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.