The new section is adopted under Texas Human Resources Code §101.021, which provides the Texas Department on Aging with the authority to promulgate rules governing the operation of the Department.

§260.11. Ombudsman Services.

(a)

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

(1)

Advocacy - Actions by or on the behalf of individuals and/or groups to ensure that they receive the benefits and services to which they may be entitled, and to ensure that their rights guaranteed by law are protected and enforced.

(2)

Advocacy plan - An action plan developed to address the needs and quality of care issues of residents that are developed at the state, regional and individual nursing facility levels.

(3)

Assisted Living Facility - An establishment, including a board and care home, that furnishes, in one or more facilities, food and shelter to four or more persons who are unrelated to the proprietor of the establishment and provides personal care services under the scope of Health and Safety Code, Chapter 247.

(4)

Certified volunteer ombudsman - An individual who has been recommended by a local program and approved by the State Long-Term Care Ombudsman to serve as an advocate for long-term care facility residents and participate in the ombudsman program.

(5)

Clients or recipients of services - Persons who reside in long-term care facilities.

(6)

Contractor - The performing agency in a contract with the Department. The word contractor when used in this rule and related policies and procedures is synonymous with grantee or other entities as defined by the Board on Aging, Texas Department on Aging.

(7)

Conflict of interest - Status of an individual applying to be a certified volunteer ombudsman must be revealed to the Office of the State Long-Term Care Ombudsman and resolved prior to service. A conflict of interest exists if an individual applying to be a certified volunteer ombudsman or an immediate family member (first degree of consanguinity or affinity) of that individual has any one or more of the following:

(A)

direct involvement in the licensing or certification of a long-term care facility or of a provider of a long-term care service;

(B)

ownership or direct investment interest in a long-term care service;

(C)

employed by or participates in the management of a long-term care facility;

(D)

receives or has the right to receive, directly or indirectly, remuneration under a compensation arrangement with an owner or operator of a long-term care facility; or

(E)

has a family member residing in a long-term care facility in which the representative is assigned or provides advocacy.

(8)

Department - The Texas Department on Aging, the single state agency for Older Americans Act programs.

(9)

Friends & Family Visitor - A volunteer who has a relationship with the local ombudsman entity but who does not participate in complaint resolution. A Friends & Family Visitor receives orientation and training as prescribed by the Office but does not receive certification, is not a representative of the Office and shall not have access to resident records. This is an optional program operated at the discretion of the local ombudsman entity.

(10)

In-service - A planned educational effort conducted or coordinated by professional staff or certified volunteers.

(11)

Local ombudsman entity - An area agency on aging or other entity, as defined by the Board on Aging, Texas Department on Aging, which is responsible for implementation of all aspects of the local ombudsman entity as defined in these rules.

(12)

Long-term care facility - A facility that is licensed or regulated or that is required to be licensed or regulated by the Texas Department of Human Services. See nursing facility/home and assisted living facility.

(13)

Managing local ombudsman - The professional staff person at the regional level who directs the local ombudsman entity.

(14)

Nursing facility/home - An establishment that furnishes, in one or more facilities, food and shelter to four or more persons who are unrelated to the proprietor of the establishment; and provides minor treatment under the direction and supervision of a physician licensed by the Texas State Board of Medical Examiners, or other services that meet some need beyond the basic provision of food, shelter, and laundry. The nursing facility is under the scope of Health and Safety Code, Chapter 242 and may also be certified to participate in the Medicaid Title XIX program.

(15)

Office - The Office of the State Long-Term Care Ombudsman, an independent division of the Texas Department on Aging.

(16)

Ombudsman intern - A volunteer who has been admitted to the local training program as a potential certified volunteer ombudsman.

(17)

Professional - Refers to an individual who has obtained a four-year bachelor degree in aging-related areas or human services, or has equivalent qualifying experience as a substitute for a degree. Such substitution shall be consistent with the employing entity's personnel policies.

(18)

State Long-Term Care Ombudsman, also known as the State Ombudsman - The person designated by the Executive Director, Texas Department on Aging, as Chief Administrator of the Office of the State Long-Term Care Ombudsman, in accordance with the requirements of the Older Americans Act, §712(a)(2) regarding expertise and experience. The State Ombudsman is accountable to the Executive Director, Texas Department on Aging, for program and personnel matters.

(b)

Legal Authority.

(1)

Ombudsman Rules are promulgated under the authority of Texas Human Resources Code, Chapter 101, and the Older Americans Act of 1965, Chapter VII, as amended.

(2)

The Board on Aging of the Texas Department on Aging shall make policy decisions regarding these rules and define service priorities, which shall include advocacy in long-term care facilities licensed or facilities providing care that are required to be licensed, by the Texas Department of Human Services.

(c)

Purpose. The purpose of this rule is to assure the development and operation of a program, which advocates for the rights of residents and their families to receive the highest quality of care in long-term care facilities.

(d)

Philosophy. Persons who are unable to care for themselves are entitled to dependable and consistent care that includes:

(1)

a safe and healthy environment;

(2)

satisfaction of nutritional needs;

(3)

medical services, including physical, mental and psychosocial rehabilitation;

(4)

an environment that promotes and maintains the individual's dignity, self-determination, communication and protection of individual rights.

(e)

Eligibility. Residents of long-term care facilities aged 60 and above are eligible for Ombudsman services. Residents who are under 60 years of age and require advocacy services may be served if the advocacy effort benefits 60-year-old and older residents.

(f)

Responsibilities of contractors to operate local ombudsman entities. Contractors shall be either an area agency on aging or an entity defined by the Board on Aging, Texas Department on Aging. The local ombudsman entity shall:

(1)

be an organization with a responsive and visible presence in its region. It shall:

(A)

be an expert and reliable source of information for families seeking information on long-term care placement or general requests for assistance;

(B)

have a visible and active presence in the nursing facility sufficient for clients and families to have access to ombudsman services that promote or improve quality of care and that result in the timely identification and resolution of complaints and concerns; The local Ombudsman entity may establish affiliations with other volunteer groups to exchange information and identify advocacy needs to support facility coverage.

(C)

coordinate with state, regional and local agencies and be recognized as an active member in the continuum of care in the communities it serves;

(D)

have a mutually positive referral relationship with the Texas Department of Human Services and the Texas Department of Protective and Regulatory Services; and

(E)

be a catalyst for community involvement in long-term care facilities and be viewed as a credible source of information for the community, the regulatory system, and the nursing home industry;

(2)

shall appoint the managing local ombudsman who shall meet the requirements of a professional. Two years of direct services to the elderly or experience in ombudsman services, advocacy, dispute resolution, or volunteer management are preferred. The managing local ombudsman and other local ombudsmen shall be granted access to long-term care facility resident records if consent of the resident or the legal representative of the resident is obtained or as permitted by §712(b)(1) of the Older Americans Act.

(3)

have adequate staff to manage all aspects of the program and shall designate a professional staff person as the local managing ombudsman. The local ombudsman entity shall be a subdivision of the Office. The managing local ombudsman and other local ombudsmen shall be representatives of the Office;

(4)

establish and maintain a complaint management system that includes as a minimum:

(A)

obtain or provide training to interns and certified volunteer ombudsmen on handling complaints and dispute resolution;

(B)

have an intake process for receiving complaints;

(C)

have a written process for certified volunteer ombudsmen to identify and investigate complaints and concerns with referral to local ombudsmen when assistance is needed;

(D)

have a written process for equitably resolving complaints; and

(E)

have a process for reporting complaint activity as required by the local ombudsman entity and the Office;

(F)

have a written process to assure that complaint and client-oriented material remain confidential and is protected from unauthorized access from persons outside of the ombudsman program and their immediate supervisor.

(5)

establish a process to identify and remove conflicts of interest as prescribed in procedures established by the Office;

(6)

establish and maintain a volunteer management system in which the local Ombudsman entity shall:

(A)

analyze the number of volunteers needed for administrative duties, other activities, or facility coverage, with the total number of certified ombudsmen being at least the number prescribed by the Legislative Budget Board of the Texas Legislature;

(B)

recruit individuals to become certified volunteer ombudsmen using all appropriate means and conduct appropriate follow-up with individuals who expressed interest;

(C)

process applicants through the completion of an application that contains all minimum information required by the Office. Supervise the completion of certification training and internship; make recommendation for certification of individuals to the State Long-Term Care Ombudsman and assign certified ombudsmen to appropriate long-term care facilities;

(D)

provide state-approved initial certification training and provide 12 hours of local continuing education each federal fiscal year, for each representative of the Office;

(E)

provide state-approved orientation and training for Friends & Family Visitors, if such a program is operated by the local ombudsman entity;

(F)

support and supervise volunteers during their service;

(G)

promote volunteer retention through regular communication, recognition, motivational activities, and feedback of satisfaction with program services;

(H)

establish and use a volunteer grievance and complaint system; and

(I)

develop exit procedures to include input from the volunteers and notification to the Office of inactive status with comments from volunteers and staff ombudsmen.

(7)

assure that residents, families, and complainants have access to ombudsman services during the normal business week at no cost through a toll-free number or acceptance of collect calls with acknowledgement of the receipt of the complaint within twenty-four hours. The telephone number of the local ombudsman entity and the managing local ombudsman shall be listed under the area agency on aging listing in accordance with current Department policy;

(8)

support the formation of family and resident councils in each facility of the region, in an effort to provide advocacy resources to promote quality of care;

(9)

provide informational resources relating to quality of care to residents, family, and staff of each nursing facility in the region. Be available to provide in-service training in long-term care facilities in the region. Certified volunteer or paid ombudsmen may conduct such in-service training;

(10)

coordinate with regional administrators or their designees of the Texas Department of Human Services Long-Term Care Regulatory Services division serving the region at least quarterly, and the Texas Department of Protective and Regulatory Services as needed, to develop efficient referral, communication, and problem-solving procedures;

(11)

participate in survey activities with the Texas Department of Human Services in accordance with the cooperative agreement between the Department and the Texas Department of Human Services;

(12)

submit program performance and other reports in accordance with requirements established by the Office and the Department;

(13)

develop and implement individual nursing facility advocacy plans followed by development and implementation of a regional advocacy plan that is based on an analysis of individual nursing facility advocacy plans and other sources of information and that supports the achievement of the highest levels of quality of care and quality of life for residents;

(14)

promote local awareness of the ombudsman entity through the frequent use of local and regional resources, including the media, in order to provide visibility to the program, to include listing the phrase, "An Advocate for Nursing Facility Residents," in all brochures, publications, and media activities; and

(15)

encourage coordination with citizen, membership and advocacy organizations to support quality of care and increase community involvement with and awareness of long-term care services.

(g)

Responsibilities of Certified Volunteer Ombudsmen: A certified volunteer shall have successfully completed an internship, or equivalent experience as determined by the Office, and have completed required initial certification training prior to engaging in independent complaint resolution. A certified volunteer ombudsman shall be a representative of the Office.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on February 24, 2000.

TRD-200001391

Gary Jessee

Program Specialist

Texas Department on Aging

Effective date: March 15, 2000

Proposal publication date: December 31, 1999

For further information, please call: (512) 424-6857