By: West S.B. No. 1074
(In the Senate - Filed March 10, 2003; March 17, 2003, read
first time and referred to Committee on Health and Human Services;
April 22, 2003, reported adversely, with favorable Committee
Substitute by the following vote: Yeas 7, Nays 0; April 22, 2003,
sent to printer.)
COMMITTEE SUBSTITUTE FOR S.B. No. 1074 By: West
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; [and]
(4) make a photographic record of any injury to a
resident, subject to Subsection (n); and
(5) 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 (e), Section 242.126, 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.
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