By: Noble (Senate Sponsor - Miles) H.B. No. 4696

(In the Senate - Received from the House May 3, 2023; May 5, 2023, read first time and referred to Committee on Health & Human Services; May 21, 2023, reported adversely, with favorable Committee Substitute by the following vote: Yeas 8, Nays 0; May 21, 2023, sent to printer.) Click here to see the committee vote

COMMITTEE SUBSTITUTE FOR H.B. No. 4696 By: Miles

COMMITTEE VOTE

YeaNayAbsentPNV

KolkhorstX

PerryX

BlancoX

HallX

HancockX

HughesX

LaMantiaX

MilesX

SparksX

A BILL TO BE ENTITLED

AN ACT

relating to the reporting and investigation of certain allegations of abuse, neglect, and exploitation, the making and investigation of complaints alleging violations of certain health facility licensing requirements, and the content of the employee misconduct registry.

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

SECTION 1. Section 261.005, Family Code, is amended to read as follows:

Sec. 261.005. REFERENCE TO EXECUTIVE COMMISSIONER OR COMMISSION. Unless otherwise provided by a provision of this chapter, in [In] this chapter:

(1) a reference to the executive commissioner or the executive commissioner of the Health and Human Services Commission means the commissioner of the department; and

(2) a reference to the Health and Human Services Commission means the department.

SECTION 2. Section 261.105(c-1), Family Code, is amended to read as follows:

(c-1) Notwithstanding Subsections (b) and (c), if a report under this section relates to a child with an intellectual disability receiving services in a state supported living center as defined by Section 531.002, Health and Safety Code, or the ICF-IID component of the Rio Grande State Center, the department shall immediately notify the commission and the commission shall proceed with the investigation of the report as provided by Section 261.404. Notwithstanding Section 261.005, in this subsection, "commission" means the Health and Human Services Commission.

SECTION 3. Section 261.404, Family Code, is amended by amending Subsections (a), (a-1), (a-2), (a-3), (b), (c), and (d) and adding Subsection (a-4) to read as follows:

(a) Notwithstanding Section 261.005, in this section:

(1) "Commission" means the Health and Human Services Commission.

(2) "Executive commissioner" means the executive commissioner of the Health and Human Services Commission.

(a-1) The commission [department] shall investigate a report of abuse, neglect, or exploitation of a child receiving services from a provider, as those terms are defined by Section 48.251, Human Resources Code, or as otherwise defined by rule. The commission [department] shall also investigate, under Subchapter F, Chapter 48, Human Resources Code, a report of abuse, neglect, or exploitation of a child receiving services from an officer, employee, agent, contractor, or subcontractor of a home and community support services agency licensed under Chapter 142, Health and Safety Code, if the officer, employee, agent, contractor, or subcontractor is or may be the person alleged to have committed the abuse, neglect, or exploitation.

(a-2) [(a-1)] For an investigation of a child living in a residence owned, operated, or controlled by a provider of services under the home and community-based services waiver program described by Section 534.001(11)(B), Government Code, the department, in accordance with Subchapter E, Chapter 48, Human Resources Code, may provide emergency protective services necessary to immediately protect the child from serious physical harm or death and, if necessary, obtain an emergency order for protective services under Section 48.208, Human Resources Code.

(a-3) [(a-2)] For an investigation of a child living in a residence owned, operated, or controlled by a provider of services under the home and community-based services waiver program described by Section 534.001(11)(B), Government Code, regardless of whether the child is receiving services under that waiver program from the provider, the department shall provide protective services to the child in accordance with Subchapter E, Chapter 48, Human Resources Code.

(a-4) [(a-3)] For purposes of this section, Subchapters E and F, Chapter 48, Human Resources Code, apply to an investigation of a child and to the provision of protective services to that child in the same manner those subchapters apply to an investigation of an elderly person or person with a disability and the provision of protective services to that person.

(b) The commission [department] shall investigate a [the] report under this section under rules developed by the executive commissioner.

(c) If a report under this section relates to a child with an intellectual disability receiving services in a state supported living center or the ICF-IID component of the Rio Grande State Center, the commission [department] shall, within 24 hours [one hour] of receiving the report, notify the facility in which the child is receiving services of the allegations in the report.

(d) If, during the course of the commission's [department's] investigation of reported abuse, neglect, or exploitation, a caseworker of the commission [department] or the caseworker's supervisor has cause to believe that a child with an intellectual disability described by Subsection (c) has been abused, neglected, or exploited by another person in a manner that constitutes a criminal offense under any law, including Section 22.04, Penal Code, the caseworker shall immediately notify the commission's [Health and Human Services Commission's] office of inspector general and promptly provide the commission's office of inspector general with a copy of the commission's [department's] investigation report.

SECTION 4. Section 142.009(j), Health and Safety Code, is amended to read as follows:

(j) Except as provided by Subsections (h) and (l), a [an on-site] survey may [must] be conducted within 18 months after a survey for an initial license. After that time, an on-site survey must be conducted at least every 36 months.

SECTION 5. Section 142.018(b), Health and Safety Code, is amended to read as follows:

(b) A home and community support services agency that has cause to believe that a person receiving services from the agency has been abused, exploited, or neglected by an employee of the agency shall report the information to[:

[(1)] the commission [department; and

[(2) the Department of Family and Protective Services or other appropriate state agency as required by Section 48.051, Human Resources Code].

SECTION 6. Section 252.039, Health and Safety Code, is amended to read as follows:

Sec. 252.039. POSTING. Each facility shall prominently and conspicuously post for display in a public area of the facility that is readily available to residents, employees, and visitors:

(1) the license issued under this chapter;

(2) a sign prescribed by the commission [department] that specifies complaint procedures established under this chapter or rules adopted under this chapter and that specifies how complaints may be registered with the commission [department];

(3) a notice in a form prescribed by the commission [department] stating that inspection and related reports are available at the facility for public inspection and providing the commission's [department's] toll-free telephone number that may be used to obtain information concerning the facility;

(4) a concise summary of the most recent inspection report relating to the facility;

(5) a notice providing instructions for reporting an allegation of abuse, neglect, or exploitation to the commission [Department of Family and Protective Services]; and

(6) a notice that employees, other staff, residents, volunteers, and family members and guardians of residents are protected from discrimination or retaliation as provided by Sections 252.132 and 252.133.

SECTION 7. Section 252.121(a), Health and Safety Code, is amended to read as follows:

(a) A person, including an owner or employee of a facility, who has cause to believe that a resident is being or has been subjected to abuse, neglect, or exploitation shall report the suspected abuse, neglect, or exploitation to the commission [Department of Family and Protective Services, as required by Chapter 48, Human Resources Code, or Chapter 261, Family Code, as appropriate]. The commission [Department of Family and Protective Services] shall investigate the allegation of abuse, neglect, or exploitation in the manner prescribed by the commission [provided by Chapter 48, Human Resources Code, or Section 261.404, Family Code, as applicable].

SECTION 8. Section 252.125, Health and Safety Code, is amended to read as follows:

Sec. 252.125. IMMEDIATE REMOVAL TO PROTECT RESIDENT. Before the completion of the investigation by the commission [Department of Family and Protective Services], the commission [department] shall file a petition for temporary care and protection of a resident if the commission [department] determines[, based on information provided to the department by the Department of Family and Protective Services,] that immediate removal is necessary to protect the resident from further abuse, neglect, or exploitation.

SECTION 9. Sections 253.001(1) and (4), Health and Safety Code, are amended to read as follows:

(1) "Commission" means the Health and Human Services Commission ["Commissioner" means the commissioner of aging and disability services].

(4) "Facility" means:

(A) a nursing facility[:

[(i)] licensed by the commission under Chapter 242 [department]; [or]

(B) an intermediate care facility for individuals with an intellectual disability [(ii)] licensed by the commission under Chapter 252;

(C) [(B)] an adult foster care provider that contracts with the commission [department];

(D) [(C)] a home and community support services agency licensed by the commission [department] under Chapter 142; [or]

(E) [(D)] a prescribed pediatric extended care center licensed by the commission under Chapter 248A;

(F) an assisted living facility licensed by the commission under Chapter 247;

(G) a day activity and health services facility licensed by the commission under Chapter 103, Human Resources Code;

(H) a residential child-care facility as defined by Section 42.002, Human Resources Code, at which an elderly person or an adult with a disability resides or is in the facility's care;

(I) a provider who provides home and community-based services under the home and community-based services (HCS) waiver program or the Texas home living (TxHmL) waiver program; or

(J) a facility that is exempt from licensure under Section 252.003.

SECTION 10. Section 260A.001, Health and Safety Code, is amended by adding Subdivision (1-a) to read as follows:

(1-a) "Commission" means the Health and Human Services Commission.

SECTION 11. Section 260A.002, Health and Safety Code, is amended by amending Subsections (a-1) and (c) and adding Subsection (d) to read as follows:

(a-1) Notwithstanding any other provision of this chapter, a report made under this section that a provider is or may be alleged to have committed abuse, neglect, or exploitation of a resident of a facility other than a prescribed pediatric extended care center shall be investigated by the commission [Department of Family and Protective Services] in accordance with Subchapter F, Chapter 48, Human Resources Code, and this chapter does not apply to that investigation. In this subsection, "facility" and "provider" have the meanings assigned by Section 48.251, Human Resources Code.

(c) A person shall make an oral or electronic report immediately on learning of the abuse, neglect, or exploitation [and shall make a written report to the department not later than the fifth day after the oral report is made].

(d) A facility or provider shall submit a provider investigation report to the commission not later than the fifth day after the date the facility or provider makes the oral or electronic report under Subsection (c).

SECTION 12. Section 260A.007, Health and Safety Code, is amended by amending Subsection (e) and adding Subsection (e-1) to read as follows:

(e) In investigating the report of abuse, neglect, exploitation, or other complaint, the investigator for the commission [department] shall:

(1) conduct [make] an unannounced investigation [visit to the facility] to determine the nature and cause of the alleged abuse, neglect, or exploitation of the resident;

(2) interview each available witness, including the resident who suffered the alleged abuse, neglect, or exploitation if the resident is able to communicate or another resident or other witness identified by any source as having personal knowledge relevant to the report of abuse, neglect, exploitation, or other complaint;

(3) [personally] inspect any physical circumstance that is relevant and material to the report of abuse, neglect, exploitation, or other complaint and that may be objectively observed;

(4) if an on-site investigation is conducted, make a photographic record of any injury to a resident, subject to Subsection (n);

(5) write an investigation report that includes:

(A) the investigator's personal observations;

(B) a review of relevant documents and records;

(C) a summary of each witness statement, including the statement of the resident that suffered the alleged abuse, neglect, or exploitation and any other resident interviewed in the investigation; and

(D) a statement of the factual basis for the findings for each incident or problem alleged in the report or other allegation; and

(6) for a resident of an institution or assisted living facility, inspect any court order appointing a guardian of the resident who was the subject of the alleged abuse, neglect, or exploitation that is maintained in the resident's medical records under Section 242.019 or 247.070.

(e-1) In addition to the requirements under Subsection (e), the commission shall make an unannounced visit to a facility to conduct an investigation of abuse or neglect.

SECTION 13. Section 48.0021, Human Resources Code, is amended to read as follows:

Sec. 48.0021. REFERENCE TO COMMISSION OR EXECUTIVE COMMISSIONER. Unless otherwise provided by a provision of this chapter, in [In] this chapter:

(1) a reference to the Health and Human Services Commission means the Department of Family and Protective Services; and

(2) a reference to the executive commissioner means the commissioner of the Department of Family and Protective Services.

SECTION 14. Section 48.051, Human Resources Code, is amended by adding Subsection (b-1) and amending Subsection (c) to read as follows:

(b-1) This subsection applies only to a provider under the home and community-based services (HCS) waiver program or the Texas home living (TxHmL) waiver program, an intermediate care facility licensed under Chapter 252, Health and Safety Code, a state supported living center as defined by Section 531.002, Health and Safety Code, or a home and community support services agency licensed under Chapter 142, Health and Safety Code. Except as provided by Subsections (a) and (b), a person, including an officer, employee, agent, contractor, or subcontractor of a facility or provider subject to this subsection, having cause to believe that an individual receiving services from the facility or provider is in the state of abuse, neglect, or exploitation shall immediately report to the commission the information required by Subsection (d). Notwithstanding Section 48.0021, in this subsection "commission" means the Health and Human Services Commission.

(c) The duty imposed by Subsections (a), (b), and (b-1) [(b)] applies without exception to a person whose knowledge concerning possible abuse, neglect, or exploitation is obtained during the scope of the person's employment or whose professional communications are generally confidential, including an attorney, clergy member, medical practitioner, social worker, employee or member of a board that licenses or certifies a professional, and mental health professional.

SECTION 15. Section 48.251(a), Human Resources Code, is amended by adding Subdivisions (1-a) and (2-a) and amending Subdivision (3) to read as follows:

(1-a) "Commission" means the Health and Human Services Commission, notwithstanding Section 48.0021.

(2-a) "Executive commissioner" means the executive commissioner of the Health and Human Services Commission, notwithstanding Section 48.0021.

(3) "Facility" means:

(A) a facility listed in Section 532.001(b) or 532A.001(b), Health and Safety Code, [including community services operated by the Department of State Health Services or Department of Aging and Disability Services,] as described by those sections, or a person contracting with a health and human services agency to provide inpatient mental health services; [and]

(B) a facility licensed under Chapter 252, Health and Safety Code;

(C) a residential child-care facility as defined by Section 42.002 at which an elderly person or an adult with a disability resides or is in the facility's care; and

(D) a home and community support services agency licensed under Chapter 142, Health and Safety Code.

SECTION 16. Sections 48.252(b) and (c), Human Resources Code, are amended to read as follows:

(b) The department may not investigate under this subchapter reports of abuse, neglect, or exploitation alleged or suspected to have been committed by a provider that is operated, licensed, certified, or registered by a state agency that has authority under this chapter or other law to investigate reports of abuse, neglect, or exploitation of an individual by the provider. The department shall forward any report of abuse, neglect, or exploitation alleged or suspected to have been committed by a provider described by this subsection to the commission [appropriate state agency] for investigation.

(c) The commission [department] shall receive and investigate under this subchapter reports of abuse, neglect, or exploitation of:

(1) an individual who lives in a residence that is owned, operated, or controlled by a provider who provides home and community-based services under the home and community-based services waiver program described by Section 534.001(11)(B), Government Code, regardless of whether the individual is receiving services under that waiver program from the provider; and

(2) an elderly person or an adult with a disability who lives in or is in the care of a residential child-care facility as defined by Section 42.002.

SECTION 17. Sections 48.253(a), (b), and (c), Human Resources Code, are amended to read as follows:

(a) On receipt by the commission [department] of a report of alleged abuse, neglect, or exploitation under this subchapter, the commission [department] shall initiate a prompt and thorough investigation as needed to evaluate the accuracy of the report and to assess the need for emergency protective services, unless the commission [department], in accordance with rules adopted under this subchapter, determines that the report:

(1) is frivolous or patently without a factual basis; or

(2) does not concern abuse, neglect, or exploitation.

(b) After receiving a report that alleges that a provider is or may be the person who committed the alleged abuse, neglect, or exploitation, the commission [department] shall notify the provider [and the appropriate health and human services agency] in accordance with rules adopted by the executive commissioner.

(c) The provider identified under Subsection (b) shall:

(1) cooperate completely with an investigation conducted under this subchapter; and

(2) provide the commission [department] complete access during an investigation to:

(A) all sites owned, operated, or controlled by the provider; and

(B) clients and client records.

SECTION 18. Sections 48.254(a) and (c), Human Resources Code, are amended to read as follows:

(a) The executive commissioner by rule shall establish procedures for the commission [department] to use to forward a copy of the initial intake report and a copy of the completed provider investigation report relating to alleged or suspected abuse, neglect, or exploitation to the appropriate provider [and health and human services agency].

(c) A provider that receives the findings of an [a completed] investigation from the commission report under Subsection (a) shall forward the findings [report] to the managed care organization with which the provider contracts for services for the alleged victim.

SECTION 19. Sections 48.255(a) and (b), Human Resources Code, are amended to read as follows:

(a) The executive commissioner shall adopt rules to:

(1) prioritize investigations conducted under this subchapter with the primary criterion being whether there is a risk that a delay in the investigation will impede the collection of evidence in that investigation; and

(2) [establish procedures for resolving disagreements between the department and health and human services agencies concerning the department's investigation findings; and

[(3)] provide for an appeals process by the commission [department] for the alleged victim of abuse, neglect, or exploitation.

(b) A confirmed investigation finding by the commission [department] may not be changed by the administrator of a facility, a community center, a local mental health authority, or a local intellectual and developmental disability authority.

SECTION 20. Sections 48.256(a), (b), and (c), Human Resources Code, are amended to read as follows:

(a) The executive commissioner shall adopt rules that prescribe the appropriate manner in which [health and human services agencies and] managed care organizations provide the commission [department] with information necessary to facilitate the:

(1) identification of individuals receiving services from providers; and

(2) [to facilitate] notification of providers by the commission [department].

(b) The executive commissioner shall adopt rules requiring a provider to provide information [to the administering health and human services agency] necessary to facilitate the:

(1) identification by the commission [department] of individuals receiving services from providers; and

(2) [to facilitate] notification of providers by the commission [department].

(c) A provider of home and community-based services under the home and community-based services waiver program described by Section 534.001(11)(B), Government Code, shall post in a conspicuous location inside any residence owned, operated, or controlled by the provider in which home and community-based waiver services are provided, a sign that states:

(1) the name, address, and telephone number of the provider;

(2) the effective date of the provider's contract with the commission [applicable health and human services agency] to provide home and community-based services; and

(3) the name of the legal entity that contracted with the commission [applicable health and human services agency] to provide those services.

SECTION 21. Sections 48.258(a) and (b), Human Resources Code, are amended to read as follows:

(a) The commission [health and human services agencies] shall[, at the direction of the executive commissioner, jointly] develop and implement a system to track reports and investigations under this subchapter.

(b) To facilitate implementation of the system, the commission [health and human services agencies] shall use appropriate methods of measuring the number and outcome of reports and investigations under this subchapter.

SECTION 22. Section 103.008(b), Human Resources Code, is amended to read as follows:

(b) Any person may request an inspection of a facility by notifying the commission in writing of an alleged violation of a licensing requirement. The complaint shall be as detailed as possible and signed by the complainant. The commission shall:

(1) if the complaint alleges abuse, neglect, or exploitation, perform an [on-site] inspection as soon as feasible but not [no] later than the 14th day [30 days] after the date the commission receives [receiving] the complaint, unless after an investigation the complaint is found to be frivolous;[. The commission shall respond to a complainant in writing.]

(2) if the complaint does not allege abuse, neglect, or exploitation, investigate the complaint not later than the 45th day after the date the commission receives the complaint;

(3) respond to a complainant in writing; and

(4) [The commission shall also] receive and investigate anonymous complaints.

SECTION 23. The following provisions are repealed:

(1) Section 252.121(b), Health and Safety Code;

(2) Section 252.126(b), Health and Safety Code;

(3) Section 48.252(a), Human Resources Code; and

(4) Section 48.254(b), Human Resources Code.

SECTION 24. (a) As soon as practicable after the effective date of this Act, but not later than December 1, 2024, the commissioner of the Department of Family and Protective Services shall transfer any department funds and resources, including information technology, documents, and personnel allocated for the investigation of reports under Subchapter F, Chapter 48, Human Resources Code, to the Health and Human Services Commission to allow the commission to perform the functions described under Subchapter F, Chapter 48, Human Resources Code, as amended by this Act.

(b) Notwithstanding the effective date of this Act, the Health and Human Services Commission is not required to comply with changes in law made by this Act until the transfer required by Subsection (a) of this section is completed.

SECTION 25. If before implementing any provision of this Act a state agency determines that a waiver or authorization from a federal agency is necessary for implementation of that provision, the agency affected by the provision shall request the waiver or authorization and may delay implementing that provision until the waiver or authorization is granted.

SECTION 26. This Act takes effect September 1, 2023.

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