continued |
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in effect for that purpose. For purposes of this section, an |
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offense was committed before the effective date of this Act if any |
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element of the offense occurred before that date. |
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SECTION 3. This Act takes effect September 1, 2017. |
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______________________________ |
______________________________ |
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President of the Senate |
Speaker of the House |
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I certify that H.B. No. 3564 was passed by the House on May 9, |
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2017, by the following vote: Yeas 145, Nays 0, 2 present, not |
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voting. |
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______________________________ |
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Chief Clerk of the House |
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I certify that H.B. No. 3564 was passed by the Senate on May |
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24, 2017, by the following vote: Yeas 31, Nays 0. |
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______________________________ |
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Secretary of the Senate |
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APPROVED: _____________________ |
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Date |
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_____________________ |
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Governor |