76R10563 CBH-F                           
         By Naishtat                                           H.B. No. 2170
         Substitute the following for H.B. No. 2170:
         By Naishtat                                       C.S.H.B. No. 2170
                                A BILL TO BE ENTITLED
 1-1                                   AN ACT
 1-2     relating to investigations and protective services for elderly and
 1-3     disabled persons.
 1-4           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
 1-5           SECTION 1.  The chapter heading to Chapter 48, Human
 1-6     Resources Code, is amended to read as follows:
 1-7           CHAPTER 48. INVESTIGATIONS AND PROTECTIVE SERVICES FOR
 1-8                        ELDERLY AND DISABLED PERSONS
 1-9           SECTION 2.  Sections 48.001 and 48.002, Human Resources Code,
1-10     are amended to read as follows:
1-11           Sec. 48.001.  PURPOSE.  The purpose of this chapter is to
1-12     provide for the authority to investigate the abuse, neglect, or
1-13     exploitation[, or neglect] of an elderly or disabled person and to
1-14     provide protective services to that person.
1-15           Sec. 48.002.  DEFINITIONS.  (a) Except as otherwise provided
1-16     under Section 48.251, in [In] this chapter:
1-17                 (1)  "Elderly person" means a person 65 years of age or
1-18     older.
1-19                 (2)  "Abuse" means:
1-20                       (A)  the negligent or wilful infliction of
1-21     injury, unreasonable confinement, intimidation, or cruel punishment
1-22     with resulting physical or emotional harm or pain to an elderly or
1-23     disabled person by the person's caretaker, family member, or other
1-24     individual who has an ongoing relationship with the person; or
 2-1                       (B)  sexual abuse of an elderly or disabled
 2-2     person, including any involuntary or nonconsensual sexual conduct
 2-3     that would constitute an offense under Section 21.08, Penal Code
 2-4     (indecent exposure) or Chapter 22, Penal Code (assaultive
 2-5     offenses), committed by the person's caretaker, family member, or
 2-6     other individual who has an ongoing relationship with the person.
 2-7                 (3)  "Exploitation" means the illegal or improper act
 2-8     or process of a caretaker, family member, or other individual who
 2-9     has an ongoing relationship with the elderly or disabled person
2-10     using the resources of an elderly or disabled person for monetary
2-11     or personal benefit, profit, or gain without the informed consent
2-12     of the elderly or disabled person.
2-13                 (4)  "Neglect" means the failure to provide for one's
2-14     self the goods or services, including medical services, which are
2-15     necessary to avoid physical or emotional harm or pain or the
2-16     failure of a caretaker to provide such goods or services.
2-17                 (5)  "Protective services" means the services furnished
2-18     by the department or by a protective services agency to an elderly
2-19     or disabled person who has been determined to be in a state of
2-20     abuse, neglect, or exploitation[, or neglect].  These services may
2-21     include social casework, case management, and arranging for
2-22     psychiatric and health evaluation, home care, day care, social
2-23     services, health care, and other services consistent with this
2-24     chapter.
2-25                 (6)  "Protective services agency" means a public or
2-26     private agency, corporation, board, or organization that provides
2-27     protective services to elderly or disabled persons in the state of
 3-1     abuse, neglect, or exploitation[, or neglect].
 3-2                 (7)  "Department" means the Department of Protective
 3-3     and Regulatory Services.
 3-4                 (8)  "Disabled person" means a person with a mental,
 3-5     physical, or developmental disability that substantially impairs
 3-6     the person's ability to provide adequately for the person's care or
 3-7     protection and who is:
 3-8                       (A)  18 years of age or older; or
 3-9                       (B)  under 18 years of age and who has had the
3-10     disabilities of minority removed.
3-11                 (9)  "Legal holiday" means a state holiday listed in
3-12     Subchapter B, Chapter 662, Government Code, or an officially
3-13     declared county holiday.
3-14                 (10)  "Volunteer" means a person who:
3-15                       (A)  performs services for or on behalf of the
3-16     department under the supervision of a department employee; and
3-17                       (B)  does not receive compensation that exceeds
3-18     the authorized expenses the person incurs in performing those
3-19     services.
3-20           (b)  The definitions of "abuse," "neglect," and
3-21     "exploitation" adopted by the department as prescribed by Section
3-22     48.251 apply to an investigation of abuse, neglect, or exploitation
3-23     in a facility subject to Subchapters F and H.
3-24           SECTION 3.  Section 48.085, Human Resources Code, is
3-25     transferred to Subchapter A, Chapter 48, Human Resources Code,
3-26     redesignated as Section 48.003, and amended to read as follows:
3-27           Sec. 48.003 [48.085].  INVESTIGATIONS IN NURSING HOMES AND
 4-1     SIMILAR FACILITIES.  (a)  This chapter [subchapter] does not apply
 4-2     if the alleged or suspected abuse, neglect, or exploitation occurs
 4-3     in a facility licensed under Chapter 242, Health and Safety Code.
 4-4           (b)  Alleged or suspected abuse, neglect, or exploitation
 4-5     that occurs in a facility licensed under Chapter 242, Health and
 4-6     Safety Code, is governed by Subchapter B, Chapter 242, Health and
 4-7     Safety Code.
 4-8           SECTION 4.  The subchapter heading to Subchapter B, Chapter
 4-9     48, Human Resources Code, is amended to read as follows:
4-10          SUBCHAPTER B. REPORTS OF ABUSE, NEGLECT, OR EXPLOITATION:
4-11                   IMMUNITIES [ADMINISTRATIVE PROVISIONS]
4-12           SECTION 5.  Section 48.036, Human Resources Code, is
4-13     transferred to Subchapter B, Chapter 48, Human Resources Code,
4-14     redesignated as Section 48.051, and amended to read as follows:
4-15           Sec. 48.051 [48.036].  REPORT.  (a)  Except as prescribed by
4-16     Subsection (b) [Section 48.082], a person having cause to believe
4-17     that an elderly or disabled person is in the state of abuse,
4-18     neglect, or exploitation[, or neglect] shall report the information
4-19     required by Subsection (d) [(b)] immediately to the department.
4-20           (b)  If a person has cause to believe that an elderly or
4-21     disabled person has been abused, neglected, or exploited in a
4-22     facility operated, licensed, certified, or registered by a state
4-23     agency other than the Texas Department of Mental Health and Mental
4-24     Retardation, the person shall report the information to the state
4-25     agency that operates, licenses, certifies, or registers the
4-26     facility for investigation by that agency [The report may be made
4-27     orally or in writing.  It shall include:]
 5-1                 [(1)  the name, age, and address of the elderly or
 5-2     disabled person;]
 5-3                 [(2)  the name and address of any person responsible
 5-4     for the elderly or disabled person's care;]
 5-5                 [(3)  the nature and extent of the elderly or disabled
 5-6     person's condition;]
 5-7                 [(4)  the basis of the reporter's knowledge; and]
 5-8                 [(5)  any other relevant information].
 5-9           (c)  The duty imposed by Subsections [Subsection] (a) and (b)
5-10     applies without exception to a person whose professional
5-11     communications are generally confidential, including an attorney,
5-12     clergy member, medical practitioner, social worker, and mental
5-13     health professional.
5-14           (d)  The report may be made orally or in writing.  It shall
5-15     include:
5-16                 (1)  the name, age, and address of the elderly or
5-17     disabled person;
5-18                 (2)  the name and address of any person responsible for
5-19     the elderly or disabled person's care;
5-20                 (3)  the nature and extent of the elderly or disabled
5-21     person's condition;
5-22                 (4)  the basis of the reporter's knowledge; and
5-23                 (5)  any other relevant information.
5-24           SECTION 6.  Section 48.0361, Human Resources Code, is
5-25     transferred to Subchapter B, Chapter 48, Human Resources Code,
5-26     redesignated as Section 48.052, and amended to read as follows:
5-27           Sec. 48.052 [48.0361].  FAILURE TO REPORT; PENALTY.  (a)  A
 6-1     person commits an offense if  the person has cause to believe that
 6-2     an elderly or disabled person has been abused, neglected, or
 6-3     exploited[, or neglected] or is in the state of abuse, neglect, or
 6-4     exploitation[, or neglect] and knowingly fails to report in
 6-5     accordance with this chapter [Section 48.036 or Subchapter E]. An
 6-6     offense under this subsection is a Class A misdemeanor.
 6-7           (b)  This section does not apply if the alleged abuse,
 6-8     neglect, or exploitation[, or neglect] occurred in a facility
 6-9     licensed under Chapter 242, Health and Safety Code.  Failure to
6-10     report abuse, neglect, or exploitation[, or neglect] that occurs in
6-11     a facility licensed under that chapter is governed by that chapter.
6-12           SECTION 7.  Section 48.0362, Human Resources Code, is
6-13     transferred to Subchapter B, Chapter 48, Human Resources Code, and
6-14     redesignated as Section 48.053 to read as follows:
6-15           Sec. 48.053 [48.0362].  FALSE REPORT; PENALTY.  A person
6-16     commits an offense if the person knowingly or intentionally reports
6-17     information as provided in this chapter that the person knows is
6-18     false or lacks factual foundation.  An offense under this section
6-19     is a Class B misdemeanor.
6-20           SECTION 8.  Section 48.039, Human Resources Code, is
6-21     transferred to Subchapter B, Chapter 48, Human Resources Code,
6-22     redesignated as Section 48.054, and amended to read as follows:
6-23           Sec. 48.054 [48.039].  IMMUNITY.  (a)  A person filing a
6-24     report under this chapter or testifying or otherwise participating
6-25     in any judicial proceeding arising from a petition, report, or
6-26     investigation is immune from civil or criminal liability on account
6-27     of his or her petition, report, testimony, or participation, unless
 7-1     the person acted in bad faith or with a malicious purpose.
 7-2           (b)  A person, including an authorized department volunteer,
 7-3     medical personnel, or law enforcement officer, who at the request
 7-4     of the department participates in an investigation required by this
 7-5     chapter or in an action that results from that investigation is
 7-6     immune from civil or criminal liability for any act or omission
 7-7     relating to that participation if the person acted in good faith
 7-8     and, if applicable, in the course and scope of the person's
 7-9     assigned responsibilities or duties.
7-10           (c)  A person who reports the person's own abuse, neglect, or
7-11     exploitation of another person or who acts in bad faith or with
7-12     malicious purpose in reporting alleged abuse, neglect, or
7-13     exploitation is not immune from civil or criminal liability [In
7-14     this section, "volunteer" means a person who:]
7-15                 [(1)  renders services for or on behalf of the
7-16     department under the supervision of a department employee; and]
7-17                 [(2)  does not receive compensation that exceeds the
7-18     authorized expenses the person incurs in rendering those services].
7-19           SECTION 9.  The subchapter heading to Subchapter C, Chapter
7-20     48, Human Resources Code, is amended to read as follows:
7-21         SUBCHAPTER C. CONFIDENTIALITY [DEPARTMENT INVESTIGATION OF
7-22            REPORTS OF SUSPECTED ABUSE, EXPLOITATION, OR NEGLECT]
7-23           SECTION 10.  Section 48.101, Human Resources Code, is
7-24     transferred to Subchapter C, Chapter 48, Human Resources Code,  and
7-25     amended to read as follows:
7-26           Sec. 48.101.  CONFIDENTIALITY AND DISCLOSURE OF INFORMATION;
7-27     AGENCY EXCHANGE OF INFORMATION.  (a)  The following information is
 8-1     confidential and not subject to disclosure under Chapter 552,
 8-2     Government Code:
 8-3                 (1)  a report of abuse, neglect, or exploitation made
 8-4     under this chapter;
 8-5                 (2)  the identity of the person making the report; and
 8-6                 (3)  except as provided by this section, all files,
 8-7     reports, records, communications, and working papers used or
 8-8     developed in an investigation made under this chapter or in
 8-9     providing services as a result of an investigation.
8-10           (b)  Confidential information may be disclosed only for a
8-11     purpose consistent with this chapter and as provided by department
8-12     or investigating state agency rule and applicable federal law.
8-13           (c)  A court may order disclosure of confidential information
8-14     only if:
8-15                 (1)  a motion is filed with the court requesting
8-16     release of the information and a hearing on that request;
8-17                 (2)  notice of that hearing is served on the department
8-18     or investigating state agency and each interested party; and
8-19                 (3)  the court determines after the hearing and an in
8-20     camera review of the information that disclosure is essential to
8-21     the administration of justice and will not endanger the life or
8-22     safety of any individual who:
8-23                       (A)  is the subject of a report of abuse,
8-24     neglect, or exploitation;
8-25                       (B)  makes a report of abuse, neglect, or
8-26     exploitation; or
8-27                       (C)  participates in an investigation of reported
 9-1     abuse, neglect, or exploitation.
 9-2           (d)  The department or investigating state agency by rule
 9-3     shall provide for the release on request to a person who is the
 9-4     subject of a report of abuse, neglect, or exploitation or to that
 9-5     person's legal representative of otherwise confidential information
 9-6     relating to that report.  The department or investigating state
 9-7     agency shall edit the information before release to protect the
 9-8     confidentiality of information relating to the reporter's identity
 9-9     and to protect any other individual whose safety or welfare may be
9-10     endangered by disclosure.
9-11           (e)  The department or investigating state agency may adopt
9-12     rules relating to the release of information contained in the
9-13     record of a deceased individual who was the subject of an
9-14     investigation conducted by the department or investigating state
9-15     agency or to whom the department has provided protective services.
9-16     The rules must be consistent with the purposes of this chapter and
9-17     any applicable state or federal law.
9-18           (f)  The department or investigating state agency may
9-19     establish procedures to exchange with another state agency or
9-20     governmental entity information that is necessary for the
9-21     department, state agency, or entity to properly execute its
9-22     respective duties and responsibilities to provide services to
9-23     elderly or disabled persons under this chapter or other law.  An
9-24     exchange of information under this subsection does not affect
9-25     whether the information is subject to disclosure under Chapter 552,
9-26     Government Code.
9-27           SECTION 11.  Section 48.102, Human Resources Code, is
 10-1    transferred to Subchapter E, Chapter 48, Human Resources Code, and
 10-2    redesignated as Section 48.207 to read as follows:
 10-3          Sec. 48.207 [48.102].  OBJECTION TO MEDICAL TREATMENT.  This
 10-4    chapter does not authorize or require any medical treatment of a
 10-5    person who objects on the grounds that he is an adherent or member
 10-6    of a recognized church or religious denomination the tenets and
 10-7    practice of which may include reliance solely upon spiritual means
 10-8    through prayer for healing.
 10-9          SECTION 12.  Subchapter C, Chapter 48, Human Resources Code,
10-10    is amended by adding a new Section 48.102 to read as follows:
10-11          Sec. 48.102.  REPORTS OF INVESTIGATIONS IN SCHOOLS.  (a)  The
10-12    department shall send a written report of the department's
10-13    investigation of alleged abuse, neglect, or exploitation of a
10-14    disabled adult at a school, as appropriate, to the Texas Education
10-15    Agency, the agency responsible for teacher certification, the local
10-16    school board or the school's governing body, and the school
10-17    principal or director, unless the principal or director is alleged
10-18    to have committed the abuse, neglect, or exploitation.  The entity
10-19    to which the report is sent shall take appropriate action.
10-20          (b)  On request, the department shall provide a copy of the
10-21    report of the investigation to the person who is alleged to have
10-22    suffered the abuse, neglect, or exploitation, to the legal guardian
10-23    of that person, and to the person alleged to have committed the
10-24    abuse, neglect, or exploitation.
10-25          (c)  The report of the investigation shall be edited to
10-26    protect the identity of the person who made the report under
10-27    Section 48.051.
 11-1          (d)  The department shall adopt rules necessary to implement
 11-2    this section.
 11-3          SECTION 13.  The subchapter heading to Subchapter D, Chapter
 11-4    48, Human Resources Code, is amended to read as follows:
 11-5               SUBCHAPTER D. INVESTIGATIONS BY ALL AGENCIES
 11-6                           [PROTECTIVE SERVICES]
 11-7          SECTION 14.  Section 48.037, Human Resources Code, is
 11-8    transferred to Subchapter D, Chapter 48, Human Resources Code, is
 11-9    redesignated as Section 48.151, and amended to read as follows:
11-10          Sec. 48.151 [48.037].  ACTION ON REPORT.  (a)  Not later than
11-11    24 hours after the department receives a report of  an allegation
11-12    of abuse, neglect, or exploitation [suspected need for protective
11-13    services] under Section 48.051 [48.036 or 48.081], the department
11-14    shall initiate a prompt and thorough investigation as needed to
11-15    evaluate the accuracy of the report and to assess the need for
11-16    protective services, unless the department determines that the
11-17    report:
11-18                (1)  is frivolous or patently without a factual basis;
11-19    or
11-20                (2)  does not concern abuse, neglect, or exploitation,
11-21    as those terms are defined by Section 48.002 [for an investigation
11-22    under this subchapter or as defined by department rules for an
11-23    investigation under Subchapter E].
11-24          (b)  The department shall adopt rules for conducting
11-25    investigations under this chapter.
11-26          (c)  The department by rule may assign priorities and
11-27    prescribe investigative procedures for conducting investigations
 12-1    according to the degree of severity and immediacy of the alleged
 12-2    harm to the individual.  Notwithstanding Subsection (a), the
 12-3    department's priorities and procedures may provide that an
 12-4    investigation is not required to be initiated within 24 hours in
 12-5    all cases.
 12-6          (d)  The department shall prepare and keep on file a report
 12-7    of each investigation conducted by the department.
 12-8          (e)  This section [subsection] does not apply to
 12-9    investigations conducted under Subchapter F or H [E].
12-10          SECTION 15.  Subchapter D, Chapter 48, Human Resources Code,
12-11    is amended by adding Sections 48.152 and 48.153 to read as follows:
12-12          Sec. 48.152.  INVESTIGATION.  An investigation by the
12-13    department or a state agency shall include an interview with the
12-14    elderly or disabled person, if appropriate, and with persons
12-15    thought to have knowledge of the circumstances.  The investigation
12-16    may include an interview with an alleged juvenile perpetrator of
12-17    the alleged abuse, neglect, or exploitation.  The department or
12-18    state agency may conduct an interview under this section in private
12-19    or may include any person the department or agency determines is
12-20    necessary.
12-21          Sec. 48.153.  ACCESS TO INVESTIGATION.  (a)  To implement an
12-22    investigation of reported abuse, neglect, or exploitation, the
12-23    probate court, or the county court when no probate court exists,
12-24    may authorize entry of the place of residence of the elderly or
12-25    disabled person.
12-26          (b)  A peace officer shall accompany and assist the person
12-27    making a court-ordered entry under this section, if in the opinion
 13-1    of the court such action is necessary.
 13-2          SECTION 16.  Section 48.0385, Human Resources Code, is
 13-3    transferred to Subchapter D, Chapter 48, Human Resources Code,
 13-4    redesignated as Section 48.154, and amended to read as follows:
 13-5          Sec. 48.154 [48.0385].  ACCESS TO RECORDS OR DOCUMENTS.  (a)
 13-6    The department or state agency, as appropriate, shall have access
 13-7    to any records or documents, including client-identifying
 13-8    information and medical and psychological records, necessary to the
 13-9    performance of the department's or state agency's duties under this
13-10    chapter.  The duties include but are not limited to the
13-11    investigation of abuse, neglect, or exploitation or [, or neglect
13-12    and] the provisions of services to an elderly or disabled person.
13-13    A person or agency that has a record or document that the
13-14    department or state agency needs to perform its duties under this
13-15    chapter shall, without unnecessary delay, make the record or
13-16    document available to the department or agency.
13-17          (b)  The department is exempt from the payment of a fee
13-18    otherwise required or authorized by law to obtain a medical record,
13-19    including a mental health record, from a hospital or health care
13-20    provider if the request for a record is made in the course of an
13-21    investigation by the department.
13-22          (c)  If the department or another state agency cannot obtain
13-23    access to a record or document that is necessary to properly
13-24    conduct an investigation or to perform another duty under this
13-25    chapter, the department or agency may petition the probate court or
13-26    the statutory or constitutional county court having probate
13-27    jurisdiction for access to the record or document.
 14-1          (d) [(c)]  On good cause shown, the court shall order the
 14-2    person who denied access to a record or document to allow the
 14-3    department or agency to have access under the terms and conditions
 14-4    prescribed by the court.
 14-5          (e) [(d)]  A person is entitled to notice and a hearing on
 14-6    the petition.
 14-7          (f) [(e)]  Access to a confidential record under this section
 14-8    does not constitute a waiver of confidentiality.
 14-9          SECTION 17.  Section 48.103, Human Resources Code, is
14-10    transferred to Subchapter D, Chapter 48, Human Resources Code, and
14-11    redesignated as Section 48.155 to read as follows:
14-12          Sec. 48.155 [48.103].  INTERFERENCE WITH INVESTIGATION OR
14-13    SERVICES PROHIBITED.  (a)  A person, including a guardian and
14-14    notwithstanding Section 675, Texas Probate Code, may not interfere
14-15    with:
14-16                (1)  an investigation by the department or by a
14-17    protective services agency of alleged abuse, neglect, or
14-18    exploitation of an elderly or disabled person; or
14-19                (2)  the provision of protective services to an elderly
14-20    or disabled person.
14-21          (b)  The department or a protective services agency may
14-22    petition the appropriate court to enjoin any interference with:
14-23                (1)  an investigation of alleged abuse, neglect, or
14-24    exploitation; or
14-25                (2)  the provision of protective services such as
14-26    removal of the elderly or disabled person to safer surroundings or
14-27    safeguarding the person's resources from exploitation.
 15-1          SECTION 18.  Section 48.057, Human Resources Code, is
 15-2    redesignated as Section 48.156 to read as follows:
 15-3          Sec. 48.156 [48.057].  AGENCY REPORTS.  A protective services
 15-4    agency shall make reports relating to its provision of protective
 15-5    services as the department or a court may require.
 15-6          SECTION 19.  Subchapter D, Chapter 48, Human Resources Code,
 15-7    is amended by adding Section 48.157 to read as follows:
 15-8          Sec. 48.157.  REPORT TO LAW ENFORCEMENT AGENCY.  If the
 15-9    department's or state agency's investigation reveals that the
15-10    elderly or disabled person has been abused, neglected, or exploited
15-11    by another person in a manner that constitutes a criminal offense
15-12    under any law, including Section 22.04, Penal Code, a copy of the
15-13    investigation shall be submitted to the appropriate law enforcement
15-14    agency.
15-15          SECTION 20.  The subchapter heading to Subchapter E, Chapter
15-16    48, Human Resources Code, is amended to read as follows:
15-17       SUBCHAPTER E.  PROVISION OF SERVICES; GUARDIANSHIP SERVICES;
15-18        EMERGENCY PROTECTION [INVESTIGATIONS IN CERTAIN FACILITIES]
15-19          SECTION 21.  Subchapter E, Chapter 48, Human Resources Code,
15-20    is amended by adding Sections 48.201 and 48.202 to read as follows:
15-21          Sec. 48.201.  APPLICATION OF SUBCHAPTER.  Except as otherwise
15-22    provided, this subchapter does not apply to a Texas Department of
15-23    Mental Health and Mental Retardation investigation under Subchapter
15-24    F or H.
15-25          Sec. 48.202.  SERVICE DETERMINATION BY DEPARTMENT OR AGENCY.
15-26    In an investigation the department or state agency, as appropriate,
15-27    shall determine:
 16-1                (1)  whether the person needs protective services from
 16-2    the department;
 16-3                (2)  what services are needed;
 16-4                (3)  whether services are available from the
 16-5    department, from the state agency, or in the community and how they
 16-6    can be provided;
 16-7                (4)  whether the person, acting alone, would be capable
 16-8    of obtaining needed services and could bear the cost or would be
 16-9    eligible for services from the department or state agency;
16-10                (5)  whether a caretaker would be willing to provide
16-11    services or would agree to their provisions;
16-12                (6)  whether the elderly or disabled person desires the
16-13    services; and
16-14                (7)  other pertinent data.
16-15          SECTION 22.  Section 48.059, Human Resources Code, is
16-16    transferred to Subchapter E, Chapter 48, Human Resources Code, and
16-17    redesignated as Section 48.203 to read as follows:
16-18          Sec. 48.203 [48.059].  VOLUNTARY PROTECTIVE SERVICES.  (a)
16-19    An elderly or disabled person may receive voluntary protective
16-20    services if the person requests or consents to receive those
16-21    services.
16-22          (b)  The elderly or disabled person who receives protective
16-23    services shall participate in all decisions regarding his or her
16-24    welfare, if able to do so.
16-25          (c)  The least restrictive alternatives should be made
16-26    available to the elderly or disabled person who receives protective
16-27    services.
 17-1          (d)  If an elderly or disabled person withdraws or refuses
 17-2    consent, the services may not be provided.
 17-3          SECTION 23.  Section 48.056, Human Resources Code, is
 17-4    transferred to Subchapter E, Chapter 48, Human Resources Code, and
 17-5    redesignated as Section 48.204 to read as follows:
 17-6          Sec. 48.204  [48.056].  AGENCY POWERS.  A protective services
 17-7    agency may furnish protective services to an elderly or disabled
 17-8    person with the person's consent or, if the person lacks the
 17-9    capacity to consent, without that person's consent as provided by
17-10    this chapter.
17-11          SECTION 24.  Section 48.021, Human Resources Code, is
17-12    transferred to Subchapter E, Chapter 48, Human Resources Code,
17-13    redesignated as Section 48.205, and amended to read as follows:
17-14          Sec. 48.205 [48.021].  PROVISION OF SERVICES.  (a)  The
17-15    department may provide direct protective services or contract with
17-16    protective services agencies for the provisions of those services.
17-17          (b)  The department shall use existing resources and services
17-18    of public and private agencies in providing protective services.
17-19          (c)  The department and law enforcement officials, courts,
17-20    and agencies shall cooperate when providing protective services.
17-21          (d)  The responsibilities prescribed by [set forth in] this
17-22    chapter are [Act shall be] exclusive of those designated to other
17-23    state or federal agencies authorized or required by law to provide
17-24    protective services to elderly or disabled persons determined to be
17-25    in the state of abuse, neglect, or exploitation[, or neglect].
17-26          SECTION 25.  Section 48.058, Human Resources Code, is
17-27    transferred to Subchapter E, Chapter 48, Human Resources Code, and
 18-1    redesignated as Section 48.206 to read as follows:
 18-2          Sec. 48.206 [48.058].  COST OF SERVICES.  If the elderly or
 18-3    disabled person receiving the  protective services is determined to
 18-4    be financially able to contribute to the payments for those
 18-5    services, the provider shall receive a reasonable reimbursement
 18-6    from the person's assets.
 18-7          SECTION 26.  Section 48.061, Human Resources Code, is
 18-8    transferred to Subchapter E, Chapter 48, Human Resources Code,
 18-9    redesignated as Section 48.208, and amended to read as follows:
18-10          Sec. 48.208 [48.061].  EMERGENCY ORDER FOR PROTECTIVE
18-11    SERVICES.  (a)  For purposes of this section, a person lacks the
18-12    capacity to consent to receive protective services if, because of
18-13    mental or physical impairment, the person is incapable of
18-14    understanding the nature of the services offered and agreeing to
18-15    receive or rejecting protective services.
18-16          (b)  If the department determines that an elderly or disabled
18-17    person is suffering from abuse, neglect, or exploitation[, or
18-18    neglect] presenting a threat to life or physical safety, that the
18-19    person lacks capacity to consent to receive protective services,
18-20    and that no consent can be obtained, the department may petition
18-21    the probate or statutory or constitutional county court that has
18-22    probate jurisdiction in the county in which the elderly or disabled
18-23    person resides for an emergency order authorizing protective
18-24    services.
18-25          (c)  The petition shall be verified and shall include:
18-26                (1)  the name, age, and address of the elderly or
18-27    disabled person who needs protective services;
 19-1                (2)  the nature of the abuse, neglect, or
 19-2    exploitation[, or neglect];
 19-3                (3)  the services needed; and
 19-4                (4)  a medical report signed by a physician stating
 19-5    that the person is suffering from abuse, neglect, or exploitation[,
 19-6    or neglect] presenting a threat to life or physical safety and
 19-7    stating that the person is physically or mentally incapable of
 19-8    consenting to services unless the court finds that an immediate
 19-9    danger to the health or safety of the elderly or disabled person
19-10    exists and there is not sufficient time to obtain the medical
19-11    report.
19-12          (d)  On finding that there is reasonable cause to believe
19-13    that abuse, neglect, or exploitation[, or neglect] presents a
19-14    threat to life or physical safety for the elderly or disabled
19-15    person and that the elderly or disabled person lacks capacity to
19-16    consent to services, the court may:
19-17                (1)  order removal of the elderly or disabled person to
19-18    safer surroundings;
19-19                (2)  order medical services; and
19-20                (3)  order other available services necessary to remove
19-21    conditions creating the threat to life or physical safety,
19-22    including the services of law enforcement officers or emergency
19-23    medical services personnel.
19-24          (e)  The emergency order expires at the end of 72 hours from
19-25    the time of the order unless the 72-hour period ends on a Saturday,
19-26    Sunday, or legal holiday in which event the order is automatically
19-27    extended to 4 p.m. on the first succeeding business day.  An order
 20-1    may be renewed for not more than 14 additional days.  A renewal
 20-2    order that ends on a Saturday, Sunday, or legal holiday is
 20-3    automatically extended to 4 p.m. on the first succeeding business
 20-4    day.  The court may modify or terminate the emergency order on
 20-5    petition of the department, the incompetent person, or any person
 20-6    interested in his welfare.
 20-7          (f)  Any medical facility or physician treating an elderly or
 20-8    disabled person pursuant to an emergency order under this chapter
 20-9    is not liable for any damages arising from the treatment, except
20-10    those damages resulting from the negligence of the facility or
20-11    physician.
20-12          (g)  The court shall appoint an attorney ad litem to
20-13    represent the elderly or disabled person in any proceeding brought
20-14    by the department under this section.  A reasonable fee, as
20-15    determined by the court, shall be paid to the attorney ad litem
20-16    from the general fund of the county.
20-17          (h)  If the department cannot obtain an emergency order under
20-18    this section because the court is closed on a Saturday, Sunday, or
20-19    legal holiday or after 5 p.m., the department may remove the
20-20    elderly or disabled person to safer surroundings, authorize medical
20-21    treatment, or order or provide other available services necessary
20-22    to remove conditions creating the threat to life or physical
20-23    safety.  The department must obtain an emergency order under this
20-24    section not later than 4 p.m. on the first succeeding business day
20-25    after the date on which protective services are provided.  If the
20-26    department does not obtain an emergency order, the department shall
20-27    cease providing protective services and, if necessary, make
 21-1    arrangements for the immediate return of the person to the place
 21-2    from which the person was removed, to the person's place of
 21-3    residence in the state, or to another suitable place.
 21-4          SECTION 27.  Section 48.0215, Human Resources Code, is
 21-5    transferred to Subchapter E, Chapter 48, Human Resources Code, and
 21-6    redesignated as Section 48.209 and amended to read as follows:
 21-7          Sec. 48.209 [48.0215].  GUARDIANSHIPS.  (a)  The department
 21-8    shall file an application  under Section 682 or 875, Texas Probate
 21-9    Code, to be appointed guardian of the person or estate or both of
21-10    an individual who is a minor, is a conservatee of the department,
21-11    and, because of a physical or mental condition, will be
21-12    substantially unable to provide food, clothing, or shelter for
21-13    himself or herself, to care for the individual's own physical
21-14    health, or to manage the individual's own financial affairs when
21-15    the individual becomes an adult.  If a less restrictive alternative
21-16    to guardianship is available for an individual, the department
21-17    shall pursue the alternative instead of applying for appointment as
21-18    a guardian.
21-19          (b)  As a last resort, the department may apply to be
21-20    appointed guardian of the person or estate of an elderly or
21-21    disabled person who is found by the department to be in a state of
21-22    abuse, neglect, or exploitation, and who, because of a physical or
21-23    mental condition, will be substantially unable to provide food,
21-24    clothing, or shelter for himself or herself, to care for the
21-25    individual's own physical health, or to manage the individual's own
21-26    financial affairs.  A representative of the department shall take
21-27    the oath required by the Texas Probate Code on behalf of the
 22-1    department if the department is appointed guardian.  If the
 22-2    department knows that an individual is willing and able to serve as
 22-3    the guardian, the department may inform the court of that
 22-4    individual's willingness and ability.
 22-5          (c)  If appropriate, the department may contract with a
 22-6    political subdivision of this state, a private agency, or another
 22-7    state agency for the provision of guardianship services under this
 22-8    section.  The department or a political subdivision of the state or
 22-9    state agency with which the department contracts under this section
22-10    is not required to post a bond or pay any cost or fee otherwise
22-11    required by the Texas Probate Code.
22-12          (d)  If the department is appointed guardian, the department
22-13    is not liable for funding services provided to the department's
22-14    ward, including long-term care or burial expenses.
22-15          (e)  The department may not be required to pay fees
22-16    associated with the appointment of a guardian ad litem or attorney
22-17    ad litem.
22-18          (f)  The department shall file an application with the court
22-19    to name a successor guardian if the department becomes aware of a
22-20    qualified and willing individual or guardianship program serving
22-21    the area in which the ward is located.
22-22          SECTION 28.  Section 48.040, Human Resources Code, is
22-23    transferred to Subchapter E, Chapter 48, Human Resources Code, and
22-24    redesignated as Section 48.210 to read as follows:
22-25          Sec. 48.210 [48.040].  REPRESENTATION.  (a)  Except as
22-26    provided by Subsection (b), the prosecuting attorney representing
22-27    the state in criminal cases in the county court shall represent the
 23-1    department in any proceeding under this chapter unless the
 23-2    representation would be a conflict of interest.
 23-3          (b)  In a county having a population of more than 2.8
 23-4    million, the prosecuting attorney representing the state in civil
 23-5    cases in the county court shall represent the department in any
 23-6    proceeding under this chapter unless the representation would be a
 23-7    conflict of interest.
 23-8          SECTION 29.  Subchapter E, Chapter 48, Human Resources Code,
 23-9    is amended by adding Section 48.211 to read as follows:
23-10          Sec. 48.211.  REPORT TO GUARDIANSHIP COURT.  If the elderly
23-11    or disabled person has a guardian, a written notification of the
23-12    findings of the investigation shall be sent to the court to which
23-13    the guardian is accountable.
23-14          SECTION 30.  The subchapter heading to Subchapter F, Chapter
23-15    48, Human Resources Code, is amended to read as follows:
23-16       SUBCHAPTER F.  INVESTIGATIONS IN TDMHMR FACILITIES, COMMUNITY
23-17         CENTERS, AND MHMR AUTHORITIES [MISCELLANEOUS PROVISIONS]
23-18          SECTION 31.  Subchapter F, Chapter 48, Human Resources Code,
23-19    is amended by adding Section 48.251 to read as follows:
23-20          Sec. 48.251.  DEFINITIONS.  The department by rule shall
23-21    adopt definitions of "abuse," "neglect," and "exploitation" to
23-22    govern an investigation under this subchapter and Subchapter H.
23-23          SECTION 32.  Section 48.081, Human Resources Code, is
23-24    transferred to Subchapter F, Chapter 48, Human Resources Code,
23-25    redesignated as Section 48.252, and amended to read as follows:
23-26          Sec. 48.252 [48.081].  INVESTIGATION OF REPORTS IN MHMR
23-27    FACILITIES AND IN COMMUNITY CENTERS.  (a)  The department shall
 24-1    receive and investigate reports of the abuse, neglect, or
 24-2    exploitation of an individual with a disability receiving services:
 24-3                (1)  [receiving services] in a facility operated by the
 24-4    Texas Department of Mental Health and Mental Retardation; [or]
 24-5                (2)  in or from a community center, a local mental
 24-6    health authority, or a local mental retardation authority; or
 24-7                (3)  [being provided services] through a program
 24-8    providing services to that person by contract [under contract] with
 24-9    a  facility operated by the Texas Department of Mental Health and
24-10    Mental Retardation, a community center, a local mental health
24-11    authority, or a local mental retardation authority.
24-12          (b)  The department by rule shall define who is "an
24-13    individual with a disability receiving services [and the Texas
24-14    Department of Mental Health and Mental Retardation shall develop
24-15    joint rules to facilitate investigations in state mental health and
24-16    mental retardation facilities]."
24-17          (c)  [The department shall receive and investigate a report
24-18    of the alleged abuse, neglect, or exploitation of an individual
24-19    receiving services in a community center or from a program
24-20    providing services under contract with a community center.]
24-21          [(d)  The department shall forward to a state mental health
24-22    or mental retardation facility, a community center, or a program
24-23    providing mental health or mental retardation services under
24-24    contract with such a facility or community center:]
24-25                [(1)  a copy of any report the department receives
24-26    relating to alleged or suspected abuse, neglect, or exploitation of
24-27    an individual receiving services from that facility, community
 25-1    center, or program; and]
 25-2                [(2)  a copy of the department's investigation findings
 25-3    and report.]
 25-4          [(e)  The department and the Texas Department of Mental
 25-5    Health and Mental Retardation by joint rules shall establish
 25-6    procedures for resolving disagreements between the department and
 25-7    the Texas Department of Mental Health and Mental Retardation
 25-8    concerning the department's investigation findings.  A confirmed
 25-9    investigation finding by the department may not be changed by a
25-10    superintendent of a state mental health or mental retardation
25-11    facility or a director of a community center.]
25-12          [(f)  After completion of the appeals process, the department
25-13    shall refer a complaint relating to an investigation conducted by
25-14    the department under this section to the department's ombudsman
25-15    office for appropriate action.]
25-16          [(g)  If the department's investigation under this section
25-17    reveals that an elderly or disabled person has been abused by
25-18    another person in a manner that constitutes a criminal offense
25-19    under any law, including Section 22.04, Penal Code, a copy of the
25-20    investigation shall be submitted to the appropriate law enforcement
25-21    agency.]
25-22          [(h)  The department by rule may assign priorities to an
25-23    investigation conducted by the department under this section.  The
25-24    primary criterion used by the department in assigning a priority
25-25    must be the risk that a delay in the investigation will impede the
25-26    collection of evidence.]
25-27          [(i)  The department and the Texas Department of Mental
 26-1    Health and Mental Retardation shall jointly develop and implement a
 26-2    single system to track reports and investigations under this
 26-3    section.  To facilitate implementation of the system, the
 26-4    department and the Texas Department of Mental Health and Mental
 26-5    Retardation shall use appropriate methods of measuring the number
 26-6    and outcome of reports and investigations under this section.]
 26-7          [(j)]  In this section, "community center," "local mental
 26-8    health  authority," and "local mental retardation authority" have
 26-9    the meanings [has the meaning] assigned by Section 531.002, Health
26-10    and Safety Code.
26-11          SECTION 33.  Subchapter F, Chapter 48, Human Resources Code,
26-12    is amended by adding Sections 48.253, 48.254, 48.255, and 48.256 to
26-13    read as follows:
26-14          Sec. 48.253.  ACTION ON REPORT.  On receipt by the department
26-15    of a report of alleged abuse, neglect, or exploitation under this
26-16    subchapter, the department shall initiate a prompt and thorough
26-17    investigation as needed to evaluate the accuracy of the report
26-18    unless the department, in accordance with rules adopted under this
26-19    subchapter, determines that the report:
26-20                (1)  is frivolous or patently without a factual basis;
26-21    or
26-22                (2)  does not concern abuse, neglect, or exploitation.
26-23          Sec. 48.254.  FORWARDING OF COMPLETED INVESTIGATION REPORT.
26-24    The department shall forward to a state mental health or mental
26-25    retardation facility, a community center, a  mental health
26-26    authority, a mental retardation authority, or a program providing
26-27    mental health or mental retardation services under contract with
 27-1    such a facility, community center, or authority:
 27-2                (1)  a copy of any report the department receives
 27-3    relating to alleged or suspected abuse, neglect, or exploitation of
 27-4    an individual receiving services from that facility, community
 27-5    center, authority, or program; and
 27-6                (2)  a copy of the department's investigation findings
 27-7    and report.
 27-8          Sec. 48.255.  RULES FOR INVESTIGATIONS UNDER THIS SUBCHAPTER.
 27-9    (a)  The department and the Texas Department  of Mental Health and
27-10    Mental Retardation shall develop joint rules to facilitate
27-11    investigations in state mental health and mental retardation
27-12    facilities.
27-13          (b)  The department and the Texas Department of Mental Health
27-14    and Mental Retardation by joint rules shall  establish procedures
27-15    for resolving disagreements between the department and the Texas
27-16    Department of Mental Health and Mental Retardation concerning the
27-17    department's investigation findings.
27-18          (c)  The department and the Texas Department of Mental Health
27-19    and Mental Retardation shall develop joint rules to facilitate
27-20    investigations in community centers, mental health authorities, and
27-21    mental retardation authorities.
27-22          (d)  A confirmed investigation finding by the department may
27-23    not be changed by a superintendent of a state mental health or
27-24    mental retardation facility, a director of a community center, or
27-25    by a mental health authority or mental retardation authority.
27-26          (e)  The department shall provide by rule for an appeals
27-27    process by the alleged victim of abuse, neglect, or exploitation
 28-1    under this section.
 28-2          (f)  The department by rule may assign priorities to an
 28-3    investigation conducted by the department under this section.  The
 28-4    primary criterion used by the department in assigning a priority
 28-5    must be the risk that a delay in the investigation will impede the
 28-6    collection of evidence.
 28-7          Sec. 48.256.  SINGLE TRACKING SYSTEM FOR REPORTS AND
 28-8    INVESTIGATIONS.  The department and the Texas Department of Mental
 28-9    Health and Mental Retardation shall jointly develop and implement a
28-10    single system to track reports and investigations under this
28-11    section.  To facilitate implementation of the system, the
28-12    department and the Texas Department of Mental Health and Mental
28-13    Retardation shall use appropriate methods of measuring the number
28-14    and outcome of reports and investigations under this section.
28-15          SECTION 34.  Chapter 48, Human Resources Code, is  amended by
28-16    adding Subchapter G to read as follows:
28-17            SUBCHAPTER G.  INVESTIGATIONS IN CERTAIN FACILITIES
28-18          Sec. 48.301.  INVESTIGATION OF REPORTS IN OTHER STATE
28-19    FACILITIES.  (a)  If the department receives a report under this
28-20    section relating to an elderly or disabled person in a facility
28-21    operated, licensed, certified, or registered by a state agency
28-22    other than the Texas Department of Mental Health and Mental
28-23    Retardation, the department shall refer the report to that agency.
28-24          (b)  A state agency that receives a report under this section
28-25    shall make a thorough investigation promptly after receiving a
28-26    report that an elderly or disabled person has been or may be
28-27    abused, neglected, or exploited in a facility operated, licensed,
 29-1    certified, or registered by the agency.  The primary purpose of the
 29-2    investigation is the protection of the elderly or disabled person.
 29-3          (c)  Each state agency, other than the Texas Department of
 29-4    Mental Health and Mental Retardation, that  operates, licenses,
 29-5    certifies, or registers a facility in which elderly or disabled
 29-6    persons are located shall adopt rules relating to the investigation
 29-7    and resolution of reports received under this section.
 29-8          (d)  The state agency shall prepare and keep on file a
 29-9    complete written report of each investigation conducted by the
29-10    state agency under this section.
29-11          (e)  A state agency that receives a complaint relating to an
29-12    investigation conducted under this section shall refer the
29-13    complaint to its governing board or other entity designated to
29-14    receive such complaints for review and appropriate action.
29-15          Sec. 48.302.  APPROVAL OF RULES.  The Health and Human
29-16    Services Commission shall review and approve the rules to ensure
29-17    that all agencies implement appropriate standards for the conduct
29-18    of investigations and that uniformity exists among agencies in the
29-19    investigation and resolution of reports.
29-20          SECTION 35.  Section 48.022, Human Resources Code, is
29-21    transferred to Subchapter G, Chapter 48, Human Resources Code,
29-22    redesignated as Section 48.303, and amended to read as follows:
29-23          Sec. 48.303 [48.022].  MEMORANDUM OF UNDERSTANDING.  (a)  The
29-24    department shall adopt a  memorandum of understanding with each
29-25    state agency that operates, licenses, certifies, or registers a
29-26    facility in which elderly or disabled persons are located that
29-27    clarifies each agency's responsibility under this chapter.
 30-1          (b)  Not later than the last month of each state fiscal year,
 30-2    the department and the other agencies shall review and update the
 30-3    memorandum.
 30-4          [(c)  Each agency by rule shall adopt the memorandum of
 30-5    understanding and all revisions to the memorandum.]
 30-6          SECTION 36.  Section 48.084, Human Resources Code, is
 30-7    transferred to Subchapter G, Chapter 48, Human Resources Code, and
 30-8    redesignated as Section 48.304 to read as follows:
 30-9          Sec. 48.304 [48.084].  STATISTICS.  (a)  Each state agency,
30-10    other than the Texas  Department of Mental Health and Mental
30-11    Retardation, that operates, licenses, certifies, or registers a
30-12    facility in which elderly or disabled persons are located shall
30-13    compile and maintain statistics on the incidence of abuse, neglect,
30-14    or exploitation of elderly or disabled persons that occurs in the
30-15    facilities.
30-16          (b)  The agency shall make the statistics available to the
30-17    Health and Human Services Commission on request.
30-18          SECTION 37.  Chapter 48, Human Resources Code, is amended by
30-19    adding Subchapter H to read as follows:
30-20          SUBCHAPTER H.  INVESTIGATIONS OF PROVIDERS OF HOME AND
30-21             COMMUNITY-BASED SERVICES CONTRACTING WITH TDMHMR
30-22          Sec. 48.351.  DEFINITIONS.  In this subchapter:
30-23                (1)  "Community center" has the meaning assigned by
30-24    Section 531.002, Health and Safety Code.
30-25                (2)  "Department facility" means:
30-26                      (A)  a facility listed in Section 532.001, Health
30-27    and Safety Code; or
 31-1                      (B)  a state-operated community services program
 31-2    operated by the Texas Department of Mental Health and Mental
 31-3    Retardation or a facility of the department.
 31-4                (3)  "Home and community-based services" means the
 31-5    services described by 42 U.S.C. Section 1396n(c) that are provided
 31-6    by a person under a contract with the Texas Department of Mental
 31-7    Health and Mental Retardation.
 31-8                (4)  "Local mental health authority" has the meaning
 31-9    assigned by Section 531.002, Health and Safety Code.
31-10                (5)  "Local mental retardation authority" has the
31-11    meaning assigned by Section 531.002, Health and Safety Code.
31-12                (6)  "Provider" means a person who contracts with the
31-13    Texas Department of Mental Health and Mental Retardation to provide
31-14    home and community-based services.  The term includes an officer,
31-15    employee, or agent of the provider, and any person with whom the
31-16    provider subcontracts for the provision of those services.
31-17          Sec. 48.352.  INVESTIGATION OF REPORTS RELATING TO HOME AND
31-18    COMMUNITY-BASED SERVICES.  (a)  The department shall receive and
31-19    investigate reports of abuse, neglect, or exploitation of an
31-20    individual receiving home and community-based services from a
31-21    provider if the provider is or may be the person alleged to have
31-22    committed the abuse, neglect, or exploitation.
31-23          (b)  The department shall receive and investigate reports of
31-24    abuse, neglect, or exploitation of an elderly or disabled
31-25    individual residing in a residence owned, operated, or controlled
31-26    by a provider in which the home and community-based services are
31-27    provided, regardless of whether the individual receives those
 32-1    services, if the provider is or may be the person alleged to have
 32-2    committed the abuse, neglect, or exploitation.
 32-3          (c)  If the provider is a department facility, a local mental
 32-4    health or mental retardation authority, or a community center,
 32-5    Subchapter F also applies.
 32-6          Sec. 48.353.  ACTION ON REPORT.  (a)  On receipt by the
 32-7    department of a report of alleged abuse, neglect, or exploitation
 32-8    under this subchapter, the department shall initiate a prompt and
 32-9    thorough investigation as needed to evaluate the accuracy of the
32-10    report and to assess the need for emergency protective services,
32-11    unless the department determines, in accordance with rules adopted
32-12    under Subchapter F, that the report:
32-13                (1)  is frivolous or patently without a factual basis;
32-14    or
32-15                (2)  does not concern abuse, neglect, or exploitation.
32-16          (b)  On learning that a provider is or may be the person who
32-17    committed the alleged abuse, neglect, or exploitation, the
32-18    department shall notify the following persons that the department
32-19    has initiated an investigation:
32-20                (1)  the chief executive of the provider and any other
32-21    personnel of the provider as necessary to facilitate the
32-22    investigation;
32-23                (2)  the designated administrator at the Texas
32-24    Department of Mental Health and Mental Retardation; and
32-25                (3)  any other governmental entity that the
32-26    investigator believes should be notified as necessary to assist in
32-27    the investigation or in the provision of services.
 33-1          (c)  The provider shall:
 33-2                (1)  cooperate completely with the investigation;
 33-3                (2)  provide complete access to all sites owned,
 33-4    operated, or controlled by the provider; and
 33-5                (3)  provide complete access to clients and client
 33-6    records.
 33-7          (d)  The department shall adopt rules for conducting
 33-8    investigations under this subchapter.
 33-9          Sec. 48.354.  FORWARDING OF COMPLETED INVESTIGATION REPORT.
33-10    (a)  The department shall forward to  the chief executive of a
33-11    provider and to the designated administrator at the Texas
33-12    Department of Mental Health and Mental Retardation:
33-13                (1)  a copy of any report the department received under
33-14    this subchapter; and
33-15                (2)  a copy of the department's investigation findings
33-16    and report.
33-17          (b)  The allegation report and the investigation report shall
33-18    be edited to protect the identity of the person who made the report
33-19    under Section 48.051.
33-20          Sec. 48.355.  PROVISION OF SERVICES TO RECIPIENT OF HOME AND
33-21    COMMUNITY-BASED SERVICES.  (a)  The Texas Department of Mental
33-22    Health and Mental Retardation is responsible for providing services
33-23    to an individual receiving home and community support services as
33-24    necessary to alleviate abuse, neglect, or exploitation if the
33-25    department determines that the person needs the services because of
33-26    the failure of a provider to furnish contracted services.
33-27          (b)  The department may  provide emergency services necessary
 34-1    to immediately protect the individual from serious physical harm or
 34-2    death and, if necessary, obtain an emergency order for protective
 34-3    services under Section 48.208.
 34-4          (c)  The department and the Texas Department of Mental Health
 34-5    and Mental Retardation shall develop joint rules governing the
 34-6    provision of services under this section.
 34-7          Sec. 48.356.  PROVISION OF SERVICES TO INDIVIDUAL NOT
 34-8    RECEIVING HOME AND COMMUNITY-BASED SERVICES.  The department shall
 34-9    provide services in accordance with Subchapter E to an elderly or
34-10    disabled individual who does not receive home and community-based
34-11    services but who lives in a residence owned, operated, or
34-12    controlled by a provider in which home and community-based services
34-13    are provided.
34-14          Sec. 48.357.  RESPONSIBILITIES OF TDMHMR.  (a)   At least
34-15    once each calendar quarter, the Texas Department of Mental Health
34-16    and Mental Retardation shall provide to the department:
34-17                (1)  the name and address of each provider who has a
34-18    contract with the Texas Department of Mental Health and Mental
34-19    Retardation to provide home and community-based services;
34-20                (2)  the name and telephone number of the chief
34-21    executive of each provider described by Subdivision (1); and
34-22                (3)  the address of each residence owned, operated, or
34-23    controlled by each provider described by Subdivision (1) in which
34-24    home and community-based services are provided.
34-25          (b)  The Texas Department of Mental Health and Mental
34-26    Retardation shall make available to the department the name and
34-27    telephone number of each person to notify if an individual
 35-1    receiving home and community-based services needs services to
 35-2    alleviate abuse, neglect, or exploitation.
 35-3          (c)  The Texas Department of Mental Health and Mental
 35-4    Retardation shall require each provider to:
 35-5                (1)  provide to the Texas Department of Mental Health
 35-6    and Mental Retardation each calendar quarter the provider's
 35-7    business address and telephone number and the name of the
 35-8    provider's chief executive;
 35-9                (2)  provide to the Texas Department of Mental Health
35-10    and Mental Retardation a telephone number at which the chief
35-11    executive, or a designated representative, can be reached during
35-12    normal business hours, if different from the telephone number
35-13    required by Subdivision (1);
35-14                (3)  provide to the Texas Department of Mental Health
35-15    and Mental Retardation each calendar quarter the name, if any,
35-16    address, and telephone number of any residence owned, operated, or
35-17    controlled by the provider in which home and community-based
35-18    services are provided; and
35-19                (4)  post in a conspicuous location inside any
35-20    residence owned, operated, or controlled by the provider in which
35-21    home and community-based services are provided, a sign that states:
35-22                      (A)  the name, address, and telephone number of
35-23    the provider;
35-24                      (B)  the effective date of the provider's
35-25    contract with the Texas Department of Mental Health and Mental
35-26    Retardation to provide home and community-based services; and
35-27                      (C)  the name of the legal entity that contracted
 36-1    with the Texas Department of Mental Health and Mental Retardation
 36-2    to provide those services.
 36-3          SECTION 38.  Section 261.3019(g), Family Code, is amended to
 36-4    read as follows:
 36-5          (g)  An agreement under Subsection (a) is not required to
 36-6    provide for:
 36-7                (1)  the investigation of abuse alleged to have
 36-8    occurred in a facility or home regulated by the department under
 36-9    Chapter 42, Human Resources Code; or
36-10                (2)  an investigation conducted under [Section 48.081,
36-11    Human Resources Code, or] Section 261.404.
36-12          SECTION 39.  Section 261.404, Family Code, is amended to read
36-13    as follows:
36-14          Sec. 261.404.  INVESTIGATIONS IN FACILITIES UNDER DEPARTMENT
36-15    OF MENTAL HEALTH AND MENTAL RETARDATION.  (a)  The department shall
36-16    investigate a report of abuse, [or] neglect, or exploitation of a
36-17    child receiving services:
36-18                (1)  in a facility operated by[, regulated by, or
36-19    providing services under a contract with] the Texas Department of
36-20    Mental Health and Mental Retardation;
36-21                (2)  in or from a community center, a local mental
36-22    health authority, or a local mental retardation authority; or
36-23                (3)  through a program providing services to that child
36-24    by contract with a facility operated by the Texas Department of
36-25    Mental Health and Mental Retardation, a community center, a local
36-26    mental health authority, or a local mental retardation authority.
36-27          (b)  The department shall investigate the report under rules
 37-1    developed jointly between the department and the Texas Department
 37-2    of Mental Health and Mental Retardation.
 37-3          (c)  The definitions of "abuse" and "neglect" prescribed by
 37-4    Section 261.001 do not apply to an investigation under this
 37-5    section.
 37-6          (d)  In this section, "community center," "local mental
 37-7    health authority," and "local mental retardation authority" have
 37-8    the meanings assigned by Section 531.002, Health and Safety Code.
 37-9          SECTION 40.  The following provisions of the Human Resources
37-10    Code are repealed:
37-11                (1)  Section 48.038;
37-12                (2)  Section 48.042;
37-13                (3)  Section 48.082; and
37-14                (4)  Section 48.083.
37-15          SECTION 41.  This Act takes effect September 1, 1999.
37-16          SECTION 42.  The importance of this legislation and the
37-17    crowded condition of the calendars in both houses create an
37-18    emergency and an imperative public necessity that the
37-19    constitutional rule requiring bills to be read on three several
37-20    days in each house be suspended, and this rule is hereby suspended.