TITLE 26. HEALTH AND HUMAN SERVICES

PART 1. HEALTH AND HUMAN SERVICES COMMISSION

CHAPTER 88. STATE LONG-TERM CARE OMBUDSMAN PROGRAM

The Health and Human Services Commission (HHSC) proposes new Chapter 88, State Long-Term Care Ombudsman Program, consisting of Subchapter A, Purpose and Definitions, §88.1 and §88.2; Subchapter B, Establishment of the Office, §§88.101 - 88.105; Subchapter C, Access by the State Ombudsman and Representatives of the Office, §88.201; Subchapter D, Requirements of a Local Ombudsman Entity, §§88.301 - 88.310; Subchapter E, Requirements of a Host Agency, §§88.401 - 88.407; and Subchapter F, Requirements of HHSC, §§88.501 - 88.502.

BACKGROUND AND PURPOSE

The proposed rules in new Chapter 88 set forth the requirements of the State Long-Term Care Ombudsman Program (Ombudsman Program), which is authorized by §711 and §712 of the Older Americans Act, United States Code, Title 42, §3058f and §3058g. The purpose of the Ombudsman Program is to protect the health, safety, welfare, and rights of residents of nursing facilities and assisted living facilities. The requirements of the Ombudsman Program that are currently in 40 TAC Chapter 85 (relating to Implementation of the Older Americans Act) are proposed for repeal elsewhere in this issue of the Texas Register. New Chapter 88 is proposed for easier use and understanding of rules regarding the Ombudsman Program.

The proposed rules also implement recent changes to §712 of the Older Americans Act and new federal regulations at Title 45, Code of Federal Regulations (CFR), Parts 1321 and 1324. Changes to the Older Americans Act include: a requirement that the State Long-Term Care Ombudsman (State Ombudsman) is responsible for the fiscal management of the Office of the State Ombudsman (Office); authority for the State Ombudsman to investigate complaints on behalf of residents who are unable to communicate consent; clarification that the State Ombudsman and representatives of the Office have private and unimpeded access to facilities, residents, and resident records; and requirements regarding organizational conflicts of interest related to the Office and to governmental entities or non-profit organizations contracting with the State to carry out functions of the Ombudsman Program. The new federal regulations establish new requirements and provide clarification about the Ombudsman Program regarding: enhancing the description of a local ombudsman entity, including that it may be part of a host agency; establishing requirements regarding complaint investigations, including a requirement to involve the resident in the process; requiring the Ombudsman Program to establish a coordination process between the State Ombudsman and a host agency in the employment of representatives of the Office; requiring a grievance process for complaints regarding an ombudsman and decisions made by the State Ombudsman; describing procedures to remedy and remove individual conflicts of interest and organizational conflicts of interest; and excluding the State Ombudsman and representatives of the Office from any State lobbying prohibitions if the prohibitions are inconsistent with the Older Americans Act.

The proposed rules change how the State Long-Term Care Ombudsman (State Ombudsman) distributes federal funds to a host agency for the operation of the Ombudsman Program. Currently, after each host agency has received a base amount of federal funds, remaining federal funds are distributed as follows: 50 percent based on the number of nursing facilities in the local ombudsman entity’s service area, 25 percent based on the number of assisted living facilities in the local ombudsman entity’s service area, and 25 percent based on the number of ombudsmen in the local ombudsman entity’s service area. Proposed rules change this method and require remaining federal funds to be distributed so that 75 percent is based on the number of nursing facilities in the local ombudsman’s service area and 25 percent is based on the number of ombudsmen in the local ombudsman entity’s service area. The proposed rules do not include a percentage of remaining funds being distributed based on the number of assisted living facilities because a host agency currently receives state general revenue funds based solely on the number and type of assisted living facilities in the local ombudsman entity’s service area. Therefore, it is more equitable to base the distribution of remaining federal funds solely on the number of nursing facilities and number of ombudsmen in a local ombudsman entity’s service area.

SECTION-BY-SECTION SUMMARY

Proposed new §88.1 states that the purpose of the chapter is to implement the State Long-Term Care Ombudsman Program as established by the Older Americans Act, §711 and §712; the Code of Federal Regulations, Title 45, Parts 1321 and 1324; and Texas Human Resources Code, Title 6, Chapter 101A, Subchapter F.

Proposed new §88.2 defines relevant terms used in Chapter 88.

Proposed new §88.101 describes the responsibilities of the State Ombudsman, including that the State Ombudsman, directly or through a designee (1) may designate a local ombudsman entity to perform the functions of the Ombudsman Program in an ombudsman service area; (2) certifies ombudsmen and refuses, suspends, and terminates certification; (3) designates local ombudsman entities, and refuses, suspends, or terminates designation; (4) approves the allocation of federal and state funds provided to a host agency for the local ombudsman entity; (5) is responsible for the programmatic oversight of a representative of the Office; and (6) identifies, investigates, and resolves complaints made by or on behalf of residents. The proposed section states that the Office makes decisions independent of HHSC and describes the responsibilities of the Office including (1) analyzing, commenting on, and monitoring the development and implementation of federal, state, and local laws, regulations, and other governmental policies and actions that pertain to long-term care (LTC) facilities and services and to the health, safety, welfare, and rights of residents; (2) recommending any changes in such laws, rules, regulations, policies, and actions as the Office determines to be appropriate; (3) providing information to public and private agencies, legislators, the media, and other persons regarding problems and concerns about residents and providing recommendations related to the problems and concerns; and (4) overseeing and coordinating such activities carried out by representatives of the Office.

Proposed new §88.102 describes the criteria that must be met for the State Ombudsman to initially certify and renew certification of a staff ombudsman, including a managing local ombudsman, and initially certify and renew certification of a volunteer ombudsman.

Proposed new §88.103 describes the circumstances under which the State Ombudsman refuses to certify or renew certification of a staff ombudsman, including a managing ombudsman, and those circumstances under which certification may be suspended. The proposed rule also describes the circumstances under which the State Ombudsman may terminate certification of a certified ombudsman, including that (1) the certified ombudsman is not adequately performing the functions of the Ombudsman Program; (2) the certified ombudsman fails to complete continuing education in accordance with the Ombudsman Policies and Procedures Manual; (3) the certified ombudsman does not disclose an individual conflict of interest regarding the certified ombudsman to the local ombudsman entity or host agency; or (4) an individual conflict of interest regarding the certified ombudsman is not removed or remedied. The proposed rule requires the State Ombudsman to, if the State Ombudsman has a concern about a representative of the Office, inform the local ombudsman entity and, if appropriate, the host agency about the concern and may work with the local ombudsman entity and the host agency to address the concern. The proposed rule states that the State Ombudsman immediately notifies the managing local ombudsman and, if appropriate, the host agency, of a decision to refuse, suspend, or terminate certification of a certified ombudsman.

Proposed new §88.104 allows the State Ombudsman to designate a local ombudsman entity to perform the functions of the Ombudsman Program in an ombudsman service area. The proposed rule prohibits the State Ombudsman from designating a local ombudsman entity if the host agency or a governmental entity or nonprofit organization contracting with the host agency has an organizational conflict of interest described in §88.2(25)(A) - (C) or an organizational conflict of interest described in §88.2(25)(D) - (L) that has not been removed or remedied. The proposed rule describes the circumstances under which the State Ombudsman may remove the designation of a local ombudsman entity and that 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. The proposed rule also describes the process for a host agency to request reconsideration of a decision to remove the designation and that a host agency may appeal the termination in accordance with 40 TAC §81.15.

Proposed new §88.105 allows the State Ombudsman to determine the use of the federal and state funds appropriated for the operation of the Office; approve the allocation of federal and state funds to a host agency for the operation of the Ombudsman Program in accordance with subsection (b) of the section; and determine that Ombudsman Program budgets and expenditures are for an appropriate amount and relate to functions of the Ombudsman Program. The proposed rule describes how the State Ombudsman distributes funds to a host agency for the operation of the Ombudsman Program in accordance with the Older Americans Act, §306(a)(9). The proposed rule states that the Office conducts an onsite visit or a desk review to monitor: the performance of functions of the Ombudsman Program by a representative of the Office; compliance with Subchapter D by a local ombudsman entity; and compliance with Subchapter E by a host agency. The proposed rule also states that the Office conducts an onsite visit at least every three years and describes the activities performed by the Office during the visit. The proposed rule describes how the Office selects a date for onsite visit and states that within 30 days after the Office completes an onsite visit, the Office provides to the local ombudsman entity and the host agency a written report containing findings from the visit. The proposed rule requires the host agency to submit to the Office for approval, within 30 days after receipt of the written report, a written plan of correction that describes the action that will be taken to correct each finding and the date by which each action will be completed. The proposed rules describe the requirements of the host agency if the Office approves the plan of correction or requires modification of the plan, and describes the actions the Office takes to determine if the local ombudsman entity has completed the actions in accordance with an approved plan of correction. The proposed rule also describes the process the Office follows in conducting a desk review and states that technical assistance may be requested by the local ombudsman entity or host agency regarding the monitoring process, findings, and identified concerns from a desk review.

Proposed new §88.201 requires the State Ombudsman and a representative of the Office to have (1) immediate, private, and unimpeded access to enter an LTC facility at any time during a facility’s regular business hours or regular visiting hours and 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; 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. The proposed rule describes the conditions under which the State Ombudsman and a certified ombudsman have immediate access to files, records, and other information concerning a resident. The proposed rule requires the State Ombudsman and a certified ombudsman to have immediate access to the administrative records, policies, and documents of an LTC facility to which the residents or general public have access. The proposed rule also states that the rules adopted under the Health Insurance Portability and Accountability Act of 1996 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 §88.201(a)(3) and (c) are otherwise met and that the State Ombudsman and a certified ombudsman are each a "health oversight agency" as that phrase is defined in 45 CFR §164.501.

Proposed new §88.301 requires, for a person to be certified as a staff ombudsman other than a managing local ombudsman, or to be certified as a volunteer ombudsman, a local ombudsman entity to recommend to the Office that the person be certified, using HHSC form "Certified Ombudsman Application." The proposed rule also describes the criteria that must be met for the local ombudsman entity to make such a recommendation.

Proposed new §88.302 requires a local ombudsman entity to ensure that a certified ombudsman performs certain functions, including identifying, investigating, and resolving complaints made by or on behalf of residents; providing services to protect the health safety, welfare, and rights of residents; making regular visits to residents in LTC facilities; and analyzing, commenting on, making recommendations, and monitoring the development and implementation of laws, rules, regulations, and other policies and actions that pertain to the health, safety, welfare, and rights of residents. The proposed rule also requires a local ombudsman entity to ensure that: a representative of the Office consults with the Office before commenting on or recommending changes to a public official or governmental entity regarding the development and implementation of laws, rules, regulations, and other policies or providing information to a legislator or the media regarding a problem or concern about a resident or a recommendation related to the problem or concern; promptly responds to a request from the Office regarding a request for information from a legislator or the media; and complies with certain HHSC publications regarding the Ombudsman Program. The proposed rules require a local ombudsman entity to ensure a staff ombudsman and volunteer ombudsman complete continuing education provided by the Office and are evaluated annually to determine the staff ombudsman’s compliance with training and policies. The proposed rule states that, in accordance with 45 CFR §1324.11(e)(5)(i), Texas Government Code §556.006 and Texas Local Government Code §391.0116, do not apply to a certified ombudsman performing the functions described in the section to the extent those statutes prohibit lobbying and other advocacy activities. The proposed rule requires a local ombudsman entity to address a performance concern or issue of non-compliance of a representative of the Office and allow the local ombudsman entity to recommend to the State Ombudsman that a certified ombudsman’s certification be suspended or terminated.

Proposed new §88.303 requires a local ombudsman entity to ensure that an applicant for a volunteer ombudsman position completes HHSC form "Individual Conflict of Interest Screening of a Representative of the Office" before performing functions of the Ombudsman Program and that a certified ombudsman, other than a managing local ombudsman, completes the form at least once a year and when an individual conflict of interest is identified. The proposed rule requires a local ombudsman entity to require a representative of the Office to immediately notify the local ombudsman entity of a potential individual conflict of interest regarding a representative of the Office. The proposed rule also requires a local ombudsman entity, if a conflict is identified for a representative of the Office other than a managing local ombudsman, to complete HHSC form "Conflict of Interest Identification, Removal, and Remedy" and submit the completed form to the Office within 30 days after identifying the conflict. The proposed rule also requires the local ombudsman entity to immediately notify the host agency if a conflict is identified regarding the managing local ombudsman. The proposed section describes the process the State Ombudsman follows if notified of a conflict of interest, which includes approving, modifying, or rejecting the recommended action to remove or remedy the conflict of interest; or, if it is not possible to remove or remedy the conflict of interest, refusing or terminating certification of the person with the individual conflict of interest.

Proposed new §88.304 provides that information identifying a resident or complainant is confidential and lists examples of confidential information. The proposed rule requires a local ombudsman entity to ensure that a disclosure of confidential information that is not written information complies with the Older Americans Act and the Ombudsman Policies and Procedures Manual. The proposed rule describes the requirements for responding to a request to disclose written confidential information and prohibits a representative of the Office, except as provided in 45 CFR §1324.19(b)(5) - (8), from reporting allegations of abuse, neglect, or exploitation under state law, including Texas Human Resources Code, Chapter 48, without appropriate consent or court order. The proposed rule requires a local ombudsman entity, at the request of the Office, to immediately provide Ombudsman Program records to the Office.

Proposed new §88.305 requires a local ombudsman entity to ensure that a person is allowed to make a complaint in writing, in person, and by telephone; to initiate a complaint if the local ombudsman entity becomes aware of circumstances that may adversely affect the health, safety, welfare, or rights of a resident; to respond to the complainant within two business days after receipt of the complaint, except a complaint that is an allegation of abuse, neglect, or exploitation of a resident; and to ensure that a certified ombudsman initiates an investigation of a complaint as soon as practicable after receipt of the complaint. The proposed rule describes the process a certified ombudsman must follow in investigating complaints. The proposed rule prohibits the certified ombudsman from investigating a complaint if the resident or legally authorized representative declines to consent to have the complaint investigated; requires the certified ombudsman to inform the complainant that the complaint will not be investigated because the resident or legally authorized representative declined to consent; and requires the certified ombudsman to advise the complainant of his or her options to pursue resolution. The proposed rule allows a certified ombudsman to investigate and work to resolve a complaint without obtaining consent from each resident if the certified ombudsman determines that the complaint affects a substantial number of residents in an LTC facility. The proposed rule also allows the certified ombudsman to review confidential records while investigating the complaint only if consent or other authority is obtained in accordance with the Ombudsman Policies and Procedures Manual. The proposed rule requires a certified ombudsman to document the complaint investigation in the ombudsman database in accordance with the Ombudsman Policies and Procedures Manual. The proposed rule describes the process a certified ombudsman must use if a complaint is an allegation of abuse, neglect, or exploitation of a resident and prohibits a representative of the Office, except as provided in 45 CFR §1324.19(b)(5) - (8), from reporting allegations of abuse, neglect, or exploitation under state law without appropriate consent or court order. The proposed rule also allows confidential information described in §88.304(a) to be disclosed only in accordance with §88.304 and the Ombudsman Policies and Procedures Manual, and investigated only if: the resident or legally authorized representative consents to the investigation; or in accordance with 45 CFR §1324.19(b)(2)(iii), the resident is unable to consent and has no legally authorized representative.

Proposed new §88.306 requires a local ombudsman entity to comply with the Ombudsman Policies and Procedures Manual, Ombudsman Program Protocols, and the State Long-Term Care Ombudsman Certification Training Manual.

Proposed new §88.307 requires a local ombudsman entity to: ensure each LTC facility in the ombudsman service area is visited by a certified ombudsman in accordance with the Ombudsman Policies and Procedures Manual during each federal fiscal year to monitor residents' health, safety, welfare, and rights; and receive, investigate, and resolve complaints on behalf of residents. The proposed rule also requires a local ombudsman entity to submit activities and casework, as described in the Ombudsman Policies and Procedures Manual, to the Office by entering information into the ombudsman database by 8:00 a.m. on the 16th day of each month if the 16th is a business day; or if the 16th day of the month is not a business day, the first business day immediately following the 16th day.

Proposed new §88.308 requires the local ombudsman entity to obtain approval by the Office of materials to be distributed to persons other than representatives of the Office, before the materials are distributed. The proposed rule requires a local ombudsman entity to ensure that an outgoing message for the telephone of a staff ombudsman includes a statement that the staff ombudsman works in the Ombudsman Program and that a message left by the caller will be confidential. The proposed rule allows a local ombudsman entity to request technical assistance from the Office regarding website content related to the Ombudsman Program.

Proposed new §88.309 describes the process a local ombudsman entity must follow regarding a grievance about the performance of functions of the Ombudsman Program by a representative of the Office or by a managing local ombudsman. The local ombudsman entity must allow a grievance to be submitted in writing, in person, or by telephone, and anonymously; investigate the grievance; develop a proposed response to the grievant, including any actions to be taken; and submit information about the grievance to the Office. The proposed rule also allows a person to file a grievance regarding the refusal, suspension, or termination of certification of a representative of the Office by the State Ombudsman and describes the process to be followed in filing such a grievance. The proposed rule also describes the process for a grievant to request a reconsideration of the State Ombudsman’s decision to refuse, suspend, or terminate certification of a representative of the Office.

Proposed new §88.310 prohibits a local ombudsman entity from (1) willfully interfering with the State Ombudsman or a representative of the Office performing any of the functions of the Ombudsman Program; (2) retaliating 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 or performing functions, responsibilities, or duties described in 45 CFR §1324.13 and §1324.19 and Chapter 88; or (3) having personnel policies or practices that prohibit a representative of the Office from performing the functions of the Ombudsman Program or from adhering to the requirements of the Older Americans Act, §712.

Proposed new §88.401 requires a host agency to submit certain documentation, including a resume or job application, to the Office before a person is hired to serve as a staff ombudsman. The proposed rule states that within two days of receiving the documentation, the State Ombudsman reviews the documentation and notifies the host agency or other requestor of whether any issues exist that may prevent the State Ombudsman from certifying the applicant as an ombudsman. The proposed rule also allows a host agency to request technical assistance from the Office for the purpose of hiring and terminating a staff ombudsman and requires a host agency to ensure that, if an employee who is a representative of the Office is terminated, the Office is notified of the termination, in writing, within one business day after the effective date of termination.

Proposed new §88.402 requires a host agency to be responsible for the personnel management, but not the programmatic oversight, of a representative of the Office who works for the host agency and lists examples of activities that constitute personnel management. The proposed rule requires a host agency to ensure that a local ombudsman entity has a managing local ombudsman and that the managing local ombudsman: is the primary contact for the local ombudsman entity; participates in making the decision to hire and terminate a staff ombudsman; decides whether the local ombudsman entity recommends to the Office that a person be approved as a certified ombudsman; and, except as permitted by subsection (d), serves on a full-time basis in performing duties of the managing local ombudsman. The proposed rule states that a host agency may request that the State Ombudsman waive the requirement for the managing local ombudsman to serve on a full-time basis and describes the process to request a waiver. The proposed rule states that the State Ombudsman approves a request only if the host agency demonstrates that funding is not available for a full-time staff ombudsman position; and if the managing local ombudsman position is combined with another function within the host agency, any conflict of interest is removed or remedied. The proposed rule states that any approval of a request to waive the requirement for the managing local ombudsman to serve on a full-time basis is only for the fiscal year for which the request was submitted. The proposed rule requires that a host agency ensure, in its personnel management of representatives of the Office that a local ombudsman entity complies with Subchapter D. The proposed rule allows a host agency to request technical assistance from the Office for the purpose of evaluating the job performance of a staff ombudsman.

Proposed new §88.403 requires a host agency to ensure that a managing local ombudsman completes HHSC form "Individual Conflict of Interest Screening of a Representative of the Office" at least once a year and when an individual conflict of interest is identified. The proposed rule requires a host agency, within 30 days after identifying an organizational conflict of interest or within five business days after identifying an individual conflict of interest regarding a managing local ombudsman, to complete HHSC form "Conflict of Interest Identification, Removal, and Remedy" and submit the completed form to the Office. The proposed rule describes the process the State Ombudsman follows if notified of a conflict of interest, which includes approving, modifying, or rejecting the recommended action to remove or remedy the conflict of interest; or, if it is not possible to remove or remedy the conflict of interest, removing the designation of the local ombudsman entity or refusing or terminating certification of the managing local ombudsman.

Proposed new §88.404 states that, in accordance with the Older Americans Act, the State Ombudsman has the sole authority to make determinations concerning the disclosure of confidential information, as described in §88.304(a). The proposed rule describes the process the State Ombudsman follows in responding to a request to disclose written confidential information. The proposed rule requires a host agency to 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. The proposed rule also requires a host agency, at the request of the Office, to 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.

Proposed new §88.405 requires a host agency to work with the local ombudsman entity to develop the performance measure projections specified in the rule for a state fiscal year. The proposed rule requires: a host agency to submit the performance measure projections to the HHSC Office of the Area Agencies on Aging; the HHSC Office of the Area Agencies on Aging to send the performance measure projections to the Office; and the Office to review the form and approve, modify, or reject the proposed performance measure projections. The proposed rule allows a host agency to request that an approved performance measure projection be revised and describes the process to make such a request. The proposed rule requires a host agency to ensure that a local ombudsman entity, by the end of each state fiscal year, meets the approved projections by being within a variance of five percent less than the projections or exceeding the projections.

Proposed new §88.406 requires a host agency to, for the Ombudsman Program implemented by a local ombudsman entity, expend for a federal fiscal year at least the amount of federal funds expended in the federal fiscal year 2000. The proposed rule states that 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. The proposed rule also requires a purchase of a service, material, equipment, or goods by a host agency for the Ombudsman Program with funds allocated by HHSC to meet the criteria described in 45 CFR Part 75 (relating to Uniform Administrative Requirements, Cost Principles, and Audit Requirements for HHS Awards).

Proposed new §88.407 prohibits a host agency from: (1) willfully interfering with the State Ombudsman or a representative of the Office performing any of the functions of the Ombudsman Program; (2) retaliating 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, or for performance of the functions, responsibilities, or duties described in 45 CFR §1324.13 and §1324.19 and Chapter 88; or (3) having personnel policies or practices that prohibit a representative of the Office from performing the functions of the Ombudsman Program or from adhering to the requirements of the Older Americans Act, §712. The proposed rule also lists examples of activities constituting willful interference. The proposed rule requires a host agency to ensure that a governmental entity or nonprofit organization contracting with a host agency, as described in §88.2(16)(B), complies with the prohibitions regarding willful interference and retaliation. The proposed rule also allows a host agency to 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), and (2) subject to disclosure requirements, information being sent to a legislator or the media regarding a problem or concern about a resident or a response to a request for information from a legislator or the media.

Proposed new §88.501 states that, for purposes of determining if the State Ombudsman or a representative of the Office has an individual conflict of interest as defined in §88.2(14), the state of Texas is the ombudsman service area. The proposed rule requires HHSC to ensure that an applicant for the position of State Ombudsman completes HHSC form "Individual Conflict of Interest Screening of a Representative of the Office." The proposed rule also requires the State Ombudsman to complete the same HHSC form on or about January 15th of each year and if the State Ombudsman identifies a conflict. The proposed rule describes the actions of the Executive Commissioner or designee regarding an individual conflict of interest identified by the State Ombudsman and the circumstances under which HHSC may employ the State Ombudsman or a representative of the Office. The proposed rule also requires HHSC to ensure that no person involved in selecting or terminating the State Ombudsman has an individual conflict of interest.

Proposed new §88.502 describes HHSC responsibilities regarding organizational conflicts of interest between the Office and HHSC. The proposed rule requires HHSC to take reasonable steps to avoid organizational conflicts of interests. The proposed rule requires HHSC to ensure that the State Ombudsman completes HHSC form "Conflict of Interest Identification, Removal, and Remedy," to identify an organizational conflict of interest between the Office and HHSC and propose a remedy for an identified conflict of interest. The proposed rule requires the State Ombudsman to complete the form no later than 30 days after assuming responsibilities as the State Ombudsman, on or about January 15th of each year, and if the State Ombudsman identifies a conflict. The proposed rule also describes the actions of the Executive Commissioner or designee regarding removal or remedy of an organizational conflict of interest identified by the State Ombudsman. The proposed rule requires HHSC to ensure that the State Ombudsman includes identified organizational conflicts of interest in the annual report submitted to the federal Administration for Community Living.

FISCAL NOTE

Greta Rymal, Deputy Executive Commissioner for Financial Services, has determined that, for each year of the first five years the proposed new sections are in effect, there will be no fiscal implications to state government as a result of enforcing and administering the sections as proposed. There are foreseeable implications relating to costs or revenues of local government because of the change in the method the State Ombudsman will use to distribute federal funds to a host agency for the operation of the Ombudsman Program in accordance with the Older Americans Act. The effect on local governments for fiscal year (FY) 2018 is an estimated increase in revenue to the following host agencies that are local governments:

East Texas Council of Governments - $4,988

Coastal Bend Council of Governments - $4,831

Deep East Texas Council of Governments - $4,279

Heart of Texas Council of Governments - $4,142

South East Texas Regional Planning Commission - $3,389

Ark-Tex Area Council of Governments - $2,901

Central Texas Council of Governments - $2,847

Lower Rio Grande Council of Governments - $2,575

Panhandle Regional Planning Commission - $2,545

Nortex Regional Planning Commission - $2,252

Texoma Council of Governments - $2,115

Brazos Valley Council of Governments - $2,109

West Central Texas Council of Governments - $2,008

Concho Valley Council of Governments - $1,756

Middle Rio Grande Development Council - $1,459

Permian Basin Regional Planning Commission - $1,198

Golden Crescent Regional Planning Commission - $1,153

Alamo Area Council of Governments (Alamo Planning and Service Area) - $1,127

South Texas Development Council - $1,058

North Central Texas Council of Governments - $558

The effect on local governments for fiscal year (FY) 2018 is an estimated decrease in revenue to the following host agencies that are local governments:

Harris County - $19,156

Houston Galveston Area Council - $7,574

Alamo Area Council of Governments (Bexar County) - $6,744

Rio Grande Council of Governments - $3,193

South Plains Association of Governments - $2,447

Capital Area Planning Council of Governments - $1,569

The estimated increase and loss in revenue for local governments in FYs 2019-2022 are not expected to change from the estimates listed for FY 2018.

GOVERNMENT GROWTH IMPACT STATEMENT

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

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

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

(3) implementation of the proposed rules will not require an increase or decrease in future legislative appropriations;

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

(5) the proposed rules will create new rules;

(6) the proposed rules will expand existing rules;

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

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

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

Ms. Rymal has also determined that there will be no adverse economic effect on small businesses, micro-businesses, or rural communities because the proposed rules do not apply to small or micro-businesses, or rural communities.

ECONOMIC COSTS TO PERSONS AND IMPACT ON LOCAL EMPLOYMENT

There will be an economic cost to persons who are required to comply with the new rules. The rules do not impose any new requirements that will require an additional expenditure of funds; however, in addition to the local governments listed above under the fiscal note that will have a decrease in revenue, the Community Council of Greater Dallas will have a decrease in revenue of approximately $11,297.

There is no anticipated negative impact on local employment.

COSTS TO REGULATED PERSONS

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

PUBLIC BENEFIT

Patty Ducayet, State Long-Term Care Ombudsman, has determined that, for each year of the first five years the new rules are in effect, the public benefit expected as a result of enforcing the new rules is compliance with the Older Americans Act and comprehensive rules that describe requirements of the Ombudsman Program.

TAKINGS IMPACT ASSESSMENT

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

PUBLIC COMMENT

Questions about the content of this proposal may be directed to Patty Ducayet at (512) 438-4356 in HHSC State Long-Term Care Ombudsman Program. Written comments on the proposal may be submitted to Rules Coordination Office, P.O. Box 149030, Mail Code H600, Austin, Texas 78714-9030, or street address 4900 North Lamar Boulevard, Austin, Texas 78751; or e-mailed to HHSRulesCoordinationOffice@hhsc.state.tx.us.

To be considered, comments must be submitted no later than 30 days after the date of this issue of the Texas Register. The last day to submit comments falls on a Sunday; therefore, comments must be: (1) postmarked or shipped before the last day of the comment period; (2) hand-delivered to HHSC before 5:00 p.m. on the last working day of the comment period; or (3) emailed by midnight on the last day of the comment period. Please indicate "Comments on Proposed Rule 15R14."

SUBCHAPTER A. PURPOSE AND DEFINITIONS

26 TAC §88.1, §88.2

STATUTORY AUTHORITY

The new sections are proposed under Texas Government Code, §531.0055, which provides that the HHSC executive commissioner shall adopt rules for the operation and provision of services by HHSC; and Texas Human Resources Code, §101A.051 which provides that the HHSC executive commissioner shall adopt rules regarding the administration by HHSC of programs and services for older individuals.

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

§88.1.Purpose.

The purpose of this chapter is to implement the State Long-Term Care Ombudsman Program, as established by:

(1) the Older Americans Act, §711 and §712 (United States Code, Title 42, §3058f and §3058g);

(2) CFR, Title 45, Parts 1321 and 1324; and

(3) Texas Human Resources Code, Title 6, Chapter 101A, Subchapter F.

§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) an 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) HCSSA--Home and community support services agency. An entity licensed in accordance with Texas Health and Safety Code, Chapter 142.

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

(12) Host agency--A governmental entity or nonprofit organization that contracts with HHSC to ensure that the local ombudsman entity implements the Ombudsman Program in an ombudsman service area.

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

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

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

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

(C) managing or being employed in an LTC facility, a HCSSA, or a DAHS facility;

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

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

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

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

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

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

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

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

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

(M) being a resident;

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

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

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

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

(B) the guardian of an adult;

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

(D) the representative of a deceased person.

(16) Local ombudsman entity--One of the following:

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

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

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

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

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

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

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

(18) Managing local ombudsman--A person who:

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

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

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

(A) is headed by the State Ombudsman;

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

(C) oversees the statewide implementation of the Ombudsman Program.

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

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

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

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

(A) information relating to complaint investigations;

(B) emails and documentation of phone conversations;

(C) documentation related to the budget and expenditures for the Ombudsman Program; and

(D) information contained in the ombudsman database.

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

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

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

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

(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.

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

(27) Private and unimpeded access--Has the following meanings:

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

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

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

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

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

(A) support the resident in decision-making;

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

(C) manage financial matters; or

(D) receive notifications.

(31) Staff ombudsman--A person who:

(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.

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

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

(34) Volunteer ombudsman--A person who:

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

(B) performs functions of the Ombudsman Program; and

(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.

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

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

Filed with the Office of the Secretary of State on December 29, 2017.

TRD-201705447

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: February 11, 2018

For further information, please call: (512) 438-4356


SUBCHAPTER B. ESTABLISHMENT OF THE OFFICE

26 TAC §§88.101 - 88.105

STATUTORY AUTHORITY

The new sections are proposed under Texas Government Code, §531.0055, which provides that the HHSC executive commissioner shall adopt rules for the operation and provision of services by HHSC; and Texas Human Resources Code, §101A.051 which provides that the HHSC executive commissioner shall adopt rules regarding the administration by HHSC of programs and services for older individuals.

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

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

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

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

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

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

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

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

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

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

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

(C) directing a representative of the Office to investigate a complaint or take other action related to a complaint; and

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

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

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

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

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

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

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

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

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

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

(d) The State Ombudsman:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

§88.102.Certification of an Ombudsman.

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

(1) the person has one of the following:

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

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

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

(ii) experience as a certified ombudsman;

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

(3) the person:

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

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

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

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

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

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

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

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

(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 as a staff ombudsman described in §88.2(31)(C)(iii) of this chapter if the person:

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

(2) meets one of the following;

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

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

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

§88.103.Refusal, Suspension, and Termination of Certification of an Ombudsman.

(a) The State Ombudsman refuses to initially certify:

(1) a staff ombudsman, other than a managing local ombudsman, if the requirements in §88.102(a) of this subchapter (relating to Certification of an Ombudsman) are not met;

(2) a managing local ombudsman if the requirements in §88.102(b) of this subchapter are not met; and

(3) a volunteer ombudsman if the requirements in §88.102(c) of this subchapter are not met.

(b) The State Ombudsman refuses to renew certification of:

(1) a staff ombudsman if the requirements in §88.102(e)(1) of this subchapter are not met; and

(2) a volunteer ombudsman if the requirements in §88.102(e)(2) of this subchapter are not met.

(c) The State Ombudsman may suspend certification of a certified ombudsman for good cause, as determined by the State Ombudsman, including if:

(1) the certified ombudsman is not adequately performing the functions of the Ombudsman Program;

(2) the certified ombudsman fails to complete continuing education in accordance with the Ombudsman Policies and Procedures Manual;

(3) an individual conflict of interest regarding the certified ombudsman is identified; or

(4) the State Ombudsman is in the process of deciding whether to terminate the certified ombudsman’s certification.

(d) The State Ombudsman may terminate certification of a certified ombudsman for good cause, as determined by the State Ombudsman, including if:

(1) the certified ombudsman is not adequately performing the functions of the Ombudsman Program;

(2) the certified ombudsman fails to complete continuing education in accordance with the Ombudsman Policies and Procedures Manual;

(3) the certified ombudsman does not disclose an individual conflict of interest regarding the certified ombudsman to the local ombudsman entity or host agency;

(4) an individual conflict of interest regarding the certified ombudsman is not removed or remedied, 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 (relating to Conflicts of Interest Regarding a Host Agency);

(5) the certified ombudsman has 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;

(6) the certified ombudsman acts in a manner that threatens the health, safety, welfare, or rights of residents or undermines the integrity of the Ombudsman Program; or

(7) the certified ombudsman is no longer an employee or volunteer of the local ombudsman entity or host agency.

(e) If the State Ombudsman has a concern about a representative of the Office, the State Ombudsman informs the local ombudsman entity and, if appropriate, the host agency about the concern and may:

(1) work with the local ombudsman entity and the host agency to address the concern; and

(2) develop a corrective action plan and request comments on the plan from the local ombudsman entity and the host agency.

(f) The State Ombudsman immediately notifies the managing local ombudsman and, if appropriate, the host agency of a decision to refuse, suspend, or terminate certification of a certified ombudsman.

§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(16)(B) of this chapter (relating to Definitions):

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

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

(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 a plan of correction required by §88.105(f) of this subchapter (relating to Fiscal Management and Monitoring of a Local Ombudsman Entity) or a modified plan of correction required by §88.105(g) of this subchapter; or

(C) not obtaining approval by the Office of a plan of correction required by §88.105(f) of this subchapter or a modified plan of correction required by §88.105(g) of this subchapter.

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

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

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

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

(a) The State Ombudsman:

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

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

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

(b) This subsection describes how the State Ombudsman distributes funds to a host agency for the operation of the Ombudsman Program in accordance with the Older Americans Act, §306(a)(9).

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

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

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

(2) A host agency is allocated funds from state general revenue funds appropriated or otherwise available for the Ombudsman Program based on the following factors:

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

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

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

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

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

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

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

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

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

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

(A) the training of representatives of the Office;

(B) identification of individual conflicts of interest; and

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

(e) The Office:

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

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

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

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

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

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

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

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

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

(2) visit the local ombudsman entity.

(i) The Office:

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

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

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

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

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

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

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

Filed with the Office of the Secretary of State on December 29, 2017.

TRD-201705448

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: February 11, 2018

For further information, please call: (512) 438-4356


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

26 TAC §88.201

STATUTORY AUTHORITY

The new section is proposed under Texas Government Code, §531.0055, which provides that the HHSC executive commissioner shall adopt rules for the operation and provision of services by HHSC; and Texas Human Resources Code, §101A.051 which provides that the HHSC executive commissioner shall adopt rules regarding the administration by HHSC of programs and services for older individuals.

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

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

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

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

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

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

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

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

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

(c) The State Ombudsman and a certified ombudsman have immediate access:

(1) in accordance with the Older Americans Act, §712(b)(1)(B), to all files, records, and other information concerning a resident, including an incident report involving the resident, if:

(A) in accordance with 45 CFR §1324.11(e)(2)(iv)(A) or (B), the State Ombudsman or certified ombudsman has the 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 consent to access and has no legally authorized representative; or

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

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

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

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

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

(d) 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 proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on December 29, 2017.

TRD-201705449

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: February 11, 2018

For further information, please call: (512) 438-4356


SUBCHAPTER D. REQUIREMENTS OF A LOCAL OMBUDSMAN ENTITY

26 TAC §§88.301 - 88.310

STATUTORY AUTHORITY

The new sections are proposed under Texas Government Code, §531.0055, which provides that the HHSC executive commissioner shall adopt rules for the operation and provision of services by HHSC; and Texas Human Resources Code, §101A.051 which provides that the HHSC executive commissioner shall adopt rules regarding the administration by HHSC of programs and services for older individuals.

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

§88.301.Requirements to Recommend Certification as an Ombudsman.

(a) For a person to be certified as a staff ombudsman, other than a managing local ombudsman, in accordance with §88.102 of this chapter (relating to Certification of an Ombudsman), the local ombudsman entity must recommend to the Office that the person be certified, using HHSC form "Certified Ombudsman Application." The local ombudsman entity may make a recommendation only if:

(1) 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;

(2) the person does not have an individual conflict of interest or has an individual conflict of interest that has been remedied, as described in §88.303 of this subchapter (relating to Individual Conflicts of Interest Regarding a Local Ombudsman Entity); and

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

(b) For a person to be certified as a volunteer ombudsman in accordance with §88.102 of this chapter, the local ombudsman entity must recommend to the Office that the person be certified, using HHSC form "Certified Ombudsman Application." The local ombudsman entity may make a recommendation only if:

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

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

§88.302.Requirement to Ensure a Representative of the Office Performs Functions of the Ombudsman Program.

(a) A local ombudsman entity must ensure that:

(1) a certified ombudsman performs the functions described in the Older Americans Act, §712(a)(3) and (5) and 45 CFR §1324.19(a), including:

(A) identifying, investigating, and resolving 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 residents;

(B) providing services to protect the health safety, welfare, and rights of residents;

(C) providing residents with information about the Ombudsman Program;

(D) making regular visits to residents in LTC facilities, as well as promptly responding to requests received by telephone, mail, and electronic means;

(E) representing the interests of residents before governmental agencies, and pursuing administrative, legal, and other remedies to protect residents;

(F) analyzing, commenting on, making recommendations, and monitoring the development and implementation of laws, rules, regulations, and other policies and actions that pertain to the health, safety, welfare, and rights of residents, with respect to the adequacy of LTC facilities and services; and

(G) coordinating with and promoting the development of citizen organizations, including resident and family councils;

(2) a representative of the Office:

(A) consults with the Office before:

(i) commenting on or recommending changes to a public official or governmental entity regarding the development and implementation of laws, rules, regulations, and other policies and actions that pertain to the health, safety, welfare, and rights of residents, with respect to the adequacy of LTC facilities and services; or

(ii) providing information to a legislator or the media regarding a problem or concern about a resident or a recommendation related to the problem or concern;

(B) promptly responds to a request from the Office regarding a request for information from a legislator or the media; and

(C) complies with the following:

(i) the Ombudsman Policies and Procedures Manual available on the HHSC website;

(ii) the Ombudsman Program Protocols available on the HHSC website; and

(iii) the Ombudsman Certification Training Manual available on the HHSC website;

(3) a staff ombudsman:

(A) completes continuing education provided by the Office as required by §88.102(e)(1)(B) of this chapter (relating to Certification of an Ombudsman); and

(B) is evaluated annually to determine if the staff ombudsman demonstrates compliance with the Ombudsman Certification Training Manual and the Ombudsman Policies and Procedures Manual; and

(4) a volunteer ombudsman:

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

(B) is evaluated annually to determine if the volunteer ombudsman demonstrates compliance with the Ombudsman Certification Training Manual and the Ombudsman Policies and Procedures Manual.

(b) In accordance with 45 CFR §1324.11(e)(5)(i), Texas Government Code §556.006 and Texas Local Government Code §391.0116, which prohibit lobbying and other advocacy activities by employees of the state, a council of governments, or regional planning commission, do not apply to a certified ombudsman performing the functions described in subsection (a)(1)(F) of this section.

(c) If a local ombudsman entity determines that a certified ombudsman is not demonstrating compliance with the Ombudsman Certification Training Manual or the Ombudsman Policies and Procedures Manual or identifies a concern with a certified ombudsman’s performance, the local ombudsman entity:

(1) must address the performance concern or resolve the failure to demonstrate compliance; and

(2) may request technical assistance from the Office in complying with paragraph (1) of this subsection.

(d) A local ombudsman entity may recommend to the State Ombudsman that a certified ombudsman’s certification be suspended or terminated.

§88.303.Individual Conflicts of Interest Regarding a Local Ombudsman Entity.

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

(1) an applicant for a volunteer ombudsman position before performing functions of the Ombudsman Program; and

(2) a certified ombudsman, other than a managing local ombudsman:

(A) at least once a year; and

(B) if the local ombudsman entity identifies an individual conflict of interest involving the certified ombudsman.

(b) A local ombudsman entity must require a representative of the Office to immediately notify the local ombudsman entity of an individual conflict of interest regarding a representative of the Office.

(c) If a local ombudsman entity identifies an individual conflict of interest:

(1) regarding a representative of the Office other than the managing local ombudsman, within 30 days after identifying the conflict, the local ombudsman entity must:

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

(B) submit the completed form to the Office; and

(2) regarding the managing local ombudsman, the local ombudsman entity must immediately notify the host agency so the host agency can comply with §88.403(c) of this chapter (relating to Conflicts of Interest Regarding a Host Agency).

(d) If the Office receives a completed form as described in subsection (c)(1) of this section, the State Ombudsman reviews the form and:

(1) approves, modifies, or rejects the recommended action to remove or remedy the conflict of interest; or

(2) if it is not possible to remove or remedy the conflict of interest, refuses or terminates certification of the person with the individual conflict of interest.

§88.304.Disclosure of Confidential Information; Exclusion from Reporting Requirements Regarding Abuse, Neglect, or Exploitation; and Provision of Records to the Office.

(a) Information identifying a resident or complainant is confidential. Such information includes:

(1) the name of the resident or complainant;

(2) information about the resident’s medical condition;

(3) the resident’s medical history;

(4) the resident’s social history, which includes occupation, residences, and information about a resident’s family;

(5) the resident’s source of payment;

(6) information about the resident’s personal life; and

(7) information from a communication between a resident and a representative of the Office.

(b) A local ombudsman entity must ensure that a disclosure of confidential information that is not written information complies with the Older Americans Act, §712(d), 45 CFR §1324.11(e)(3), and the Ombudsman Policies and Procedures Manual.

(c) A response to a request to disclose written confidential information must be in accordance with this subsection.

(1) If a representative of the Office receives a request to disclose written confidential information as described in subsection (a) of this section, including a subpoena, the representative must immediately:

(A) notify the State Ombudsman of the request; and

(B) provide the State Ombudsman with 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 representative of the Office;

(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 local ombudsman entity.

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

(1) regardless of whether a representative of the Office is required to report allegations of abuse, neglect, or exploitation under professional licensure standards; and

(2) to a representative of the Office only in the performance of functions of the Ombudsman Program.

(e) A local ombudsman entity must, at the request of the Office, immediately provide Ombudsman Program records to the Office.

§88.305.Complaints.

(a) A local ombudsman entity must:

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

(A) in writing, including by email;

(B) in person; and

(C) by telephone;

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

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

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

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

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

(A) document the nature of the complaint;

(B) determine:

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

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

(iii) the outcome sought by the complainant;

(C) if the complainant is not the resident, inform the complainant that the complaint will be investigated only if:

(i) the resident or legally authorized representative consents to the investigation; or

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

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

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

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

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

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

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

(C) interview relevant witnesses;

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

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

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

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

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

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

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

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

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

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

(E) interview relevant witnesses;

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

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

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

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

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

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

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

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

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

(D) interview relevant witnesses;

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

(F) determine whether the complaint is satisfactorily resolved.

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

(A) not investigate the complaint;

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

(C) advise the complainant of his or her options to pursue resolution.

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

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

(c) If a complaint is an allegation of abuse, neglect, or exploitation of a resident, a certified ombudsman:

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

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

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

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

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

§88.306.Compliance with Documents of the Office.

A local ombudsman entity must comply with:

(1) the Ombudsman Policies and Procedures Manual available on the HHSC website;

(2) the Ombudsman Program Protocols available on the HHSC website; and

(3) the Ombudsman Certification Training Manual available on the HHSC website.

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

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

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

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

(b) A local ombudsman entity must submit activities and casework, as described in the Ombudsman Policies and Procedures Manual, to the Office by entering information into the ombudsman database by 8:00 a.m. on:

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

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

§88.308.Ombudsman Program Logo and Communications to the Public.

(a) The local ombudsman entity must obtain approval by the Office of materials to be distributed to persons other than representatives of the Office, before the materials are distributed.

(b) If a local ombudsman entity uses a logo on printed materials created by the local ombudsman entity, the local ombudsman entity must use the logo approved by the Office. A host agency may use its logo on printed materials in addition to the logo approved by the Office.

(c) A local ombudsman entity must ensure that an outgoing message for the telephone of a staff ombudsman includes:

(1) a statement that the staff ombudsman works in the Ombudsman Program; and

(2) that a message left by the caller will be confidential.

(d) A local ombudsman entity may request technical assistance from the Office regarding website content related to the Ombudsman Program.

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

(a) A grievance regarding the performance of functions of the Ombudsman Program by a representative of the Office, other than a grievance about the managing local ombudsman, is addressed in accordance with this subsection.

(1) The local ombudsman entity must:

(A) ensure that a grievance may be submitted:

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

(ii) anonymously;

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

(C) document the nature of the grievance in detail;

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

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

(F) within 30 days after receiving the grievance:

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

(ii) investigate the grievance;

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

(iv) submit the following information to the Office:

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

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

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

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

(A) reviews the information; and

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

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

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

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

(2) If the Office receives a grievance about a managing local ombudsman, the Office:

(A) investigates the grievance, including interviewing employees of the host agency;

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

(C) sends a response to the grievant.

(c) A person may file a grievance regarding the refusal, suspension, or termination of certification of a representative of the Office by the State Ombudsman in accordance with this subsection.

(1) The grievant must complete HHSC form "Grievance Regarding Ombudsman Certification Decision" and submit the completed form to the Office.

(2) If the Office receives a completed form described in paragraph (1) of this subsection, the State Ombudsman reviews the form, takes any necessary action, and sends a response to the grievant.

(3) The grievant may request a reconsideration of the State Ombudsman’s decision. To request a reconsideration, the grievant must, within 10 days after receiving the decision, submit the following to the State Ombudsman:

(A) a written request for reconsideration; and

(B) any additional information supporting the request.

§88.310.Prohibition of Interference and Retaliation by a Local Ombudsman Entity.

A local ombudsman entity must not:

(1) willfully interfere with the State Ombudsman or a representative of the Office performing any of the functions of the Ombudsman Program;

(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, including prohibiting a representative of the Office from commenting or recommending changes as described in §88.302(a)(1)(F) of this subchapter (relating to Requirement to Ensure a Representative of the Office Performs Functions of the Ombudsman Program); 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.

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

Filed with the Office of the Secretary of State on December 29, 2017.

TRD-201705450

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: February 11, 2018

For further information, please call: (512) 438-4356


SUBCHAPTER E. REQUIREMENTS OF A HOST AGENCY

26 TAC §§88.401 - 88.407

STATUTORY AUTHORITY

The new sections are proposed under Texas Government Code, §531.0055, which provides that the HHSC executive commissioner shall adopt rules for the operation and provision of services by HHSC; and Texas Human Resources Code, §101A.051 which provides that the HHSC executive commissioner shall adopt rules regarding the administration by HHSC of programs and services for older individuals.

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

§88.401.Coordination with the State Ombudsman in Hiring and Terminating a Staff Ombudsman.

(a) In accordance with 45 CFR §1324.11(e)(1)(iv), a host agency must coordinate with the Office about the hiring and termination of a staff ombudsman.

(b) Before a person is hired to serve as a staff ombudsman, including the hiring or promotion of a person to serve as a managing local ombudsman, the host agency must ensure that the following documentation is submitted to the Office:

(1) the applicant’s resume or job application;

(2) HHSC form "Individual Conflict of Interest Screening of a Representative of the Office" as evidence of screening for an individual conflict of interest and, if a conflict is identified, a proposed removal or remedy plan for the conflict, using HHSC form "Conflict of Interest Identification, Removal, and Remedy"; and

(3) one of the following:

(A) consent by the applicant for a criminal history check, using HHSC form "Consent for Criminal History Check"; or

(B) the criminal history record of the applicant from the Texas Department of Public Safety obtained directly by the host agency or through a private agency.

(c) Within two business days after receiving the documentation described in subsection (b) of this section, the State Ombudsman reviews the documentation and notifies the requestor of whether any issues exist that may prevent the State Ombudsman from certifying the applicant as an ombudsman as described in §88.102 of this chapter (relating to Certification of an Ombudsman).

(d) A host agency may request technical assistance from the Office for the purpose of hiring and terminating a staff ombudsman.

(e) A host agency must ensure that, if an employee who is a representative of the Office is terminated, the Office is notified of the termination, in writing, within one business day after the effective date of termination.

§88.402.Personnel Management of Representatives of the Office.

(a) In accordance with 45 CFR § 1324.17(a), a host agency is responsible for the personnel management, but not the programmatic oversight, of a representative of the Office who works for the host agency. Personnel management includes:

(1) hiring and terminating a staff ombudsman as described in §88.401 of this subchapter (relating to Coordination with the State Ombudsman in Hiring and Terminating a Staff Ombudsman) and subsection (c)(2) of this section;

(2) overseeing compliance with host agency policies by a representative of the Office;

(3) collecting timesheets from a staff ombudsman to demonstrate work performance;

(4) determining salary and benefits for a staff ombudsman;

(5) evaluating job performance of a staff ombudsman;

(6) assigning work space and equipment for a staff ombudsman; and

(7) performing payroll and accounting activities regarding the local ombudsman entity.

(b) A host agency must ensure that a local ombudsman entity has a managing local ombudsman.

(c) A host agency must ensure that a managing local ombudsman:

(1) is the primary contact for the local ombudsman entity;

(2) participates in making the decision to hire and terminate a staff ombudsman;

(3) decides whether the local ombudsman entity recommends to the Office that a person be approved as a certified ombudsman in accordance with §88.301 of this chapter (relating to Requirements to Recommend Certification as an Ombudsman); and

(4) except as permitted by subsection (d) of this section, serves on a full-time basis in performing duties of the managing local ombudsman.

(d) A host agency may request that the State Ombudsman waive the requirement for the managing local ombudsman to serve on a full-time basis.

(1) To make a request to waive the requirement, the host agency must:

(A) complete HHSC form "Waiver Request for Full-Time Requirement of a Managing Local Ombudsman"; and

(B) submit the form to the State Ombudsman before the beginning of the federal fiscal year that the host agency is requesting the requirement be waived.

(2) Within two business days after receiving a completed form as described in paragraph (1) of this subsection, the State Ombudsman reviews the request and notifies the host agency of whether the request is approved.

(3) The State Ombudsman approves a request only if the host agency demonstrates that:

(A) funding is not available for a full-time staff ombudsman position; and

(B) if the managing local ombudsman position is combined with another function within the host agency, any conflict of interest is removed or remedied as required by §88.403 of this subchapter (relating to Conflicts of Interest Regarding a Host Agency).

(4) Any approval of a request to waive the requirement for the managing local ombudsman to serve on a full-time basis is only for the fiscal year for which the request was submitted.

(e) A host agency must ensure that, in its personnel management of representatives of the Office, a local ombudsman entity complies with Subchapter D of this chapter (relating to Requirements of a Local Ombudsman Entity).

(f) A host agency may request technical assistance from the Office for the purpose of evaluating the job performance of a staff ombudsman.

§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(16)(B) of this chapter (relating to Definitions), has an organizational conflict of interest, the host agency must, within 30 days after identifying the conflict of interest:

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

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

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

(2) submit the completed form to the Office.

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

(1) at least once a year; and

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

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

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

(2) submit the completed form to the Office.

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

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

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

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

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

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

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

(A) notified of the request; and

(B) provided any communication from the requestor.

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

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

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

(C) 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.

§88.405.Meeting Performance Measure Projections.

(a) A host agency must work with the local ombudsman entity to develop the following performance measure projections for a state fiscal year:

(1) the number of certified ombudsmen who will, during a state fiscal year:

(A) conduct visits at LTC facilities; and

(B) identify and investigate complaints;

(2) the number of visits to assisted living facilities by certified ombudsmen that will occur during a state fiscal year;

(3) the number of assisted living facilities that will receive at least one visit by a certified ombudsman in a state fiscal year; and

(4) the percentage of complaints that will be resolved or partially resolved in a state fiscal year.

(b) A host agency must submit the performance measure projections required by subsection (a) of this section to the HHSC Office of the Area Agencies on Aging. The HHSC Office of the Area Agencies on Aging sends the performance measure projections to the Office. The Office reviews the form and approves, modifies, or rejects the proposed performance measure projections.

(c) A host agency may request that an approved performance measure projection be revised in accordance with this subsection.

(1) To make such a request, the host agency must:

(A) complete HHSC form "Key Performance Measure Target Revision," and

(B) submit the completed form to the HHSC Office of the Area Agencies on Aging.

(2) The HHSC Office of the Area Agencies on Aging sends the completed form to the Office. The Office reviews the form and approves, modifies, or rejects the request to revise the performance measure projection.

(d) A host agency must ensure that a local ombudsman entity, by the end of each state fiscal year, meets the approved projections described in subsection (a) of this section by:

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

(2) exceeding the projections.

§88.406.Requirements Regarding Expenditures for the Ombudsman Program.

(a) A host agency must, for the Ombudsman Program implemented by a local ombudsman entity, expend for a federal fiscal year at least the amount of federal funds expended in the federal fiscal year 2000.

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

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

§88.407.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(16)(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)(B) of this chapter.

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

Filed with the Office of the Secretary of State on December 29, 2017.

TRD-201705451

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: February 11, 2018

For further information, please call: (512) 438-4356


SUBCHAPTER F. REQUIREMENTS OF HHSC

26 TAC §88.501, §88.502

STATUTORY AUTHORITY

The new sections are proposed under Texas Government Code, §531.0055, which provides that the HHSC executive commissioner shall adopt rules for the operation and provision of services by HHSC; and Texas Human Resources Code, §101A.051 which provides that the HHSC executive commissioner shall adopt rules regarding the administration by HHSC of programs and services for older individuals.

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

§88.501.HHSC Responsibilities Regarding Individual Conflicts Of Interest.

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

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

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

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

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

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

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

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

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

§88.502.HHSC Responsibilities Regarding Organizational Conflicts of Interest Between the Office and HHSC.

(a) HHSC takes reasonable steps to avoid organizational conflicts of interest between the Office and HHSC.

(b) HHSC requires the State Ombudsman to complete HHSC form "Conflict of Interest Identification, Removal, and Remedy," to identify an organizational conflict of interest between the Office and HHSC and propose a remedy for an identified conflict of interest:

(1) no later than 30 days after the date the State Ombudsman assumes responsibilities;

(2) on or about January 15th of each year; and

(3) if the State Ombudsman identifies an organizational conflict of interest.

(c) The Executive Commissioner or designee reviews a form completed by the State Ombudsman as described in subsection (b) of this section and removes or remedies an identified conflict of interest.

(d) HHSC ensures that the State Ombudsman includes identified organizational conflicts of interest between the Office and HHSC and the steps taken to remove or remedy the conflicts in the annual report submitted to the federal Administration for Community Living through the National Ombudsman Reporting System.

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

Filed with the Office of the Secretary of State on December 29, 2017.

TRD-201705452

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: February 11, 2018

For further information, please call: (512) 438-4356