BILL ANALYSIS
By: Uresti
Committee Report (Substituted)
BACKGROUND AND PURPOSE
On April 14, 2004, Governor Rick Perry issued Executive Order RP 33, ordering an investigation into the reports of widespread system failures within the Adult Protective Services (APS) agency. The investigation revealed that APS investigators are overburdened with excessive caseloads, caseworker training is inadequate, investigations of reports of abuse, neglect, or exploitation are routinely flawed and inadequate to protect the safety of vulnerable adults, and the guardianship program run by APS was beset by a conflict of interest that prevented some who were in need of guardianship services from receiving them. These findings were buttressed by those of the House Committee on Human Services, which held hearings and issued a report on the APS breakdown during the interim of the 78th Legislature.
C.S.H.B. 920 addresses the problems discovered as a result of the investigation required by Executive Order RP 33. The bill provides for improved caseload management and investigations, quality assurance measures, increased use of technology to assist caseworkers, robust caseworker training and continuing education requirements, a transfer of guardianship functions to the Department of Aging and Disability Services (DADS), and other provisions relating to services for abused, neglected, and/or exploited elderly and disabled Texans.
RULEMAKING AUTHORITY
It is the opinion of the committee that rulemaking authority is expressly granted to the Executive Commissioner of the Health and Human Services Commission in SECTION 1.02, SECTION 1.05, SECTION 1.06, SECTION 1.11, SECTION 1.12, and SECTION 2.04 of this bill.
ANALYSIS
ARTICLE 1. ADULT PROTECTIVE SERVICES
The bill amends the Human Resources Code to require APS to establish an investigation unit to investigate allegations abuse, neglect, and exploitation of elderly and disabled persons reported to the division. The bill requires an investigator in the APS unit to determine whether an elderly or disabled person suffered from abuse, neglect, or exploitation as a result of the criminal conduct of another person and if such a determination is made, then to report the criminal conduct immediately to the appropriate law enforcement agency.
The bill amends the Human Resources Code and requires the commissioner of the Department of Family and Protective Services (DFPS) to ensure, as often as possible, that persons hired to provide services as part of, or relating to, the provision of APS directly to an elderly or disabled person should have professional credentials related to APS work. The executive commissioner of the Health and Human Services Commission (HHSC) is required by rule to develop and DFPS is required to implement a recruiting program designed to attract and retain persons with professional credentials, subject to the availability of funds. The executive commissioner is also required by rule to develop and DFPS is required to implement an incentive program to encourage each employee whose duties include providing services directly to the elderly or disabled person to obtain professional credentials in this subject area, if funding is available.
The bill requires DFPS and the Texas Higher Education Coordinating Board to jointly develop strategies to promote certificate of degree programs in the fields of social work and psychology for individuals enrolled or admitted to institutions of higher education and ensure that persons receiving a certificate or degree in social work or psychology in this state have the knowledge and skills regarding protective services directly provided to the elderly or disabled.
The bill amends the Human Resources Code by requiring DFPS to develop and implement a training program that each newly hired or assigned employee must complete before initiating an investigation or providing protective services. The bill also includes provisions regarding the training program and comprehensive case management training, training in the use of risk assessment criteria used by APS, training in the use of best practices, and the provision of specialized training in any necessary topics. DFPS is required to develop and implement continuing education programs for APS employees who have completed their initial training. DFPS is required to develop a training and continuing education curriculum and periodically review a training and continuous education program to satisfy training needs.
The bill requires DFPS to develop and implement a quality assurance program for adult protective services and sets forth the criteria for the program.
The bill requires that the executive commissioner of HHSC by rule shall develop and the department shall implement a statewide public awareness campaign designed to educate the public regarding the abuse, neglect, and exploitation of elderly and disabled persons, and sets forth criteria for the program.
The bill requires that the executive commissioner of HHSC by rule shall develop and maintain risk assessment criteria for use by DFPS in determining whether an elderly or disabled person is in a state of abuse, neglect, or exploitation and needs protective services.
The bill requires that the department shall, to the greatest extent possible, implement a system to ensure that especially complex cases of abuse, neglect, or exploitation, such as cases involving identity theft and other forms of financial exploitation, are assigned to personnel who have experience and training in those issues.
The bill requires that the department shall provide direct protective services or contract with providers of protective services. If the department does not have existing resources to provide those services, subject to the availability of funds, the department shall contract with protective services agencies for the provision of those services, especially to elderly or disabled persons residing in remote or rural areas that the department has not previously served.
The bill requires rather than authorizes DFPS to petition the appropriate court that has probate jurisdiction in the county in which the elderly or disabled person resides for an emergency order authorizing protective services upon finding that such person cannot give consent and no consent can be obtained to receive protective services. The bill sets forth criteria for the petition for the petition for an emergency order authorizing protective services, and circumstances under which the emergency order may be extended.
The bill requires that, subject to available appropriations, HHSC shall use technology wherever possible to provide for automated collection of information necessary to evaluate the effectiveness of DFPS' adult protective services program. The bill requires HHSC to include representatives of the private sector in the technology planning process for the adult protective services program of DFPS.
The bill amends the Government Code to require the executive commissioner of HHSC to develop a caseload management reduction plan to reduce caseloads for caseworkers to a level that does not exceed professional caseload standards by more than five cases per caseworker, no later than January 1, 2011. The bill requires that the plan include specific annual targets for caseload reduction. The bill requires the executive commissioner to implement the plan, subject to the availability of funds, not later than January 1, 2006. The bill also provides that the executive commissioner is prepare a report on the caseload management plan and sets forth the criteria for the report.
The bill requires the executive commissioner of HHSC to develop by rule a pilot program to monitor unlicensed long-term care facilities that provide personal care services, health-related services, or other care to the elderly or disabled person or residential facilities or arrangements that provide personal care services in violation of state law, and sets forth criteria for the pilot program and reporting of its status and progress.
ARTICLE 2. GUARDIANSHIP AND RELATED SERVICES
The bill amends the heading of Subchapter E, Chapter 48, Human Resources Code.
The bill requires DFPS to refer individuals to the Department of Aging and Disability Services (DADS) for the provision of guardianship services under Subchapter E, Chapter 161, and designates which individuals must be referred by DFPS to DADS for guardianship services. The bill requires that a less restrictive alternative to guardianship be pursued by DFPS instead of making a referral for guardianship services to DADS, where appropriate and available. The bill requires DFPS and DADS to enter into a memorandum of understanding regarding the referral process between the two agencies for the provision of guardianship services. The bill allows DFPS to make a referral of an individual to a court having probate jurisdiction in the county where the individual is domiciled or found, if the court has requested that the department notify the court of any individuals who may be appropriate for a court-initiated guardianship under the Texas Probate Code. The bill prohibits the DFPS from serving as temporary guardian for any individual.
The bill sets forth the general powers and duties of DADS, and adds the duty of performing guardianship services for individuals as provided for by the Texas Probate Code and the Human Resources Code.
The bill amends the Human Resources Code by adding the following:
· Requires the department to file an application to be appointed guardian of a minor referred to the department, and sets forth criteria for the determination of whether the department must file an application for that minor. The bill requires the department to file conduct a thorough assessment of an elderly or disabled person referred to the department for guardianship services to determine whether a guardianship is appropriate. The bill requires the executive commissioner to adopt rules that control the determination of whether guardianship is appropriate for such individuals. The bill requires the department to file an application for guardianship for a person referred to the department if the department's required assessment of that person indicates that guardianship is appropriate in that case. The bill requires the department to pursue less restrictive alternatives to guardianship for persons referred to and assessed by the department, where appropriate. The bill prevents the department from being appointed as permanent guardian for any individual unless the department agrees or applies for guardianship for that individual. The bill does not allow an application for guardianship for an individual referred to the department as a minor by DFPS to take effect until that individual's 18th birthday.
· Requires the department to refer an individual referred to the department by DFPS for guardianship services to a guardianship program, private professional guardian, or other person willing to provide guardianship services if the department becomes aware of such an option.
· Requires the department to refer individuals referred to the department by DFPS for guardianship services to other appropriate and available programs or persons that are willing and able to provide guardianship services if the department becomes aware of such options. If requested by a court, the bill requires the department to notify a court having probate jurisdiction in the county where any individual is domiciled or found, that the department has received a referral of such an individual by DFPS who may be appropriate for a court-initiated guardianship under the Texas Probate Code.
· Allows the department to contract for guardianship services with private providers and political subdivisions of the state.
· Requires the department to develop and implement a quality assurance program for its guardianship services program, or for guardianship services provided by other providers on behalf of the department through contractual relationships.
· Requires a representative of the department to take the oath required by the Texas Probate Code, on behalf of the department if the department is appointed guardian.
· Provides for the department to have all the powers granted and duties prescribed to a guardian under the Texas Probate Code, or any other applicable law.
· Provides for the departments exemption from certain bonds, costs, fees, and expenses related to its provision of guardianship services, as otherwise required by the Texas Probate Code in guardianship matters.
· Requires the department to review pending guardianship cases at least annually to determine whether a more suitable person is willing and able to serve as a successor guardian; if such a person is available, the court must notify the court in the county where the guardianship is pending.
· Provides for the department's access to records and documents concerning an individual referred to the department for guardianship services that are necessary for the department to provide such services.
· Provides for the department's legal representation in criminal cases.
· Provides for the confidentiality disclosure of files, reports, records, communications, or working papers relating the assessment for or the provision of guardianship services to an individual referred to the department for such purposes. The bill also sets forth criteria for when such materials may be disclosed or ordered disclosed by courts. The bill requires the department to establish a policy and procedures for the exchange of information with other state agencies, including courts, with a local guardianship program to which an individual is referred.
· Provides for indemnification of legal expenses incurred by a present of former employee of DADS relating to criminal prosecution for conduct related to the person's employment with the department, and sets forth criteria under which indemnification applies, as well as a maximum amount of indemnification.
· Provides for immunity from civil or criminal liability for volunteers and department employees for any act or omissions that relate to the duty or responsibility of the person if the person acted in good faith and within the scope of the person's authority.
The bill requires DADS, while serving as guardian to an individual, to notify the court if it becomes aware of a guardianship program or private professional guardian willing and able to serve as the ward's successor guardian, and the department is not aware of a family member or friend that is willing and able to serve as the ward's successor guardian.
The bill amends the Texas Probate Code, where relevant, by replacing references to the Department of Protective and Regulatory Services with the Department of Aging and Disability.
The bill sets forth the all the powers, duties, functions, programs, and activities of DFPS relating to the provision of guardianship services that shall be transferred to DADS on September 1, 2005. The bill similarly provides for the transfer from DFPS to DADS of employees; rules or forms; references in law; waivers in effect; proceedings; all money contracts; rights and obligations; all property and records in custody; and all funds appropriated by the legislature if related to the performance of guardianship services. The bill sets forth other criteria for the smooth and orderly transition of guardianship services from DFPS to DADS.
The bill requires the executive commissioner of HHSC to establish a transition plan for the transfer of DFPS guardianship cases to DADS on or before the last day of the period prescribed by the executive commissioner.
EFFECTIVE DATE
September 1, 2005.
COMPARISON OF ORIGINAL TO SUBSTITUTE
C.S.H.B. 920 modifies the original by removing the DFPS's requirement to make quality assurance reports on its provision of guardianship services, because all guardianship functions are removed from DFPS to DADS in the substitute.
C.S.H.B. 920 modifies the original by deleting the requirement in the original that DFPS establish a toll-free number for complaints.
C.S.H.B. 920 modifies the original by requiring DFPS to use technology to improve caseworkers ability to gather information used to evaluate program effectiveness.
C.S.H.B. 920 modifies the original by providing that the executive commissioner shall implement a caseload management reduction plan subject to the availability of funds. The original required the executive commissioner to implement the plan regardless of the availability of funds.
C.S.H.B. 920 modifies the original by clarifying the reporting process that APS must use to secure an emergency protective order to provide services for an elderly or disabled person who has been determined to be suffering from abuse, neglect, or exploitation, and expanding the number or healthcare or mental health professionals who may make such a report used by the court to issue such an emergency order. C.S.H.B. 920 also modifies the provisions allowing a court to extend such an emergency order.
C.S.H.B. 920 modifies the original in Article 2. by changing the titles in the Human Resources Code.
C.S.H.B. 920 modifies the original by clarifying in Article 2. that DFPS is only responsible for referring individuals to DADS for the provision of guardianship services. The substitute differs from the original in that the original did not reflect the complete removal of all guardianship services from DFPS to DADS, including the assessment of individuals to determine whether guardianship is appropriate. The substitute makes the division of functions clear: DFPS refers individuals to DADS for assessment and provision of guardianship services, where appropriate.
C.S.H.B. 920 modifies the original by removing all provisions establishing DADS as a guardian of last resort within the state, and all related provisions.
C.S.H.B. 920 modifies the original by adding a provision that requires the executive commissioner to adopt rules for DADS to follow in its determination of whether guardianship is appropriate for an abused, neglected, or exploited elderly or disabled individual who has been referred to the department by DFPS, in the case that such a person is not a conservatee of DFPS who has been referred to DADS.
C.S.H.B. 920 modifies the original by adding a provision requiring DADS to refer a person to local guardianship or private guardianship services if it becomes aware of the availability of such services while it is providing them to an individual referred to the department by DFPS.
C.S.H.B. 920 modifies the original by adding a provision that requires DADS, if requested by a court with probate jurisdiction in a county, to notify that court if an elderly or disabled individual has been referred to DADS by DFPS due to abuse, neglect, or exploitation if that individual may be appropriate for court-initiated guardianship under the Texas Probate Code.
C.S.H.B. 920 modifies the original by adding a provision allowing DADS to contract with private guardianship service providers and political subdivisions of the state to provide guardianship services on behalf of the agency. The original version of the bill did not authorize DADS to contract for these services.
C.S.H.B. 920 modifies the original by adding a requirement that DADS conduct quality assurance activities concerning its provision of guardianship services.
C.S.H.B. 920 modifies the original adding a provision for a representative of the department to take an oath on behalf of DADS if the department is appointed guardian.
C.S.H.B. 920 modifies the original by adding a provision clarifying that DADS will have all the powers granted and duties prescribed to a guardian under the Texas Probate Code, or any other applicable law.
C.S.H.B. 920 modifies the original by adding a provision exempting DADS from guardianship bonds, certain costs, fees, and expenses relating to its provision of guardianship services.
C.S.H.B. 920 modifies the original by setting forth provisions for the legal representation of DADS in the event of civil or criminal proceedings.
C.S.H.B. 920 modifies the original by adding provisions concerning the exchange of information between state agencies, courts, and guardianship service providers relating to information, records, files, and materials necessary to provide guardianship services.
C.S.H.B. 920 modifies the original by adding provisions concerning the provision of indemnification and immunity for employees and volunteers of DADS.
C.S.H.B. 920 modifies the original by removing a section repealing a section of the Human Resources Code