Current through Reg. 49, No. 38; September 20, 2024
The following words and terms, when used in this chapter,
have the following meanings unless the context clearly indicates
otherwise.
(1) Business day--Any day
except a Saturday, Sunday, or legal holiday listed in Texas Government Code,
§
662.021.
(2) Certified ombudsman--A staff ombudsman or
a volunteer ombudsman.
(3)
CFR--Code of Federal Regulations.
(4) Complainant--A person who makes a
complaint.
(5) Complaint--A
statement of dissatisfaction or concern made by or on behalf of a resident,
that relates to action, inaction, or a decision by any of the following
entities or persons, that may adversely affect the health, safety, welfare, or
rights of the resident:
(A) a long-term care
(LTC) facility or LTC facility staff;
(B) a governmental entity, including a health
and human services agency; or
(C)
any other person who provides care or makes decisions related to a
resident.
(6) DAHS
facility--A day activity and health services facility. A facility licensed in
accordance with Texas Human Resources Code, Chapter 103.
(8) Federal fiscal year--A 12-month period of
time from October 1 through September 30.
(9) Governmental entity--An entity that is:
(A) a state agency;
(B) a district, authority, county,
municipality, regional planning commission, or other political subdivision of
the state; or
(C) an institution of
higher education, as defined in Texas Education Code, §
61.003.
(10) Grievance--A statement of
dissatisfaction or concern regarding a representative of the Office of the
State Long-Term Care Ombudsman (Office) or the State Ombudsman and the
performance of their functions, responsibilities, and duties described in 45
CFR §1324.13, 45 CFR §1324.19, and this chapter.
(11) Grievant--A person who makes a
grievance.
(12) HCSSA--Home and
community support services agency. An entity licensed in accordance with Texas
Health and Safety Code Chapter 142.
(13) HHSC--The Texas Health and Human
Services Commission or its designee.
(14) Host agency--A governmental entity or
nonprofit organization that contracts with HHSC to ensure that the local
ombudsman entity implements the State Long-Term Care Ombudsman Program
(Ombudsman Program) in an ombudsman service area.
(15) Incident report--A document created by
an LTC facility about an abnormal event involving a resident, including an
accident or injury.
(16) Immediate
family member--A member of the same household or a relative with whom there is
a close personal or significant financial relationship.
(17) Informed consent--Consent from a
resident or legally authorized representative after the State Ombudsman or a
representative of the Office explains the options for ombudsman action and
possible outcomes of such options in a manner and language in which the
resident or legally authorized representative understands, as determined by the
State Ombudsman or a representative of the Office. Informed consent may be
communicated in writing, orally, visually, or through the use of auxiliary aids
and services.
(18) Individual
conflict of interest--A situation in which a person is involved in multiple
interests, financial or otherwise, that could affect the effectiveness and
credibility of the Ombudsman Program and includes a person:
(A) having direct involvement in the
licensing, surveying, or certification of an LTC facility, a HCSSA, a DAHS
facility, a nursing facility administrator, or a nurse aide;
(B) having ownership or investment interest
(represented by equity, debt, or other financial relationship) in an LTC
facility, a HCSSA, a DAHS facility, or an association of LTC facilities,
HCSSAs, or DAHS facilities;
(C)
managing or being employed in an LTC facility, a HCSSA, a DAHS facility, or an
association of LTC facilities, HCSSAs, or DAHS facilities;
(D) being employed by an LTC facility within
the 12 months before performing functions of the Ombudsman Program;
(E) accepting gifts, gratuities, or other
consideration from an LTC facility or from a resident of such an LTC facility
or the resident's family;
(F)
accepting money or any other consideration from anyone other than the local
ombudsman entity or host agency for performing functions of the Ombudsman
Program;
(G) receiving or having
the right to receive, directly or indirectly, remuneration (in cash or in kind)
under a compensation arrangement with an owner or operator of an LTC facility,
a HCSSA, or a DAHS facility;
(H)
being involved in PASRR screenings for LTC facility placements other than
responding to a complaint made to the Ombudsman Program;
(I) determining eligibility regarding
Medicaid or other public benefits for residents;
(J) being employed by a managed care
organization that provides services to residents;
(K) serving as a representative of the Office
for an LTC facility in the ombudsman service area and in which a relative of
the representative resides or works;
(L) acting as a decision-maker or legally
authorized representative for a resident in the ombudsman service
area;
(M) having management
responsibility for, or operating under the supervision of, a person with
management responsibility for adult protective services as described in Texas
Human Resources Code, Chapter 48;
(N) being a resident;
(O) being a member of a board or council that
represents the interests of an LTC facility; or
(P) having an immediate family member who
meets any of the descriptions in subparagraphs (A) - (O) of this
paragraph.
(19) Legally
authorized representative--A person authorized by law to act on behalf of
another person with regard to a matter described in this chapter, including:
(A) a parent, guardian, or managing
conservator of a minor;
(B) the
guardian of an adult;
(C) an agent
to whom authority to make health care decisions is delegated under a medical
power of attorney or durable power of attorney in accordance with state law;
or
(D) the representative of a
deceased person.
(20)
Local ombudsman entity--One of the following:
(A) an identifiable unit of a host agency
that:
(i) consists of representatives of the
Office who are employees, independent contractors, or volunteers of the host
agency; and
(ii) implements the
Ombudsman Program in an ombudsman service area; or
(B) an identifiable unit of a governmental
entity or nonprofit organization that:
(i)
consists of representatives of the Office who are employees, independent
contractors, or volunteers of the governmental entity or nonprofit
organization; and
(ii) contracts
with a host agency to implement the Ombudsman Program in an ombudsman service
area.
(21)
LTC facility--Long-term care facility. A nursing facility licensed or required
to be licensed in accordance with Texas Health and Safety Code, Chapter 242,
and or an assisted living facility licensed or required to be licensed in
accordance with Texas Health and Safety Code, Chapter 247.
(22) Managing local ombudsman--A person who:
(A) is certified as a staff ombudsman to
serve as a managing local ombudsman in accordance with §
88.102 of this chapter (relating
to Certification of an Ombudsman); and
(B) works with a host agency and the Office
to oversee the implementation of the Ombudsman Program in an ombudsman service
area.
(23) Office--The
Office of the State Long-Term Care Ombudsman. An organizational unit within
HHSC that:
(A) is headed by the State
Ombudsman;
(B) consists of
representatives of the Office who are employees of HHSC; and
(C) oversees the statewide implementation of
the Ombudsman Program.
(24) Older Americans Act--A federal law
(Title 42, United States Code, §3011 et seq.) that establishes and funds a
comprehensive service system for persons 60 years of age or older and certain
caregivers and family members of persons 60 years of age or older.
(25) Ombudsman database--The statewide
reporting system required by §712(c) of the Older Americans Act that is a
web-based application in which Ombudsman Program data is entered, stored,
maintained, and analyzed.
(26)
Ombudsman intern--A person who is being trained to be a volunteer ombudsman in
accordance with the Ombudsman Certification Training Manual but has not been
certified as a volunteer ombudsman.
(27) Ombudsman Program--The State Long-Term
Care Ombudsman Program as defined in 45 CFR §1324.1. The program through
which the functions of the Office are carried out by the State Ombudsman and
representatives of the Office.
(28)
Ombudsman Program records--The files, records, and other information created or
maintained by the State Ombudsman or a representative of the Office in the
performance of functions of the Ombudsman Program, including:
(A) information relating to complaint
investigations;
(B) emails and
documentation of phone conversations;
(C) documentation related to the budget and
expenditures for the Ombudsman Program; and
(D) information contained in the ombudsman
database.
(29) Ombudsman
service area--The county or counties, specified in the contract between HHSC
and a host agency, in which the local ombudsman entity performs functions of
the Ombudsman Program.
(30)
Organizational conflict of interest-- A situation in which an organization is
involved in multiple interests, financial or otherwise, that could affect the
effectiveness and credibility of the Ombudsman Program and includes an
organization:
(A) having any ownership,
operational, or investment interest in, or receiving grants or donations from,
an LTC facility;
(B) being an
association of LTC facilities or an affiliate of such an association;
(C) having responsibility for licensing,
surveying, or certifying LTC facilities;
(D) having a governing board member with an
ownership, investment, or employment interest in an LTC facility;
(E) providing long-term care to residents of
LTC facilities, including the provision of personnel for LTC facilities or the
operation of programs that control access to, or services of, LTC
facilities;
(F) providing long-term
care coordination or case management for residents of LTC facilities;
(G) setting reimbursement rates for LTC
facilities;
(H) providing adult
protective services, as described in Texas Human Resources Code, Chapter
48;
(I) determining eligibility
regarding Medicaid or other public benefits for residents of LTC
facilities;
(J) conducting PASRR
screening for LTC facility placements;
(K) making decisions regarding admission of
residents to, or discharge of residents from, LTC facilities; or
(L) providing guardianship, conservatorship,
or other fiduciary or surrogate decision-making services for residents of LTC
facilities.
(31)
PASRR--Preadmission Screening and Resident Review. A review performed in
accordance with 42 CFR Part 483, Subpart C.
(32) Private and unimpeded access--Has the
following meanings:
(A) as used in §
88.201(a)(1) of
this chapter (relating to Access to Facilities, Residents, and Resident
Records), access to enter an LTC facility without interference or obstruction
from facility employees, volunteers, or contractors; and
(B) as used in §
88.201(a)(2) of
this chapter, access to communicate with a resident outside of the hearing and
view of other persons without interference or obstruction from facility
employees, volunteers, or contractors.
(33) Representative of the Office--A staff
ombudsman, volunteer ombudsman, or ombudsman intern.
(34) Resident--A person of any age who
resides in an LTC facility.
(35)
Resident representative--A person chosen by a resident, through formal or
informal means, to act on behalf of the resident to:
(A) support the resident in
decision-making;
(B) access
medical, social, or other personal information of the resident;
(C) manage financial matters; or
(D) receive notifications.
(36) Staff ombudsman--A person who
meets the following criteria, including a managing local ombudsman:
(A) is certified as a staff ombudsman in
accordance with §
88.102 of this chapter;
(B) performs functions of the Ombudsman
Program; and
(C) is an employee or
independent contractor of:
(i) a host
agency;
(ii) a governmental entity
or nonprofit organization that contracts with a host agency, as described in
paragraph (16)(B) of this section; or
(iii) HHSC.
(37) State Ombudsman--The State Long-term
Care Ombudsman, as defined in 45 CFR §1324.1. The person who heads the
Office and performs the functions, responsibilities, and duties described in
§
88.101 of this chapter (relating
to Responsibilities of the State Ombudsman and the Office).
(38) Volunteer ombudsman--A person who:
(A) is certified as a volunteer ombudsman in
accordance with §
88.102 of this chapter;
(B) performs functions of the Ombudsman
Program; and
(C) is not an employee
or independent contractor of:
(i)
HHSC;
(ii) a host agency;
or
(iii) a governmental entity or
nonprofit organization that contracts with a host agency, as described in
paragraph (16)(B) of this section.
(39) Willfully interfere--To act or not act
to intentionally prevent, interfere with, or impede or to attempt to
intentionally prevent, interfere with, or impede.
