78(R) HB 2325 - House Committee Report version


                                                                                
78R10755 DLF-D


By:  Naishtat, et al.                                             H.B. No. 2325

Substitute the following for H.B. No. 2325:                                   

By:  Christian                                                C.S.H.B. No. 2325



A BILL TO BE ENTITLED

AN ACT

relating to reports and investigations of abuse and neglect in 
nursing facilities.
	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:                        
	SECTION 1.  Section 242.125, Health and Safety Code,  is 
amended to read as follows:
	Sec. 242.125.  PROCESSING OF REPORTS.  (a)  A report of abuse 
or neglect shall be made to the department or a local or state law 
enforcement agency.  A report made by an owner or employee of an 
institution shall be made to the department and to the law 
enforcement agency described by Section 242.135(a).
	(b)  Except as provided by Section 242.135, a [A] local or 
state law enforcement agency that receives a report of abuse or 
neglect shall refer the report to the department or the designated 
agency.
	SECTION 2.  Section 242.126, Health and Safety Code, is 
amended by amending Subsections (c), (e), and (g) and adding 
Subsections (l), (m), and (n) to read as follows:
	(c)  The agency shall begin the investigation:                                 
		(1)  within 24 hours of receipt of the report or other 
allegation, if the report of abuse or neglect or other complaint 
alleges that:
			(A)  a resident's health or safety is in imminent 
danger;                  
			(B)  a resident has recently died because of 
conduct alleged in the report of abuse or neglect or other 
complaint; [or]
			(C)  a resident has been hospitalized or been 
treated in an emergency room because of conduct alleged in the 
report of abuse or neglect or other complaint;
			(D)  a resident has been a victim of any act or 
attempted act described by Section 21.11, 22.011, or 22.021, Penal 
Code; or
			(E)  a resident has suffered bodily injury, as 
that term is defined by Section 1.07, Penal Code, because of conduct 
alleged in the report of abuse or neglect or other complaint; or
		(2)  before the end of the next working day after the 
date of receipt of the report of abuse or neglect or other 
complaint, if the report or complaint alleges the existence of 
circumstances that could result in abuse or neglect and that could 
place a resident's health or safety in imminent danger.
	(e)  In investigating the report of abuse or neglect or other 
complaint, the investigator for the investigating agency shall:
		(1)  make an unannounced visit to the institution to 
determine the nature and cause of the alleged abuse or neglect of 
the resident;
		(2)  interview each available witness, including the 
resident that suffered the alleged abuse or neglect if the resident 
is able to communicate or another resident or other witness
identified by any source as having personal knowledge relevant to 
the report of abuse or neglect or other complaint;
		(3)  personally inspect any physical circumstance that 
is relevant and material to the report of abuse or neglect or other 
complaint and that may be objectively observed;
		(4)  make a photographic record of any injury to a 
resident, subject to Subsection (n); and
		(5) [(4)]  write an investigation report that 
includes:
			(A)  the investigator's personal observations;                               
			(B)  a review of relevant documents and records;                             
			(C)  a summary of each witness statement, 
including the statement of the resident that suffered the alleged 
abuse or neglect and any other resident interviewed in the 
investigation; and
			(D)  a statement of the factual basis for the 
findings for each incident or problem alleged in the report or other 
allegation.
	(g)  Not later than the 30th day after the date the 
investigation is complete, the investigator shall prepare the 
written report required by Subsection (e).  The department shall 
make the investigation report available to the public on request 
after the date the department's letter of determination is 
complete.  The department shall delete from any copy made available 
to the public:
		(1)  the name of:                                                      
			(A) [(1)]  any resident, unless the department 
receives written authorization from a resident or the resident's 
legal representative requesting the resident's name be left in the 
report;
			(B) [(2)]  the person making the report of abuse 
or neglect or other complaint; and
			(C) [(3)]  an individual interviewed in the 
investigation; and
		(2)  photographs of any injury to the resident.                        
	(l)  Within 24 hours of receipt of a report of abuse or 
neglect or other complaint described by Subsection (c)(1), the 
department or designated agency shall report the report or 
complaint to the law enforcement agency described by Section 
242.135(a).  The department or designated agency shall cooperate 
with that law enforcement agency in the investigation of the report 
or complaint as described by Section 242.135.
	(m)  The inability or unwillingness of a local law 
enforcement agency to conduct a joint investigation under Section 
242.135 does not constitute grounds to prevent or prohibit the 
department from performing its duties under this chapter.  The 
department shall document any instance in which a law enforcement 
agency is unable or unwilling to conduct a joint investigation 
under Section 242.135.
	(n)  If the department determines that, before a 
photographic record of an injury to a resident may be made under 
Subsection (e), consent is required under state or federal law, the 
investigator:
		(1)  shall seek to obtain any required consent; and                    
		(2)  may not make the photographic record unless the 
consent is obtained.
	SECTION 3.  Section 242.127, Health and Safety Code, is 
amended to read as follows:
	Sec. 242.127.  CONFIDENTIALITY.  A report, record, or 
working paper used or developed in an investigation made under this 
subchapter and the name, address, and phone number of any person 
making a report under this subchapter are confidential and may be 
disclosed only for purposes consistent with the rules adopted by 
the board or the designated agency.  The report, record, or working 
paper, and the name, address, and phone number of the person making 
the report, shall be disclosed to a law enforcement agency as 
necessary to permit the law enforcement agency to investigate a 
report of abuse or neglect or other complaint in accordance with 
Section 242.135.
	SECTION 4.  Subchapter E, Chapter 242, Health and Safety 
Code,  is amended by adding Section 242.135 to read as follows:
	Sec. 242.135.  DUTIES OF LAW ENFORCEMENT; JOINT 
INVESTIGATION.  (a)  A department or designated agency shall 
investigate a report of abuse or neglect or other complaint 
described by Section 242.126(c)(1) jointly with:
		(1)  the municipal law enforcement agency, if the 
institution is located within the territorial boundaries of a 
municipality; or
		(2)  the sheriff's department of the county in which the 
institution is located, if the institution is not located within 
the territorial boundaries of a municipality.
	(b)  The law enforcement agency described by Subsection (a) 
shall acknowledge the report of abuse or neglect or other complaint 
and begin the joint investigation required by this section within 
24 hours of receipt of the report or complaint.  The law enforcement 
agency shall cooperate with the department or designated agency and 
report to the department or designated agency the results of the 
investigation.
	(c)  The requirement that the law enforcement agency and the 
department or designated agency conduct a joint investigation under 
this section does not require that a representative of each agency 
be physically present during all phases of the investigation or 
that each agency participate equally in each activity conducted in 
the course of the investigation.
	SECTION 5.  Article 2.27, Code of Criminal Procedure, is 
amended to read as follows:
	Art. 2.27.  INVESTIGATION OF CERTAIN REPORTS ALLEGING 
[CHILD] ABUSE.  (a) On receipt of a report alleging serious 
physical or sexual abuse of a child by a person responsible for the 
care, custody, or welfare of the child, an investigator from the 
appropriate local law enforcement agency shall investigate the 
report jointly with the Department of Protective and Regulatory 
Services or with the agency responsible for conducting an 
investigation under Subchapter E, Chapter 261, Family Code.
	(b)  On receipt of a report of abuse or neglect or other 
complaint of a resident of a nursing home, convalescent home, or 
other related institution under Section 242.126(c)(1), Health and 
Safety Code, the appropriate local law enforcement agency shall 
investigate the report as required by Section 242.135, Health and 
Safety Code.
	SECTION 6.  Not later than January 1, 2004, the Texas 
Department of Human Services shall determine whether, before a 
photographic record of an injury to a resident may be made under 
Subsection 242.126(e), Health and Safety Code, as amended by this 
Act, consent is required under state or federal law and shall adopt 
any rules necessary to implement any consent requirement.
	SECTION 7.  This Act takes effect September 1, 2003.