40 TAC §§260.1 - 260.3, 260.11, 260.15, 260.17, 260.19
The Texas Department on Aging (TDoA) adopts the amendments
contained in Chapter 260 (§§260.1-260.3, 260.11, 260.15, 260.17
and 260.19) in accordance with the Government Code, 2001.039. Sections 260.1,
260.3, 260.15, 260.17 and 260.19 are adopted without changes to the proposed
text as published in the March 14, 2003, issue of the
Texas Register
(28 TexReg 2291) and will not be republished. Sections
260.2 and 260.11 are adopted with changes to the proposed text as published
in the March 14, 2003, issue of the
Texas Register
(28 TexReg 2291). The text of the rules will be republished. The changes
were recommended by a workgroup comprised of TDoA staff and Area Agency on
Aging staff. The initial changes were made to remove areas no longer pertinent
and to add areas to bring the rules in compliance with changes in federal
statute.
Changes in the adopted amendments respond to public comments or otherwise
reflect non-substantive variations from the proposed amendments. The following
entities furnished written comments on the proposed amendments: Texas Association
of Area Agencies on Aging (TAAAA) and the South East Area Agency (SETAAA)
on Aging along with the Texas Department on Aging's (TDoA) responses.
§260.2. Area Agency on Aging Fiscal Responsibilities.
§260.2 (i)(6)
Comment from TAAAA: Allow the area agencies on aging to reference all relevant
sections of the Texas Administrative Code that may be reviewed electronically
without physically printing each section and attaching to the contract.
Response: TDoA inserted "reference in the" and removed "attach to the subcontractor/service
provider contract" from the first sentence.
§260.11. Ombudsman Services.
§260.11, (a)(6)
Comment from the TAAAA: Testing should not be mandatory for becoming a
Volunteer Certified Ombudsman because the required testing creates an extra
burden on the Volunteer Ombudsman.
Response: The amendment deletes the words "and test" from the language.
The remaining proposed language "training as prescribed by the office" is
a sufficient structure to assure that volunteers are competent to carry out
the ombudsman function.
§260.11, (f)(F)(4)
Comment from TAAAA: "Require the managing local ombudsman to attend all
continuing education training" should be removed. The number of hours of training
should not exceed those hours required for certification. It is not within
the purview of the State Ombudsman to grant excuses and attendance at Ombudsman
trainings would be determined by funding availability; and the training and
continued education for local managing ombudsman should not exceed the requirement
for the certification.
Comment from SETAAA: The AAA has concerns of the travel costs incurred
in the Ombudsman training given the current budget concerns and hoped combining
four training sessions into one and exploring alternative methods of training
could be effective. The AAA also expressed a concern over the issue of mandatory
compliance and the issuance of excused absences by the Ombudsman office. The
recommendation is that the word "required" and the phrase "if excused from
attending by the Office" be removed from the rule.
Response: Training will be developed and scheduled based on the needs of
the 28 AAA based programs. The Ombudsman division has scheduled two stand-alone
training sessions for AAA Ombudsman staff for 2004. It is anticipated that
AAAs will support Ombudsman staff to participate in these events. Future year
training events will be included both in-person and video/web based events
as technology becomes available and is more cost-effective. Since the change
deletes the entire section, subsequent sections were renumbered.
§260.11, (f)(F)(7)C:
Comment received from TAAAA: The Association asked the following be removed
from the rule "require the completion of a criminal background check of all
volunteer and paid staff ombudsman prior to certification." It was felt TDoA
had not provided a means to obtain the checks, and confidential issues had
not been addressed.
Response: It is the Agency's belief that a background check is necessary
on all new volunteers and staff coming into the program after September 1,
2003 in order to provide the assurances to the public that the Agency is protecting
the rights of vulnerable older persons served by the ombudsman program. The
background checks are similar to the ones already being performed on Certified
Nursing Aides by the Texas Department of Public Safety. Any confidential issues
would be protected by state statute, as enacted by the 78th Texas Legislature.
The Agency will provide the AAAs with a procedure to obtain criminal background
information from the Texas Department of Public Safety.
The amendments are adopted under the Texas Human Resources Code §101.021,
which provides the Texas Department on Aging with the authority to adopt rules
governing the functions of the Department.
§260.2.Area Agency on Aging Fiscal Responsibilities.
(a)
Purpose. An area agency on aging shall demonstrate and
maintain fiscal integrity in order to comply with the requirements of the
Governing Documents as listed in §254.3 of this title (relating to Governing
Documents); all Texas Department on Aging Rules; the Department's policies
related to the Cash Management Improvement Act, 31 Code of Federal Regulations
Part 205, a Treasury-State agreement; and with all state and local laws as
pertains to the financial operation of an area agency on aging. Policies,
procedures, standards, program instructions, and technical assistance memorandums
shall be promulgated by the Department, as necessary, in order to support
and interpret these rules and laws. The Department shall be the final authority
in determining how these interpretations shall pertain to programs for older
persons. The area agency on aging shall comply with the following financial
criteria.
(b)
Purchases. All purchases of service, materials, equipment
and goods made with grant funds shall follow the criteria of allowability
as prescribed in the Uniform Grant Management Standards, as adopted by the
Governor's Office of Budget and Planning, including OMB Circulars A-87 or
A-122, as applicable, and the following.
(1)
All purchases shall have been made by actual receipt of
the service or merchandise or issuance of a purchase contract, voucher, or
other legal document that binds both parties to the transaction, no later
than the last day of the grant period for which funds have been budgeted and
encumbered.
(2)
Actual receipt of the service or merchandise and payment
shall be made prior to the due date of the closeout report for the grant period
for which funds have been budgeted and encumbered.
(3)
Any service or merchandise placed on order in a fiscal
program year, in accordance with subsection (a) of this section and not meeting
the criteria in subsection (b) of this section, shall be paid for with funds
awarded for the fiscal year in which the service or merchandise was actually
received and/or payment made.
(c)
Independent Audit.
(1)
An area agency on aging receiving more than $300,000 in
federal or state funding from all sources shall provide an audit in accordance
with the standards for financial and compliance audits contained in the Standards
for Audit of Governmental Organizations, Programs, Activities and Functions,
issued by the U.S. General Accounting Office; the Single Audit Act of 1984,
including all updates and revisions; the provisions of OMB Circular A-133,
Audits of States, Local Governments, and Nonprofit Organizations, as applicable,
and the Uniform Grant Management Standards.
(2)
The audit shall cover the entire organization and be conducted
in accordance with generally accepted auditing standards. Additionally, audits
shall be conducted in accordance with audit guidelines promulgated by the
Department, or the Single Audit Manager's Forum (SAMF) or other authoritative
source with prior written approval from the Department.
(3)
The area agency on aging shall provide and furnish the
Department with an annual audit by an independent certified public accounting
firm in accordance with OMB Circular A-133 within 30 calendar days following
receipt of such audit, but in no case more than 9 months following the end
of the area agency on aging's fiscal year end that the audit covers.
(4)
An area agency on aging shall require all subcontractors
to adhere to paragraphs (1) and (2) of this subsection, relating to the requirements
for an independent audit in accordance with OMB Circular A-133.
(d)
Indirect Costs Allocation Plan.
(1)
The area agency on aging shall have an Indirect Costs Allocation
Plan approved in accordance with the Uniform Grant Management Standards. Documentation
of compliance with the above must be submitted to the Department for any period
covered under this contract no later than the first of September immediately
proceeding the contract period.
(2)
An Indirect Costs Allocation Plan shall be submitted for
approval to the Department by all area agencies on aging for whom the Department
is the designated state coordination agency, no later than 60 days before
the beginning of the contract period.
(3)
All Indirect Costs Allocation Plans submitted to the Department
for approval must have sufficient detail, as defined by the Department, to
allow proper evaluation of the plan.
(e)
Disallowance of Costs.
(1)
In accordance with OMB Circular A-133 and Uniform Grant
Management Standards, determination shall be made by independent audit and/or
monitoring visit by the Department relating to the allowable use of federal,
state and matching credit funds in accordance with OMB Circulars A-87, A-122
and other applicable laws, regulations and circulars promulgated by recognized
authoritative bodies.
(2)
Costs found to be unallowable, in accordance with those
referenced in paragraph (1) of this subsection, relating to the allowable
use of funds, shall be designated as questioned costs.
(3)
To recover unresolved questioned costs revealed in an audit
or monitoring visit, the Department will send to the area agency on aging
a Letter of Notification of Disallowance with Intent to Recover Costs by certified
or registered mail, return receipt requested within 60 calendar days following
the failure to resolve all such questioned costs. The 60 calendar day period
shall begin the next day following the six months allowed for resolution in
accordance with OMB Circular A-133.
(4)
Notification of disallowance resulting from questioned
costs revealed during an independent audit or monitoring visit shall be issued
by the Department.
(5)
The area agency on aging shall resolve all findings and
questioned costs within six months of receipt of the audit or notice of questioned
costs unless an extension has been granted as directed by the Department.
(6)
The area agency on aging shall be liable to the Department
for any costs disallowed as a result of unresolved questioned costs revealed
during an audit or monitoring visit relating to aging programs and/or expenditures.
(7)
Failure of the area agency on aging to timely secure an
acceptable independent audit from a subcontractor, when required by law, shall
be subject to the disallowance provisions of this section to the same extent
as disallowance based on overpayment of funds or other questioned costs.
(8)
Disallowance resulting from non-receipt of required subcontractor
audits shall be resolved in the same manner as if revealed by an independent
audit or a monitoring visit.
(f)
Recapture of Payments.
(1)
Recapture of payment may occur when costs have been disallowed
by the Department, or if the area agency on aging has received funds in excess
of those actually earned. The Department may take appropriate action including
requiring the repayment of and/or withholding of funds in such cases that
overpayment has occurred.
(2)
Any area agency on aging having funds recaptured because
of a disallowance, in accordance with subsection (e) relating to disallowance,
shall waive all rights to such funds and shall not receive any of the funds
as part of a future allocation.
(g)
Contract Certifications. Certifications required of all
area agencies on aging include but are not limited to:
(1)
Debarment and Suspension.
(A)
The area agency on aging shall not knowingly deal with
any person, business or other entity which has been suspended or debarred
from receiving federal funds under 45 Code of Federal Regulations §76.200,
concerning non-procurement, or 45 Code of Federal Regulations, Part 1229,
Government wide Debarment and Suspension (Non-procurement) and Government
wide Requirements for Drug-Free Workplace (Grants).
(B)
For each federal fiscal year the area agency on aging shall
secure a Certification Regarding Debarment, Suspension, Ineligibility and
Voluntary Exclusion for Covered Contracts and Grants from any potential subcontractor,
of any tier, for which such certification is required, prior to issuing any
award, grant or contract.
(2)
Americans with Disabilities Act. The area agency on agency
shall not purchase services from any subcontractor not in compliance with
the provisions of the Americans with Disabilities Act.
(h)
Budget Submissions.
(1)
An area agency on aging, on an annual basis, shall submit
a budget in a format directed by the Department, which reflects the approved
area plan.
(2)
An amended budget must be submitted to and approved by
the Department prior to implementation of the amended budget.
(3)
Budget submissions shall be due to the Department no later
than 45 days following the date of notification to the area agency on aging.
(i)
Contracting.
(1)
The authority for the area agency on aging to enter into
service provider contracts is based on the Older Americans Act of 1965, as
amended; HHS regulations on Administration of Grants; Title 45 Code of Federal
Regulations, Part 74; Title 45 Code of Federal Regulations, Part 92; Title
45 Code of Federal Regulations, Part 1321, et seq.; Title 45 Code of Federal
Regulations, Part 91; and all policies and rules established by the Department;
and with all state and local laws as they pertain to contracting and reimbursement
methodologies. The area agency on aging and all subcontractors/service providers
shall comply therewith.
(2)
When purchasing services, the area agency on aging shall
use the following cost determination methodologies for the purchase of goods
and services. These methodologies are known as cost reimbursement, performance
based unit rate and variable unit rate.
(A)
Cost Reimbursement. In cost reimbursement contracts, the
area agency on aging pays the subcontractor on a reimbursement basis for services
rendered. Reimbursement shall not be adjusted to offset poor management planning.
Adjustments to the share of expenses that federal and/or state funds will
pay must be requested in writing by the subcontractor/service provider and
may only be considered by the area agency on aging in instances where:
(i)
a subcontractor experiences significant operating losses
due to events over which they have no control or reasonably could not have
anticipated; or
(ii)
a subcontractor experiences excess revenues over operational
costs due to unanticipated, and/or unbudgeted additional resources; or
(iii)
reductions in expenses due to a change in cost allocation
methodology.
(B)
Fixed Unit Rate. In performance based unit rate contracting,
the area agency on aging agrees to pay the subcontractor/service provider
in the amounts and upon the terms, provisions and budgets as set forth in
its contract with the subcontractor/service provider as a result of negotiation
of a suitable unit rate. The subcontractor/service provider agrees to deliver
specific services on an at-risk basis.
(C)
Variable Unit Rate. Variable unit rate contracting allows
for rate variation that is specific to a unit of service. This method would
be used primarily for services such as health maintenance and residential
repair but is not limited to these services.
(3)
Direct Purchase of Services. Direct purchase of services
contracting allows for the purchase of service(s) on a client-by-client basis.
Direct purchase of services requirements are identified in §260.19 of
this title (relating to Direct Purchase of Services).
(4)
Sole Source Procurement. The sole source procurement method
may be used only when the award of a contract is not feasible under the other
procurement methods. In this event, the area agency on aging shall comply
with the procedures established in 45 Code of Federal Regulations Part 92.36(d)(4),
concerning procurement by noncompetitive proposals.
(5)
Competitive Bidding. Area agencies on aging shall comply
with competitive bidding procedures to promote fair and open competition in
the procurement process through the use of formal bidding, informal bidding
or competitive proposals, as appropriate. Documentation shall be maintained
by the area agency on aging to demonstrate all such efforts.
(6)
The area agency on aging shall reference in the subcontractor/service
provider contract, all relevant sections of the Texas Administrative Code
relating to the service(s) provided regardless of the procurement process
used.
(7)
All subcontractor/service provider contracts shall require
a subcontractor/service provider to have an accounting system which identifies
all costs for each specific service being purchased or provided and which
complies with 45 Code of Federal Regulations, Section 1321, Subpart D.
(j)
Service Match.
(1)
In order to meet the match requirements of the Older Americans
Act, 1965, as amended, Section 304(d), area agencies on aging and their service
providers shall provide a minimum of non-federal match funds for the cost
of all Older American Act services.
(2)
The non-federal share of service funding shall be in cash
or in kind.
(3)
In-kind shall be based on fair market value of the services
and goods.
(k)
Area Agency on Aging Administrative Match.
(1)
In order to meet the match requirements of the Older Americans
Act, 1965, as amended, Section 304(d), area agencies on aging shall provide
a minimum of 25% non-federal match funds for the cost of administration of
area plans.
(2)
The non-federal share of service funding shall be in cash
or in kind.
(3)
In-kind shall be based on fair market value of the services
and goods.
(l)
Program Income.
(1)
Program income contributions shall be administered in accordance
with 45 Code of Federal Regulations, Part 1321.67; 45 Code of Federal Regulations,
Part 92.25; and the Uniform Grant Management Standards.
(2)
Cost Reimbursement. Reimbursement shall not be made in
excess of actual allowable expenses less program income received during the
reimbursement period.
(3)
Fixed or Variable Unit Rate. Program income received shall
not be deducted from the amount paid to subcontractor/service provider.
(4)
Direct Purchase of Services. When an area agency on aging
or other designated access and assistance service provider purchases services
using the direct purchase of service methodology, program income must be collected,
accounted for and used to support and enhance services provided by the area
agency on aging.
(m)
Adequate Proportion.
(1)
Each area agency on aging shall establish and meet an adequate
proportion of funding they receive under Title III, Part B, of the Older Americans
Act, 306(a)(2), as amended, for support services in the budget.
(2)
Adequate proportion of funding for support services shall
include each of the following support services categories and their designated
services:
(A)
Services associated with access to services (Transportation,
Information, Referral and Assistance and Care Coordination);
(B)
in-home services (homemaker and home health aides, visiting
and telephone assurance, chore maintenance and supportive services for families
of older individuals who are victims of Alzheimer's disease and related disorders
with neurological and organic brain dysfunction); and
(C)
legal assistance.
(3)
An area agency on aging may propose a change in the local
adequate proportion funding level for any of the support service categories
through written request to the Department prior to the beginning of the fiscal
year.
(4)
An area agency on aging may seek a waiver from the Department
for setting and expending an adequate proportion of Title III, Part B funds
for support service categories.
(A)
At least one public hearing shall be held on the area plan
or area plan amendment containing a request for waiver of adequate proportion.
The area agency on aging shall notify all interested parties in the area of
the public hearing and provide them with an opportunity to testify.
(B)
The area agency on aging shall provide appropriate justification
to demonstrate an adequate supply of a specified support service is available
to meet the needs of the service area.
(C)
Separate waiver requests shall be submitted for each category
of support services for which a waiver is sought.
(n)
Ombudsman Maintenance of Effort. Area agencies on aging
shall meet the requirements for maintenance of effort for ombudsman activities
as defined in the Older Americans Act §306 (a)(9).
§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
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 home 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)
Board--The Board on Aging of the Texas Department on Aging.
(5)
Certified staff ombudsman--An individual who has successfully
completed the required certification training as prescribed by the Office
and who has been recommended by the local ombudsman entity and approved by
the State Long-Term Care Ombudsman to serve as an advocate for long-term care
facility residents and who has been hired by the local ombudsman entity as
paid staff to participate in the administration of the ombudsman program.
A certified staff ombudsman shall be a representative of the Office.
(6)
Certified volunteer ombudsman--An individual who has successfully
completed the required certification training as prescribed by the Office
and who has been recommended by a local ombudsman entity 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. A certified volunteer
ombudsman shall be a representative of the Office.
(7)
Clients or recipients of services--Residents of long-term
care facilities.
(8)
Contractor--The performing entity 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, by rule or order.
(9)
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)
is 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.
(10)
Department--The Texas Department on Aging, the single
state agency for Older Americans Act programs.
(11)
Friendly Visitor--A volunteer who has a relationship with
the local ombudsman entity but who does not participate in complaint resolution.
A Friendly 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.
(12)
In-service--A planned educational effort conducted or
coordinated by professional staff or certified volunteers.
(13)
Local ombudsman entity--An area agency on aging or other
entity, as defined by the Board, by rule or order which is responsible for
implementation of all aspects of the local ombudsman program as defined in
these rules.
(14)
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.
(15)
Managing local ombudsman--The professional staff person
at the regional level who directs the local ombudsman program. A managing
local ombudsman is a certified staff ombudsman and shall be a representative
of the Office.
(16)
Nursing home--An institution that provides organized and
structured nursing care and service, and is subject to licensure under the
Health and Safety Code, Chapter 242.
(17)
Office--The Office of the State Long-Term Care Ombudsman,
an independent division of the Texas Department on Aging.
(18)
Ombudsman intern--A volunteer who has been admitted to
the local training program as a potential certified volunteer ombudsman.
(19)
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.
(20)
State Long-Term Care Ombudsman, also known as the State
Ombudsman--The person designated by the Executive Director of the Department
as Chief Administrator of the Office of the State Long-Term Care Ombudsman,
in accordance with the requirements of the Older Americans Act, regarding
expertise and experience. The State Ombudsman is accountable to the Executive
Director of the Department for program and personnel matters.
(b)
Purpose. The purpose of this rule is to assure the development
and operation of an ombudsman program, which advocates for the rights of residents
and their families to receive the highest quality of care and quality of life
in long-term care facilities and which provides services to assist in protecting
the health, safety and welfare of residents.
(c)
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.
(d)
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.
(e)
Access. The Office shall assure that managing local ombudsmen
and certified staff ombudsmen shall be granted access to long-term care facility
residents and their records if consent of the resident or the legal representative
of the resident is obtained or as permitted by the Older Americans Act and
state statute as defined in Ombudsman procedures.
(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. The local ombudsman entity shall:
(1)
be an organization with a responsive and visible presence
in its region. It shall:
(A)
perform the duties as outlined in the OAA consistent with
these rules and the procedures required by the Office:
(i)
provide services to protect the health, safety, welfare
and rights of residents;
(ii)
ensure that residents have regular, timely access to representatives
of the program and have timely responses to complaints and request for assistance;
(iii)
identify, investigate and resolve complaints made by
or on behalf of residents that relate to action, inaction, or decisions, that
may adversely affect the health, safety, welfare, or rights of the residents;
(B)
be an expert and reliable source of information for families
seeking information on long-term care placement or general requests for assistance;
(C)
have a visible and active presence in long-term care facilities
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. In addition to regular visits by
certified ombudsmen, each licensed nursing home shall be visited a minimum
of one time, and more often as necessary, each year by the managing local
ombudsman of the local ombudsman entity. The local ombudsman entity may establish
affiliations with other volunteer groups to exchange information and identify
advocacy needs to support facility coverage.
(D)
coordinate with state, regional and local agencies and
be recognized as an active member in the continuum of care in the communities
it serves;
(E)
have a mutually positive referral relationship with the
Texas Department of Human Services and the Texas Department of Protective
and Regulatory Services; and
(F)
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)
appoint the managing local ombudsman who shall meet the
requirements of a professional. In addition, two years of direct services
to the elderly or experience in ombudsman services, advocacy, dispute resolution,
or volunteer management are preferred.
(3)
have adequate staff to manage all aspects of the program
and shall designate the managing local ombudsman.
(4)
establish and maintain a complaint management system that
at a minimum shall:
(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 the managing
local ombudsman or his/her designee when assistance is needed;
(D)
have a written process for equitably resolving complaints;
(E)
have a process for reporting complaint activity as required
by the local ombudsman entity and the Office; and
(F)
have a written process to assure that complaint and client-oriented
material remain confidential and is protected from access by unauthorized
persons.
(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, and facility coverage;
(B)
recruit individuals to become certified volunteer ombudsmen
using all appropriate means and conduct appropriate follow-up with individuals
who expressed interest so that the total number of certified staff and volunteer
ombudsmen are at least the number prescribed by the Legislative Budget Board
of the Texas Legislature;
(C)
process applicants through the completion of an application
that contains all minimum information required by the Office to include the
completion of a criminal background check of all volunteer and paid staff
ombudsmen prior to certification. 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 Friendly
Visitors, if such a program is operated by the local ombudsman entity;
(F)
support and supervise volunteers and staff involved in
the local program during their service;
(G)
promote retention through regular communication, recognition,
motivational activities, and feedback of satisfaction with program services;
(H)
establish and use a grievance and complaint system; and
(I)
develop exit procedures to include input from the certified
volunteers and staff who leave the ombudsman program and notification to the
Office of their status with their written comments.
(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 one business day. 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 and resident-centered care to residents, family, and staff of each nursing
home in the region. Be available to provide in-service training in long-term
care facilities in the region. Certified volunteer or paid staff 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 home advocacy
plans followed by development and implementation of a regional advocacy plan
that is based on an analysis of individual nursing home advocacy plans and
other sources of information 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,
"Advocate for Nursing Home 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 ombudsman shall execute the purposes of the ombudsman program as
outlined in this rule and under the supervision of the managing local ombudsman.
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 May 19, 2003.
TRD-200303089
Gary Jessee
Director of the Office of AAA Support and Operations
Texas Department on Aging
Effective date: June 8, 2003
Proposal publication date: March 14, 2003
For further information, please call: (512) 424-6857
40 TAC §260.14, §260.21
The Texas Department on Aging adopts the repeal of §260.14
and §260.21, concerning Corporate Eldercare and Public Hearing Procedures
for Area Agencies on Aging, without changes to the proposed text as published
in the March 14, 2003, issue of the
Texas Register
(28 TexReg 2300) and will not be republished. The rules that are being
repealed outline the requirements for the Corporate Eldercare and Public Hearing
Procedures for Area Agencies on Aging, respectively.
The rules are being repealed as the requirements are included in the Older
Americans Act, making the rules redundant and unnecessary. Area agencies on
aging, through their contract with the Texas Department on Aging, are required
to meet the requirements of the Older Americans Act including the required
assurances.
No comments were received regarding adoption of the rules.
The repeals are adopted under Texas Human Resources Code §101.021,
which provides the Texas Department on Aging with the authority to adopt rules
governing the functions of the Department.
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 May 19, 2003.
TRD-200303088
Gary Jessee
Director of the Office of AAA Support and Operations
Texas Department on Aging
Effective date: June 8, 2003
Proposal publication date: March 14, 2003
For further information, please call: (512) 424-6857