Legislation of the 75th Legislature of Texas Affecting Older Texans

by Bruce Bower, Texas Legal Services Center Staff Attorney

Significant changes are summarized. Unless otherwise stated, the legislation took effect September 1, 1997. The following abbreviations were used: "HB" means House Bill; "SB" means "Senate Bill; "HHSC" means the HHSC; "HRC" means Human Resources Code; and "TDHS" means the Texas Department of Human Services.

Allows a notary public to sign the name of a person who is physically unable to sign, but also requires that this be witnessed by a person who has no legal or equitable interest in the transaction.

This law allows TDHS to authorize additional Medicaid nursing home beds in any county where there are not more than two Medicaid certified nursing facilities. No more than 120 additional beds per year per county can be approved, and no more than 500 additional beds per year can be approved under this law for the entire state.

This law requires the HHSC to develop a pilot program to carry out the functional needs assessment for long-term care programs with a "consistent process." The law provides no funding, and the process it calls for can only be implemented, to the extent that gifts and grants fund it.

This law changes who can witness a Directive to Physicians ("Living Will") under Chapter 672 of the Health and Safety Code. A person authorized to make a treatment decision for a patient is now forbidden from being a witness to the Directive to Physician of the patient, and also forbidden to witness are officers, directors, partners, or business office employees of the health care facility, or of any parent organization of the health care facility. A different patient in the same health care facility as the patient who wants to execute the Directive is now permitted to witness a Directive to Physician.

Provides that, if the conditions set forth in that Section are met, the court shall -- no longer "may" -- order reasonable access to a grandchild by a grandparent.

Clarifies that the exemption from seizure provided by that article, which protects money or benefits paid under an insurance policy or annuity issued by a life, health, or accident insurance company, is in addition to the exemptions provided for by Chapter 42 of the Property Code.

Permits the Texas Department of Regulatory and Protective Services to obtain information from the Texas Department of Criminal Justice on any individual who applies to work or volunteer for, or does work or volunteer for, a non-profit tax-exempt organization that serves the elderly (and/or children, and/or the disabled).

This law requires TDHS to establish a pilot program for the treatment of Alzheimer’s patients, with one rural and one urban site. The program is to provide a continuum of care and comprehensive case management. The program is also to develop and implement counseling, education, and support services for the care givers and family members of Alzheimer’s patients. An advisory council is required for the pilot program.

This law requires the Texas Board of Health to establish a classification and license for Alzheimer’s facilities. A facility is not required to be classified under the law, in order to care for Alzheimer’s patients.

Requires that a personal care facility use its license number in all advertisements, solicitations, and promotional materials. Prohibits state agencies from obtaining an award of attorneys fees against a personal care facility, unless the agency assesses and collects a penalty. Requires the Board of Health, the Texas Department of Regulatory and Protective Services, and the Attorney General to enter into a memorandum of understanding regarding regulation of personal care facilities.

Redefines elderly person to be a person 60 years of age or older, rather than 55 years of age or older.

In addition to those who were previously bound by Chapter 102, this law now subjects persons to the Chapter if they provide attendant care, residential repair, or emergency response services to an elderly person. It requires every agency which licenses a person bound by the Chapter, to require that person to implement and enforce the Chapter. It also makes a violation of the Chapter grounds for license suspension or revocation.

Facilities which admit elderly persons for care or treatment must, within 30 days, inform the elderly person whether the elderly person is entitled to Medicare or Medicaid, and which items and services are covered by either Medicare or Medicaid, such that the elderly person may not be charged for them. Involuntary discharge from a care facility of an elderly person is prohibited unless certain conditions are met, and then only with 30 days advance notice, except in case of emergency.

Persons covered by the Chapter who provide services to an elderly individual are required to fully inform the elderly person in language that the elderly person can understand, of the elderly person’s total medical condition, and of any significant change in that condition. Those who are covered by the Chapter and who provide services to an elderly individual are required to provide the elderly individual with a written list of the elderly individual’s rights under the Chapter.

Limits the conditions under which physical or chemical restraints can be used against an elderly person.

Requires that any person who manages an elderly individual’s money must account on request to the elderly individual.

Allows an elderly person to choose and retain a personal physician, and to be fully informed in advance about treatment or care that may affect the elderly person’s well-being.

Provides that person 70 years of age -- and not a mere 65 years of age as previously -- can claim an exemption from jury service.

Provides for the establishment of a Guardianship Advisory Board, to advise the HHSC in adopting standards for guardianship programs. Requires the Commission to adopt such minimum standards -- for guardianship programs, persons providing services on behalf of guardianship programs, volunteer guardians, and private professional guardians. Requires ("subject to appropriations") that the Commission develop a plan to ensure that persons receive guardianship assistance and assistance in using less restrictive alternatives and that the Commission foster the establishment and growth of local volunteer guardianship programs. Allows -- but does not require -- the Commission to make grants to local volunteer guardianship programs.

Provides that divorce or annulment terminates the appointment of one spouse as the other’s attorney-in-fact under a durable power of attorney, unless the power of attorney expressly provides otherwise. States that when a durable power of attorney is used, a third party relying in good faith on the acts of the attorney-in-fact within the scope of the power of attorney is not liable to the principal. Reverses the means for selecting powers given to the attorney-in-fact so that now, only the powers lined through are withheld from the attorney-in-fact (previously, only those powers initialed were given to the attorney-in-fact). Allows a person to define when the person will be considered disabled. In the absence of the personalized definition, a physician can certify in writing that the person is unable to manage the person’s financial affairs. The certification (and the examination on which it is based) must occur after the date of the execution of the power of attorney.

Allows the Attorney General to seek, on behalf of the state, a penalty of $10,000 per violation of the Deceptive Trade Practices Act (up to $100,000 total), if the consumer protection division determines that the act or practice was calculated to acquire or deprive money or property from a consumer who was 65 years of age or older, when the act or practice occurred.

This law applies to home health care providers, hospice services, and personal assistance service providers. The law sets licensing fees, penalties, and conditions for revoking licenses, of home health care providers, hospice providers, and personal assistance service providers. The penalties range from $100 to $1000 per violation. Minor violations can only be assessed a penalty if they are continuing in nature, or are uncorrected. Gives enforcement powers to the Texas Department of Health.