74(R) HB 1111 Senate Committee Report

BILL ANALYSIS

H.B. 1111
By: Naishtat (Rosson)
Health and Human Services
05-17-95
Senate Committee Report (Amended)
BACKGROUND

In 1993, reorganization of the health and human services functions
of the state resulted in moving the responsibility for
investigations of abuse and neglect in the state's mental health
and mental retardation facilities from the Texas Department of
Mental Health and Mental Retardation to the Department of
Protective and Regulatory Services. Confusion regarding the
investigation of complaints arising in community mental health and
mental retardation centers, however, remains.

PURPOSE

As proposed, H.B. 1111 clarifies provisions of the Human Resources
Code regarding guardianship; investigations of abuse, neglect, or
exploitation in facilities operated by certain state agencies; and
confidentiality requirements regarding investigations by the
Department of Protective and Regulatory Services.

RULEMAKING AUTHORITY

It is the committee's opinion that rulemaking authority is granted
to the Department of Protective and Regulatory Services under
SECTIONS 8 and 13 (Sections 48.037(a) and (b), 48.101(d) and (e),
Human Resources Code), the Texas Department of Mental Health and
Mental Retardation under SECTION 13 (Section 48.081(b), Human
Resources Code), and each state agency, other than the Texas
Department of Mental Health and Mental Retardation, that operates,
licenses, certifies, or registers a facility in which elderly or
disabled persons are located, under SECTION 13 (Section 48.083(a),
Human Resources Code) of this bill.

SECTION BY SECTION ANALYSIS

SECTION 1. Amends the heading of Chapter 48, Human Resources Code,
as follows:

CHAPTER 48. PROTECTIVE SERVICES FOR ELDERLY AND DISABLED PERSONS

SECTION 2. Amends Section 48.001, Human Resources Code, to declare
that the purpose of Chapter 48 is to provide for the authority,
rather than the right, to investigate the abuse, exploitation, or
neglect of an elderly or disabled person and to provide protective
services to that person.

SECTION 3. Amends Section 48.002, Human Resources Code, to redefine
"abuse," "exploitation," "neglect," "protective services,"
"department," "disabled person," and "legal holiday."

SECTION 4. Amends Chapter 48B, Human Resources Code, by amending
Section 48.021, and adding Section 48.0215, as follows:

Sec. 48.021. PROVISION OF SERVICES. Makes a nonsubstantive
change.

Sec. 48.0215. GUARDIANSHIPS. (a) Makes a nonsubstantive
change.

(b) Authorizes the Department of Protective and Regulatory
Services (department), as a last resort, to apply to be
appointed guardian of the person or estate of an elderly or
disabled person who, because of a physical or mental
condition, will be substantially unable to provide food,
clothing, or shelter for himself or herself, to care for the
individual's own physical health, or to manage the
individual's own financial affairs. Requires a
representative of the department to take the oath required
by the Texas Probate Code on behalf of the department if the
department is appointed guardian. Authorizes the
department, if it knows that an individual is willing and
able to serve as the guardian, to inform the court of that
individual's willingness and ability.

(c) Authorizes the department to contract with a political
subdivision of this state, a private agency, or another
state agency for the provision of guardianship services
under this section. Declares that the department or a
political subdivision of the state or state agency with
which the department contracts under this section is not
required to post a bond or pay any cost or fee otherwise
required by the Texas Probate Code.

(d) Declares that the department, if it is appointed
guardian, is not liable for funding services provided to the
department's ward.

SECTION 5. Amends the heading to Chapter 48C, Human Resources Code,
as follows:

SUBCHAPTER C. DEPARTMENT INVESTIGATION OF REPORTS OF SUSPECTED ABUSE, EXPLOITATION, OR NEGLECT

SECTION 6. Amends Section 48.036(a), Human Resources Code, to
require a person having reasonable cause to believe that an elderly
or disabled person is in the state of abuse to report the
information to the department, except as prescribed by Section
48.082, rather than by Subsection (c) of this section.

SECTION 7. Amends Section 48.0361(a), Human Resources Code, to
declare that a person commits an offense if the person has cause to
believe that an elderly or disabled person has been abused and
knowingly fails to report in accordance with Subchapter E.

SECTION 8. Amends Section 48.037, Human Resources Code, to require
the department, not later than 24 hours after the department
receives a report of suspected need for protective services under
Section 48.036 or 48.081, to initiate an investigation as needed to
evaluate the accuracy of the report and to assess the need for
protective services, unless the department determines that the
report does not concern abuse, neglect, or exploitation, as defined
by Section 48.002 or department rules.

(b) Requires the department to adopt rules for conducting
investigations under this chapter. Deletes a provision
granting rulemaking authority to certain state agencies.

SECTION 9. Amends Sections 48.038(a), (b), and (d)-(f), Human
Resources Code, as follows:

(a) Makes no change.

(b) Requires an investigation by the department or a state
agency to include an interview with the elderly or disabled
person, if appropriate. Authorizes the investigation to
include an interview with an alleged juvenile perpetrator of
the alleged abuse, neglect, or exploitation. Authorizes the
department or state agency to conduct an interview under this
subsection in private or to include any person the department
or agency determines is necessary.

(d) Requires a peace officer to accompany and assist the
person making a court-ordered, rather than forcible, entry
under this section.

(e) Deletes a provision requiring state agencies to prepare
and keep on file written reports.

(f) Requires a copy of the department's investigation, if it
reveals that the elderly or disabled person has been abused,
rather than physically abused, by another person in a manner
that constitutes a criminal offense under any law, including
Section 22.04, Penal Code, to be submitted to the appropriate
law enforcement agency.

SECTION 10. Amends Sections 48.0385 and 48.039, Human Resources
Code, as follows:

Sec. 48.0385. ACCESS TO RECORDS OR DOCUMENTS. (a) Requires
the department or state agency, as appropriate, to have access
to any records or documents, including medical and
psychological records, necessary to the performance of the
department's or state agency's duties under this chapter.
Requires a person or agency that has a record or document that
the department or state agency needs to perform its duties
under this chapter, without unnecessary delay, to make the
record or document available to the department or agency.

(b) Authorizes the department or another state agency that
cannot obtain access to a record or document that is
necessary to properly conduct an investigation or to perform
another duty under this chapter, to petition certain courts
for access to the record or document.

(c)-(e) Redesignate existing Subsections (b)-(d).
Sec. 48.039. IMMUNITY. (a) Deletes reference to a person
participating in an investigation required by this chapter.

(b) Declares that a person who at the request of the
department participates in an investigation required by this
chapter or in an action that results from that investigation
is immune from civil or criminal liability for any act or
omission relating to that participation if the person acted
in good faith and, if applicable, in the course and scope of
the person's assigned responsibilities or duties.

SECTION 11. Amends Section 48.040, Human Resources Code, as
follows:

(a) Requires the prosecuting attorney representing the state
in criminal cases in the county court, except as provided by
Subsection (b), to represent the department in any proceeding
under this chapter unless the representation would be a
conflict of interest.

(b) Requires the prosecuting attorney representing the state
in civil cases in the county court of a county having a
population of more than 2.8 million to represent the
department in any proceeding under this chapter unless the
representation would be a conflict of interest.
SECTION 12. Amends Section 48.056, Human Resources Code, to
authorize a protective services agency to furnish protective
services to an elderly or disabled person with the person's consent
or, if the person lacks the capacity to consent, without the
person's consent as provided by this chapter.

SECTION 13. Amends Sections 48.061(b)-(e) and (h), Human
Resources Code, to authorize the department, if it determines,
among other findings, that an elderly or disabled person is
suffering from abuse, exploitation, or neglect presenting a threat
to life or physical safety, to petition certain courts for an
emergency order authorizing protective services.

(c) Requires the petition to include, among other information,
the nature of the exploitation, and a medical report stating
that the person is suffering from abuse, exploitation, or
neglect presenting a threat to life or physical safety unless
the court finds that an immediate danger to the health or
safety of the elderly or disabled person exists and there is
not sufficient time to obtain the medical report.

(d) Authorizes the court, on finding that there is reasonable
cause to believe that abuse, exploitation, or neglect presents
a threat to life or physical safety for the elderly or
disabled person and that the person lacks capacity to consent
to services, to, among other actions, order medical services
and other available services necessary to remove conditions
creating the threat to life or physical safety, including the
services of law enforcement officers or emergency medical
services personnel.

(e) Authorizes an order to be renewed for not more than 14
additional days, rather than two 72-hour periods.

(h) Makes conforming and nonsubstantive changes.

SECTION 14. Amends Chapter 48, Human Resources Code, by amending
Subchapter E, and adding Subchapter F, as follows:

SUBCHAPTER E. New heading: INVESTIGATIONS IN CERTAIN FACILITIES

Sec. 48.081. INVESTIGATION OF REPORTS IN MHMR FACILITIES AND
IN COMMUNITY CENTERS. (a) Requires the department to receive
and investigate reports of the abuse, neglect, or exploitation
of an individual receiving services in a facility operated by
the Texas Department of Mental Health and Mental Retardation
(MHMR) or being provided services through a program under
contract with a facility operated by MHMR.

(b) Requires the department and MHMR to develop joint rules
to facilitate investigations in state mental health and
mental retardation facilities.

(c) Requires the department to receive and investigate a
report of the alleged abuse, neglect, or exploitation of an
individual receiving services in a community center or from
a program providing services under contract with a community
center.

(d) Requires the department to forward to a state mental
health or mental retardation facility, a community center,
or a program providing mental health or mental retardation
services under contract with such a facility or community
center a copy of any report the department receives relating
to the alleged or suspected abuse, neglect, or exploitation
of an individual receiving services from that facility,
community center, or program, and a copy of the department's
investigation findings and report.

(e) Requires the department, after completion of the appeals
process, to refer a complaint relating to an investigation
conducted by the department under this section to the
department's ombudsman office for appropriate action.

(f) Requires a copy of an investigation by the department
revealing that an elderly or disabled person has been abused
by another person in a manner that constitutes a criminal
offense under any law to be submitted to the appropriate law
enforcement agency.

(g) Defines "community center."

Sec. 48.082. INVESTIGATION OF REPORTS IN OTHER STATE
FACILITIES. (a) Requires a person who has reasonable cause to
believe that an elderly or disabled person has been abused,
exploited, or neglected in a facility operated, licensed,
certified, or registered by a state agency other than MHMR to
report the information to the state agency that operates,
licenses, certifies, or registers the facility for
investigation by that agency.

(b) Requires the department, if it receives a report under
this section relating to an elderly or disabled person in a
facility operated, licensed, certified, or registered by a
state agency other than MHMR to refer the report to that
agency.

(c) Requires a state agency that receives a report under
this section to make a thorough investigation promptly after
receiving the report. Declares that the primary purpose of
the investigation is the protection of the elderly or
disabled person.

(d) Requires the state agency to prepare and keep on file a
complete written report of each investigation conducted by
the agency under this section.

(e) Requires a copy of the investigation, if a state
agency's investigation reveals that an elderly or disabled
person has been abused by another person in a manner that
constitutes a criminal offense under any law, to be
submitted to the appropriate law enforcement agency.

(f) Requires a state agency that receives a complaint
relating to an investigation under this section to refer the
complaint to the agency's governing board or other entity
designated to receive such complaints for review and
appropriate action.

Sec. 48.083. RULES. (a) Requires each state agency, other
than MHMR, that operates, licenses, certifies, or registers a
facility in which elderly or disabled persons are located to
adopt rules relating to the investigation and resolution of
reports received under Section 48.082.

(b) Requires the Health and Human Services Commission
(commission) to review and approve the rules to ensure that
all agencies implement appropriate standards for the conduct
of investigations and that uniformity exists among agencies
in the investigation and resolution of reports.

Sec. 48.084. STATISTICS. (a) Requires each state agency,
other than MHMR, that operates, licenses, certifies, or
registers a facility in which elderly or disabled persons are
located to compile and maintain statistics on the incidence of
abuse, neglect, or exploitation of such persons that occurs in
the facilities.

(b) Requires the agency to make the statistics available to
the commission.

Sec. 48.085. INVESTIGATIONS IN NURSING HOMES AND SIMILAR
FACILITIES. (a) Declares that this subchapter does not apply
if the alleged or suspected abuse, neglect, or exploitation
occurs in a facility licensed under Chapter 242, Health and
Safety Code.

(b) Declares that alleged or suspected abuse, neglect, or
exploitation that occurs in a facility licensed under
Chapter 242, Health and Safety Code, is governed by Chapter
242B of that code.

SUBCHAPTER F. MISCELLANEOUS PROVISIONS

Sec. 48.101. New heading: CONFIDENTIALITY AND DISCLOSURE OF
INFORMATION; AGENCY EXCHANGE OF INFORMATION. (a) Makes
certain information confidential.

(b) Authorizes confidential information to be disclosed only
for a purpose consistent with this chapter and as provided
by department rule and applicable federal law.

(d) Requires the department, by rule, to provide for the
release on request to a person who is the subject of a
report of abuse, neglect, or exploitation, or to that
person's legal representative, of otherwise confidential
information relating to that report. Requires the
department to edit the information before release to protect
the confidentiality of information relating to the
reporter's identity and to protect any other individual
whose safety or welfare may be endangered by the disclosure.

(e) Authorizes the department to adopt rules relating to the
release of information contained in the record of a deceased
individual to whom the department has provided protective
services. Requires the rules to be consistent with the
purposes of this chapter and any applicable state or federal
law.

(f) Authorizes the department to establish procedures to
exchange with another state agency or governmental entity
information that is necessary for the department, agency, or
entity to properly execute its respective duties and
responsibilities to provide services to elderly or disabled
persons. Provides that an exchange of information under
this subsection does not affect whether the information is
subject to disclosure under Chapter 552, Government Code.
Deletes a provision regarding the confidentiality of
department or agency records.
Sec. 48.102. OBJECTIONS TO MEDICAL TREATMENT. Redesignates
existing Section 48.004. Provides that this chapter does not
authorize or require any medical treatment of a person who
objects on the grounds that the person is an adherent or
member of a recognized church or religious denomination the
tenets and practice of which may include reliance solely upon
spiritual means through prayer for healing.

Sec. 48.103. INTERFERENCE WITH INVESTIGATION OR SERVICES
PROHIBITED. (a) Prohibits a person from interfering with an
investigation by the department or by a protective services
agency of alleged abuse, neglect, or exploitation of an
elderly or disabled person, or the provision of protective
services to an elderly or disabled person.

(b) Authorizes the department or a protective services
agency to petition the appropriate court to enjoin any
interference with an investigation of alleged abuse,
neglect, or exploitation, or the provision of protective
services such as removal of the elderly or disabled person
to safer surroundings or safeguarding the person's resources
from exploitation.

SECTION 15. Repealer: Sections 48.036(c)-(f) (Report), 48.041
(Review of Investigations), and 48.060 (Interference with Voluntary
Services Prohibited), Human Resources Code.

SECTION 16. Effective date: September 1, 1995.

SECTION 17. Emergency clause.