74(R) HB 1662 House Committee Report

BILL ANALYSIS

C.S.H.B. 1662
By: Hilderbran
04-12-95
Committee Report (Substituted)

BACKGROUND

In reorganizing the state's health and human services during
1991, Texas lawmakers recognized a need for a separate agency to
oversee programs providing protective services for children,
elderly and disabled persons; family support and family
preservation services; and regulation of child-care facilities and
child-care administrators. As a result, the Department of
Protective & Regulatory Services (DPRS) was created in H.B. 7,
pulling the relevant provisions away from the Texas Dept. of Human
Services, which had previously handled these programs.

DPRS' enabling statute was located in Article 4413 (503) of
the Revised Statutes, although many of the programs the agency
administers are located in the Human Resources Code. As
Legislative Council attempted to codify the provisions of H.B. 7
and the clean-up measure, H.B. 1510, passed in 1993, several
discrepancies with Human Resources Code provisions were identified.

For example, statutes authorizing the agency to obtain
criminal history record information exist in the Government Code
(specifically for DPRS) and in Chapter 22 of the Human Resources
Code. Questions arise regarding whether DPRS can rely on Chapter
22 (General Functions of Department [of Human Services]) as
authority.

Under the Government Code, DPRS may request criminal history
information from the Dept. of Public Safety for use in
investigating certain employees, applicants, and volunteer
organizations. However, the agency may access only that
information which relates to specific offenses. Further, DPRS may
only release such information to a person who is the subject of the
information, or to a regulated facility that employs or may employ
a person who is the subject of the information, unless a court
order release or the person consents to release.

PURPOSE

H.B. 1662 would create a new chapter in the Human Resources
Code, Chapter 40, to provide for the powers, duties and
responsibilities of the Department of Protective and Regulatory
Services. Three new subchapters would be establishes in the Code
to organize more clearly the relevant statutes.

The bill would also broaden the Department's authority to
access criminal history record information under certain
circumstances.

RULEMAKING AUTHORITY

It is the committee's opinion that H.B. 1662 expressly grants
rulemaking authority to the Department of Protective & Regulatory
Services in Section 1 of the bill in Sec. 40.002(e), Sec.
40.004(c), Sec. 40.005(a) and (c), Sec. 40.029; and in Section 7 of
the bill in Sec. 411.114(a)(3).

SECTION BY SECTION ANALYSIS

SECTION 1. Amends Subtitle D, Title 2, Human Resources Code, by
adding a new Chapter 40, to enable the Department of Protective and
Regulatory Services (DPRS) to carry out its statutory duties and
responsibilities. Creates three new subchapters: Subchapter A,
"General Provisions", Subchapter B, "Administrative Provisions",
and Subchapter C, "General Functions of the Department", as
follows:

CHAPTER 40. DEPT. OF PROTECTIVE & REGULATORY SERVICES

SUBCHAPTER A. GENERAL PROVISIONS

Sec. 40.001. Includes definitions for the following terms:
"board", "commission", "department" and "executive director".

Sec. 40.002. (a) Declares that the Dept. of Protective &
Regulatory Services (DPRS) consists of the board, the executive
director, staff and other officers and employees needed to carry
out the purposes of this chapter.

(b) Declares DPRS to be the agency with primary responsibility for

(1) providing protective services to children, elderly
and disabled persons;
(2) providing family preservation services;
(3) regulating child-care facilities and administrators.

(c) Requires DPRS to cooperate with the federal government in
administering the federal programs under Parts B and E of Title IV
of the Social Security Act and other federal laws.

(d) Requires DPRS to cooperate with the U.S. Dept. of Health &
Human Services and other federal and state agencies as needed to
qualify for federal funds to deliver services.

(e) If DPRS determines that state law conflicts with federal law,
permits DPRS to adopt policies and rules necessary to comply with
federal law in order to receive and spend federal funds.

Sec. 40.003. Provides sunset date of September 1, 1999.

Sec. 40.004. (a) Requires DPRS to develop and implement policies
to allow the public to appear on issues.

(b) Requires DPRS to prepare information of public interest on its
functions and about complaint procedures.

(c) Requires DPRS by rule to establish methods to notify public
about complaint procedures.
(d) Requires DPRS to keep information about complaints relating to
licensees or regulated entities and services delivered by the
agency.
(e) Requires DPRS to notify parties of pending complaints.

Section 40.005. (a) Requires DPRS to establish and enforce rules
governing the confidentiality of its records, papers, files and
communications.

(b) Requires DPRS to prescribe safeguards governing the use or
disclosure of information relating to recipients of services or
investigations conducted.

(c) Instructs DPRS by rule to prescribe a process by which an
administrative law judge may disclose requested confidential
information in the agency's possession, under certain
circumstances.

(d) Requires a person receiving confidential information to
maintain its confidentiality and prevent disclosure to others.

(e) Creates a Class A misdemeanor offense for persons disclosing
confidential information without authorization.

Section 40.006. Subjects DPRS to Texas Government Code Chapter 551
(Open Meetings Act) and Chapters 2001 (Administrative Procedure
Act) and 2002 (Texas Register and Admin. Code).

SUBCHAPTER B. ADMINISTRATIVE PROVISIONS

Sec. 40.021. (a) Creates six-member Board of Protective and
Regulatory Services, appointed by the governor with senate consent.
Permits the governor to designate one member as the presiding
officer.

(b) Requires four board members to have demonstrated interest in
services provided by the agency and two representing the public.
(c) Requires appointments be made without regard to race, color,
disability, sex, religion, age or national origin.

Section 40.022. (a) Specifies restrictions on appointment of
Board members, including ineligibility due to person or person's
spouse (1) employed by or participating in management of a DPRS
regulated entity or one receiving a substantial amount of money
from the agency; (2) owns or controls more than 10% interest in a
regulated entity or one receiving agency funds; (3) using or
receiving a substantial amount of tangible goods, services, or
funds from the agency, other than compensation or reimbursement for
authorized expenses, or as a client, parent, guardian of a client
receiving Dept. services; or (4) is an employee, officer or paid
consultant of a trade ass'n in the agency's regulated area.

(b) Prohibits registered lobbyists from serving on the board.

Section 40.023. (a) Specifies grounds for removal of board
members, including ineligibility due to not having or maintaining
the required qualifications at time of appointment; violating a
prohibition in 40.022 above, unable to discharge member's duties
due to illness or disability, or absent from more than half of the
regular board meetings, or absent from more than two consecutive
meetings, unless the absence is excused by a majority vote of the
board.

(b) Declares that board action is not invalid due to existence of
grounds for removal.
(c) Requires presiding officer to report grounds for removal to
the governor, if s/he has such knowledge.

Section 40.024. Provides six-year terms, with the terms of two
members expiring February 1 of each odd-numbered year.

Section 40.025. Entitles Board members to per diem as prescribed
by the General Appropriations Act.

Section 40.026. (a) Requires at least quarterly board meetings,
allowing the presiding officer to call meetings.

(b) Specifies that four members constitute a quorum.

Section 40.027. (a) Requires board to hire an executive director,
approved by the governor, to serve at the pleasure of the board.

(b) Requires executive director to perform duties assigned by the
Board.

Section 40.028. (a) and (b) Establishes duties of the board
including supervising the executive director and developing and
implementing policies to separate responsibilities of the board and
staff.

(c) Permits board to delegate any powers and duties to the
executive director, including authority to make final orders or
decisions, except adoption of rules. Such delegation must be in
writing.

Section 40.029. Requires board to propose and adopt rules to
ensure compliance with state and federal laws, and to facilitate
the implementation of programs.

Section 40.030. Permits board to appoint advisory committees.

Section 40.031. Permits board to establish divisions within the
department, and to allocate functions, programs, and activities as
necessary.

Section 40.032. (a) Permits executive director to employ
personnel to administer agency duties.

(b) Requires executive director to develop career ladder program.
(c) Requires executive director to develop system of annual
employee performance evaluations. (d) Requires executive director
to provide information to employees about qualifications and
responsibilities.

(e) Requires executive director to prepare and maintain written
policy statement to ensure implementation of an equal employment
opportunity (EEO) program.

(f) Requires EEO statement to be filed with the governor's office.
Requires governor to report biennially to legislature, separately
or as part of another report.

Section 40.033. Allows DPRS to establish a merit system for
employees, which may be maintained in conjunction with other state
agencies that are required by federal law to operate under a merit
system.

Section 40.034. Revolving door restriction.

(a) Prohibits former officers or employees from procuring,
attempting or aiding in procuring contracts with the agency for
one year after termination of employment.

(b) Provides exemptions for persons who are below salary group 17,
or former officers or employees who are employed by another state
agency or a community center.

SUBCHAPTER C: GENERAL FUNCTIONS OF DEPARTMENT

Section 40.051. Requires DPRS to develop a strategic plan based on
goals and priorities in HHSC's coordinated strategic plan.

Section 40.052. Specifies duties required of agency relating to
delivery of services, including proposing and implementing service
delivery standards for programs; providing training and technical
assistance to regional and local service providers; developing and
implementing systems for monitoring program performance and service
delivery; promoting innovative service delivery at the local level;
and cooperation and coordination with other governmental entities.

Section 40.053. Requires agency to perform other functions as
required by law.

Section 40.054. Subject to the availability of funds, authorizes
DPRS to obtain criminal history information from the Department of
Public Safety, other state or federal law enforcement agencies.

Section 40.055. Requires DPRS to submit legislative appropriation
requests to HHSC for comment and incorporation into the
consolidated HHS budget recommendation.

Section 40.056. (a) Authorizes DPRS to extend the scope of its
programs as necessary to ensure that federal matching funds are
available, if such extension is feasible and within appropriated
funds.

(b) Permits agency to accept, spend, and transfer federal and
state funds for federally authorized programs, and funds from other
sources.

Section 40.057. Permits DPRS to accept gifts or grants from public
or private sources.

Section 40.058. Authorizes DPRS to contract with any person,
federal state or public or private agency, to perform its powers or
duties. Such agreements are not subject to Chapter 771
(Interagency Cooperation Act) in Government Code.

Section 40.059. Permits DPRS to set and charge fees to administer
and deliver services.

Section 40.060. Provides indemnification for legal expenses of
employees who are criminally prosecuted in the course and scope of
duty and subsequently acquitted.

Section 40.061. Provides department employees and volunteers with
immunity from civil or criminal liability for good faith actions
taken in the course and scope of their duties and responsibilities;
defines "volunteer."

Section 40.062. Establishes an exemption for the agency from court
costs and other fees.

Section 40.063. Provides exceptions from certain provisions of the
Administrative Procedure Act for the department, relating to a
grant, payment, denial or withdrawal of financial or medical
assistance or benefits under a DPRS program.

Section 40.064. (a) Authorizes DPRS to execute a memorandum of
agreement (MO) with other state agencies to facilitate
implementation of programs.

(b) Permits DPRS to establish procedures to exchange information
with other governmental entities.

SECTION 2. Amends heading of Title 2, Human Resources Code, to
reflect the addition of the Department of Protective and Regulatory
Services.

SECTION 3. Amends heading of Subtitle B, Title 2, Human Resources
Code, to specify the Department of Human Services.

SECTION 4. Amends headings of Chapters 21 and 22, Human Resources
Code, to reflect that these chapters apply only to the Department
of Human Services.

SECTION 5. Amends Section 21.002, Human Resources Code, to include
new sunset provision for DPRS set out in Section 40.003.

SECTION 6. Amends Sec. 11.001, Human Resources Code, by making an
exception to the definitions in Title 2 for definitions contained
in Section 34.002 or Section 40.001.

SECTION 7. Amends Section 411.114, Government Code, relating to
access to criminal history record information by DPRS, as follows:

(a)(2) Entitles DPRS to obtain information from DPS on
persons who are:

(G) an employee, volunteer, or applicant with a business
entity or person that contracts with DPRS in a position
of direct delivery of protective services for children,
elderly or people with disabilities; strikes provision
relating to persons working for entities providing home
respite care for children with temporary illnesses;
(H) a volunteer or applicant with DPRS; strikes
provision relating to persons working for home health
agencies;
(K) and (L) technical corrections;

Adds new subsections to (a)(2) as follows:

(N) a person who provides child care for a child in the care
of DPRS and who is or will be receiving adoptive, foster, or
in-home care;
(O) a person providing, at parent's request, in-home care for
a child who is the subject of a report that alleges child
abuse or neglect; or
(P) a volunteer or applicant with a Texas chapter of Make-A-Wish Foundation of America.

(a)(3) Prohibits DPRS from using information obtained to harass an
employee or volunteer. Requires Board of Protective and Regulatory
Services to adopt rules to prevent such harassment; strikes
provisions relating to obtaining information on certain offenses.

(a)(4) Sets out existing language as subsections (A)-(D),
inserting a new subsection (C) as follows:

(C) Creates an exception for who may obtain criminal
history record information for purposes of an
administrative hearing held by DPRS concerning the person
who is the subject of the information.

(a)(5) Sets out existing language as subsections (A)-(D), relating
to whom DPRS may release criminal history record information it
obtains, inserting new subsections (C) and (D) as follows:

(C) a contracted person or business entity intending to
use volunteers or employing person who are the subject of
criminal history record information; or
(D) an adult residing with a child and a person who is the
subject of the criminal history record information, if DPRS
determines that the release of the information is necessary to
ensure the safety or welfare of the child or adult.

(b) Permits DPRS to charge a nonprofit organization that requests
criminal history information a fee necessary to cover the costs of
obtaining the information; strikes provisions relating to DPRS'
acquiring information for the TX Dept. of Health, or for certain
offenses; release of information and prohibition on disclosure, as
they are relocated elsewhere in Chapter 40.

SECTION 8. Repeals Sections 22.006 and 22.0065, Human Resources
Code.

SECTION 9. Repeals Sec. 21.017, Human Resources Code, and Article
4413(503), Revised Statutes.

SECTION 10. Declares that the Act codifies Article 4413 (503) and
other provisions in the Human Resources Code to conform to Article
4413 (503).

SECTION 11. Effective date: September 1, 1995

SECTION 12. Emergency clause.

COMPARISON OF ORIGINAL TO SUBSTITUTE

The substitute bill made technical corrections, striking
provisions relating to at-risk youth, which have been moved to the
Family Code, and provisions relating to rules regarding
investigations in MHMR facilities, as they are handled in other
legislation. The substitute also added a new section of the bill
relating to criminal history checks for certain employees and
applicants for programs and services regulated by DPRS.

SUMMARY OF COMMITTEE ACTION

The House Human Services Committee convened in a public
hearing on March 29, 1995, and the Chairman laid out H.B. 1662 by
Hilderbran. The following witness testified neutral on H.B. 1662:
Howard Baldwin, Dept. of Protective & Regulatory Services. No one
testified for or against H.B. 1662 and the bill was left pending.

In a formal meeting on April 12, 1995, the committee took up
H.B. 1662 by Hilderbran which had been pending. Rep. Naishtat
offered Committee Amendment No. 1, striking provisions in Sec. 6
and 7, and moved adoption. Hearing no objection, Committee
Amendment No. 1 was adopted. The Chairman offered Committee
Amendment No. 2, adding new language relating to access to criminal
history records by the Dept. of Protective & Regulatory Services.
Rep. Naishtat offered an amendment to Committee Amendment No. 2,
adding a new subsection for certain volunteers, and moved adoption.
Hearing no objection, the amendment to Committee Amendment No. 2
was adopted. Rep. Naishtat moved to adopt Committee Amendment No.
2, as amended. Hearing no objection, Committee Amendment No. 2 was
adopted. The Chairman instructed the clerk to roll the amendments
into a complete committee substitute when reporting H.B. 1662 out
of the committee.

Rep. Naishtat moved that the committee pass H.B. 1662
favorably in the form of a substitute with the amendments
incorporated into the text of a substitute bill. The motion
prevailed by a record vote of 7 Ayes, 0 Nays, 0 PNV, and 2 Absent.