BILL ANALYSIS
C.S.H.B. 1111
By: Naishtat, Hilderbran
03-29-95
Committee Report (Substituted)
BACKGROUND
In 1991, the Texas Legislature recognized the importance of
protecting the physical safety and emotional well-being of the most
vulnerable citizens of Texas. To help achieve this goal, a
separate state agency was created in 1991 in House Bill 7 (72nd
Leg. 1st. C.S.) by pulling together services relating to cases of
abuse and neglect among children, elderly citizens and people with
disabilities. The new agency, the Department of Protective &
Regulatory Services (DPRS), was carved out of the Dept. of Human
Services and charged with the duties, functions and activities of
protective services for elderly persons under Chapter 48 of the
Human Resources Code.
In 1993, further reorganization of health and human services
functions occurred, moving the responsibility for investigations of
abuse and neglect in the state's mental health and mental
retardation facilities from the Texas Dept. of Mental Health &
Mental Retardation to the Dept. of Protective & Regulatory
Services. However, some confusion regarding the investigation of
complaints arising in community mental health & mental retardation
centers still remained.
PURPOSE
H.B. 1111 seeks to clarify the role of the Adult Protective
Services (APS) division of the Dept. of Protective & Regulatory
Services with respect to guardianship, investigations and abuse or
neglect in facilities operated or regulated by the Texas Dept. of
Mental Health & Mental Retardation (MHMR) and other state agencies,
and confidentiality requirements regarding APS investigations.
RULEMAKING AUTHORITY
As substituted, H.B. 1111 grants new rulemaking authority in
the following sections: SEC. 8 in Sec. 48.037(b)(DPRS) relating to
the conduct of investigations; SEC. 13 in Sec. 48.081(b)(joint
rules by DPRS and the TX Dept. of Mental Health & Mental
Retardation) relating to investigations in state MHMR facilities;
in Sec. 48.083 (to each state agency other than TDMHMR that
operates, licenses, certifies, or registers a facility in which
elderly or disabled persons are located, unnamed in the bill)
relating to investigations and resolution of reports and allowing
the Health & Human Services Comm'n to review and approve rules; and
in Sec. 48.101(b),(d) and (e) (DPRS) relating to the release of
confidential information.
SECTION BY SECTION ANALYSIS
SECTION 1. Amends the heading of Chapter 48, Human Resources Code,
to reflect the responsibility of DPRS to provide protective
services to disabled as well as elderly persons, to read as
follows:
CHAPTER 48. PROTECTIVE SERVICES FOR ELDERLY AND DISABLED PERSONS
SECTION 2. Amends Section 48.001, Human Resources Code, to state
more clearly the authority of the agency to investigate abuse,
neglect, or exploitation of an elderly or abused person and to
provide protective services to that person.
SECTION 3. Amends Section 48.002(2), Human Resources Code, to
update and clarify the definitions of "abuse," "exploitation," and
"neglect", for the purposes of conducting investigations and
providing protective services; "protective services" in order to
include case management and to delete "legal assistance" from among
the services; "department" to mean DPRS, not DHS; "disabled person"
to identify a person with a disability which substantially impairs
that person's ability to provide adequately for his or her own care
or protection; and "legal holiday" to indicate the correct code
citation.
SECTION 4. Amends Section 48.021, Human Resources Code, by
requiring that DPRS and law enforcement agencies must cooperate in
providing protective services. Also breaks out DPRS's duties
relating to guardianship, by labeling previous subsection (e) as
Section 48.0215(a) and updating code citations. Also inserts new
subsections (b), (c) and (d) to read as follows:
Sec. 48.0215(b) authorizes DPRS, as a last resort, to apply to be
appointed guardian for an elderly or disabled person or inform the
court of a person willing and able to serve as guardian. Also
clarifies that when DPRS is appointed guardian, a Dept.
representative must take the oath of guardianship.
Sec. 48.0215(c) allows DPRS to contract for guardianship services
with political subdivisions of the state, private agencies, or
other state agencies; stipulates that probate bonds, costs, or
other legal fees required by the Probate Code be waived for DPRS or
its contractors.
Sec. 48.0215(d) eliminates DPRS' liability for funding services,
such as long-term care and burial costs, for wards of the state.
SECTION 5. Amends the heading of Subchapter C, Chapter 48, Human
Resources Code, to clarify DPRS' duties, to read as follows:
SUBCHAPTER C. DEPARTMENT INVESTIGATION OF REPORTS OF SUSPECTED
ABUSE, EXPLOITATION, OR NEGLECT.
SECTION 6. Amends Section 48.036(a), Human Resources Code, by
correcting citation.
SECTION 7. Amends Section 48.0361(a), Human Resources Code, by
correcting citation.
SECTION 8. Amends Section 48.037, Human Resources Code, to clarify
DPRS' responsibility to respond to reports of abuse & neglect
quickly by evaluating the accuracy of the report and need for
protective services; labels existing report determinations as (1)
and adds new (2), reports determined not to concern abuse, neglect
or exploitation, as defined above.
Amends Subsection (b) to grant to DPRS rulemaking authority
relating to the conduct of investigations under this chapter;
strikes previous provision allowing other agencies to adopt rules
relating to investigation and resolution of reports and DPRS'
review & approval of such rules.
SECTION 9. Amends Sections 48.038 (b), (d), (e), and (f), Human
Resources Code, to read as follows:
(b) Requires DPRS or other agency undertaking an investigation to
interview the person who is the subject of a report of alleged
abuse, exploitation, or neglect, if such an interview would be
appropriate, instead of the current requirement to visit the
person's residence. Also permits DPRS to interview an alleged
juvenile perpetrator of alleged abuse, exploitation, or neglect and
to conduct interviews in private or with other individuals, if DPRS
deems necessary.
(d) Requires a peace officer, not only to accompany, but also to
assist the person making a court-ordered entry onto premises in
order to conduct an investigation.
(e) Strikes provisions relating to other agency investigations.
(f) Requires DPRS to submit copies of investigations to the law
enforcement agencies when the abuse appears to constitute a
criminal offense.
SECTION 10. Amends Sections 48.0385 and 48.039, Human Resources
Code, as follows:
Sec. 48.0385. ACCESS TO RECORDS OR DOCUMENTS. Permits other state
agencies, as appropriate, in addition to DPRS to access records,
including medical and psychological records, as needed to perform
duties under Chapter 48. Requires the record's custodian to make
the record available without delay.
Sec. 48.039. IMMUNITY. (a) Provides to persons making reports
with immunity from civil or criminal liability. New subsection (b)
specifies that authorized DPRS volunteer, medical personnel, or law
enforcement officers have immunity if acting in good faith and in
the course and scope of their assigned duties. New subsection (c)
defines "volunteer".
SECTION 11. Amends Section 48.056, Human Resources Code, by
expanding DPRS' powers to provide needed protective services to an
individual without consent if the person lacks the capacity to give
consent.
SECTION 12. Amends Sections 48.061(b),(c),(d),(e), and (h), Human
Resources Code, as follows:
(b) Adds "exploitation" and "physical safety" to the situations
which may require DPRS to petition for an emergency order for
protective services.
(c) Adds "exploitation" and "physical safety" to information that
must be in the petition.
(d) Permits court to order add medical services or services of law
enforcement or emergency medical personnel if these services are
needed to protect an individual;
(e) Increases amount of time for a renewed emergency order from two
to 14 days.
(h) Allows DPRS to provide emergency protective services without a
court order if an immediate danger to the health and safety of an
elderly or disabled person exists.
SECTION 13. Amends Chapter 48, Human Resources Code, by changing
the heading of Subchapter E and adding new sections thereunder, and
adding a new Subchapter F, renumbering the subsections thereunder,
to read as follows:
SUBCHAPTER E: INVESTIGATIONS IN CERTAIN FACILITIES
Sec. 48.081. INVESTIGATIONS OF REPORTS IN MHMR FACILITIES. Adds
new subsections as follows:
(a) Requires DPRS to receive and investigate reports of abuse,
neglect, or exploitation in MHMR-operated or -contracted
facilities.
(b) Requires DPRS and MHMR to develop joint rules for
investigations in state facilities.
(c) Requires DPRS to receive & investigate reports of abuse,
neglect or exploitation regarding persons receiving services in
community centers or programs under contract with a community
center.
(d) Requires DPRS to forward to state MHMR facilities or programs
under contract with state facilities copies of reports received and
its findings from and report of investigations.
(e) Requires DPRS to refer to its own ombudsman's office
complaints concerning its own investigations, after the appeals
process.
(f) If an investigation reveals an abuse constituting a criminal
offense, requires DPRS to submit to appropriate law enforcement
agencies copies of its investigation.
Sec. 48.082. INVESTIGATION OF REPORTS IN OTHER STATE FACILITIES.
Adds new subsections as follows:
(a) Requires persons with reasonable cause to believe abuse has
occurred in a facility under the jurisdiction of an agency other
than MHMR to report such information to the proper state agency.
(b) Requires DPRS to refer reports relating to abuse of a person
in an agency other than MHMR to the appropriate agency.
(c) Requires state agencies receiving reports to conduct thorough
investigations promptly in order to protect the person.
(d) Requires state agencies to prepare and keep complete written
records of investigations conducted.
(e) If an investigation reveals an abuse constituting a criminal
offense, requires state agencies to submit to appropriate law
enforcement agencies copies of their investigations.
(f) Requires agencies to refer complaints about their
investigations to their governing boards or other designated
entities for review and appropriate action.
Sec. 48.083. RULES. Adds new subsections as follows:
(a) Requires state agencies, other than MHMR, that operate,
license, certifies, or registers facilities to adopt rules relating
to investigations and resolution of reports received.
(b) Requires the Health & Human Services Commission (HHSC) to
review and approve rules adopted in (a) to ensure implementation of
appropriate standards.
Sec. 48.084. STATISTICS. Adds new subsections as follows:
(a) Requires state agencies operating, licensing, certifying or
registering facilities in which elderly or disabled persons are
located, other than MHMR, to compile and maintain statistics on the
incidence of abuse, neglect, or exploitation in their facilities.
(b) Requires agencies to make statistics available to HHCS, upon
request.
Sec. 48.085. INVESTIGATIONS IN NURSING HOMES & SIMILAR FACILITIES.
Adds new subsections as follows:
(a) Specifies that this Subchapter E does not apply to
investigations in nursing homes or other facilities licensed under
Chapter 242, Health and Safety Code.
(b) Provides that cases of abuse, neglect or exploitation
occurring in facilities licensed under Chapter 242 are governed by
Subchapter B, Chap. 242, Health & Safety Code.
SUBCHAPTER F. MISCELLANEOUS PROVISIONS
Renumbers and amends existing sections to read as follows:
Sec. 48.101. CONFIDENTIALITY AND DISCLOSURE OF INFORMATION; AGENCY
EXCHANGE OF INFORMATION.
(a) Designates as confidential and not subject to the Open Records
Act, information relating to reports of abuse, neglect, or
exploitation made under Chapter 48; identity of persons making
reports; and files, records, communications and working papers used
or developed in investigations.
(b) Permits disclosure of confidential information only for a
purpose consistent with this chapter and as provided by Dept. rule
and applicable federal law.
(c) Permits courts to order disclosure only under certain
circumstances and specifies certain procedures.
(d) Requires DPRS by rule to release information concerning an
otherwise confidential report to a person who is the subject of the
report or to the person's legal representative, subject to the
editing of the information to remove the identity of the reporter
or any other individual whose identity must be protected.
(e) Authorizes DPRS to adopt rules for the release of information
in the record of a deceased recipient of APS services, consistent
with the purposes of this chapter and applicable state and federal
law.
(f) Permits DPRS to establish procedures to exchange information
with other state agencies or governmental entities as needed to
execute their duties and responsibilities regarding services.
Specifies that information so exchanged is nevertheless not subject
to Open Records. Strikes previous disclosure prohibition.
Sec. 48.102. OBJECTION TO MEDICAL TREATMENT. Renumbers and
clarifies existing provision.
Sec. 48.103. INTERFERENCE WITH INVESTIGATION OR SERVICES
PROHIBITED.
(a) Prohibits interference by anyone with an APS investigation or
delivery of protective services. (b) Permits DPRS to seek
injunctive relief from the courts to stop interference.
SECTION 14. Repeals Secs. 48.036(c)-(f); 48.041; and 48.060, Human
Resources Code.
SECTION 15. Effective date: September 1, 1995.
SECTION 16. Emergency clause.
COMPARISON OF ORIGINAL TO SUBSTITUTE
The committee substitute for H.B. 1111 clarified and amplified two
sections of the original bill, Section 8 and Section 13, by
eliminating the system of priorities in investigations initially
permitted; and clarifying in which facilities DPRS may investigate
reports of abuse and neglect with respect to MHMR state facilities,
community centers, and contracted programs.
SUMMARY OF COMMITTEE ACTION
On March 20, 1995, the House Human Services Committee met in public
hearing and laid out H.B. 1111. The following witnesses testified
for H.B. 1111: Shannon Noble, Texas Women's Political Caucus,
Austin, Howard Baldwin, Dept. of Protective & Regulatory Services,
Mike Bright, ARC of Texas. No one testified against or on H.B.
1111 and the bill was left pending.
While convened in a public hearing on March 29, 1995, the committee
took up H.B. 1111. Rep. Naishtat offered a committee substitute,
which was adopted without objection. Rep. Maxey moved to report
H.B. 1111 favorably as substituted to the full House. The motion
prevailed by a record vote of 6 AYES; 0 NAYS; 0 PNV; and 3 ABSENT.