BILL ANALYSIS HUMAN SERVICES HB 1850 (Substituted) By: Naishtat 4-16-97 BACKGROUND Under Chapter 48, Human Resources Code, the Department of Protective and Regulatory Services (PRS) is responsible for investigating abuse and neglect or exploitation of elderly and disabled persons. Despite efforts of the legislature in the 74th Session (HB1111) relating to protective services for elderly and disabled persons, staff with PRS experience difficulties implementing laws relating to Adult Protective Services (APS) due to unclear authority and responsibilities. PURPOSE Committee Substitute for House Bill 1850 amends the Human Resources Code to clarify the following: definitions of abuse; use of least restrictive alternative to guardianship; appointment of guardians; reporting responsibilities; penalties for false reports; prioritization of investigations; state agency responsibility for investigations; confidentiality of information; interference with investigations; and designation of an agent for the guardian. RULEMAKING AUTHORITY CSHB1850 grants rulemaking authority in SECTION 6, Section 48.037 of the Human Resources Code and SECTION 7, Section 48.101(d) and (e) of the Human Resources Code. SECTION BY SECTION ANALYSIS SECTION 1. Amends Section 48.002(2) of the Human Resources Code. (2)(A) Expands the scope of individuals who may be held liable for negligent or willful infliction of injury, unreasonable confinement, intimidation, or cruel punishment with resulting physical or emotional harm or pain. (2)(B) Expands the scope of individuals who may be held liable for sexual abuse, including any involuntary or nonconsensual conduct. SECTION 2. Amends Section 48.0215(a) of the Human Resources Code. (a) Amends the statute to clarify judicial authority to appoint PRS as either the guardian of the estate or guardian of the person or both as needed. Requires that the department shall pursue a least restrictive alternative to guardianship. SECTION 3. Amends Section 48.0215 of the Human Resources Code by amending Subsection (b) and adding Subsection (e). (b) Amends the statute to clarify the criteria which must be met before PRS may be appointed as guardian of a person. (e) Amends the statute whereby APS and PRS may not be liable to pay fees relating to the appointment of an attorney/guardian ad litem. SECTION 4. Amends Section 48.036, Human Resources Code , by amending Subsection (a) and adding a new Subsection (c). (a) Amends the statute to clarify and broaden the responsibility to report suspected abuse or neglect of elderly, or disabled persons. (c) Amends the statute to clarify and broaden who is to report suspected abuse or neglect of elderly or disabled persons to include medical and other professionals. SECTION 5. Amends Subchapter C, Chapter 48 of the Human Resources Code by adding new Section 48.0362. Section 48.0362 False Report; Penalty. Amends the statute by providing a penalty for malicious or false reports made by an individual. SECTION 6. Amends Section 48.037 of the Human Resources Code by adding new Subsection (c). (c) Amends the statute to grant PRS statutory authority to develop rules prioritizing investigations according to the degree of severity and the immediacy of the alleged harm to the individual. Language has been added here to specify that this section does not apply to Community Centers and facilities operated by Texas Department of Mental Health Mental Retardation (TDMHMR). SECTION 7. Amends Section 48.101 of the Human Resources Code by amending Subsections (b), (c), (d), (e), and (f). (b) Adds the language "or investigating state agency". (c) Adds the language "or investigating state agency". (d) Adds the language "or investigating state agency". (e) Adds the language "or investigating state agency". Deletes language which specifies that an individual received protective services and broadens the language to specify that an individual was the subject of an investigation by the investigating state agency. SECTION 8. Amends Subsection 48.103(a) Human Resources Code. (a) Amends the statute to clarify who cannot interfere with the provision of services by PRS. SECTION 9. Amends Section 700, Probate Code, by delineating the Section as Subsection (a) and adding a new Subsection (b). (a) and (b) amends the statute to clarify Probate Code 700 with language from Human Resources Code 48.0215(b) whereby PRS can be appointed guardian, whereby PRS can designate a caseworker to serve as an agent for the guardian, and that the agent shall take the oath of guardianship. SECTION 10. Effective Date. SECTION 11. Emergency Clause. COMPARISON OF C.S.H.B. 1850 TO BILL AS FILED: SECTION 1. Amends Section 48.002(2) of the Human Resources Code. Section number remains same as HB1850 as introduced. (2)(A) The language found in HB 1850 as filed is amended in CSHB 1850 to indicate earlier in the paragraph to whom the abuse is directed. In CSHB 1850 the word "guardian" is deleted as it is already found in statute. In CSHB 1850 the phrase "member of the elderly or disabled person's household" is deleted from list of people who may be held liable for abuse and replaces them with "family member". (2)(B) The language found in HB 1850 as filed is amended in CSHB 1850 to indicate earlier in the paragraph to whom the abuse is directed. In CSHB 1850 the word "guardian" is deleted as it is already found in statute. In CSHB 1850 the phrase "member of the elderly or disabled person's household" is deleted from list of people who may be held liable for abuse and replaces them with "family member". SECTION 2. Amends Subsection 48.0215(a) of the Human Resources Code. Subsection 48.0215(b) and (e) appeared in SECTION 2 of HB1850 as introduced. CSHB1850 moves them into SECTION 3. (a) The language is amended in CSHB 1850 to specify that the least restrictive alternative to full guardianship is for persons in state schools. The word "may" is deleted in CSHB 1850 and replaced with "shall" in regard to pursuing an alternative to full guardianship. SECTION 3. Amends Subsection 48.0215(b) and adds new Subsection (e) of the Human Resources Code. This provision was previously in SECTION 2 of HB1850 as introduced. (b) In CSHB 1850 language is amended to reflect stylistic change. Deletes "who the department finds" and replaces with "found by the department". (e) In CSHB 1850 the words "shall not" are deleted from the department's liability for paying fees relating to determination of appointing or the appointment of an attorney or guardian ad litem and replaced it with "may not". In CSHB 1850 the language "determination of appointing" is deleted from the paragraph and replaced with "appointment". SECTION 4. Amends Section 48.036, Human Resources Code, by amending Subsection (a) and adding a new Subsection (c). This provision was previously in SECTION 3 of HB1850 as introduced. (a) In CSHB 1850 the language "person's physical or mental health or welfare has been or may be adversely affected by" is deleted which makes the subsection more succinct. (c) In CSHB 1850 the language is amended to reflect stylistic change. The language "The requirement to report under this section applies without exception to an individual whose personal communications may otherwise be privileged" is deleted and replaced with "The duty imposed by Subsection (a) applies without exception to a person whose professional communications are generally confidential". SECTION 5. Amends Chapter 48 of the Human Resources Code by adding new Section 48.0362. This provision was previously found in SECTION 6, Section 48.0395 of HB1850 as introduced. Section 48.0362. False Report; Penalty No changes from HB1850 as introduced. SECTION 6. Amends Section 48.037, Human Resources Code by adding new Subsection (c). This provision was previously found in SECTION 4 of HB1850 as introduced. (c) Adds language which provides flexibility in prioritizing and developing procedures such as not requiring that all investigations of reports under Section 48.036 be initiated within 24 hours. Language has been added to ensure that this Section does not apply to Subchapter E. SECTION 7. Amends Section 48.101 of the Human Resources Code by amending Subsections (b), (c), (d), (e), and (f). This is a new SECTION and was not included in HB1850 as introduced. (b) Adds the language "or investigating state agency". (c) Adds the language "or investigating state agency". (d) Adds the language "or investigating state agency". (e) Adds the language "or investigating state agency". Deletes language which specifies that the individual received protective services and broadens the language to specify that the individual was the subject of an investigation by the investigating state agency. SECTION 8. Amends Subsection 48.103(a) of the Human Resources Code. This provision was previously found in SECTION 7 of HB1850 as introduced. (a) In CSHB 1850 the word "legal" is deleted from description of guardian and "notwithstanding Section 675, Texas Probate Code" is added. SECTION 9. Amends Section 700, Probate Code, by delineating the Section as Subsection (a) and adding a new Subsection (b). This provision was previously found in SECTION 8 of HB1850 as introduced. (a) No change. (b) In CSHB 1850 language to specify that the "department" is the "Department of Protective and Regulatory Services"is added. SECTION 10. Effective Date. This provision was previously found in SECTION 9 in HB1850 as introduced. SECTION 11. Emergency Clause. This provision was previously found in SECTION 10 in HB1850 as introduced.