H.B. No. 3100

RIGHTS OF THE ELDERLY

Effective Date: September 1, 1997

AN ACT

relating to rights of the elderly.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1.  Chapter 102, Human Resources Code, is amended to read as follows:

CHAPTER 102. RIGHTS OF THE ELDERLY

Sec. 102.001.  DEFINITIONS. In this chapter:

(1)  "Convalescent and nursing home" means an institution licensed by the Texas Department of Human Services under Chapter 242, Health and Safety Code.

(2)  "Home health services" means the provision of health service for pay or other consideration in a patient's residence regulated under Chapter 142, Health and Safety Code.

(3)  "Alternate care" means services [for the elderly] provided [by the Texas Department of Human Services] within an [the] elderly individual's own home, neighborhood, or community, including:

(A)  day care;

(B)  foster care;

(C)  alternative living plans, including personal care services; and

(D)  supportive living services, including attendant care, residential repair, or emergency response services.

(4)  "Person providing services" means an individual, corporation, association, partnership, or other private or public entity providing convalescent and nursing home services, home health services, or alternate care services.

(5)  "Elderly individual" means an individual 60 [55] years of age or older.

Sec. 102.002.  PROHIBITION. (a) A person providing services to the elderly may not deny an elderly individual a right guaranteed by this chapter.

(b)  Each agency that licenses, registers, or certifies [If] a person providing services [receives funds from the Texas Department of Human Services, the department] shall require the person to implement and enforce this chapter. A violation of this chapter is grounds for suspension or revocation of the license, registration, or certification of a person providing services.

Sec. 102.003.  RIGHTS OF THE ELDERLY. (a) An [In addition to other rights an] elderly individual has all the rights, benefits, responsibilities, and privileges granted by the constitution and laws of this state and the United States, except where lawfully restricted. The elderly individual has the right to be free of interference, coercion, discrimination, and reprisal in exercising these civil rights [as a citizen, an elderly individual has the rights provided by this section].

(b)  An elderly individual has the right to be treated with dignity and respect for the personal integrity of the individual, without regard to race, religion, national origin, sex, age, disability, marital status, or source of payment. This means that the elderly individual:

(1)  has the right to make the individual's own choices regarding the individual's personal affairs, care, benefits, and services;

(2)  has the right to be free from abuse, neglect, and exploitation; and

(3)  if protective measures are required, has the right to designate a guardian or representative to ensure the right to quality stewardship of the individual's affairs [may not be physically or mentally abused or exploited].

(c)  An elderly individual has the right to be free from physical and mental abuse, including corporal punishment or physical or chemical restraints that are administered for the purpose of discipline or convenience and not required to treat the individual's medical symptoms. A person providing services may use physical or chemical restraints only if the use is authorized in writing by a physician or the use is necessary in an emergency to protect the elderly individual or others from injury. A physician's written authorization for the use of restraints must specify the circumstances under which the restraints may be used and the duration for which the restraints may be used. Except in an emergency, restraints may only be administered by qualified medical personnel. [may not be physically or chemically restrained unless the restraint:

[(1)  is necessary in an emergency to protect the elderly individual or others from injury after the individual harms or threatens to harm himself or another; or

[(2)  is authorized in writing by a physician for a limited and specified period of time.]

(d)  A mentally retarded elderly individual with a court-appointed guardian of the person may participate in a behavior modification program involving use of restraints or adverse stimuli only with the informed consent of the [a] guardian.

(e)  [An elderly individual should be treated with respect, consideration, and recognition of the individual's dignity and individuality. An elderly individual receives personal care and private treatment.

[(f)  An elderly individual may not be denied appropriate care on the basis of the individual's race, religion, color, national origin, sex, age, handicap, marital status, or source of payment.

[(g)]  An elderly individual may not be prohibited from communicating in the individual's native language with other individuals or employees for the purpose of acquiring or providing any type of treatment, care, or services.

(f) [(h)]  An elderly individual may complain about the individual's care or treatment. The complaint may be made anonymously or communicated by a person designated by the elderly individual. The person providing service shall promptly respond to resolve the complaint. The person providing services may not discriminate or take other punitive action against an elderly individual who makes a complaint [is encouraged and assisted in the exercise of an individual's rights. An elderly individual may voice grievances or recommend changes in policy or service without restraint, interference, coercion, discrimination, or reprisal. The person providing services shall develop procedures for submitting complaints and recommendations by elderly individuals and for assuring a response by the person providing services].

(g) [(i)]  An elderly individual is entitled to privacy while attending to personal needs and a private place for receiving visitors or associating [may associate, communicate, and meet privately] with other individuals unless providing privacy [to do so] would infringe on the rights of other individuals. This right applies to medical treatment, written communications, telephone conversations, meeting with family, and access to resident councils. An elderly person may send and receive unopened mail, and the person providing services shall ensure that the individual's mail is sent and delivered promptly. If an elderly individual is married and the spouse is receiving similar services, the couple may share a room. [An elderly individual's mail may not be opened unless authorized in writing by a physician.]

(h) [(j)]  An elderly individual may participate in activities of social, religious, or community groups unless the participation interferes with the rights of other persons [a physician determines that participation would harm the individual. The physician must record the determination in the elderly individual's record].

(i) [(k)]  An elderly individual may manage the individual's [his] personal financial affairs. The elderly individual may authorize in writing another person to manage the individual's money. The elderly individual may choose the manner in which the individual's money is managed, including a money management program, a representative payee program, a financial power of attorney, a trust, or a similar method, and the individual may choose the least restrictive of these methods. A person designated to manage an elderly individual's money shall do so in accordance with each applicable program policy, law, or rule. On request of the elderly individual or the individual's representative, the person designated to manage the elderly individual's money shall make available the related financial records and provide an accounting of the money. An elderly individual's designation of another person to manage the individual's money does not affect the individual's ability to exercise another right described by this chapter. If an elderly individual is unable to designate another person to manage the individual's affairs and a guardian is designated by a court, the guardian shall manage the individual's money in accordance with the Probate Code and other applicable laws [If the elderly individual authorizes in writing the person providing services to assist in managing the finances, the person providing services shall deposit the elderly individual's funds in a separate trust fund and provide the individual with a written receipt; provided, however, if federal regulations prescribe a different procedure, federal regulations prevail].

(j) [(l)]  An elderly individual is entitled to access to the individual's personal and clinical records. These records are confidential and may not be released without the elderly individual's consent, except the records may be released:

(1)  to another person providing services at the time the elderly individual is transferred; or

(2)  if the release is required by another law [individual's records are confidential and may not be released without the individual's written permission. An elderly individual may inspect the individual's personal records maintained by the person providing services].

(k) [(m)]  A person providing services shall fully inform an elderly individual, in language that the individual can understand, of the individual's total medical condition and shall notify the individual whenever there is a significant change in the person's medical condition [shall answer an elderly individual's questions concerning the individual's health, treatment, and condition unless a physician determines that the knowledge would harm the individual. The physician must record the determination in the individual's record].

(l) [(n)]  An elderly individual may choose and retain a personal physician and is entitled to be fully informed in advance about treatment or care that may affect the individual's well-being.

(m) [(o)]  An elderly individual may participate in an individual plan of care that describes the individual's medical, nursing, and psychological needs and how the needs will be met [planning the individual's total care and medical treatment].

(n) [(p)]  An elderly individual may [shall be given the opportunity to] refuse medical treatment after the elderly individual:

(1)  is advised by the person providing services of the possible consequences of refusing treatment; and

(2)  acknowledges that the individual clearly understands the consequences of refusing treatment [are fully explained].

[(q)  If an area is available, a person providing services shall, on request, provide the elderly individual with a private area to receive visitors. If the elderly individual is married and the spouse is receiving similar services, the couple may share a room.

[(r)  An elderly individual's visitors may not be restricted unless a physician determines that a restriction is medically necessary.]

(o) [(s)]  An elderly individual may retain and use personal [clothing and] possessions, including clothing and furnishings, as space permits. The number of personal possessions may be limited for [health and safety reasons which are documented in the patient's medical record. The number of personal possessions may be limited for] the health and safety of other individuals [patients].

(p) [(t)]  An elderly individual may refuse [not be required] to perform services for the person providing services.

(q)  Not later than the 30th day after the date the elderly individual is admitted for service, a[(u) A] person providing services shall inform the [an elderly] individual:

(1)  whether the individual is entitled to benefits under Medicare or Medicaid; and

(2)  which items and services are covered by these benefits, including items or services for which the elderly individual may not be charged [in writing of available services and the applicable charges if the services are not covered by medicare, medicaid, or other form of health insurance].

(r) [(v)]  A person providing services may not transfer or discharge an elderly individual unless:

(1)  the transfer is for the elderly individual's welfare, and the individual's needs cannot be met by the person providing services [medical needs require transfer];

(2)  the elderly individual's health is improved sufficiently so that services are no longer needed;

(3)  the elderly individual's health and safety or the health and safety of another individual would be endangered if the [requires] transfer or discharge was not made;

(4)  the person providing services ceases to operate or to participate in the program that reimburses the person providing services for the elderly individual's treatment or care; or

(5) [(3)]  the elderly individual fails, after reasonable and appropriate notices, to pay for services[, except as prohibited by federal law].

(s)  Except in an emergency, a person providing services may not transfer or discharge an elderly individual from a residential facility until the 30th day after the date the person providing services provides written notice to the elderly individual, the individual's legal representative, or a member of the individual's family stating:

(1)  that the person providing services intends to transfer or to discharge the elderly individual;

(2)  the reason for the transfer or discharge listed in Subsection (r);

(3)  the effective date of the transfer or discharge;

(4)  if the individual is to be transferred, the location to which the individual will be transferred; and

(5)  the individual's right to appeal the action and the person to whom the appeal should be directed [(w) Except in an emergency situation, if a person providing services intends to transfer or discharge an elderly person, the person providing services shall notify the individual, the responsible party of the patient, and attending physician not later than five days before the date on which the individual will be transferred or discharged].

(t)  An elderly individual may:

(1)  make a living will by executing a directive under the Natural Death Act (Chapter 672, Health and Safety Code);

(2)  execute a durable power of attorney for health care under Chapter 135, Civil Practice and Remedies Code; or

(3)  designate a guardian in advance of need to make decisions regarding the individual's health care should the individual become incapacitated.

Sec. 102.004.  LIST OF RIGHTS. (a) A person providing services shall provide each elderly individual with a written list of the individual's rights and responsibilities, including each provision of Section 102.003 [the rights prescribed by this chapter], before providing services or as soon after providing services as possible, and shall post the list in a conspicuous location.

(b)  A person providing services must inform an elderly individual of changes or revisions in the list.

Sec. 102.005.  RIGHTS CUMULATIVE. The rights described in this chapter are cumulative of other rights or remedies to which an elderly individual may be entitled under law.

SECTION 2.  (a) This Act takes effect September 1, 1997.

(b)  The application of Chapter 102, Human Resources Code, to a person who on August 31, 1997, is considered to be an "elderly individual" under Chapter 102 is not affected by the change made by this Act in the age requirement under that chapter, and Chapter 102 continues to apply to such a person as if the age requirement had not changed.

SECTION 3.  The importance of this legislation and the crowded condition of the calendars in both houses create an emergency and an imperative public necessity that the constitutional rule requiring bills to be read on three several days in each house be suspended, and this rule is hereby suspended.


Courtesy of Glenn M. Karisch, Ikard & Golden, P. C., Austin, Texas. This page was last revised on May 26, 1997.