SECTION 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 and obtains approval from 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) when providing comments or recommended changes to a public official or governmental entity or information to a legislator or the media as described in subparagraph (A)(i) or (ii) of this paragraph, must include a statement that the comments, recommended changes, or information is made as a representative of the Office and does not represent the position or views of the host agency with whom the representative is affiliated;

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

(D) 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.

Source Note: The provisions of this §88.302 adopted to be effective April 5, 2018, 43 TexReg 2007