This is urgent and it's time to make calls and send emails.
I had planned to do a detailed analysis on the two issues I outline here but decided to keep it as simple as possible (well, simple for me). Also, if you have not read Part 1 yet, I hope you will spend your very valuable time reading my ever so wandering words.
First, as a reminder, the role of the ombudsman as defined in federal law is to provide services to protect the health, safety, welfare, and rights of the residents.
Second, let me say from a family member perspective, I see no need to expand on exhaustive state and federal laws and regulations already in place for the ombudsman program. I will link to them in the comments. Thirdly, I continue to work with advocacy groups like ours around this nation. Other states ENVY us for the Texas Long-Term Care Ombudsman Program and the way ombudsmen in Texas respond to residents and have positive relationships with facillities. Nothing in SB-652 is fixing anything broken. You know me. I'd be screaming, "FIX IT!!" if it was.
Okay. Let's go.
SB-652 LIMITING ACCESSIBLE RECORDS - Bill language narrows the scope of records accessible to an ombudsman by limiting them to those a resident or the general public can access "during the normal course of business”.
Why does that matter? Because that "normal course of business" part is a subjective phrase that allows facilities the flexibility to self-determine which records qualify to be released and which do not. Federal regulations otherwise allow administrative records, policies, documents, and copies of all licensing and certification records maintained by the State with respect to long-term care facilities.
But the bill will allow facilities to evaluate record requests through a subjective filter of "during the normal course of business" anytime a food service contact would prove the milk was two weeks expired or an extermination record proves they sprayed the wrong chemical beside a bedbound resident, etc. and I call that a loophole. It does not help ombudsmen or help provide services to protect the health, safety, welfare, and rights of residents. It helps facilities. Did I ever mention I have records management pedigrees?
SB-652 GATHERING INFORMATION - Federal regulations say ombudsmen "may provide information regarding the complaint to another agency in order for such agency to substantiate the facts for regulatory, protective services, law enforcement, or other purposes so long as the Ombudsman or representative of the Office adheres to the disclosure requirements".
But THIS BILL SAYS no, no, no, you don't need to remember any of the that! It says the investigation of the ombudsman has the "sole purpose of gathering information necessary to resolve a resident’s complaint" and "to the resident's satisfaction". That's it. Resolve the complaint and get on with your life. (plus that part violates federal law)
SB-652 says ombudsmen have ZERO obligation to to record findings in a manner that will "satisfy a burden of proof required in an investigation conducted by a licensing or regulatory agency or a law enforcement agency". None whatsoever.
And while that is technically true, we live in a society that prosecutes people for failing to report animal neglect. Do we really want to put in STATUTE that whatever the ombudsman sees - moldy sandwich, bed sores, rats the size of a Corolla - it is not their legal obligation to photograph or record it for another agency?
But the REAL effect here is that if Long-term Care Regulation arrives or CMS shows up AFTER THE FACT related to an incident based on an ombudsman investigation and there's a poor record or no record, then there is no citation. And the next resident is no safer.
Does that protect the health, safety, welfare, and rights of the residents? Or does it protect the facility?
Oh, remember back there in parenthesis where I said it violates federal law? Well, what it does is rewrites federal law when it says an ombudsman's sole purpose is to resolve a resident’s complaint and to the resident's satisfaction. Federal law says ombudsmen "identify, investigate, and resolve complaints that are made by or on behalf of residents". That can be an anonymous complaint or by a family member or resident representative or whoever and not necessarily to the resident's satisfaction.
In closing, if you agree that this bill is bad for residents and weakens the LTC Ombudsman Program, please contact Senator Schwertner or Senator Perry and a member of the Senate Committee on Health and Human Services if one of them happens to be your Senator. Let them know how disappointed you are in this bill and that you hope it never even sees a committee hearing.
SB-652 is linked here: https://capitol.texas.gov/.../billtext/pdf/SB00652I.pdf...
We are Texas Caregivers for Compromise and we are #notgoingaway