By Naishtat H.B. No. 2170
76R8152 CBH-F
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 Subchapter F.
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 or who acts in bad faith or with malicious
7-12 purpose in reporting alleged abuse, neglect, or exploitation is not
7-13 immune from civil or criminal liability [In this section,
7-14 "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 [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 or in the delivery of services 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. This subchapter
15-22 does not apply to a Texas Department of Mental Health and Mental
15-23 Retardation investigation under Subchapter F.
15-24 Sec. 48.202. SERVICE DETERMINATION BY DEPARTMENT OR AGENCY.
15-25 In an investigation the department or state agency, as appropriate,
15-26 shall determine:
15-27 (1) whether the person needs protective services from
16-1 the department;
16-2 (2) what services are needed;
16-3 (3) whether services are available from the
16-4 department, from the state agency, or in the community and how they
16-5 can be provided;
16-6 (4) whether the person, acting alone, would be capable
16-7 of obtaining needed services and could bear the cost or would be
16-8 eligible for services from the department or state agency;
16-9 (5) whether a caretaker would be willing to provide
16-10 services or would agree to their provisions;
16-11 (6) whether the elderly or disabled person desires the
16-12 services; and
16-13 (7) other pertinent data.
16-14 SECTION 22. Section 48.059, Human Resources Code, is
16-15 transferred to Subchapter E, Chapter 48, Human Resources Code, and
16-16 redesignated as Section 48.203 to read as follows:
16-17 Sec. 48.203 [48.059]. VOLUNTARY PROTECTIVE SERVICES. (a)
16-18 An elderly or disabled person may receive voluntary protective
16-19 services if the person requests or consents to receive those
16-20 services.
16-21 (b) The elderly or disabled person who receives protective
16-22 services shall participate in all decisions regarding his or her
16-23 welfare, if able to do so.
16-24 (c) The least restrictive alternatives should be made
16-25 available to the elderly or disabled person who receives protective
16-26 services.
16-27 (d) If an elderly or disabled person withdraws or refuses
17-1 consent, the services may not be provided.
17-2 SECTION 23. Section 48.056, Human Resources Code, is
17-3 transferred to Subchapter E, Chapter 48, Human Resources Code, and
17-4 redesignated as Section 48.204 to read as follows:
17-5 Sec. 48.204 [48.056]. AGENCY POWERS. A protective services
17-6 agency may furnish protective services to an elderly or disabled
17-7 person with the person's consent or, if the person lacks the
17-8 capacity to consent, without that person's consent as provided by
17-9 this chapter.
17-10 SECTION 24. Section 48.021, Human Resources Code, is
17-11 transferred to Subchapter E, Chapter 48, Human Resources Code,
17-12 redesignated as Section 48.205, and amended to read as follows:
17-13 Sec. 48.205 [48.021]. PROVISION OF SERVICES. (a) The
17-14 department may provide direct protective services or contract with
17-15 protective services agencies for the provisions of those services.
17-16 (b) The department shall use existing resources and services
17-17 of public and private agencies in providing protective services.
17-18 (c) The department and law enforcement officials, courts,
17-19 and agencies shall cooperate when providing protective services.
17-20 (d) The responsibilities prescribed by [set forth in] this
17-21 chapter are [Act shall be] exclusive of those designated to other
17-22 state or federal agencies authorized or required by law to provide
17-23 protective services to elderly or disabled persons determined to be
17-24 in the state of abuse, neglect, or exploitation[, or neglect].
17-25 SECTION 25. Section 48.058, Human Resources Code, is
17-26 transferred to Subchapter E, Chapter 48, Human Resources Code, and
17-27 redesignated as Section 48.206 to read as follows:
18-1 Sec. 48.206 [48.058]. COST OF SERVICES. If the elderly or
18-2 disabled person receiving the protective services is determined to
18-3 be financially able to contribute to the payments for those
18-4 services, the provider shall receive a reasonable reimbursement
18-5 from the person's assets.
18-6 SECTION 26. Section 48.061, Human Resources Code, is
18-7 transferred to Subchapter E, Chapter 48, Human Resources Code,
18-8 redesignated as Section 48.208, and amended to read as follows:
18-9 Sec. 48.208 [48.061]. EMERGENCY ORDER FOR PROTECTIVE
18-10 SERVICES. (a) For purposes of this section, a person lacks the
18-11 capacity to consent to receive protective services if, because of
18-12 mental or physical impairment, the person is incapable of
18-13 understanding the nature of the services offered and agreeing to
18-14 receive or rejecting protective services.
18-15 (b) If the department determines that an elderly or disabled
18-16 person is suffering from abuse, neglect, or exploitation[, or
18-17 neglect] presenting a threat to life or physical safety, that the
18-18 person lacks capacity to consent to receive protective services,
18-19 and that no consent can be obtained, the department may petition
18-20 the probate or statutory or constitutional county court that has
18-21 probate jurisdiction in the county in which the elderly or disabled
18-22 person resides for an emergency order authorizing protective
18-23 services.
18-24 (c) The petition shall be verified and shall include:
18-25 (1) the name, age, and address of the elderly or
18-26 disabled person who needs protective services;
18-27 (2) the nature of the abuse, neglect, or
19-1 exploitation[, or neglect];
19-2 (3) the services needed; and
19-3 (4) a medical report signed by a physician stating
19-4 that the person is suffering from abuse, neglect, or exploitation[,
19-5 or neglect] presenting a threat to life or physical safety and
19-6 stating that the person is physically or mentally incapable of
19-7 consenting to services unless the court finds that an immediate
19-8 danger to the health or safety of the elderly or disabled person
19-9 exists and there is not sufficient time to obtain the medical
19-10 report.
19-11 (d) On finding that there is reasonable cause to believe
19-12 that abuse, neglect, or exploitation[, or neglect] presents a
19-13 threat to life or physical safety for the elderly or disabled
19-14 person and that the elderly or disabled person lacks capacity to
19-15 consent to services, the court may:
19-16 (1) order removal of the elderly or disabled person to
19-17 safer surroundings;
19-18 (2) order medical services; and
19-19 (3) order other available services necessary to remove
19-20 conditions creating the threat to life or physical safety,
19-21 including the services of law enforcement officers or emergency
19-22 medical services personnel.
19-23 (e) The emergency order expires at the end of 72 hours from
19-24 the time of the order unless the 72-hour period ends on a Saturday,
19-25 Sunday, or legal holiday in which event the order is automatically
19-26 extended to 4 p.m. on the first succeeding business day. An order
19-27 may be renewed for not more than 14 additional days. A renewal
20-1 order that ends on a Saturday, Sunday, or legal holiday is
20-2 automatically extended to 4 p.m. on the first succeeding business
20-3 day. The court may modify or terminate the emergency order on
20-4 petition of the department, the incompetent person, or any person
20-5 interested in his welfare.
20-6 (f) Any medical facility or physician treating an elderly or
20-7 disabled person pursuant to an emergency order under this chapter
20-8 is not liable for any damages arising from the treatment, except
20-9 those damages resulting from the negligence of the facility or
20-10 physician.
20-11 (g) The court shall appoint an attorney ad litem to
20-12 represent the elderly or disabled person in any proceeding brought
20-13 by the department under this section. A reasonable fee, as
20-14 determined by the court, shall be paid to the attorney ad litem
20-15 from the general fund of the county.
20-16 (h) If the department cannot obtain an emergency order under
20-17 this section because the court is closed on a Saturday, Sunday, or
20-18 legal holiday or after 5 p.m., the department may remove the
20-19 elderly or disabled person to safer surroundings, authorize medical
20-20 treatment, or order or provide other available services necessary
20-21 to remove conditions creating the threat to life or physical
20-22 safety. The department must obtain an emergency order under this
20-23 section not later than 4 p.m. on the first succeeding business day
20-24 after the date on which protective services are provided. If the
20-25 department does not obtain an emergency order, the department shall
20-26 cease providing protective services and, if necessary, make
20-27 arrangements for the immediate return of the person to the place
21-1 from which the person was removed, to the person's place of
21-2 residence in the state, or to another suitable place.
21-3 SECTION 27. Section 48.0215, Human Resources Code, is
21-4 transferred to Subchapter E, Chapter 48, Human Resources Code, and
21-5 redesignated as Section 48.209 to read as follows:
21-6 Sec. 48.209 [48.0215]. GUARDIANSHIPS. (a) The department
21-7 shall file an application under Section 682 or 875, Texas Probate
21-8 Code, to be appointed guardian of the person or estate or both of
21-9 an individual who is a minor, is a conservatee of the department,
21-10 and, because of a physical or mental condition, will be
21-11 substantially unable to provide food, clothing, or shelter for
21-12 himself or herself, to care for the individual's own physical
21-13 health, or to manage the individual's own financial affairs when
21-14 the individual becomes an adult. If a less restrictive alternative
21-15 to guardianship is available for an individual, the department
21-16 shall pursue the alternative instead of applying for appointment as
21-17 a guardian.
21-18 (b) As a last resort, the department may apply to be
21-19 appointed guardian of the person or estate of an elderly or
21-20 disabled person who is found by the department to be in a state of
21-21 abuse, neglect, or exploitation, and who, because of a physical or
21-22 mental condition, will be substantially unable to provide food,
21-23 clothing, or shelter for himself or herself, to care for the
21-24 individual's own physical health, or to manage the individual's own
21-25 financial affairs. A representative of the department shall take
21-26 the oath required by the Texas Probate Code on behalf of the
21-27 department if the department is appointed guardian. If the
22-1 department knows that an individual is willing and able to serve as
22-2 the guardian, the department may inform the court of that
22-3 individual's willingness and ability.
22-4 (c) If appropriate, the department may contract with a
22-5 political subdivision of this state, a private agency, or another
22-6 state agency for the provision of guardianship services under this
22-7 section. The department or a political subdivision of the state or
22-8 state agency with which the department contracts under this section
22-9 is not required to post a bond or pay any cost or fee otherwise
22-10 required by the Texas Probate Code.
22-11 (d) If the department is appointed guardian, the department
22-12 is not liable for funding services provided to the department's
22-13 ward, including long-term care or burial expenses.
22-14 (e) The department may not be required to pay fees
22-15 associated with the appointment of a guardian ad litem or attorney
22-16 ad litem.
22-17 SECTION 28. Section 48.040, Human Resources Code, is
22-18 transferred to Subchapter E, Chapter 48, Human Resources Code, and
22-19 redesignated as Section 48.210 to read as follows:
22-20 Sec. 48.210 [48.040]. REPRESENTATION. (a) Except as
22-21 provided by Subsection (b), the prosecuting attorney representing
22-22 the state in criminal cases in the county court shall represent the
22-23 department in any proceeding under this chapter unless the
22-24 representation would be a conflict of interest.
22-25 (b) In a county having a population of more than 2.8
22-26 million, the prosecuting attorney representing the state in civil
22-27 cases in the county court shall represent the department in any
23-1 proceeding under this chapter unless the representation would be a
23-2 conflict of interest.
23-3 SECTION 29. Subchapter E, Chapter 48, Human Resources Code,
23-4 is amended by adding Section 48.211 to read as follows:
23-5 Sec. 48.211. REPORT TO GUARDIANSHIP COURT. If the elderly
23-6 or disabled person has a guardian, a written notification of the
23-7 findings of the investigation shall be sent to the court to which
23-8 the guardian is accountable.
23-9 SECTION 30. The subchapter heading to Subchapter F, Chapter
23-10 48, Human Resources Code, is amended to read as follows:
23-11 SUBCHAPTER F. INVESTIGATIONS IN TDMHMR FACILITIES, COMMUNITY
23-12 CENTERS, AND MHMR AUTHORITIES [MISCELLANEOUS PROVISIONS]
23-13 SECTION 31. Subchapter F, Chapter 48, Human Resources Code,
23-14 is amended by adding Section 48.251 to read as follows:
23-15 Sec. 48.251. DEFINITIONS. The department by rule shall
23-16 adopt definitions of "abuse," "neglect," and "exploitation" to
23-17 govern an investigation under this subchapter.
23-18 SECTION 32. Section 48.081, Human Resources Code, is
23-19 transferred to Subchapter F, Chapter 48, Human Resources Code,
23-20 redesignated as Section 48.252, and amended to read as follows:
23-21 Sec. 48.252 [48.081]. INVESTIGATION OF REPORTS IN MHMR
23-22 FACILITIES AND IN COMMUNITY CENTERS. (a) The department shall
23-23 receive and investigate reports of the abuse, neglect, or
23-24 exploitation of an individual with a disability receiving services:
23-25 (1) [receiving services] in a facility operated by the
23-26 Texas Department of Mental Health and Mental Retardation; [or]
23-27 (2) in or from a community center, a local mental
24-1 health authority, or a local mental retardation authority; or
24-2 (3) [being provided services] through a program
24-3 providing services to that person by contract [under contract] with
24-4 a facility operated by the Texas Department of Mental Health and
24-5 Mental Retardation, a community center, a local mental health
24-6 authority, or a local mental retardation authority.
24-7 (b) [The department and the Texas Department of Mental
24-8 Health and Mental Retardation shall develop joint rules to
24-9 facilitate investigations in state mental health and mental
24-10 retardation facilities.]
24-11 [(c) The department shall receive and investigate a report
24-12 of the alleged abuse, neglect, or exploitation of an individual
24-13 receiving services in a community center or from a program
24-14 providing services under contract with a community center.]
24-15 [(d) The department shall forward to a state mental health
24-16 or mental retardation facility, a community center, or a program
24-17 providing mental health or mental retardation services under
24-18 contract with such a facility or community center:]
24-19 [(1) a copy of any report the department receives
24-20 relating to alleged or suspected abuse, neglect, or exploitation of
24-21 an individual receiving services from that facility, community
24-22 center, or program; and]
24-23 [(2) a copy of the department's investigation findings
24-24 and report.]
24-25 [(e) The department and the Texas Department of Mental
24-26 Health and Mental Retardation by joint rules shall establish
24-27 procedures for resolving disagreements between the department and
25-1 the Texas Department of Mental Health and Mental Retardation
25-2 concerning the department's investigation findings. A confirmed
25-3 investigation finding by the department may not be changed by a
25-4 superintendent of a state mental health or mental retardation
25-5 facility or a director of a community center.]
25-6 [(f) After completion of the appeals process, the department
25-7 shall refer a complaint relating to an investigation conducted by
25-8 the department under this section to the department's ombudsman
25-9 office for appropriate action.]
25-10 [(g) If the department's investigation under this section
25-11 reveals that an elderly or disabled person has been abused by
25-12 another person in a manner that constitutes a criminal offense
25-13 under any law, including Section 22.04, Penal Code, a copy of the
25-14 investigation shall be submitted to the appropriate law enforcement
25-15 agency.]
25-16 [(h) The department by rule may assign priorities to an
25-17 investigation conducted by the department under this section. The
25-18 primary criterion used by the department in assigning a priority
25-19 must be the risk that a delay in the investigation will impede the
25-20 collection of evidence.]
25-21 [(i) The department and the Texas Department of Mental
25-22 Health and Mental Retardation shall jointly develop and implement a
25-23 single system to track reports and investigations under this
25-24 section. To facilitate implementation of the system, the
25-25 department and the Texas Department of Mental Health and Mental
25-26 Retardation shall use appropriate methods of measuring the number
25-27 and outcome of reports and investigations under this section.]
26-1 [(j)] In this section, "community center," "local mental
26-2 health authority," and "local mental retardation authority" have
26-3 the meanings [has the meaning] assigned by Section 531.002, Health
26-4 and Safety Code.
26-5 SECTION 33. Subchapter F, Chapter 48, Human Resources Code,
26-6 is amended by adding Sections 48.253, 48.254, 48.255, and 48.256 to
26-7 read as follows:
26-8 Sec. 48.253. ACTION ON REPORT. On receipt by the department
26-9 of a report of alleged abuse, neglect, or exploitation under this
26-10 subchapter, the department shall initiate a prompt and thorough
26-11 investigation as needed to evaluate the accuracy of the report
26-12 unless the department determines that the report:
26-13 (1) is frivolous or patently without a factual basis;
26-14 or
26-15 (2) does not concern abuse, neglect, or exploitation,
26-16 as those terms are defined by department rules adopted under this
26-17 subchapter.
26-18 Sec. 48.254. FORWARDING OF COMPLETED INVESTIGATION REPORT.
26-19 The department shall forward to a state mental health or mental
26-20 retardation facility, a community center, a mental health
26-21 authority, a mental retardation authority, or a program providing
26-22 mental health or mental retardation services under contract with
26-23 such a facility, community center, or authority:
26-24 (1) a copy of any report the department receives
26-25 relating to alleged or suspected abuse, neglect, or exploitation of
26-26 an individual receiving services from that facility, community
26-27 center, authority, or program; and
27-1 (2) a copy of the department's investigation findings
27-2 and report.
27-3 Sec. 48.255. RULES FOR INVESTIGATIONS UNDER THIS SUBCHAPTER.
27-4 (a) The department and the Texas Department of Mental Health and
27-5 Mental Retardation shall develop joint rules to facilitate
27-6 investigations in state mental health and mental retardation
27-7 facilities.
27-8 (b) The department and the Texas Department of Mental Health
27-9 and Mental Retardation by joint rules shall establish procedures
27-10 for resolving disagreements between the department and the Texas
27-11 Department of Mental Health and Mental Retardation concerning the
27-12 department's investigation findings.
27-13 (c) The department and the Texas Department of Mental Health
27-14 and Mental Retardation shall develop joint rules to facilitate
27-15 investigations in community centers, mental health authorities, and
27-16 mental retardation authorities.
27-17 (d) A confirmed investigation finding by the department may
27-18 not be changed by a superintendent of a state mental health or
27-19 mental retardation facility, a director of a community center, or
27-20 by a mental health authority or mental retardation authority.
27-21 (e) The department shall provide by rule for an appeals
27-22 process by the alleged victim of abuse, neglect, or exploitation
27-23 under this section.
27-24 (f) The department by rule may assign priorities to an
27-25 investigation conducted by the department under this section. The
27-26 primary criterion used by the department in assigning a priority
27-27 must be the risk that a delay in the investigation will impede the
28-1 collection of evidence.
28-2 Sec. 48.256. SINGLE TRACKING SYSTEM FOR REPORTS AND
28-3 INVESTIGATIONS. The department and the Texas Department of Mental
28-4 Health and Mental Retardation shall jointly develop and implement a
28-5 single system to track reports and investigations under this
28-6 section. To facilitate implementation of the system, the
28-7 department and the Texas Department of Mental Health and Mental
28-8 Retardation shall use appropriate methods of measuring the number
28-9 and outcome of reports and investigations under this section.
28-10 SECTION 34. Chapter 48, Human Resources Code, is amended by
28-11 adding Subchapter G to read as follows:
28-12 SUBCHAPTER G. INVESTIGATIONS IN CERTAIN FACILITIES
28-13 Sec. 48.301. INVESTIGATION OF REPORTS IN OTHER STATE
28-14 FACILITIES. (a) If the department receives a report under this
28-15 section relating to an elderly or disabled person in a facility
28-16 operated, licensed, certified, or registered by a state agency
28-17 other than the Texas Department of Mental Health and Mental
28-18 Retardation, the department shall refer the report to that agency.
28-19 (b) A state agency that receives a report under this section
28-20 shall make a thorough investigation promptly after receiving a
28-21 report that an elderly or disabled person has been or may be
28-22 abused, neglected, or exploited in a facility operated, licensed,
28-23 certified, or registered by the agency. The primary purpose of the
28-24 investigation is the protection of the elderly or disabled person.
28-25 (c) Each state agency, other than the Texas Department of
28-26 Mental Health and Mental Retardation, that operates, licenses,
28-27 certifies, or registers a facility in which elderly or disabled
29-1 persons are located shall adopt rules relating to the investigation
29-2 and resolution of reports received under this section.
29-3 (d) The state agency shall prepare and keep on file a
29-4 complete written report of each investigation conducted by the
29-5 state agency under this section.
29-6 (e) A state agency that receives a complaint relating to an
29-7 investigation conducted under this section shall refer the
29-8 complaint to its governing board or other entity designated to
29-9 receive such complaints for review and appropriate action.
29-10 Sec. 48.302. APPROVAL OF RULES. The Health and Human
29-11 Services Commission shall review and approve the rules to ensure
29-12 that all agencies implement appropriate standards for the conduct
29-13 of investigations and that uniformity exists among agencies in the
29-14 investigation and resolution of reports.
29-15 SECTION 35. Section 48.022, Human Resources Code, is
29-16 transferred to Subchapter G, Chapter 48, Human Resources Code,
29-17 redesignated as Section 48.303, and amended to read as follows:
29-18 Sec. 48.303 [48.022]. MEMORANDUM OF UNDERSTANDING. (a) The
29-19 department shall adopt a memorandum of understanding with each
29-20 state agency that operates, licenses, certifies, or registers a
29-21 facility in which elderly or disabled persons are located that
29-22 clarifies each agency's responsibility under this chapter.
29-23 (b) Not later than the last month of each state fiscal year,
29-24 the department and the other agencies shall review and update the
29-25 memorandum.
29-26 [(c) Each agency by rule shall adopt the memorandum of
29-27 understanding and all revisions to the memorandum.]
30-1 SECTION 36. Section 48.084, Human Resources Code, is
30-2 transferred to Subchapter G, Chapter 48, Human Resources Code, and
30-3 redesignated as Section 48.304 to read as follows:
30-4 Sec. 48.304 [48.084]. STATISTICS. (a) Each state agency,
30-5 other than the Texas Department of Mental Health and Mental
30-6 Retardation, that operates, licenses, certifies, or registers a
30-7 facility in which elderly or disabled persons are located shall
30-8 compile and maintain statistics on the incidence of abuse, neglect,
30-9 or exploitation of elderly or disabled persons that occurs in the
30-10 facilities.
30-11 (b) The agency shall make the statistics available to the
30-12 Health and Human Services Commission on request.
30-13 SECTION 37. The following provisions of the Human Resources
30-14 Code are repealed:
30-15 (1) Section 48.038;
30-16 (2) Section 48.042;
30-17 (3) Section 48.082; and
30-18 (4) Section 48.083.
30-19 SECTION 38. This Act takes effect September 1, 1999.
30-20 SECTION 39. The importance of this legislation and the
30-21 crowded condition of the calendars in both houses create an
30-22 emergency and an imperative public necessity that the
30-23 constitutional rule requiring bills to be read on three several
30-24 days in each house be suspended, and this rule is hereby suspended.