1-1 By: Naishtat, et al. (Senate Sponsor - Zaffirini) H.B. No. 2170
1-2 (In the Senate - Received from the House April 26, 1999;
1-3 April 27, 1999, read first time and referred to Committee on Human
1-4 Services; May 12, 1999, reported favorably by the following vote:
1-5 Yeas 4, Nays 0; May 12, 1999, sent to printer.)
1-6 A BILL TO BE ENTITLED
1-7 AN ACT
1-8 relating to investigations and protective services for elderly and
1-9 disabled persons.
1-10 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-11 SECTION 1. The chapter heading to Chapter 48, Human
1-12 Resources Code, is amended to read as follows:
1-13 CHAPTER 48. INVESTIGATIONS AND PROTECTIVE SERVICES FOR
1-14 ELDERLY AND DISABLED PERSONS
1-15 SECTION 2. Sections 48.001 and 48.002, Human Resources Code,
1-16 are amended to read as follows:
1-17 Sec. 48.001. PURPOSE. The purpose of this chapter is to
1-18 provide for the authority to investigate the abuse, neglect, or
1-19 exploitation[, or neglect] of an elderly or disabled person and to
1-20 provide protective services to that person.
1-21 Sec. 48.002. DEFINITIONS. (a) Except as otherwise provided
1-22 under Section 48.251, in [In] this chapter:
1-23 (1) "Elderly person" means a person 65 years of age or
1-24 older.
1-25 (2) "Abuse" means:
1-26 (A) the negligent or wilful infliction of
1-27 injury, unreasonable confinement, intimidation, or cruel punishment
1-28 with resulting physical or emotional harm or pain to an elderly or
1-29 disabled person by the person's caretaker, family member, or other
1-30 individual who has an ongoing relationship with the person; or
1-31 (B) sexual abuse of an elderly or disabled
1-32 person, including any involuntary or nonconsensual sexual conduct
1-33 that would constitute an offense under Section 21.08, Penal Code
1-34 (indecent exposure) or Chapter 22, Penal Code (assaultive
1-35 offenses), committed by the person's caretaker, family member, or
1-36 other individual who has an ongoing relationship with the person.
1-37 (3) "Exploitation" means the illegal or improper act
1-38 or process of a caretaker, family member, or other individual who
1-39 has an ongoing relationship with the elderly or disabled person
1-40 using the resources of an elderly or disabled person for monetary
1-41 or personal benefit, profit, or gain without the informed consent
1-42 of the elderly or disabled person.
1-43 (4) "Neglect" means the failure to provide for one's
1-44 self the goods or services, including medical services, which are
1-45 necessary to avoid physical or emotional harm or pain or the
1-46 failure of a caretaker to provide such goods or services.
1-47 (5) "Protective services" means the services furnished
1-48 by the department or by a protective services agency to an elderly
1-49 or disabled person who has been determined to be in a state of
1-50 abuse, neglect, or exploitation[, or neglect]. These services may
1-51 include social casework, case management, and arranging for
1-52 psychiatric and health evaluation, home care, day care, social
1-53 services, health care, and other services consistent with this
1-54 chapter.
1-55 (6) "Protective services agency" means a public or
1-56 private agency, corporation, board, or organization that provides
1-57 protective services to elderly or disabled persons in the state of
1-58 abuse, neglect, or exploitation[, or neglect].
1-59 (7) "Department" means the Department of Protective
1-60 and Regulatory Services.
1-61 (8) "Disabled person" means a person with a mental,
1-62 physical, or developmental disability that substantially impairs
1-63 the person's ability to provide adequately for the person's care or
1-64 protection and who is:
2-1 (A) 18 years of age or older; or
2-2 (B) under 18 years of age and who has had the
2-3 disabilities of minority removed.
2-4 (9) "Legal holiday" means a state holiday listed in
2-5 Subchapter B, Chapter 662, Government Code, or an officially
2-6 declared county holiday.
2-7 (10) "Volunteer" means a person who:
2-8 (A) performs services for or on behalf of the
2-9 department under the supervision of a department employee; and
2-10 (B) does not receive compensation that exceeds
2-11 the authorized expenses the person incurs in performing those
2-12 services.
2-13 (b) The definitions of "abuse," "neglect," and
2-14 "exploitation" adopted by the department as prescribed by Section
2-15 48.251 apply to an investigation of abuse, neglect, or exploitation
2-16 in a facility subject to Subchapters F and H.
2-17 SECTION 3. Section 48.085, Human Resources Code, is
2-18 transferred to Subchapter A, Chapter 48, Human Resources Code,
2-19 redesignated as Section 48.003, and amended to read as follows:
2-20 Sec. 48.003 [48.085]. INVESTIGATIONS IN NURSING HOMES AND
2-21 SIMILAR FACILITIES. (a) This chapter [subchapter] does not apply
2-22 if the alleged or suspected abuse, neglect, or exploitation occurs
2-23 in a facility licensed under Chapter 242, Health and Safety Code.
2-24 (b) Alleged or suspected abuse, neglect, or exploitation
2-25 that occurs in a facility licensed under Chapter 242, Health and
2-26 Safety Code, is governed by Subchapter B, Chapter 242, Health and
2-27 Safety Code.
2-28 SECTION 4. The subchapter heading to Subchapter B, Chapter
2-29 48, Human Resources Code, is amended to read as follows:
2-30 SUBCHAPTER B. REPORTS OF ABUSE, NEGLECT, OR EXPLOITATION:
2-31 IMMUNITIES [ADMINISTRATIVE PROVISIONS]
2-32 SECTION 5. Section 48.036, Human Resources Code, is
2-33 transferred to Subchapter B, Chapter 48, Human Resources Code,
2-34 redesignated as Section 48.051, and amended to read as follows:
2-35 Sec. 48.051 [48.036]. REPORT. (a) Except as prescribed by
2-36 Subsection (b) [Section 48.082], a person having cause to believe
2-37 that an elderly or disabled person is in the state of abuse,
2-38 neglect, or exploitation[, or neglect] shall report the information
2-39 required by Subsection (d) [(b)] immediately to the department.
2-40 (b) If a person has cause to believe that an elderly or
2-41 disabled person has been abused, neglected, or exploited in a
2-42 facility operated, licensed, certified, or registered by a state
2-43 agency other than the Texas Department of Mental Health and Mental
2-44 Retardation, the person shall report the information to the state
2-45 agency that operates, licenses, certifies, or registers the
2-46 facility for investigation by that agency [The report may be made
2-47 orally or in writing. It shall include:]
2-48 [(1) the name, age, and address of the elderly or
2-49 disabled person;]
2-50 [(2) the name and address of any person responsible
2-51 for the elderly or disabled person's care;]
2-52 [(3) the nature and extent of the elderly or disabled
2-53 person's condition;]
2-54 [(4) the basis of the reporter's knowledge; and]
2-55 [(5) any other relevant information].
2-56 (c) The duty imposed by Subsections [Subsection] (a) and (b)
2-57 applies without exception to a person whose professional
2-58 communications are generally confidential, including an attorney,
2-59 clergy member, medical practitioner, social worker, and mental
2-60 health professional.
2-61 (d) The report may be made orally or in writing. It shall
2-62 include:
2-63 (1) the name, age, and address of the elderly or
2-64 disabled person;
2-65 (2) the name and address of any person responsible for
2-66 the elderly or disabled person's care;
2-67 (3) the nature and extent of the elderly or disabled
2-68 person's condition;
2-69 (4) the basis of the reporter's knowledge; and
3-1 (5) any other relevant information.
3-2 SECTION 6. Section 48.0361, Human Resources Code, is
3-3 transferred to Subchapter B, Chapter 48, Human Resources Code,
3-4 redesignated as Section 48.052, and amended to read as follows:
3-5 Sec. 48.052 [48.0361]. FAILURE TO REPORT; PENALTY. (a) A
3-6 person commits an offense if the person has cause to believe that
3-7 an elderly or disabled person has been abused, neglected, or
3-8 exploited[, or neglected] or is in the state of abuse, neglect, or
3-9 exploitation[, or neglect] and knowingly fails to report in
3-10 accordance with this chapter [Section 48.036 or Subchapter E]. An
3-11 offense under this subsection is a Class A misdemeanor.
3-12 (b) This section does not apply if the alleged abuse,
3-13 neglect, or exploitation[, or neglect] occurred in a facility
3-14 licensed under Chapter 242, Health and Safety Code. Failure to
3-15 report abuse, neglect, or exploitation[, or neglect] that occurs in
3-16 a facility licensed under that chapter is governed by that chapter.
3-17 SECTION 7. Section 48.0362, Human Resources Code, is
3-18 transferred to Subchapter B, Chapter 48, Human Resources Code, and
3-19 redesignated as Section 48.053 to read as follows:
3-20 Sec. 48.053 [48.0362]. FALSE REPORT; PENALTY. A person
3-21 commits an offense if the person knowingly or intentionally reports
3-22 information as provided in this chapter that the person knows is
3-23 false or lacks factual foundation. An offense under this section
3-24 is a Class B misdemeanor.
3-25 SECTION 8. Section 48.039, Human Resources Code, is
3-26 transferred to Subchapter B, Chapter 48, Human Resources Code,
3-27 redesignated as Section 48.054, and amended to read as follows:
3-28 Sec. 48.054 [48.039]. IMMUNITY. (a) A person filing a
3-29 report under this chapter or testifying or otherwise participating
3-30 in any judicial proceeding arising from a petition, report, or
3-31 investigation is immune from civil or criminal liability on account
3-32 of his or her petition, report, testimony, or participation, unless
3-33 the person acted in bad faith or with a malicious purpose.
3-34 (b) A person, including an authorized department volunteer,
3-35 medical personnel, or law enforcement officer, who at the request
3-36 of the department participates in an investigation required by this
3-37 chapter or in an action that results from that investigation is
3-38 immune from civil or criminal liability for any act or omission
3-39 relating to that participation if the person acted in good faith
3-40 and, if applicable, in the course and scope of the person's
3-41 assigned responsibilities or duties.
3-42 (c) A person who reports the person's own abuse, neglect, or
3-43 exploitation of another person or who acts in bad faith or with
3-44 malicious purpose in reporting alleged abuse, neglect, or
3-45 exploitation is not immune from civil or criminal liability [In
3-46 this section, "volunteer" means a person who:]
3-47 [(1) renders services for or on behalf of the
3-48 department under the supervision of a department employee; and]
3-49 [(2) does not receive compensation that exceeds the
3-50 authorized expenses the person incurs in rendering those services].
3-51 SECTION 9. The subchapter heading to Subchapter C, Chapter
3-52 48, Human Resources Code, is amended to read as follows:
3-53 SUBCHAPTER C. CONFIDENTIALITY [DEPARTMENT INVESTIGATION OF
3-54 REPORTS OF SUSPECTED ABUSE, EXPLOITATION, OR NEGLECT]
3-55 SECTION 10. Section 48.101, Human Resources Code, is
3-56 transferred to Subchapter C, Chapter 48, Human Resources Code, and
3-57 amended to read as follows:
3-58 Sec. 48.101. CONFIDENTIALITY AND DISCLOSURE OF INFORMATION;
3-59 AGENCY EXCHANGE OF INFORMATION. (a) The following information is
3-60 confidential and not subject to disclosure under Chapter 552,
3-61 Government Code:
3-62 (1) a report of abuse, neglect, or exploitation made
3-63 under this chapter;
3-64 (2) the identity of the person making the report; and
3-65 (3) except as provided by this section, all files,
3-66 reports, records, communications, and working papers used or
3-67 developed in an investigation made under this chapter or in
3-68 providing services as a result of an investigation.
3-69 (b) Confidential information may be disclosed only for a
4-1 purpose consistent with this chapter and as provided by department
4-2 or investigating state agency rule and applicable federal law.
4-3 (c) A court may order disclosure of confidential information
4-4 only if:
4-5 (1) a motion is filed with the court requesting
4-6 release of the information and a hearing on that request;
4-7 (2) notice of that hearing is served on the department
4-8 or investigating state agency and each interested party; and
4-9 (3) the court determines after the hearing and an in
4-10 camera review of the information that disclosure is essential to
4-11 the administration of justice and will not endanger the life or
4-12 safety of any individual who:
4-13 (A) is the subject of a report of abuse,
4-14 neglect, or exploitation;
4-15 (B) makes a report of abuse, neglect, or
4-16 exploitation; or
4-17 (C) participates in an investigation of reported
4-18 abuse, neglect, or exploitation.
4-19 (d) The department or investigating state agency by rule
4-20 shall provide for the release on request to a person who is the
4-21 subject of a report of abuse, neglect, or exploitation or to that
4-22 person's legal representative of otherwise confidential information
4-23 relating to that report. The department or investigating state
4-24 agency shall edit the information before release to protect the
4-25 confidentiality of information relating to the reporter's identity
4-26 and to protect any other individual whose safety or welfare may be
4-27 endangered by disclosure.
4-28 (e) The department or investigating state agency may adopt
4-29 rules relating to the release of information contained in the
4-30 record of a deceased individual who was the subject of an
4-31 investigation conducted by the department or investigating state
4-32 agency or to whom the department has provided protective services.
4-33 The rules must be consistent with the purposes of this chapter and
4-34 any applicable state or federal law.
4-35 (f) The department or investigating state agency may
4-36 establish procedures to exchange with another state agency or
4-37 governmental entity information that is necessary for the
4-38 department, state agency, or entity to properly execute its
4-39 respective duties and responsibilities to provide services to
4-40 elderly or disabled persons under this chapter or other law. An
4-41 exchange of information under this subsection does not affect
4-42 whether the information is subject to disclosure under Chapter 552,
4-43 Government Code.
4-44 SECTION 11. Section 48.102, Human Resources Code, is
4-45 transferred to Subchapter E, Chapter 48, Human Resources Code, and
4-46 redesignated as Section 48.207 to read as follows:
4-47 Sec. 48.207 [48.102]. OBJECTION TO MEDICAL TREATMENT. This
4-48 chapter does not authorize or require any medical treatment of a
4-49 person who objects on the grounds that he is an adherent or member
4-50 of a recognized church or religious denomination the tenets and
4-51 practice of which may include reliance solely upon spiritual means
4-52 through prayer for healing.
4-53 SECTION 12. Subchapter C, Chapter 48, Human Resources Code,
4-54 is amended by adding a new Section 48.102 to read as follows:
4-55 Sec. 48.102. REPORTS OF INVESTIGATIONS IN SCHOOLS. (a) The
4-56 department shall send a written report of the department's
4-57 investigation of alleged abuse, neglect, or exploitation of a
4-58 disabled adult at a school, as appropriate, to the Texas Education
4-59 Agency, the agency responsible for teacher certification, the local
4-60 school board or the school's governing body, and the school
4-61 principal or director, unless the principal or director is alleged
4-62 to have committed the abuse, neglect, or exploitation. The entity
4-63 to which the report is sent shall take appropriate action.
4-64 (b) On request, the department shall provide a copy of the
4-65 report of the investigation to the person who is alleged to have
4-66 suffered the abuse, neglect, or exploitation, to the legal guardian
4-67 of that person, and to the person alleged to have committed the
4-68 abuse, neglect, or exploitation.
4-69 (c) The report of the investigation shall be edited to
5-1 protect the identity of the person who made the report under
5-2 Section 48.051.
5-3 (d) The department shall adopt rules necessary to implement
5-4 this section.
5-5 SECTION 13. The subchapter heading to Subchapter D, Chapter
5-6 48, Human Resources Code, is amended to read as follows:
5-7 SUBCHAPTER D. INVESTIGATIONS BY ALL AGENCIES
5-8 [PROTECTIVE SERVICES]
5-9 SECTION 14. Section 48.037, Human Resources Code, is
5-10 transferred to Subchapter D, Chapter 48, Human Resources Code, is
5-11 redesignated as Section 48.151, and amended to read as follows:
5-12 Sec. 48.151 [48.037]. ACTION ON REPORT. (a) Not later than
5-13 24 hours after the department receives a report of an allegation
5-14 of abuse, neglect, or exploitation [suspected need for protective
5-15 services] under Section 48.051 [48.036 or 48.081], the department
5-16 shall initiate a prompt and thorough investigation as needed to
5-17 evaluate the accuracy of the report and to assess the need for
5-18 protective services, unless the department determines that the
5-19 report:
5-20 (1) is frivolous or patently without a factual basis;
5-21 or
5-22 (2) does not concern abuse, neglect, or exploitation,
5-23 as those terms are defined by Section 48.002 [for an investigation
5-24 under this subchapter or as defined by department rules for an
5-25 investigation under Subchapter E].
5-26 (b) The department shall adopt rules for conducting
5-27 investigations under this chapter.
5-28 (c) The department by rule may assign priorities and
5-29 prescribe investigative procedures for conducting investigations
5-30 according to the degree of severity and immediacy of the alleged
5-31 harm to the individual. Notwithstanding Subsection (a), the
5-32 department's priorities and procedures may provide that an
5-33 investigation is not required to be initiated within 24 hours in
5-34 all cases.
5-35 (d) The department shall prepare and keep on file a report
5-36 of each investigation conducted by the department.
5-37 (e) This section [subsection] does not apply to
5-38 investigations conducted under Subchapter F or H [E].
5-39 SECTION 15. Subchapter D, Chapter 48, Human Resources Code,
5-40 is amended by adding Sections 48.152 and 48.153 to read as follows:
5-41 Sec. 48.152. INVESTIGATION. An investigation by the
5-42 department or a state agency shall include an interview with the
5-43 elderly or disabled person, if appropriate, and with persons
5-44 thought to have knowledge of the circumstances. The investigation
5-45 may include an interview with an alleged juvenile perpetrator of
5-46 the alleged abuse, neglect, or exploitation. The department or
5-47 state agency may conduct an interview under this section in private
5-48 or may include any person the department or agency determines is
5-49 necessary.
5-50 Sec. 48.153. ACCESS TO INVESTIGATION. (a) To implement an
5-51 investigation of reported abuse, neglect, or exploitation, the
5-52 probate court, or the county court when no probate court exists,
5-53 may authorize entry of the place of residence of the elderly or
5-54 disabled person.
5-55 (b) A peace officer shall accompany and assist the person
5-56 making a court-ordered entry under this section, if in the opinion
5-57 of the court such action is necessary.
5-58 SECTION 16. Section 48.0385, Human Resources Code, is
5-59 transferred to Subchapter D, Chapter 48, Human Resources Code,
5-60 redesignated as Section 48.154, and amended to read as follows:
5-61 Sec. 48.154 [48.0385]. ACCESS TO RECORDS OR DOCUMENTS.
5-62 (a) The department or state agency, as appropriate, shall have
5-63 access to any records or documents, including client-identifying
5-64 information and medical and psychological records, necessary to the
5-65 performance of the department's or state agency's duties under this
5-66 chapter. The duties include but are not limited to the
5-67 investigation of abuse, neglect, or exploitation or [, or neglect
5-68 and] the provisions of services to an elderly or disabled person.
5-69 A person or agency that has a record or document that the
6-1 department or state agency needs to perform its duties under this
6-2 chapter shall, without unnecessary delay, make the record or
6-3 document available to the department or agency.
6-4 (b) The department is exempt from the payment of a fee
6-5 otherwise required or authorized by law to obtain a medical record,
6-6 including a mental health record, from a hospital or health care
6-7 provider if the request for a record is made in the course of an
6-8 investigation by the department.
6-9 (c) If the department or another state agency cannot obtain
6-10 access to a record or document that is necessary to properly
6-11 conduct an investigation or to perform another duty under this
6-12 chapter, the department or agency may petition the probate court or
6-13 the statutory or constitutional county court having probate
6-14 jurisdiction for access to the record or document.
6-15 (d) [(c)] On good cause shown, the court shall order the
6-16 person who denied access to a record or document to allow the
6-17 department or agency to have access under the terms and conditions
6-18 prescribed by the court.
6-19 (e) [(d)] A person is entitled to notice and a hearing on
6-20 the petition.
6-21 (f) [(e)] Access to a confidential record under this section
6-22 does not constitute a waiver of confidentiality.
6-23 SECTION 17. Section 48.103, Human Resources Code, is
6-24 transferred to Subchapter D, Chapter 48, Human Resources Code, and
6-25 redesignated as Section 48.155 to read as follows:
6-26 Sec. 48.155 [48.103]. INTERFERENCE WITH INVESTIGATION OR
6-27 SERVICES PROHIBITED. (a) A person, including a guardian and
6-28 notwithstanding Section 675, Texas Probate Code, may not interfere
6-29 with:
6-30 (1) an investigation by the department or by a
6-31 protective services agency of alleged abuse, neglect, or
6-32 exploitation of an elderly or disabled person; or
6-33 (2) the provision of protective services to an elderly
6-34 or disabled person.
6-35 (b) The department or a protective services agency may
6-36 petition the appropriate court to enjoin any interference with:
6-37 (1) an investigation of alleged abuse, neglect, or
6-38 exploitation; or
6-39 (2) the provision of protective services such as
6-40 removal of the elderly or disabled person to safer surroundings or
6-41 safeguarding the person's resources from exploitation.
6-42 SECTION 18. Section 48.057, Human Resources Code, is
6-43 redesignated as Section 48.156 to read as follows:
6-44 Sec. 48.156 [48.057]. AGENCY REPORTS. A protective services
6-45 agency shall make reports relating to its provision of protective
6-46 services as the department or a court may require.
6-47 SECTION 19. Subchapter D, Chapter 48, Human Resources Code,
6-48 is amended by adding Section 48.157 to read as follows:
6-49 Sec. 48.157. REPORT TO LAW ENFORCEMENT AGENCY. If the
6-50 department's or state agency's investigation reveals that the
6-51 elderly or disabled person has been abused, neglected, or exploited
6-52 by another person in a manner that constitutes a criminal offense
6-53 under any law, including Section 22.04, Penal Code, a copy of the
6-54 investigation shall be submitted to the appropriate law enforcement
6-55 agency.
6-56 SECTION 20. The subchapter heading to Subchapter E, Chapter
6-57 48, Human Resources Code, is amended to read as follows:
6-58 SUBCHAPTER E. PROVISION OF SERVICES; GUARDIANSHIP SERVICES;
6-59 EMERGENCY PROTECTION [INVESTIGATIONS IN CERTAIN FACILITIES]
6-60 SECTION 21. Subchapter E, Chapter 48, Human Resources Code,
6-61 is amended by adding Sections 48.201 and 48.202 to read as follows:
6-62 Sec. 48.201. APPLICATION OF SUBCHAPTER. Except as otherwise
6-63 provided, this subchapter does not apply to a Texas Department of
6-64 Mental Health and Mental Retardation investigation under Subchapter
6-65 F or H.
6-66 Sec. 48.202. SERVICE DETERMINATION BY DEPARTMENT OR AGENCY.
6-67 In an investigation the department or state agency, as appropriate,
6-68 shall determine:
6-69 (1) whether the person needs protective services from
7-1 the department;
7-2 (2) what services are needed;
7-3 (3) whether services are available from the
7-4 department, from the state agency, or in the community and how they
7-5 can be provided;
7-6 (4) whether the person, acting alone, would be capable
7-7 of obtaining needed services and could bear the cost or would be
7-8 eligible for services from the department or state agency;
7-9 (5) whether a caretaker would be willing to provide
7-10 services or would agree to their provisions;
7-11 (6) whether the elderly or disabled person desires the
7-12 services; and
7-13 (7) other pertinent data.
7-14 SECTION 22. Section 48.059, Human Resources Code, is
7-15 transferred to Subchapter E, Chapter 48, Human Resources Code, and
7-16 redesignated as Section 48.203 to read as follows:
7-17 Sec. 48.203 [48.059]. VOLUNTARY PROTECTIVE SERVICES.
7-18 (a) An elderly or disabled person may receive voluntary protective
7-19 services if the person requests or consents to receive those
7-20 services.
7-21 (b) The elderly or disabled person who receives protective
7-22 services shall participate in all decisions regarding his or her
7-23 welfare, if able to do so.
7-24 (c) The least restrictive alternatives should be made
7-25 available to the elderly or disabled person who receives protective
7-26 services.
7-27 (d) If an elderly or disabled person withdraws or refuses
7-28 consent, the services may not be provided.
7-29 SECTION 23. Section 48.056, Human Resources Code, is
7-30 transferred to Subchapter E, Chapter 48, Human Resources Code, and
7-31 redesignated as Section 48.204 to read as follows:
7-32 Sec. 48.204 [48.056]. AGENCY POWERS. A protective services
7-33 agency may furnish protective services to an elderly or disabled
7-34 person with the person's consent or, if the person lacks the
7-35 capacity to consent, without that person's consent as provided by
7-36 this chapter.
7-37 SECTION 24. Section 48.021, Human Resources Code, is
7-38 transferred to Subchapter E, Chapter 48, Human Resources Code,
7-39 redesignated as Section 48.205, and amended to read as follows:
7-40 Sec. 48.205 [48.021]. PROVISION OF SERVICES. (a) The
7-41 department may provide direct protective services or contract with
7-42 protective services agencies for the provisions of those services.
7-43 (b) The department shall use existing resources and services
7-44 of public and private agencies in providing protective services.
7-45 (c) The department and law enforcement officials, courts,
7-46 and agencies shall cooperate when providing protective services.
7-47 (d) The responsibilities prescribed by [set forth in] this
7-48 chapter are [Act shall be] exclusive of those designated to other
7-49 state or federal agencies authorized or required by law to provide
7-50 protective services to elderly or disabled persons determined to be
7-51 in the state of abuse, neglect, or exploitation[, or neglect].
7-52 SECTION 25. Section 48.058, Human Resources Code, is
7-53 transferred to Subchapter E, Chapter 48, Human Resources Code, and
7-54 redesignated as Section 48.206 to read as follows:
7-55 Sec. 48.206 [48.058]. COST OF SERVICES. If the elderly or
7-56 disabled person receiving the protective services is determined to
7-57 be financially able to contribute to the payments for those
7-58 services, the provider shall receive a reasonable reimbursement
7-59 from the person's assets.
7-60 SECTION 26. Section 48.061, Human Resources Code, is
7-61 transferred to Subchapter E, Chapter 48, Human Resources Code,
7-62 redesignated as Section 48.208, and amended to read as follows:
7-63 Sec. 48.208 [48.061]. EMERGENCY ORDER FOR PROTECTIVE
7-64 SERVICES. (a) For purposes of this section, a person lacks the
7-65 capacity to consent to receive protective services if, because of
7-66 mental or physical impairment, the person is incapable of
7-67 understanding the nature of the services offered and agreeing to
7-68 receive or rejecting protective services.
7-69 (b) If the department determines that an elderly or disabled
8-1 person is suffering from abuse, neglect, or exploitation[, or
8-2 neglect] presenting a threat to life or physical safety, that the
8-3 person lacks capacity to consent to receive protective services,
8-4 and that no consent can be obtained, the department may petition
8-5 the probate or statutory or constitutional county court that has
8-6 probate jurisdiction in the county in which the elderly or disabled
8-7 person resides for an emergency order authorizing protective
8-8 services.
8-9 (c) The petition shall be verified and shall include:
8-10 (1) the name, age, and address of the elderly or
8-11 disabled person who needs protective services;
8-12 (2) the nature of the abuse, neglect, or
8-13 exploitation[, or neglect];
8-14 (3) the services needed; and
8-15 (4) a medical report signed by a physician stating
8-16 that the person is suffering from abuse, neglect, or exploitation[,
8-17 or neglect] presenting a threat to life or physical safety and
8-18 stating that the person is physically or mentally incapable of
8-19 consenting to services unless the court finds that an immediate
8-20 danger to the health or safety of the elderly or disabled person
8-21 exists and there is not sufficient time to obtain the medical
8-22 report.
8-23 (d) On finding that there is reasonable cause to believe
8-24 that abuse, neglect, or exploitation[, or neglect] presents a
8-25 threat to life or physical safety for the elderly or disabled
8-26 person and that the elderly or disabled person lacks capacity to
8-27 consent to services, the court may:
8-28 (1) order removal of the elderly or disabled person to
8-29 safer surroundings;
8-30 (2) order medical services; and
8-31 (3) order other available services necessary to remove
8-32 conditions creating the threat to life or physical safety,
8-33 including the services of law enforcement officers or emergency
8-34 medical services personnel.
8-35 (e) The emergency order expires at the end of 72 hours from
8-36 the time of the order unless the 72-hour period ends on a Saturday,
8-37 Sunday, or legal holiday in which event the order is automatically
8-38 extended to 4 p.m. on the first succeeding business day. An order
8-39 may be renewed for not more than 14 additional days. A renewal
8-40 order that ends on a Saturday, Sunday, or legal holiday is
8-41 automatically extended to 4 p.m. on the first succeeding business
8-42 day. The court may modify or terminate the emergency order on
8-43 petition of the department, the incompetent person, or any person
8-44 interested in his welfare.
8-45 (f) Any medical facility or physician treating an elderly or
8-46 disabled person pursuant to an emergency order under this chapter
8-47 is not liable for any damages arising from the treatment, except
8-48 those damages resulting from the negligence of the facility or
8-49 physician.
8-50 (g) The court shall appoint an attorney ad litem to
8-51 represent the elderly or disabled person in any proceeding brought
8-52 by the department under this section. A reasonable fee, as
8-53 determined by the court, shall be paid to the attorney ad litem
8-54 from the general fund of the county.
8-55 (h) If the department cannot obtain an emergency order under
8-56 this section because the court is closed on a Saturday, Sunday, or
8-57 legal holiday or after 5 p.m., the department may remove the
8-58 elderly or disabled person to safer surroundings, authorize medical
8-59 treatment, or order or provide other available services necessary
8-60 to remove conditions creating the threat to life or physical
8-61 safety. The department must obtain an emergency order under this
8-62 section not later than 4 p.m. on the first succeeding business day
8-63 after the date on which protective services are provided. If the
8-64 department does not obtain an emergency order, the department shall
8-65 cease providing protective services and, if necessary, make
8-66 arrangements for the immediate return of the person to the place
8-67 from which the person was removed, to the person's place of
8-68 residence in the state, or to another suitable place.
8-69 SECTION 27. Section 48.0215, Human Resources Code, is
9-1 transferred to Subchapter E, Chapter 48, Human Resources Code,
9-2 redesignated as Section 48.209, and amended to read as follows:
9-3 Sec. 48.209 [48.0215]. GUARDIANSHIPS. (a) The department
9-4 shall file an application under Section 682 or 875, Texas Probate
9-5 Code, to be appointed guardian of the person or estate or both of
9-6 an individual who is a minor, is a conservatee of the department,
9-7 and, because of a physical or mental condition, will be
9-8 substantially unable to provide food, clothing, or shelter for
9-9 himself or herself, to care for the individual's own physical
9-10 health, or to manage the individual's own financial affairs when
9-11 the individual becomes an adult. If a less restrictive alternative
9-12 to guardianship is available for an individual, the department
9-13 shall pursue the alternative instead of applying for appointment as
9-14 a guardian.
9-15 (b) As a last resort, the department may apply to be
9-16 appointed guardian of the person or estate of an elderly or
9-17 disabled person who is found by the department to be in a state of
9-18 abuse, neglect, or exploitation, and who, because of a physical or
9-19 mental condition, will be substantially unable to provide food,
9-20 clothing, or shelter for himself or herself, to care for the
9-21 individual's own physical health, or to manage the individual's own
9-22 financial affairs. A representative of the department shall take
9-23 the oath required by the Texas Probate Code on behalf of the
9-24 department if the department is appointed guardian. If the
9-25 department knows that an individual is willing and able to serve as
9-26 the guardian, the department may inform the court of that
9-27 individual's willingness and ability.
9-28 (c) If appropriate, the department may contract with a
9-29 political subdivision of this state, a private agency, or another
9-30 state agency for the provision of guardianship services under this
9-31 section. The department or a political subdivision of the state or
9-32 state agency with which the department contracts under this section
9-33 is not required to post a bond or pay any cost or fee otherwise
9-34 required by the Texas Probate Code.
9-35 (d) If the department is appointed guardian, the department
9-36 is not liable for funding services provided to the department's
9-37 ward, including long-term care or burial expenses.
9-38 (e) The department may not be required to pay fees
9-39 associated with the appointment of a guardian ad litem or attorney
9-40 ad litem.
9-41 (f) The department shall file an application with the court
9-42 to name a successor guardian if the department becomes aware of a
9-43 qualified and willing individual or guardianship program serving
9-44 the area in which the ward is located.
9-45 SECTION 28. Section 48.040, Human Resources Code, is
9-46 transferred to Subchapter E, Chapter 48, Human Resources Code, and
9-47 redesignated as Section 48.210 to read as follows:
9-48 Sec. 48.210 [48.040]. REPRESENTATION. (a) Except as
9-49 provided by Subsection (b), the prosecuting attorney representing
9-50 the state in criminal cases in the county court shall represent the
9-51 department in any proceeding under this chapter unless the
9-52 representation would be a conflict of interest.
9-53 (b) In a county having a population of more than 2.8
9-54 million, the prosecuting attorney representing the state in civil
9-55 cases in the county court shall represent the department in any
9-56 proceeding under this chapter unless the representation would be a
9-57 conflict of interest.
9-58 SECTION 29. Subchapter E, Chapter 48, Human Resources Code,
9-59 is amended by adding Section 48.211 to read as follows:
9-60 Sec. 48.211. REPORT TO GUARDIANSHIP COURT. If the elderly
9-61 or disabled person has a guardian, a written notification of the
9-62 findings of the investigation shall be sent to the court to which
9-63 the guardian is accountable.
9-64 SECTION 30. The subchapter heading to Subchapter F, Chapter
9-65 48, Human Resources Code, is amended to read as follows:
9-66 SUBCHAPTER F. INVESTIGATIONS IN TDMHMR FACILITIES, COMMUNITY
9-67 CENTERS, AND MHMR AUTHORITIES [MISCELLANEOUS PROVISIONS]
9-68 SECTION 31. Subchapter F, Chapter 48, Human Resources Code,
9-69 is amended by adding Section 48.251 to read as follows:
10-1 Sec. 48.251. DEFINITIONS. The department by rule shall
10-2 adopt definitions of "abuse," "neglect," and "exploitation" to
10-3 govern an investigation under this subchapter and Subchapter H.
10-4 SECTION 32. Section 48.081, Human Resources Code, is
10-5 transferred to Subchapter F, Chapter 48, Human Resources Code,
10-6 redesignated as Section 48.252, and amended to read as follows:
10-7 Sec. 48.252 [48.081]. INVESTIGATION OF REPORTS IN MHMR
10-8 FACILITIES AND IN COMMUNITY CENTERS. (a) The department shall
10-9 receive and investigate reports of the abuse, neglect, or
10-10 exploitation of an individual with a disability receiving services:
10-11 (1) [receiving services] in a facility operated by the
10-12 Texas Department of Mental Health and Mental Retardation; [or]
10-13 (2) in or from a community center, a local mental
10-14 health authority, or a local mental retardation authority; or
10-15 (3) [being provided services] through a program
10-16 providing services to that person by contract [under contract] with
10-17 a facility operated by the Texas Department of Mental Health and
10-18 Mental Retardation, a community center, a local mental health
10-19 authority, or a local mental retardation authority.
10-20 (b) The department by rule shall define who is "an
10-21 individual with a disability receiving services [and the Texas
10-22 Department of Mental Health and Mental Retardation shall develop
10-23 joint rules to facilitate investigations in state mental health and
10-24 mental retardation facilities]."
10-25 (c) [The department shall receive and investigate a report
10-26 of the alleged abuse, neglect, or exploitation of an individual
10-27 receiving services in a community center or from a program
10-28 providing services under contract with a community center.]
10-29 [(d) The department shall forward to a state mental health
10-30 or mental retardation facility, a community center, or a program
10-31 providing mental health or mental retardation services under
10-32 contract with such a facility or community center:]
10-33 [(1) a copy of any report the department receives
10-34 relating to alleged or suspected abuse, neglect, or exploitation of
10-35 an individual receiving services from that facility, community
10-36 center, or program; and]
10-37 [(2) a copy of the department's investigation findings
10-38 and report.]
10-39 [(e) The department and the Texas Department of Mental
10-40 Health and Mental Retardation by joint rules shall establish
10-41 procedures for resolving disagreements between the department and
10-42 the Texas Department of Mental Health and Mental Retardation
10-43 concerning the department's investigation findings. A confirmed
10-44 investigation finding by the department may not be changed by a
10-45 superintendent of a state mental health or mental retardation
10-46 facility or a director of a community center.]
10-47 [(f) After completion of the appeals process, the department
10-48 shall refer a complaint relating to an investigation conducted by
10-49 the department under this section to the department's ombudsman
10-50 office for appropriate action.]
10-51 [(g) If the department's investigation under this section
10-52 reveals that an elderly or disabled person has been abused by
10-53 another person in a manner that constitutes a criminal offense
10-54 under any law, including Section 22.04, Penal Code, a copy of the
10-55 investigation shall be submitted to the appropriate law enforcement
10-56 agency.]
10-57 [(h) The department by rule may assign priorities to an
10-58 investigation conducted by the department under this section. The
10-59 primary criterion used by the department in assigning a priority
10-60 must be the risk that a delay in the investigation will impede the
10-61 collection of evidence.]
10-62 [(i) The department and the Texas Department of Mental
10-63 Health and Mental Retardation shall jointly develop and implement a
10-64 single system to track reports and investigations under this
10-65 section. To facilitate implementation of the system, the
10-66 department and the Texas Department of Mental Health and Mental
10-67 Retardation shall use appropriate methods of measuring the number
10-68 and outcome of reports and investigations under this section.]
10-69 [(j)] In this section, "community center," "local mental
11-1 health authority," and "local mental retardation authority" have
11-2 the meanings [has the meaning] assigned by Section 531.002, Health
11-3 and Safety Code.
11-4 SECTION 33. Subchapter F, Chapter 48, Human Resources Code,
11-5 is amended by adding Sections 48.253, 48.254, 48.255, and 48.256 to
11-6 read as follows:
11-7 Sec. 48.253. ACTION ON REPORT. On receipt by the department
11-8 of a report of alleged abuse, neglect, or exploitation under this
11-9 subchapter, the department shall initiate a prompt and thorough
11-10 investigation as needed to evaluate the accuracy of the report
11-11 unless the department, in accordance with rules adopted under this
11-12 subchapter, determines that the report:
11-13 (1) is frivolous or patently without a factual basis;
11-14 or
11-15 (2) does not concern abuse, neglect, or exploitation.
11-16 Sec. 48.254. FORWARDING OF COMPLETED INVESTIGATION REPORT.
11-17 The department shall forward to a state mental health or mental
11-18 retardation facility, a community center, a mental health
11-19 authority, a mental retardation authority, or a program providing
11-20 mental health or mental retardation services under contract with
11-21 such a facility, community center, or authority:
11-22 (1) a copy of any report the department receives
11-23 relating to alleged or suspected abuse, neglect, or exploitation of
11-24 an individual receiving services from that facility, community
11-25 center, authority, or program; and
11-26 (2) a copy of the department's investigation findings
11-27 and report.
11-28 Sec. 48.255. RULES FOR INVESTIGATIONS UNDER THIS SUBCHAPTER.
11-29 (a) The department and the Texas Department of Mental Health and
11-30 Mental Retardation shall develop joint rules to facilitate
11-31 investigations in state mental health and mental retardation
11-32 facilities.
11-33 (b) The department and the Texas Department of Mental Health
11-34 and Mental Retardation by joint rules shall establish procedures
11-35 for resolving disagreements between the department and the Texas
11-36 Department of Mental Health and Mental Retardation concerning the
11-37 department's investigation findings.
11-38 (c) The department and the Texas Department of Mental Health
11-39 and Mental Retardation shall develop joint rules to facilitate
11-40 investigations in community centers, mental health authorities, and
11-41 mental retardation authorities.
11-42 (d) A confirmed investigation finding by the department may
11-43 not be changed by a superintendent of a state mental health or
11-44 mental retardation facility, by a director of a community center,
11-45 or by a mental health authority or mental retardation authority.
11-46 (e) The department shall provide by rule for an appeals
11-47 process by the alleged victim of abuse, neglect, or exploitation
11-48 under this section.
11-49 (f) The department by rule may assign priorities to an
11-50 investigation conducted by the department under this section. The
11-51 primary criterion used by the department in assigning a priority
11-52 must be the risk that a delay in the investigation will impede the
11-53 collection of evidence.
11-54 Sec. 48.256. SINGLE TRACKING SYSTEM FOR REPORTS AND
11-55 INVESTIGATIONS. The department and the Texas Department of Mental
11-56 Health and Mental Retardation shall jointly develop and implement a
11-57 single system to track reports and investigations under this
11-58 section. To facilitate implementation of the system, the
11-59 department and the Texas Department of Mental Health and Mental
11-60 Retardation shall use appropriate methods of measuring the number
11-61 and outcome of reports and investigations under this section.
11-62 SECTION 34. Chapter 48, Human Resources Code, is amended by
11-63 adding Subchapter G to read as follows:
11-64 SUBCHAPTER G. INVESTIGATIONS IN CERTAIN FACILITIES
11-65 Sec. 48.301. INVESTIGATION OF REPORTS IN OTHER STATE
11-66 FACILITIES. (a) If the department receives a report under this
11-67 section relating to an elderly or disabled person in a facility
11-68 operated, licensed, certified, or registered by a state agency
11-69 other than the Texas Department of Mental Health and Mental
12-1 Retardation, the department shall refer the report to that agency.
12-2 (b) A state agency that receives a report under this section
12-3 shall make a thorough investigation promptly after receiving a
12-4 report that an elderly or disabled person has been or may be
12-5 abused, neglected, or exploited in a facility operated, licensed,
12-6 certified, or registered by the agency. The primary purpose of the
12-7 investigation is the protection of the elderly or disabled person.
12-8 (c) Each state agency, other than the Texas Department of
12-9 Mental Health and Mental Retardation, that operates, licenses,
12-10 certifies, or registers a facility in which elderly or disabled
12-11 persons are located shall adopt rules relating to the investigation
12-12 and resolution of reports received under this section.
12-13 (d) The state agency shall prepare and keep on file a
12-14 complete written report of each investigation conducted by the
12-15 state agency under this section.
12-16 (e) A state agency that receives a complaint relating to an
12-17 investigation conducted under this section shall refer the
12-18 complaint to its governing board or other entity designated to
12-19 receive such complaints for review and appropriate action.
12-20 Sec. 48.302. APPROVAL OF RULES. The Health and Human
12-21 Services Commission shall review and approve the rules to ensure
12-22 that all agencies implement appropriate standards for the conduct
12-23 of investigations and that uniformity exists among agencies in the
12-24 investigation and resolution of reports.
12-25 SECTION 35. Section 48.022, Human Resources Code, is
12-26 transferred to Subchapter G, Chapter 48, Human Resources Code,
12-27 redesignated as Section 48.303, and amended to read as follows:
12-28 Sec. 48.303 [48.022]. MEMORANDUM OF UNDERSTANDING. (a) The
12-29 department shall adopt a memorandum of understanding with each
12-30 state agency that operates, licenses, certifies, or registers a
12-31 facility in which elderly or disabled persons are located that
12-32 clarifies each agency's responsibility under this chapter.
12-33 (b) Not later than the last month of each state fiscal year,
12-34 the department and the other agencies shall review and update the
12-35 memorandum.
12-36 [(c) Each agency by rule shall adopt the memorandum of
12-37 understanding and all revisions to the memorandum.]
12-38 SECTION 36. Section 48.084, Human Resources Code, is
12-39 transferred to Subchapter G, Chapter 48, Human Resources Code, and
12-40 redesignated as Section 48.304 to read as follows:
12-41 Sec. 48.304 [48.084]. STATISTICS. (a) Each state agency,
12-42 other than the Texas Department of Mental Health and Mental
12-43 Retardation, that operates, licenses, certifies, or registers a
12-44 facility in which elderly or disabled persons are located shall
12-45 compile and maintain statistics on the incidence of abuse, neglect,
12-46 or exploitation of elderly or disabled persons that occurs in the
12-47 facilities.
12-48 (b) The agency shall make the statistics available to the
12-49 Health and Human Services Commission on request.
12-50 SECTION 37. Chapter 48, Human Resources Code, is amended by
12-51 adding Subchapter H to read as follows:
12-52 SUBCHAPTER H. INVESTIGATIONS OF PROVIDERS OF HOME AND
12-53 COMMUNITY-BASED SERVICES CONTRACTING WITH TDMHMR
12-54 Sec. 48.351. DEFINITIONS. In this subchapter:
12-55 (1) "Community center" has the meaning assigned by
12-56 Section 531.002, Health and Safety Code.
12-57 (2) "Department facility" means:
12-58 (A) a facility listed in Section 532.001, Health
12-59 and Safety Code; or
12-60 (B) a state-operated community services program
12-61 operated by the Texas Department of Mental Health and Mental
12-62 Retardation or a facility of the department.
12-63 (3) "Home and community-based services" means the
12-64 services described by 42 U.S.C. Section 1396n(c) that are provided
12-65 by a person under a contract with the Texas Department of Mental
12-66 Health and Mental Retardation.
12-67 (4) "Local mental health authority" has the meaning
12-68 assigned by Section 531.002, Health and Safety Code.
12-69 (5) "Local mental retardation authority" has the
13-1 meaning assigned by Section 531.002, Health and Safety Code.
13-2 (6) "Provider" means a person who contracts with the
13-3 Texas Department of Mental Health and Mental Retardation to provide
13-4 home and community-based services. The term includes an officer,
13-5 employee, or agent of the provider, and any person with whom the
13-6 provider subcontracts for the provision of those services.
13-7 Sec. 48.352. INVESTIGATION OF REPORTS RELATING TO HOME AND
13-8 COMMUNITY-BASED SERVICES. (a) The department shall receive and
13-9 investigate reports of abuse, neglect, or exploitation of an
13-10 individual receiving home and community-based services from a
13-11 provider if the provider is or may be the person alleged to have
13-12 committed the abuse, neglect, or exploitation.
13-13 (b) The department shall receive and investigate reports of
13-14 abuse, neglect, or exploitation of an elderly or disabled
13-15 individual residing in a residence owned, operated, or controlled
13-16 by a provider in which the home and community-based services are
13-17 provided, regardless of whether the individual receives those
13-18 services, if the provider is or may be the person alleged to have
13-19 committed the abuse, neglect, or exploitation.
13-20 (c) If the provider is a department facility, a local mental
13-21 health or mental retardation authority, or a community center,
13-22 Subchapter F also applies.
13-23 Sec. 48.353. ACTION ON REPORT. (a) On receipt by the
13-24 department of a report of alleged abuse, neglect, or exploitation
13-25 under this subchapter, the department shall initiate a prompt and
13-26 thorough investigation as needed to evaluate the accuracy of the
13-27 report and to assess the need for emergency protective services,
13-28 unless the department determines, in accordance with rules adopted
13-29 under Subchapter F, that the report:
13-30 (1) is frivolous or patently without a factual basis;
13-31 or
13-32 (2) does not concern abuse, neglect, or exploitation.
13-33 (b) On learning that a provider is or may be the person who
13-34 committed the alleged abuse, neglect, or exploitation, the
13-35 department shall notify the following persons that the department
13-36 has initiated an investigation:
13-37 (1) the chief executive of the provider and any other
13-38 personnel of the provider as necessary to facilitate the
13-39 investigation;
13-40 (2) the designated administrator at the Texas
13-41 Department of Mental Health and Mental Retardation; and
13-42 (3) any other governmental entity that the
13-43 investigator believes should be notified as necessary to assist in
13-44 the investigation or in the provision of services.
13-45 (c) The provider shall:
13-46 (1) cooperate completely with the investigation;
13-47 (2) provide complete access to all sites owned,
13-48 operated, or controlled by the provider; and
13-49 (3) provide complete access to clients and client
13-50 records.
13-51 (d) The department shall adopt rules for conducting
13-52 investigations under this subchapter.
13-53 Sec. 48.354. FORWARDING OF COMPLETED INVESTIGATION REPORT.
13-54 (a) The department shall forward to the chief executive of a
13-55 provider and to the designated administrator at the Texas
13-56 Department of Mental Health and Mental Retardation:
13-57 (1) a copy of any report the department received under
13-58 this subchapter; and
13-59 (2) a copy of the department's investigation findings
13-60 and report.
13-61 (b) The allegation report and the investigation report shall
13-62 be edited to protect the identity of the person who made the report
13-63 under Section 48.051.
13-64 Sec. 48.355. PROVISION OF SERVICES TO RECIPIENT OF HOME AND
13-65 COMMUNITY-BASED SERVICES. (a) The Texas Department of Mental
13-66 Health and Mental Retardation is responsible for providing services
13-67 to an individual receiving home and community support services as
13-68 necessary to alleviate abuse, neglect, or exploitation if the
13-69 department determines that the person needs the services because of
14-1 the failure of a provider to furnish contracted services.
14-2 (b) The department may provide emergency services necessary
14-3 to immediately protect the individual from serious physical harm or
14-4 death and, if necessary, obtain an emergency order for protective
14-5 services under Section 48.208.
14-6 (c) The department and the Texas Department of Mental Health
14-7 and Mental Retardation shall develop joint rules governing the
14-8 provision of services under this section.
14-9 Sec. 48.356. PROVISION OF SERVICES TO INDIVIDUAL NOT
14-10 RECEIVING HOME AND COMMUNITY-BASED SERVICES. The department shall
14-11 provide services in accordance with Subchapter E to an elderly or
14-12 disabled individual who does not receive home and community-based
14-13 services but who lives in a residence owned, operated, or
14-14 controlled by a provider in which home and community-based services
14-15 are provided.
14-16 Sec. 48.357. RESPONSIBILITIES OF TDMHMR. (a) At least once
14-17 each calendar quarter, the Texas Department of Mental Health and
14-18 Mental Retardation shall provide to the department:
14-19 (1) the name and address of each provider who has a
14-20 contract with the Texas Department of Mental Health and Mental
14-21 Retardation to provide home and community-based services;
14-22 (2) the name and telephone number of the chief
14-23 executive of each provider described by Subdivision (1); and
14-24 (3) the address of each residence owned, operated, or
14-25 controlled by each provider described by Subdivision (1) in which
14-26 home and community-based services are provided.
14-27 (b) The Texas Department of Mental Health and Mental
14-28 Retardation shall make available to the department the name and
14-29 telephone number of each person to notify if an individual
14-30 receiving home and community-based services needs services to
14-31 alleviate abuse, neglect, or exploitation.
14-32 (c) The Texas Department of Mental Health and Mental
14-33 Retardation shall require each provider to:
14-34 (1) provide to the Texas Department of Mental Health
14-35 and Mental Retardation each calendar quarter the provider's
14-36 business address and telephone number and the name of the
14-37 provider's chief executive;
14-38 (2) provide to the Texas Department of Mental Health
14-39 and Mental Retardation a telephone number at which the chief
14-40 executive, or a designated representative, can be reached during
14-41 normal business hours, if different from the telephone number
14-42 required by Subdivision (1);
14-43 (3) provide to the Texas Department of Mental Health
14-44 and Mental Retardation each calendar quarter the name, if any,
14-45 address, and telephone number of any residence owned, operated, or
14-46 controlled by the provider in which home and community-based
14-47 services are provided; and
14-48 (4) post in a conspicuous location inside any
14-49 residence owned, operated, or controlled by the provider in which
14-50 home and community-based services are provided, a sign that states:
14-51 (A) the name, address, and telephone number of
14-52 the provider;
14-53 (B) the effective date of the provider's
14-54 contract with the Texas Department of Mental Health and Mental
14-55 Retardation to provide home and community-based services; and
14-56 (C) the name of the legal entity that contracted
14-57 with the Texas Department of Mental Health and Mental Retardation
14-58 to provide those services.
14-59 SECTION 38. Section 261.3019(g), Family Code, is amended to
14-60 read as follows:
14-61 (g) An agreement under Subsection (a) is not required to
14-62 provide for:
14-63 (1) the investigation of abuse alleged to have
14-64 occurred in a facility or home regulated by the department under
14-65 Chapter 42, Human Resources Code; or
14-66 (2) an investigation conducted under [Section 48.081,
14-67 Human Resources Code, or] Section 261.404.
14-68 SECTION 39. Section 261.404, Family Code, is amended to read
14-69 as follows:
15-1 Sec. 261.404. INVESTIGATIONS IN FACILITIES UNDER DEPARTMENT
15-2 OF MENTAL HEALTH AND MENTAL RETARDATION. (a) The department shall
15-3 investigate a report of abuse, [or] neglect, or exploitation of a
15-4 child receiving services:
15-5 (1) in a facility operated by[, regulated by, or
15-6 providing services under a contract with] the Texas Department of
15-7 Mental Health and Mental Retardation;
15-8 (2) in or from a community center, a local mental
15-9 health authority, or a local mental retardation authority; or
15-10 (3) through a program providing services to that child
15-11 by contract with a facility operated by the Texas Department of
15-12 Mental Health and Mental Retardation, a community center, a local
15-13 mental health authority, or a local mental retardation authority.
15-14 (b) The department shall investigate the report under rules
15-15 developed jointly between the department and the Texas Department
15-16 of Mental Health and Mental Retardation.
15-17 (c) The definitions of "abuse" and "neglect" prescribed by
15-18 Section 261.001 do not apply to an investigation under this
15-19 section.
15-20 (d) In this section, "community center," "local mental
15-21 health authority," and "local mental retardation authority" have
15-22 the meanings assigned by Section 531.002, Health and Safety Code.
15-23 SECTION 40. The following provisions of the Human Resources
15-24 Code are repealed:
15-25 (1) Section 48.038;
15-26 (2) Section 48.042;
15-27 (3) Section 48.082; and
15-28 (4) Section 48.083.
15-29 SECTION 41. This Act takes effect September 1, 1999.
15-30 SECTION 42. The importance of this legislation and the
15-31 crowded condition of the calendars in both houses create an
15-32 emergency and an imperative public necessity that the
15-33 constitutional rule requiring bills to be read on three several
15-34 days in each house be suspended, and this rule is hereby suspended.
15-35 * * * * *