74(R) HB 1662 Senate Committee Report

BILL ANALYSIS

C.S.H.B. 1662
By: Hilderbran (Zaffirini)
Health and Human Services
05-22-95
Senate Committee Report (Substituted)
BACKGROUND

In reorganizing the state's health and human services in 1991,
Texas lawmakers recognized a need for a separate state 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 and Regulatory Services (DPRS) was created, assuming
duties previously belonging to the Department of Human Services.

DPRS' enabling statute was located in Article 4413(503), V.T.C.S.,
although many of the program DPRS administers are located in the
Human Resources Code. The Legislative Council identified several
discrepancies with Human Resources Code provisions and H.B. 7, the
bill that created DPRS.

Under the Government Code, DPRS may request criminal history
information from the Department 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. In addition, 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 or the person consents to release the information.

PURPOSE

As proposed, C.S.H.B. 1662 creates a new chapter in the Human
Resources Code to provide for the powers, duties, and
responsibilities of the Department of Protective and Regulatory
Services. H.B. 1662 also broadens DPRS's authority to access
criminal history record information under certain circumstances.

RULEMAKING AUTHORITY

It is the committee's opinion that rulemaking authority is granted
to the Department of Protective and Regulatory Services under
SECTION 1 (Sections 40.002(e), 40.004(c), 40.005(a) and (c), and
40.065, Human Resources Code) and the Board of Protective and
Regulatory Services under SECTION 1 (Section 40.029, Human
Resources Code) and SECTION 7 (Section 411.114(a), Government Code)
of this bill.

SECTION BY SECTION ANALYSIS

SECTION 1. Amends Title 2D, Human Resources Code, by adding Chapter
40, as follows:

CHAPTER 40. DEPARTMENT OF PROTECTIVE AND REGULATORY SERVICES

SUBCHAPTER A. GENERAL PROVISIONS

Sec. 40.001. DEFINITIONS. Defines "board," "commission,"
"department," and "executive director."

Sec. 40.002. DEPARTMENT OF PROTECTIVE AND REGULATORY
SERVICES; RESPONSIBILITY. (a) Sets forth the composition of
the Department of Protective and Regulatory Services (DPRS).

(b) Provides that DPRS is the state agency with primary
responsibility for providing protective services for
children and elderly and disabled persons, providing family
support and family preservation services, and regulating
child-care facilities and child-care administrators.

(c) Provides that DPRS is the state agency designated to
cooperate with the federal government in the administration
of certain programs.

(d) Requires DPRS to cooperate with the U.S. Department of
Health and Human Services and other federal and state
agencies in a reasonable manner and in conformity with the
provisions of federal law and this subtitle to the extent
necessary to qualify for federal assistance in the delivery
of services.

(e) Authorizes DPRS, if it determines that a provision if
state law governing DPRS conflicts with a provision of
federal law, to adopt policies and rules necessary to allow
the state to receive and spend federal matching funds to the
fullest extent possible in accordance with the federal
statutes, this subtitle, and the state constitution within
the limits of appropriated funds.

Sec. 40.003. SUNSET PROVISION. Subjects DPRS to Chapter 325,
Government Code. Provides that, unless continued in existence
as provided by that chapter, DPRS is abolished and this
chapter expires September 1, 1999.

Sec. 40.004. PUBLIC INTEREST INFORMATION AND COMPLAINTS. (a)
Requires DPRS to develop and implement policies that provide
the public with a reasonable opportunity to appear before
DPRS.

(b) Requires DPRS to prepare information of public interest
describing the functions of DPRS and procedures regarding
complaints, and to make the information available to the
public and appropriate state agencies.

(c) Requires DPRS, by rule, to establish methods by which
the public, consumers, and service recipients can be
notified of appropriate departmental personnel for the
purpose of directing complaints to DPRS.

(d) Requires DPRS to keep an information file about each
complaint filed with DPRS relating to a license holder or
entity regulated by DPRS, or a service delivered by DPRS.

(e) Requires DPRS, if a written complaint is filed with DPRS
relating to a license holder or entity regulated by DPRS or
a service delivered by DPRS, to notify the parties to the
complaint of the status of the complaint at least quarterly,
unless notice would jeopardize an undercover investigation.

Sec. 40.005. CONFIDENTIALITY OF INFORMATION. (a) Requires
DPRS to establish and enforce rules governing the custody,
use, and preservation of DPRS's records, papers, files, and
communications.

(b) Requires DPRS to prescribe safeguards to govern the use
of disclosure of information relating to a recipient of a
DPRS service or to an investigation DPRS conducts in
performing its duties and responsibilities. Sets forth
requirements for the safeguards.

(c) Authorizes DPRS, by rule, to prescribe a process by
which an administrative law judge may disclose requested
confidential information that DPRS possesses. Sets forth
requirements for the rules.

(d) Requires a person authorized to receive confidential
information to maintain its confidentiality and to prevent
disclosure of the information to a person who is not
authorized to receive the information.

(e) Provides that a person who discloses without
authorization confidential information contained in DPRS's
records, papers, files, or communications commits a Class A
misdemeanor.

Sec. 40.006. APPLICATION OF OTHER LAWS. Subjects DPRS to
Chapters 551, 2001, and 2002, Government Code.

SUBCHAPTER B. ADMINISTRATIVE PROVISIONS

Sec. 40.021. BOARD OF PROTECTIVE AND REGULATORY SERVICES.
(a) Sets forth the composition of the Board of Protective and
Regulatory Services (board).

(b) Sets forth required qualifications for board membership.

Sec. 40.022. RESTRICTION ON BOARD APPOINTMENT OR MEMBERSHIP.
Prohibits certain persons from appointment to or membership on
the board.

Sec. 40.023. Sets forth grounds and procedures for removal of
board members.

Sec. 40.024. BOARD TERMS. Provides that board members serve
six-year terms, with the terms of two members expiring
February 1 of each odd-numbered year.

Sec. 40.025. BOARD PER DIEM. Entitles board members to a per
diem under the General Appropriations Act.

Sec. 40.026. BOARD MEETINGS; QUORUM. Requires the board to
meet at least quarterly and at the call of the presiding
officer. Provides that four board members constitute a
quorum.

Sec. 40.027. EXECUTIVE DIRECTOR. (a) Requires the board to
employ the executive director with the approval of the
governor. Provides that the executive director serves at the
pleasure of the board.

(b) Provides that the executive director is the executive
head of DPRS and shall perform the duties assigned by the
board and state law.

Sec. 40.028. GENERAL DUTIES OF BOARD; DELEGATION. (a)
Requires the board to govern DPRS.

(b) Sets forth required duties of the board.

(c) Authorizes the board to delegate in writing to the
executive director any power or duty imposed on the board or
DPRS by law, except the power or duty to adopt rules.

Sec. 40.029. RULES. Requires the board to propose and adopt
certain rules.

Sec. 40.030. ADVISORY COMMITTEES. Authorizes the board to
appoint advisory committees in accordance with Article 6252-33, V.T.C.S.

Sec. 40.031. DIVISIONS OF DEPARTMENT. (a) Authorizes the
board to establish divisions within DPRS as necessary.

(b) Authorizes the board to allocate and reallocate
functions, programs, and activities among DPRS's divisions.

Sec. 40.032. PERSONNEL. (a) Authorizes the executive
director or a designee to employ personnel necessary to
administer DPRS's duties.

(b) Requires the executive director or designee to develop
an intradepartmental career ladder program.

(c) Requires the executive director or designee to develop
a system of annual performance evaluations based on
measurable job tasks. Requires all merit pay for DPRS
employees to be based on the system established under this
subsection.

(d) Requires the executive director to provide to DPRS
employees information regarding their qualifications and
responsibilities.

(e) Requires the executive director or designee to prepare
and maintain a written policy statement, including certain
information, to ensure implementation of a program of equal
employment opportunity.

(f) Sets forth requirements for the policy statement.

Sec. 40.034. MERIT SYSTEM. Authorizes DPRS to establish a
merit system for its employees. Authorizes the system to be
maintained in conjunction with other state agencies that are
required by federal law to operate under a merit system.

Sec. 40.034. PROHIBITED ACTIVITIES BY FORMER OFFICERS OR
EMPLOYEES. (a) Prohibits an individual who has terminated
service or employment with DPRS, for one year after the date
on which service or employment as terminated, from attempting
or aiding in the attempt to procure a contract with DPRS that
relates to a program or service in which the individual was
directly concerned or for which the individual had
administrative responsibility.

(b) Provides that this section does not apply to certain
persons.

SUBCHAPTER C. GENERAL FUNCTIONS OF DEPARTMENT

Sec. 40.051. STRATEGIC PLAN FOR DEPARTMENT. Requires DPRS to
develop a departmental strategic plan based on the goals and
priorities states in the commission's coordinated strategic
plan for health and human services.

Sec. 40.052. DUTIES RELATING TO DELIVERY OF SERVICES. Sets
forth requirements for DPRS relating to the delivery of
services.

Sec. 40.053. DUTY TO PERFORM OTHER FUNCTIONS. Requires DPRS
to perform other functions as required by law.

Sec. 40.054. ACCESS TO CRIMINAL HISTORY. Entitles DPRS,
subject to the availability of funds appropriated by the
legislature, to obtain certain criminal history information.

Sec. 40.055. LEGISLATIVE APPROPRIATION REQUEST. Requires
DPRS to submit any legislative appropriation request to the
commission for comment and for incorporation into the
commission's consolidated health and human services budget
recommendation. Requires the request to comply with state
priorities and federal requirements.

Sec. 45.056. USE OF FUNDS. Authorizes DPRS to extend the
scope of its programs as necessary to endure that federal
matching funds are available.

(b) Authorizes DPRS to accept, spend, and transfer federal
and state funds appropriated for programs authorized by
federal law. Authorizes DPRS to accept, spend, and transfer
funds received from any source, including a county,
municipality, or agency.

Sec. 40.057. GIFTS AND GRANTS. Authorizes DPRS to accept a
gift or grant from a public or private source to perform any
of DPRS's powers or duties.

Sec. 40.058. CONTRACTS AND AGREEMENTS. (a) Authorizes DPRS
to enter into contracts or agreements with any person as
necessary to perform DPRS's powers and duties.

(b) Provides that an agreement made under this section is
not subject to Chapter 771, Government Code (Interagency
Cooperation Act).

Sec. 40.059. FEES. Authorizes DPRS to set and charge
appropriate fees in the administration and delivery of
services.

Sec. 40.060. INDEMNIFICATION FOR LEGAL EXPENSES. Authorizes
DPRS, if a present or former employee of DPRS who is or was
involved in activities relating to the protection of children
or elderly or disabled persons is criminally prosecuted for
conduct involving the person's misfeasance or nonfeasance in
the course and scope of the person's employment and is not
found guilty after a trial or appeal or if the complaint or
indictment is dismissed without a plea of guilty or nolo
contendere being entered, to indemnify the person or the
person's estate for the reasonable attorney's fees incurred in
defense of the prosecution up to a maximum of $10,000.

Sec. 40.061. IMMUNITY. (a) Provides that a DPRS employee or
authorized DPRS volunteer who performs a departmental duty or
responsibility is immune from civil or criminal liability for
any act or omission that relates to the duty or responsibility
if the person acted in good faith and in the course and scope
of the person's duties or responsibilities.

(b) Defines "volunteer."

Sec. 40.062. EXEMPTION FROM CERTAIN COSTS AND FEES. Provides
that DPRS is not required to pay any cost or fee otherwise
imposed for court proceedings.

Sec. 40.063. EXCEPTIONS FROM CERTAIN PROVISIONS OF
ADMINISTRATIVE PROCEDURE ACT. Provides that Section 2001.038
and Subchapters C-H, Chapter 2001, Government Code, do not
apply to the granting, payment, denial, or withdrawal of
financial or medical assistance or benefits under a service
program of DPRS.

Sec. 40.064. INTERAGENCY COOPERATION AND EXCHANGE OF
INFORMATION. (a) Authorizes DPRS to execute a memorandum of
understanding with another state agency to facilitate the
implementation of a program or the delivery of a service that
DPRS is required by law to implement or deliver.

(b) Authorizes DPRS to establish procedures to exchange with
another state agency or governmental entity information that
is necessary for DPRS or agency or entity to properly
execute its respective duties and responsibilities.
Provides that an exchange of information does not affect
whether the information is subject to disclosure under
Chapter 552, Government Code.

Sec. 40.065. COMMUNICATIONS OFFICER; PLAN. (a) Requires DPRS
to designate one or more DPRS employees to be primarily
responsible for communicating with the public regarding DPRS's
powers and duties. Sets forth required activities for the
designated employees.

(b) Requires DPRS to develop and implement a communication
plan to ensure statewide public and government awareness of
child abuse or neglect investigated by DPRS. Requires the
plan to include certain information. Requires DPRS to
establish a process for expediting the reporting of child
abuse or neglect to DPRS. Requires DPRS to adopt rules to
implement this section.

SECTION 2. Amends the heading of Title 2, Human Resources Code, as
follows:

TITLE 2. DEPARTMENT OF HUMAN SERVICES AND DEPARTMENT OF PROTECTIVE AND REGULATORY SERVICES

SECTION 3. Amends the heading of Title 2B, Human Resources Code,
as follows:

SUBTITLE B. STRUCTURE AND FUNCTIONS OF DEPARTMENT OF HUMAN SERVICES

SECTION 4. Amends the headings of Chapters 21 and 22, Human
Resources Code, as follows:

CHAPTER 21. ADMINISTRATIVE PROVISIONS FOR DEPARTMENT OF HUMAN SERVICES

CHAPTER 22. GENERAL FUNCTIONS OF DEPARTMENT OF HUMAN SERVICES

SECTION 5. Amends Section 21.002, Human Resources Code, to provide
that Chapter 40, Human Resources Code, expires as provided by
Section 40.003.

SECTION 6. Amends Section 11.001, Human Resources Code, to set
forth certain definitions, except as provided by Section 34.002 or
40.001. Redefines "assistance," "financial assistance," and
"medical assistance."

SECTION 7. Amends Section 411.114, Government Code, as follows:

(a)(2) Entitles DPRS to obtain from the Department of Public
Safety (DPS) criminal history record information maintained by
DPS that relates to a person, among others, who is:

(G) an employee of, an applicant for employment with, or
a volunteer or an applicant volunteer with a business
entity or person that contracts with DPRS to provide
direct delivery of protective services to children,
elderly persons, or persons with a disability, if the
person's duties or responsibilities include direct contact
with children, elderly persons, or persons with a
disability;

(H) a volunteer or applicant volunteer with DPRS. Deletes
provisions regarding an employee of a business entity
providing home respite care of certain children and an
employee of a home health agency;

(N) a person providing child care for a child who is in
the care of DPRS and who is or will be receiving adoptive,
foster, or in-home care;

(O) a person providing, at the request of the child's
parent, in-home care for a child who is the subject of a
report alleging the child has been abused or neglected; or

(P) a volunteer or applicant volunteer with a Texas
chapter of the Make-a-Wish Foundation of America.
(3) Prohibits DPRS from using the authority granted under
this section to harass an employee or volunteer. Requires
the board to adopt rules to prevent the harassment of an
employee or volunteer through the request and use of
criminal records. Deletes a provision entitling DPRS to
certain criminal history record information.

(4) Prohibits criminal history record information obtained
by DPRS under this subsection from being released to any
person except, among others reasons, for purposes of an
administrative hearing held by DPRS concerning the person
who is the subject of he criminal history record
information.

(5) Provides that DPRS is not prohibited from releasing
criminal history record information obtained under this
subsection to a person or business entity described by
Subsection (a)(2)(G) who uses or intends to use the services
of the volunteer or employs or is considering employing the
person who is the subject of the information; or an adult
residing with a child and the person who is the subject of
the information, if DPRS determines that the release of
information to the adult is necessary to ensure that safety
and welfare of the child or adult.
(b) Authorizes DPRS to charge a nonprofit organization that
requests criminal history record information under Subsection
(a)(2) a fee in an amount necessary to cover the costs of
obtaining the information in the organization's behalf.
Deletes existing Subsection (b) regarding criminal history
record information obtained by DPRS.

SECTION 8. Repealer: Sections 22.006 and 22.0065, Human Resources
Code (Access to Criminal History Information Records, Access to
Other Criminal History Information Records).

SECTION 9. Repealer: Section 21.017, Human Resources Code
(Indemnification for Legal Expenses), and Article 4413(503),
V.T.C.S. (Department of Protective and Regulatory Services).

SECTION 10. Provides that this Act conforms certain provisions
of the Human Resources Code relating to the powers and duties of
DPRS to codify Article 4413(503), V.T.C.S., and Section 1.17(b),
Chapter 15, Acts of the 72nd Legislature, 1st Called Session, 1991.

SECTION 11. Effective date: September 1, 1995.

SECTION 12. Emergency clause.