SECTION 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 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.

(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.

Source Note: The provisions of this §88.2 adopted to be effective April 5, 2018, 43 TexReg 2007