Please take the time to comment even it your comment is simply, "rules look good, thank you". Links to proposed rules are HERE and previous posts bout the rules are HERE and HERE. As I mentioned previously, Genny Lutzel, Deniese James-Itz, Cindy Napolitan, and I went over the rules at great length. Today I spoke with Alexa Schoeman, Deputy State Ombudsman, about some of our questions. You are free to do the same. 512-438-4281. You may also call Patty Ducayet, the State Ombudsman, and ask her your questions.
My comments are as follows:
Overall, the rules are very good and appear to be very focused on accountability and transparency. Some of the changes look like minor technical corrections and/or necessary to align with Federal law.
Many of the new policies appear to belong in the LTC Policies and Procedures Manual, not in the Texas Administrative Code. Federal law, 45 CFR § 1324.13, gives the State Ombudsman the task of developing policies and procedures and makes the State Ombudsman the chief administrator. I am concerned that if any of these administrative type issues need improving or amending, the State Ombudsman will be unable to make that change without waiting for the next formalized TAC rule amendment process. However, after speaking to Alexa Schoeman, I do understand that their office believes it is important that many of these polices be formalized and that putting these processes in a more visible and public location provides transparency and accountability.
Regarding §88.202. Notification to LTC Facility of Authorization to Access Resident Records and an ombudsman filling out a special HHSC form at the facility’s request. I have concerns about a form that might requires witnesses, certification, third party notifications, a notory or any kind of delay whereby the facility accepts the form but must have it approved by an administrator or corporate office before releasing a record, thereby delaying an investigation. I can see this being used as a deliberate stall tactic much the way open records requests are stalled at the municipal, state, and federal level. Alexa tells me that the Long-term Care Ombudsman office will be the ones who develop the form so no such delay will be built into the form. I do still have concerns since it is "policy" that the office makes the form and that part is not in the rule so it can change. I believe the burden should be on the facility to keep up with who accesses their records, not the ombudsman office. An ombudsman can sign for the receipt of a record much the way records are released in a city government or state setting. If that is the intent of the form and it is a one minute process that does not delay an investion, I do not object. But I'm concerned that there is room in this language to gradually make this form a much longer process and use it as a way to delay investigations.
Re: Section 88.201 and making sure it says “informed consent”, that simply aligns with the Federal definition. BUT Federal regulations specify that ORAL, VISUAL, OR AUXILIARY COMMUNICATED CONSENT IS ACCEPTABLE BUT MUST BE DOCUMENTED by a representative of the ombudsman office. I don't see that in our state regulations. Genny, Deniese, Cindy and I looked and looked and cannot find it. I verified with Alexa that it still applies since it is a Federal regulation, but I still want to see it restated in our state regulations.
Carmen Tilton, VP of Public Policy for the Texas Assisted Living Association, brought up "informed concent" in the HHSC Executive Council Meeting on February 15th when she objected to the phrase “incident report”. That reference is NOT PROPOSED TO BE CHANGED IN THE RULES. That is an existing record specifically mentioned in the Texas Admin Code apparently for a specific reason that TALA is requesting to have changed because it is more specific than Federal regulations. That is perfectly acceptable for states to do. I'm guessing at some point, incident reports were routinely withheld. I have personal experience with incident reports for my mother's injuries being withheld. What TALA is apparently proposing a new change to an existing rule that they have yet been unable to get addressed. Since “Incident Report” is often the title of the record used to record accidents, physical injuries, medical reactions, bad food, bed bugs, rodents, mold, flooded bathrooms, and all kinds of other things, removal of that specific phrase gives flexibility for a facility to attempt to withhold a record on the basis of it not containing a resident's name and only specifying a room number or the area of the facility, etc. I absolutely oppose any and all amendments, new rules, and/or repeals that make records less available to an ombudsman even if it is under the disguise of resident privacy.
Do make sure you at least email your support for the rules if you have no comments at all.
No group supports residents in long-term care and advocates for their health, safety, welfare and rights the way the Long-term Care Ombudsman Program does so it is very important that we, families, know what new limitations, if any, are being put on them.
We are Texas Caregivers for Compromise and we are #notgoingaway!
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